Professional Documents
Culture Documents
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CARTER VS CANADA
FULL TEXT
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on the circumstances and the focus of the legislation. On the basis of the record, the
interjurisdictional immunity claim cannot succeed.
Insofar as they prohibit physician-assisted dying for competent adults
who seek such assistance as a result of a grievous and irremediable medical condition
that causes enduring and intolerable suffering, ss. 241(b) and 14 of the Criminal Code
deprive these adults of their right to life, liberty and security of the person under s. 7
of the Charter. The right to life is engaged where the law or state action imposes
death or an increased risk of death on a person, either directly or indirectly. Here, the
prohibition deprives some individuals of life, as it has the effect of forcing some
individuals to take their own lives prematurely, for fear that they would be incapable
of doing so when they reached the point where suffering was intolerable. The rights
to liberty and security of the person, which deal with concerns about autonomy and
quality of life, are also engaged. An individual’s response to a grievous and
irremediable medical condition is a matter critical to their dignity and autonomy. The
prohibition denies people in this situation the right to make decisions concerning their
bodily integrity and medical care and thus trenches on their liberty. And by leaving
them to endure intolerable suffering, it impinges on their security of the person.
The prohibition on physician-assisted dying infringes the right to life,
liberty and security of the person in a manner that is not in accordance with the
principles of fundamental justice. The object of the prohibition is not, broadly, to
preserve life whatever the circumstances, but more specifically to protect vulnerable
persons from being induced to commit suicide at a time of weakness. Since a total
ban on assisted suicide clearly helps achieve this object, individuals’ rights are not
deprived arbitrarily. However, the prohibition catches people outside the class of
protected persons. It follows that the limitation on their rights is in at least some cases
not connected to the objective and that the prohibition is thus overbroad. It is
unnecessary to decide whether the prohibition also violates the principle against gross
disproportionality.
Having concluded that the prohibition on physician-assisted dying
violates s. 7, it is unnecessary to consider whether it deprives adults who are
physically disabled of their right to equal treatment under s. 15 of the Charter.
Sections 241(b) and 14 of the Criminal Code are not saved by s. 1 of the
Charter. While the limit is prescribed by law and the law has a pressing and
substantial objective, the prohibition is not proportionate to the objective. An absolute
prohibition on physician-assisted dying is rationally connected to the goal of
protecting the vulnerable from taking their life in times of weakness, because
prohibiting an activity that poses certain risks is a rational method of curtailing the
risks. However, as the trial judge found, the evidence does not support the contention
that a blanket prohibition is necessary in order to substantially meet the government’s
objective. The trial judge made no palpable and overriding error in concluding, on the
basis of evidence from scientists, medical practitioners, and others who are familiar
with end-of-life decision-making in Canada and abroad, that a permissive regime with
properly designed and administered safeguards was capable of protecting vulnerable
people from abuse and error. It was also open to her to conclude that vulnerability can
be assessed on an individual basis, using the procedures that physicians apply in their
assessment of informed consent and decisional capacity in the context of medical
decision-making more generally. The absolute prohibition is therefore not minimally
impairing. Given this conclusion, it is not necessary to weigh the impacts of the law
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on protected rights against the beneficial effect of the law in terms of the greater
public good.
The appropriate remedy is not to grant a free-standing constitutional
exemption, but rather to issue a declaration of invalidity and to suspend it for 12
months. Nothing in this declaration would compel physicians to provide assistance in
dying. The Charter rights of patients and physicians will need to be reconciled in any
legislative and regulatory response to this judgment.
The appellants are entitled to an award of special costs on a full
indemnity basis to cover the entire expense of bringing this case before the courts. A
court may depart from the usual rule on costs and award special costs where two
criteria are met. First, the case must involve matters of public interest that are truly
exceptional. It is not enough that the issues raised have not been previously resolved
or that they transcend individual interests of the successful litigant: they must also
have a significant and widespread societal impact. Second, in addition to showing that
they have no personal, proprietary or pecuniary interest in the litigation that would
justify the proceedings on economic grounds, the plaintiffs must show that it would
not have been possible to effectively pursue the litigation in question with private
funding. Finally, only those costs that are shown to be reasonable and prudent will be
covered by the award of special costs. Here, the trial judge did not err in awarding
special costs in the truly exceptional circumstances of this case. It was also open to
her to award 10 percent of the costs against the Attorney General of British Columbia
in light of the full and active role it played in the proceedings. The trial judge was in
the best position to determine the role taken by that Attorney General and the extent
to which it shared carriage of the case.
Cases Cited
Distinguished: Rodriguez v. British Columbia (Attorney General),
[1993] 3 S.C.R. 519; applied: Canada (Attorney General) v. Bedford, 2013 SCC 72,
[2013] 3 S.C.R. 1101; disapproved: Victoria (City) v. Adams, 2009 BCCA 563, 100
B.C.L.R. (4th) 28; referred to: Washington v. Glucksberg, 521 U.S. 702 (1997);
Vacco v. Quill, 521 U.S. 793 (1997); Pretty v. United Kingdom, No. 2346/02, ECHR
2002-III; Fleming v. Ireland, [2013] IESC 19; R. (on the application of Nicklinson) v.
Ministry of Justice, [2014] UKSC 38, [2014] 3 All E.R. 843; Alberta v. Hutterian
Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Ferguson, 2008
SCC 6, [2008] 1 S.C.R. 96; Ontario (Attorney General) v. Fraser, 2011 SCC 20,
[2011] 2 S.C.R. 3; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R.
3; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256;
Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44,
[2011] 3 S.C.R. 134; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3
S.C.R. 199; Schneider v. The Queen, [1982] 2 S.C.R. 112; Chaoulli v. Quebec
(Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; Blencoe v. British Columbia
(Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; R. v. Morgentaler,
[1988] 1 S.C.R. 30; New Brunswick (Minister of Health and Community Services) v.
G. (J.), [1999] 3 S.C.R. 46; A.C. v. Manitoba (Director of Child and Family
Services), 2009 SCC 30, [2009] 2 S.C.R. 181; R. v. Parker (2000), 49 O.R. (3d) 481;
Fleming v. Reid (1991), 4 O.R. (3d) 74; Ciarlariello v. Schacter, [1993] 2 S.C.R. 119;
Malette v. Shulman (1990), 72 O.R. (2d) 417; Nancy B. v. Hôtel-Dieu de Québec
(1992), 86 D.L.R. (4th) 385; Charkaoui v. Canada (Citizenship and Immigration),
2007 SCC 9, [2007] 1 S.C.R. 350; R. v. Swain, [1991] 1 S.C.R. 933; Re B.C. Motor
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Vehicle Act, [1985] 2 S.C.R. 486; Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; R. v. Oakes, [1986] 1 S.C.R. 103;
Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1
S.C.R. 467; Little Sisters Book and Art Emporium v. Canada (Commissioner of
Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38; Finney v. Barreau du
Québec, 2004 SCC 36, [2004] 2 S.C.R. 17; British Columbia (Minister of Forests) v.
Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; B. (R.) v. Children’s Aid
Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Hegeman v. Carter, 2008
NWTSC 48, 74 C.P.C. (6th) 112; Polglase v. Polglase (1979), 18 B.C.L.R. 294.
Statutes and Regulations Cited
Act respecting end-of-life care, CQLR, c. S-32.0001 [not yet in force].
Canadian Charter of Rights and Freedoms, ss. 1, 7, 15.
Constitution Act, 1867, ss. 91, 92.
Constitution Act, 1982, s. 52.
Criminal Code, R.S.C. 1985, c. C-46, ss. 14, 21, 22, 212(1)(j), 222, 241.
Authors Cited
Singleton, Thomas J. “The Principles of Fundamental Justice, Societal Interests and
Section 1 of the Charter” (1995), 74 Can. Bar Rev. 446.
APPEAL from a judgment of the British Columbia Court of Appeal
(Finch C.J.B.C. and Newbury and Saunders JJ.A.), 2013 BCCA 435, 51 B.C.L.R.
(5th) 213, 302 C.C.C. (3d) 26, 365 D.L.R. (4th) 351, 293 C.R.R. (2d) 109, 345
B.C.A.C. 232, 589 W.A.C. 232, [2014] 1 W.W.R. 211, [2013] B.C.J. No. 2227 (QL),
2013 CarswellBC 3051 (WL Can.), setting aside decisions of Smith J., 2012 BCSC
886, 287 C.C.C. (3d) 1, 261 C.R.R. (2d) 1, [2012] B.C.J. No. 1196 (QL), 2012
CarswellBC 1752 (WL Can.); and 2012 BCSC 1587, 271 C.R.R. (2d) 224, [2012]
B.C.J. No. 2259 (QL), 2012 CarswellBC 3388 (WL Can.). Appeal allowed.
Joseph J. Arvay, Q.C., Sheila M. Tucker and Alison M. Latimer, for the
appellants.
Robert J. Frater and Donnaree Nygard, for the respondent the Attorney
General of Canada.
Bryant Mackey, for the respondent the Attorney General of British
Columbia.
S. Zachary Green, for the intervener the Attorney General of Ontario.
Jean-Yves Bernard and Sylvain Leboeuf, for the intervener the Attorney
General of Quebec.
David Baker and Emily Shepard, for the interveners the Council of
Canadians with Disabilities and the Canadian Association for Community Living.
Gerald D. Chipeur, Q.C., for the intervener the Christian Legal
Fellowship.
Written submissions only by Gordon Capern, Michael Fenrick, Richard
Elliott and Ryan Peck, for the interveners the Canadian HIV/AIDS Legal Network
and the HIV & AIDS Legal Clinic Ontario.
André Schutten, for the intervener the Association for Reformed Political
Action Canada.
Pierre Bienvenu, Andres C. Garin and Vincent Rochette, for the
intervener the Physicians’ Alliance against Euthanasia.
Geoffrey Trotter, for the intervener the Evangelical Fellowship of
Canada.
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Albertos Polizogopoulos, for the interveners the Christian Medical and
Dental Society of Canada and the Canadian Federation of Catholic Physicians’
Societies.
Written submissions only by Cynthia Petersen and Kelly Doctor, for the
intervener Dying With Dignity.
Harry Underwood and Jessica Prince, for the intervener the Canadian
Medical Association.
Albertos Polizogopoulos and Russell G. Gibson, for the intervener the
Catholic Health Alliance of Canada.
Marlys A. Edwardh and Daniel Sheppard, for the intervener the Criminal
Lawyers’ Association (Ontario).
Jason B. Gratl, for the interveners the Farewell Foundation for the Right
to Die and Association québécoise pour le droit de mourir dans la dignité.
Christopher D. Bredt and Margot Finley, for the intervener the Canadian
Civil Liberties Association.
Robert W. Staley, Ranjan K. Agarwal, Jack R. Maslen and Philip H.
Horgan, for the interveners the Catholic Civil Rights League, the Faith and Freedom
Alliance and the Protection of Conscience Project.
Angus M. Gunn, Q.C., and Duncan A. W. Ault, for the intervener the
Alliance of People With Disabilities Who are Supportive of Legal Assisted Dying
Society.
Tim Dickson and Ryan J. M. Androsoff, for the intervener the Canadian
Unitarian Council.
Hugh R. Scher, for the interveners the Euthanasia Prevention Coalition
and the Euthanasia Prevention Coalition — British Columbia.
TABLE OF CONTENTS
Paragraph
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1
I. Introduction ....................................................................................................... 4
5
II. Background ........................................................................................................ 19 5
III. Statutory Provisions ........................................................................................ 22 14
22
IV. Judicial History ................................................................................................ 16
A. British Columbia Supreme Court, 2012 BCSC 886, 287 C.C.C. (3d) 1 ............ 34 16
B. British Columbia Court of Appeal, 2013 BCCA 435, 51 B.C.L.R. (5th) 40
213 .....................................................................................................................
42 22
V. Issues on Appeal .............................................................................................. 25
49
VI. Was the Trial Judge Bound by Rodriguez? ................................................... 54 25
VII. Does the Prohibition Interfere With the “Core” of the Provincial
Jurisdiction Over Health? .............................................................................. 57 28
57
VIII. Section 7 ............................................................................................................ 31
64
A. Does the Law Infringe the Right to Life, Liberty and
70
Security of the Person? ...................................................................................... 32
71
(1) Life ............................................................................................................. 32
83
(2) Liberty and Security of the Person ............................................................. 35
85
(3) Summary on Section 7: Life, Liberty and Security of the Person ............. 38
89
B. The Principles of Fundamental Justice ............................................................. 39
91
(1) Arbitrariness ............................................................................................... 44
(2) Overbreadth ................................................................................................ 44
93
(3) Gross Disproportionality ............................................................................ 46
94
(4) Parity .......................................................................................................... 47
99
IX. Does the Prohibition on Assisted Suicide Violate Section 15 102
of the Charter?.................................................................................................. 10848
X. Section 1 ............................................................................................................ 11048
(1)
Rational Connection ................................................................................... 50
(2)
Minimal Impairment................................................................................... 11451
Canada’s Challenge to the Facts ...............................................................
(a) 12254
(b)
The Fresh Evidence .................................................................................... 12455
(c)
The Feasibility of Safeguards and the Possibility of 124
a “Slippery Slope” ..................................................................................... 12657
(3) Deleterious Effects and Salutary Benefits .................................................. 13361
147
XI. Remedy ............................................................................................................. 61
A. The Court of Appeal’s Proposed Constitutional Exemption ............................. 61
B. Declaration of Invalidity ................................................................................... 62
XII. Costs .................................................................................................................. 65
XIII. Conclusion ........................................................................................................ 70
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My present quality of life is impaired by the fact that I am unable to
say for certain that I will have the right to ask for physician-assisted
dying when that “enough is enough” moment arrives. I live in
apprehension that my death will be slow, difficult, unpleasant, painful,
undignified and inconsistent with the values and principles I have tried to
live by. . . .
...
...
(b) does or omits to do anything for the purpose of aiding any person
to commit it; or
...
(3) For the purposes of this Act, “counsel” includes procure, solicit or
incite.
...
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7. Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
15. (1) Every individual is equal before and under the law and has the
right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical
disability.
IV. Judicial History
A. British Columbia Supreme Court, 2012 BCSC 886, 287 C.C.C. (3d) 1
[22] The action was brought by way of summary trial before Smith J. in the
British Columbia Supreme Court. While the majority of the evidence was presented
in affidavit form, a number of the expert witnesses were cross-examined, both prior to
trial and before the trial judge. The record was voluminous: the trial judge canvassed
evidence from Canada and from the permissive jurisdictions on medical ethics and
current end-of-life practices, the risks associated with assisted suicide, and the
feasibility of safeguards.
[23] The trial judge began by reviewing the current state of the law and
practice in Canada regarding end-of-life care. She found that current unregulated
end-of-life practices in Canada — such as the administration of palliative sedation
and the withholding or withdrawal of lifesaving or life-sustaining medical treatment
— can have the effect of hastening death and that there is a strong societal consensus
that these practices are ethically acceptable (para. 357). After considering the
evidence of physicians and ethicists, she found that the “preponderance of the
evidence from ethicists is that there is no ethical distinction between physician-
assisted death and other end-of-life practices whose outcome is highly likely to be
death” (para. 335). Finally, she found that there are qualified Canadian physicians
who would find it ethical to assist a patient in dying if that act were not prohibited by
law (para. 319).
[24] Based on these findings, the trial judge concluded that, while there is no
clear societal consensus on physician-assisted dying, there is a strong consensus that
it would only be ethical with respect to voluntary adults who are competent,
informed, grievously and irremediably ill, and where the assistance is “clearly
consistent with the patient’s wishes and best interests, and [provided] in order to
relieve suffering” (para. 358).
[25] The trial judge then turned to the evidence from the regimes that permit
physician-assisted dying. She reviewed the safeguards in place in each jurisdiction
and considered the effectiveness of each regulatory regime. In each system, she
found general compliance with regulations, although she noted some room for
improvement. The evidence from Oregon and the Netherlands showed that a system
can be designed to protect the socially vulnerable. Expert evidence established that
the “predicted abuse and disproportionate impact on vulnerable populations has not
materialized” in Belgium, the Netherlands, and Oregon (para. 684). She concluded
that
although none of the systems has achieved perfection, empirical
researchers and practitioners who have experience in those systems are of
the view that they work well in protecting patients from abuse while
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allowing competent patients to choose the timing of their deaths. [para.
685]
While stressing the need for caution in drawing conclusions for Canada based on
foreign experience, the trial judge found that “weak inference[s]” could be drawn
about the effectiveness of safeguards and the potential degree of compliance with any
permissive regime (para. 683).
[26] Based on the evidence from the permissive jurisdictions, the trial judge
also rejected the argument that the legalization of physician-assisted dying would
impede the development of palliative care in the country, finding that the effects of a
permissive regime, while speculative, would “not necessarily be negative” (para.
736). Similarly, she concluded that any changes in the physician-patient relationship
following legalization “could prove to be neutral or for the good” (para. 746).
[27] The trial judge then considered the risks of a permissive regime and the
feasibility of implementing safeguards to address those risks. After reviewing the
evidence tendered by physicians and experts in patient assessment, she concluded that
physicians were capable of reliably assessing patient competence, including in the
context of life-and-death decisions (para. 798). She found that it was possible to
detect coercion, undue influence, and ambivalence as part of this assessment process
(paras. 815, 843). She also found that the informed consent standard could be applied
in the context of physician-assisted death, so long as care was taken to “ensure a
patient is properly informed of her diagnosis and prognosis” and the treatment options
described included all reasonable palliative care interventions (para. 831).
Ultimately, she concluded that the risks of physician-assisted death “can be identified
and very substantially minimized through a carefully-designed system” that imposes
strict limits that are scrupulously monitored and enforced (para. 883).
[28] Having reviewed the copious evidence before her, the trial judge
concluded that the decision in Rodriguez did not prevent her from reviewing the
constitutionality of the impugned provisions, because (1) the majority in Rodriguez
did not address the right to life; (2) the principles of overbreadth and gross
disproportionality had not been identified at the time of the decision in Rodriguez and
thus were not addressed in that decision; (3) the majority only “assumed” a violation
of s. 15; and (4) the decision in Alberta v. Hutterian Brethren of Wilson Colony, 2009
SCC 37, [2009] 2 S.C.R. 567, represented a “substantive change” to the s. 1 analysis
(para. 994). The trial judge concluded that these changes in the law, combined with
the changes in the social and factual landscape over the past 20 years, permitted her to
reconsider the constitutionality on the prohibition on physician-assisted dying.
[29] The trial judge then turned to the Charter analysis. She first asked
whether the prohibition violated the s. 15 equality guarantee. She found that the
provisions imposed a disproportionate burden on persons with physical disabilities, as
only they are restricted to self-imposed starvation and dehydration in order to take
their own lives (para. 1076). This distinction, she found, is discriminatory, and not
justified under s. 1. While the objective of the prohibition — the protection of
vulnerable persons from being induced to commit suicide at a time of weakness — is
pressing and substantial and the means are rationally connected to that purpose, the
prohibition is not minimally impairing. A “stringently limited, carefully monitored
system of exceptions” would achieve Parliament’s objective:
Permission for physician-assisted death for grievously ill and
irremediably suffering people who are competent, fully informed, non-
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ambivalent, and free from coercion or duress, with stringent and well-
enforced safeguards, could achieve that objective in a real and substantial
way. [para. 1243]
[30] Turning to s. 7 of the Charter, which protects life, liberty and security of
the person, the trial judge found that the prohibition impacted all three interests. The
prohibition on seeking physician-assisted dying deprived individuals of liberty, which
encompasses “the right to non-interference by the state with fundamentally important
and personal medical decision-making” (para. 1302). In addition, it also impinged on
Ms. Taylor’s security of the person by restricting her control over her bodily integrity.
While the trial judge rejected a “qualitative” approach to the right to life, concluding
that the right to life is only engaged by a threat of death, she concluded that Ms.
Taylor’s right to life was engaged insofar as the prohibition might force her to take
her life earlier than she otherwise would if she had access to a physician-assisted
death.
[31] The trial judge concluded that the deprivation of the claimants’ s. 7 rights
was not in accordance with the principles of fundamental justice, particularly the
principles against overbreadth and gross disproportionality. The prohibition was
broader than necessary, as the evidence showed that a system with properly designed
and administered safeguards offered a less restrictive means of reaching the
government’s objective. Moreover, the “very severe” effects of the absolute
prohibition in relation to its salutary effects rendered it grossly disproportionate (para.
1378). As with the s. 15 infringement, the trial judge found the s. 7 infringement was
not justified under s. 1.
[32] In the result, the trial judge declared the prohibition unconstitutional,
granted a one-year suspension of invalidity, and provided Ms. Taylor with a
constitutional exemption for use during the one-year period of the suspension. Ms.
Taylor passed away prior to the appeal of this matter, without accessing the
exemption.
[33] In a separate decision on costs (2012 BCSC 1587, 271 C.R.R. (2d) 224),
the trial judge ordered an award of special costs in favour of the plaintiffs. The issues
in the case were “complex and momentous” (para. 87) and the plaintiffs could not
have prosecuted the case without assistance from pro bono counsel; an award of
special costs would therefore promote the public interest in encouraging experienced
counsel to take on Charter litigation on a pro bono basis. The trial judge ordered the
Attorney General of British Columbia to pay 10 percent of the costs, noting that she
had taken a full and active role in the proceedings. Canada was ordered to pay the
remaining 90 percent of the award.
B. British Columbia Court of Appeal, 2013 BCCA 435, 51 B.C.L.R. (5th) 213
[34] The majority of the Court of Appeal, per Newbury and Saunders JJ.A.,
allowed Canada’s appeal on the ground that the trial judge was bound to follow this
Court’s decision in Rodriguez. The majority concluded that neither the change in
legislative and social facts nor the new legal issues relied on by the trial judge
permitted a departure from Rodriguez.
[35] The majority read Rodriguez as implicitly rejecting the proposition that
the prohibition infringes the right to life under s. 7 of the Charter. It concluded that
the post-Rodriguez principles of fundamental justice — namely overbreadth and gross
disproportionality — did not impose a new legal framework under s. 7. While
acknowledging that the reasons in Rodriguez did not follow the analytical
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methodology that now applies under s. 7, the majority held that this would not have
changed the result.
[36] The majority also noted that Rodriguez disposed of the s. 15 equality
argument (which only two judges in that case expressly considered) by holding that
any rights violation worked by the prohibition was justified as a reasonable limit
under s. 1 of the Charter. The decision in Hutterian Brethren did not represent a
change in the law under s. 1. Had it been necessary to consider s. 1 in relation to s. 7,
the majority opined, the s. 1 analysis carried out under s. 15 likely would have led to
the same conclusion — the “blanket prohibition” under s. 241 of the Criminal Code
was justified (para. 323). Accordingly, the majority concluded that “the trial judge
was bound to find that the plaintiffs’ case had been authoritatively decided by
Rodriguez” (para. 324).
[37] Commenting on remedy in the alternative, the majority of the Court of
Appeal suggested the reinstatement of the free-standing constitutional exemption
eliminated in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, instead of a
declaration of invalidity, as a suspended declaration presented the spectre of a
legislative vacuum.
[38] The majority denied the appellants their costs, given the outcome, but
otherwise would have approved the trial judge’s award of special costs. In addition,
the majority held that costs should not have been awarded against British Columbia.
[39] Finch C.J.B.C., dissenting, found no errors in the trial judge’s assessment
of stare decisis, her application of s. 7, or the corresponding analysis under s. 1.
However, he concluded that the trial judge was bound by Sopinka J.’s conclusion that
any s. 15 infringement was saved by s. 1. While he essentially agreed with her s. 7
analysis, he would have accepted a broader, qualitative scope for the right to life. He
agreed with the trial judge that the prohibition was not minimally impairing, and
concluded that a “carefully regulated scheme” could meet Parliament’s objectives
(para. 177); therefore, the breach of s. 7 could not be justified under s. 1. He would
have upheld the trial judge’s order on costs.
V. Issues on Appeal
[40] The main issue in this case is whether the prohibition on physician-
assisted dying found in s. 241(b) of the Criminal Code violates the claimants’ rights
under ss. 7 and 15 of the Charter. For the purposes of their claim, the appellants use
“physician-assisted death” and “physician-assisted dying” to describe the situation
where a physician provides or administers medication that intentionally brings about
the patient’s death, at the request of the patient. The appellants advance two claims:
(1) that the prohibition on physician-assisted dying deprives competent adults, who
suffer a grievous and irremediable medical condition that causes the person to endure
physical or psychological suffering that is intolerable to that person, of their right to
life, liberty and security of the person under s. 7 of the Charter; and (2) that the
prohibition deprives adults who are physically disabled of their right to equal
treatment under s. 15 of the Charter.
[41] Before turning to the Charter claims, two preliminary issues arise: (1)
whether this Court’s decision in Rodriguez can be revisited; and (2) whether the
prohibition is beyond Parliament’s power because physician-assisted dying lies at the
core of the provincial jurisdiction over health.
VI. Was the Trial Judge Bound by Rodriguez?
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[42] The adjudicative facts in Rodriguez were very similar to the facts before
the trial judge. Ms. Rodriguez, like Ms. Taylor, was dying of ALS. She, like Ms.
Taylor, wanted the right to seek a physician’s assistance in dying when her suffering
became intolerable. The majority of the Court, per Sopinka J., held that the
prohibition deprived Ms. Rodriguez of her security of the person, but found that it did
so in a manner that was in accordance with the principles of fundamental justice. The
majority also assumed that the provision violated the claimant’s s. 15 rights, but held
that the limit was justified under s. 1 of the Charter.
[43] Canada and Ontario argue that the trial judge was bound by Rodriguez
and not entitled to revisit the constitutionality of the legislation prohibiting assisted
suicide. Ontario goes so far as to argue that “vertical stare decisis” is a constitutional
principle that requires all lower courts to rigidly follow this Court’s Charter
precedents unless and until this Court sets them aside.
[44] The doctrine that lower courts must follow the decisions of higher courts
is fundamental to our legal system. It provides certainty while permitting the orderly
development of the law in incremental steps. However, stare decisis is not a
straitjacket that condemns the law to stasis. Trial courts may reconsider settled
rulings of higher courts in two situations: (1) where a new legal issue is raised; and
(2) where there is a change in the circumstances or evidence that “fundamentally
shifts the parameters of the debate” (Canada (Attorney General) v. Bedford, 2013
SCC 72, [2013] 3 S.C.R. 1101, at para. 42).
[45] Both conditions were met in this case. The trial judge explained her
decision to revisit Rodriguez by noting the changes in both the legal framework for s.
7 and the evidence on controlling the risk of abuse associated with assisted suicide.
[46] The argument before the trial judge involved a different legal conception
of s. 7 than that prevailing when Rodriguez was decided. In particular, the law
relating to the principles of overbreadth and gross disproportionality had materially
advanced since Rodriguez. The majority of this Court in Rodriguez acknowledged
the argument that the impugned laws were “over-inclusive” when discussing the
principles of fundamental justice (see p. 590). However, it did not apply the principle
of overbreadth as it is currently understood, but instead asked whether the prohibition
was “arbitrary or unfair in that it is unrelated to the state’s interest in protecting the
vulnerable, and that it lacks a foundation in the legal tradition and societal beliefs
which are said to be represented by the prohibition” (p. 595). By contrast, the law on
overbreadth, now explicitly recognized as a principle of fundamental justice, asks
whether the law interferes with some conduct that has no connection to the law’s
objectives (Bedford, at para. 101). This different question may lead to a different
answer. The majority’s consideration of overbreadth under s. 1 suffers from the same
defect: see Rodriguez, at p. 614. Finally, the majority in Rodriguez did not consider
whether the prohibition was grossly disproportionate.
[47] The matrix of legislative and social facts in this case also differed from
the evidence before the Court in Rodriguez. The majority in Rodriguez relied on
evidence of (1) the widespread acceptance of a moral or ethical distinction between
passive and active euthanasia (pp. 605-7); (2) the lack of any “halfway measure” that
could protect the vulnerable (pp. 613-14); and (3) the “substantial consensus” in
Western countries that a blanket prohibition is necessary to protect against the
slippery slope (pp. 601-6 and 613). The record before the trial judge in this case
contained evidence that, if accepted, was capable of undermining each of these
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conclusions (see Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R.
3, at para. 136, per Rothstein J.).
[48] While we do not agree with the trial judge that the comments in Hutterian
Brethren on the s. 1 proportionality doctrine suffice to justify reconsideration of the s.
15 equality claim, we conclude it was open to the trial judge to reconsider the s. 15
claim as well, given the fundamental change in the facts.
VII. Does the Prohibition Interfere With the “Core” of the Provincial Jurisdiction
Over Health?
[49] The appellants accept that the prohibition on assisted suicide is, in
general, a valid exercise of the federal criminal law power under s. 91(27) of the
Constitution Act, 1867. However, they say that the doctrine of interjurisdictional
immunity means that the prohibition cannot constitutionally apply to physician-
assisted dying, because it lies at the core of the provincial jurisdiction over health care
under s. 92(7), (13) and (16) of the Constitution Act, 1867, and is therefore beyond
the legislative competence of the federal Parliament.
[50] The doctrine of interjurisdictional immunity is premised on the idea that
the heads of power in ss. 91 and 92 are “exclusive”, and therefore each have a
“minimum and unassailable” core of content that is immune from the application of
legislation enacted by the other level of government (Canadian Western Bank v.
Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at paras. 33-34). To succeed in their
argument on this point, the appellants must show that the prohibition, insofar as it
extends to physician-assisted dying, impairs the “protected core” of the provincial
jurisdiction over health: Tsilhqot’in Nation v. British Columbia, 2014 SCC 44,
[2014] 2 S.C.R. 256, at para. 131.
[51] This Court rejected a similar argument in Canada (Attorney General) v.
PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134. The issue in
that case was “whether the delivery of health care services constitutes a protected
core of the provincial power over health care in s. 92(7), (13) and (16) . . . and is
therefore immune from federal interference” (para. 66). The Court concluded that it
did not (per McLachlin C.J.):
. . . Parliament has power to legislate with respect to federal matters,
notably criminal law, that touch on health. For instance, it has historic
jurisdiction to prohibit medical treatments that are dangerous, or that it
perceives as “socially undesirable” behaviour: R. v. Morgentaler, [1988]
1 S.C.R. 30; Morgentaler v. The Queen, [1976] 1 S.C.R. 616; R. v.
Morgentaler, [1993] 3 S.C.R. 463. The federal role in the domain of
health makes it impossible to precisely define what falls in or out of the
proposed provincial “core”. Overlapping federal jurisdiction and the
sheer size and diversity of provincial health power render daunting the
task of drawing a bright line around a protected provincial core of health
where federal legislation may not tread. [para. 68]
[52] The appellants and the Attorney General of Quebec (who intervened on
this point) say that it is possible to describe a precise core for the power over health,
and thereby to distinguish PHS. The appellants’ proposed core is described as a
power to deliver necessary medical treatment for which there is no alternative
treatment capable of meeting a patient’s needs (A.F., at para. 43). Quebec takes a
slightly different approach, defining the core as the power to establish the kind of
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health care offered to patients and supervise the process of consent required for that
care (I.F., at para. 7).
[53] We are not persuaded by the submissions that PHS is distinguishable,
given the vague terms in which the proposed definitions of the “core” of the
provincial health power are couched. In our view, the appellants have not established
that the prohibition on physician-assisted dying impairs the core of the provincial
jurisdiction. Health is an area of concurrent jurisdiction; both Parliament and the
provinces may validly legislate on the topic: RJR-MacDonald Inc. v. Canada
(Attorney General), [1995] 3 S.C.R. 199, at para. 32; Schneider v. The Queen, [1982]
2 S.C.R. 112, at p. 142. This suggests that aspects of physician-assisted dying may be
the subject of valid legislation by both levels of government, depending on the
circumstances and focus of the legislation. We are not satisfied on the record before
us that the provincial power over health excludes the power of the federal Parliament
to legislate on physician-assisted dying. It follows that the interjurisdictional
immunity claim cannot succeed.
VIII. Section 7
[54] Section 7 of the Charter states that “[e]veryone has the right to life,
liberty and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.”
[55] In order to demonstrate a violation of s. 7, the claimants must first show
that the law interferes with, or deprives them of, their life, liberty or security of the
person. Once they have established that s. 7 is engaged, they must then show that the
deprivation in question is not in accordance with the principles of fundamental
justice.
[56] For the reasons below, we conclude that the prohibition on physician-
assisted dying infringes the right to life, liberty and security of Ms. Taylor and of
persons in her position, and that it does so in a manner that is overbroad and thus is
not in accordance with the principles of fundamental justice. It therefore violates s. 7.
A. Does the Law Infringe the Right to Life, Liberty and Security of the Person?
Life
[57] The trial judge found that the prohibition on physician-assisted dying had
the effect of forcing some individuals to take their own lives prematurely, for fear that
they would be incapable of doing so when they reached the point where suffering was
intolerable. On that basis, she found that the right to life was engaged.
[58] We see no basis for interfering with the trial judge’s conclusion on this
point. The evidence of premature death was not challenged before this Court. It is
therefore established that the prohibition deprives some individuals of life.
[59] The appellants and a number of the interveners urge us to adopt a
broader, qualitative approach to the right to life. Some argue that the right to life is
not restricted to the preservation of life, but protects quality of life and therefore a
right to die with dignity. Others argue that the right to life protects personal
autonomy and fundamental notions of self-determination and dignity, and therefore
includes the right to determine whether to take one’s own life.
[60] In dissent at the Court of Appeal, Finch C.J.B.C. accepted the argument
that the right to life protects more than physical existence (paras. 84-89). In his view,
the life interest is “intimately connected to the way a person values his or her lived
experience. The point at which the meaning of life is lost, when life’s positive
attributes are so diminished as to render life valueless, . . . is an intensely personal
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decision which ‘everyone’ has the right to make for him or herself” (para. 86).
Similarly, in his dissent in Rodriguez, Cory J. accepted that the right to life included a
right to die with dignity, on the ground that “dying is an integral part of living” (p.
630).
[61] The trial judge, on the other hand, rejected the “qualitative” approach to
the right to life. She concluded that the right to life is only engaged when there is a
threat of death as a result of government action or laws. In her words, the right to life
is limited to a “right not to die” (para. 1322 (emphasis in original)).
[62] This Court has most recently invoked the right to life in Chaoulli v.
Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, where evidence
showed that the lack of timely health care could result in death (paras. 38 and 50, per
Deschamps J.; para. 123, per McLachlin C.J. and Major J.; and paras. 191 and 200,
per Binnie and LeBel JJ.), and in PHS, where the clients of Insite were deprived of
potentially lifesaving medical care (para. 91). In each case, the right was only
engaged by the threat of death. In short, the case law suggests that the right to life is
engaged where the law or state action imposes death or an increased risk of death on a
person, either directly or indirectly. Conversely, concerns about autonomy and
quality of life have traditionally been treated as liberty and security rights. We see no
reason to alter that approach in this case.
[63] This said, we do not agree that the existential formulation of the right to
life requires an absolute prohibition on assistance in dying, or that individuals cannot
“waive” their right to life. This would create a “duty to live”, rather than a “right to
life”, and would call into question the legality of any consent to the withdrawal or
refusal of lifesaving or life-sustaining treatment. The sanctity of life is one of our
most fundamental societal values. Section 7 is rooted in a profound respect for the
value of human life. But s. 7 also encompasses life, liberty and security of the person
during the passage to death. It is for this reason that the sanctity of life “is no longer
seen to require that all human life be preserved at all costs” (Rodriguez, at p. 595, per
Sopinka J.). And it is for this reason that the law has come to recognize that, in
certain circumstances, an individual’s choice about the end of her life is entitled to
respect. It is to this fundamental choice that we now turn.
Liberty and Security of the Person
[64] Underlying both of these rights is a concern for the protection of
individual autonomy and dignity. Liberty protects “the right to make fundamental
personal choices free from state interference”: Blencoe v. British Columbia (Human
Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 54. Security of the
person encompasses “a notion of personal autonomy involving . . . control over one’s
bodily integrity free from state interference” (Rodriguez, at pp. 587-88, per Sopinka
J., referring to R. v. Morgentaler, [1988] 1 S.C.R. 30) and it is engaged by state
interference with an individual’s physical or psychological integrity, including any
state action that causes physical or serious psychological suffering (New Brunswick
(Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para.
58; Blencoe, at paras. 55-57; Chaoulli, at para. 43, per Deschamps J.; para. 119, per
McLachlin C.J. and Major J.; and paras. 191 and 200, per Binnie and LeBel JJ.).
While liberty and security of the person are distinct interests, for the purpose of this
appeal they may be considered together.
[65] The trial judge concluded that the prohibition on assisted dying limited
Ms. Taylor’s s. 7 right to liberty and security of the person, by interfering with
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“fundamentally important and personal medical decision-making” (para. 1302),
imposing pain and psychological stress and depriving her of control over her bodily
integrity (paras. 1293-94). She found that the prohibition left people like Ms. Taylor
to suffer physical or psychological pain and imposed stress due to the unavailability
of physician-assisted dying, impinging on her security of the person. She further
noted that seriously and irremediably ill persons were “denied the opportunity to
make a choice that may be very important to their sense of dignity and personal
integrity” and that is “consistent with their lifelong values and that reflects their life’s
experience” (para. 1326).
[66] We agree with the trial judge. An individual’s response to a grievous and
irremediable medical condition is a matter critical to their dignity and autonomy. The
law allows people in this situation to request palliative sedation, refuse artificial
nutrition and hydration, or request the removal of life-sustaining medical equipment,
but denies them the right to request a physician’s assistance in dying. This interferes
with their ability to make decisions concerning their bodily integrity and medical care
and thus trenches on liberty. And, by leaving people like Ms. Taylor to endure
intolerable suffering, it impinges on their security of the person.
[67] The law has long protected patient autonomy in medical decision-making.
In A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2
S.C.R. 181, a majority of this Court, per Abella J. (the dissent not disagreeing on this
point), endorsed the “tenacious relevance in our legal system of the principle that
competent individuals are — and should be — free to make decisions about their
bodily integrity” (para. 39). This right to “decide one’s own fate” entitles adults to
direct the course of their own medical care (para. 40): it is this principle that
underlies the concept of “informed consent” and is protected by s. 7’s guarantee of
liberty and security of the person (para. 100; see also R. v. Parker (2000), 49 O.R.
(3d) 481 (C.A.)). As noted in Fleming v. Reid (1991), 4 O.R. (3d) 74 (C.A.), the right
of medical self-determination is not vitiated by the fact that serious risks or
consequences, including death, may flow from the patient’s decision. It is this same
principle that is at work in the cases dealing with the right to refuse consent to
medical treatment, or to demand that treatment be withdrawn or discontinued: see,
e.g., Ciarlariello v. Schacter, [1993] 2 S.C.R. 119; Malette v. Shulman (1990), 72
O.R. (2d) 417 (C.A.); and Nancy B. v. Hôtel-Dieu de Québec (1992), 86 D.L.R. (4th)
385 (Que. Sup. Ct.).
[68] In Blencoe, a majority of the Court held that the s. 7 liberty interest is
engaged “where state compulsions or prohibitions affect important and fundamental
life choices” (para. 49). In A.C., where the claimant sought to refuse a potentially
lifesaving blood transfusion on religious grounds, Binnie J. noted that we may
“instinctively recoil” from the decision to seek death because of our belief in the
sanctity of human life (para. 219). But his response is equally relevant here: it is
clear that anyone who seeks physician-assisted dying because they are suffering
intolerably as a result of a grievous and irremediable medical condition “does so out
of a deeply personal and fundamental belief about how they wish to live, or cease to
live” (ibid.). The trial judge, too, described this as a decision that, for some people, is
“very important to their sense of dignity and personal integrity, that is consistent with
their lifelong values and that reflects their life’s experience” (para. 1326). This is a
decision that is rooted in their control over their bodily integrity; it represents their
deeply personal response to serious pain and suffering. By denying them the
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opportunity to make that choice, the prohibition impinges on their liberty and security
of the person. As noted above, s. 7 recognizes the value of life, but it also honours
the role that autonomy and dignity play at the end of that life. We therefore conclude
that ss. 241(b) and 14 of the Criminal Code, insofar as they prohibit physician-
assisted dying for competent adults who seek such assistance as a result of a grievous
and irremediable medical condition that causes enduring and intolerable suffering,
infringe the rights to liberty and security of the person.
[69] We note, as the trial judge did, that Lee Carter and Hollis Johnson’s
interest in liberty may be engaged by the threat of criminal sanction for their role in
Kay Carter’s death in Switzerland. However, this potential deprivation was not the
focus of the arguments raised at trial, and neither Ms. Carter nor Mr. Johnson sought
a personal remedy before this Court. Accordingly, we have confined ourselves to the
rights of those who seek assistance in dying, rather than of those who might provide
such assistance.
Summary on Section 7: Life, Liberty and Security of the Person
[70] For the foregoing reasons, we conclude that the prohibition on physician-
assisted dying deprived Ms. Taylor and others suffering from grievous and
irremediable medical conditions of the right to life, liberty and security of the person.
The remaining question under s. 7 is whether this deprivation was in accordance with
the principles of fundamental justice.
B. The Principles of Fundamental Justice
[71] Section 7 does not promise that the state will never interfere with a
person’s life, liberty or security of the person — laws do this all the time — but rather
that the state will not do so in a way that violates the principles of fundamental
justice.
[72] Section 7 does not catalogue the principles of fundamental justice to
which it refers. Over the course of 32 years of Charter adjudication, this Court has
worked to define the minimum constitutional requirements that a law that trenches on
life, liberty or security of the person must meet (Bedford, at para. 94). While the
Court has recognized a number of principles of fundamental justice, three have
emerged as central in the recent s. 7 jurisprudence: laws that impinge on life, liberty
or security of the person must not be arbitrary, overbroad, or have consequences that
are grossly disproportionate to their object.
[73] Each of these potential vices involves comparison with the object of the
law that is challenged (Bedford, at para. 123). The first step is therefore to identify
the object of the prohibition on assisted dying.
[74] The trial judge, relying on Rodriguez, concluded that the object of the
prohibition was to protect vulnerable persons from being induced to commit suicide
at a time of weakness (para. 1190). All the parties except Canada accept this
formulation of the object.
[75] Canada agrees that the prohibition is intended to protect the vulnerable,
but argues that the object of the prohibition should also be defined more broadly as
simply “the preservation of life” (R.F., at paras 66, 108, and 109). We cannot accept
this submission.
[76] First, it is incorrect to say that the majority in Rodriguez adopted “the
preservation of life” as the object of the prohibition on assisted dying. Justice Sopinka
refers to the preservation of life when discussing the objectives of s. 241(b) (pp. 590,
614). However, he later clarifies this comment, stating that “[s]ection 241(b) has as
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its purpose the protection of the vulnerable who might be induced in moments of
weakness to commit suicide” (p. 595). Sopinka J. then goes on to note that this
purpose is “grounded in the state interest in protecting life and reflects the policy of
the state that human life should not be depreciated by allowing life to be taken”
(ibid.). His remarks about the “preservation of life” in Rodriguez are best understood
as a reference to an animating social value rather than as a description of the specific
object of the prohibition.
[77] Second, defining the object of the prohibition on physician-assisted dying
as the preservation of life has the potential to short-circuit the analysis. In RJR-
MacDonald, this Court warned against stating the object of a law “too broadly” in the
s. 1 analysis, lest the resulting objective immunize the law from challenge under the
Charter (para. 144). The same applies to assessing whether the principles of
fundamental justice are breached under s. 7. If the object of the prohibition is stated
broadly as “the preservation of life”, it becomes difficult to say that the means used to
further it are overbroad or grossly disproportionate. The outcome is to this extent
foreordained.
[78] Finally, the jurisprudence requires the object of the impugned law to be
defined precisely for the purposes of s. 7. In Bedford, Canada argued that the bawdy-
house prohibition in s. 210 of the Code should be defined broadly as to “deter
prostitution” for the purposes of s. 7 (para. 131). This Court rejected this argument,
holding that the object of the prohibition should be confined to measures directly
targeted by the law (para. 132). That reasoning applies with equal force in this case.
Section 241(b) is not directed at preserving life, or even at preventing suicide —
attempted suicide is no longer a crime. Yet Canada asks us to posit that the object of
the prohibition is to preserve life, whatever the circumstances. This formulation goes
beyond the ambit of the provision itself. The direct target of the measure is the
narrow goal of preventing vulnerable persons from being induced to commit suicide
at a time of weakness.
[79] Before turning to the principles of fundamental justice at play, a general
comment is in order. In determining whether the deprivation of life, liberty and
security of the person is in accordance with the principles of fundamental justice
under s. 7, courts are not concerned with competing social interests or public benefits
conferred by the impugned law. These competing moral claims and broad societal
benefits are more appropriately considered at the stage of justification under s. 1 of
the Charter (Bedford, at paras. 123 and 125).
[80] In Bedford, the Court noted that requiring s. 7 claimants “to establish the
efficacy of the law versus its deleterious consequences on members of society as a
whole, would impose the government’s s. 1 burden on claimants under s. 7” (para.
127; see also Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9,
[2007] 1 S.C.R. 350, at paras. 21-22). A claimant under s. 7 must show that the state
has deprived them of their life, liberty or security of the person and that the
deprivation is not in accordance with the principles of fundamental justice. They
should not be tasked with also showing that these principles are “not overridden by a
valid state or communal interest in these circumstances”: T. J. Singleton, “The
Principles of Fundamental Justice, Societal Interests and Section 1 of the Charter”
(1995), 74 Can. Bar Rev. 446, at p. 449. As this Court stated in R. v. Swain, [1991] 1
S.C.R. 933, at p. 977:
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It is not appropriate for the state to thwart the exercise of the accused’s
right by attempting to bring societal interests into the principles of
fundamental justice and to thereby limit an accused’s s. 7 rights. Societal
interests are to be dealt with under s. 1 of the Charter . . . .
[81] In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 (the “Motor Vehicle
Reference”), Lamer J. (as he then was) explained that the principles of fundamental
justice are derived from the essential elements of our system of justice, which is itself
founded on a belief in the dignity and worth of every human person. To deprive a
person of constitutional rights arbitrarily or in a way that is overbroad or grossly
disproportionate diminishes that worth and dignity. If a law operates in this way, it
asks the right claimant to “serve as a scapegoat” (Rodriguez, at p. 621, per McLachlin
J.). It imposes a deprivation via a process that is “fundamentally unfair” to the rights
claimant (Charkaoui, at para. 22).
[82] This is not to say that such a deprivation cannot be justified under s. 1 of
the Charter. In some cases the government, for practical reasons, may only be able to
meet an important objective by means of a law that has some fundamental flaw. But
this does not concern us when considering whether s. 7 of the Charter has been
breached.
Arbitrariness
[83] The principle of fundamental justice that forbids arbitrariness targets the
situation where there is no rational connection between the object of the law and the
limit it imposes on life, liberty or security of the person: Bedford, at para. 111. An
arbitrary law is one that is not capable of fulfilling its objectives. It exacts a
constitutional price in terms of rights, without furthering the public good that is said
to be the object of the law.
[84] The object of the prohibition on physician-assisted dying is to protect the
vulnerable from ending their life in times of weakness. A total ban on assisted
suicide clearly helps achieve this object. Therefore, individuals’ rights are not limited
arbitrarily.
Overbreadth
[85] The overbreadth inquiry asks whether a law that takes away rights in a
way that generally supports the object of the law, goes too far by denying the rights of
some individuals in a way that bears no relation to the object: Bedford, at paras. 101
and 112-13. Like the other principles of fundamental justice under s. 7, overbreadth
is not concerned with competing social interests or ancillary benefits to the general
population. A law that is drawn broadly to target conduct that bears no relation to its
purpose “in order to make enforcement more practical” may therefore be overbroad
(see Bedford, at para. 113). The question is not whether Parliament has chosen the
least restrictive means, but whether the chosen means infringe life, liberty or security
of the person in a way that has no connection with the mischief contemplated by the
legislature. The focus is not on broad social impacts, but on the impact of the
measure on the individuals whose life, liberty or security of the person is trammelled.
[86] Applying this approach, we conclude that the prohibition on assisted
dying is overbroad. The object of the law, as discussed, is to protect vulnerable
persons from being induced to commit suicide at a moment of weakness. Canada
conceded at trial that the law catches people outside this class: “It is recognised that
not every person who wishes to commit suicide is vulnerable, and that there may be
people with disabilities who have a considered, rational and persistent wish to end
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their own lives” (trial reasons, at para. 1136). The trial judge accepted that Ms.
Taylor was such a person — competent, fully informed, and free from coercion or
duress (para. 16). It follows that the limitation on their rights is in at least some cases
not connected to the objective of protecting vulnerable persons. The blanket
prohibition sweeps conduct into its ambit that is unrelated to the law’s objective.
[87] Canada argues that it is difficult to conclusively identify the “vulnerable”,
and that therefore it cannot be said that the prohibition is overbroad. Indeed, Canada
asserts, “every person is potentially vulnerable” from a legislative perspective (R.F.,
at para. 115 (emphasis in original)).
[88] We do not agree. The situation is analogous to that in Bedford, where
this Court concluded that the prohibition on living on the avails of prostitution in s.
212(1)(j) of the Criminal Code was overbroad. The law in that case punished
everyone who earned a living through a relationship with a prostitute, without
distinguishing between those who would assist and protect them and those who would
be at least potentially exploitive of them. Canada there as here argued that the line
between exploitative and non-exploitative relationships was blurry, and that, as a
result, the provision had to be drawn broadly to capture its targets. The Court
concluded that that argument is more appropriately addressed under s. 1 (paras. 143-
44).
Gross Disproportionality
[89] This principle is infringed if the impact of the restriction on the
individual’s life, liberty or security of the person is grossly disproportionate to the
object of the measure. As with overbreadth, the focus is not on the impact of the
measure on society or the public, which are matters for s. 1, but on its impact on the
rights of the claimant. The inquiry into gross disproportionality compares the law’s
purpose, “taken at face value”, with its negative effects on the rights of the claimant,
and asks if this impact is completely out of sync with the object of the law (Bedford,
at para. 125). The standard is high: the law’s object and its impact may be
incommensurate without reaching the standard for gross disproportionality (Bedford,
at para. 120; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC
1, [2002] 1 S.C.R. 3, at para. 47).
[90] The trial judge concluded that the prohibition’s negative impact on life,
liberty and security of the person was “very severe” and therefore grossly
disproportionate to its objective (para. 1378). We agree that the impact of the
prohibition is severe: it imposes unnecessary suffering on affected individuals,
deprives them of the ability to determine what to do with their bodies and how those
bodies will be treated, and may cause those affected to take their own lives sooner
than they would were they able to obtain a physician’s assistance in dying. Against
this it is argued that the object of the prohibition — to protect vulnerable persons
from being induced to commit suicide at a time of weakness — is also of high
importance. We find it unnecessary to decide whether the prohibition also violates
the principle against gross disproportionality, in light of our conclusion that it is
overbroad.
Parity
[91] The appellants ask the Court to recognize a new principle of fundamental
justice, the principle of parity, which would require that offenders committing acts of
comparable blameworthiness receive sanctions of like severity. They say the
prohibition violates this principle because it punishes the provision of physician
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assistance in dying with the highest possible criminal sanction (for culpable
homicide), while exempting other comparable end-of-life practices from any criminal
sanction.
[92] Parity in the sense invoked by the appellants has not been recognized as a
principle of fundamental justice in this Court’s jurisprudence to date. Given our
conclusion that the deprivation of Ms. Taylor’s s. 7 rights is not in accordance with
the principle against overbreadth, it is unnecessary to consider this argument and we
decline to do so.
IX. Does the Prohibition on Assisted Suicide Violate Section 15 of the Charter?
[93] Having concluded that the prohibition violates s. 7, it is unnecessary to
consider this question.
X. Section 1
[94] In order to justify the infringement of the appellants’ s. 7 rights under s. 1
of the Charter, Canada must show that the law has a pressing and substantial object
and that the means chosen are proportional to that object. A law is proportionate if
(1) the means adopted are rationally connected to that objective; (2) it is minimally
impairing of the right in question; and (3) there is proportionality between the
deleterious and salutary effects of the law: R. v. Oakes, [1986] 1 S.C.R. 103.
[95] It is difficult to justify a s. 7 violation: see Motor Vehicle Reference, at p.
518; G. (J.), at para. 99. The rights protected by s. 7 are fundamental, and “not easily
overridden by competing social interests” (Charkaoui, at para. 66). And it is hard to
justify a law that runs afoul of the principles of fundamental justice and is thus
inherently flawed (Bedford, at para. 96). However, in some situations the state may
be able to show that the public good — a matter not considered under s. 7, which
looks only at the impact on the rights claimants — justifies depriving an individual of
life, liberty or security of the person under s. 1 of the Charter. More particularly, in
cases such as this where the competing societal interests are themselves protected
under the Charter, a restriction on s. 7 rights may in the end be found to be
proportionate to its objective.
[96] Here, the limit is prescribed by law, and the appellants concede that the
law has a pressing and substantial objective. The question is whether the government
has demonstrated that the prohibition is proportionate.
[97] At this stage of the analysis, the courts must accord the legislature a
measure of deference. Proportionality does not require perfection: Saskatchewan
(Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at para.
78. Section 1 only requires that the limits be “reasonable”. This Court has
emphasized that there may be a number of possible solutions to a particular social
problem, and suggested that a “complex regulatory response” to a social ill will
garner a high degree of deference (Hutterian Brethren, at para. 37).
[98] On the one hand, as the trial judge noted, physician-assisted death
involves complex issues of social policy and a number of competing societal values.
Parliament faces a difficult task in addressing this issue; it must weigh and balance
the perspective of those who might be at risk in a permissive regime against that of
those who seek assistance in dying. It follows that a high degree of deference is owed
to Parliament’s decision to impose an absolute prohibition on assisted death. On the
other hand, the trial judge also found — and we agree — that the absolute prohibition
could not be described as a “complex regulatory response” (para. 1180). The degree
of deference owed to Parliament, while high, is accordingly reduced.
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Rational Connection
[99] The government must show that the absolute prohibition on physician-
assisted dying is rationally connected to the goal of protecting the vulnerable from
being induced to take their own lives in times of weakness. The question is whether
the means the law adopts are a rational way for the legislature to pursue its objective.
If not, rights are limited for no good reason. To establish a rational connection, the
government need only show that there is a causal connection between the
infringement and the benefit sought “on the basis of reason or logic”: RJR-
MacDonald, at para. 153.
[100] We agree with Finch C.J.B.C. in the Court of Appeal that, where an
activity poses certain risks, prohibition of the activity in question is a rational method
of curtailing the risks (para. 175). We therefore conclude that there is a rational
connection between the prohibition and its objective.
[101] The appellants argue that the absolute nature of the prohibition is not
logically connected to the object of the provision. This is another way of saying that
the prohibition goes too far. In our view, this argument is better dealt with in the
inquiry into minimal impairment. It is clearly rational to conclude that a law that bars
all persons from accessing assistance in suicide will protect the vulnerable from being
induced to commit suicide at a time of weakness. The means here are logically
connected with the objective.
Minimal Impairment
[102] At this stage of the analysis, the question is whether the limit on the right
is reasonably tailored to the objective. The inquiry into minimal impairment asks
“whether there are less harmful means of achieving the legislative goal” (Hutterian
Brethren, at para. 53). The burden is on the government to show the absence of less
drastic means of achieving the objective “in a real and substantial manner” (ibid., at
para. 55). The analysis at this stage is meant to ensure that the deprivation of Charter
rights is confined to what is reasonably necessary to achieve the state’s object.
[103] The question in this case comes down to whether the absolute prohibition
on physician-assisted dying, with its heavy impact on the claimants’ s. 7 rights to life,
liberty and security of the person, is the least drastic means of achieving the
legislative objective. It was the task of the trial judge to determine whether a regime
less restrictive of life, liberty and security of the person could address the risks
associated with physician-assisted dying, or whether Canada was right to say that the
risks could not adequately be addressed through the use of safeguards.
[104] This question lies at the heart of this case and was the focus of much of
the evidence at trial. In assessing minimal impairment, the trial judge heard evidence
from scientists, medical practitioners, and others who were familiar with end-of-life
decision-making in Canada and abroad. She also heard extensive evidence from each
of the jurisdictions where physician-assisted dying is legal or regulated. In the trial
judge’s view, an absolute prohibition would have been necessary if the evidence
showed that physicians were unable to reliably assess competence, voluntariness, and
non-ambivalence in patients; that physicians fail to understand or apply the informed
consent requirement for medical treatment; or if the evidence from permissive
jurisdictions showed abuse of patients, carelessness, callousness, or a slippery slope,
leading to the casual termination of life (paras. 1365-66).
[105] The trial judge, however, expressly rejected these possibilities. After
reviewing the evidence, she concluded that a permissive regime with properly
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designed and administered safeguards was capable of protecting vulnerable people
from abuse and error. While there are risks, to be sure, a carefully designed and
managed system is capable of adequately addressing them:
My review of the evidence in this section, and in the preceding section
on the experience in permissive jurisdictions, leads me to conclude that
the risks inherent in permitting physician-assisted death can be identified
and very substantially minimized through a carefully-designed system
imposing stringent limits that are scrupulously monitored and enforced.
[para. 883]
[106] The trial judge found that it was feasible for properly qualified and
experienced physicians to reliably assess patient competence and voluntariness, and
that coercion, undue influence, and ambivalence could all be reliably assessed as part
of that process (paras. 795-98, 815, 837, and 843). In reaching this conclusion, she
particularly relied on the evidence on the application of the informed consent standard
in other medical decision-making in Canada, including end-of-life decision-making
(para. 1368). She concluded that it would be possible for physicians to apply the
informed consent standard to patients who seek assistance in dying, adding the
caution that physicians should ensure that patients are properly informed of their
diagnosis and prognosis and the range of available options for medical care, including
palliative care interventions aimed at reducing pain and avoiding the loss of personal
dignity (para. 831).
[107] As to the risk to vulnerable populations (such as the elderly and disabled),
the trial judge found that there was no evidence from permissive jurisdictions that
people with disabilities are at heightened risk of accessing physician-assisted dying
(paras. 852 and 1242). She thus rejected the contention that unconscious bias by
physicians would undermine the assessment process (para. 1129). The trial judge
found there was no evidence of inordinate impact on socially vulnerable populations
in the permissive jurisdictions, and that in some cases palliative care actually
improved post-legalization (para. 731). She also found that while the evidence
suggested that the law had both negative and positive impacts on physicians, it did
support the conclusion that physicians were better able to provide overall end-of-life
treatment once assisted death was legalized (para. 1271). Finally, she found no
compelling evidence that a permissive regime in Canada would result in a “practical
slippery slope” (para. 1241).
Canada’s Challenge to the Facts
[108] Canada says that the trial judge made a palpable and overriding error in
concluding that safeguards would minimize the risk associated with assisted dying.
Canada argues that the trial judge’s conclusion that the level of risk was acceptable
flies in the face of her acknowledgment that some of the evidence on safeguards was
weak, and that there was evidence of a lack of compliance with safeguards in
permissive jurisdictions. Canada also says the trial judge erred by relying on cultural
differences between Canada and other countries in finding that problems experienced
elsewhere were not likely to occur in Canada.
[109] We cannot accede to Canada’s submission. In Bedford, this Court
affirmed that a trial judge’s findings on social and legislative facts are entitled to the
same degree of deference as any other factual findings (para. 48). In our view,
Canada has not established that the trial judge’s conclusion on this point is
unsupported, arbitrary, insufficiently precise or otherwise in error. At most, Canada’s
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criticisms amount to “pointing out conflicting evidence”, which is not sufficient to
establish a palpable and overriding error (Tsilhqot’in Nation, at para. 60). We see no
reason to reject the conclusions drawn by the trial judge. They were reasonable and
open to her on the record.
The Fresh Evidence
[110] Rothstein J. granted Canada leave to file fresh evidence on developments
in Belgium since the time of the trial. This evidence took the form of an affidavit
from Professor Etienne Montero, a professor in bioethics and an expert on the
practice of euthanasia in Belgium. Canada says that Professor Montero’s evidence
demonstrates that issues with compliance and with the expansion of the criteria
granting access to assisted suicide inevitably arise, even in a system of ostensibly
strict limits and safeguards. It argues that this “should give pause to those who feel
very strict safeguards will provide adequate protection: paper safeguards are only as
strong as the human hands that carry them out” (R.F., at para. 97).
[111] Professor Montero’s affidavit reviews a number of recent, controversial,
and high-profile cases of assistance in dying in Belgium which would not fall within
the parameters suggested in these reasons, such as euthanasia for minors or persons
with psychiatric disorders or minor medical conditions. Professor Montero suggests
that these cases demonstrate that a slippery slope is at work in Belgium. In his view,
“[o]nce euthanasia is allowed, it becomes very difficult to maintain a strict
interpretation of the statutory conditions.”
[112] We are not convinced that Professor Montero’s evidence undermines the
trial judge’s findings of fact. First, the trial judge (rightly, in our view) noted that the
permissive regime in Belgium is the product of a very different medico-legal culture.
Practices of assisted death were “already prevalent and embedded in the medical
culture” prior to legalization (para. 660). The regime simply regulates a common pre-
existing practice. In the absence of a comparable history in Canada, the trial judge
concluded that it was problematic to draw inferences about the level of physician
compliance with legislated safeguards based on the Belgian evidence (para. 680).
This distinction is relevant both in assessing the degree of physician compliance and
in considering evidence with regards to the potential for a slippery slope.
[113] Second, the cases described by Professor Montero were the result of an
oversight body exercising discretion in the interpretation of the safeguards and
restrictions in the Belgian legislative regime — a discretion the Belgian Parliament
has not moved to restrict. These cases offer little insight into how a Canadian regime
might operate.
The Feasibility of Safeguards and the Possibility of a “Slippery Slope”
[114] At trial Canada went into some detail about the risks associated with the
legalization of physician-assisted dying. In its view, there are many possible sources
of error and many factors that can render a patient “decisionally vulnerable” and
thereby give rise to the risk that persons without a rational and considered desire for
death will in fact end up dead. It points to cognitive impairment, depression or other
mental illness, coercion, undue influence, psychological or emotional manipulation,
systemic prejudice (against the elderly or people with disabilities), and the possibility
of ambivalence or misdiagnosis as factors that may escape detection or give rise to
errors in capacity assessment. Essentially, Canada argues that, given the breadth of
this list, there is no reliable way to identify those who are vulnerable and those who
are not. As a result, it says, a blanket prohibition is necessary.
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[115] The evidence accepted by the trial judge does not support Canada’s
argument. Based on the evidence regarding assessment processes in comparable end-
of-life medical decision-making in Canada, the trial judge concluded that
vulnerability can be assessed on an individual basis, using the procedures that
physicians apply in their assessment of informed consent and decisional capacity in
the context of medical decision-making more generally. Concerns about decisional
capacity and vulnerability arise in all end-of-life medical decision-making. Logically
speaking, there is no reason to think that the injured, ill, and disabled who have the
option to refuse or to request withdrawal of lifesaving or life-sustaining treatment, or
who seek palliative sedation, are less vulnerable or less susceptible to biased
decision-making than those who might seek more active assistance in dying. The
risks that Canada describes are already part and parcel of our medical system.
[116] As the trial judge noted, the individual assessment of vulnerability
(whatever its source) is implicitly condoned for life-and-death decision-making in
Canada. In some cases, these decisions are governed by advance directives, or made
by a substitute decision-maker. Canada does not argue that the risk in those
circumstances requires an absolute prohibition (indeed, there is currently no federal
regulation of such practices). In A.C., Abella J. adverted to the potential vulnerability
of adolescents who are faced with life-and-death decisions about medical treatment
(paras. 72-78). Yet, this Court implicitly accepted the viability of an individual
assessment of decisional capacity in the context of that case. We accept the trial
judge’s conclusion that it is possible for physicians, with due care and attention to the
seriousness of the decision involved, to adequately assess decisional capacity.
[117] The trial judge, on the basis of her consideration of various regimes and
how they operate, found that it is possible to establish a regime that addresses the
risks associated with physician-assisted death. We agree with the trial judge that the
risks associated with physician-assisted death can be limited through a carefully
designed and monitored system of safeguards.
[118] Canada also argues that the permissive regulatory regime accepted by the
trial judge “accepts too much risk”, and that its effectiveness is “speculative” (R.F., at
para. 154). In effect, Canada argues that a blanket prohibition should be upheld
unless the appellants can demonstrate that an alternative approach eliminates all risk.
This effectively reverses the onus under s. 1, requiring the claimant whose rights are
infringed to prove less invasive ways of achieving the prohibition’s object. The
burden of establishing minimal impairment is on the government.
[119] The trial judge found that Canada had not discharged this burden. The
evidence, she concluded, did not support the contention that a blanket prohibition was
necessary in order to substantially meet the government’s objectives. We agree. A
theoretical or speculative fear cannot justify an absolute prohibition. As Deschamps
J. stated in Chaoulli, at para. 68, the claimant “d[oes] not have the burden of
disproving every fear or every threat”, nor can the government meet its burden simply
by asserting an adverse impact on the public. Justification under s. 1 is a process of
demonstration, not intuition or automatic deference to the government’s assertion of
risk (RJR-MacDonald, at para. 128).
[120] Finally, it is argued that without an absolute prohibition on assisted dying,
Canada will descend the slippery slope into euthanasia and condoned murder.
Anecdotal examples of controversial cases abroad were cited in support of this
argument, only to be countered by anecdotal examples of systems that work well.
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The resolution of the issue before us falls to be resolved not by competing anecdotes,
but by the evidence. The trial judge, after an exhaustive review of the evidence,
rejected the argument that adoption of a regulatory regime would initiate a descent
down a slippery slope into homicide. We should not lightly assume that the
regulatory regime will function defectively, nor should we assume that other criminal
sanctions against the taking of lives will prove impotent against abuse.
[121] We find no error in the trial judge’s analysis of minimal impairment. We
therefore conclude that the absolute prohibition is not minimally impairing.
Deleterious Effects and Salutary Benefits
[122] This stage of the Oakes analysis weighs the impact of the law on
protected rights against the beneficial effect of the law in terms of the greater public
good. Given our conclusion that the law is not minimally impairing, it is not
necessary to go on to this step.
[123] We conclude that s. 241(b) and s. 14 of the Criminal Code are not saved
by s. 1 of the Charter.
XI. Remedy
A. The Court of Appeal’s Proposed Constitutional Exemption
[124] The majority at the Court of Appeal suggested that this Court consider
issuing a free-standing constitutional exemption, rather than a declaration of
invalidity, should it choose to reconsider Rodriguez. The majority noted that the law
does not currently provide an avenue for relief from a “generally sound law” that has
an extraordinary effect on a small number of individuals (para. 326). It also
expressed concern that it might not be possible for Parliament to create a fully
rounded, well-balanced alternative policy within the time frame of any suspension of
a declaration of invalidity (para. 334).
[125] In our view, this is not a proper case for a constitutional exemption. We
have found that the prohibition infringes the claimants’ s. 7 rights. Parliament must
be given the opportunity to craft an appropriate remedy. The concerns raised in
Ferguson about stand-alone constitutional exemptions are equally applicable here:
issuing such an exemption would create uncertainty, undermine the rule of law, and
usurp Parliament’s role. Complex regulatory regimes are better created by Parliament
than by the courts.
B. Declaration of Invalidity
[126] We have concluded that the laws prohibiting a physician’s assistance in
terminating life (Criminal Code, s. 241(b) and s. 14) infringe Ms. Taylor’s s. 7 rights
to life, liberty and security of the person in a manner that is not in accordance with the
principles of fundamental justice, and that the infringement is not justified under s. 1
of the Charter. To the extent that the impugned laws deny the s. 7 rights of people
like Ms. Taylor they are void by operation of s. 52 of the Constitution Act, 1982. It is
for Parliament and the provincial legislatures to respond, should they so choose, by
enacting legislation consistent with the constitutional parameters set out in these
reasons.
[127] The appropriate remedy is therefore a declaration that s. 241(b) and s. 14
of the Criminal Code are void insofar as they prohibit physician-assisted death for a
competent adult person who (1) clearly consents to the termination of life; and (2) has
a grievous and irremediable medical condition (including an illness, disease or
disability) that causes enduring suffering that is intolerable to the individual in the
circumstances of his or her condition. “Irremediable”, it should be added, does not
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require the patient to undertake treatments that are not acceptable to the individual.
The scope of this declaration is intended to respond to the factual circumstances in
this case. We make no pronouncement on other situations where physician-assisted
dying may be sought.
[128] We would suspend the declaration of invalidity for 12 months.
[129] We would not accede to the appellants’ request to create a mechanism for
exemptions during the period of suspended validity. In view of the fact that Ms.
Taylor has now passed away and that none of the remaining litigants seeks a personal
exemption, this is not a proper case for creating such an exemption mechanism.
[130] A number of the interveners asked the Court to account for physicians’
freedom of conscience and religion when crafting the remedy in this case. The
Catholic Civil Rights League, the Faith and Freedom Alliance, the Protection of
Conscience Project, and the Catholic Health Alliance of Canada all expressed concern
that physicians who object to medical assistance in dying on moral grounds may be
obligated, based on a duty to act in their patients’ best interests, to participate in
physician-assisted dying. They ask us to confirm that physicians and other health-
care workers cannot be compelled to provide medical aid in dying. They would have
the Court direct the legislature to provide robust protection for those who decline to
support or participate in physician-assisted dying for reasons of conscience or
religion.
[131] The Canadian Medical Association reports that its membership is divided
on the issue of assisted suicide. The Association’s current policy states that it
supports the right of all physicians, within the bounds of the law, to follow their
conscience in deciding whether or not to provide aid in dying. It seeks to see that
policy reflected in any legislative scheme that may be put forward. While
acknowledging that the Court cannot itself set out a comprehensive regime, the
Association asks us to indicate that any legislative scheme must legally protect both
those physicians who choose to provide this new intervention to their patients, along
with those who do not.
[132] In our view, nothing in the declaration of invalidity which we propose to
issue would compel physicians to provide assistance in dying. The declaration
simply renders the criminal prohibition invalid. What follows is in the hands of the
physicians’ colleges, Parliament, and the provincial legislatures. However, we note
— as did Beetz J. in addressing the topic of physician participation in abortion in
Morgentaler — that a physician’s decision to participate in assisted dying is a matter
of conscience and, in some cases, of religious belief (pp. 95-96). In making this
observation, we do not wish to pre-empt the legislative and regulatory response to this
judgment. Rather, we underline that the Charter rights of patients and physicians will
need to be reconciled.
XII. Costs
[133] The appellants ask for special costs on a full indemnity basis to cover the
entire expense of bringing this case before the courts.
[134] The trial judge awarded the appellants special costs exceeding
$1,000,000, on the ground that this was justified by the public interest in resolving the
legal issues raised by the case. (Costs awarded on the usual party-and-party basis
would not have exceeded about $150,000.) In doing so, the trial judge relied on
Victoria (City) v. Adams, 2009 BCCA 563, 100 B.C.L.R. (4th) 28, at para. 188, which
set out four factors for determining whether to award special costs to a successful
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public interest litigant: (1) the case concerns matters of public importance that
transcend the immediate interests of the parties, and which have not been previously
resolved; (2) the plaintiffs have no personal, proprietary or pecuniary interest in the
litigation that would justify the proceeding on economic grounds; (3) the unsuccessful
parties have a superior capacity to bear the cost of the proceedings; and (4) the
plaintiffs did not conduct the litigation in an abusive, vexatious or frivolous manner.
The trial judge found that all four criteria were met in this case.
[135] The Court of Appeal saw no error in the trial judge’s reasoning on special
costs, given her judgment on the merits. However, as the majority overturned the
trial judge’s decision on the merits, it varied her costs order accordingly. The
majority ordered each party to bear its own costs.
[136] The appellants argue that special costs, while exceptional, are appropriate
in a case such as this, where the litigation raises a constitutional issue of high public
interest, is beyond the plaintiffs’ means, and was not conducted in an abusive or
vexatious manner. Without such awards, they argue, plaintiffs will not be able to
bring vital issues of importance to all Canadians before the courts, to the detriment of
justice and other affected Canadians.
[137] Against this, we must weigh the caution that “[c]ourts should not seek on
their own to bring an alternative and extensive legal aid system into being”: Little
Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue),
2007 SCC 2, [2007] 1 S.C.R. 38, at para. 44. With this concern in mind, we are of
the view that Adams sets the threshold for an award of special costs too low. This
Court has previously emphasized that special costs are only available in “exceptional”
circumstances: Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17, at
para. 48. The test set out in Adams would permit an award of special costs in cases
that do not fit that description. Almost all constitutional litigation concerns “matters
of public importance”. Further, the criterion that asks whether the unsuccessful party
has a superior capacity to bear the cost of the proceedings will always favour an
award against the government. Without more, special costs awards may become
routine in public interest litigation.
[138] Some reference to this Court’s jurisprudence on advance costs may be
helpful in refining the criteria for special costs on a full indemnity basis. This Court
set the test for an award of advance costs in British Columbia (Minister of Forests) v.
Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371. LeBel J. identified three
criteria necessary to justify that departure from the usual rule of costs:
1. The party seeking interim costs genuinely cannot afford to pay for the
litigation, and no other realistic option exists for bringing the issues
to trial — in short, the litigation would be unable to proceed if the
order were not made.
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[146] We stress, as did the trial judge, that it will be unusual for a court to
award costs against Attorneys General appearing before the court as of right.
However, we see no reason to interfere with the trial judge’s decision to do so in this
case or with her apportionment of responsibility between the Attorney General of
British Columbia and the Attorney General of Canada. The trial judge was best
positioned to determine the role taken by British Columbia and the extent to which it
shared carriage of the case.
XIII. Conclusion
[147] The appeal is allowed. We would issue the following declaration, which
is suspended for 12 months:
Section 241(b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the
Charter and are of no force or effect to the extent that they prohibit physician-assisted
death for a competent adult person who (1) clearly consents to the termination of life
and (2) has a grievous and irremediable medical condition (including an illness,
disease or disability) that causes enduring suffering that is intolerable to the
individual in the circumstances of his or her condition.
[148] Special costs on a full indemnity basis are awarded against Canada
throughout. The Attorney General of British Columbia will bear responsibility for 10
percent of the costs at trial on a full indemnity basis and will pay the costs associated
with its presence at the appellate levels on a party-and-party basis.
Appeal allowed with costs.
Solicitors for the appellants: Farris, Vaughan, Wills & Murphy,
Vancouver; Davis, Vancouver.
Solicitor for the respondent the Attorney General of Canada: Attorney
General of Canada, Ottawa.
Solicitor for the respondent the Attorney General of British Columbia:
Attorney General of British Columbia, Victoria.
Solicitor for the intervener the Attorney General of Ontario: Attorney
General of Ontario, Toronto.
Solicitor for the intervener the Attorney General of Quebec: Attorney
General of Quebec, Québec.
Solicitors for the interveners the Council of Canadians with Disabilities
and the Canadian Association for Community Living: Bakerlaw, Toronto.
Solicitors for the intervener the Christian Legal Fellowship: Miller
Thomson, Calgary.
Solicitors for the interveners the Canadian HIV/AIDS Legal Network and
the HIV & AIDS Legal Clinic Ontario: Paliare Roland Rosenberg Rothstein,
Toronto; Canadian HIV/AIDS Legal Network, Toronto; HIV & AIDS Legal Clinic
Ontario, Toronto.
Solicitor for the intervener the Association for Reformed Political Action
Canada: Association for Reformed Political Action Canada, Ottawa.
Solicitors for the intervener the Physicians’ Alliance against Euthanasia:
Norton Rose Fulbright Canada, Montréal.
Solicitors for the intervener the Evangelical Fellowship of Canada:
Geoffrey Trotter Law Corporation, Vancouver.
Solicitors for the interveners the Christian Medical and Dental Society of
Canada and the Canadian Federation of Catholic Physicians’ Societies: Vincent
Dagenais Gibson, Ottawa.
Page 37 of 236
Solicitors for the intervener Dying With Dignity: Sack Goldblatt
Mitchell, Toronto.
Solicitors for the intervener the Canadian Medical Association: Polley
Faith, Toronto.
Solicitors for the intervener the Catholic Health Alliance of Canada:
Vincent Dagenais Gibson, Ottawa.
Solicitors for the intervener the Criminal Lawyers’ Association
(Ontario): Sack Goldblatt Mitchell, Toronto.
Solicitors for the interveners the Farewell Foundation for the Right to
Die and Association québécoise pour le droit de mourir dans la dignité: Gratl &
Company, Vancouver.
Solicitors for the intervener the Canadian Civil Liberties Association:
Borden Ladner Gervais, Toronto.
Solicitors for the interveners the Catholic Civil Rights League, the Faith
and Freedom Alliance and the Protection of Conscience Project: Bennett Jones,
Toronto; Philip H. Horgan, Toronto.
Solicitors for the intervener the Alliance of People With Disabilities Who
are Supportive of Legal Assisted Dying Society: Borden Ladner Gervais, Vancouver
and Ottawa.
Solicitors for the intervener the Canadian Unitarian Council: Farris,
Vaughan, Wills & Murphy, Vancouver.
Solicitors for the interveners the Euthanasia Prevention Coalition and
the Euthanasia Prevention Coalition — British Columbia: Scher Law Professional
Corporation, Toronto.
SUMMARY:
Introduction - Brief Summary of Carter v Canada
In Carter,Footnote1 the Supreme Court of Canada (the “Court”) held that the
criminal laws prohibiting assistance in dying limited the rights to life, liberty and
security of the person under section 7 of the Canadian Charter of Rights and
Freedoms (the “Charter”) in a manner that was not demonstrably justified under
section 1 of the Charter. The Criminal Code provisions at issue were paragraph
241(b), which prohibits assisting suicide, and section 14, which provides that no
person may consent to death being inflicted on them.
Life, Liberty and Security of the Person
Consistent with its earlier Rodriguez decision,Footnote2 the Court held that the laws
prohibiting physician-assisted dying interfere with the liberty and security of the
person of individuals who have a grievous and irremediable medical condition. They
interfere with liberty by constraining the ability of such individuals to make decisions
concerning their bodily integrity and medical care, and with security of the person by
leaving such individuals to endure intolerable suffering. The Court also held that the
laws deprive some people of life by forcing them to take their own lives prematurely
for fear that they would be incapable of doing so when they reached a point where
their suffering was intolerable.
Principles of Fundamental Justice
In order to comply with section 7 of the Charter, a deprivation of life, liberty or
security of the person must accord with the principles of fundamental justice. The
principles at issue in Carter were those against arbitrariness, overbreadth and gross
disproportionality. An arbitrary law is one that “exacts a constitutional price in terms
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of rights, without furthering the public good that is said to be the object of the law.”
An overbroad law is one that may be rational in general but denies the rights of some
individuals in a way that bears no relation to the legislative purpose. A grossly
disproportionate law is one that, while it may further the legislative objective, has
negative effects on life, liberty or security of the person that are so extreme as to be
“totally out of sync” with the object of the law.Footnote5
The Court held that the prohibition on assistance in dying is not arbitrary because it
“clearly helps achieve” the legislative objective of protecting vulnerable persons from
being induced to die by suicide at a moment of weakness.Footnote6 However, the
prohibition was found to be overbroad because it applies to individuals who are not
vulnerable, thereby denying the rights of some people in a way that bears no relation
to the purpose of the law. The Court found it unnecessary to decide the issue of
gross disproportionality in view of its conclusion that the prohibition is overbroad.
Section 1
Limitations of Charter protections are constitutional if they are reasonable and
demonstrably justified pursuant to section 1 of the Charter. The Court concluded that
the section 7 limitation was not justified. Although the Court accepted that the
absolute prohibition on assistance in dying furthers a pressing and substantial
objective, it concluded that a permissive regime with properly designed and
administered safeguards was capable of protecting vulnerable people from abuse
and error and that the absolute prohibition goes farther than reasonably necessary to
achieve the legislative purpose.
Remedy
The Court explained that the appropriate remedy was: a declaration that s. 241(b)
and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted
death for a competent adult person who (1) clearly consents to the termination of life;
and (2) has a grievous and irremediable medical condition (including an illness,
disease or disability) that causes enduring suffering that is intolerable to the
individual in the circumstances of his or her condition.
The Court went on to specify that the scope of the declaration was “intended to
respond to the factual circumstances in this case” and to highlight that it was making
“no pronouncement on other situations where physician-assisted dying may be
sought.” The factual circumstances that were the focus of the Court’s analysis were
those of Gloria Taylor, who suffered from amyotrophic lateral sclerosis (ALS), a fatal
neurodegenerative disease. The Court noted elsewhere in the judgment that
assistance in dying in other situations, such as for “minors or persons with
psychiatric disorders or minor medical conditions” would not fall within the
parameters suggested in its reasons.Footnote10
The Court suspended the declaration of invalidity for 12 months to give Parliament
and provincial legislatures time to respond. It acknowledged that the legislative
response would likely involve a “complex regulatory regime” and that Parliament
“faces a difficult task” in balancing the competing social interests of those who might
be at risk in a permissive regime against those who seek assistance in
dying.Footnote11 It also suggested that a high degree of deference would be owed
to the regime ultimately adopted by Parliament.
On January 15, 2016, the Court granted a four-month extension of the suspension,
with the result that the declaration of invalidity would take effect on June 6, 2016
unless new legislation is in place prior to that date.
Page 39 of 236
SECRETARY VS MANALO
FULL TEXT:
Republic of the Philippines
Supreme Court
Manila
EN BANC
DECISION
PUNO, C.J.:
While victims of enforced disappearances are separated from the rest of the world
behind secret walls, they are not separated from the constitutional protection of their
basic rights. The constitution is an overarching sky that covers all in its
protection. The case at bar involves the rights to life, liberty and security in the first
petition for a writ of amparo filed before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules of Court in
relation to Section 19[1] of the Rule on the Writ of Amparo, seeking to reverse and set
aside on both questions of fact and law, the Decision promulgated by the Court of
Appeals in C.A. G.R. AMPARO No. 00001, entitled Raymond Manalo and Reynaldo
Manalo, petitioners, versus The Secretary of National Defense, the Chief of Staff,
Armed Forces of the Philippines, respondents.
This case was originally a Petition for Prohibition, Injunction, and Temporary
Restraining Order (TRO)[2] filed before this Court by herein respondents (therein
petitioners) on August 23, 2007 to stop herein petitioners (therein respondents)
and/or their officers and agents from depriving them of their right to liberty and other
Page 40 of 236
basic rights. Therein petitioners also sought ancillary remedies, Protective Custody
Orders, Appointment of Commissioner, Inspection and Access Orders, and all other
legal and equitable reliefs under Article VIII, Section 5(5)[3] of the 1987 Constitution
and Rule 135, Section 6 of the Rules of Court. In our Resolution dated August 24,
2007, we (1) ordered the Secretary of the Department of National Defense and the
Chief of Staff of the AFP, their agents, representatives, or persons acting in their
stead, including but not limited to the Citizens Armed Forces Geographical Unit
(CAFGU) to submit their Comment; and (2) enjoined them from causing the arrest of
therein petitioners, or otherwise restricting, curtailing, abridging, or depriving them of
their right to life, liberty, and other basic rights as guaranteed under Article III,
Section 1[4] of the 1987 Constitution.[5]
While the August 23, 2007 Petition was pending, the Rule on the Writ
of Amparo took effect on October 24, 2007. Forthwith, therein petitioners filed a
Manifestation and Omnibus Motion to Treat Existing Petition as Amparo Petition, to
Admit Supporting Affidavits, and to Grant Interim and Final Amparo Reliefs. They
prayed that: (1) the petition be considered a Petition for the Writ of Amparo under
Sec. 26[6] of the Amparo Rule; (2) the Court issue the writ commanding therein
respondents to make a verified return within the period provided by law and
containing the specific matter required by law; (3) they be granted the interim reliefs
allowed by the Amparo Rule and all other reliefs prayed for in the petition but not
covered by the Amparo Rule; (4) the Court, after hearing, render judgment as
required in Sec. 18[7] of the Amparo Rule; and (5) all other just and equitable reliefs.[8]
On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a
petition under the Amparo Rule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to respondents
requiring them to file with the CA (Court of Appeals) a verified written
return within five (5) working days from service of the writ. We
REMAND the petition to the CA and designate the Division of
Associate Justice Lucas P. Bersamin to conduct the summary hearing
on the petition on November 8, 2007 at 2:00 p.m. and decide the
petition in accordance with the Rule on the Writ of Amparo.[9]
On December 26, 2007, the Court of Appeals rendered a decision in favor of
therein petitioners (herein respondents), the dispositive portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF
AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL DEFENSE and AFP
CHIEF OF STAFF are hereby REQUIRED:
1. To furnish to the petitioners and to this Court within five days
from notice of this decision all official and unofficial reports of the
investigation undertaken in connection with their case, except
those already on file herein;
2. To confirm in writing the present places of official assignment of
M/Sgt Hilario aka Rollie Castillo and Donald Caigas within five
days from notice of this decision.
3. To cause to be produced to this Court all medical reports,
records and charts, reports of any treatment given or
recommended and medicines prescribed, if any, to the petitioners,
to include a list of medical and (sic) personnel (military and civilian)
who attended to them from February 14, 2006 until August 12,
2007 within five days from notice of this decision.
The compliance with this decision shall be made under the signature
and oath of respondent AFP Chief of Staff or his duly authorized
Page 41 of 236
deputy, the latters authority to be express and made apparent on the
face of the sworn compliance with this directive.
SO ORDERED.[10]
Hence, this appeal. In resolving this appeal, we first unfurl the facts as
alleged by herein respondents:
Respondent Raymond Manalo recounted that about one or two weeks before
February 14, 2006, several uniformed and armed soldiers and members of the
CAFGU summoned to a meeting all the residents of their barangay in San Idelfonso,
Bulacan. Respondents were not able to attend as they were not informed of the
gathering, but Raymond saw some of the soldiers when he passed by
the barangay hall.[11]
On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga,
San Ildefonso, Bulacan. At past noon, several armed soldiers wearing white shirts,
fatigue pants and army boots, entered their house and roused him. They asked him if
he was Bestre, but his mother, Ester Manalo, replied that he was Raymond, not
Bestre. The armed soldier slapped him on both cheeks and nudged him in the
stomach. He was then handcuffed, brought to the rear of his house, and forced to the
ground face down. He was kicked on the hip, ordered to stand and face up to the
light, then forcibly brought near the road. He told his mother to follow him, but three
soldiers stopped her and told her to stay.[12]
Among the men who came to take him, Raymond recognized brothers Michael de la
Cruz, Madning de la Cruz, Puti de la Cruz, and Pula de la Cruz, who all acted as
lookout.They were all members of the CAFGU and residing in Manuzon, San
Ildefonso, Bulacan. He also recognized brothers Randy Mendoza and Rudy
Mendoza, also members of the CAFGU. While he was being forcibly taken, he also
saw outside of his house two barangay councilors, Pablo Cunanan and Bernardo
Lingasa, with some soldiers and armed men.[13]
The men forced Raymond into a white L300 van. Once inside, he was
blindfolded. Before being blindfolded, he saw the faces of the soldiers who took
him. Later, in his 18 months of captivity, he learned their names. The one who drove
the van was Rizal Hilario alias Rollie Castillo, whom he estimated was about 40
years of age or older. The leader of the team who entered his house and abducted
him was Ganata. He was tall, thin, curly-haired and a bit old. Another one of his
abductors was George who was tall, thin, white-skinned and about 30 years old.[14]
The van drove off, then came to a stop. A person was brought inside the van and
made to sit beside Raymond. Both of them were beaten up. On the road, he
recognized the voice of the person beside him as his brother Reynaldos. The van
stopped several times until they finally arrived at a house. Raymond and Reynaldo
were each brought to a different room. With the doors of their rooms left open,
Raymond saw several soldiers continuously hitting his brother Reynaldo on the head
and other parts of his body with the butt of their guns for about 15 minutes. After
which, Reynaldo was brought to his (Raymonds) room and it was his (Raymonds)
turn to be beaten up in the other room. The soldiers asked him if he was a member
of the New Peoples Army. Each time he said he was not, he was hit with the butt of
their guns. He was questioned where his comrades were, how many soldiers he had
killed, and how many NPA members he had helped. Each time he answered none,
they hit him.[15]
In the next days, Raymonds interrogators appeared to be high officials as the
soldiers who beat him up would salute them, call them sir, and treat them with
respect. He was in blindfolds when interrogated by the high officials, but he saw their
faces when they arrived and before the blindfold was put on. He noticed that the
uniform of the high officials was different from those of the other soldiers. One of
Page 42 of 236
those officials was tall and thin, wore white pants, tie, and leather shoes, instead of
combat boots. He spoke in Tagalog and knew much about his parents and family,
and a habeas corpus case filed in connection with the respondents
abduction.[16] While these officials interrogated him, Raymond was not
manhandled. But once they had left, the soldier guards beat him up. When the
guards got drunk, they also manhandled respondents. During this time, Raymond
was fed only at night, usually with left-over and rotten food.[17]
On the third week of respondents detention, two men arrived while Raymond was
sleeping and beat him up. They doused him with urine and hot water, hit his stomach
with a piece of wood, slapped his forehead twice with a .45 pistol, punched him on
the mouth, and burnt some parts of his body with a burning wood. When he could no
longer endure the torture and could hardly breathe, they stopped. They then
subjected Reynaldo to the same ordeal in another room. Before their torturers left,
they warned Raymond that they would come back the next day and kill him.[18]
The following night, Raymond attempted to escape. He waited for the guards to get
drunk, then made noise with the chains put on him to see if they were still
awake. When none of them came to check on him, he managed to free his hand
from the chains and jumped through the window. He passed through a helipad and
firing range and stopped near a fishpond where he used stones to break his
chains. After walking through a forested area, he came near a river and an Iglesia ni
Kristo church. He talked to some women who were doing the laundry, asked where
he was and the road to Gapan. He was told that he was in Fort Magsaysay.[19] He
reached the highway, but some soldiers spotted him, forcing him to run away. The
soldiers chased him and caught up with him. They brought him to another place near
the entrance of what he saw was Fort Magsaysay. He was boxed repeatedly, kicked,
and hit with chains until his back bled. They poured gasoline on him. Then a so-
called Mam or Madam suddenly called, saying that she wanted to see Raymond
before he was killed. The soldiers ceased the torture and he was returned
inside Fort Magsaysay where Reynaldo was detained.[20]
For some weeks, the respondents had a respite from all the torture. Their wounds
were treated. When the wounds were almost healed, the torture resumed,
particularly when respondents guards got drunk.[21]
Raymond recalled that sometime in April until May 2006, he was detained in a room
enclosed by steel bars. He stayed all the time in that small room measuring 1 x 2
meters, and did everything there, including urinating, removing his bowels, bathing,
eating and sleeping. He counted that eighteen people[22] had been detained in
that bartolina, including his brother Reynaldo and himself.[23]
For about three and a half months, the respondents were detained
in Fort Magsaysay. They were kept in a small house with two rooms and a
kitchen. One room was made into the bartolina. The house was near the firing range,
helipad and mango trees. At dawn, soldiers marched by their house. They were also
sometimes detained in what he only knew as the DTU.[24]
At the DTU, a male doctor came to examine respondents. He checked their body
and eyes, took their urine samples and marked them. When asked how they were
feeling, they replied that they had a hard time urinating, their stomachs were aching,
and they felt other pains in their body. The next day, two ladies in white arrived. They
also examined respondents and gave them medicines, including orasol, amoxicillin
and mefenamic acid. They brought with them the results of respondents urine test
and advised them to drink plenty of water and take their medicine. The two ladies
returned a few more times. Thereafter, medicines were sent through the master of
the DTU, Master Del Rosario alias Carinyoso at Puti. Respondents were kept in the
Page 43 of 236
DTU for about two weeks. While there, he met a soldier named Efren who said that
Gen. Palparan ordered him to monitor and take care of them.[25]
One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren
and several other armed men wearing fatigue suits, went to a detachment in Pinaud,
San Ildefonso, Bulacan. Respondents were detained for one or two weeks in a big
two-storey house. Hilario and Efren stayed with them. While there, Raymond was
beaten up by Hilarios men.[26]
From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel,
Bulacan on board the Revo. They were detained in a big unfinished house inside the
compound of Kapitan for about three months. When they arrived in Sapang, Gen.
Palparan talked to them. They were brought out of the house to a basketball court in
the center of the compound and made to sit. Gen. Palparan was already waiting,
seated. He was about two arms length away from respondents. He began by asking
if respondents felt well already, to which Raymond replied in the affirmative. He
asked Raymond if he knew him. Raymond lied that he did not. He then asked
Raymond if he would be scared if he were made to face Gen. Palparan. Raymond
responded that he would not be because he did not believe that Gen. Palparan was
an evil man.[27]
Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, Ngayon na kaharap mo na ako, di
ka ba natatakot sa akin?
Sumagot akong, Siyempre po, natatakot din
Sabi ni Gen. Palparan: Sige, bibigyan ko kayo ng isang pagkakataon
na mabuhay, bastat sundin nyo ang lahat ng sasabihin ko sabihin
mo sa magulang mo huwag pumunta sa mga rali, sa hearing, sa
Karapatan at sa Human Right dahil niloloko lang kayo. Sabihin sa
magulang at lahat sa bahay na huwag paloko doon. Tulungan kami
na kausapin si Bestre na sumuko na sa gobyerno.[28]
Respondents agreed to do as Gen. Palparan told them as they felt they
could not do otherwise. At about 3:00 in the morning, Hilario, Efren and the formers
men - the same group that abducted them - brought them to their parents
house. Raymond was shown to his parents while Reynaldo stayed in the Revo
because he still could not walk. In the presence of Hilario and other soldiers,
Raymond relayed to his parents what Gen. Palparan told him. As they were afraid,
Raymonds parents acceded. Hilario threatened Raymonds parents that if they
continued to join human rights rallies, they would never see their children again. The
respondents were then brought back to Sapang.[29]
When respondents arrived back in Sapang, Gen. Palparan was about to
leave. He was talking with the four masters who were there: Arman, Ganata, Hilario
and Cabalse.[30] When Gen. Palparan saw Raymond, he called for him. He was in a
big white vehicle. Raymond stood outside the vehicle as Gen. Palparan told him to
gain back his strength and be healthy and to take the medicine he left for him and
Reynaldo. He said the medicine was expensive at Php35.00 each, and would make
them strong. He also said that they should prove that they are on the side of the
military and warned that they would not be given another chance.[31] During his
testimony, Raymond identified Gen. Palparan by his picture.[32]
One of the soldiers named Arman made Raymond take the medicine left by Gen.
Palparan. The medicine, named Alive, was green and yellow. Raymond and
Reynaldo were each given a box of this medicine and instructed to take one capsule
a day. Arman checked if they were getting their dose of the medicine. The Alive
made them sleep each time they took it, and they felt heavy upon waking up.[33]
Page 44 of 236
After a few days, Hilario arrived again. He took Reynaldo and left Raymond at
Sapang. Arman instructed Raymond that while in Sapang, he should introduce
himself as Oscar, a military trainee from Sariaya, Quezon, assigned in
Bulacan. While there, he saw again Ganata, one of the men who abducted him from
his house, and got acquainted with other military men and civilians.[34]
After about three months in Sapang, Raymond was brought to Camp Tecson under
the 24th Infantry Battalion. He was fetched by three unidentified men in a big white
vehicle.Efren went with them. Raymond was then blindfolded. After a 30-minute ride,
his blindfold was removed. Chains were put on him and he was kept in the
barracks.[35]
The next day, Raymonds chains were removed and he was ordered to clean outside
the barracks. It was then he learned that he was in a detachment of the
Rangers. There were many soldiers, hundreds of them were training. He was also
ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn
Cadapan from Laguna. She told him that she was a student of the University of
the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had
been subjected to severe torture and raped. She was crying and longing to go home
and be with her parents. During the day, her chains were removed and she was
made to do the laundry.[36]
After a week, Reynaldo was also brought to Camp Tecson. Two days from his
arrival, two other captives, Karen Empeo and Manuel Merino, arrived. Karen and
Manuel were put in the room with Allan whose name they later came to know as
Donald Caigas, called master or commander by his men in the 24th Infantry
Battalion. Raymond and Reynaldo were put in the adjoining room. At times,
Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the
daytime, their chains were removed, but were put back on at night. They were
threatened that if they escaped, their families would all be killed.[37]
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees
that they should be thankful they were still alive and should continue along their
renewed life.Before the hearing of November 6 or 8, 2006, respondents were
brought to their parents to instruct them not to attend the hearing. However, their
parents had already left for Manila. Respondents were brought back
to Camp Tecson. They stayed in that camp from September 2006 to November
2006, and Raymond was instructed to continue using the name Oscar and holding
himself out as a military trainee. He got acquainted with soldiers of the 24th Infantry
Battalion whose names and descriptions he stated in his affidavit.[38]
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were
transferred to a camp of the 24th Infantry Battalion in Limay, Bataan. There were
many huts in the camp. They stayed in that camp until May 8, 2007. Some soldiers
of the battalion stayed with them. While there, battalion soldiers whom Raymond
knew as Mar and Billy beat him up and hit him in the stomach with their
guns. Sherlyn and Karen also suffered enormous torture in the camp. They were all
made to clean, cook, and help in raising livestock.[39]
Raymond recalled that when Operation Lubog was launched, Caigas and some
other soldiers brought him and Manuel with them to take and kill all sympathizers of
the NPA.They were brought to Barangay Bayan-bayanan, Bataan where he
witnessed the killing of an old man doing kaingin. The soldiers said he was killed
because he had a son who was a member of the NPA and he coddled NPA
members in his house.[40] Another time, in another Operation Lubog, Raymond was
brought to Barangay Orion in a house where NPA men stayed. When they arrived,
only the old man of the house who was sick was there. They spared him and killed
only his son right before Raymonds eyes.[41]
Page 45 of 236
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to
Zambales, in a safehouse near the sea. Caigas and some of his men stayed with
them. A retired army soldier was in charge of the house. Like in Limay, the five
detainees were made to do errands and chores. They stayed in Zambales from May
8 or 9, 2007 until June 2007.[42]
In June 2007, Caigas brought the five back to the camp in Limay. Raymond,
Reynaldo, and Manuel were tasked to bring food to detainees brought to the
camp. Raymond narrated what he witnessed and experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na
kami. Nakita ko si Donald na inaayos ang kanyang baril, at nilagyan ng
silenser. Sabi ni Donald na kung mayroon man kaming makita o
marinig, walang nangyari. Kinaumagahan, nakita naming ang bangkay
ng isa sa mga bihag na dinala sa kampo. Mayroong binuhos sa
kanyang katawan at itoy sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga
unipormadong sundalo mula sa 6 x 6 na trak at dinala sa loob ng
kampo. May naiwang mga bakas ng dugo habang hinihila nila ang mga
bangkay. Naamoy ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang
Ita. Itinali sila sa labas ng kubo, piniringan, ikinadena at labis na
binugbog. Nakita kong nakatakas ang isa sa kanila at binaril siya ng
sundalo ngunit hindi siya tinamaan. Iyong gabi nakita kong pinatay nila
iyong isang Ita malapit sa Post 3; sinilaban ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa
kampo. Ibinaba ang mga bangkay mula sa pick up trak, dinala ang
mga bangkay sa labas ng bakod. Kinaumagahan nakita kong
mayroong sinilaban, at napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain
ko sila. Sabi nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas
sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel
dahil kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel,
wala siyang suot pang-itaas, pinosasan. Nilakasan ng mga sundalo
ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko
ang hiyaw o ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig
at nakita kong sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena
mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami
nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung
papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong
kami kung ano ang sabi ni Manuel sa amin. Sabi ni Donald huwag na
raw naming hanapin ang dalawang babae at si Manuel, dahil
magkakasama na yung tatlo. Sabi pa ni Donald na kami ni Reynaldo
ay magbagong buhay at ituloy namin ni Reynaldo ang trabaho. Sa
gabi, hindi na kami kinakadena.[43]
On or about June 13, 2007, Raymond and Reynaldo were brought to
Pangasinan, ostensibly to raise poultry for Donald (Caigas). Caigas told respondents
to also farm his land, in exchange for which, he would take care of the food of their
family. They were also told that they could farm a small plot adjoining his land and
sell their produce. They were no longer put in chains and were instructed to use the
Page 46 of 236
names Rommel (for Raymond) and Rod (for Reynaldo) and represent themselves as
cousins from Rizal, Laguna.[44]
Respondents started to plan their escape. They could see the highway from where
they stayed. They helped farm adjoining lands for which they were paid Php200.00
or Php400.00 and they saved their earnings. When they had saved Php1,000.00
each, Raymond asked a neighbor how he could get a cellular phone as he wanted to
exchange text messages with a girl who lived nearby. A phone was pawned to him,
but he kept it first and did not use it. They earned some more until they had saved
Php1,400.00 between them.
There were four houses in the compound. Raymond and Reynaldo were housed in
one of them while their guards lived in the other three. Caigas entrusted respondents
to Nonong, the head of the guards. Respondents house did not have electricity. They
used a lamp. There was no television, but they had a radio. In the evening of August
13, 2007, Nonong and his cohorts had a drinking session. At about 1:00 a.m.,
Raymond turned up the volume of the radio. When none of the guards awoke and
took notice, Raymond and Reynaldo proceeded towards the highway, leaving behind
their sleeping guards and barking dogs. They boarded a bus bound for Manila and
were thus freed from captivity.[45]
Reynaldo also executed an affidavit affirming the contents of Raymonds affidavit
insofar as they related to matters they witnessed together. Reynaldo added that
when they were taken from their house on February 14, 2006, he saw the faces of
his abductors before he was blindfolded with his shirt. He also named the soldiers he
got acquainted with in the 18 months he was detained. When Raymond attempted to
escape from Fort Magsaysay, Reynaldo was severely beaten up and told that they
were indeed members of the NPA because Raymond escaped. With a .45 caliber
pistol, Reynaldo was hit on the back and punched in the face until he could no longer
bear the pain.
At one point during their detention, when Raymond and Reynaldo were in Sapang,
Reynaldo was separated from Raymond and brought to Pinaud by Rizal Hilario. He
was kept in the house of Kapitan, a friend of Hilario, in a mountainous area. He was
instructed to use the name Rodel and to represent himself as a military trainee from
Meycauayan, Bulacan. Sometimes, Hilario brought along Reynaldo in his trips. One
time, he was brought to a market in San Jose, del Monte, Bulacan and made to wait
in the vehicle while Hilario was buying. He was also brought to Tondo, Manila where
Hilario delivered boxes of Alive in different houses. In these trips, Hilario drove a
black and red vehicle.Reynaldo was blindfolded while still in Bulacan, but allowed to
remove the blindfold once outside the province. In one of their trips, they passed
by Fort Magsaysay and CampTecson where Reynaldo saw the sign board, Welcome
to Camp Tecson.[46]
Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and
Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was connected
with the Medical Action Group, an organization handling cases of human rights
violations, particularly cases where torture was involved. He was requested by an
NGO to conduct medical examinations on the respondents after their escape. He first
asked them about their ordeal, then proceeded with the physical examination. His
findings showed that the scars borne by respondents were consistent with their
account of physical injuries inflicted upon them. The examination was conducted
on August 15, 2007, two days after respondents escape, and the results thereof
were reduced into writing. Dr. Molino took photographs of the scars. He testified that
he followed the Istanbul Protocol in conducting the examination.[47]
Page 47 of 236
Petitioners dispute respondents account of their alleged abduction and torture. In
compliance with the October 25, 2007 Resolution of the Court, they filed a Return of
the Writ of Amparo admitting the abduction but denying any involvement therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at any time
arrested, forcibly abducted, detained, held incommunicado,
disappeared or under the custody by the military. This is a settled
issue laid to rest in the habeas corpus case filed in their behalf by
petitioners parents before the Court of Appeals in C.A.-G.R. SP No.
94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as head of the
24th Infantry Battalion; Maj. Gen. Jovito Palparan, as Commander of
the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes Esperon, in
his capacity as the Commanding General of the Philippine Army, and
members of the Citizens Armed Forces Geographical Unit (CAFGU),
namely: Michael dela Cruz, Puti dela Cruz, Madning dela Cruz, Pula
dela Cruz, Randy Mendoza and Rudy Mendoza. The respondents
therein submitted a return of the writ On July 4, 2006, the Court of
Appeals dropped as party respondents Lt. Gen. Hermogenes C.
Esperon, Jr., then Commanding General of the Philippine Army, and
on September 19, 2006, Maj. (sic) Jovito S. Palparan, then
Commanding General, 7th Infantry Division, Philippine Army, stationed
at Fort Magsaysay, Palayan City, Nueva Ecija, upon a finding that no
evidence was introduced to establish their personal involvement in the
taking of the Manalo brothers. In a Decision dated June 27, 2007, it
exonerated M/Sgt. Rizal Hilario aka Rollie Castillo for lack of evidence
establishing his involvement in any capacity in the disappearance of
the Manalo brothers, although it held that the remaining respondents
were illegally detaining the Manalo brothers and ordered them to
release the latter.[48]
Attached to the Return of the Writ was the affidavit of therein respondent
(herein petitioner) Secretary of National Defense, which attested that he assumed
office only on August 8, 2007 and was thus unaware of the Manalo brothers alleged
abduction. He also claimed that:
7. The Secretary of National Defense does not engage in actual
military directional operations, neither does he undertake
command directions of the AFP units in the field, nor in any way
micromanage the AFP operations. The principal responsibility of
the Secretary of National Defense is focused in providing strategic
policy direction to the Department (bureaus and agencies)
including the Armed Forces of the Philippines;
Therein respondent AFP Chief of Staff also submitted his own affidavit,
attached to the Return of the Writ, attesting that he received the above directive of
therein respondent Secretary of National Defense and that acting on this directive,
he did the following:
3.1. As currently designated Chief of Staff, Armed Forces of the
Philippines (AFP), I have caused to be issued directive to the units of
the AFP for the purpose of establishing the circumstances of the
alleged disappearance and the recent reappearance of the petitioners.
3.2. I have caused the immediate investigation and submission of the
result thereof to Higher headquarters and/or direct the immediate
conduct of the investigation on the matter by the concerned unit/s,
dispatching Radio Message on November 05, 2007, addressed to the
Commanding General, Philippine Army (Info: COMNOLCOM, CG,
71D PA and CO 24 IB PA). A Copy of the Radio Message is attached
as ANNEX 3 of this Affidavit.
3.3. We undertake to provide result of the investigations conducted or
to be conducted by the concerned unit relative to the circumstances of
the alleged disappearance of the persons in whose favor the Writ of
Amparo has been sought for as soon as the same has been furnished
Higher headquarters.
3.4. A parallel investigation has been directed to the same units
relative to another Petition for the Writ of Amparo (G.R. No. 179994)
filed at the instance of relatives of a certain Cadapan and Empeo
pending before the Supreme Court.
3.5. On the part of the Armed Forces, this respondent will exert
earnest efforts to establish the surrounding circumstances of the
disappearances of the petitioners and to bring those responsible,
including any military personnel if shown to have participated or had
complicity in the commission of the complained acts, to the bar of
justice, when warranted by the findings and the competent evidence
that may be gathered in the process.[50]
Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe
Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994, another amparo case in
this Court, involving Cadapan, Empeo and Merino, which averred among others, viz:
10) Upon reading the allegations in the Petition implicating the
24th Infantry Batallion detachment as detention area, I immediately
went to the 24th IB detachment in Limay, Bataan and found no
untoward incidents in the area nor any detainees by the name of
Sherlyn Cadapan, Karen Empeo and Manuel Merino being held
captive;
Page 49 of 236
11) There was neither any reports of any death of Manuel Merino in
the 24th IB in Limay, Bataan;
12) After going to the 24th IB in Limay, Bataan, we made further
inquiries with the Philippine National Police, Limay, Bataan regarding
the alleged detentions or deaths and were informed that none was
reported to their good office;
13) I also directed Company Commander 1st Lt. Romeo Publico to
inquire into the alleged beachhouse in Iba, Zambales also alleged to
be a detention place where Sherlyn Cadapan, Karen Empeo and
Manuel Merino were detained. As per the inquiry, however, no such
beachhouse was used as a detention place found to have been used
by armed men to detain Cadapan, Empeo and Merino.[51]
It was explained in the Return of the Writ that for lack of sufficient time, the affidavits
of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo, and
other persons implicated by therein petitioners could not be secured in time for the
submission of the Return and would be subsequently submitted.[52]
Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben
U. Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army, based
in FortMagsaysay, Palayan City, Nueva Ecija. The territorial jurisdiction of this
Division covers Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a
portion of Pangasinan.[53] The 24th Infantry Battalion is part of the 7th Infantry
Division.[54]
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the
7th Infantry Division, Maj. Gen. Jovito Palaran,[55] through his Assistant Chief of
Staff,[56]to investigate the alleged abduction of the respondents by CAFGU auxiliaries
under his unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz, aka Puti;
CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza; ex-CAA Marcelo de la
Cruz aka Madning; and a civilian named Rudy Mendoza. He was directed to
determine: (1) the veracity of the abduction of Raymond and Reynaldo Manalo by
the alleged elements of the CAFGU auxiliaries; and (2) the administrative liability of
said auxiliaries, if any.[57] Jimenez testified that this particular investigation was
initiated not by a complaint as was the usual procedure, but because the
Commanding General saw news about the abduction of the Manalo brothers on the
television, and he was concerned about what was happening within his territorial
jurisdiction.[58]
Jimenez summoned all six implicated persons for the purpose of having them
execute sworn statements and conducting an investigation on May 29, 2006.[59] The
investigation started at 8:00 in the morning and finished at 10:00 in the
evening.[60] The investigating officer, Technical Sgt. Eduardo Lingad, took the
individual sworn statements of all six persons on that day. There were no other
sworn statements taken, not even of the Manalo family, nor were there other
witnesses summoned and investigated[61] as according to Jimenez, the directive to
him was only to investigate the six persons.[62]
Jimenez was beside Lingad when the latter took the statements.[63] The six persons
were not known to Jimenez as it was in fact his first time to meet them. [64] During the
entire time that he was beside Lingad, a subordinate of his in the Office of the
Provost Marshall, Jimenez did not propound a single question to the six persons.[65]
Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo
Mendoza and Rudy Mendoza had to come back the next day to sign their statements
as the printing of their statements was interrupted by a power failure. Jimenez
testified that the two signed on May 30, 2006, but the jurats of their statements
Page 50 of 236
indicated that they were signed on May 29, 2006.[66] When the Sworn Statements
were turned over to Jimenez, he personally wrote his investigation report. He began
writing it in the afternoon of May 30, 2006 and finished it on June 1, 2006.[67] He then
gave his report to the Office of the Chief of Personnel.[68]
As petitioners largely rely on Jimenezs Investigation Report dated June 1, 2006 for
their evidence, the report is herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and
REYNALDO MANALO who were forcibly taken from their respective
homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14
February 2006 by unidentified armed men and thereafter were forcibly
disappeared. After the said incident, relatives of the victims filed a
case for Abduction in the civil court against the herein suspects:
Michael dela Cruz, Madning dela Cruz, Puti Dela Cruz, Pula Dela
Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the
Citizen Armed Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29
May 2006 in (Exhibit B) states that he was at Sitio Mozon,
Brgy. Bohol na Mangga, San Ildefonso, Bulacan doing the concrete
building of a church located nearby his residence, together with some
neighbor thereat. He claims that on 15 February 2006, he was being
informed by Brgy. Kagawad Pablo Umayan about the abduction of the
brothers Raymond and Reynaldo Manalo. As to the allegation that he
was one of the suspects, he claims that they only implicated him
because he was a CAFGU and that they claimed that those who
abducted the Manalo brothers are members of the Military and
CAFGU. Subject vehemently denied any participation or involvement
on the abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti
dtd 29 May 2006 in (Exhibit C) states that he is a resident of Sitio
Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA
member based at Biak na Bato Detachment, San Miguel, Bulacan. He
claims that Raymond and Reynaldo Manalo being his neighbors are
active members/sympathizers of the CPP/NPA and he also knows
their elder Rolando Manalo @ KA BESTRE of being an NPA Leader
operating in their province. That at the time of the alleged abduction of
the two (2) brothers and for accusing him to be one of the suspects,
he claims that on February 14, 2006, he was one of those working at
the concrete chapel being constructed nearby his residence. He
claims further that he just came only to know about the incident on
other day (15 Feb 06) when he was being informed by Kagawad
Pablo Kunanan. That subject CAA vehemently denied any
participation about the incident and claimed that they only implicated
him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May
2006 in (Exhibit O) states that he is a resident of Brgy. Buhol na
Mangga, San Ildefonso, Bulacan and a member of CAFGU based
at Biak na Bato Detachment. That being a neighbor, he was very
much aware about the background of the two (2) brothers Raymond
and Reynaldo as active supporters of the CPP NPA in their Brgy. and
he also knew their elder brother KUMANDER BESTRE TN: Rolando
Manalo. Being one of the accused, he claims that on 14 February
Page 51 of 236
2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the house
of his aunt and he learned only about the incident when he arrived
home in their place. He claims further that the only reason why they
implicated him was due to the fact that his mother has filed a criminal
charge against their brother Rolando Manalo @ KA BESTRE who is
an NPA Commander who killed his father and for that reason they
implicated him in support of their brother. Subject CAA vehemently
denied any involvement on the abduction of said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29,
2006 in (Exhibit E) states that he is a resident of Brgy. Marungko,
Angat, Bulacan. He claims that Raymond and Reynaldo Manalo are
familiar to him being his barriomate when he was still unmarried and
he knew them since childhood. Being one of the accused, he claims
that on 14 February 2006, he was at his residence in Brgy. Marungko,
Angat, Bulacan. He claims that he was being informed only about the
incident lately and he was not aware of any reason why the two (2)
brothers were being abducted by alleged members of the military and
CAFGU. The only reason he knows why they implicated him was
because there are those people who are angry with their family
particularly victims of summary execution (killing) done by their
brother @ KA Bestre Rolando Manalo who is an NPA leader. He
claims further that it was their brother @ KA BESTRE who killed his
father and he was living witness to that incident. Subject civilian
vehemently denied any involvement on the abduction of the Manalo
brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May
2006 in (Exhibit F) states that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan, a farmer and a former
CAA based at Biak na Bato, San Miguel, Bulacan. He claims that
Raymond and Reynaldo Manalo are familiar to him being their barrio
mate. He claims further that they are active supporters of CPP/NPA
and that their brother Rolando Manalo @ KA BESTRE is an NPA
leader. Being one of the accused, he claims that on 14 February
2006, he was in his residence at Sitio Muzon, Brgy. Buhol na Mangga,
San Ildefonso, Bulacan. That he vehemently denied any participation
of the alleged abduction of the two (2) brothers and learned only
about the incident when rumors reached him by his barrio mates. He
claims that his implication is merely fabricated because of his
relationship to Roman and Maximo who are his brothers.
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May
2006 in (Exhibit G) states that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod
and a CAFGU member based at Biak na Bato Detachment, San
Miguel, Bulacan. He claims that he knew very well the brothers
Raymond and Reynaldo Manalo in their barangay for having been the
Tanod Chief for twenty (20) years. He alleged further that they are
active supporters or sympathizers of the CPP/NPA and whose elder
brother Rolando Manalo @ KA BESTRE is an NPA leader operating
within the area. Being one of the accused, he claims that on 14 Feb
2006 he was helping in the construction of their concrete chapel in
their place and he learned only about the incident which is the
abduction of Raymond and Reynaldo Manalo when one of the Brgy.
Page 52 of 236
Kagawad in the person of Pablo Cunanan informed him about the
matter. He claims further that he is truly innocent of the allegation
against him as being one of the abductors and he considers
everything fabricated in order to destroy his name that remains loyal
to his service to the government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents in this particular
case, the proof of linking them to the alleged abduction and
disappearance of Raymond and Reynaldo Manalo that transpired
on 14 February 2006 at Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan, is unsubstantiated. Their alleged involvement
theretofore to that incident is considered doubtful, hence, no basis to
indict them as charged in this investigation.
Though there are previous grudges between each families (sic) in the
past to quote: the killing of the father of Randy and Rudy Mendoza by
@ KA BESTRE TN: Rolando Manalo, this will not suffice to establish
a fact that they were the ones who did the abduction as a form of
revenge. As it was also stated in the testimony of other accused
claiming that the Manalos are active sympathizers/supporters of the
CPP/NPA, this would not also mean, however, that in the first place,
they were in connivance with the abductors. Being their neighbors and
as members of CAFGUs, they ought to be vigilant in protecting their
village from any intervention by the leftist group, hence inside their
village, they were fully aware of the activities of Raymond and
Reynaldo Manalo in so far as their connection with the CPP/NPA is
concerned.
V. CONCLUSION
6. Premises considered surrounding this case shows that the alleged
charges of abduction committed by the above named respondents
has not been established in this investigation. Hence, it lacks merit to
indict them for any administrative punishment and/or criminal
liability. It is therefore concluded that they are innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman
dela Cruz, Randy Mendoza, and two (2) civilians Maximo F. Dela
Cruz and Rudy L. Mendoza be exonerated from the case.
8. Upon approval, this case can be dropped and closed.[69]
In this appeal under Rule 45, petitioners question the appellate courts
assessment of the foregoing evidence and assail the December 26, 2007 Decision
on the following grounds, viz:
I.
II.
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THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY
ERRED IN REQUIRING RESPONDENTS (HEREIN PETITIONERS)
TO: (A) FURNISH TO THE MANALO BROTHER(S) AND TO THE
COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL REPORTS
OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH
THEIR CASE, EXCEPT THOSE ALREADY IN FILE WITH THE
COURT; (B) CONFIRM IN WRITING THE PRESENT PLACES OF
OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE
CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE
PRODUCED TO THE COURT OF APPEALS ALL MEDICAL
REPORTS, RECORDS AND CHARTS, AND REPORTS OF ANY
TREATMENT GIVEN OR RECOMMENDED AND MEDICINES
PRESCRIBED, IF ANY, TO THE MANALO BROTHERS, TO
INCLUDE A LIST OF MEDICAL PERSONNEL (MILITARY AND
CIVILIAN) WHO ATTENDED TO THEM FROM FEBRUARY 14, 2006
UNTIL AUGUST 12, 2007.[70]
The case at bar is the first decision on the application of the Rule on the Writ
of Amparo (Amparo Rule). Let us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition in the
recommendations that resulted from a two-day National Consultative Summit on
Extrajudicial Killings and Enforced Disappearances sponsored by the Court on July
16-17, 2007. The Summit was envisioned to provide a broad and fact-based
perspective on the issue of extrajudicial killings and enforced
disappearances,[71] hence representatives from all sides of the political and social
spectrum, as well as all the stakeholders in the justice system [72] participated in
mapping out ways to resolve the crisis.
On October 24, 2007, the Court promulgated the Amparo Rule in light of the
prevalence of extralegal killing and enforced disappearances.[73] It was an exercise
for the first time of the Courts expanded power to promulgate rules to protect our
peoples constitutional rights, which made its maiden appearance in the 1987
Constitution in response to the Filipino experience of the martial law regime. [74] As
the Amparo Rule was intended to address the intractable problem of extralegal
killings and enforced disappearances, its coverage, in its present form, is confined to
these two instances or to threats thereof. Extralegal killings are killings committed
without due process of law, i.e., without legal safeguards or judicial
proceedings.[75] On the other hand, enforced disappearances are attended by the
following characteristics: an arrest, detention or abduction of a person by a
government official or organized groups or private individuals acting with the direct or
indirect acquiescence of the government; the refusal of the State to disclose the fate
or whereabouts of the person concerned or a refusal to acknowledge the deprivation
of liberty which places such persons outside the protection of law.[76]
The writ of amparo originated in Mexico. Amparo literally means protection in
Spanish.[77] In 1837, de Tocquevilles Democracy in America became available
in Mexico and stirred great interest. Its description of the practice of judicial review in
the U.S. appealed to many Mexican jurists.[78] One of them, Manuel Crescencio Rejn,
drafted a constitutional provision for his native state, Yucatan,[79] which granted
judges the power to protect all persons in the enjoyment of their constitutional and
legal rights. This idea was incorporated into the national constitution in 1847, viz:
The federal courts shall protect any inhabitant of the Republic in
the exercise and preservation of those rights granted to him by this
Constitution and by laws enacted pursuant hereto, against attacks by
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the Legislative and Executive powers of the federal or state
governments, limiting themselves to granting protection in the specific
case in litigation, making no general declaration concerning the
statute or regulation that motivated the violation.[80]
Since then, the protection has been an important part of Mexican
constitutionalism.[81] If, after hearing, the judge determines that a constitutional right
of the petitioner is being violated, he orders the official, or the officials superiors, to
cease the violation and to take the necessary measures to restore the petitioner to
the full enjoyment of the right in question. Amparo thus combines the principles of
judicial review derived from the U.S. with the limitations on judicial power
characteristic of the civil law tradition which prevails in Mexico. It enables courts to
enforce the constitution by protecting individual rights in particular cases, but
prevents them from using this power to make law for the entire nation.[82]
The writ of amparo then spread throughout the Western Hemisphere, gradually
evolving into various forms, in response to the particular needs of each country. [83] It
became, in the words of a justice of the Mexican Federal Supreme Court, one piece
of Mexicos self-attributed task of conveying to the worlds legal heritage that
institution which, as a shield of human dignity, her own painful history
conceived.[84] What began as a protection against acts or omissions of public
authorities in violation of constitutional rights later evolved for several purposes:
(1) amparo libertad for the protection of personal freedom, equivalent to the habeas
corpus writ; (2) amparo contra leyes for the judicial review of the constitutionality of
statutes; (3) amparo casacion for the judicial review of the constitutionality and
legality of a judicial decision; (4) amparo administrativo for the judicial review of
administrative actions; and (5) amparo agrario for the protection of peasants rights
derived from the agrarian reform process.[85]
In Latin American countries, except Cuba, the writ of amparo has been
constitutionally adopted to protect against human rights abuses especially committed
in countries under military juntas. In general, these countries adopted an all-
encompassing writ to protect the whole gamut of constitutional rights, including
socio-economic rights.[86] Other countries like Colombia, Chile, Germany and Spain,
however, have chosen to limit the protection of the writ of amparo only to some
constitutional guarantees or fundamental rights.[87]
In the Philippines, while the 1987 Constitution does not explicitly provide for the writ
of amparo, several of the above amparo protections are guaranteed by our
charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution, the
Grave Abuse Clause, provides for the judicial power to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. The
Clause accords a similar general protection to human rights extended by the amparo
contra leyes, amparo casacion, and amparo administrativo. Amparo libertad is
comparable to the remedy of habeas corpus found in several provisions of the 1987
Constitution.[88] The Clause is an offspring of the U.S. common law tradition of
judicial review, which finds its roots in the 1803 case of Marbury v. Madison.[89]
While constitutional rights can be protected under the Grave Abuse Clause through
remedies of injunction or prohibition under Rule 65 of the Rules of Court and a
petition for habeas corpus under Rule 102,[90] these remedies may not be adequate
to address the pestering problem of extralegal killings and enforced
disappearances. However, with the swiftness required to resolve a petition for a writ
of amparo through summary proceedings and the availability of appropriate interim
and permanent reliefs under the AmparoRule, this hybrid writ of the common law and
civil law traditions - borne out of the Latin American and Philippine experience of
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human rights abuses - offers a better remedy to extralegal killings and enforced
disappearances and threats thereof. The remedy provides rapid judicial relief as it
partakes of a summary proceeding that requires only substantial evidence to make
the appropriate reliefs available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative responsibility requiring
substantial evidence that will require full and exhaustive proceedings.[91]
The writ of amparo serves both preventive and curative roles in addressing the
problem of extralegal killings and enforced disappearances. It is preventive in that it
breaks the expectation of impunity in the commission of these offenses; it is curative
in that it facilitates the subsequent punishment of perpetrators as it will inevitably
yield leads to subsequent investigation and action. In the long run, the goal of both
the preventive and curative roles is to deter the further commission of extralegal
killings and enforced disappearances.
In the case at bar, respondents initially filed an action for Prohibition, Injunction, and
Temporary Restraining Order[92] to stop petitioners and/or their officers and agents
from depriving the respondents of their right to liberty and other basic rights on
August 23, 2007,[93] prior to the promulgation of the Amparo Rule. They also sought
ancillary remedies including Protective Custody Orders, Appointment of
Commissioner, Inspection and Access Orders and other legal and equitable
remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135,
Section 6 of the Rules of Court. When the Amparo Rule came into effect on October
24, 2007, they moved to have their petition treated as an amparo petition as it would
be more effective and suitable to the circumstances of the Manalo brothers enforced
disappearance. The Court granted their motion.
With this backdrop, we now come to the arguments of the petitioner. Petitioners first
argument in disputing the Decision of the Court of Appeals states, viz:
The Court of Appeals seriously and grievously erred in believing and
giving full faith and credit to the incredible uncorroborated,
contradicted, and obviously scripted, rehearsed and self-serving
affidavit/testimony of herein respondent Raymond Manalo.[94]
In delving into the veracity of the evidence, we need to mine and refine the
ore of petitioners cause of action, to determine whether the evidence presented is
metal-strong to satisfy the degree of proof required.
Section 1 of the Rule on the Writ of Amparo provides for the following
causes of action, viz:
Section 1. Petition. The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission
of a public official or employee, or of a private individual or entity.
Sections 17 and 18, on the other hand, provide for the degree of proof required, viz:
Sec. 17. Burden of Proof and Standard of Diligence Required. The
parties shall establish their claims by substantial evidence.
Page 58 of 236
We reject the claim of petitioners that respondent Raymond Manalos statements
were not corroborated by other independent and credible pieces of
evidence.[102] Raymonds affidavit and testimony were corroborated by the affidavit of
respondent Reynaldo Manalo. The testimony and medical reports prepared by
forensic specialist Dr. Molino, and the pictures of the scars left by the physical
injuries inflicted on respondents,[103] also corroborate respondents accounts of the
torture they endured while in detention. Respondent Raymond Manalos familiarity
with the facilities in Fort Magsaysay such as the DTU, as shown in his testimony and
confirmed by Lt. Col. Jimenez to be the Division Training Unit,[104] firms up
respondents story that they were detained for some time in said military facility.
In Ortiz v. Guatemala,[105] a case decided by the Inter-American Commission on
Human Rights, the Commission considered similar evidence, among others, in
finding that complainant Sister Diana Ortiz was abducted and tortured by agents of
the Guatemalan government. In this case, Sister Ortiz was kidnapped and tortured in
early November 1989. The Commissions findings of fact were mostly based on the
consistent and credible statements, written and oral, made by Sister Ortiz regarding
her ordeal.[106] These statements were supported by her recognition of portions of
the route they took when she was being driven out of the military installation where
she was detained.[107] She was also examined by a medical doctor whose findings
showed that the 111 circular second degree burns on her back and abrasions on her
cheek coincided with her account of cigarette burning and torture she suffered while
in detention.[108]
With the secret nature of an enforced disappearance and the torture perpetrated on
the victim during detention, it logically holds that much of the information and
evidence of the ordeal will come from the victims themselves, and the veracity of
their account will depend on their credibility and candidness in their written and/or
oral statements. Their statements can be corroborated by other evidence such as
physical evidence left by the torture they suffered or landmarks they can identify in
the places where they were detained. Where powerful military officers are
implicated, the hesitation of witnesses to surface and testify against them comes as
no surprise.
We now come to the right of the respondents to the privilege of the writ
of amparo. There is no quarrel that the enforced disappearance of both respondents
Raymond and Reynaldo Manalo has now passed as they have escaped from
captivity and surfaced. But while respondents admit that they are no longer in
detention and are physically free, they assert that they are not free in every sense of
the word[109] as their movements continue to be restricted for fear that people they
have named in their Judicial Affidavits and testified against (in the case of Raymond)
are still at large and have not been held accountable in any way. These people are
directly connected to the Armed Forces of the Philippines and are, thus, in a position
to threaten respondents rights to life, liberty and security.[110] (emphasis
supplied) Respondents claim that they are under threat of being once again
abducted, kept captive or even killed, which constitute a direct violation of
their right to security of person.[111]
Elaborating on the right to security, in general, respondents point out that
this right is often associated with liberty; it is also seen as an expansion of rights
based on the prohibition against torture and cruel and unusual
punishment. Conceding that there is no right to security expressly mentioned in
Article III of the 1987 Constitution, they submit that their rights to be kept free from
torture and from incommunicado detention and solitary detention places[112] fall
under the general coverage of the right to security of person under the writ of
Amparo. They submit that the Court ought to give an expansive recognition of the
Page 59 of 236
right to security of person in view of the State Policy under Article II of the 1987
Constitution which enunciates that, The State values the dignity of every human
person and guarantees full respect for human rights. Finally, to justify a liberal
interpretation of the right to security of person, respondents cite the teaching
in Moncupa v. Enrile[113] that the right to liberty may be made more meaningful only
if there is no undue restraint by the State on the exercise of that liberty[114] such as a
requirement to report under unreasonable restrictions that amounted to a deprivation
of liberty[115] or being put under monitoring and surveillance.[116]
In sum, respondents assert that their cause of action consists in the threat to their
right to life and liberty, and a violation of their right to security.
Let us put this right to security under the lens to determine if it has indeed
been violated as respondents assert. The right to security or the right to
security of person finds a textual hook in Article III, Section 2 of the 1987
Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge
At the core of this guarantee is the immunity of ones person, including the
extensions of his/her person houses, papers, and effects against government
intrusion. Section 2 not only limits the states power over a persons home and
possessions, but more importantly, protects the privacy and sanctity of the person
himself.[117] The purpose of this provision was enunciated by the Court in People v.
CFI of Rizal, Branch IX, Quezon City, viz: [118]
The purpose of the constitutional guarantee against unreasonable
searches and seizures is to prevent violations of private security in
person and property and unlawful invasion of the security of the home
by officers of the law acting under legislative or judicial sanction and to
give remedy against such usurpation when attempted. (Adams v. New
York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to
privacy is an essential condition to the dignity and happiness and
to the peace and security of every individual, whether it be of
home or of persons and correspondence. (Taada and Carreon,
Political Law of the Philippines, Vol. 2, 139 [1962]). The constitutional
inviolability of this great fundamental right against unreasonable
searches and seizures must be deemed absolute as nothing is closer
to a mans soul than the serenity of his privacy and the assurance
of his personal security. Any interference allowable can only be for
the best causes and reasons.[119] (emphases supplied)
While the right to life under Article III, Section 1[120] guarantees essentially
the right to be alive[121] - upon which the enjoyment of all other rights is
preconditioned - the right to security of person is a guarantee of the secure quality of
this life, viz: The life to which each person has a right is not a life lived in fear that his
person and property may be unreasonably violated by a powerful ruler. Rather, it is a
life lived with the assurance that the government he established and consented to,
will protect the security of his person and property. The ideal of security in life and
property pervades the whole history of man. It touches every aspect of mans
existence.[122] In a broad sense, the right to security of person emanates in a persons
legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his
reputation. It includes the right to exist, and the right to enjoyment of life while
existing, and it is invaded not only by a deprivation of life but also of those things
Page 60 of 236
which are necessary to the enjoyment of life according to the nature, temperament,
and lawful desires of the individual.[123]
A closer look at the right to security of person would yield various permutations of
the exercise of this right.
First, the right to security of person is freedom from fear. In its whereas
clauses, the Universal Declaration of Human Rights (UDHR) enunciates that a
world in which human beings shall enjoy freedom of speech and belief and freedom
from fear and want has been proclaimed as the highest aspiration of the common
people. (emphasis supplied) Some scholars postulate that freedom from fear is not
only an aspirational principle, but essentially an individual international human
right.[124] It is the right to security of person as the word security itself means freedom
from fear.[125] Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of person.[126] (emphasis
supplied)
In furtherance of this right declared in the UDHR, Article 9(1) of
the International Covenant on Civil and Political Rights (ICCPR) also provides for
the right to security of person, viz:
1. Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with
such procedure as are established by law. (emphasis supplied)
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, freedom from fear is the right
and any threat to the rights to life, liberty or security is the actionable
wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of
action. Fear caused by the same stimulus can range from being baseless to well-
founded as people react differently. The degree of fear can vary from one person to
another with the variation of the prolificacy of their imagination, strength of character
or past experience with the stimulus. Thus, in the amparo context, it is more correct to
say that the right to security is actually the freedom from threat. Viewed in this light,
the threatened with violation Clause in the latter part of Section 1 of the Amparo Rule
is a form of violation of the right to security mentioned in the earlier part of the
provision.[127]
Second, the right to security of person is a guarantee of bodily and
psychological integrity or security. Article III, Section II of the 1987 Constitution
guarantees that, as a general rule, ones body cannot be searched or invaded without
a search warrant.[128] Physical injuries inflicted in the context of extralegal killings and
enforced disappearances constitute more than a search or invasion of the body. It
may constitute dismemberment, physical disabilities, and painful physical
intrusion. As the degree of physical injury increases, the danger to life itself
escalates. Notably, in criminal law, physical injuries constitute a crime against
persons because they are an affront to the bodily integrity or security of a person.[129]
Physical torture, force, and violence are a severe invasion of bodily integrity. When
employed to vitiate the free will such as to force the victim to admit, reveal or
fabricate incriminating information, it constitutes an invasion of both bodily and
psychological integrity as the dignity of the human person includes the exercise of
free will. Article III, Section 12 of the 1987 Constitution more specifically proscribes
bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any other
means which vitiate the free will shall be used against him (any
person under investigation for the commission of an offense).Secret
Page 61 of 236
detention places, solitary, incommunicado or other similar forms of
detention are prohibited.
Parenthetically, under this provision, threat and intimidation that vitiate the free will -
although not involving invasion of bodily integrity - nevertheless constitute a violation
of the right to security in the sense of freedom from threat as afore-discussed.
Article III, Section 12 guarantees freedom from dehumanizing abuses of
persons under investigation for the commission of an offense. Victims of enforced
disappearances who are not even under such investigation should all the more be
protected from these degradations.
An overture to an interpretation of the right to security of person as a right against
torture was made by the European Court of Human Rights (ECHR) in the recent
case of Popov v. Russia.[130] In this case, the claimant, who was lawfully detained,
alleged that the state authorities had physically abused him in prison, thereby
violating his right to security of person. Article 5(1) of the European Convention on
Human Rights provides, viz: Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law ... (emphases supplied) Article 3, on
the other hand, provides that (n)o one shall be subjected to torture or to inhuman or
degrading treatment or punishment. Although the application failed on the facts as
the alleged ill-treatment was found baseless, the ECHR relied heavily on the concept
of security in holding, viz:
...the applicant did not bring his allegations to the attention of
domestic authorities at the time when they could reasonably have
been expected to take measures in order to ensure his security and
to investigate the circumstances in question.
The U.N. Committee on the Elimination of Discrimination against Women has also
made a statement that the protection of the bodily integrity of women may also be
related to the right to security and liberty, viz:
gender-based violence which impairs or nullifies the enjoyment by
women of human rights and fundamental freedoms under general
international law or under specific human rights conventions is
discrimination within the meaning of article 1 of the Convention (on the
Elimination of All Forms of Discrimination Against Women). These
rights and freedoms include . . . the right to liberty and security of
person.[132]
Third, the right to security of person is a guarantee of protection of
ones rights by the government. In the context of the writ of amparo, this right
is built into the guarantees of the right to life and liberty under Article III, Section
1 of the 1987 Constitution and the right to security of person (as freedom from
threat and guarantee of bodily and psychological integrity) under Article III, Section
2. The right to security of person in this third sense is a corollary of the policy that
the State guarantees full respect for human rights under Article II, Section 11 of the
1987 Constitution.[133] As the government is the chief guarantor of order and security,
the Constitutional guarantee of the rights to life, liberty and security of person is
Page 62 of 236
rendered ineffective if government does not afford protection to these rights
especially when they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend protection to
victims of extralegal killings or enforced disappearances (or threats thereof) and/or
their families, and bringing offenders to the bar of justice. The Inter-American Court
of Human Rights stressed the importance of investigation in the Velasquez
Rodriguez Case,[134] viz:
(The duty to investigate) must be undertaken in a serious manner
and not as a mere formality preordained to be ineffective. An
investigation must have an objective and be assumed by the State
as its own legal duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or upon
their offer of proof, without an effective search for the truth by the
government.[135]
The possibility of respondents being executed stared them in the eye while
they were in detention. With their escape, this continuing threat to their life is
apparent, moreso now that they have surfaced and implicated specific officers in the
Page 64 of 236
military not only in their own abduction and torture, but also in those of other persons
known to have disappeared such as Sherlyn Cadapan, Karen Empeo, and Manuel
Merino, among others.
Understandably, since their escape, respondents have been under concealment and
protection by private citizens because of the threat to their life, liberty and
security. The threat vitiates their free will as they are forced to limit their movements
or activities.[149] Precisely because respondents are being shielded from the
perpetrators of their abduction, they cannot be expected to show evidence of overt
acts of threat such as face-to-face intimidation or written threats to their life, liberty
and security. Nonetheless, the circumstances of respondents abduction, detention,
torture and escape reasonably support a conclusion that there is an apparent threat
that they will again be abducted, tortured, and this time, even executed. These
constitute threats to their liberty, security, and life, actionable through a petition for a
writ of amparo.
Next, the violation of the right to security as protection by the
government. Apart from the failure of military elements to provide protection to
respondents by themselves perpetrating the abduction, detention, and torture, they
also miserably failed in conducting an effective investigation of respondents
abduction as revealed by the testimony and investigation report of petitioners own
witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division.
The one-day investigation conducted by Jimenez was very limited, superficial, and
one-sided. He merely relied on the Sworn Statements of the six implicated members
of the CAFGU and civilians whom he met in the investigation for the first time. He
was present at the investigation when his subordinate Lingad was taking the sworn
statements, but he did not propound a single question to ascertain the veracity of
their statements or their credibility. He did not call for other witnesses to test the
alibis given by the six implicated persons nor for the family or neighbors of the
respondents.
In his affidavit, petitioner Secretary of National Defense attested that in a
Memorandum Directive dated October 31, 2007, he issued a policy directive
addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in the
event the writ of amparo is issued by a competent court against any members of the
AFP, which should essentially include verification of the identity of the aggrieved
party; recovery and preservation of relevant evidence; identification of witnesses and
securing statements from them; determination of the cause, manner, location and
time of death or disappearance; identification and apprehension of the person or
persons involved in the death or disappearance; and bringing of the suspected
offenders before a competent court.[150] Petitioner AFP Chief of Staff also submitted
his own affidavit attesting that he received the above directive of respondent
Secretary of National Defense and that acting on this directive, he immediately
caused to be issued a directive to the units of the AFP for the purpose of
establishing the circumstances of the alleged disappearance and the recent
reappearance of the respondents, and undertook to provide results of the
investigations to respondents.[151] To this day, however, almost a year after the policy
directive was issued by petitioner Secretary of National Defense on October 31,
2007, respondents have not been furnished the results of the investigation which
they now seek through the instant petition for a writ of amparo.
Under these circumstances, there is substantial evidence to warrant the conclusion
that there is a violation of respondents right to security as a guarantee of protection
by the government.
In sum, we conclude that respondents right to security as freedom from threat is
violated by the apparent threat to their life, liberty and security of person. Their right
Page 65 of 236
to security as a guarantee of protection by the government is likewise violated by the
ineffective investigation and protection on the part of the military.
Finally, we come to the reliefs granted by the Court of Appeals, which petitioners
question.
First, that petitioners furnish respondents all official and unofficial reports of the
investigation undertaken in connection with their case, except those already in file
with the court.
Second, that petitioners confirm in writing the present places of official
assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals all medical
reports, records and charts, and reports of any treatment given or
recommended and medicines prescribed, if any, to the Manalo brothers, to
include a list of medical personnel (military and civilian) who attended to
them from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the production
order sought by respondents partakes of the characteristics of a search
warrant. Thus, they claim that the requisites for the issuance of a search warrant
must be complied with prior to the grant of the production order, namely: (1) the
application must be under oath or affirmation; (2) the search warrant must
particularly describe the place to be searched and the things to be seized; (3) there
exists probable cause with one specific offense; and (4) the probable cause must be
personally determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce.[152] In the case at bar, however,
petitioners point out that other than the bare, self-serving and vague allegations
made by respondent Raymond Manalo in his unverified declaration and affidavit, the
documents respondents seek to be produced are only mentioned generally by name,
with no other supporting details. They also argue that the relevancy of the
documents to be produced must be apparent, but this is not true in the present case
as the involvement of petitioners in the abduction has not been shown.
Petitioners arguments do not hold water. The production order under
the Amparo Rule should not be confused with a search warrant for law enforcement
under Article III, Section 2 of the 1987 Constitution. This Constitutional provision is a
protection of the people from the unreasonable intrusion of the government, not a
protection of the government from the demand of the people such as respondents.
Instead, the amparo production order may be likened to the production of documents
or things under Section 1, Rule 27 of the Rules of Civil Procedure which provides in
relevant part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause therefor, the court in
which an action is pending may (a) order any party to produce and
permit the inspection and copying or photographing, by or on behalf of
the moving party, of any designated documents, papers, books of
accounts, letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence material to any matter
involved in the action and which are in his possession, custody or
control
SUMMARY:
Facts: The brothers Raymond and Reynaldo Manalo, farmers from Bulacan who
were suspected of being members of the New People’s Army, were forcibly taken
from their home, detained in various locations, and tortured by CAFGU and military
units. After several days in captivity, the brothers Raymond and Reynaldo
recognized their abductors as members of the armed forces led by General Jovito
Palparan. They also learned that they were being held in place for their brother,
Bestre, a suspected leader of the communist insurgents. While in captivity, they met
other desaperacidos (including the still-missing University of the Philippines students
Karen Empeno and Sherlyn Cadapan) who were also suspected of being communist
insurgents and members of the NPA. After eighteen months of restrained liberty,
torture and other dehumanizing acts, the brothers were able to escape and file a
petition for the writ of amparo.
Issue: Whether or not the right to freedom from fear is or can be protected by
existing laws.
Held: Yes. The right to the security of person is not merely a textual hook in Article
III, Section 2 of the Constitution. At its core is the immunity of one’s person against
government intrusion. The right to security of person is “freedom from fear,” a
guarantee of bodily and psychological integrity and security.
Page 67 of 236
To whom may the oppressed, the little ones, the desaperacidos, run to, if the
Orwellian sword of the State, wielded recklessly by the military or under the guise of
police power, is directed against them? The law thus gives the remedy of the writ of
amparo, in addition to the rights and liberties already protected by the Bill of Rights.
Amparo, literally meaning “to protect,” is borne out of the long history of Latin
American and Philippine human rights abuses—often perpetrated by the armed
forces against farmers thought to be communist insurgents, anarchists or brigands.
The writ serves to both prevent and cure extralegal killings, enforced
disappearances, and threats thereof, giving the powerless a powerful remedy to
ensure their rights, liberties, and dignity. Amparo, a triumph of natural law that has
been embodied in positive law, gives voice to the preys of silent guns and prisoners
behind secret walls.
In upholding the CA decision, the Supreme Court ruled that there is a continuing
violation of the Manalos right to security. xxx The Writ of Amparo is the most potent
remedy available to any person whose right to life, liberty, and security has been
violated or is threatened with violation by an unlawful act or omission by public
officials or employees and by private individuals or entities. xxx Understandably,
since their escape, the Manalos have been under concealment and protection by
private citizens because of the threat to their life, liberty, and security. The
circumstances of respondents’ abduction, detention, torture and escape reasonably
support a conclusion that there is an apparent threat that they will again be
abducted, tortured, and this time, even executed. These constitute threats to their
liberty, security, and life, actionable through a petition for a writ of amparo,” the Court
explained.
REYES VS CA
FULL TEXT:
EN BANC
Page 68 of 236
REVEREND FATHER ROBERT P. G. R. No. 182161
REYES,
Petitioner,
Present:
PUNO, C.J.,
CARPIO,
- versus - CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
COURT OF APPEALS, SECRETARY LEONARDO-DE CASTRO,
RAUL M. GONZALEZ, IN HIS BRION,
CAPACITY AS THE SECRETARY OF PERALTA,
THE DEPARTMENT OF JUSTICE, AND BERSAMIN,
COMMISSIONER MARCELINO C. DEL CASTILLO,
LIBANAN, IN HIS CAPACITY AS THE ABAD, and
COMMISSIONER OF THE BUREAU OF VILLARAMA, JR., JJ.
IMMIGRATION,
Respondents. Promulgated:
December 3, 2009
x--------------------------------------------------------------------------------------------x
DECISION
For resolution is the petition for review under Rule 45 of the Rules of Court,
assailing the February 4, 2008 Decision[1] of the Court of Appeals (CA) in CA-G.R.
No. 00011 which dismissed the petition for the issuance of the writ of amparo under
A.M. No. 07-9-12-SC, as amended. It also assails the CAs Resolution dated March
25, 2008, denying petitioners motion for reconsideration of the aforesaid February 4,
2008 Decision.
Page 69 of 236
M. Reyes, conducted inquest proceedings to ascertain whether or not
there was probable cause to hold petitioner and the others for trial on
charges of Rebellion and/or Inciting to Rebellion.
Page 70 of 236
On January 3, 2008, petitioner filed the instant petition
claiming that despite the dismissal of the rebellion case against
petitioner, HDO No. 45 still subsists; that on December 19, 2007,
petitioner was held by BID officials at the NAIA as his name is
included in the Hold Departure List; that had it not been for the timely
intervention of petitioners counsel, petitioner would not have been
able to take his scheduled flight to Hong Kong; that on December 26,
2007, petitioner was able to fly back to the Philippines from Hong
Kong but every time petitioner would present himself at the NAIA for
his flights abroad, he stands to be detained and interrogated by BID
officers because of the continued inclusion of his name in the Hold
Departure List; and that the Secretary of Justice has not acted on his
request for the lifting of HDO No. 45. Petitioner further maintained that
immediate recourse to the Supreme Court for the availment of the writ
is exigent as the continued restraint on petitioners right to travel is
illegal.
The petition for a writ of amparo is anchored on the ground that respondents
violated petitioners constitutional right to travel. Petitioner argues that the DOJ
Secretary has no power to issue a Hold Departure Order (HDO) and the subject
HDO No. 45 has no legal basis since Criminal Case No. 07-3126 has already been
dismissed.
I.
II.
III.
IV.
Page 72 of 236
DOJ CIRCULAR 17 SERIES OF 1998 PROVIDES NO
STATUTORY BASIS FOR THE DOJ SECRETARYS CLAIMED
POWER TO ISSUE AN HDO FOR IT IS NOT A STATUTE. THE
CIRCULAR ITSELF APPEARS NOT TO BE BASED ON ANY
STATUTE, HENCE, IT DOES NOT HAVE THE FORCE OF LAW
AND NEED NOT BE ATTACKED IN A DIRECT PROCEEDING.[7]
Petitioner maintains that the writ of amparo does not only exclusively apply to
situations of extrajudicial killings and enforced disappearances but encompasses the
whole gamut of liberties protected by the Constitution. Petitioner argues that [liberty]
includes the right to exist and the right to be free from arbitrary personal restraint or
servitude and includes the right of the citizens to be free to use his faculties in all
lawful ways. Part of the right to liberty guaranteed by the Constitution is the right of a
person to travel.
The case hinges on the issue as to whether or not petitioners right to liberty
has been violated or threatened with violation by the issuance of the subject HDO,
which would entitle him to the privilege of the writ of amparo.
In Tapuz v. Del Rosario,[13] the Court laid down the basic principle regarding
the rule on the writ of amparo as follows:
To start off with the basics, the writ of amparo was originally
conceived as a response to the extraordinary rise in the number of
killings and enforced disappearances, and to the perceived lack of
available and effective remedies to address these extraordinary
concerns. It is intended to address violations of or threats to the
rights to life, liberty or security, as an extraordinary and
independent remedy beyond those available under the prevailing
Rules, or as a remedy supplemental to these Rules. What it is not, is
a writ to protect concerns that are purely property or
commercial. Neither is it a writ that we shall issue on amorphous
and uncertain grounds. Consequently, the Rule on the Writ of
Amparo in line with the extraordinary character of the writ and the
reasonable certainty that its issuance demands requires that every
petition for the issuance of the writ must be supported by justifying
allegations of fact, to wit:
Page 74 of 236
aggrieved party and the identity of the person
responsible for the threat, act or omission; and
Here, petitioner invokes this extraordinary remedy of the writ of amparo for the
protection of his right to travel. He insists that he is entitled to the protection covered
by the Rule on the Writ of Amparo because the HDO is a continuing actual restraint
on his right to travel. The Court is thus called upon to rule whether or not the right to
travel is covered by the Rule on the Writ of Amparo.
The rights that fall within the protective mantle of the Writ of Amparo under
Section 1 of the Rules thereon are the following: (1) right to life; (2) right to liberty; and
(3) right to security.
The right to liberty, on the other hand, was defined in the City of Manila, et al.
v. Hon. Laguio, Jr.,[17] in this manner:
Page 76 of 236
injuries constitute a crime against persons because they are an affront
to the bodily integrity or security of a person.
xxx
Pursuant to the aforementioned Section 22, petitioner should have filed with
the RTC-Makati a motion to lift HDO No. 45 in Criminal Case No. 07-
3126. Petitioner, however, did not file in the RTC-Makati a motion to lift the DOJs
HDO, as his co-accused did in the same criminal case. Petitioner argues that it was
not the RTC-Makati but the DOJ that issued the said HDO, and that it is his intention
not to limit his remedy to the lifting of the HDO but also to question before this Court
the constitutionality of the power of the DOJ Secretary to issue an HDO. [24] We quote
with approval the CAs ruling on this matter:
Even in civil cases pending before the trial courts, the Court has no authority
to separately and directly intervene through the writ of amparo, as elucidated
in Tapuz v. Del Rosario,[27] thus:
Page 78 of 236
WHEREFORE, the petition is DISMISSED. The assailed Decision of the CA
dated February 4, 2008 in CA-G.R. No. 00011 is hereby AFFIRMED.
SO ORDERED.
SUMMARY:
Facts:
Petitioner was among those arrested in the Manila Peninsula Hotel siege on
November 30, 2007. Petitioner together with fifty (50) others, were brought to Camp
Crame to await inquest proceedings. In the evening of the same day, the Department
of Justice (DOJ) Panel of Prosecutors, composed of Emmanuel Y. Velasco, Phillip L.
Dela Cruz and Aristotle M. Reyes, conducted inquest proceedings to ascertain
whether or not there was probable cause to hold petitioner and the others for trial on
charges of Rebellion and/or Inciting to Rebellion. Upon the request of the DILG,
respondent DOJ Secretary Raul Gonzales issued Hold Departure Order (HDO) No.
45 ordering respondent Commissioner of Immigration to include in the Hold
Departure List of the Bureau of Immigration and Deportation (BID) the name of
petitioner and 49 others relative to the aforementioned case in the interest of national
security and public safety. After finding probable cause against petitioner and 36
others for the crime of Rebellion the DOJ Panel of Prosecutors filed an Information
before the RTC, Branch 150 of Makati City. RTC issued an Order dismissing the
charge for Rebellion against petitioner and 17 others for lack of probable cause.
Petitioner filed the instant petition claiming that despite the dismissal of the rebellion
case against petitioner, HDO No. 45 still subsists. Every time petitioner would leave
and return to the country, the immigration officers at the NAIA detain and interrogate
him for several minutes because of the existing HDO.
Issue:
Whether or not the right to travel is covered by the Rule on the Writ of
Amparo.
Ruling:
No, the Right to travel is not covered by the Rule on the Writ of Amparo. The
rights that fall within the protective mantle of the Writ of Amparo under Section 1 of
the Rules thereon are the following: (1) right to life; (2) right to liberty; and (3) right to
security. The restriction on petitioner’s right to travel as a consequence of the
pendency of the criminal case filed against him was not unlawful. Petitioner has also
failed to establish that his right to travel was impaired in the manner and to the extent
that it amounted to a serious violation of his right to life, liberty and security, for which
there exists no readily available legal recourse or remedy. Additionally, petitioner is
seeking the extraordinary writ of amparo due to his apprehension that the DOJ may
deny his motion to lift the HDO. Petitioner’s apprehension is at best merely
speculative. Thus, he has failed to show any clear threat to his right to liberty
actionable through a petition for a writ of amparo. The new remedy of writ of amparo
which is made available by the Supreme Court is intended for the protection of the
highest possible rights of any person, which is his or her right to life, liberty and
security. The Court will not spare any time or effort on its part in order to give priority
to petitions of this nature. However, the Court will also not waste its precious time
and effort on matters not covered by the writ.
Page 79 of 236
US VS BALDOMERO
FULL TEXT:
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 1272 January 11, 1904
vs.
MCDONOUGH, J.:
Separate Opinions
MAPA, J., with whom concur WILLARD and TORRES, JJ., dissenting:
When a person is illegally detained he may recover his liberty or he may not be seen
or heard of again. In the first case the crime would fall within the provisions of articles
481, 482, and 483, paragraph 1 of the Penal Code, according to the circumstances of
the case. The maximum penalty which could be imposed upon this hypothesis would
be that of reclusion temporal, fixed by article 482.
If the person detained is not seen or heard again, the crime is unquestionably a more
serious one, and the code, in order to be consistent with the system adopted by it of
making the penalty attached to crimes correspond to the extent and degree of the
harm occasioned thereby, necessarily had to fix a heavier penalty upon the illegal
detention of a person followed by his complete disappearance, than in any of the
cases in which the person detained recovers his liberty. "The disappearance of a
person who has been illegally detained by another," says Groizard, in his
Commentaries on the Penal Code, volume 5, page 633, "is certainly sufficient to
cause alarm to society. It constitutes a natural increase of the mediate harm caused
by the crime of illegal detention, and gives rise to a well-founded presumption of an
increased extent or immediate harm."
The greater the harm caused by the crime, the greater and more severe the penalty
attached to it. This is the system invariably followed by our code.
It appearing, then, that the code fixes the penalty of reclusion temporal when the
person detained recovers his liberty if his detention has lasted more than twenty days,
or any other of the aggravating circumstances expressed in article 482 concur, it was
logical and unavoidably necessary, in order not to destroy the unity of the system
referred to, that the code should fix a heavier penalty than reclusion temporal for a
case in which the person detained has disappeared, owing to the greater gravity with
which the circumstance invests the crime. This would be so if only on account of the
fact while the illegal detention continues, while the person detained remains in the
power of his captors, he continues to be expressed to the danger of being a helpless
and defenseless victim of violence and ill treatment of every kind, including the loss of
his life. Hence the code has fixed the penalty of cadena temporal in its maximum
degree to life imprisonment (cadena perpetua) when the person detained disappears.
"One who illegally detains another," says paragraph 2 of article 483, "and fails to give
information concerning his whereabouts, or does not prove that he has set him at
liberty, shall be punished with cadena temporal in its maximum degree to life
imprisonment (cadena perpetua)."
The fact that Felix Punsalan was kidnapped by the accused in November, 1901,
having been fully proven, and the fact that he has disappeared and that nothing has
been heard of him up to the present time having been also proven, we think that the
case should be determined in accordance with the provisions of article 483 above
transcribed, and that the defendants should be sentenced to the penalty of life
imprisonment (cadena perpetua), taking into consideration the aggravating
circumstance of nocturnity, inasmuch as they have not given information as to the
whereabouts of Punsalan, and have not proven that they set him at liberty.
In the opinion of the majority of the court this article "has the effect of forcing the
defendant to become a witness in his own behalf or to take a much severer
punishment. The burden is put upon him of giving evidence if he desires to lessen the
penalty, or in other words of incriminating himself, for the very statement of the
whereabouts of the victim or the proof that the defendant set him at liberty, amounts
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to a confession that the defendant unlawfully detained the person." As a consequence
of this interpretation, the majority are of the opinion that this article has been repealed
by section 5 of the Philippine bill, enacted July 1, 1902, which provides that no person
shall be compelled in any criminal case to be a witness against himself, and by the
provisions of section 57 and 59 of General Orders, No. 58, which provide that the
defendant in a criminal case shall be presumed to be innocent until the contrary is
proved, and that the burden of the proof of guilt shall be upon the prosecution. "It
follows, therefore, from an examination of the old law," say the majority, "that no
prosecution under this section would ever have been possible (par. 2, art. 483)
without a concomitant provision of the procedural law, which made it the duty of the
accused to testify and permitted the prosecution to draw an unfavorable inference
from his refusal to do so." If the right had been taken away to question the accused
and compel him to testify, the majority of the court are of the opinion that one of the
essential elements of the crime defined and punished by article 483 would always
have been lacking, and that right they say has been taken from the prosecution by
both General Orders, No. 58, and the guaranty embodied in the Philippine bill.
Article 554 of the compilation of rules concerning criminal procedure, approved by the
royal decree of May 6, defendant can not decline to answer the questions addressed
him by the judge or by the prosecuting attorney with the consent of the judge, or by
the private prosecutor, even though he may believe the judge to be without
jurisdiction, in which case he may record a protest against the authority of the court,"
does in fact appear to support the opinion of the majority with respect to the obligation
which it is assumed rested upon the accused under the old system of procedure to
appear as a witness. This provision of law, however, carefully considered, lacks a
great deal of having the meaning and scope attributed to it in the majority opinion, for
neither the article in question nor any other article in the royal decree cited, or any
other provision of law of which we are aware, provides for any penalty in case the
accused should refuse to testify. Far from it, paragraph 2 of article 545 of the royal
decree in question provides that "in no case shall the defendant be questioned or
cross-examined," and article 541 in its last paragraph provides: "Nor shall the
defendant be in any way threatened or coerced." Article 543 provides that a judge
who disregards this precept shall be subject to a disciplinary correction unless the
offense is such as to require still heavier punishment.
The use of threats or coercion against the accused being prohibited in absolute and
precise terms, how could it be lawful to threaten him, as Escriche states in his
Dictionary of Legislation and Jurisprudence, cited by the majority in support of their
opinion (a work which, by the way, was written long before the enactment of the
procedural law in force in the Philippines at the time General Orders, No. 58, was
published) — how could it be lawful, we say, to coerce the accused by informing him
that "his silence is prejudicial to him, that it is an indication of his guilt, that he will be
thereby considered guilty, and that his refusal to testify will be taken into
consideration, together with all other evidence against him when the time arrives for
rendering judgment?" Would this not be an actual coercion, and a coercion of the
worst kind, inasmuch as it implies a threat, also prohibited by the law, of a certain and
sure conviction, for the purpose of constraining and compelling the accused to testify?
Would not the judge making such a threat become subject to the punishment
prescribed by article 543 above cited?
Escriche himself, in his article on criminal procedure in the work above mentioned, in
speaking of the testimony of defendants says that "all coercion is prohibited by law."
"This," he adds, "has done away with all physical or moral compulsion to obtain
testimony." And in paragraph 70 of the same article he also says as follows: "If the
defendant remains silent when called upon to plead, and refuses to answer the
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charges made against him by the judge, he can not be compelled to answer . . .; nor
does it appear that this can be regarded as a plea of guilt, or that the accused can be
considered as the author of the crime on that account.
Providing for the case of the accused refusing to testify, article 392 of the Law of
Criminal Procedure of 1882 provides that "when the accused refuses to answer or
pretends to be insane, or dumb, the judge shall warn him that notwithstanding his
silence the prosecution will continue." This is the only thing which can be done in such
a case — the only thing the law permits — and anything which may be done beyond
that for the purpose of bringing pressure to bear, no matter how light, upon the
accused to constrain him to testify would be unjust and illegal.
If, therefore, the law prescribes no penalty for the refusal of the accused to testify, and
if an accused person who does so refuse can not be compelled to do so in any way, if
the only procedure which the law authorizes, if the only action which the judge can
take in that case is to continue the prosecution notwithstanding this denial, how can it
be successfully contended that the accused was obliged to testify? If the law had
assumed to impose upon him such an obligation it would have prescribed some
adequate means of enforcing it, for there can not be an obligation in the true legal
sense of the word without the coexistence of some penalty by which to enforce its
performance.
Thus, for example, the law in imposing upon witnesses the obligation to testify, at the
same time prescribes a penalty for one who refuses to perform this duty. Article 560
of the compilation says that "all persons residing in Spanish territory, whether natives
or foreigners, who are not under disability, shall be obliged to respond to a judicial
citation to testify as to all matters within their knowledge concerning which they may
be questioned." And article 567 providing that "he who, not being under disability,
shall fail to respond to the first judicial citation . . ., or shall refuse to testify as to the
facts concerning which he may be interrogated . . . shall be subject to a fine of not
less than 25 nor more than 250 pesetas; and if he should persist in his resistance he
shall in the first case be taken before the court by the officers of the law and
prosecuted for the crime defined and punished in paragraph 2 of article 383 of the
Penal Code (art. 252 of the Code of these Islands), and in the second case shall also
be prosecuted for the crime defined and punished in article 265 of the same Code."
(Art. 368 of the Philippine Code.)
This provision of law certainly constitutes a significant contrast to the absence of any
other similar coercive provision which might produce the effect of compelling accused
persons to testify against their will, and this demonstrates that the law did not propose
to impose upon them such an obligation.
To such a degree has the law carried its respect for the conscience of accused
persons and for their natural desire to refrain from incriminating statements that is
absolutely prohibits the administration of an oath even in cases in which such persons
voluntarily offer to testify. (Art. 593 of the Compilation, par. 17 of the royal order (auto
acordado) of 1860, and art. 9 of the royal cedula of 1855), thus leaving them entirely
at liberty to testify as they may see fit, whether false or true, without the fear, which
necessarily produces a certain moral pressure, of thereby incurring the guilt of
perjury. On this account, and of the fact of the absolute prohibition of using any
threats or coercion against them, the practical result was that not only might accused
persons testify with impunity as to whatever they might see fit, even if false, when
voluntarily offering themselves as witnesses, but that they could never be compelled
against their will to testify at all. This is equivalent to saying that accused persons
were not under any obligation to testify.
We have stated that the law did not authorize the drawing of any inference as to the
guilt of the accused from his silence, and we insist that such is the case. We believe
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that no provision of law can be cited in support of the contrary proposition. To what
has been said above upon this point we may add that among the means of proof of
the guilt of the accused expressly mentioned in article 52 of the provisional law for the
application of the Penal Code in the Philippines, the silence of the accused or his
refusal to testify is not included.
In corroboration of the assertions heretofore made we refer to a work published in
1883 by the editorial staff of the Review of Legislation and Jurisprudence, under the
title of "Law of criminal procedure," in which, in the chapter in which the subject of the
testimony of the accused is dealt with (vol. 1, p. 257), the following statement is
made:
Is the accused under any obligation to testify? This is the first doubt which arises in
examining the subject with which this chapter deals. The law does not solve the
question expressly, and consequently we must endeavor to discover whether this
obligation is imposed indirectly. We are of the opinion that it is not, inasmuch as
obligations, and more especially with respect to the penal law, are not to be
presumed. Nor do we attribute the lack of the provision to which we refer to
carelessness or oversight on the part of the legislator, both because it is such a
serious matter and because it is expressly provided that the accused is under no
obligation to testify, and because our former laws and the law of Aragon, before the
laws of other European countries, relieved accused persons from the obligation of
taking an oath in order not to place them in the predicament of either telling a
falsehood and thereby committing perjury, or of declaring themselves to be guilt of a
crime of which they are charged. That is to say, our ancient laws of Aragon and the
other laws of Europe which copied the provisions of the laws of Aragon when
providing that accused persons should not be required to take an oath, or permitted to
do so, were based upon the principle which is at the present time recognized by all
criminologists of Europe, that the accused should not be required under penalty to aid
in the prosecution of the crime of which he is charged. Upon these principles, which at
the present time are beyond question, it can not be inferred that the accused is under
obligation to testify.
For the purpose of supporting this contention we have still many other reasons. Upon
the supposition that the law imposes upon the defendant the obligation to testify what
penalty exists for the failure to perform this obligation? None, absolutely none; so that
assuming the obligation to exist, if the accused should refuse to testify, he might do
so with absolute immunity, for in such case there is no coercion measure which can
be used since the abolition of torture. Consequently if our law had imposed the
obligation of testifying upon accused persons, they would have provided some
adequate penalty. And not only is this conclusion to be reached from an examination
of all modern systems of law, without any exception, but it is based upon the express
provisions of the law we are commenting upon in article 392 and the last paragraph of
article 689 [should be 389], which provides that no coercion or threats can be used
against the accused, and to endeavor to compel him to testify would certainly be a
coercion. If the accused refuses to testify, notwithstanding his silence, the prosecution
will continue without any prejudice whatever to the defendant. It is true that article 693
provides that the presiding judge shall demand a categorical answer from the
accused, but in case the accused refuses to give such answer there is no penalty
other than that of article 798, to wit, that the prosecution shall continue, even although
the accused shall refuse to answer the questions addressed to him by the presiding
judge. Consequently this appears to decide the question in favor of our contention. If
the accused refuses to testify, that is his privilege, but the trial will continue down to
final judgment.
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With respect to the legal presumption of the innocence of the accused in the absence
of proof to the contrary, this is not a new principle in the law of criminal procedure of
the Philippine, nor was it introduced here by General Orders, No. 58, as might be
inferred from the majority opinion. Centuries ago the Code of the Partidas, which for a
long time constituted an integral part of the laws of this Archipelago, solemnly
recognized this principle by establishing in a number of its provisions that no person
should be considered as guilty of a crime except upon proof of his guilt, and that proof
to such degree as to exclude all doubt, proof "as clear as light." "A criminal charge,"
says Law 12, title 14, third partida, "brought against anyone . . . must be proved
openly by witnesses or by writing, or by the confession of the accused, and not upon
suspicion alone. For it is but just that a charge brought against the person of an man,
or against his reputation, should be proved and established by evidence as clear as
light, evidence not leaving room for any doubt. Wherefore the ancient sages held and
decided that it was more righteous to acquit a guilty man, as to whom the judge could
not find clear and manifest evidence, than to convict an innocent man even though
suspicion point his way."
Again, the provincial law for the application of the Penal Code which was in force here
at the time of the publication of General Orders, No. 58, also required, in order to
authorize the conviction of the defendant, that his guilt be established by some of the
means of proof enumerated in article 52 of that law. In default of this proof the
presumption prevailed that the accused was innocent and the law required his
acquittal.
In Escriche's Dictionary of Legislation of Jurisprudence, above cited, in the article on
Criminal Evidence, paragraph 5, the author says: "Until it appears to a certainty that
the accused is guilty, it would be a crime to condemn him to suffer any penalty
whatever; because he may be innocent, and every man has a right to be so
considered until the contrary is established by proof."
It follows then that if the accused could under no circumstance be compelled to testify
against his will under the procedural law prior to General Orders, No. 58, and of that
procedure the principle of the presumption of the innocence of the accused until the
contrary is proven formed part, and that notwithstanding this the provisions of
paragraph 2 of article 483 existed, it is logical to conclude, against the opinion of the
majority, that in establishing that precept the legislator in no wise took into
consideration the supposed obligation of the accused to testify as to the charge
against him, and did not consider it incompatible with that presumption of innocence,
for then as now the accused was under no obligation to testify, and then as now the
presumption referred to constituted a fundamental right of the accused under the law
of procedure.
Passing from this aspect of the question, we will now consider the provisions of
paragraph 2 of article 483 of the Penal Code in connection with section 5 of the
Philippine bill enacted July 1, 1902.
Pacheco, in commenting upon article 413 of the penal code of Spain, which is the
equivalent of article 483 of the Code of the Philippines, in his work entitled "The Penal
Code" (fifth edition, vol. 3, p. 258), says that this article is based upon "the
hypothesis that the person detained has completely disappeared." Then the author
adds: "The law considers the person guilty of this detention to be guilt by presumption
of killing the person detained, unless he proves that he set that person at liberty."
Such is the essence of the crime punished under the provisions of article 483. It does
not consist solely in the detention, but in the detention followed by the disappearance
of the person detained. It is indispensable to prove these two facts, for neither of them
alone are sufficient to authorize the application of the article. But, these facts having
been proven, upon that proof alone, and without the necessity of any further
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evidence, then as stated by the author cited, we have the crime punished by the
article in question, and as a consequence a case calling for the application of the
penalty prescribed by that article. This being so, if for the purpose of convicting the
accused the prosecution has only to prove the two facts above mentioned, this is
doubtless because these facts and these facts alone are sufficient to constitute the
crime under consideration.
Hence it is not true, as stated in the majority opinion, that one of the constituent and
essential elements of the crime is the fact that the accused has failed to give
information as to the whereabouts of the person detained, or failed to prove that he
has set him at liberty. This fact, that is to say, the fact of having given or failed to give
information as to the whereabouts or liberty of the person detained, is entirely foreign
to the essence of the crime. Not only is it not a necessary element for the existence of
the crime, but is, on the contrary, a defense, or, as Groizard says in his
Commentaries to the Penal Code (vol. 5, p. 632), an exception which the law grants
the defendant as a means by which, if he avails himself of it and establishes it by
proof, he may avoid the penalty prescribed in that article. "In order that this exception
be available," says that author, "it must be shown by competent evidence that the act
alleged in defense was actually performed." It is unnecessary to add that a defense
available to the accused is not and can not be an integral element of the crime, its
direct and immediate effect being, as it is, to overcome the criminal action arising from
the crime.
It having been demonstrated that the wording of article 483 of the Code, the effect
that if the person guilty of illegal detention "does not give information as to the
whereabouts of the person detained, or proof that he set him at liberty," had for their
purpose the establishment of a defense of which the accused may take the benefit,
and that they do not constitute an essential element of the crime in question, it is not
possible in our opinion to interpret these words in the sense of imposing upon the
defendant an obligation of testifying as to those facts — an obligation which did not
exist under the old system of procedures, as we have demonstrated — because the
use of a defense allowed by the law would lose its character as such if its use were
obligatory.
But it said that if the accused does not give information of the whereabouts of the
person detained, or does not prove that he set him at liberty, he becomes subject to
the penalty of paragraph 2 of article 483, which is much heavier than that prescribed
by articles 481 and 482, to which he would be subject in the contrary case. True. But
what is intended to be inferred from this? Is it contended that upon this supposition
the accused is convicted by reason of the fact that he does not give information as to
the whereabouts of the person detained, or proof that he set him at liberty? Is it meant
that the prosecution has only to prove this fact in order to obtain a conviction? Is it
meant that the law punishes as a crime the silence of the accused, as the majority
opinion would lead us to infer? Far from it. Nothing could be further from the true
meaning of article 483 under consideration. What is therein punished is
the disappearance of the person detained. This it is which constitutes the crime
defined in that article, and this it is which must be proven by the prosecution. If the
prosecution does not prove the detention of the supposed victim, and does not
moreover prove his disappearance, no matter how complete the silence of the
accused or how obstinate his refusal to give information as to the whereabouts or
liberty of the person detained, there can be no possibility of his conviction under the
article in question. This conclusively shows that the ground of the conviction would
not be the silence of the accused, but the proof offered by the prosecution upon the
two facts above mentioned, which are, as we have stated, essential elements of the
crime we are now considering.
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For this reason it was that in the case of the United States vs. Eulogio de Sosa, for
illegal detention, decided February 6, 1903, the court acquitted the defendant,
declaring that there was no ground upon which he could be convicted under the
provisions of paragraph 2 of article 483, giving among others the reason that "there
was not sufficient evidence that the whereabouts of Nicasio Rafael are unknown,"
Rafael being the person detained. Mr. Justice Willard, who wrote the opinion of the
court, in that opinion said: "The mere fact that the accused has not given information
as to the whereabouts of the person sequestered is not sufficient to authorize a
conviction." He also expressly laid down the rule that in order to justify a conviction it
is necessary that it "appear to the satisfaction of the court that the person has
disappeared." It is not necessary to add, for it is self-evident, that this decision implies
the proposition that paragraph 2 of article 483 of the Penal Code has not been
repealed by the Philippine bill of July 1, 1902. The sense of the decision is that if the
disappearance of Nicasio Rafael had been proven, it would have been proper to
convict the accused in accordance with the provisions of the article of the code under
consideration.
It is clear that the accused can overcome the evidence of the prosecution in whole or
in part, either by proving that he had not committed the alleged detention, in which
case his innocence would be completely established, or else by limiting his proof to
showing that it is not true that the person detained has disappeared, as, for instance,
proving the whereabouts of the latter, in which case the gravity of the crime would
naturally be reduced. Whatever the evidence may be, total or partial, demonstrative of
the complete innocence of the accused, or only of a lesser degree of guilt, the law
admits this defense either as a total defense or attenuate the penalty, as the case
may be. In the latter case, which is the one to which article 483 expressly refers, the
accused may prove the whereabouts of the person detained, or show that the placed
him at liberty. And because the law makes provisions for this case, which is certainly
favorable to the accused, who under such a hypothesis would be responsible solely
for the fact of the detention and not for the disappearance of the person detained,
because the law expressly grants and authorizes this exception or defense on behalf
of the accused, we do not believe that the law can be accused of injustice, or that it
can not be considered as incompatible in the slightest degree with section 5 of the
Philippine bill cited in the decision.
It would be, on the contrary, highly unreasonable and unjust if such a means of
defense were denied to the accused — if solely upon proof by the prosecution of the
disappearance of the person detained, the accused should be held under all
circumstances responsible for this crime, even though he might show by competent
evidence the whereabouts of the person or proof that he had set him at liberty.
It is said that this exculpatory evidence required by article 483 would be accusatory
for the purpose of article 481, because the mere statement as to the whereabouts of
the victim or proof that the accused had set him at liberty implies the confession that
the accused did kidnap that person.
This argument would be weighty if the introduction of this testimony were not wholly
voluntary or optional on the part of the accused. The law gives him this means of
defense. It is for him to determine whether it is for his benefit to avail himself of it or
not. In the course of the trial the accused has an opportunity to inform himself of the
evidence for the prosecution, and in view of that evidence to adopt such a plan of
defense as may best suit him. If the evidence of his guilt is insufficient, if the
prosecution does not prove the detention, and furthermore the disappearance of the
supposed victim, the accused even if guilty, may remain silent, and certainty will do so
as to the whereabouts or liberation of the person detained, and may do so with the
complete assurance that his silence will not in the slightest degree be prejudicial to
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him, and that he can not by virtue of that silence be sentenced to any penalty
whatever.
If on the contrary he sees that the evidence of the prosecution is conclusive, if he
sees that it clearly establishes his guilt, if he feels that it is absolutely convincing, if in
fine he feels that he is helpless to overcome that evidence completely, would he not
instinctively realize, no matter how obtuse he may be, that inasmuch as it is no longer
possible for him to avoid conviction, it would be better for him to elect to suffer the
lesser penalty by giving information as to the whereabouts of his victim? If he does so
he does so freely and for his own convenience, and not because he is presumed by
the law without evidence to be guilty, for it has been demonstrated that then as now
the presumption of the innocence of the accused was a principle deeply rooted in the
former system of procedure. Upon this supposition, even if the accused does by
implication admit the fact of the illegal detention he would be benefited thereby,
because he would thus avoid the heavier penalty imposed for the disappearance of
the person detained, and which we assume has been established by the prosecution
by sufficient evidence.
And what, we ask, but this very thing, occurs with respect to the allegation and proof
of mitigating circumstances? A defendant who alleges mitigating circumstances by
implication admits the commission of the crime with which he is charged, and seeks
solely by means of that allegation to obtain a reduction of the penalty. Can it be said
on that account that the law which establishes mitigating circumstances is
unconstitutional and unjust? Can it be said with reason that such a law compels the
accused to incriminate himself because it puts before him the alternative of suffering
the entire penalty prescribed for the crime, or alleging some mitigating circumstance,
confessing the commission of the offense in order to obtain a reduction of the
penalty? We can not in truth see any difference whatever between the confession of
guilt implied by allegation of a mitigating circumstance and that involved in the fact of
giving information of the whereabouts of the person detained, in crimes if illegal
detention.
Apart from this, it is not true that such a statement always implies the confession of
illegal detention. On the contrary, it would be in many cases a complete denial of it. In
the present case, for example, the accused, without testifying at all, might have
proved that Felix Punsalan is living at such and such a place in the Province of
Bulacan, without this statement necessarily carrying with it the conclusion that they
admit even by implication that they had sequestered him, for they might very well
have knowledge of his present whereabouts without having been guilty of
sequestering or detaining him. And if the proof should be sufficient to show that
Punsalan was in that place during all the month of November, 1901, the date on
which the crime in question is alleged to have been committed, and that he remained
there, entirely at liberty from that time down to the present, this fact would show
furthermore the falsity if the alleged illegal detention of that individual.
The natural tendency of an accused person is to evade, if possible, the penalty. If the
evidence for the prosecution is such as to make it impossible to evade the penalty,
then his tendency is to elect to suffer the lightest penalty which the law authorizes. In
case of paragraph 2 of article 483 of the Penal Code, the law does not condemn the
accused because of his remaining silent during the trial or because he fails to give
information of the whereabouts of the person detained. If the law convicts him it is
upon the supposition that the prosecution has fully established the fact of the illegal
detention and the fact of the disappearance of the person detained. It does not
convict the accused without evidence or by reason of his silence. It convicts him when
those two facts which constitute the crime defined in that article have been proven.
Page 93 of 236
But the law, while demanding that proof from the prosecution, at the same time takes
into consideration that it may be overcome by the accused, if not with respect to the
fact of the detention itself, which may be absolutely proven, at least with respect to
the disappearance of the victim, and therefore the law commands that the accused be
heard and that the evidence which he may offer on the point be considered, when he
— admitting his guilt of illegal detention in view of the evidence for the prosecution —
voluntarily determines to give information as to the whereabouts or liberation of the
person detained. The law grants him this exception or defense, but does not impose it
upon him. It constitutes a right but not an obligation. For the reasons stated we find no
incompatibility between the provisions of paragraph 2 of article 483 of the Penal Code
and section 5 of the Philippine bill of July 1, 1902. And taking into consideration the
legal doctrine that "posteriores leges ad priores pertinent, nisi contrario sint," we are
of the opinion that it has not repealed by implication — and it certainly has not done
so expressly — the provision in question of the Penal Code.
If this article had so been repealed and its principles could not therefore be applied to
these accused, neither could they be punished, strictly speaking, under article 482 of
the code, cited in the decision of the majority, because that article is based upon the
fundamental supposition that the person detained has recovered his liberty, which is
not the fact in the case at bar.
SUMMARY
FACTS:
The defendants, Baldomero Navarro, Marcelo de Leon, and Fidel Feliciano
are convicted of the crime of illegal detention under Article 481 and of 483 of
the Penal Code. They were sentenced to life imprisonment.
Article 481 of the Penal Code provides that a private person who shall lock up
or detain another, or in any way deprive him of his liberty shall be punished
with the penalty of prision mayor.
The second paragraph of article 483 provides that one who illegally detains
another and fails to give information concerning his whereabouts, or does not
prove that he set him at liberty, shall be punished with cadena temporal in its
maximum degree to life imprisonment.
The punishment for the crime mentioned in article 483 of the Penal Code is
the penalty of cadena temporal in its maximum degree to cadena perpetua,
or in other words one convicted of simply depriving a person of his liberty
may be imprisoned for a term of from six to twelve years and one convicted of
depriving a person of his liberty and who shall not state his whereabouts or
prove that he had set said person at liberty may be punished by
imprisonment for a term of seventeen years four months and one day, to life,
as in this case. In other words, for failure on the part of the defendant to
testify regarding the whereabouts of the person deprived of his liberty, or to
prove that he was set at liberty, the punishment may be increased from
imprisonment for a term of six years to life imprisonment.
On appeal, counsel for the defendants argued that the provisions of the law
has the effect of forcing a defendant to become a witness in his own behalf or
to take a much severer punishment. The burden is put upon him of giving
evidence if he desires to lessen the penalty, or, in other words, of
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incriminating himself, for the very statement of the whereabouts of the victim
or the proof that the defendant set him at liberty amounts to a confession that
the defendant unlawfully detained the person. So the evidence necessary to
clear the defendant, under article 483 of the Penal Code, would have the
effect of convincing him under article 481. It is claimed that such practice is
illegal, since section 5 of the Philippine Bill provides that ". . . no person shall
be compelled in any criminal case to be a witness against himself."
HELD: Yes.
The right against self-incrimination was established on the grounds of public
policy and humanity - of policy, because if the party were required to testify, it
would place the witness under the strongest temptation to commit the crime
of perjury, and of humanity, because it would prevent the extorting of
confessions by duress.
Under the present system, the information must charge the accused with acts
committed by him prior to the filing of the information and which of
themselves constitute an offense against the law. The Government can not
charge a man with one of the necessary elements of an offense and trust to
his making out the rest by availing himself of his right to leave the entire
burden of prosecuting on the prosecution from beginning to end.
If the disclosure thus made would be capable of being used against him as a
confession of crime, or an admission of facts tending to prove the
commission of an offense, such disclosure would be an accusation against
himself.
In the present case, if the defendant disclosed the whereabouts of the person
taken, or shows that he was given his liberty, this disclosure may be used to
obtain a conviction under article 481 of the Penal Code.
PEOPLE VS GUILLEN
FULL TEXT:
Page 95 of 236
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 191756 November 25, 2013
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
JONAS GUILLEN y ATIENZA, Accused-Appellant.
DECISION
DEL CASTILLO, J.:
On appeal is the November 26, 2009 Decision1 of the Court of Appeals CA) in CA-
G.R. CR-H.C. No. 03476 which affirmed the June 10, 2008 Decision2 of the Regional
Trial Court RTC) of Manila, Branch 48 finding appellant Jonas Guillen y Atienza
guilty beyond reasonable doubt of the crime of rape.
On May 31, 2002, an Information3 was filed charging appellant with the crime of
rape, the accusatory portion of which reads as follows:
That on or about May 20, 2002, in the City of Manila, Philippines, the said accused,
by means of force, violence and intimidation, by entering the room of "AAA",4 poking
a balisong at her neck, forcing her to lie down on the floor, pressing her with his
thighs and removing her duster and panty and thereafter pulling down his brief and
shorts, did then and there wilfully, unlawfully and feloniously [insert] his penis into her
vagina and succeeded in having carnal knowledge of "AAA" against the latter’s will
and consent, thereby gravely endangering her growth and development to the
damage and prejudice of the said "AAA".
Contrary to law.
When arraigned on July 11, 2002, appellant pleaded not guilty.5
Factual Antecedents
The version of the prosecution as summarized by the Office of the Solicitor General
(OSG) are as follows:
On May 20, 2002, around 12 midnight, x x x "AAA" was inside her room on the
second floor of a two-storey house located at x x x Sampaloc, Manila. At that time
"AAA" was playing cards x x x while waiting for her common-law husband to arrive.
Momentarily, someone knocked at the door. When "AAA" opened the door, appellant
Jonas Guillen y Atienza, who was her neighbor, entered the room and suddenly
poked a balisong on her neck. Appellant then turned off the lights, removed his
clothes, placed himself on top of "AAA," and inserted his penis inside her private
parts. After the rape was consummated, appellant stood up and casually left the
room.
x x x "AAA" immediately went out and x x x sought assistance from her sister-in-law.
After being told of the incident, "AAA’s" sister-in-law contacted the police. When the
responding police officers arrived, appellant, who was readily identified by "AAA"
since he was her neighbor, was immediately arrested.
Per request for a medico legal examination prepared by P/Sr. Supt. Amador Serrano
Pabustan of the Western Police District, "AAA" was brought to the National Bureau
of Investigation (NBI) for physical examination. Dra. Annabelle Soliman, NBI medico-
legal officer, conducted medical and genital examinations on "AAA". The Preliminary
Report dated May 20, 2002 issued by Dra. Soliman shows the following findings: 1)
With extragenital physical injury noted; 2) Healed hymenal laceration present; and 3)
Pending laboratory examination result.
The Medico-Legal Report Number MG-02-366 issued by Dra. Soliman shows that
private complainant’s hymen had "deep healed laceration at 7 o’clock position;"
Page 96 of 236
positive for spermatozoa; and that there was "evident sign of extragenital physical
injury noted on the body of the subject at the time of the examination.6
Appellant denied the charge against him. He claimed that he had a drinking spree at
Galas, Quezon City and went home to Sampaloc, Manila at around 1:00 o’clock in
the morning of May 20, 2002. He surmised that "AAA" filed the charge against him
because of his prior altercation with "AAA’s" husband.
Ruling of the Regional Trial Court
In a Decision dated June 10, 2008, the trial court found appellant guilty as charged.
The dispositive portion of the Decision reads:
WHEREFORE, the Court finds accused JONAS GUILLEN Y ATIENZA guilty beyond
reasonable doubt for the felony of RAPE and pursuant to law, he is sentenced to
suffer a prison term of reclusion perpetua and to pay victim the following:
P50,000.00 as moral damages;
P30,000.00 as exemplary damages; and
To pay the cost.
The BJMP of the Manila City Jail is ordered to commit the accused to the National
Bilibid Prison without unnecessary delay.
SO ORDERED.7
Aggrieved, appellant filed a Notice of Appeal8 which was given due course by the
trial court in its Order9 dated June 13, 2008.
Ruling of the Court of Appeals
After the filing of the parties’ briefs, the CA rendered its Decision disposing as
follows:
WHEREFORE, in the light of all the foregoing, the instant appeal is DISMISSED for
lack of merit. The decision of the trial court dated June 10, 2008 is AFFIRMED.
SO ORDERED.10
Hence, this appeal.
ISSUE
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT OF RAPE DESPITE THE PROSECUTION’S FAILURE TO
OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE IN HIS
FAVOR.11
Appellant claims that the trial court gravely erred when it deemed his silence at the
police station immediately after his arrest as an implied admission of guilt. He also
argues that aside from being incredible, "AAA’s" testimony is insufficient to establish
his guilt beyond reasonable doubt. Moreover, he insists that "AAA’s" healed
lacerations do not prove that he indeed raped "AAA."
OUR RULING
The appeal lacks merit.
Indeed, records show that appellant remained silent and passive despite being
confronted by "AAA" with the rape charge at the police station immediately after his
arrest. In taking appellant’s silence as an implied admission of guilt, the RTC
ratiocinated that:
Owing to the complaint of the victim, the accused was apprehended by responding
police officer[s] of the Sampaloc Police Station. At the police precinct, the accused
was presented to the victim and [he] was positively identified as the person who
raped her. At this juncture, the accused after he was positively identified as the
malefactor who sexually molested and raped the victim x x x just [remained] SILENT.
In other words, he did not DENY the accusation lodged against him by the victim
much less register any vehement PROTEST at the station.
The aforesaid blatant FAILURE of the accused to deny victim’s complaint against
him is equivalent to an IMPLIED ADMISSION of guilt. Assuming arguendo that he is
Page 97 of 236
innocent of the accusation filed against him, he should have stood firm in his
contention that he didn’t rape/abuse the victim and should have stressed at the
police station that on the date and time of the incident he was having a drinking
spree with his friends.
A person who is accused of a felony/offense which he did not commit should be as
BOLD and FEROCIOUS as a LION in protecting the trampled rights as an innocent
person.12
Appellant claims that his silence should not be used against him as he was just
exercising his constitutional right to remain silent.
We agree with the appellant.
It should be borne in mind that when appellant was brought to the police station, he
was already a suspect to the crime of rape. As such, he was already under custodial
investigation. Section 12, Article III of the Constitution explicitly provides, viz:
Any person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be waived except in
writing and in the presence of counsel.
Clearly, when appellant remained silent when confronted by the accusation of "AAA"
at the police station, he was exercising his basic and fundamental right to remain
silent. At that stage, his silence should not be taken against him. Thus, it was error
on the part of the trial court to state that appellant’s silence should be deemed as
implied admission of guilt. In fact, this right cannot be waived except in writing and in
the presence of counsel and any admission obtained in violation of this rule shall be
inadmissible in evidence.13
In any case, we agree with the Decision of the trial court, as affirmed by the CA,
finding appellant guilty of the crime of rape. The trial court’s Decision convicting
appellant of rape was anchored not solely on his silence and so-called implied
admission. More importantly, it was based on the testimony of "AAA" which, standing
alone, is sufficient to establish his guilt beyond reasonable doubt.
Article 266-A of the Revised Penal Code specifically provides that rape may be
committed by a man who shall have carnal knowledge of a woman through force,
threats or intimidation. In this case, "AAA" categorically testified that appellant
forcibly undressed her, poked a knife at her neck, and inserted his penis into her
vagina without her consent and against her will. Thus, all elements of the crime of
rape were duly established from the testimony of "AAA". Moreover, "AAA" positively
identified appellant as her assailant.
Appellant could only offer alibi and denial as his defenses. However, alibi and denial
are weak defenses especially when measured up against the positive identification
made by the victim pointing to appellant as the malefactor. Besides, appellant failed
to prove that it was physically impossible for him to be at the crime scene at the time
of its commission. Aside from claiming that he was at Galas, Quezon City when the
rape incident happened, he failed to submit any proof to show that it is physically
impossible for him to be at Sampaloc, Manila where and when the rape happened.
Besides, appellant’s alibi crumbles in the face of his apprehension near the scene of
the crime immediately after "AAA" reported the incident to the police authorities.
We are not persuaded by appellant’s contention that he could not have raped "AAA"
inside her room as the discovery of the crime would have been more likely
considering its proximity to the room of "AAA’s" sister-in-law. Jurisprudence teaches
us that rape may be committed even in places where people congregate. Thus, it is
not impossible or unlikely that rape is perpetrated inside a room adjacent to a room
occupied by other persons, as in this case.
Page 98 of 236
Likewise, the failure of "AAA" to shout for help should not be taken against
her.1âwphi1 People react differently when confronted with a shocking or startling
situation. Some may show aggressive resistance while others may opt to remain
passive. The failure of "AAA" to shout for help and seek assistance should not be
construed as consent, or as voluntarily engaging in an illicit relationship with the
appellant, as implied by the defense. It would be recalled that appellant poked a knife
at "AAA’s" neck. Such threat of immediate danger to her life cowed "AAA" to submit
to the carnal desires of the appellant. However, immediately after appellant left,
"AAA" lost no time in seeking the help of her sister-in-law and in reporting the
incident to the police authorities. In fact, the police authorities were able to
apprehend appellant because "AAA" immediately reported the incident to them.
Anent appellant’s contention that "AAA’s" healed hymenal laceration does not prove
rape, we find the same irrelevant and immaterial. Hymenal laceration, whether fresh
or healed, is not an element of the crime of rape. Even a medical examination is not
necessary as it is merely corroborative. As we mentioned before, the fact of rape in
this case was satisfactorily established by the testimony of "AAA" alone.
All the elements of rape having been established beyond reasonable doubt, both the
trial court and the CA properly found appellant guilty as charged and correctly
imposed on him the penalty of reclusion perpetua.14
The RTC, as affirmed by the CA, awarded "AAA" moral damages of P50,000.00,
exemplary damages of P30,000.00 and cost of suit. In line with prevailing
jurisprudence, "AAA" is also entitled to an award of civil indemnity of P50,000.00. In
addition, all damages awarded shall earn interest at the rate of 6 per annum from
date of finality of judgment until fully paid.
WHEREFORE, the appeal is DISMISSED. The November 26, 2009 Decision of the
Court of Appeals in CA-G.R. CR-H.C. No. 03476 which affirmed the June 10, 2008
Decision of the Regional Trial Court of Manila, Branch 48 finding appellant Jonas
Guillen y Atienza guilty beyond reasonable doubt of the crime of rape and sentencing
him to suffer the penalty of reclusion perpetua is AFFIRMED with MODIFICATIONS
that appellant is further ordered to pay AAA civil indemnity in the amount
of P50,000.00 and interest on all damages awarded at the rate of 6% per annum
from date of finality of judgment until fully paid.
SO ORDERED.
Page 99 of 236
SILVERIO VS CA
FULL TEXT:
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 94284 April 8, 1991
RICARDO C. SILVERIO, petitioner,
vs.
THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the
Regional Trial Court of Cebu City, Branch IX, and PEOPLE OF THE
PHILIPPINES, respondents.
Quisumbing, Torres & Evangelista for petitioner.
MELENCIO-HERRERA, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
praying that the Decision of respondent Court of Appeals in CA-G.R. SP No. 15827,
entitled "Ricardo C. Silverio vs. Hon. Benigno C. Gaviola, etc., et al.," dated 31
January 1990, as well as the Resolution of 29 June 1990 denying reconsideration,
be set aside.
On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the
Revised Securities Act in Criminal Case No. CBU-6304 of the Regional Trial Court of
Cebu. In due time, he posted bail for his provisional liberty.
On 26 January 1988, or more than two (2) years after the filing of the Information,
respondent People of the Philippines filed an Urgent ex parte Motion to cancel the
passport of and to issue a hold-departure Order against accused-petitioner on the
ground that he had gone abroad several times without the necessary Court approval
resulting in postponements of the arraignment and scheduled hearings.
Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order
directing the Department of Foreign Affairs to cancel Petitioner's passport or to deny
his application therefor, and the Commission on Immigration to prevent Petitioner
from leaving the country. This order was based primarily on the Trial Court's finding
that since the filing of the Information on 14 October 1985, "the accused has not yet
Page 100 of 236
been arraigned because he has never appeared in Court on the dates scheduled for
his arraignment and there is evidence to show that accused Ricardo C. Silverio, Sr.
has left the country and has gone abroad without the knowledge and permission of
this Court" (Rollo, p. 45). Petitioner's Motion for Reconsideration was denied on 28
July 1988.
Petitioner's Certiorari Petition before the Court of Appeals met a similar fate on 31
January 1990. Hence, this Petition for Review filed on 30 July 1990.
After the respective pleadings required by the Court were filed, we resolved to give
due course and to decide the case.
Petitioner contends that respondent Court of Appeals erred in not finding that the
Trial Court committed grave abuse of discretion amounting to lack of jurisdiction in
issuing its Orders, dated 4 April and 28 July 1988, (1) on the basis of facts allegedly
patently erroneous, claiming that the scheduled arraignments could not be held
because there was a pending Motion to Quash the Information; and (2) finding that
the right to travel can be impaired upon lawful order of the Court, even on grounds
other than the "interest of national security, public safety or public health."
We perceive no reversible error.
1) Although the date of the filing of the Motion to Quash has been omitted by
Petitioner, it is apparent that it was filed long after the filing of the Information in 1985
and only after several arraignments had already been scheduled and cancelled due
to Petitioner's non-appearance. In fact, said Motion to Quash was set for hearing
only on 19 February 1988. Convincingly shown by the Trial Court and conformed to
by respondent Appellate Court is the concurrence of the following circumstances:
1. The records will show that the information was filed on October 14, 1985.
Until this date (28 July 1988), the case had yet to be arraigned. Several
scheduled arraignments were cancelled and reset, mostly due to the failure of
accused Silverio to appear. The reason for accused Silverio's failure to
appear had invariably been because he is abroad in the United States of
America;
2. Since the information was filed, until this date, accused Silverio had never
appeared in person before the Court;
3. The bond posted by accused Silverio had been cancelled twice and
warrants of arrest had been issued against him all for the same reason ––
failure to appear at scheduled arraignments.
In all candidness, the Court makes the observation that it has given accused
Silverio more than enough consideration. The limit had long been reached
(Order, 28 July 1988, Crim. Case No. CBU-6304, RTC, Cebu, p. 5; Rollo, p.
73).
Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July
1988, were not based on erroneous facts, as Petitioner would want this Court to
believe. To all appearances, the pendency of a Motion to Quash came about only
after several settings for arraignment had been scheduled and cancelled by reason
of Petitioner's non-appearance.
2) Petitioner's further submission is that respondent Appellate Court "glaringly erred"
in finding that the right to travel can be impaired upon lawful order of the Court, even
on grounds other than the "interest of national security, public safety or public
health."
To start with, and this has not been controverted by Petitioner, the bail bond he had
posted had been cancelled and Warrants of Arrest had been issued against him by
reason, in both instances, of his failure to appear at scheduled arraignments.
Warrants of Arrest having been issued against him for violation of the conditions of
his bail bond, he should be taken into custody. "Bail is the security given for the
Page 101 of 236
release of a person in custody of the law, furnished by him or a bondsman,
conditioned upon his appearance before any court when so required by the Court or
the Rules (1985 Rules on Criminal Procedure, as amended, Rule 114, Secs. 1 and
2).
The foregoing condition imposed upon an accused to make himself available at all
times whenever the Court requires his presence operates as a valid restriction of his
right to travel (Manotoc, Jr. vs. Court of Appeals, et al. No. 62100, 30 May 1986, 142
SCRA 149). A person facing criminal charges may be restrained by the Court from
leaving the country or, if abroad, compelled to return (Constitutional Law, Cruz,
Isagani A., 1987 Edition, p. 138). So it is also that "An accused released on bail may
be re-arrested without the necessity of a warrant if he attempts to depart from the
Philippines without prior permission of the Court where the case is pending (ibid.,
Sec. 20 [2nd
par. ]).
Petitioner takes the posture, however, that while the 1987 Constitution recognizes
the power of the Courts to curtail the liberty of abode within the limits prescribed by
law, it restricts the allowable impairment of the right to travel only on grounds of
interest of national security, public safety or public health, as compared to the
provisions on freedom of movement in the 1935 and 1973 Constitutions.
Under the 1935 Constitution, the liberty of abode and of travel were treated under
one provision.1âwphi1 Article III, Section 1(4) thereof reads:
The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired.
The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel,
thus:
The liberty of abode and of travel shall not be impaired except upon lawful
order of the court or when necessary in the interest of national security, public
safety, or public health (Article IV, Section 5).
The 1987 Constitution has split the two freedoms into two distinct sentences and
treats them differently, to wit:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.
Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right
to travel only on the grounds of "national security, public safety, or public health."
The submission is not well taken.
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while
the liberty of travel may be impaired even without Court Order, the appropriate
executive officers or administrative authorities are not armed with arbitrary discretion
to impose limitations. They can impose limits only on the basis of "national security,
public safety, or public health" and "as may be provided by law," a limitive phrase
which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol.
I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution
was a reaction to the ban on international travel imposed under the previous regime
when there was a Travel Processing Center, which issued certificates of eligibility to
travel upon application of an interested party (See Salonga vs. Hermoso & Travel
Processing Center, No. 53622, 25 April 1980, 97 SCRA 121).
Article III, Section 6 of the 1987 Constitution should by no means be construed as
delimiting the inherent power of the Courts to use all means necessary to carry their
orders into effect in criminal cases pending before them. When by law jurisdiction is
conferred on a Court or judicial officer, all auxillary writs, process and other means
Page 102 of 236
necessary to carry it into effect may be employed by such Court or officer (Rule 135,
Section 6, Rules of Court).
Petitioner's argument that the ruling in Manotoc, Jr., v. Court of Appeals, et al.
(supra), to the effect that the condition imposed upon an accused admitted to bail to
make himself available at all times whenever the Court requires his presence
operates as a valid restriction on the right to travel no longer holds under the 1987
Constitution, is far from tenable. The nature and function of a bail bond has remained
unchanged whether under the 1935, the 1973, or the 1987 Constitution. Besides,
the Manotoc ruling on that point was but a re-affirmation of that laid down long before
in People v. Uy Tuising, 61 Phil. 404 (1935).
Petitioner is facing a criminal charge. He has posted bail but has violated the
conditions thereof by failing to appear before the Court when required. Warrants for
his arrest have been issued. Those orders and processes would be rendered
nugatory if an accused were to be allowed to leave or to remain, at his pleasure,
outside the territorial confines of the country. Holding an accused in a criminal case
within the reach of the Courts by preventing his departure from the Philippines must
be considered as a valid restriction on his right to travel so that he may be dealt with
in accordance with law. The offended party in any criminal proceeding is the People
of the Philippines. It is to their best interest that criminal prosecutions should run their
course and proceed to finality without undue delay, with an accused holding himself
amenable at all times to Court Orders and processes.
WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against
petitioner, Ricardo C. Silverio.
SO ORDERED.
SUMMARY:
cts:
Petitioner was charged with violation of Section 20 (4) of the Revised
Securities Act in Criminal Case of the Regional Trial Court of Cebu. In due time, he
posted bail for his provisional liberty.
More than two (2) years after the filing of the Information, respondent People of the
Philippines filed an Urgent ex parte Motion to cancel the passport of and to issue a
hold-departure Order against accused-petitioner on the ground that he had gone
abroad several times without the necessary Court approval resulting in
postponements of the arraignment and scheduled hearings.
Overruling opposition, the Regional Trial Court issued an Order directing the
Department of Foreign Affairs to cancel Petitioner’s passport or to deny his
application therefor, and the Commission on Immigration to prevent Petitioner from
leaving the country. This order was based primarily on the Trial Court’s finding that
since the filing of the Information, “the accused has not yet been arraigned because
he has never appeared in Court on the dates scheduled for his arraignment and
there is evidence to show that accused Ricardo C. Silverio, Sr. has left the country
and has gone abroad without the knowledge and permission of this Court”.
Petitioner’s Motion for Reconsideration was denied.
Issue:
Whether or not the right to travel may be impaired by order of the court
Ruling:
The Supreme Court held that the foregoing condition imposed upon an
accused to make himself available at all times whenever the Court requires his
presence operates as a valid restriction of his right to travel. A person facing criminal
charges may be restrained by the Court from leaving the country or, if abroad,
compelled to return. So it is also that “An accused released on bail may be re-
Page 103 of 236
arrested without the necessity of a warrant if he attempts to depart from the
Philippines without prior permission of the Court where the case is pending.
Petitioner takes the posture, however, that while the 1987 Constitution
recognizes the power of the Courts to curtail the liberty of abode within the limits
prescribed by law, it restricts the allowable impairment of the right to travel only on
grounds of interest of national security, public safety or public health, as compared to
the provisions on freedom of movement in the 1935 and 1973 Constitutions.
DECISION
DEL CASTILLO, J.:
“The concept of liberty would be emasculated if it does not likewise compel respect
for [one’s] personality as a unique individual whose claim to privacy and [non]-
interference demands respect.”1
This Petition for Review on Certiorari2 under Rule 45 of the Rules of Court assails
the July 10, 2007 Decision3 and the September 11, 2007 Resolution4 of the Court of
Appeals (CA) in CA-G.R. CEB-SP No. 01473.
Factual Antecedents
On August 23, 2005, petitioner-spouses Bill and Victoria Hing filed with the Regional
Trial Court (RTC) of Mandaue City a Complaint5 for Injunction and Damages with
prayer for issuance of a Writ of Preliminary Mandatory Injunction/Temporary
Restraining Order (TRO), docketed as Civil Case MAN-5223 and raffled to Branch
Page 104 of 236
28, against respondents Alexander Choachuy, Sr. and Allan Choachuy.
Petitioners alleged that they are the registered owners of a parcel of land (Lot 1900-
B) covered by Transfer Certificate of Title (TCT) No. 42817 situated in Barangay
Basak, City of Mandaue, Cebu;6that respondents are the owners of Aldo
Development & Resources, Inc. (Aldo) located at Lots 1901 and 1900-C, adjacent to
the property of petitioners;7 that respondents constructed an auto-repair shop
building (Aldo Goodyear Servitec) on Lot 1900-C; that in April 2005, Aldo filed a case
against petitioners for Injunction and Damages with Writ of Preliminary
Injunction/TRO, docketed as Civil Case No. MAN-5125;8 that in that case, Aldo
claimed that petitioners were constructing a fence without a valid permit and that the
said construction would destroy the wall of its building, which is adjacent to
petitioners’ property;9 that the court, in that case, denied Aldo’s application for
preliminary injunction for failure to substantiate its allegations;10 that, in order to get
evidence to support the said case, respondents on June 13, 2005 illegally set-up and
installed on the building of Aldo Goodyear Servitec two video surveillance cameras
facing petitioners’ property;11 that respondents, through their employees and without
the consent of petitioners, also took pictures of petitioners’ on-going
construction;12 and that the acts of respondents violate petitioners’ right to
privacy.13 Thus, petitioners prayed that respondents be ordered to remove the video
surveillance cameras and enjoined from conducting illegal surveillance.14
In their Answer with Counterclaim,15 respondents claimed that they did not install the
video surveillance cameras,16 nor did they order their employees to take pictures of
petitioners’ construction.17 They also clarified that they are not the owners of Aldo but
are mere stockholders.18
On October 18, 2005, the RTC issued an Order19 granting the application for a
TRO. The dispositive portion of the said Order reads:cralavvonlinelawlibrary
WHEREFORE, the application for a [T]emporary [R]estraining [O]rder or a [W]rit of
[P]reliminary [I]njunction is granted. Upon the filing and approval of a bond by
[petitioners], which the Court sets at P50,000.00, let a [W]rit of [P]reliminary
[I]njunction issue against the [respondents] Alexander Choachuy, Sr. and Allan
Choachuy. They are hereby directed to immediately remove the revolving camera
that they installed at the left side of their building overlooking the side of [petitioners’]
lot and to transfer and operate it elsewhere at the back where [petitioners’] property
can no longer be viewed within a distance of about 2-3 meters from the left corner of
Aldo Servitec, facing the road.
IT IS SO ORDERED.20
Respondents moved for a reconsideration21 but the RTC denied the same in its
Order22 dated February 6, 2006.23 Thus:cralavvonlinelawlibrary
WHEREFORE, the Motion for Reconsideration is hereby DENIED for lack of
merit. Issue a [W]rit of [P]reliminary [I]njunction in consonance with the Order dated
18 October 2005.
IT IS SO ORDERED.24nadcralavvonlinelawlibrary
Aggrieved, respondents filed with the CA a Petition for Certiorari25 under Rule 65 of
Page 105 of 236
the Rules of Court with application for a TRO and/or Writ of Preliminary Injunction.
On July 10, 2007, the CA issued its Decision26 granting the Petition
for Certiorari. The CA ruled that the Writ of Preliminary Injunction was issued with
grave abuse of discretion because petitioners failed to show a clear and
unmistakable right to an injunctive writ.27 The CA explained that the right to privacy
of residence under Article 26(1) of the Civil Code was not violated since the property
subject of the controversy is not used as a residence.28 The CA also said that since
respondents are not the owners of the building, they could not have installed video
surveillance cameras.29 They are mere stockholders of Aldo, which has a separate
juridical personality.30 Thus, they are not the proper
parties.31 The fallo reads:cralavvonlinelawlibrary
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by
us GRANTING the petition filed in this case. The assailed orders dated October 18,
2005 and February 6, 2006 issued by the respondent judge are
hereby ANNULLED and SET ASIDE.
SO ORDERED.32nadcralavvonlinelawlibrary
Issues
Essentially, the issues boil down to (1) whether there is a violation of petitioners’ right
to privacy, and (2) whether respondents are the proper parties to this suit.
Petitioners’ Arguments
Petitioners insist that they are entitled to the issuance of a Writ of Preliminary
Injunction because respondents’ installation of a stationary camera directly facing
petitioners’ property and a revolving camera covering a significant portion of the
same property constitutes a violation of petitioners’ right to privacy.34 Petitioners cite
Article 26(1) of the Civil Code, which enjoins persons from prying into the private
lives of others.35 Although the said provision pertains to the privacy of another’s
residence, petitioners opine that it includes business offices, citing Professor Arturo
M. Tolentino.36 Thus, even assuming arguendo that petitioners’ property is used for
business, it is still covered by the said provision.37
As to whether respondents are the proper parties to implead in this case, petitioners
claim that respondents and Aldo are one and the same, and that respondents only
want to hide behind Aldo’s corporate fiction.38 They point out that if respondents are
not the real owners of the building, where the video surveillance cameras were
installed, then they had no business consenting to the ocular inspection conducted
by the court.39
Respondents’ Arguments
Respondents, on the other hand, echo the ruling of the CA that petitioners cannot
invoke their right to privacy since the property involved is not used as a
residence.40 Respondents maintain that they had nothing to do with the installation of
the video surveillance cameras as these were installed by Aldo, the registered owner
of the building,41 as additional security for its building. 42 Hence, they were wrongfully
impleaded in this case.43
Our Ruling
The right to privacy is enshrined in our Constitution44 and in our laws. It is defined as
“the right to be free from unwarranted exploitation of one’s person or from intrusion
into one’s private activities in such a way as to cause humiliation to a person’s
ordinary sensibilities.”45 It is the right of an individual “to be free from unwarranted
publicity, or to live without unwarranted interference by the public in matters in which
the public is not necessarily concerned.”46 Simply put, the right to privacy is “the
right to be let alone.”47
The Bill of Rights guarantees the people’s right to privacy and protects them against
the State’s abuse of power. In this regard, the State recognizes the right of the
people to be secure in their houses. No one, not even the State, except “in case of
overriding social need and then only under the stringent procedural safeguards,” can
disturb them in the privacy of their homes.48
Page 107 of 236
The right to privacy under Article 26(1)
of the Civil Code covers business offices
where the public are excluded therefrom
and only certain individuals are allowed
to enter.
Article 26(1) of the Civil Code, on the other hand, protects an individual’s right to
privacy and provides a legal remedy against abuses that may be committed against
him by other individuals. It states:cralavvonlinelawlibrary
Art. 26. Every person shall respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons. The following and similar acts, though they
may not constitute a criminal offense, shall produce a cause of action for damages,
prevention and other relief:cralavvonlinelawlibrary
xxxx
This provision recognizes that a man’s house is his castle, where his right to privacy
cannot be denied or even restricted by others. It includes “any act of intrusion into,
peeping or peering inquisitively into the residence of another without the consent of
the latter.”49 The phrase “prying into the privacy of another’s residence,” however,
does not mean that only the residence is entitled to privacy. As elucidated by Civil
law expert Arturo M. Tolentino:cralavvonlinelawlibrary
Our Code specifically mentions “prying into the privacy of another’s residence.” This
does not mean, however, that only the residence is entitled to privacy, because the
law covers also “similar acts.” A business office is entitled to the same privacy
when the public is excluded therefrom and only such individuals as are
allowed to enter may come in. x x x50 (Emphasis supplied)
Thus, an individual’s right to privacy under Article 26(1) of the Civil Code should not
be confined to his house or residence as it may extend to places where he has the
right to exclude the public or deny them access. The phrase “prying into the privacy
of another’s residence,” therefore, covers places, locations, or even situations which
an individual considers as private. And as long as his right is recognized by society,
other individuals may not infringe on his right to privacy. The CA, therefore, erred in
limiting the application of Article 26(1) of the Civil Code only to residences.
In ascertaining whether there is a violation of the right to privacy, courts use the
“reasonable expectation of privacy” test. This test determines whether a person has
a reasonable expectation of privacy and whether the expectation has been
violated.51 In Ople v. Torres,52 we enunciated that “the reasonableness of a person’s
expectation of privacy depends on a two-part test: (1) whether, by his conduct, the
individual has exhibited an expectation of privacy; and (2) this expectation is one that
society recognizes as reasonable.” Customs, community norms, and practices may,
therefore, limit or extend an individual’s “reasonable expectation of
privacy.”53 Hence, the reasonableness of a person’s expectation of privacy must be
Page 108 of 236
determined on a case-to-case basis since it depends on the factual circumstances
surrounding the case.54
In this day and age, video surveillance cameras are installed practically everywhere
for the protection and safety of everyone. The installation of these cameras,
however, should not cover places where there is reasonable expectation of privacy,
unless the consent of the individual, whose right to privacy would be affected, was
obtained. Nor should these cameras be used to pry into the privacy of another’s
residence or business office as it would be no different from eavesdropping, which is
a crime under Republic Act No. 4200 or the Anti-Wiretapping Law.
In this case, the RTC, in granting the application for Preliminary Injunction, ruled
that:cralavvonlinelawlibrary
After careful consideration, there is basis to grant the application for a temporary
restraining order. The operation by [respondents] of a revolving camera, even if it
were mounted on their building, violated the right of privacy of [petitioners], who are
the owners of the adjacent lot. The camera does not only focus on [respondents’]
property or the roof of the factory at the back (Aldo Development and Resources,
Inc.) but it actually spans through a good portion of [the] land of [petitioners].
Based on the ocular inspection, the Court understands why [petitioner] Hing was so
unyielding in asserting that the revolving camera was set up deliberately to monitor
the on[-]going construction in his property. The monitor showed only a portion of the
roof of the factory of [Aldo]. If the purpose of [respondents] in setting up a camera at
the back is to secure the building and factory premises, then the camera should
revolve only towards their properties at the back. [Respondents’] camera cannot be
made to extend the view to [petitioners’] lot. To allow the [respondents] to do that
over the objection of the [petitioners] would violate the right of [petitioners] as
property owners. “The owner of a thing cannot make use thereof in such a manner
as to injure the rights of a third person.”55
This brings us to the next question: whether respondents are the proper parties to
this suit.
A real party defendant is “one who has a correlative legal obligation to redress a
wrong done to the plaintiff by reason of the defendant’s act or omission which had
violated the legal right of the former.”57
In ruling that respondents are not the proper parties, the CA reasoned that since they
do not own the building, they could not have installed the video surveillance
cameras.58 Such reasoning, however, is erroneous. The fact that respondents are
not the registered owners of the building does not automatically mean that they did
not cause the installation of the video surveillance cameras.
Moreover, although Aldo has a juridical personality separate and distinct from its
stockholders, records show that it is a family-owned corporation managed by the
Choachuy family.63
Also quite telling is the fact that respondents, notwithstanding their claim that they
are not owners of the building, allowed the court to enter the compound of Aldo and
conduct an ocular inspection. The counsel for respondents even toured Judge
Marilyn Lagura-Yap inside the building and answered all her questions regarding the
set-up and installation of the video surveillance cameras.64 And when respondents
moved for reconsideration of the Order dated October 18, 2005 of the RTC, one of
the arguments they raised is that Aldo would suffer damages if the video surveillance
cameras are removed and transferred.65 Noticeably, in these instances, the
personalities of respondents and Aldo seem to merge.
All these taken together lead us to the inevitable conclusion that respondents are
merely using the corporate fiction of Aldo as a shield to protect themselves from this
suit. In view of the foregoing, we find that respondents are the proper parties to this
suit.
WHEREFORE, the Petition is hereby GRANTED. The Decision dated July 10, 2007
and the Resolution dated September 11, 2007 of the Court of Appeals in CA-G.R.
CEB-SP No. 01473 are hereby REVERSED and SET ASIDE. The Orders dated
October 18, 2005 and February 6, 200[6] of Branch 28 of the Regional Trial Court of
Mandaue City in Civil Case No. MAN-5223 are
hereby REINSTATED and AFFIRMED.
Page 110 of 236
SO ORDERED.
POLLO VS CONSTANTINO-DAVID
FULL TEXT:
EN BANC
CORONA, C.J.,
CARPIO,
VELASCO, JR.,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,*
ABAD,
VILLARAMA, JR.,
CHAIRPERSON KARINA CONSTANTINO- PEREZ,
DAVID, MENDOZA,
DIRECTOR IV RACQUEL DE GUZMAN SERENO,
BUENSALIDA, REYES, and
DIRECTOR IV LYDIA A. PERLAS-BERNABE, JJ.
CASTILLO, DIRECTOR III
ENGELBERT ANTHONY D. UNITE AND Promulgated:
THE CIVIL SERVICE COMMISSION,
Respondents. October 18, 2011
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
VILLARAMA, JR., J.:
This case involves a search of office computer assigned to a government employee
who was charged administratively and eventually dismissed from the service. The
employees personal files stored in the computer were used by the government
employer as evidence of misconduct.
Before us is a petition for review on certiorari under Rule 45 which seeks to
reverse and set aside the Decision[1] dated October 11, 2007 and
[2]
Resolution dated February 29, 2008 of the Court of Appeals (CA). The CA
dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio
Ricky A. Pollo to nullify the proceedings conducted by the Civil Service Commission
(CSC) which found him guilty of dishonesty, grave misconduct, conduct prejudicial to
the best interest of the service, and violation of Republic Act (R.A.) No. 6713 and
penalized him with dismissal.
The factual antecedents:
Petitioner is a former Supervising Personnel Specialist of the CSC Regional
Office No. IV and also the Officer-in-Charge of the Public Assistance and Liaison
Page 111 of 236
Division (PALD) under the Mamamayan Muna Hindi Mamaya Na program of the
CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to
respondent CSC Chairperson Karina Constantino-David which was marked
Confidential and sent through a courier service (LBC) from a certain Alan San
Pascual of Bagong Silang, Caloocan City, was received by the Integrated Records
Management Office (IRMO) at the CSC Central Office. Following office practice in
which documents marked Confidential are left unopened and instead sent to the
addressee, the aforesaid letter was given directly to Chairperson David.
The letter-complaint reads:
The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
xxxx
No Expectation of Privacy
SUMMARY:
Facts
Several diskettes containing the back-up files sourced from the hard disk of PALD
and LSD computers were turned over to Chairperson David. The contents of the
diskettes were examined by the CSC’s Office for Legal Affairs (OLA). It was found
that most of the files in the 17 diskettes containing files copied from the computer
assigned to and being used by the petitioner, numbering about 40 to 42 documents,
were draft pleadings or lettersin connection with administrative cases in the CSC and
Page 131 of 236
other tribunals. On the basis of this finding, Chairperson David issued the Show-
Cause Order, requiring the petitioner, who had gone on extended leave, to submit
his explanation or counter-affidavit within five days from notice.
In his Comment, petitioner denied the accusations against him and accused the CSC
Officials of “fishing expedition” when they unlawfully copied and printed personal files
in his computer.
He was charged of violating R.A. No. 6713 (Code of Conduct and Ethical Standards
for Public Officials and Employees). He assailed the formal charge and filed an
Omnibus Motion ((For Reconsideration, to Dismiss and/or to Defer) assailing the
formal charge as without basis having proceeded from an illegal search which is
beyond the authority of the CSC Chairman, such power pertaining solely to the court.
The CSC denied the omnibus motion and treated the motion as the petitioner’s
answer to the charge. In view of the absence of petitioner and his counsel, and upon
the motion of the prosecution, petitioner was deemed to have waived his right to the
formal investigation which then proceeded ex parte.
The petitioner was dismissed from service. He filed a petition to the CA which was
dismissed by the latter on the ground that it found no grave abuse of discretion on
the part of the respondents. He filed a motion for reconsideration which was further
denied by the appellate court. Hence, this petition.
Issue
WON the search conducted by the CSC on the computer of the petitioner constituted
an illegal search and was a violation of his constitutional right to privacy
Ruling
The search conducted on his office computer and the copying of his personal files
was lawful and did not violate his constitutional right.
Ratio Decidendi
In this case, the Court had the chance to present the cases illustrative of the issue
raised by the petitioner.
Katz v. United States 389 U.S. 437 (1967), the US Supreme Court held that the act
of FBI agents in electronically recording a conversation made by petitioner in an
enclosed public telephone booth violated his right to privacy and constituted a
“search and seizure”. Because the petitioner had a reasonable expectation of
privacy in using the enclosed booth to make a personal telephone call, the protection
of the Fourth Amendment extends to such area. Moreso, the concurring opinion of
Mr. Justice Harlan noted that the existence of privacy right under prior decisions
involved a two-fold requirement: first, that a person has exhibited an actual
(subjective) expectation of privacy; and second, that the expectation be one that
society is prepared to recognize as reasonable (objective).
Mancusi v. DeForte 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed2d 1154 (1968),thus
“recognized that employees may have a reasonable expectation of privacy against
intrusions by police.”
Page 132 of 236
O’Connor v. Ortega 480 U.S. 709 (1987), the Court categorically declared that
“[i]ndividuals do not lose Fourth Amendment rights merely because they work for the
government instead of a private employer.” In O’Connor the Court recognized that
“special needs” authorize warrantless searches involving public employees for work-
related reasons. The Court thus laid down a balancing test under which government
interests are weighed against the employee’s reasonable expectation of privacy. This
reasonableness test implicates neither probable cause nor the warrant requirement,
which are related to law enforcement.
Social Justice Society (SJS) v. Dangerous Drugs Board G.R. Nos. 157870, 158633
and 161658, November 3, 2008, 570 SCRA 410, 427, (citing Ople v. Torres, G.R.
No. 127685, July 23, 1998, 293 SCRA 141, 169), recognized the fact that there may
be such legitimate intrusion of privacy in the workplace.
The Court ruled that the petitioner did not have a reasonable expectation of privacy
in his office and computer files.
As to the second point of inquiry, the Court answered in the affirmative. The search
authorized by the CSC Chair, the copying of the contents of the hard drive on
petitioner’s computer reasonable in its inception and scope.
The Court noted that unlike in the case of Anonymous Letter-Complaint against Atty.
Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila A.M. Nos. P-08-
2519 and P-08-2520, November 19, 2008, 571 SCRA 361, the case at bar involves
the computer from which the personal files of the petitioner were retrieved is a
government-issued computer, hence government property the use of which the CSC
has absolute right to regulate and monitor.
DISINI VS DOJ
FULL TEXT:
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.
Page 133 of 236
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,
Page 134 of 236
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
Page 135 of 236
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.
Page 136 of 236
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. CASIÑO, 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
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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 CICC’s 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
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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 system’s 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 client’s 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
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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 people’s computer systems and private
documents.
All penal laws, like the cybercrime law, have of course an inherent chilling effect, an
in terrorem effect9 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 one’s 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
clause12 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:
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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 another’s 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
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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
activity—is not novel. Article 201 of the RPC punishes "obscene publications and
exhibitions and indecent shows." The Anti-Trafficking 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.30 The Court will not declare Section 4(c)(1)
unconstitutional where it stands a construction that makes it apply only to persons
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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 200931 (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, ACPA’s 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:
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(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 Python’s 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 owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s privacy since the person sending
out spams enters the recipient’s 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
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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 code37 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 accused’s 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. Society’s 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:
Page 145 of 236
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 of P6,000.00.
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.45For 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 country’s 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 all-encompassing 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 Court’s 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 reader’s
reaction to defamatory statements posted in cyberspace, facilitated by one-click reply
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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 user’s 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 program’s screen such as "Like," "Comment," or "Share."
"Like" signifies that the reader likes the posting while "Comment" enables him to post
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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 content—which could be in the form of text, pictures, links,
short videos, or other media—on the internet. Instead of friends, a Twitter user has
"Followers," those who subscribe to this particular user’s 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 person’s 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 café 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 Maria’s friends who
sees this post, comments online, "Yes, this is so true! They are so immoral." Maria’s
original post is then multiplied by her friends and the latter’s 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. Nena’s "Followers" then
"Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s
original tweet and posts this on her Facebook account. Immediately, Pamela’s
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
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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 Amendment’s
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
CDA’s 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 person’s 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 person’s reputation and peace of
mind, cannot adopt means that will unnecessarily and broadly sweep, invading the
area of protected freedoms.62
Facts
The case arises out of consolidated petitions to the Supreme Court of the Philippines
on the constitutionality of several provisions of the Cybercrime Prevention Act of
2012, Act No. 10175.
The Petitioners argued that even though the Act is the government’s platform in
combating illegal cyberspace activities, 21 separate sections of the Act violate their
constitutional rights, particularly the right to freedom of expression and access to
inforamtion.
In February 2013, the Supreme Court extended the duration of a temporary
restraining order against the government to halt enforcement of the Act until the
adjudication of the issues.
Decision Overview
Justice Abad delivered the Court’s opinion.
The government of Philippines adopted the Cybercrime Prevention Act of 2012 for
the purpose of regulating access to and use of cyberspace. Several sections of the
law define relevant cyber crimes and enable the government to track down and
penalize violators.
Among 21 challenged sections, the Court declared Sections 4(c)(3), 12, and 19 of
the Act as unconstitutional.
Section 4(c)(3) prohibits the transmission of unsolicited commercial electronic
communications, commonly known as spams, that seek to advertise, sell, or offer for
sale of products and services unless the recipient affirmatively consents, or when the
purpose of the communication is for service or administrative announcements from
the sender to its existing users, or “when 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
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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 government argued that unsolicited commercial communications amount to both
nuisance and trespass because they tend to interfere with the enjoyment of using
online services and that they enter the recipient’s domain without prior permission.
The Court first noted that spams are a category of commercial speech, which does
not receive the same level of protection as other constitutionally guaranteed forms of
expression ,”but is nonetheless entitled to protection.” It ruled that the prohibition on
transmitting unsolicited communications “would deny a person the right to read his
emails, even unsolicited commercial ads addressed to him.” Accordingly, the Court
declared Section4(c)(3) as unconstitutional.
Section 12 of the Act authorizes the law enforcement without a court warrant “to
collect or record traffic data in real-time associated with specified communications
transmitted by means of a computer system.” Traffic data under this Section
includes the origin, destination, route, size, date, and duration of the communication,
but not its content nor the identity of users.
The Petitioners argued that such warrantless authority curtails their civil liberties and
set the stage for abuse of discretion by the government. They also claimed that this
provision violates the right to privacy and protection from the government’s intrusion
into online communications.
According to the Court, since Section 12 may lead to disclosure of private
communications, it must survive the rational basis standard of whether it is narrowly
tailored towards serving a government’s compelling interest. The Court found that
the government did have a compelling interest in preventing cyber crimes by
monitoring real-time traffic data.
As to whether Section 12 violated the right to privacy, the Court first recognized that
the right at stake concerned informational privacy, defined as “the right not to have
private information disclosed, and the right to live freely without surveillance and
intrusion.” In determining whether a communication is entitled to the right of privacy,
the Court applied a two-part test: (1) Whether the person claiming the right has a
legitimate expectation of privacy over the communication, and (2) whether his
expectation of privacy can be regarded as objectively reasonable in the society.
The Court noted that internet users have subjective reasonable expectation of
privacy over their communications transmitted online. However, it did not find the
expectation as objectively reasonable because traffic data sent through internet
“does not disclose the actual names and addresses (residential or office) of the
sender and the recipient, only their coded Internet Protocol (IP) addresses.”
Even though the Court ruled that real-time traffic data under Section 12 does not
enjoy the objective reasonable expectation of privacy, the existence of enough data
may reveal the personal information of its sender or recipient, against which the
Section fails to provide sufficient safeguard. The Court viewed the law as “virtually
limitless, enabling law enforcement authorities to engage in “fishing expedition,”
choosing whatever specified communication they want.”
Accordingly, the Court struck down Section 12 for lack of specificity and definiteness
as to ensure respect for the right to privacy.
Section 19 authorizes the Department of Justice to restrict or block access to a
computer data found to be in violation of the Act. The Petitioners argued that this
section also violated the right to freedom of expression, as well as the constitutional
protection against unreasonable searches and seizures.
The Court first recognized that computer data constitutes a personal property,
entitled to protection against unreasonable searches and seizures. Also, the
Philippines’ Constitution requires the government to secure a valid judicial warrant
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when it seeks to seize a personal property or to block a form of
expression. Because Section 19 precluded any judicial intervention, the Court found
it unconstitutional.
VIVARES VS STC
FULL TEXT:
Page 165 of 236
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 202666 September 29, 2014
RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID
SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN
DOES, Respondents.
DECISION
VELASCO, JR., J.:
The individual's desire for privacy is never absolute, since participation in society is
an equally powerful desire. Thus each individual is continually engaged in a personal
adjustment process in which he balances the desire for privacy with the desire for
disclosure and communication of himself to others, in light of the environmental
conditions and social norms set by the society in which he lives.
- Alan Westin, Privacy and Freedom (1967)
The Case
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
in relation to Section 19 of A.M. No. 08-1-16-SC,1 otherwise known as the "Rule on
the Writ of Habeas Data." Petitioners herein assail the July 27, 2012 Decision2 of the
Regional Trial Court, Branch 14 in Cebu City (RTC) in SP. Proc. No. 19251-CEB,
which dismissed their habeas data petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were,
during the period material, graduating high school students at St. Theresa's College
(STC), Cebu City. Sometime in January 2012, while changing into their swimsuits for
a beach party they were about to attend, Julia and Julienne, along with several
others, took digital pictures of themselves clad only in their undergarments. These
pictures were then uploaded by Angela Lindsay Tan (Angela) on her
Facebook3 profile.
Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at
STC’s high school department, learned from her students that some seniors at STC
posted pictures online, depicting themselves from the waist up, dressed only in
brassieres. Escudero then asked her students if they knew who the girls in the
photos are. In turn, they readily identified Julia, Julienne, and Chloe Lourdes
Taboada (Chloe), among others.
Using STC’s computers, Escudero’s students logged in to their respective personal
Facebook accounts and showed her photos of the identified students, which include:
(a) Julia and Julienne drinking hard liquor and smoking cigarettes inside a bar; and
(b) Julia and Julienne along the streets of Cebu wearing articles of clothing that show
virtually the entirety of their black brassieres. What is more, Escudero’s students
claimed that there were times when access to or the availability of the identified
students’ photos was not confined to the girls’ Facebook friends,4 but were, in fact,
viewable by any Facebook user.5
Upon discovery, Escudero reported the matter and, through one of her student’s
Facebook page, showed the photosto Kristine Rose Tigol (Tigol), STC’s Discipline-
in-Charge, for appropriate action. Thereafter, following an investigation, STC found
the identified students to have deported themselves in a manner proscribed by the
school’s Student Handbook, to wit:
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1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholicbeverages in public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains
sexually suggestive messages, language or symbols; and 6. Posing and
uploading pictures on the Internet that entail ample body exposure.
On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in
question, reported, as required, to the office of Sr. Celeste Ma. Purisima Pe (Sr.
Purisima), STC’s high school principal and ICM6Directress. They claimed that during
the meeting, they were castigated and verbally abused by the STC officials present
in the conference, including Assistant Principal Mussolini S. Yap (Yap), Roswinda
Jumiller, and Tigol. What is more, Sr. Purisima informed their parents the following
day that, as part of their penalty, they are barred from joining the commencement
exercises scheduled on March 30, 2012.
A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M.
Tan (Tan), filed a Petition for Injunction and Damages before the RTC of Cebu City
against STC, et al., docketed as Civil Case No. CEB-38594.7 In it, Tan prayed that
defendants therein be enjoined from implementing the sanction that precluded
Angela from joining the commencement exercises.
On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of Julia,
joined the fray as an intervenor. On March 28, 2012, defendants inCivil Case No.
CEB-38594 filed their memorandum, containing printed copies of the photographs in
issue as annexes. That same day, the RTC issued a temporary restraining order
(TRO) allowing the students to attend the graduation ceremony, to which STC filed a
motion for reconsideration.
Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned students
from participating in the graduation rites, arguing that, on the date of the
commencement exercises, its adverted motion for reconsideration on the issuance
ofthe TRO remained unresolved.
Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of
Habeas Data, docketed as SP. Proc. No. 19251-CEB8 on the basis of the following
considerations:
1. The photos of their children in their undergarments (e.g., bra) were taken
for posterity before they changed into their swimsuits on the occasion of a
birthday beach party;
2. The privacy setting of their children’s Facebook accounts was set at
"Friends Only." They, thus, have a reasonable expectation of privacy which
must be respected.
3. Respondents, being involved in the field of education, knew or ought to
have known of laws that safeguard the right to privacy. Corollarily,
respondents knew or ought to have known that the girls, whose privacy has
been invaded, are the victims in this case, and not the offenders. Worse, after
viewing the photos, the minors were called "immoral" and were punished
outright;
4. The photos accessed belong to the girls and, thus, cannot be used and
reproduced without their consent. Escudero, however, violated their rights by
saving digital copies of the photos and by subsequently showing them to
STC’s officials. Thus, the Facebook accounts of petitioners’ children were
intruded upon;
Facts
Minors Nenita Julia V. Daluz and Julienne Vida Suzara, along with several others,
took pictures of themselves in their underwear, smoking cigarettes and drinking hard
liquor. A third minor, Angela Tan, uploaded them onto Facebook. A computer
teacher at minors’ school, Mylene Rheza T. Escuedro, discovered the pictures. The
photos were reported to the Discipline in Charge and the girls were found to have
violated the Student Handbook.
The students were sent to the Principal’s office where they were chastised and
verbally abused. They were also banned from commencement. Angela’s mother filed
a Petition for Injunction and Damages asking that the school be denied from
prohibiting the girls from attending commencement. A TRO was granted allowing the
girls to attend graduation and the Plaintiffs filed a writ of habeas data alleging an
invasion of their children’s privacy by the Defendant.
The Regional Trial Court dismissed the petition for habeas data because “petitioners
failed to prove the existence of an actual or threatened violation of the minors’ right
to privacy.”
Decision Overview
The primary issue was “whether or not there was indeed an actual or threatened
violation of the right to privacy in the life, liberty, or security of the minors involved in
the case.” A writ of habeas data protects an individual’s right against invasion of
informational privacy, and a nexus between the right to privacy and the right to life,
liberty or security must be proven.
In this case, the core issue was the right to informational privacy, defined as “the
right of individuals to control information about themselves.” To what extent should
the right to privacy be protected in online social networks whose sole purpose is
sharing information over the web? The petitioners argued that the privacy settings on
Facebook limit who can see what information. This gives users a subjective
expectation of privacy. The Court agreed. However, the Court also ruled that before
one can have an expectation of privacy in her Facebook information, he or she must
manifest an intention to keep that information private by utilizing privacy tools. If
someone posts something on Facebook and does not limit who can see that
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information, there is no expectation of privacy. The photos in the case at hand were
all viewable by the friends of the girls or by the general public. Therefore, the Court
ruled that the Defendants did not violate the minors’ privacy rights by viewing and
copying the pictures on the minors’ Facebook pages.
SUMMARY:
Facts: This case involves graduating students of the STC-Cebu City; wherein, the
students involved posted pictures on their Facebook account of them wearing
wearing no shirt, but only brassieres from waist up. Said photos were taken while
they were changing into their swimsuits for a beach party. The said photos were
reported to the STC’s computer teacher, named Mylene Rheza Escudero. Escudero
asked several of her students to show her other photos of Julia and Julianne, above-
mentioned graduating students, they saw photos of: them along the streets of Cebu
wearing clothing which shows their black brassieres (duh, Sinulog? Hello?); them
drinking hard liquor and smoking cigarettes inside a bar (Private property OUTSIDE
school premises); and that their Facebook accounts were accessible to any
Facebook user.
Upon discovery thereof, Escudero reported the matter to the school authorities. The
poor students involved were investigated and were barred to attend their highschool
graduation rites which is experienced by a person once in their lifetime. Heartless.
A case was filed against the STC and its officials for Injunction and Damages.
Injunction as to the order of the school not to allow the poor children to attend their
graduation rites. A petition for the issuance of the writ of habeas data was also filed.
Petitioners (Parents of the students involved) assert that the privacy of the children
were unlawfully invaded. Since the Facebook accounts of the children are set
at “Friends Only”; That the photos were owned by the ladies, thus cannot be used
and reproduced without their consent. Old hag, however, violated this by saving
digital copies and subsequently showed them to the STC’s officials.
RTC issued the writ and directed the respondents to file their verified written return
within 5 working days from service of the writ.
Respondent denied the petitioners allegation, among others, because there can be
no violation of their right to privacy as there is no reasonable expectation of privacy
on Facebook.
RTC dismissed the petition for habeas data.
Issue: Whether the writ of habeas data is a proper remedy?
Decision: No.
The writ of habeas data is a remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened by an unlawful act or omission of a
public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing data or information regarding the person, family,
home and correspondence of the aggrieved party.
PURPOSE:
It is an independent and summary remedy designed to protect the image, privacy,
honor, information, and freedom of information of an individual, and to provide a
forum to enforce one’s right to the truth and to informational privacy.
THE WRIT OF HABEAS DATA IS NOT ONLY CONFINED TO CASES OF
EXTRALEGAL KILLINGS AND ENFORCED DISAPPEARANCES.
Section 2 of the Rule on the Writ of Habeas Data
Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of habeas
data. However, in cases of extralegal killings and enforced disappearances, the
petition may be filed by: (a) Any member of the immediate family of the aggrieved
party, namely: the spouse, children and parents; or (b) Any ascendant, descendant
or collateral relative of the aggrieved party within the fourth civil degree of
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consanguinity or affinity, in default of those mentioned in the preceding paragraph.
(emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the writ only to
extralegal killings or enforced disappearances, the above underscored portion of
Section 2, a variance of habeas data situations, would not have been made.
It is designed to safeguard individual freedom from abuse in the information age.
RESPONDENT CONTENDS THAT IT IS NOT AN ENTITY ENGAGED IN THE
GATHERING, COLLETING OR STORING OF DATA OR INFORMATION
REGARDING THE PERSON, FAMILY, HOME AND CORRESPONDENCE OF THE
AGGRIEVED PARTY. -THIS IS ERRONEOUS.
Such individual need not be in the business of such.
To “engage” in something is different from undertaking a business endeavor. To
“engage” means “to do or take part in something.” It does not necessarily mean that
the activity must be done in pursuit of a business. What matters is that the person or
entity must be gathering, collecting or storing said data or information about the
aggrieved party or his or her family. Regularity is immaterial.
THREE STRANDS OF RIGHT TO PRIVACY:
1. Locational/Situational
2. Informational (case at bar)
3. Decisional
RIGHT TO PRIVACY WAS NOT VIOLATED because:
1. Facebook has privacy safeguard tools.
2. Utilization of this tools is the manifestation, in the cyber world, of the user’s
invocation of his right to informational privacy.
That the photos are viewable by “friends only” does not necessarily bolsters the
petitioners’ contention. It is well emphasize at this point that setting a post’s or profile
detail’s to “Friends” is no assurance that it can no longer be viewed by another user
who is not Facebook friends with the source of the content.
The user’s own Facebook friend can share said content or tag his or her own
Facebook friend thereto, regardless of whether the user tagged by the latter is
Facebook friends or not with the former.
MARCOS VS MANGLAPUS
FULL TEXTS:
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR.,
IRENE M. ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO
ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and PHILIPPINE
CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President,
CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE
VILLA, in their capacity as Secretary of Foreign Affairs, Executive Secretary,
Secretary of Justice, Immigration Commissioner, Secretary of National
Defense and Chief of Staff, respectively, respondents.
CORTES, J.:
Page 178 of 236
Before the Court is a contreversy of grave national importance. While ostensibly only
legal issues are involved, the Court's decision in this case would undeniably have a
profound effect on the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the
presidency via the non-violent "people power" revolution and forced into exile. In his
stead, Corazon C. Aquino was declared President of the Republic under a
revolutionary government. Her ascension to and consilidation of power have not
been unchallenged. The failed Manila Hotel coup in 1986 led by political leaders of
Mr. Marcos, the takeover of television station Channel 7 by rebel troops led by Col.
Canlas with the support of "Marcos loyalists" and the unseccessful plot of the Marcos
spouses to surreptitiously return from Hawii with mercenaries aboard an aircraft
chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987] awakened
the nation to the capacity of the Marcoses to stir trouble even from afar and to the
fanaticism and blind loyalty of their followers in the country. The ratification of the
1987 Constitution enshrined the victory of "people power" and also clearly reinforced
the constitutional moorings of Mrs. Aquino's presidency. This did not, however, stop
bloody challenges to the government. On August 28, 1987, Col. Gregorio Honasan,
one of the major players in the February Revolution, led a failed coup that left scores
of people, both combatants and civilians, dead. There were several other armed
sorties of lesser significance, but the message they conveyed was the same — a
split in the ranks of the military establishment that thraetened civilian supremacy over
military and brought to the fore the realization that civilian government could be at
the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided elements
and among rabid followers of Mr. Marcos. There are also the communist insurgency
and the seccessionist movement in Mindanao which gained ground during the rule of
Mr. Marcos, to the extent that the communists have set up a parallel government of
their own on the areas they effectively control while the separatist are virtually free to
move about in armed bands. There has been no let up on this groups' determination
to wrest power from the govermnent. Not only through resort to arms but also to
through the use of propaganda have they been successful in dreating chaos and
destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and
the plunder of the nation attributed to Mr. Marcos and his cronies left the economy
devastated. The efforts at economic recovery, three years after Mrs. Aquino
assumed office, have yet to show concrete results in alleviating the poverty of the
masses, while the recovery of the ill-gotten wealth of the Marcoses has remained
elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines
to die. But Mrs. Aquino, considering the dire consequences to the nation of his return
at a time when the stability of government is threatened from various directions and
the economy is just beginning to rise and move forward, has stood firmly on the
decision to bar the return of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced
out of office and into exile after causing twenty years of political, economic and social
havoc in the country and who within the short space of three years seeks to return, is
in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the respondents
to issue travel documents to Mr. Marcos and the immediate members of his family
and to enjoin the implementation of the President's decision to bar their return to the
Philippines.
Page 179 of 236
The Issue
Th issue is basically one of power: whether or not, in the exercise of the powers
granted by the Constitution, the President may prohibit the Marcoses from returning
to the Philippines.
According to the petitioners, the resolution of the case would depend on the
resolution of the following issues:
1. Does the President have the power to bar the return of former
President Marcos and family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President
Marcos and his family from returning to the Philippines, in the interest
of "national security, public safety or public health
a. Has the President made a finding that the return of former
President Marcos and his family to the Philippines is a clear and
present danger to national security, public safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been
complied with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be
dispensed with, has the President's decision, including
the grounds upon which it was based, been made
known to petitioners so that they may controvert the
same?
c. Is the President's determination that the return of former President
Marcos and his family to the Philippines is a clear and present danger
to national security, public safety, or public health a political question?
d. Assuming that the Court may inquire as to whether the return of
former President Marcos and his family is a clear and present danger
to national security, public safety, or public health, have respondents
established such fact?
3. Have the respondents, therefore, in implementing the President's
decision to bar the return of former President Marcos and his family,
acted and would be acting without jurisdiction, or in excess of
jurisdiction, or with grave abuse of discretion, in performing any act
which would effectively bar the return of former President Marcos and
his family to the Philippines? [Memorandum for Petitioners, pp. 5-7;
Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses to
return to the Philippines is guaranteed under the following provisions of the Bill of
Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order
of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law.
Separate Opinions
Separate Opinions
FERNAN, C.J., concurring:
"The threats to national security and public order are real the mounting Communist
insurgency, a simmering separatist movement, a restive studentry, widespread labor
disputes, militant farmer groups. . . . Each of these threats is an explosive ingredient
in a steaming cauldron which could blow up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in the Court, Mr.
Justice Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full
concurrence to the exhaustive and well-written ponencia of Mme. Justice Irene R.
Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not
derived solely from a particular constitutional clause or article or from an express
statutory grant. Their limits are likely to depend on the imperatives of events and
contemporary imponderables rather than on abstract theories of law. History and
time-honored principles of constitutional law have conceded to the Executive Branch
certain powers in times of crisis or grave and imperative national emergency. Many
terms are applied to these powers: "residual," "inherent," 44 moral," "implied,"
"aggregate," 'emergency." whatever they may be called, the fact is that these powers
exist, as they must if the governance function of the Executive Branch is to be
Page 206 of 236
carried out effectively and efficiently. It is in this context that the power of the
President to allow or disallow the Marcoses to return to the Philippines should be
viewed. By reason of its impact on national peace and order in these admittedly
critical times, said question cannot be withdrawn from the competence of the
Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but
pose a clear and present danger to public order and safety. One needs only to recall
the series of destabilizing actions attempted by the so-called Marcos loyalists as well
as the ultra-rightist groups during the EDSA Revolution's aftermath to realize this.
The most publicized of these offensives is the Manila Hotel incident which occurred
barely five (5) months after the People's Power Revolution. Around 10,000 Marcos
supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and
Lt. Col. Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-
taking of Arturo Tolentino as acting president of the Philippines. The public disorder
and peril to life and limb of the citizens engendered by this event subsided only upon
the eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp
Aguinaldo incidents. Military rebels waged simultaneous offensives in different parts
of Metro Manila and Sangley Point in Cavite. A hundred rebel soldiers took over
Channel 7 and its radio station DZBB. About 74 soldier rebels attacked Villamor Air
Base, while another group struck at Sangley Point in Cavite and held the 15th Air
Force Strike wing commander and his deputy hostage. Troops on board several
vehicles attempted to enter Gate I of Camp Aguinaldo even as another batch of 200
soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who
forced their way through Gate 1 of Fort Bonifacio. They stormed into the army
stockade but having failed to convince their incarcerated members to unite in their
cause, had to give up nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the
Aquino Government? Launched not by Marcos loyalists, but by another ultra-rightist
group in the military led by Col. Gregorio "Gringo" Honasan who remains at large to
date, this most serious attempt to wrest control of the government resulted in the
death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-
powered firearms and ammunition from the Camp Crame Armory during a raid
conducted in June 1988. Most of the group members were, however, captured in
Antipolo, Rizal. The same group was involved in an unsuccessful plot known as
Oplan Balik Saya which sought the return of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt of a group
named CEDECOR to mobilize civilians from nearby provinces to act as blockading
forces at different Metro Manila areas for the projected link-up of Marcos military
loyalist troops with the group of Honasan. The pseudo "people power" movement
was neutralized thru checkpoints set up by the authorities along major road arteries
where the members were arrested or forced to turn back.
While not all of these disruptive incidents may be traced directly to the Marcoses,
their occurrence militates heavily against the wisdom of allowing the Marcoses'
return. Not only will the Marcoses' presence embolden their followers toward similar
actions, but any such action would be seized upon as an opportunity by other
enemies of the State, such as the Communist Party of the Philippines and the
NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage an
offensive against the government. Certainly, the state through its executive branch
EN BANC:
In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven
(7), dismissed the petition, after finding that the President did not act arbitrarily or
with grave abuse of discretion in determining that the return of former President
Marcos and his family at the present time and under present circumstances pose a
threat to national interest and welfare and in prohibiting their return to the Philippines.
On September 28, 1989, former President Marcos died in Honolulu, Hawaii. In a
statement, President Aquino said:
In the interest of the safety of those who will take the death of Mr.
Marcos in widely and passionately conflicting ways, and for the
tranquility of the state and order of society, the remains of Ferdinand
Page 223 of 236
E. Marcos will not be allowed to be brought to our country until such
time as the government, be it under this administration or the
succeeding one, shall otherwise decide. [Motion for Reconsideration,
p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising
the following major arguments:
1. to bar former President Marcos and his family from returning to the Philippines is
to deny them not only the inherent right of citizens to return to their country of birth
but also the protection of the Constitution and all of the rights guaranteed to Filipinos
under the Constitution;
2. the President has no power to bar a Filipino from his own country; if she has, she
had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former President Marcos.
Thus, petitioners prayed that the Court reconsider its decision, order respondents to
issue the necessary travel documents to enable Mrs. Imelda R. Marcos, Ferdinand
R. Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio
Araneta to return to the Philippines, and enjoin respondents from implementing
President Aquino's decision to bar the return of the remains of Mr. Marcos, and the
other petitioners, to the Philippines.
Commenting on the motion for reconsideration, the Solicitor General argued that the
motion for reconsideration is moot and academic as to the deceased Mr. Marcos.
Moreover, he asserts that "the 'formal' rights being invoked by the Marcoses under
the label 'right to return', including the label 'return of Marcos' remains, is in reality or
substance a 'right' to destabilize the country, a 'right' to hide the Marcoses' incessant
shadowy orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he prays
that the Motion for Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration, the burden is
upon the movants, petitioner herein, to show that there are compelling reasons to
reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in the motion for
reconsideration, the Court is of the view that no compelling reasons have been
established by petitioners to warrant a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a supervening event, has not
changed the factual scenario under which the Court's decision was rendered. The
threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased. On the contrary,
instead of erasing fears as to the destabilization that will be caused by the return of
the Marcoses, Mrs. Marcos reinforced the basis for the decision to bar their return
when she called President Aquino "illegal," claiming that it is Mr. Marcos, not Mrs.
Aquino, who is the "legal" President of the Philippines, and declared that the matter
"should be brought to all the courts of the world." [Comment, p. 1; Philippine Star,
October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the President, upon whom
executive power is vested, has unstated residual powers which are implied from the
grant of executive power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific power of the President, particularly those relating to the
Page 224 of 236
commander-in-chief clause, but not a diminution of the general grant of executive
power.
That the President has powers other than those expressly stated in the Constitution
is nothing new. This is recognized under the U.S. Constitution from which we have
patterned the distribution of governmental powers among three (3) separate
branches.
Article II, [section] 1, provides that "The Executive Power shall be
vested in a President of the United States of America." In Alexander
Hamilton's widely accepted view, this statement cannot be read as
mere shorthand for the specific executive authorizations that follow it
in [sections] 2 and 3. Hamilton stressed the difference between the
sweeping language of article II, section 1, and the conditional
language of article I, [section] 1: "All legislative Powers herein
granted shall be vested in a Congress of the United States . . ."
Hamilton submitted that "[t]he [article III enumeration [in sections 2
and 31 ought therefore to be considered, as intended merely to
specify the principal articles implied in the definition of execution
power; leaving the rest to flow from the general grant of that power,
interpreted in confomity with other parts of the Constitution...
In Myers v. United States, the Supreme Court — accepted Hamilton's
proposition, concluding that the federal executive, unlike the
Congress, could exercise power from sources not enumerated, so
long as not forbidden by the constitutional text: the executive power
was given in general terms, strengthened by specific terms where
emphasis was regarded as appropriate, and was limited by direct
expressions where limitation was needed. . ." The language of Chief
Justice Taft in Myers makes clear that the constitutional concept of
inherent power is not a synonym for power without limit; rather, the
concept suggests only that not all powers granted in the Constitution
are themselves exhausted by internal enumeration, so that, within a
sphere properly regarded as one of "executive' power, authority is
implied unless there or elsewhere expressly limited. [TRIBE,
AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition of the President's implied
or residual powers is tantamount to setting the stage for another dictatorship. Despite
petitioners' strained analogy, the residual powers of the President under the
Constitution should not be confused with the power of the President under the 1973
Constitution to legislate pursuant to Amendment No. 6 which provides:
Whenever in the judgment of the President (Prime Minister), there
exists a grave emergency or a threat or imminence thereof, or
whenever the interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders, or
letters of instruction, which shall form part of the law of the land,
There is no similarity between the residual powers of the President under the 1987
Constitution and the power of the President under the 1973 Constitution pursuant to
Amendment No. 6. First of all, Amendment No. 6 refers to an express grant of power.
It is not implied. Then, Amendment No. 6 refers to a grant to the President of
the specific power of legislation.
4. Among the duties of the President under the Constitution, in compliance with his
(or her) oath of office, is to protect and promote the interest and welfare of the
Page 225 of 236
people. Her decision to bar the return of the Marcoses and subsequently, the
remains of Mr. Marcos at the present time and under present circumstances is in
compliance with this bounden duty. In the absence of a clear showing that she had
acted with arbitrariness or with grave abuse of discretion in arriving at this decision,
the Court will not enjoin the implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack
of merit."
Separate Opinions
SUMMARY:
Facts: This case involves a petition of mandamus and prohibition asking the court to
order the respondents Secretary of Foreign Affairs, etc. To issue a
travel documents to former Pres. Marcos and the immediate members of his family
and to enjoin the implementation of the President's decision to bar their return to
the Philippines. Petitioners assert that the right of the Marcoses to return in
the Philippines is guaranteed by the Bill of Rights, specifically Sections 1 and 6. They
contended that Pres. Aquino is without power to impair the liberty of abode of the
Marcoses because only a court may do so within the limits prescribed by law. Nor
the President impair their right to travel because no law has authorized her to do so.
They further assert that under international law, their right to return to
the Philippines is guaranteed particularly by the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights, which has been
ratified by the Philippines.
Issue: Whether or not, in the exercise of the powers granted by the constitution, the
President (Aquino) may prohibit the Marcoses from returning to the Philippines.
Held: "It must be emphasized that the individual right involved is not the right to
travel from the Philippines to other countries or within the Philippines. These are
what the right to travel would normally connote. Essentially, the right involved in this
case at bar is the right to return to one's country, a distinct right under international
law, independent from although related to the right to travel. Thus, the Universal
Declaration of Human Rights and the International Covenant on Civil and Political
Page 232 of 236
Rights treat the right to freedom of movement and abode within the territory of a
state, the right to leave the country, and the right to enter one's country as separate
and distinct rights. What the Declaration speaks of is the "right to freedom of
movement and residence within the borders of each state". On the other hand, the
Covenant guarantees the right to liberty of movement and freedom to choose his
residence and the right to be free to leave any country, including his own. Such rights
may only be restricted by laws protecting the national security, public order, public
health or morals or the separate rights of others. However, right to enter one's
country cannot be arbitrarily deprived. It would be therefore inappropriate to construe
the limitations to the right to return to ones country in the same context as those
pertaining to the liberty of abode and the right to travel.
The Bill of rights treats only the liberty of abode and the right to travel, but it is a well
considered view that the right to return may be considered, as a generally accepted
principle of International Law and under our Constitution as part of the law of the
land.
The court held that President did not act arbitrarily or with grave abuse of discretion
in determining that the return of the Former Pres. Marcos and his family poses a
serious threat to national interest and welfare. President Aquino has determined that
the destabilization caused by the return of the Marcoses would wipe away the gains
achieved during the past few years after the Marcos regime.
The return of the Marcoses poses a serious threat and therefore prohibiting their
return to the Philippines, the instant petition is hereby DISMISSED.
SUMMARY:
G.R. No. 88211, September 15, 1989
Marcos, petitioner
VS.
Manglapus, respondent (Part 1)
Facts:
Former President Ferdinand E. Marcos was deposed from the presidency via the
non-violent “people power” revolution and was forced into exile. Marcos, in his
deathbed, has signified his wish to return to the Philippines to die. But President
Corazon Aquino, considering the dire consequences to the nation of his return at a
time when the stability of government is threatened from various directions and the
economy is just beginning to rise and move forward, has stood firmly on the decision
to bar the return of Marcos and his family.
Aquino barred Marcos from returning due to possible threats & following supervening
events:
1. failed Manila Hotel coup in 1986 led by Marcos leaders
2. channel 7 taken over by rebels & loyalists
3. plan of Marcoses to return w/ mercenaries aboard a chartered plane of a
Lebanese arms dealer. This is to prove that they can stir trouble from afar
4. Honasan’s failed coup
5. Communist insurgency movements
6. secessionist movements in Mindanao
7. devastated economy because of
1. accumulated foreign debt
2. plunder of nation by Marcos & cronies
Marcos filed for a petition of mandamus and prohibition to order the respondents to
issue them their travel documents and prevent the implementation of President
Page 233 of 236
Aquino’s decision to bar Marcos from returning in the Philippines. Petitioner
questions Aquino’s power to bar his return in the country. He also questioned the
claim of the President that the decision was made in the interest of national security,
public safety and health. Petitioner also claimed that the President acted outside her
jurisdiction.
According to the Marcoses, such act deprives them of their right to life, liberty,
property without due process and equal protection of the laws. They also said that it
deprives them of their right to travel which according to Section 6, Article 3 of the
constitution, may only be impaired by a court order.
Issue:
1. Whether or not, in the exercise of the powers granted by the Constitution, the
President may prohibit the Marcoses from returning to the Philippines.
2. Whether or not the President acted arbitrarily or with grave abuse of
discretion amounting to lack or excess of jurisdiction when she determined
that the return of the Marcoses to the Philippines poses a serious threat to
national interest and welfare and decided to bar their return.
Decision:
No to both issues. Petition dismissed.
Ratio:
Separation of power dictates that each department has exclusive powers. According
to Section 1, Article VII of the 1987 Philippine Constitution, “the executive power
shall be vested in the President of the Philippines.” However, it does not define what
is meant by “executive power” although in the same article it touches on exercise of
certain powers by the President, i.e., the power of control over all executive
departments, bureaus and offices, the power to execute the laws, the appointing
power to grant reprieves, commutations and pardons… (art VII secfs. 14-23).
Although the constitution outlines tasks of the president, this list is not defined &
exclusive. She has residual & discretionary powers not stated in the Constitution
which include the power to protect the general welfare of the people. She is obliged
to protect the people, promote their welfare & advance national interest. (Art. II, Sec.
4-5 of the Constitution). Residual powers, according to Theodore Roosevelt, dictate
that the President can do anything which is not forbidden in the Constitution (Corwin,
supra at 153), inevitable to vest discretionary powers on the President (Hyman,
American President) and that the president has to maintain peace during times of
emergency but also on the day-to-day operation of the State.
The rights Marcoses are invoking are not absolute. They’re flexible depending on the
circumstances. The request of the Marcoses to be allowed to return to the
Philippines cannot be considered in the light solely of the constitutional provisions
guaranteeing liberty of abode and the right to travel, subject to certain exceptions, or
of case law which clearly never contemplated situations even remotely similar to the
present one. It must be treated as a matter that is appropriately addressed to those
residual unstated powers of the President which are implicit in and correlative to the
paramount duty residing in that office to safeguard and protect general welfare. In
that context, such request or demand should submit to the exercise of a broader
discretion on the part of the President to determine whether it must be granted or
denied.
For issue number 2, the question for the court to determine is whether or not there
exist factual basis for the President to conclude that it was in the national interest to
bar the return of the Marcoses in the Philippines. It is proven that there are factual
bases in her decision. The supervening events that happened before her decision
are factual. The President must take preemptive measures for the self-preservation
of the country & protection of the people. She has to uphold the Constitution.
Page 234 of 236
Fernan, Concurring
1. The president’s power is not fixed. Limits would depend on the imperatives of
events and not on abstract theories of law. We are undergoing a critical time
and the current problem can only be answerable by the President.
2. Threat is real. Return of the Marcoses would pose a clear & present danger.
Thus, it’s the executive’s responsibility & obligation to prevent a grave &
serious threat to its safety from arising.
3. We can’t sacrifice public peace, order, safety & our political & economic gains
to give in to Marcos’ wish to die in the country. Compassion must give way to
the other state interests.
Cruz, Dissenting
1. As a citizen of this country, it is Marcos’ right to return, live & die in his own
country. It is a right guaranteed by the Consti to all individuals, whether
patriot, homesick, prodigal, tyrant, etc.
2. Military representatives failed to show that Marcos’ return would pose a threat
to national security. Fears were mere conjectures.
3. Residual powers – but the executive’s powers were outlined to limit her
powers & not expand.
Paras, Dissenting
1. AFP has failed to prove danger which would allow State to impair Marcos’
right to return to the Philippines. .
2. Family can be put under house arrest & in the event that one dies, he/she
should be buried w/in 10 days.
3. Untenable that without a legislation, right to travel is absolute & state is
powerless to restrict it. It’s w/in police power of the state to restrict this right if
national security, public safety/health demands that such be restricted. It can’t
be absolute & unlimited all the time. It can’t be arbitrary & irrational.
4. No proof that Marcos’ return would endanger national security or public
safety. Fears are speculative & military admits that it’s under control. Filipinos
would know how to handle Marcos’ return.
Padilla, Dissenting
Sarmiento, Dissenting
1. President’s determination that Marcos’ return would threaten national security
should be agreed upon by the court. Such threat must be clear & present.
G.R. No. 88211, October 27, 1989
Marcos, petitioner
VS.
Manglapus, respondent (Part 2)
Facts:
In its decision dated September 15, 1989, the Court by a vote of eight to seven,
dismissed the petition, after finding that the President did not act arbitrarily or with
grave abuse of discretion in determining that the return of former President Marcos
and his family pose a threat to national interest and welfare and in prohibiting their
return to the Philippines. On September 28, 1989, Marcos died in Honolulu, Hawaii.
President Corazon Aquino issued a statement saying that in the interest of the safety
of those who will take the death of Marcos in widely and passionately conflicting
ways, and for the tranquility and order of the state and society, she did not allow the
remains of Marcos to be brought back in the Philippines.
A motion for Reconsideration was filed by the petitioners raising the following
arguments: