JESUS C. GARCIA, Petitioner, vs. THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41, Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of minor children, namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents.

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93 percent of a total population of 93.3 million – adhering to the teachings of Jesus Christ.1 Yet, the admonition for husbands to love their wives as their own bodies just as Christ loved the church and gave himself up for her2 failed to prevent, or even to curb, the pervasiveness of violence against Filipino women. The National Commission on the Role of Filipino Women (NCRFW) reported that, for the years 2000-2003, "female violence comprised more than 90o/o of all forms of abuse and violence and more than 90% of these reported cases were committed by the women's intimate partners such as their husbands and live-in partners."3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress enacted Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes." It took effect on March 27, 2004.4

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and their children (VAWC) perpetrated by women's intimate partners, i.e, husband; former husband; or any person who has or had a sexual or dating relationship, or with whom the woman has a common child.5 The law provides for protection orders from the barangay and the courts to prevent the commission of further acts of VAWC; and outlines the duties and responsibilities of barangay officials, law enforcers, prosecutors and court personnel, social workers, health care providers, and other local government officials in responding to complaints of VAWC or requests for assistance.

A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of the equal protection and due process clauses, and an undue delegation of judicial power to barangay officials.

The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her minor children, a verified petition6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of Bacolod City for the issuance of a Temporary Protection Order (TPO) against her husband, Jesus C. Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse; emotional, psychological, and economic violence as a result of marital infidelity on the part of petitioner, with threats of deprivation of custody of her children and of financial support.7

Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the natural child of petitioner but whom private respondent adopted; Jessie Anthone J. Garcia, 6 years old; and Joseph Eduard J. Garcia, 3 years old.8

Private respondent described herself as a dutiful and faithful wife, whose life revolved around her husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant, controlling, and demands absolute obedience from his wife and children. He forbade private respondent to pray, and deliberately isolated her from her friends. When she took up law, and even when she was already working part time at a law office, petitioner trivialized her ambitions and prevailed upon her to just stay at home. He was often jealous of the fact that his attractive wife still catches the eye of some men, at one point threatening that he would have any man eyeing her killed.9

Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's Bank, Bacolod City, who is the godmother of one of their sons. Petitioner admitted to the affair when private respondent confronted him about it in 2004. He even boasted to the household help about his sexual relations with said bank manager. Petitioner told private respondent, though, that he was just using the woman because of their accounts with the bank.10

Petitioner's infidelity spawned a series of fights that left private respondent physically and emotionally wounded. In one of their quarrels, petitioner grabbed private respondent on both arms and shook her with such force that caused bruises and hematoma. At another time, petitioner hit private respondent forcefully on the lips that caused some bleeding. Petitioner sometimes turned his ire on their daughter, Jo-Ann, who had seen the text messages he sent to his paramour and whom he blamed for squealing on him. He beat Jo-Ann on the chest and slapped her many times. When private respondent decided to leave petitioner, Jo-Ann begged her mother to stay for fear that if the latter leaves, petitioner would beat her up. Even the small boys are aware of private respondent's sufferings. Their 6-year-old son said that when he grows up, he would beat up his father because of his cruelty to private respondent.11

All the emotional and psychological turmoil drove private respondent to the brink of despair. On December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was found by her son bleeding on the floor. Petitioner simply fled the house instead of taking her to the hospital. Private respondent was hospitalized for about seven (7) days in which time petitioner never bothered to visit, nor apologized or showed pity on her. Since then, private respondent has been undergoing therapy almost every week and is taking anti-depressant medications.12

When private respondent informed the management of Robinson's Bank that she intends to file charges against

the bank manager, petitioner got angry with her for jeopardizing the manager's job. He then packed his things and told private respondent that he was leaving her for good. He even told private respondent's mother, who lives with them in the family home, that private respondent should just accept his extramarital affair since he is not cohabiting with his paramour and has not sired a child with her.13

Private respondent is determined to separate from petitioner but she is afraid that he would take her children from her and deprive her of financial support. Petitioner had previously warned her that if she goes on a legal battle with him, she would not get a single centavo.14

Petitioner controls the family businesses involving mostly the construction of deep wells. He is the President of three corporations – 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros Trading Corporation – of which he and private respondent are both stockholders. In contrast to the absolute control of petitioner over said corporations, private respondent merely draws a monthly salary of P20,000.00 from one corporation only, the Negros Rotadrill Corporation. Household expenses amounting to not less than P200,000.00 a month are paid for by private respondent through the use of credit cards, which, in turn, are paid by the same corporation together with the bills for utilities.15

On the other hand, petitioner receives a monthly salary of P60,000.00 from Negros Rotadrill Corporation, and enjoys unlimited cash advances and other benefits in hundreds of thousands of pesos from the corporations.16 After private respondent confronted him about the affair, petitioner forbade her to hold office at JBTC Building, Mandalagan, where all the businesses of the corporations are conducted, thereby depriving her of access to full information about said businesses. Until the filing of the petition a quo, petitioner has not given private respondent an accounting of the businesses the value of which she had helped raise to millions of pesos.17

Action of the RTC of Bacolod City

Finding reasonable ground to believe that an imminent danger of violence against the private respondent and her children exists or is about to recur, the RTC issued a TPO18 on March 24, 2006 effective for thirty (30) days, which is quoted hereunder:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

a) Ordered to remove all his personal belongings from the conjugal dwelling or family home within 24 hours from receipt of the Temporary Restraining Order and if he refuses, ordering that he be removed by police officers from the conjugal dwelling; this order is enforceable notwithstanding that the house is under the name of 236 Realty Holdings Inc. (Republic Act No. 9262 states "regardless of ownership"), this is to allow the Petitioner (private respondent herein) to enter the

conjugal dwelling without any danger from the Respondent.

After the Respondent leaves or is removed from the conjugal dwelling, or anytime the Petitioner decides to return to the conjugal dwelling to remove things, the Petitioner shall be assisted by police officers when re-entering the family home.

The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March 2006 because of the danger that the Respondent will attempt to take her children from her when he arrives from Manila and finds out about this suit.

b) To stay away from the petitioner and her children, mother and all her household help and driver from a distance of 1,000 meters, and shall not enter the gate of the subdivision where the Petitioner may be temporarily residing.

c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner, directly or indirectly, or through other persons, or contact directly or indirectly her children, mother and household help, nor send gifts, cards, flowers, letters and the like. Visitation rights to the children may be subject of a modified TPO in the future.

d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and ordering the Philippine National Police Firearms and Explosives Unit and the Provincial Director of the PNP to cancel all the Respondent's firearm licenses. He should also be ordered to surrender any unlicensed firearms in his possession or control.

e) To pay full financial support for the Petitioner and the children, including rental of a house for them, and educational and medical expenses.

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash he received from all the corporations from 1 January 2006 up to 31 March 2006, which himself and as President of the corporations and his Comptroller, must submit to the Court not later than 2 April 2006. Thereafter, an accounting of all these funds shall be reported to the court by the Comptroller, copy furnished to the Petitioner, every 15 days of the month, under pain of Indirect Contempt of Court.

h) To ensure compliance especially with the order granting support pendente lite, and considering the financial resources of the Respondent and his threat that if the Petitioner sues she will not get a single centavo, the Respondent is ordered to put up a BOND TO KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended TPO,20 effective for thirty (30) days, which included the following additional provisions:

i) The petitioners (private respondents herein) are given the continued use of the Nissan Patrol and the Starex Van which they are using in Negros Occidental.

j) The petitioners are given the continued use and occupation of the house in Parañaque, the continued use of the Starex van in Metro Manila, whenever they go to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient sureties.

l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred Fifty Thousand Pesos (Php 150,000.00) per month plus rental expenses of Fifty Thousand Pesos (Php 50,000.00) per month until the matter of support could be finally resolved.

Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for Renewal of the TPO21 seeking the denial of the renewal of the TPO on the grounds that it did not (1) comply with the three-day notice rule, and (2) contain a notice of hearing. He further asked that the TPO be modified by (1) removing one vehicle used by private respondent and returning the same to its rightful owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the amount of the bond from P5,000,000.00 to a more manageable level at P100,000.00.

Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow him visitation rights to his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following modifications prayed for by private respondent:

a) That respondent (petitioner herein) return the clothes and other personal belongings of Rosalie and her children to Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours from receipt of the Temporary Protection Order by his counsel, otherwise be declared in Indirect Contempt of Court;

b) Respondent shall make an accounting or list of furniture and equipment in the conjugal house in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours from receipt of the Temporary Protection Order by his counsel;

c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to remove Respondent from the conjugal dwelling within eight (8) hours from receipt of the Temporary Protection Order by his counsel, and that he cannot return until 48 hours after the petitioners have left, so that the petitioner Rosalie and her representatives can remove things from the conjugal home and make an inventory of the household furniture, equipment and other things in the conjugal home, which shall be submitted to the Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from

receipt of the Temporary Protection Order by his counsel, otherwise be declared in indirect contempt of Court;

e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of Court within 24 hours from receipt of the Temporary Protection Order by his counsel;

f) That respondent shall pay petitioner educational expenses of the children upon presentation of proof of payment of such expenses.23

Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with the TPO; and committed new acts of harassment against her and their children, private respondent filed another application24 for the issuance of a TPO ex parte. She alleged interalia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter was purportedly no longer president, with the end in view of recovering the Nissan Patrol and Starex Van used by private respondent and the children. A writ of replevin was served upon private respondent by a group of six or seven policemen with long firearms that scared the two small boys, Jessie Anthone and Joseph Eduard.25

While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to kidnap him, which incident traumatized the boy resulting in his refusal to go back to school. On another occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and threatened her.26 The incident was reported to the police, and Jo-Ann subsequently filed a criminal complaint against her father for violation of R.A. 7610, also known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the conjugal home of a complaint for kidnapping and illegal detention against private respondent. This came about after private respondent, armed with a TPO, went to said home to get her and her children's belongings. Finding some of her things inside a housemaid's (Sheryl Jamola) bag in the maids' room, private respondent filed a case for qualified theft against Jamola.27

On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

1) Prohibited from threatening to commit or committing, personally or through another, acts of violence against the offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating in any form with the offended party, either directly or indirectly;

3) Required to stay away, personally or through his friends, relatives, employees or agents, from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers, her mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo Hontiveros, laundrywoman Mercedita Bornales, security guard Darwin Gayona and the petitioner's other household helpers from a distance of 1,000 meters, and shall not enter the gate of the subdivision where the Petitioners are temporarily residing, as well as from the schools of the three children; Furthermore, that respondent shall not contact the schools of the children directly or indirectly in any manner including, ostensibly to pay for their tuition or other fees directly, otherwise he will have access to the children through the schools and the TPO will be rendered nugatory;

4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to the Court;

5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00 for rental for the period from August 6 to September 6, 2006; and support in arrears from March 2006 to August 2006 the total amount of Php1,312,000.00;

6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and Php25,000.00;

7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a Starex van with Plate No. FFD 991 and should the respondent fail to deliver said vehicles, respondent is ordered to provide the petitioner another vehicle which is the one taken by J Bros Tading;

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the conjugal assets, or those real properties in the name of Jesus Chua Garcia only and those in which the conjugal partnership of gains of the Petitioner Rosalie J. Garcia and respondent have an interest in, especially the conjugal home located in No. 14, Pitimini St., Capitolville Subdivision, Bacolod City, and other properties which are conjugal assets or those in which the conjugal partnership of gains of Petitioner Rosalie J. Garcia and the respondent have an interest in and listed in Annexes "I," "I-1," and "I-2," including properties covered by TCT Nos. T-186325 and T-168814;

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a copy of this TEMPORARY PROTECTION ORDER and are ordered not to allow the transfer, sale, encumbrance or disposition of these above-cited properties to any person, entity or corporation without the personal presence of petitioner Rosalie J. Garcia, who shall affix her signature in the presence of the Register of Deeds, due to the fear of petitioner Rosalie that her signature will be forged in order to effect the encumbrance or sale of these properties to defraud her or the conjugal partnership of gains.

In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another ten (10) days, and gave petitioner a period of five (5) days within

which to show cause why the TPO should not be renewed, extended, or modified. Upon petitioner's manifestation,30 however, that he has not received a copy of private respondent's motion to modify/renew the TPO, the trial court directed in its Order31 dated October 6, 2006 that petitioner be furnished a copy of said motion. Nonetheless, an Order32 dated a day earlier, October 5, had already been issued renewing the TPO dated August 23, 2006. The pertinent portion is quoted hereunder:

x x x it appearing further that the hearing could not yet be finally terminated, the Temporary Protection Order issued on August 23, 2006 is hereby renewed and extended for thirty (30) days and continuously extended and renewed for thirty (30) days, after each expiration, until further orders, and subject to such modifications as may be ordered by the court.

After having received a copy of the foregoing Order, petitioner no longer submitted the required comment to private respondent's motion for renewal of the TPO arguing that it would only be an "exercise in futility."33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and temporary restraining order, challenging (1) the constitutionality of R.A. 9262 for being violative of the due process and the equal protection clauses, and (2) the validity of the modified TPO issued in the civil case for being "an unwanted product of an invalid law."

On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36 (TRO) against the enforcement of the TPO, the amended TPOs and other orders pursuant thereto.

Subsequently, however, on January 24, 2007, the appellate court dismissed36 the petition for failure of petitioner to raise the constitutional issue in his pleadings before the trial court in the civil case, which is clothed with jurisdiction to resolve the same. Secondly, the challenge to the validity of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the trial court constituted a collateral attack on said law.

His motion for reconsideration of the foregoing Decision having been denied in the Resolution37 dated August 14, 2007, petitioner is now before us alleging that –

The Issues

I. THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.

II. THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.

III. THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.

IV. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.

V. THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL POWER TO THE BARANGAY OFFICIALS.38

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the constitutionality of R.A. 9262, we shall first tackle the propriety of the dismissal by the appellate court of the petition for prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.

As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if not raised in the pleadings, ordinarily it may not be raised in the trial, and if not raised in the trial court, it will not be considered on appeal.39 Courts will not anticipate a question of constitutional law in advance of the necessity of deciding it.40

In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City, petitioner argues that the Family Court has limited authority and jurisdiction that is "inadequate to tackle the complex issue of constitutionality."41

We disagree.

Family Courts have authority and jurisdiction to consider the constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997," family courts have exclusive original jurisdiction to hear and decide cases of domestic violence against women and children.42 In accordance with said law, the Supreme Court designated from among the branches of the Regional Trial Courts at least one Family Court in each of several key cities identified.43 To achieve harmony with the first mentioned law, Section 7 of R.A. 9262 now provides that Regional Trial Courts designated as Family Courts shall have original and exclusive jurisdiction over cases of VAWC defined under the latter law, viz:

SEC. 7. Venue. – The Regional Trial Court designated as a Family Court shall have original and exclusive jurisdiction over cases of violence against women and their children under this law. In the absence of such court in the place where the offense was committed, the case shall be filed in the Regional Trial Court where the crime or any of its elements was committed at the option of the complainant. (Emphasis supplied)

Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority as a court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal, special proceedings, land registration, guardianship, naturalization, admiralty or insolvency.44 It is settled that RTCs have jurisdiction to resolve the constitutionality of a statute,45 "this authority being embraced in the general definition of the judicial power to determine what are the valid and binding laws by the criterion of their conformity to the fundamental law."46 The Constitution vests the power of judicial review or the power to declare the constitutionality or validity of a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation not only in this Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue." Section 5, Article VIII of the 1987 Constitution reads in part as follows:

SEC. 5. The Supreme Court shall have the following powers:

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have been raised at the earliest opportunity in his Opposition to the petition for protection order before the RTC of Bacolod City, which had jurisdiction to determine the same, subject to the review of this Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays down a new kind of procedure requiring the respondent to file an opposition to the petition and not an answer.49 Thus:

SEC. 20. Opposition to petition. – (a) The respondent may file an opposition to the petition which he himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why a temporary or permanent protection order should not be issued.

(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party complaint, but

any cause of action which could be the subject thereof may be litigated in a separate civil action. (Emphasis supplied)

We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim and third-party complaint are to be excluded from the opposition, the issue of constitutionality cannot likewise be raised therein. A counterclaim is defined as any claim for money or other relief which a defending party may have against an opposing party.50 A cross-claim, on the other hand, is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein.51 Finally, a third-party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.52 As pointed out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a cause of action that could be the subject of a counterclaim, cross-claim or a third-party complaint. Therefore, it is not prohibited from being raised in the opposition in view of the familiar maxim expressio unius est exclusio alterius.

Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the right of private respondent to a protection order is founded solely on the very statute the validity of which is being attacked53 by petitioner who has sustained, or will sustain, direct injury as a result of its enforcement. The alleged unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid cause for the non-issuance of a protection order.

That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred petitioner from raising the same in his Opposition. The question relative to the constitutionality of a statute is one of law which does not need to be supported by evidence.54 Be that as it may, Section 25 of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to determine legal issues, among others, viz:

SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it may issue an order containing the following:

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

(c) Evidence, including objects and documents that have been marked and will be presented;

(d) Names of witnesses who will be ordered to present their direct testimonies in the form of affidavits; and

(e) Schedule of the presentation of evidence by both parties which shall be done in one day, to the extent possible, within the 30-day period of the effectivity of the temporary protection order issued. (Emphasis supplied)

To obviate potential dangers that may arise concomitant to the conduct of a hearing when necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection order issued is due to expire, the trial court may extend or renew the said order for a period of thirty (30) days each time until final judgment is rendered. It may likewise modify the extended or renewed temporary protection order as may be necessary to meet the needs of the parties. With the private respondent given ample protection, petitioner could proceed to litigate the constitutional issues, without necessarily running afoul of the very purpose for the adoption of the rules on summary procedure.

In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with prayer for injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may have proceeded upon an honest belief that if he finds succor in a superior court, he could be granted an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing of a petition for certiorari, mandamus or prohibition against any interlocutory order issued by the trial court. Hence, the 60-day TRO issued by the appellate court in this case against the enforcement of the TPO, the amended TPOs and other orders pursuant thereto was improper, and it effectively hindered the case from taking its normal course in an expeditious and summary manner.

As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited. Moreover, if the appeal of a judgment granting permanent protection shall not stay its enforcement,55 with more reason that a TPO, which is valid only for thirty (30) days at a time,56 should not be enjoined.

The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a litigant to have the same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United States declared, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. (Citations omitted)

The sole objective of injunctions is to preserve the status quo until the trial court hears fully the merits of the case. It bears stressing, however, that protection orders are granted ex parte so as to protect women and their children from acts of violence. To issue an injunction against such orders will defeat the very purpose of the law against VAWC.

Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel issues, or issues of first impression, with far-reaching implications. We have, time and again, discharged our solemn duty as final arbiter of constitutional issues, and with more reason now, in view of private respondent's plea in her Comment59 to the instant Petition that we should put the challenge to the constitutionality of R.A. 9262 to rest. And so we shall.

Intent of Congress in enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child abuse, which could very well be committed by either the husband or the wife, gender alone is not enough basis to deprive the husband/father of the remedies under the law.60

A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which became R.A. 9262, reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi Estrada), had originally proposed what she called a "synthesized measure"62 – an amalgamation of two measures, namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in Intimate Relationships Act"63 – providing protection to "all family members, leaving no one in isolation" but at the same time giving special attention to women as the "usual victims" of violence and abuse,64 nonetheless, it was eventually agreed that men be denied protection under the same measure.

It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a statute.67 Hence, we dare not venture into the real motivations and wisdom of the members of Congress in limiting the protection against violence and abuse under R.A. 9262 to women and children only. No proper challenge on said grounds may be entertained in this proceeding. Congress has made its choice and it is not our prerogative to supplant this judgment. The choice may be perceived as erroneous but even then, the remedy against it is to seek its amendment or repeal by the legislative. By the principle of separation of powers, it is the legislative that determines the necessity, adequacy, wisdom and expediency of any law.68 We only step in when there is a violation of the Constitution. However, none was sufficiently shown in this case.

R.A. 9262 does not violate the guaranty of equal protection of the laws.

Equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. The oft-repeated disquisition in the early case of Victoriano v. Elizalde Rope Workers' Union69 is instructive:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon

all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences; that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary. (Emphasis supplied)

Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid classification as shall hereinafter be discussed and, as such, did not violate the equal protection clause by favoring women over men as victims of violence and abuse to whom the State extends its protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are more likely than men to be victims of violence; and the widespread gender bias and prejudice against women all make for real differences justifying the classification under the law. As Justice McIntyre succinctly states, "the accommodation of differences ... is the essence of true equality."70

A. Unequal power relationship between men and women

According to the Philippine Commission on Women (the National Machinery for Gender Equality and Women's Empowerment), violence against women (VAW) is deemed to be closely linked with the unequal power relationship between women and men otherwise known as "gender-based violence". Societal norms and traditions dictate people to think men are the leaders, pursuers, providers, and take on dominant roles in society while women are nurturers, men's companions and supporters, and take on subordinate roles in society. This perception leads to men gaining more power over women. With power comes the need to control to retain that power. And VAW is a form of men's expression of controlling women to retain power.71

The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution 48/104 on the Declaration on Elimination of Violence Against Women on December 20, 1993 stating that "violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into subordinate positions, compared with men."72

Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based violence and developments in advocacies to eradicate VAW, in his remarks delivered during the Joint Launching of R.A. 9262 and its Implementing Rules last October 27, 2004, the pertinent portions of which are quoted hereunder:

History reveals that most societies sanctioned the use of violence against women. The patriarch of a family was accorded the right to use force on members of the family under his control. I quote the early studies:

Traditions subordinating women have a long history rooted in patriarchy – the institutional rule of men. Women were seen in virtually all societies to be naturally inferior both physically and intellectually. In ancient Western societies, women whether slave, concubine or wife, were under the authority of men. In law, they were treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she endangered his property right over her. Judaism, Christianity and

other religions oriented towards the patriarchal family strengthened the male dominated structure of society.

English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone has been quoted in his commentaries as saying husband and wife were one and that one was the husband. However, in the late 1500s and through the entire 1600s, English common law began to limit the right of husbands to chastise their wives. Thus, common law developed the rule of thumb, which allowed husbands to beat their wives with a rod or stick no thicker than their thumb.

In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict corporeal punishment ceased. Even then, the preservation of the family was given more importance than preventing violence to women.

The metamorphosis of the law on violence in the United States followed that of the English common law. In 1871, the Supreme Court of Alabama became the first appellate court to strike down the common law right of a husband to beat his wife:

The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her, spit in her face or kick her about the floor, or to inflict upon her like indignities, is not now acknowledged by our law... In person, the wife is entitled to the same protection of the law that the husband can invoke for himself.

As time marched on, the women's advocacy movement became more organized. The temperance leagues initiated it. These leagues had a simple focus. They considered the evils of alcoholism as the root cause of wife abuse. Hence, they demonstrated and picketed saloons, bars and their husbands' other watering holes. Soon, however, their crusade was joined by suffragette movements, expanding the liberation movement's agenda. They fought for women's right to vote, to own property, and more. Since then, the feminist movement was on the roll.

The feminist movement exposed the private invisibility of the domestic violence to the public gaze. They succeeded in transforming the issue into an important public concern. No less than the United States Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:

In an average 12-month period in this country, approximately two million women are the victims of severe assaults by their male partners. In a 1985 survey, women reported that nearly one of every eight

husbands had assaulted their wives during the past year. The [American Medical Association] views these figures as "marked underestimates," because the nature of these incidents discourages women from reporting them, and because surveys typically exclude the very poor, those who do not speak English well, and women who are homeless or in institutions or hospitals when the survey is conducted. According to the AMA, "researchers on family violence agree that the true incidence of partner violence is probably double the above estimates; or four million severely assaulted women per year."

Studies on prevalence suggest that from one-fifth to one-third of all women will be physically assaulted by a partner or ex-partner during their lifetime... Thus on an average day in the United States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents involve sexual assault... In families where wife beating takes place, moreover, child abuse is often present as well.

Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of abuse. Psychological abuse, particularly forced social and economic isolation of women, is also common.

Many victims of domestic violence remain with their abusers, perhaps because they perceive no superior alternative...Many abused women who find temporary refuge in shelters return to their husbands, in large part because they have no other source of income... Returning to one's abuser can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all homicide victims in the United States are killed by their spouses...Thirty percent of female homicide victims are killed by their male partners.

Finally in 1994, the United States Congress enacted the Violence Against Women Act.

In the International front, the women's struggle for equality was no less successful. The United States Charter and the Universal Declaration of Human Rights affirmed the equality of all human beings. In 1979, the UN General Assembly adopted the landmark Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also adopted the Declaration on the Elimination of Violence Against Women. World conferences on the role and rights of women have been regularly held in Mexico City, Copenhagen, Nairobi and Beijing. The UN itself established a Commission on the Status of Women.

The Philippines has been in cadence with the half – and full – steps of all these women's movements. No less than Section 14, Article II of our 1987 Constitution mandates the State to recognize the role of women in nation building and to ensure the fundamental equality before the law of women and men. Our Senate has ratified the CEDAW as well as the Convention on the Rights of the Child and its two protocols. To cap it all, Congress, on March 8, 2004, enacted Rep. Act No. 9262, entitled "An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties therefor and for other Purposes." (Citations omitted)

B. Women are the "usual" and "most likely" victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women and children show that –

x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total cases reported (9,903). And for the first semester of 2003, there were 2,381 reported cases out of 4,354 cases which represent 54.31%. xxx (T)he total number of women in especially difficult circumstances served by the Department of Social Welfare and Development (DSWD) for the year 2002, there are 1,417 physically abused/maltreated cases out of the total of 5,608 cases. xxx (T)here are 1,091 DSWD cases out of a total number of 3,471 cases for the first semester of 2003. Female violence comprised more than 90% of all forms of abuse and violence and more than 90% of these reported cases were committed by the women's intimate partners such as their husbands and live-in partners.

On the other hand, no reliable estimates may be obtained on domestic abuse and violence against men in the Philippines because incidents thereof are relatively low and, perhaps, because many men will not even attempt to report the situation. In the United Kingdom, 32% of women who had ever experienced domestic violence did so four or five (or more) times, compared with 11% of the smaller number of men who had ever experienced domestic violence; and women constituted 89% of all those who had experienced 4 or more incidents of domestic violence.75 Statistics in Canada show that spousal violence by a woman against a man is less likely to cause injury than the other way around (18 percent versus 44 percent). Men, who experience violence from their spouses are much less likely to live in fear of violence at the hands of their spouses, and much less likely to experience sexual assault. In fact, many cases of physical violence by a

woman against a spouse are in self-defense or the result of many years of physical or emotional abuse.76

While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the Philippines, the same cannot render R.A. 9262 invalid.

In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles to pick up, gather and deposit in receptacles the manure emitted or discharged by their vehicle-drawing animals in any public highways, streets, plazas, parks or alleys, said ordinance was challenged as violative of the guaranty of equal protection of laws as its application is limited to owners and drivers of vehicle-drawing animals and not to those animals, although not utilized, but similarly pass through the same streets.

The ordinance was upheld as a valid classification for the reason that, while there may be non-vehicle-drawing animals that also traverse the city roads, "but their number must be negligible and their appearance therein merely occasional, compared to the rig-drawing ones, as not to constitute a menace to the health of the community."77 The mere fact that the legislative classification may result in actual inequality is not violative of the right to equal protection, for every classification of persons or things for regulation by law produces inequality in some degree, but the law is not thereby rendered invalid.78

C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and sentencing, crimes against women are often treated differently and less seriously than other crimes. This was argued by then United States Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence Against Women Act (VAWA), in defending the civil rights remedy as a valid exercise of the U.S. Congress' authority under the Commerce and Equal Protection Clauses. He stressed that the widespread gender bias in the U.S. has institutionalized historic prejudices against victims of rape or domestic violence, subjecting them to "double victimization" – first at the hands of the offender and then of the legal system.79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that "(w)henever violence occurs in the family, the police treat it as a private matter and advise the parties to settle the conflict themselves. Once the complainant brings the case to the prosecutor, the latter is hesitant to file the complaint for fear that it might later be withdrawn. This lack of response or reluctance to be

involved by the police and prosecution reinforces the escalating, recurring and often serious nature of domestic violence."80

Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct Unbecoming of a Judge. He used derogatory and irreverent language in reference to the complainant in a petition for TPO and PPO under R.A. 9262, calling her as "only a live-in partner" and presenting her as an "opportunist" and a "mistress" in an "illegitimate relationship." Judge Amila even called her a "prostitute," and accused her of being motivated by "insatiable greed" and of absconding with the contested property.81 Such remarks betrayed Judge Amila's prejudices and lack of gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by biases and prejudices against women. As emphasized by the CEDAW Committee on the Elimination of Discrimination against Women, addressing or correcting discrimination through specific measures focused on women does not discriminate against men.82 Petitioner's contention,83 therefore, that R.A. 9262 is discriminatory and that it is an "anti-male," "husband-bashing," and "hate-men" law deserves scant consideration. As a State Party to the CEDAW, the Philippines bound itself to take all appropriate measures "to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women."84 Justice Puno correctly pointed out that "(t)he paradigm shift changing the character of domestic violence from a private affair to a public offense will require the development of a distinct mindset on the part of the police, the prosecution and the judges."85

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262, which is to address violence committed against women and children, spelled out in its Declaration of Policy, as follows:

SEC. 2. Declaration of Policy. – It is hereby declared that the State values the dignity of women and children and guarantees full respect for human rights. The State also recognizes the need to protect the family and its members particularly women and children, from

violence and threats to their personal safety and security.

Towards this end, the State shall exert efforts to address violence committed against women and children in keeping with the fundamental freedoms guaranteed under the Constitution and the provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, Convention on the Rights of the Child and other international human rights instruments of which the Philippines is a party.

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August 5, 1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the Philippines on October 6, 2003.86 This Convention mandates that State parties shall accord to women equality with men before the law87 and shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations on the basis of equality of men and women.88 The Philippines likewise ratified the Convention on the Rights of the Child and its two protocols.89 It is, thus, bound by said Conventions and their respective protocols.

III. The classification is not limited to existing conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was promulgated, but to future conditions as well, for as long as the safety and security of women and their children are threatened by violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3 thereof defines VAWC as:

x x x any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser;

b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following:

1. withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code;

2. deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common;

3. destroying household property;

4. controlling the victims' own money or properties or solely controlling the conjugal money or properties.

It should be stressed that the acts enumerated in the aforequoted provision are attributable to research that has exposed the dimensions and dynamics of battery.

The acts described here are also found in the U.N. Declaration on the Elimination of Violence Against Women.90 Hence, the argument advanced by petitioner that the definition of what constitutes abuse removes the difference between violent action and simple marital tiffs is tenuous.

There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner in his defense. The acts enumerated above are easily understood and provide adequate contrast between the innocent and the prohibited acts. They are worded with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited, and need not guess at its meaning nor differ in its application.91 Yet, petitioner insists92 that phrases like "depriving or threatening to deprive the woman or her child of a legal right," "solely controlling the conjugal or common money or properties," "marital infidelity," and "causing mental or emotional anguish" are so vague that they make every quarrel a case of spousal abuse. However, we have stressed that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld – not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions.93

There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the culprit. As defined above, VAWC may likewise be committed "against a woman with whom the person has or had a sexual or dating relationship." Clearly, the use of the gender-neutral word "person" who has or had a sexual or dating relationship with the woman encompasses even lesbian relationships. Moreover, while the law provides that the offender be related or connected to the victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the Revised Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the victim, were held to be proper respondents in the case filed by the latter upon the allegation that they and their son (Go-Tan's husband) had community of design and purpose in tormenting her by giving her insufficient financial support; harassing and pressuring her to be ejected from the family home; and in repeatedly abusing her verbally, emotionally, mentally and physically.

R.A. 9262 is not violative of the due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections afforded by the due process clause of the Constitution. Says he: "On the basis of unsubstantiated allegations, and practically no opportunity to respond, the husband is stripped of family, property, guns, money, children, job, future employment and reputation, all in a matter of seconds, without an inkling of what happened."95

A protection order is an order issued to prevent further acts of violence against women and their children, their family or household members, and to grant other necessary reliefs. Its purpose is to safeguard the offended parties from further harm, minimize any disruption in their daily life and facilitate the opportunity and ability to regain control of their life.96

"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to safeguard the victim from greater risk of violence; to accord the victim and any designated family or household member safety in the family residence, and to prevent the perpetrator from committing acts that jeopardize the employment and support of the victim. It also enables the court to award temporary custody of minor children to protect the children from violence, to prevent their abduction by the perpetrator and to ensure their financial support."97

The rules require that petitions for protection order be in writing, signed and verified by the petitioner98 thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since "time is of the essence in cases of VAWC if further violence is to be prevented,"99 the court is authorized to issue ex parte a TPO after raffle but before notice and hearing when the life, limb or property of the victim is in jeopardy and there is reasonable ground to believe that the order is necessary to protect the victim from the immediate and imminent danger of VAWC or to prevent such violence, which is about to recur.100

There need not be any fear that the judge may have no rational basis to issue an ex parte order. The victim is required not only to verify the allegations in the petition, but also to attach her witnesses' affidavits to the petition.101

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process. Just like a writ of preliminary attachment which is issued

without notice and hearing because the time in which the hearing will take could be enough to enable the defendant to abscond or dispose of his property,102 in the same way, the victim of VAWC may already have suffered harrowing experiences in the hands of her tormentor, and possibly even death, if notice and hearing were required before such acts could be prevented. It is a constitutional commonplace that the ordinary requirements of procedural due process must yield to the necessities of protecting vital public interests,103 among which is protection of women and children from violence and threats to their personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that notice be immediately given to the respondent directing him to file an opposition within five (5) days from service. Moreover, the court shall order that notice, copies of the petition and TPO be served immediately on the respondent by the court sheriffs. The TPOs are initially effective for thirty (30) days from service on the respondent.104

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and service of the notice upon the respondent requiring him to file an opposition to the petition within five (5) days from service. The date of the preliminary conference and hearing on the merits shall likewise be indicated on the notice.105

The opposition to the petition which the respondent himself shall verify, must be accompanied by the affidavits of witnesses and shall show cause why a temporary or permanent protection order should not be issued.106

It is clear from the foregoing rules that the respondent of a petition for protection order should be apprised of the charges imputed to him and afforded an opportunity to present his side. Thus, the fear of petitioner of being "stripped of family, property, guns, money, children, job, future employment and reputation, all in a matter of seconds, without an inkling of what happened" is a mere product of an overactive imagination. The essence of due process is to be found in the reasonable opportunity to be heard and submit any evidence one may have in support of one's defense. "To be heard" does not only mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process.107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte Motion for Renewal of the TPO that was granted only two days earlier on April 24, 2006. Likewise, on May 23, 2006, petitioner filed a motion for the modification of the TPO to allow him visitation rights to his children. Still, the trial court in its Order dated September 26, 2006, gave him five days (5) within which to show cause why the TPO should not be renewed or extended. Yet, he chose not to file the required comment arguing that it would just be an "exercise in futility," conveniently forgetting that the renewal of the questioned TPO was only for a limited period (30 days) each time, and that he could prevent the continued renewal of said order if he can show sufficient cause therefor. Having failed to do so, petitioner may not now be heard to complain that he was denied due process of law.

Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from the residence of the victim, regardless of ownership of the residence, is virtually a "blank check" issued to the wife to claim any property as her conjugal home.108

The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that this is so. It states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or all of the following reliefs:

(c) Removing and excluding the respondent from the residence of the offended party, regardless of ownership of the residence, either temporarily for the purpose of protecting the offended party, or permanently where no property rights are violated. If the respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the respondent to the residence, remain there until the respondent has gathered his things and escort him from the residence;

Indubitably, petitioner may be removed and excluded from private respondent's residence, regardless of ownership, only temporarily for the purpose of protecting the latter. Such removal and exclusion may be permanent only where no property rights are violated. How then can the private respondent just claim any property and appropriate it for herself, as petitioner seems to suggest?

The non-referral of a VAWC case to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation and counseling, the law has done violence to the avowed policy of the State to "protect and strengthen the family as a basic autonomous social institution."109

Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof to a mediator. The reason behind this provision is well-explained by the Commentary on Section 311 of the Model Code on Domestic and Family Violence as follows:110

This section prohibits a court from ordering or referring parties to mediation in a proceeding for an order for protection. Mediation is a process by which parties in equivalent bargaining positions voluntarily reach consensual agreement about the issue at hand. Violence, however, is not a subject for compromise. A process which involves parties mediating the issue of violence implies that the victim is somehow at fault. In addition, mediation of issues in a proceeding for an order of protection is problematic because the petitioner is frequently unable to participate equally with the person against whom the protection order has been sought. (Emphasis supplied)

There is no undue delegation of judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial power which, under the Constitution, is placed upon the "Supreme Court and such other lower courts as may be established by law" and, thus, protests the delegation of power to barangay officials to issue protection orders.111 The pertinent provision reads, as follows:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – Barangay Protection Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist from committing acts under Section 5 (a) and (b) of this Act.1âwphi1 A Punong Barangay who receives applications for a BPO shall issue the protection order to the applicant on the date of filing after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to act on the application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time of the issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the

issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct any barangay official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong Barangay.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.112 On the other hand, executive power "is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a) causing physical harm to the woman or her child; and (2) threatening to cause the woman or her child physical harm. Such function of the Punong Barangay is, thus, purely executive in nature, in pursuance of his duty under the Local Government Code to "enforce all laws and ordinances," and to "maintain public order in the barangay."114

We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of certain facts and to apply the law thereto in order to determine what his official conduct shall be and the fact that these acts may affect private rights do not constitute an exercise of judicial powers."115

In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding "whether there is reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof," the Punong Barangay must determine reasonable ground to believe that an imminent danger of violence against the woman and her children exists or is about to recur that would necessitate the issuance of a BPO. The preliminary investigation conducted by the prosecutor is, concededly, an executive, not a judicial, function. The same holds true with the issuance of a BPO.

We need not even belabor the issue raised by petitioner that since barangay officials and other law enforcement agencies are required to extend assistance to victims of

violence and abuse, it would be very unlikely that they would remain objective and impartial, and that the chances of acquittal are nil. As already stated, assistance by barangay officials and other law enforcement agencies is consistent with their duty to enforce the law and to maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear conflict with the Constitution, not merely a doubtful or argumentative one, must be demonstrated in such a manner as to leave no doubt in the mind of the Court. In other words, the grounds for nullity must be beyond reasonable doubt.116 In the instant case, however, no concrete evidence and convincing arguments were presented by petitioner to warrant a declaration of the unconstitutionality of R.A. 9262, which is an act of Congress and signed into law by the highest officer of the co-equal executive department. As we said in Estrada v. Sandiganbayan, 117 courts must assume that the legislature is ever conscious of the borders and edges of its plenary powers, and passed laws with full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority.

We reiterate here Justice Puno's observation that "the history of the women's movement against domestic violence shows that one of its most difficult struggles was the fight against the violence of law itself. If we keep that in mind, law will not again be a hindrance to the struggle of women for equality but will be its fulfillment."118 Accordingly, the constitutionality of R.A. 9262 is, as it should be, sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.

SO ORDERED.

AMELIA AQUINO, RODOLFO TAGGUEG, JR.,* ADELAIDA HERNANDEZ and LEOPOLDO BISCOCHO, JR., Petitioners, vs. PHILIPPINE PORTS AUTHORITY, Respondent.

Before this Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court praying that the Decision2 dated 29 August 2007 of the Court of Appeals (CA) in CA-G.R. SP No. 91743 be set aside. In the assailed decision, the CA reversed the 10 August 2005 Decision3 and 15 September 2005 Order4 of the Regional Trial Court (RTC), Branch 55, Manila.

Background of the case

The Congress of the Philippines passed on 21 August 19895 Republic Act (R.A.) No. 6758 entitled "An Act Prescribing a Revised Compensation and Position Classification in the Government and for Other Purposes" otherwise known as The Salary Standardization Law.

Before the law, or on 31 August 1979, then President Ferdinand E. Marcos issued Letter of Implementation No. 97 (LOI No. 97), authorizing the implementation of standard compensation position classification plans for the infrastructure/utilities group of government-owned or controlled corporations. On the basis thereof, the Philippine Ports Authority (PPA) issued Memorandum Circular No. 57-87 dated 1 October 1987 which granted to its officials holding managerial and supervisory positions representation and transportation allowance (RATA) in an amount equivalent to 40% of their basic salary.6

Thereafter, on 23 October 1989, PPA issued Memorandum Circular No. 36-89, which extended the RATA entitlement to its Section Chiefs or heads of equivalent units, Terminal Supervisors and senior personnel at the rate of 20% of their basic pay.7 And, on 14 November 1990, PPA issued Memorandum Circular No. 46-90, which adjusted effective 1 January 1990, the RATA authorized under Memorandum Circular No. 36-89, from 20% to 40% based on the standardized salary rate.8

The continued validity of the RATA grant to the maximum ceiling of 40% of basic pay finds support from the Opinions9 rendered by the Office of the Government Corporate Counsel (OGCC), Department of Justice.

Finding justification in the increase in salary due these officials brought about by the standardization mandated by R.A. No. 6758, PPA paid RATA differentials to its officials.

The Commission on Audit (COA) Corporate Auditor, however, in a letter dated 14 November 1990, addressed to PPA, disallowed in post-audit the payment of the RATA differentials. It likewise disallowed in audit the grant of RATA to PPA Section Chiefs or heads of equivalent units, Terminal Supervisors and senior personnel occupying positions with salary grades of 17 and above who were appointed after the effectivity of R.A. No. 6758.

The COA called PPA’s attention to Memorandum No. 90-679 dated 30 October 1990 which provides that

"LOImp No. 97 series of 1979 implementing Compensation and Position Classification for Infrastructure/Utilities for GOCC is replaced by Section 16 of R.A. No. 6758."10

In view of the disallowances, the affected PPA officials, represented by the OGCC, filed a petition before the Supreme Court claiming their entitlement to the RATA provided for under LOI No. 97. The case was docketed as G.R. No. 100773 entitled "Philippine Ports Authority v. Commission on Audit, et al."11

In a decision dated 16 October 1992, the Supreme Court ruled in favor of the COA and declared that an official to be entitled to the continued RATA benefit under LOI No. 97 must be an incumbent as of 1 July 1989 and more importantly, was receiving the RATA provided by LOI No. 97 as of 1 July 1989.

As a result of the aforesaid ruling, there are at present two categories of managers and supervisors at the PPA. The first category is composed of PPA officials who were occupying their positions and actually receiving the 40% RATA under LOI No. 97 as of 1 July 1989 and who continue to receive such benefit. The second category consists of officials who were not incumbents as of 1 July 1989 or were appointed or promoted to their positions only after 1 July 1989. The second category officials therefore receive a lesser RATA under the General Appropriations Act although they hold the same rank, title and may have the same responsibilities as their counterparts in the first category.

The Case

On 26 July 2000, petitioners, who are second category PPA officials filed a Petition for Mandamus and Prohibition before the RTC of Manila, raffled to Branch 55. They claim anew that they are entitled to RATA in the amount not exceeding 40% of their respective basic salaries. They anchor their petition on recent developments allegedly brought about by the decision of the Supreme Court in the case of De Jesus v. Commission on Audit, et al.12 which was decided almost six (6) years after the Court’s decision in PPA v. COA, et al.13 They further claim that certain issuances were released by the COA and the Department of Budget and Management (DBM), which in effect, extended the cut-off date in the grant of the 40% RATA, thus entitling them to these benefits.

PPA filed a motion to dismiss on the ground of res judicata under paragraph (f), Rule 16 of the Rules of Court. It argued that a case involving the same parties, subject matter and cause of action had already been resolved by this Court in PPA v. COA, et al.14

Finding merit in PPA’s motion, the RTC ordered the dismissal of the petition in an Order dated 8 November 2000. The dispositive portion of the Order reads:

WHEREFORE, premises considered, the Motion to Dismiss is hereby GRANTED, and the Petition in this case is hereby DISMISSED on the ground that it is already barred by the principle of res judicata.15

Petitioners elevated the case before the Supreme Court by way of appeal under Rule 45 of the Rules of Court. The Supreme Court, however, in a Resolution16 dated 28 March 2001 referred the case to the CA for appropriate action. The case was docketed as CA G.R. SP No. 64702.

On 31 July 2002, a decision was rendered by the CA on the referred case. It declared that the principle of res judicata is not applicable to the case. The appellate court explained that the existence of DBM and COA issuances which entitle herein petitioners to the grant of RATA is the pertinent fact and condition which is material to the instant case taking it away from the domain of the principle of res judicata.17 When new facts or conditions intervene before the second suit, furnishing a new basis for the claims and defenses of the party, the issues are no longer the same; hence, the former judgment cannot be pleaded as a bar to the subsequent action.18 At the time judgment was rendered in the previous case, the fact and condition now in existence, which consist of the DBM and COA issuances, has not yet come about. In view of the issuances, petitioners are faced with an entirely separate facts and conditions, which make the principle of res judicata inapplicable.19 The decision ordered the remand of the case to the court of origin for continuation of proceedings.

After due proceedings in the trial court, a decision in favor of petitioners was rendered on 10 August 2005. The dispositive portion of the decision commanded respondent PPA to pay the claim for RATA equivalent to 40% of petitioners’ standardized basic salaries authorized under LOI No. 97, commencing from their respective dates of appointments or on 23 October 2001 when the case of Irene V. Cruz, et al. v. COA20 was promulgated by the Supreme Court, whichever is later.

The trial court ratiocinated that "when the Supreme Court En Banc ruled on 23 October 2001 in the IRENE CRUZ case that ‘The date of hiring of an employee cannot be considered as a substantial distinction,’ the so-called first (sic) category managers and supervisors whose appointments thereto were made after 01 July 1989 and who were effectively deprived of the 40%

RATA on account of the Supreme Court’s ruling in the PPA v. COA, et al. case have established a clear legal right to claim the 40% RATA under LOI No. 97 commencing on 23 October 2001, and the correlative legal duty of respondent PPA to pay the same; thus, entitling petitioners who are qualified to avail of the extraordinary remedy of mandamus."21

PPA raised the matter before the CA which docketed the case as CA G.R. SP No. 91743. In a decision dated 29 August 2007, the appellate court reversed the decision of the trial court and held:

WHEREFORE, premises considered, the August 10, 2005 Decision and the September 15, 2005 Order of the Regional Trial Court, Branch 55, National Capital Judicial Region, Manila, are hereby REVERSED. Accordingly, the Amended Petition in Civil Case No. 00-98161 is hereby DISMISSED. No costs.22

Petitioners filed a motion for reconsideration but this was denied by the appellate court in a resolution dated 29 February 2008.

Hence, this petition assailing the 29 August 2007 decision of the CA and its 29 February 2008 resolution.

Issues

Petitioners raise the following issues for resolution:

I. WHETHER OR NOT THE PRINCIPLE OF RES JUDICATA IS APPLICABLE IN THE INSTANT CASE TAKING INTO CONSIDERATION THE FINAL DECISION OF THE COURT OF APPEALS IN CA. G.R. SP NO. 64702.

II. WHETHER OR NOT PPA IN DENYING THE CLAIM OF PETITIONERS FOR 40% RATA HAS COMMITTED A VIOLATION OF THEIR CONSTITUTIONAL RIGHT TO EQUAL PROTECTION; AND

III. WHETHER OR NOT PETITIONERS ARE ENTITLED TO 40% RATA AND SHOULD NOT BE MADE TO REFUND THE RATA THEY HAD ALREADY RECEIVED.

Petitioners’ Argument

Petitioners submit that the decision of the CA in CA G.R. SP No. 64702 adequately cited jurisprudence and authorities on the matter involving the issue of res judicata. Such decision of the appellate court was not appealed by the PPA and as such, has attained finality. In view thereof, petitioners allege that the case of PPA v. COA, et al.23 can no longer serve as a ground for the dismissal of the instant case since such would result in "the sacrifice of justice to technicality."24

Petitioners further submit that the CA in its decision in CA G.R. SP No. 91743 may have overlooked the significance of the Supreme Court’s ruling in the case of De Jesus v. Commission on Audit, et al.25 which extended the prescribed date of effectivity of R.A. No. 6758 from 1 July 1989 to 31 October 1989, viz:

In the present case under scrutiny, it is decisively clear that DBM-CCC No. 10, which completely disallows payment of allowances and other additional compensation to government officials and employees starting November 1, 1989 is not a mere interpretative or internal regulation. It is something more than that. And why not, when it tends to deprive government workers of their allowances and additional compensation sorely needed to keep body and soul together. x x x

Petitioners claim that the DBM, which is the agency tasked to implement R.A. No. 6758, amplified this extension in its 4 May 1992 letter to the Administrator of the National Electrification Administration (NEA). The pertinent portion of the letter reads:

DBM has authorized certain GOCCs/GFIs to grant also to officials and employees hired between the period of July 1, 1989 and October 31, 1989 the allowances and fringe benefit enumerated in said Item 5.5 of CCC No. 10.

At this juncture it is pertinent to point out that although the effectivity date prescribed in R.A. No. 6758 is July 1, 1989, said Act and its implementing circulars were formally promulgated only in the later part of October 1989. The preparation of all required documents, more particularly the Index of Occupational Services (IOS) and the Position Allocation List (PAL) for the GOCCs/GFIs was completed at much later date. Thus, within the period of transition from July 1, 1989 up to the date of completion of all the required documents for the actual implementation by each GOCC/GFI of said salary standardization, flexibility in the interpretation of rules and regulations prescribed under R.A. 6758 was necessary. DBM felt it illogical to assume that during the period R.A. 6758 was not yet issued all GOCCs/GFIs were already aware of what implementing guidelines it (DBM) will prescribe and have their personnel actions accordingly adjusted to said guidelines. Likewise, it is counter-productive if at that time, we advised all GOCCs/GFIs to suspend their personnel actions as same could be disruptive to their operations and delay the completion of important projects.

Premised on the above considerations, we maintain the position that our action allowing officials and employees

hired between the period of July 1, 1989 and October 31, 1989 to be paid allowances under Item No. 5.5 of CCC No. 10 is logically tenable and reasonable since same was made during the "transitory period" from the old system to the new system.26

They further claim that even the COA took cognizance of this extension in the memorandum27 issued by the officer-in-charge of the COA Audit Office, to wit:

Moreover, this office gives much weight to the position of the Secretary, DBM in his letter to the Administrator, NEA, dated October 30, 1993 that the cut-off date of July 1, 1989 prescribed in R.A. 6758/CCC #10 was extended to October 31, 1989 primarily on consideration that said R.A. 6758/CCC #10 were formally issued/promulgated only in the later part of October 1989. x x x

Petitioners likewise raised as their cause of action the violation of their constitutional right to equal protection of the law. They contend that this alone would constitute sufficient justification for the filing anew of the instant petition. Contrary to the statement in the assailed decision of the CA to the effect that they failed to plead or raise such issue in the trial court, they submit that a perusal of their amended petition would show that paragraphs 30, 31, 32 and 33 thereof were devoted to that issue.

Finally, as regards the matter of refund of the RATA being demanded by COA, petitioners submit that they should not be required to make such refund since these were received in good faith and on the honest belief that they were entitled to it.

PPA’s Argument

Respondent PPA maintains that PPA employees who were appointed to managerial and supervisory positions after the effectivity of RA No. 6758 are not entitled to the 40% RATA benefit provided under LOI No. 97. Consistent with the ruling of the Court in PPA v. COA, et al.,28 respondent PPA contends that only the first category officials or those who were granted and were receiving RATA equivalent to 40% of their salaries prior to 1 July 1989 are entitled to such benefits. Petitioners who are included in the second category officials or those who are not incumbents as of 1 July 1989 are not entitled to the 40% RATA benefit provided under LOI No. 97.

Our Ruling

There is merit in petitioners’ argument that their petition should not be dismissed on the ground of res judicata since this is based on jurisprudence and

issuances not yet in existence at the time of the promulgation of the Court’s decision in PPA v. COA, et al.29 Petitioners are, however, incorrect in their contention that the decision of the appellate court in CA-G.R. SP No. 64702 which was not appealed by the PPA has become final and as such, barred the appellate court’s subsequent ruling in CA-G.R. SP No. 91743.

We note that when the petition was elevated to the CA in the first instance in CA-G.R. SP No. 64702, the matter submitted to be resolved by the appellate court was simply the issue on whether the trial court was correct in granting the motion to dismiss and in declaring that the case is barred by the principle of res judicata. Despite the non-appeal by PPA of the appellate court’s ruling that res judicata is not applicable, the case did not attain finality in view of the order of the CA remanding the case to the trial court for continuation of hearing. The appellate court’s ruling in CA G.R. SP No. 91743, therefore, was not barred by the ruling in CA G.R. SP No. 64702 since the ruling in the second instance was already a ruling after trial on the merits.

Although the principle of res judicata is not applicable, the petition must still fail because our ruling must adhere to the doctrine of stare decisis. In Chinese Young Men's Christian Association of the Philippine Islands v. Remington Steel Corporation,30 the Court expounded on the importance of this doctrine in securing certainty and stability of judicial decisions, thus:

Time and again, the court has held that it is a very desirable and necessary judicial practice that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases in which the facts are substantially the same. Stare decisis et non quieta movere. Stand by the decisions and disturb not what is settled. Stare decisis simply means that for the sake of certainty, a conclusion reached in one case should be applied to those that follow if the facts are substantially the same, even though the parties may be different. It proceeds from the first principle of justice that, absent any powerful countervailing considerations, like cases ought to be decided alike. Thus, where the same questions relating to the same event have been put forward by the parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to relitigate the same issue. (Emphasis supplied)

The issues raised by petitioners are no longer novel. In a catena of Cases31 promulgated after De Jesus v. COA32 and Cruz v. COA,33 this Court has ruled that the pronouncement it has established in the earlier case of

PPA v. COA, et al.34 with regard to the interpretation and application of Section 12 of RA 6758 is still applicable. The subsequent decisions maintained that allowances or fringe benefits, whether or not integrated into the standardized salaries prescribed by R.A. 6758, should continue to be enjoyed only by employees who (1) were incumbents and (2) were receiving those benefits as of 1 July 1989.

In those cases, the Court reiterated that the intention of the framers of the law was to phase out certain allowances and privileges gradually, without upsetting the principle of non-diminution of pay. The intention of Section 12 to protect incumbents who were already receiving those allowances on 1 July 1989, when RA 6758 took effect was emphasized thus:

An incumbent is a person who is in present possession of an office.

The consequential outcome, under sections 12 and 17, is that if the incumbent resigns or is promoted to a higher position, his successor is no longer entitled to his predecessor’s RATA privilege x x x or to the transition allowance.

Finally, to explain what July 1, 1989 pertained to, we held in the same case as follows:

x x x. The date July 1, 1989 becomes crucial only to determine that as of said date, the officer was an incumbent and was receiving the RATA, for purposes of entitling him to its continued grant. x x x.

In Philippine International Trading Corporation v. COA, the Court confirmed the legislative intention in this wise:

x x x There was no intention on the part of the legislature to revoke existing benefits being enjoyed by incumbents of government positions at the time of the passage of RA 6758 by virtue of Sections 12 and 17 thereof. x x x.

The Court stressed that in reserving the benefits to incumbents alone, the legislature’s intention was not only to adhere to the policy of non-diminution of pay, but also to be consistent with the prospective application of laws and the spirit of fairness and justice.35 (Emphasis omitted)

The disquisition of the Court in Philippine National Bank v. Palma36 is instructive, viz:

The reliance of the court a quo on Cruz v. COA is misplaced. It was held in that case that the specific date of hiring, October 31, 1989, had been not only

arbitrarily determined by the COA, but also used as an unreasonable and unsubstantial basis for awarding allowances to employees. The basis for the Court’s ruling was not primarily the resulting disparity in salaries received for the same work rendered but, more important, the absence of a distinction in the law that allowed the grant of such benefits -- between those hired before and those after the said date.

Thus, setting a particular date as a distinction was nullified, not because it was constitutionally infirm or was against the "equal pay for equal work" policy of RA 6758. Rather, the reason was that the COA had acted without or in excess of its authority in arbitrarily choosing October 31, 1989, as the cutoff date for according the allowances. It was explained that "when the law does not distinguish, neither should the court." And for that matter, neither should the COA.

In consonance with stare decisis, there should be no more misgivings about the proper application of Section 12. In the present case, the payment of benefits to employees hired after July 1, 1989, was properly withheld, because the law clearly mandated that those benefits should be reserved only to incumbents who were already enjoying them before its enactment. Withholding them from the others ensured that the compensation of the incumbents would not be diminished in the course of the latter’s continued employment with the government agency.

It bears emphasis also that in promulgating the Irene Cruz case, there was no intention on the part of the Court to abandon its earlier ruling in PPA v. COA, et al.37 The factual circumstances in the former case are different from those attendant in the case of herein petitioners. In fine, the Irene Cruz case is not on all fours with the present case. The petitioners in the former case, who were employees of the Sugar Regulatory Administration, were able to obtain from the Office of the President a post facto approval or ratification of their social amelioration benefit.1âwphi1 No such authority granted by the Office of the President has been presented by the second category officials of the PPA.

Petitioners further invoked that the denial of their claim of 40% RATA violated their constitutional right to equal protection of the laws. We note that the Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not prohibit discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which

it is directed or by the territory within which it is to operate.38

The equal protection of the laws clause of the Constitution allows classification. x x x. A law is not invalid simply because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class.39

As explained earlier, the different treatment accorded the second sentence (first paragraph) of Section 12 of RA 6758 to the incumbents as of 1 July 1989, on one hand, and those employees hired on or after the said date, on the other, with respect to the grant of non-integrated benefits lies in the fact that the legislature intended to gradually phase out the said benefits without, however, upsetting its policy of non-diminution of pay and benefits.40

The consequential outcome under Sections 12 and 17 is that if the incumbent resigns or is promoted to a higher position, his successor is no longer entitled to his predecessor’s RATA privilege or to the transition allowance. After 1 July 1989, the additional financial incentives such as RATA may no longer be given by the GOCCs with the exemption of those which were authorized to be continued under Section 12 of RA 6758.41

Therefore, the aforesaid provision does not infringe the equal protection clause of the Constitution as it is based on reasonable classification intended to protect the rights of the incumbents against diminution of their pay and benefits.42

Anent the issue of refund, we note that petitioners were referring to the RAT A received by the second category officials pursuant to PPA Memorandum Circular No. 36-89 dated 23 October 1989 and PPA Memorandum Circular No. 46-90 dated 14 November 1990. We deem it 110 longer necessary to discuss this issue considering that it was already ruled upon in the earlier PPA case and was even part of the dispositive portion43 of the decision which became final and executory. Well-settled is the rule that once a judgment becomes final and executory, it can no longer be disturbed, altered, or modified in any respect. It is

essential to an effective administration of justice that once a judgment has become final, the issue or cause therein should be laid to rest.44 The arguments of petitioners regarding this issue should have been raised in that case and not in this present petition.

We conclude this case with the words borrowed from former Chief Justice Artemio V. Panganiban:

During these tough economic times, this Court understands, and in fact sympathizes with, the plight of ordinary government employees. Whenever legally possible, it has bent over backwards to protect labor and favor it with additional economic advantages. In the present case, however, the Salary Standardization Law clearly provides that the claimed benefits shall continue to be granted only to employees who were "incumbents" as of July 1, 1989. Hence, much to its regret, the Court has no authority to reinvent or modify the law to extend those benefits even to employees hired after that date.45

WHEREFORE, the instant Petition for Review on Ce11iorari is DENIED. The Decision dated 29 August 2007 and Resolution dated 29 February 2008 of the Court Appeals in CA-G.R. SP No. 91743 are AFFIRMED. No pronouncement as to costs.

SO ORDERED.

National Artist v Executive Secretary

Art has traditionally been viewed as the expression of everything that is true, good and beautiful. As such, it is perceived to evoke and produce a spirit of harmony. Art is also considered as a civilizing force, a catalyst of nation-building. The notion of art and artists as privileged expressions of national culture helped shape the grand narratives of the nation and shared symbols of the people. The artist does not simply express his/her own individual inspiration but articulates the deeper aspirations of history and the soul of the people.2 The law recognizes this role and views art as something that "reflects and shapes values, beliefs, aspirations, thereby defining a people’s national identity."3 If unduly politicized, however, art and artists could stir controversy and may even cause discord, as what happened in this case.

The Antecedents

History of the Order of National Artists

On April 27, 1972, former President Ferdinand E. Marcos issued Proclamation No. 10014 and, upon recommendation of the Board of Trustees of the Cultural Center of the Philippines (CCP), created the category of Award and Decoration of National Artist to be awarded to Filipinos who have made distinct contributions to arts and letters. In the same issuance, Fernando Amorsolo was declared as the first National Artist.

On May 15, 1973, Proclamation No. 11445 was issued. It amended Proclamation No. 1001 "by creating a National Artists Awards Committee" that would "administer the conferment of the category of National Artist" upon deserving Filipino artists. The Committee, composed of members of the Board of Trustees of the CCP, was tasked to "draft the rules to guide its deliberations in the choice of National Artists, to the end that those who have created a body of work in the arts and letters capable of withstanding the test of time will be so recognized."

The authority of the National Artists Awards Committee to administer the conferment of the National Artist Award was again reiterated in Presidential Decree No. 2086 issued on June 7, 1973.

On April 3, 1992, Republic Act No. 7356, otherwise known as the Law Creating the National Commission for Culture and the Arts, was signed into law. It established the National Commission for Culture and the Arts (NCCA) and gave it an extensive mandate over the development, promotion and preservation of the Filipino national culture and arts and the Filipino cultural heritage. The NCCA was tasked with the following:

Sec. 8. The Commission. – A National Commission for Culture and Arts is hereby created to formulate policies for the development of culture and arts; implement these policies in coordination with affiliated cultural agencies; coordinate the implementation of programs of these affiliated agencies; administer the National Endowment Fund for Culture and Arts (NEFCA); encourage artistic creation within a climate of artistic freedom; develop and promote the Filipino national culture and arts; and preserve Filipino cultural heritage. The Commission shall be an independent agency. It shall render an annual report of its activities and achievements to the President and to Congress.

Among the specific mandates of the NCCA under Republic Act No. 7356 is to "extend recognition of artistic achievement through awards, grants and services to artists and cultural groups which contribute

significantly to the Filipino’s cultural legacy."7 In connection with this mandate, the NCCA is vested with the power to "advise the President on matters pertaining to culture and the arts, including the creation of a special decoration or award, for persons who have significantly contributed to the development and promotion of Philippine culture and arts."8

As both the CCP Board of Trustees and the NCCA have been mandated by law to promote, develop and protect the Philippine national culture and the arts, and authorized to give awards to deserving Filipino artists, the two bodies decided to team up and jointly administer the National Artists Award.9 Thereafter, they reviewed the guidelines for the nomination, selection and administration of the National Artists Award. Pursuant to their respective powers to draft and promulgate rules, regulations and measures to guide them in their deliberations in the choice of National Artists, the CCP and NCCA adopted the following revised guidelines in September 200710:

4. ADMINISTRATION OF THE AWARD

4.1. The National Commission for Culture and the Arts (NCCA) shall plan, organize and implement the Order of National Artists in coordination with the Cultural Center of the Philippines (CCP).

4.2. It shall enlist the support and cooperation of private sector experts from the various fields of art to ensure that the awards are implemented in a successful and impartial manner.

4.3. The National Artist Award Secretariat shall commission art experts to form a Special Research Group who shall verify information submitted on nominees and provide essential data.

They shall be selected for their specialization and familiarity with the works and accomplishments of nominated artists.

4.4. The Special Research Group shall be composed of ten (10) to twenty (20) members who have expertise in one or more fields or disciplines.

4.5. The National Artist Award Council of Experts shall be created before or during the nomination period. It is tasked to screen nominees and recommend to the NCCA and CCP Boards the candidates for the Order of National Artists. It shall be composed of highly regarded peers, scholars, (including cultural philosophers and historians), academicians, researchers, art critics, and other knowledgeable individuals. A wider age-range of experts who would have first-hand knowledge of achievements of nominees shall be considered.

4.6. The selection of the members of the National Artist Award Council of Experts shall be based on the following criteria:

(a) should have achieved authority, credibility and track record in his field(s) of expertise;

(b) should have extensive knowledge in his field(s) and his views on Philippine art and culture must be national in perspective;

(c) should be a recognized authority in the study or research of Philippine art and culture;

(d) must be willing to devote sufficient time and effort to the work of the Council;

(e) must be willing to sign a non-disclosure statement in order to safeguard the confidentiality of the deliberations;

(f) must not have been convicted with finality of any crime by a court of justice or dismissed for cause by any organization, whether public or private.

4.7. The National Artist Award Council of Experts shall be composed of a maximum of seven (7) members each of the seven (7) areas/disciplines. The living National Artists will automatically become members in addition to the forty-nine (49) selected members. These members will constitute the first deliberation panel and will be invited to evaluate the nominations and materials submitted by the Special Research Group.

4.8. Any member of the Council of Experts who is nominated or related to a nominee up to the fourth degree of consanguinity or affinity shall inhibit himself/herself from the deliberation process. Likewise, any member may decline to participate in the deliberation for any reason or may be removed for just cause upon recommendation to the NCCA Board by at least two thirds (2/3) of the members; in which case, the National Artist Award Secretariat shall again select the replacements for those who decline or resigned until the first deliberation panel is completed.

4.9. The list of nominated members of the National Artist Award Council of Experts shall be reviewed by the National Artist Award Secretariat as needed, for purposes of adding new members or replacements.

4.10. The members of the National Artist Award Council of Experts shall serve for a fixed term of three (3) years.

5. CRITERIA FOR SELECTION

The Order of National Artists shall be given to:

5.1 Living artists who are Filipino citizens at the time of nomination, as well as those who died after the establishment of the award in 1972 but were Filipino citizens at the time of their death.

5.2 Artists who through the content and form of their works have contributed in building a Filipino sense of nationhood.

5.3. Artists who have pioneered in a mode of creative expression or style, thus, earning distinction and making an impact on succeeding generations of artists.

5.4. Artists who have created a substantial and significant body of works and/or consistently displayed excellence in the practice of their art form thus enriching artistic expression or style.

5.5 Artists who enjoy broad acceptance through:

5.5.1. prestigious national and/or international recognition, such as the Gawad CCP Para sa Sining, CCP Thirteen Artists Award and NCCA Alab ng Haraya

5.5.2. critical acclaim and/or reviews of their works

5.5.3. respect and esteem from peers.

6. NOMINATION PROCEDURE

6.1. The National Artist Award Secretariat shall announce the opening of nominations through media releases and letters to qualified organizations.

6.2. Candidates may be nominated under one or more of the following categories:

6.2.1. Dance – choreography, direction and/or performance.

6.2.2. Music – composition, direction, and/or performance.

6.2.3. Theater – direction, performance and/or production design.

6.2.4. Visual Arts – painting, sculpture, printmaking, photography, installation art, mixed media works, illustration, comics/komiks, graphic arts, performance art and/or imaging.

6.2.5. Literature – poetry, fiction (short story, novel and play); non-fiction (essay, journalism, literary criticism and historical literature).

6.2.6. Film and Broadcast Arts – direction, writing, production design, cinematography, editing, camera work, and/or performance.

6.2.7. Architecture, Design and Allied Arts – architecture design, interior design, industrial arts design, landscape architecture and fashion design.

6.3. Nominations for the Order of National Artists may be submitted by government and non-government cultural organizations and educational institutions, as well as private foundations and councils.

6.4. Members of the Special Research Group, as well as agencies attached to the NCCA and CCP shall not submit nominations.

6.5. NCCA and CCP Board members and consultants and NCCA and CCP officers and staff are automatically disqualified from being nominated.

6.6. Nominations shall be accepted only when these are submitted in writing and with proper supporting documentation, as follows:

6.6.1. A cover letter signed by the head or designated representative of the nominating organization.

The cover letter shall be accompanied by a Board Resolution approving the nominee concerned with the said resolution signed by the organization President and duly certified by the Board Secretary.

6.6.2. A duly accomplished nomination form;

6.6.3. A detailed curriculum vitae of the nominee;

6.6.4. A list of the nominee’s significant works categorized according to the criteria;

6.6.5. The latest photograph (color or black and white) of the nominee, either 5" x 7" or 8" x 11";

6.6.6. Pertinent information materials on the nominee’s significant works (on CDs, VCDs and DVDs);

6.6.7. Copies of published reviews;

6.6.8. Any other document that may be required.

6.7. Nominations received beyond the announced deadline for the submission of nominations shall not be considered.

6.8. The National Artist Award Secretariat shall announce the opening of nominations through media releases.

6.9. All inquiries and nominations shall be submitted to

The NATIONAL ARTIST AWARD SECRETARIAT

Office of the Artistic Director Cultural Center of the Philippines Roxas Boulevard, 1300 Pasay City or The

NATIONAL ARTIST AWARD SECRETARIAT Office of the Deputy Executive Director National Commission for Culture and the Arts 633 General Luna Street, Intramuros, Manila

7. SCREENING AND SELECTION PROCESS

7.1. The National Artist Award Secretariat shall pre-screen the nominees based on technical guideline items 5.1, 6.2, 6.3, 6.4, 6.5 and 6.6. The pre-screening shall not be based on the accomplishments and merits of the nominee.

7.2. The Special Research Group shall accomplish its task within six (6) months. The main objective is to verify the validity of the data, and evaluate the quality, true value and significance of works according to the criteria. It shall come up with the updated and comprehensive profiles of nominees reflecting their most outstanding achievements.

7.3. The National Artist Award Secretariat will meet to review the list of nominees for oversights. Consequently, deserving nominees shall be added to the list.

7.4. The first deliberation panel (Council of Experts) shall be intra-disciplinary. The panelists shall be grouped according to their respective fields of expertise or disciplines to shortlist the nominees in their disciplines or categories for presentation to the second deliberation panel.

7.5. The second deliberation panel shall be composed of a different set of experts from the first deliberation panel three (3) experts each of the seven (7) areas/discipline and may include members from varying backgrounds such as critics and academicians. The achievements of each shortlisted nominee shall be presented by one designated member of Council of Experts. Then panel deliberates and ranks the shortlisted nominees according to the order of precedence following the set criteria of the Order of National Artists. In extreme cases, the Second Deliberation may add new names to the lists.

7.6. The second deliberation panel may recommend not to give award in any category if no nominee is found deserving. The number of awardees shall also depend on the availability of funds. All decisions and recommendations shall be in writing.

7.7. The recommendations from the Second Deliberation Panel of the National Artist Award Council of Experts shall then be presented to the joint boards of NCCA and CCP for final selection. The presentors shall prepare their presentation in writing together with an

audio-visual presentation or powerpoint presentation. Written interpellations/opinions will be accepted from selected critics. The review shall be based on the ranking done by the Second Deliberation. The voting shall be across disciplines. The National Artists will be given the option whether to vote on all categories or on his/her particular discipline.

7.8. Proxy votes will not be allowed in the Selection Process. Designation of permanent representatives of agencies should be made at the outset to make them regular Board members of NCCA and thus, may be allowed to cast votes.

7.9. The list of awardees shall be submitted to the President of the Republic of the Philippines for confirmation, proclamation and conferral.

8. PRESENTATION OF THE AWARDS

8.1. The Order of National Artists shall not be conferred more frequently than every three (3) years.

8.2. The Order of National Artists shall be conferred by the President of the Philippines on June 11 or any appropriate date in fitting ceremonies to be organized by the National Artist Secretariat.

8.3. The medallion of the Order of National Artists and citation shall be given to the honoree during the conferment ceremony. The cash award of P100,000.00 in cheque shall be given immediately after the ceremony or at another time and place as requested by the honoree.

8.4. A posthumous conferral consisting of the medallion and citation shall be given to the family or legal heir/s of the honoree. The cash award of P75,000.00 in cheque shall be given to the honoree’s legal heir/s or a representative designated by the family immediately after the ceremony or at another time and place as requested by the family. (Emphases supplied.)

In 1996, the NCCA and the CCP created a National Artist Award Secretariat composed of the NCCA Executive Director as Chairperson, the CCP President as Vice-Chairperson, and the NCCA Deputy Executive Director, the CCP Vice-President/Artistic Director, the NCCA National Artist Award Officer and the CCP National Artist Award Officer as members. They also centralized with the NCCA all financial resources and management for the administration of the National Artists Award. They added another layer to the selection process to involve and allow the participation of more members of the arts and culture sector of the Philippines in the selection of who may be proclaimed a National Artist.

On September 19, 2003, Executive Order No. 236, s. 2003, entitled Establishing the Honors Code of the Philippines to Create an Order of Precedence of Honors Conferred and for Other Purposes, was issued. The National Artists Award was renamed the Order of National Artists and raised to the level of a Cultural Order, fourth in precedence among the orders and decorations that comprise the Honors of the Philippines. Executive Order No. 236, s. 2003, recognizes the vital role of the NCCA and the CCP in identifying Filipinos who have made distinct contributions to arts and letters and states that the National Artist recognition is conferred "upon the recommendation of the Cultural Center of the Philippines and the National Commission for Culture and the Arts."12 Executive Order No. 236, s. 2003, further created a Committee on Honors to "assist the President in evaluating nominations for recipients of Honors,"13 including the Order of National Artists, and presidential awards. The Committee on Honors has been allowed to "authorize relevant department or government agencies to maintain Honors and/or Awards Committees to process nominations for Honors and/or Presidential Awards."14 In this connection, Section 2.4(A) of the Implementing Rules and Regulations15 of Executive Order No. 236, s. 2003, states:

2.4: Awards Committees

There shall be two types of awards committees: the Committee on Honors and the various awards committees in the various units of the government service.

A. The Committee on Honors

The Committee on Honors serves as a National Awards Committee. It is composed of the following:

The Executive Secretary, Chairman

The Secretary of Foreign Affairs, Vice-Chairman

Head, Presidential Management Staff, member

Presidential Assistant for Historical Affairs, member

Chief of Presidential Protocol, member

Chief of Protocol, DFA, member

All nominations from the various awards committees must be submitted to the Committee on Honors via the Chancellery of Philippine Orders and State Decorations. The Chancellery shall process nominations for the consideration of the Committee on Honors. The

Committee on Honors shall screen and recommend these nominations to the President.

The Committee on Honors shall, as a general rule, serve as a screening committee to ensure that nominations received from the various awards committees meet two tests: that there has not been an abuse of discretion in making the nomination, and that the nominee is in good standing. Should a nomination meet these criteria, a recommendation to the President for conferment shall be made.

The President of the Philippines takes the recommendations of the Committee on Honors in the highest consideration when making the final decision on the conferment of awards. (Emphasis supplied.)

Executive Order No. 435, s. 2005, entitled Amending Section 5(IV) of Executive Order No. 236 Entitled "Establishing the Honors Code of the Philippines to Create an Order of Precedence of Honors Conferred and for Other Purposes" was subsequently issued on June 8, 2005. It amended the wording of Executive Order No. 236, s. 2003, on the Order of National Artists and clarified that the NCCA and the CCP "shall advise the President on the conferment of the Order of National Artists."

Controversy Surrounding the 2009

Order of National Artists

Petitioners alleged that on January 30, 2007, a joint meeting of the NCCA Board of Commissioners and the CCP Board of Trustees was held to discuss, among others, the evaluation of the 2009 Order of National Artists and the convening of the National Artist Award Secretariat. The nomination period was set for September 2007 to December 31, 2007, which was later extended to February 28, 2008. The pre-screening of nominations was held from January to March 2008.16

On April 3, 2009, the First Deliberation Panel met.17 A total of 87 nominees18 were considered during the deliberation and a preliminary shortlist19 of 32 names was compiled.

On April 23, 2009, the Second Deliberation Panel purportedly composed of an entirely new set of Council of Experts met and shortlisted 13 out of the 32 names in the preliminary shortlist.20 On May 6, 2009, the final deliberation was conducted by the 30-member Final Deliberation Panel comprised of the CCP Board of Trustees and the NCCA Board of Commissioners and the living National Artists.21 From the 13 names in the second shortlist, a final list of four names was agreed upon.

On May 6, 2009, a letter, signed jointly by the Chairperson of the NCCA, Undersecretary Vilma Labrador, and the President and Artistic Director of the CCP, Mr. Nestor Jardin, was sent to the President.23 The letter stated, thus:

May 6, 2009

Her Excellency GLORIA MACAPAGAL-ARROYO

President of the Philippines

Malacañan Palace, Manila

Subject: 2009 Order of National Artist Awardees

Dear President Arroyo:

We are respectfully submitting a recommendation of the NCCA Board of Trustees and CCP Board of Trustees for the Proclamation of the following as 2009 Order of National Artists:

1. Mr. MANUEL CONDE+ (Posthumous) – Film and Broadcast Arts

2. Dr. RAMON SANTOS – Music

3. Mr. LAZARO FRANCISCO+ (Posthumous) – Literature

4. Mr. FEDERICO AGUILAR-ALCUAZ – Visual Arts

The above persons were identified by experts in the various fields of arts and culture, including living National Artists. An intensive selection process was observed following established practice. In the past, awards were presented by the President at a Ceremony held at the Malacañan Palace followed by a program called "Parangal" at the Cultural Center of the Philippines. We also propose to continue with past practice of celebrating the life and works of the four (4) Order of National Artists through an exhibit that will open and a commemorative publication that will be released on the day of the proclamation.

We respectfully suggest, subject to Her Excellency’s availability, that the Proclamation be on June 11, 2009, if possible at the Malacañan Palace.

Thank you for your kind attention.

Very respectfully yours,

(Sgd.)

VILMA L. LABRADOR

Chairman

National Commission for Culture and the Arts

According to respondents, the aforementioned letter was referred by the Office of the President to the Committee on Honors. Meanwhile, the Office of the President allegedly received nominations from various sectors, cultural groups and individuals strongly endorsing private respondents Cecile Guidote-Alvarez, Carlo Magno Jose Caparas, Francisco Mañosa and Jose Moreno. The Committee on Honors purportedly processed these nominations and invited resource persons to validate the qualifications and credentials of the nominees.25

The Committee on Honors thereafter submitted a memorandum to then President Gloria Macapagal-Arroyo recommending the conferment of the Order of National Artists on the four recommendees of the NCCA and the CCP Boards, as well as on private respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. Acting on this recommendation, Proclamation No. 1823 declaring Manuel Conde a National Artist was issued on June 30, 2009. Subsequently, on July 6, 2009, Proclamation Nos. 1824 to 1829 were issued declaring Lazaro Francisco, Federico AguilarAlcuaz and private respondents Guidote-Alvarez, Caparas, Mañosa and Moreno, respectively, as National Artists. This was subsequently announced to the public by then Executive Secretary Eduardo Ermita on July 29, 2009.26

Convinced that, by law, it is the exclusive province of the NCCA Board of Commissioners and the CCP Board of Trustees to select those who will be conferred the Order of National Artists and to set the standard for entry into that select group, petitioners instituted this petition for prohibition, certiorari and injunction (with prayer for restraining order) praying that the Order of National Artists be conferred on Dr. Santos and that the conferment of the Order of National Artists on respondents Guidote-Alvarez, Caparas, Mañosa and Moreno be enjoined and declared to have been rendered in grave abuse of discretion.27

In a Resolution28 dated August 25, 2009, the Court issued a status quo order29 enjoining "public respondents" "from conferring the rank and title of the Order of National Artists on private respondents; from releasing the cash awards that accompany such conferment and recognition; and from holding the acknowledgment ceremonies for recognition of the private respondents as National Artists."

What is the nature and scope of the power of the President to confer the Order of the National Artists and how should it be exercised? This is the essential issue presented in this case. It will determine whether the proclamation of respondents as National Artists is valid.

Preliminary procedural issues on the standing of the petitioners and the propriety of the remedies taken,30 however, call for resolution as a prerequisite to the discussion of the main question.

Contention of the Parties

A perusal of the pleadings submitted by the petitioners reveals that they are an aggrupation of at least three groups, the National Artists, cultural workers and academics, and the Concerned Artists of the Philippines (CAP). The National Artists assert an "actual as well as legal interest in maintaining the reputation of the Order of National Artists."31 In particular, they invoke their right to due process not to have the honor they have been conferred with diminished by the irregular and questionable conferment of the award on respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. For petitioners, this would adversely affect their right to live a meaningful life as it detracts not only from their right to enjoy their honor as a fruit of their lifelong labor but also from the respect of their peers.32

The cultural workers, academics and CAP claim to be Filipinos who are deeply concerned with the preservation of the country’s rich cultural and artistic heritage. As taxpayers, they are concerned about the use of public monies for illegal appointments or spurious acts of discretion.33

All of the petitioners claim that former President Macapagal-Arroyo gravely abused her discretion in disregarding the results of the rigorous screening and selection process for the Order of National Artists and in substituting her own choice for those of the Deliberation Panels. According to petitioners, the President’s discretion to name National Artists is not absolute but limited. In particular, her discretion on the matter cannot be exercised in the absence of or against the recommendation of the NCCA and the CCP. In adding the names of respondents Caparas, Guidote-Alvarez, Mañosa and Moreno while dropping Dr. Santos from the list of conferees, the President’s own choices constituted the majority of the awardees in utter disregard of the choices of the NCCA and the CCP and the arts and culture community which were arrived at after a long and rigorous process of screening and deliberation. Moreover, the name of Dr. Santos as National Artist for Music was deleted from the final list submitted by the NCCA and the CCP Boards without clearly indicating the basis thereof. For petitioners, the President’s discretion to name National Artists cannot be exercised to defeat the recommendations made by the CCP and NCCA Boards after a long and rigorous screening process and with the benefit of expertise and

experience. The addition of four names to the final list submitted by the Boards of the CCP and the NCCA and the deletion of one name from the said list constituted a substitution of judgment by the President and a unilateral reconsideration without clear justification of the decision of the First, Second and Final Deliberation Panels composed of experts.34

Petitioners further argue that the choice of respondent GuidoteAlvarez was illegal and unethical because, as the then Executive Director of the NCCA and presidential adviser on culture and arts, she was disqualified from even being nominated.35 Moreover, such action on the part of the former President constituted grave abuse of discretion as it gave preferential treatment to respondent Guidote-Alvarez by naming the latter a National Artist despite her not having been nominated and, thus, not subjected to the screening process provided by the rules for selection to the Order of National Artists. Her inclusion in the list by the President represented a clear and manifest favor given by the President in that she was exempted from the process that all other artists have to undergo. According to petitioners, it may be said that the President used a different procedure to qualify respondent Guidote-Alvarez. This was clearly grave abuse of discretion for being manifest and undue bias violative of the equal protection clause.36

Respondent Caparas refutes the contention of the petitioning National Artists and insists that there could be no prejudice to the latter. They remain to be National Artists and continue to receive the emoluments, benefits and other privileges pertaining to them by virtue of that honor. On the other hand, all the other petitioners failed to show any material and personal injury or harm caused to them by the conferment of the Order of National Artists on respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. The rule on standing may not be relaxed in favor of the petitioners as no question of constitutionality has been raised and no issue of transcendental importance is involved.37

Respondent Caparas further argues that the remedies of prohibition and injunction are improper as the act sought to be enjoined – the declaration of respondents Guidote-Alvarez, Caparas, Mañosa and Moreno as National Artists – had already been consummated. In particular, respondent Caparas was already proclaimed National Artist through Proclamation No. 1827 issued on July 6, 2009.38

On the merits, respondent Caparas contends that no grave abuse of discretion attended his proclamation as

National Artist. The former President considered the respective recommendations of the NCCA and the CCP Boards and of the Committee on Honors in eventually declaring him (Caparas) as National Artist. The function of the NCCA and the CCP Boards is simply to advise the President. The award of the Order of National Artists is the exclusive prerogative of the President who is not bound in any way by the recommendation of the NCCA and the CCP Boards. The implementing rules and regulations or guidelines of the NCCA cannot restrict or limit the exclusive power of the President to select the recipients of the Order of National Artists.39

For her part, in a letter40 dated March 11, 2010, respondent Guidote-Alvarez manifested that she was waiving her right to file her comment on the petition and submitted herself to the Court’s discretion and wisdom.

Respondent Mañosa manifested that his creations speak for themselves as his contribution to Filipino cultural heritage and his worthiness to receive the award. Nonetheless, he expressed his conviction that the Order of National Artists is not a right but a privilege that he would willingly relinquish should he be found not worthy of it.41

Respondent Moreno did not file any pleading despite being given several opportunities to do so. Hence, the Court dispensed with his pleadings.42

In a Resolution dated July 12, 2011, this Court gave due course to the petition and required the parties to file their respective memoranda.43 Respondent Caparas filed his memorandum on September 8, 2011,44 the CCP filed its memorandum on September 19, 2011,45 respondent Mañosa on September 20, 2011,46 and the Office of the Solicitor General filed a manifestation stating that it is adopting its comment as its memorandum on September 21, 2011.47 Respondent Moreno failed to file a Memorandum, hence, the Court resolved to dispense with the same.48 Petitioners filed their Memorandum on May 14, 2012.49

On the other hand, the original position of the Office of the Solicitor General (OSG) was similar to that of respondent Caparas.50 In a subsequent manifestation,51 however, the OSG stated that the current Board of Commissioners of the NCCA agree with the petitioners that the President cannot honor as a National Artist one who was not recommended by the joint Boards of the NCCA and the CCP. The implementing rules and regulations of Executive Order No. 236, s. 2003, recognized the binding character of the recommendation of the NCCA and the CCP Boards

and limited the authority of the Committee on Honors to the determination that (1) there has been no grave abuse of discretion on the part of the NCCA and the CCP Boards in making the nomination, and (2) the nominee is in good standing. Where a nomination meets the said two criteria, a recommendation to the President to confer the award shall be made.52

The OSG further argued that, while the President exercises control over the NCCA and the CCP, the President has the duty to faithfully execute the laws, including the NCCA-CCP guidelines for selection of National Artists and the implementing rules of Executive Order No. 236, s. 2003. Moreover, the laws recognize the expertise of the NCCA and the CCP in the arts and tasked them to screen and select the artists to be conferred the Order of National Artists. Their mandate is clear and exclusive as no other agency possesses such expertise.53

The OSG also assailed the former President’s choice of respondent Guidote-Alvarez for being contrary to Republic Act No. 7356.54 Section 11 of the said law provides:

Sec. 11. Membership Restrictions. – During his/her term as member of the Commission, a Commissioner shall not be eligible for any grant, or such other financial aid from the Commission as an individual: Provided, however, That he/she may compete for grants and awards on the same level as other artists one (1) year after his/her term shall have expired.

The omission of the word "award" in the first portion of the above provision appears to be unintentional as shown by the proviso which states that a member may compete for grants and awards only one year after his or her term shall have expired. As such, respondent Guidote-Alvarez is restricted and disqualified from being conferred the 2009 Order of National Artists.55

The Court’s Ruling

Standing of the Petitioners

Standing is the determination of whether a specific person is the proper party to bring a matter to the court for adjudication.56 The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.57

The parties who assail the constitutionality or legality of a statute or an official act must have a direct and personal interest. They must show not only that the law

or any governmental act is invalid, but also that they sustained or are in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that they suffer thereby in some indefinite way. They must show that they have been or are about to be denied some right or privilege to which they are lawfully entitled or that they are about to be subjected to some burdens or penalties by reason of the statute or act complained of.58

In this case, we find that the petitioning National Artists will be denied some right or privilege to which they are entitled as members of the Order of National Artists as a result of the conferment of the award on respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. In particular, they will be denied the privilege of exclusive membership in the Order of National Artists.

In accordance with Section 2(a)59 of Executive Order No. 236, s. 2003, the Order of National Artists is "an exclusive association of honored individuals." To ensure the exclusivity of the membership in the Order, a rigid nomination and screening process has been established with different sets of renowned artists and respected art critics invited to sit as the Council of Experts for the First and Second Deliberation Panels. Moreover, all living National Artists are given a voice on who should be included in their exclusive club as they automatically become members of the Final Deliberation Panel that will vote on who should be included in the final list to be submitted to the President for conferment of the Order of National Artists. To allow the untrammeled discretion and authority of the President to confer the Order of National Artists without regard to the stringent screening and rigorous selection process established by the NCCA and the CCP will diminish, if not negate, the exclusive nature of the said Order. It will unduly subject the selection and conferment of the Order of National Artists to politics rather than to principles and procedures. It will subvert the transparent and rigorous process and allow entry to the exclusive Order of National Artists through a secret backdoor of lobbying, back channeling and political accommodation.

Among the other petitioners, Prof. Gemino Abad presents a unique valid personal and substantial interest. Like respondents Caparas, Mañosa and Moreno, he was among the 87 nominees for the 2009 Order of National Artists. Like respondent Moreno, he made it to the preliminary shortlist. As he did not make it to the second shortlist, he was not considered by the Final Deliberation Panel, more so by the former President.

It should be recalled too that respondent Guidote-Alvarez was disqualified to be nominated for being the Executive Director of the NCCA at that time while respondents Mañosa and Caparas did not make it to the preliminary shortlist and respondent Moreno was not included in the second shortlist. Yet, the four of them were treated differently and considered favorably when they were exempted from the rigorous screening process of the NCCA and the CCP and conferred the Order of National Artists. The Committee on Honors and the former President effectively treated respondents Guidote-Alvarez, Caparas, Mañosa and Moreno as a preferred class. The special treatment accorded to respondents Guidote-Alvarez, Caparas, Mañosa and Moreno fails to pass rational scrutiny.60 No real and substantial distinction between respondents and petitioner Abad has been shown that would justify deviating from the laws, guidelines and established procedures, and placing respondents in an exceptional position. The undue classification was not germane to the purpose of the law. Instead, it contradicted the law and well-established guidelines, rules and regulations meant to carry the law into effect. While petitioner Abad cannot claim entitlement to the Order of National Artists,61 he is entitled to be given an equal opportunity to vie for that honor. In view of the foregoing, there was a violation of petitioner Abad’s right to equal protection, an interest that is substantial enough to confer him standing in this case.

As regards the other concerned artists and academics as well as the CAP, their claim of deep concern for the preservation of the country’s rich cultural and artistic heritage, while laudable, falls short of the injury in fact requirement of standing. Their assertion constitutes a generalized grievance shared in a substantially equal measure by all or a large class of citizens.62 Nor can they take refuge in their status as taxpayers as the case does not involve any illegal appropriation or taxation. A taxpayer’s suit is proper only when there is an exercise of the spending or taxing power of the Congress.63

Nonetheless, as a reading of the petition shows that it has advanced an issue which deserves the attention of this Court in view of its seriousness, novelty and weight as precedent, it behooves the Court to relax the rules on standing and to resolve the issue presented before it.64 Moreover, this issue is of paramount interest,65 which further justifies a liberal stance on standing.

Propriety of the Remedies

The present action is a petition for prohibition, certiorari, injunction, restraining order and all other legal, just and equitable reliefs.

It has been held that the remedies of prohibition and injunction are preventive and, as such, cannot be availed of to restrain an act that is already fait accompli.66 Where the act sought to be prohibited or enjoined has already been accomplished or consummated, prohibition or injunction becomes moot.67

Nevertheless, even if the principal issue is already moot, this Court may still resolve its merits for the future guidance of both bench and bar. Courts will decide a question otherwise moot and academic if it is "capable of repetition, yet evading review."68

It is an opportune time for the Court to assert its role as republican schoolmaster,69 a teacher in a vital national seminar.70 There are times when the controversy is of such character that, to prevent its recurrence and to assure respect for constitutional limitations, this Court must pass on the merits of a case.71 This is one such case. More than being a teaching moment, this is not the first time that the Order of National Artists was conferred in the manner that is being assailed in this case.72 If not addressed here and now, there is great probability that the central question involved in this case will haunt us again in the future. Every President may invoke absolute presidential prerogative and thrust upon us National Artists after his or her own heart, in total disregard of the advise of the CCP and the NCCA and the voice of the community of artists, resulting to repeated episodes of indignation and uproar from the artists and the public.

Furthermore, if not corrected, such an act would give rise to mischief and dangerous precedent whereby those in the corridors of power could avoid judicial intervention and review by merely speedily and stealthily completing the commission of an illegality.73

In any event, the present petition is also for certiorari and there is no procedural bar for the Court to pass upon the question of whether the proclamations of respondents Guidote-Alvarez, Caparas, Mañosa and Moreno as National Artists were attended by grave abuse of presidential discretion.

Limits of the President’s Discretion

The respective powers of the CCP Board of Trustees and of the NCCA Board of Commissioners with respect to the conferment of the Order of National Artists are clear. They jointly administer the said award and, upon their recommendation or advice, the President confers the Order of National Artists.

To "recommend" and to "advise" are synonymous. To "recommend" is "to advise or counsel."74 To "advise" is "to give an opinion or counsel, or recommend a plan or course of action; also to give notice. To encourage, inform or acquaint."75 "Advise" imports that it is discretionary or optional with the person addressed whether he will act on such advice or not.76 This has been clearly explained in Cojuangco, Jr. v. Atty. Palma77:

The "power to recommend" includes the power to give "advice, exhortation or indorsement, which is essentially persuasive in character, not binding upon the party to whom it is made." (Emphasis supplied.)

Thus, in the matter of the conferment of the Order of National Artists, the President may or may not adopt the recommendation or advice of the NCCA and the CCP Boards. In other words, the advice of the NCCA and the CCP is subject to the President’s discretion.

Nevertheless, the President’s discretion on the matter is not totally unfettered, nor the role of the NCCA and the CCP Boards meaningless.

Discretion is not a free-spirited stallion that runs and roams wherever it pleases but is reined in to keep it from straying. In its classic formulation, "discretion is not unconfined and vagrant" but "canalized within banks that keep it from overflowing."78

The President’s power must be exercised in accordance with existing laws. Section 17, Article VII of the Constitution prescribes faithful execution of the laws by the President:

Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied.)

The President’s discretion in the conferment of the Order of National Artists should be exercised in accordance with the duty to faithfully execute the relevant laws. The faithful execution clause is best construed as an obligation imposed on the President, not a separate grant of power.79 It simply underscores the rule of law and, corollarily, the cardinal principle that the President is not above the laws but is obliged to obey and execute them.80 This is precisely why the law provides that "administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution."81

In this connection, the powers granted to the NCCA and the CCP Boards in connection with the conferment of the Order of National Artists by executive issuances

were institutionalized by two laws, namely, Presidential Decree No. 208 dated June 7, 1973 and Republic Act No. 7356. In particular, Proclamation No. 1144 dated May 15, 1973 constituted the CCP Board as the National Artists Awards Committee and tasked it to "administer the conferment of the category of National Artist" upon deserving Filipino artists with the mandate to "draft the rules to guide its deliberations in the choice of National Artists":

Proclamation No. 1001 dated April 27, 1972, creating the Award and Decoration of National Artist, is hereby amended by creating a National Artists Awards Committee, hereinafter to administer the conferment of the category of National Artist upon those deserving thereof. The Committee, which shall be composed of members of the Board of Trustees of the Cultural Center of the Philippines, shall organize itself immediately and shall draft the rules to guide its deliberations in the choice of National Artists, to the end that those who have created a body of work in the arts and in letters capable of withstanding the test of time will be so recognized. (Emphases supplied.)

The authority of the CCP Board of Trustees as National Artists Awards Committee was reiterated in Presidential Decree No. 208 dated June 7, 1973.

The function of the CCP Board of Trustees as National Artists Awards Committee has been recognized under Republic Act No. 7356:

Sec. 18. The National Cultural Agencies. – The [NCCA] shall coordinate with the national cultural agencies including but not limited to the Cultural Center of the Philippines, the Institute of Philippine Languages, the National Historical Institute, the National Library, the National Museum, the Records Management and Archives Office. However, they shall continue operating under their respective charters or as provided by law where provisions therein are not inconsistent with the provisions of this Act. They shall serve as the national repository and/or showcase, as the case may be, of the best of Philippine culture and arts. For this purpose, these agencies shall submit periodic reports, including recommendations to the [NCCA]. (Emphasis supplied.)

On the other hand, the NCCA has been given the following mandate in connection with the conferment of cultural or arts awards:

Sec. 12. Mandate. – The Commission is hereby mandated to formulate and implement policies and plans in accordance with the principles stated in Title 1 of this Act.

(a) To encourage the continuing and balanced development of a pluralistic culture by the people themselves, it shall:

(4) extend recognition of artistic achievement through awards, grants and services to artists and cultural groups which contribute significantly to the Filipino’s cultural legacy;

Sec. 13. Powers and Functions. – To carry out its mandate, the Commission shall exercise the following powers and functions:

(j) advise the President on matters pertaining to culture and the arts, including the creation of a special decoration or award, for persons who have significantly contributed to the development and promotion of Philippine culture and arts;

(k) promulgate rules, regulations and undertake any and all measures as may be necessary to implement this Act. (Emphases supplied.)

By virtue of their respective statutory mandates in connection with the conferment of the National Artist Award, the NCCA and the CCP decided to work together and jointly administer the National Artist Award. They reviewed the guidelines for the nomination, selection and administration of the National Artist Award, created a National Artist Award Secretariat, centralized all financial resources and management for the administration of the National Artist Award, and added another layer to the selection process so that more members of the arts and culture sector of the Philippines may be involved and participate in the selection of National Artists.

We have held that an administrative regulation adopted pursuant to law has the force and effect of law.82 Thus, the rules, guidelines and policies regarding the Order of National Artists jointly issued by the CCP Board of Trustees and the NCCA pursuant to their respective statutory mandates have the force and effect of law. Until set aside, they are binding upon executive and administrative agencies,83 including the President himself/herself as chief executor of laws. In this connection, Section 2.5(A) of the Implementing Rules and Regulations84 of Executive Order No. 236, s. 2003 provides:

2.5: General Guidelines for Awards Committees

A. National Orders of Cultural and Scientific Merit

The existing modalities of the NCCA for selecting recipients for the Order of National Artists, and the Gawad sa Manlilikha ng Bayan, and of the NAST for

selecting recipients of the Order of National Scientists, shall remain in force. (Emphases supplied.)

Section 2.4(A) of the same implementing rules further states:

2.4: Awards Committees

There shall be two types of awards committees: the Committee on Honors and the various awards committees in the various units of the government service.

A. The Committee on Honors

The Committee on Honors serves as a National Awards Committee. It is composed of the following:

The Executive Secretary, Chairman

The Secretary of Foreign Affairs, Vice-Chairman

Head, Presidential Management Staff, member

Presidential Assistant for Historical Affairs, member

Chief of Presidential Protocol, member

Chief of Protocol, DFA, member

All nominations from the various awards committees must be submitted to the Committee on Honors via the Chancellery of Philippine Orders and State Decorations. The Chancellery shall process nominations for the consideration of the Committee on Honors. The Committee on Honors shall screen and recommend these nominations to the President.

The Committee on Honors shall, as a general rule, serve as a screening committee to ensure that nominations received from the various awards committees meet two tests: that there has not been an abuse of discretion in making the nomination, and that the nominee is in good standing. Should a nomination meet these criteria, a recommendation to the President for conferment shall be made.

The President of the Philippines takes the recommendations of the Committee on Honors in the highest consideration when making the final decision on the conferment of awards. (Emphasis supplied.)

Pursuant to the above provision of the implementing rules of Executive Order No. 236, s. 2003, the authority of the Committee on Honors is limited to determining whether the nominations submitted by a particular awards committee, in this case, the joint NCCA and CCP Boards, have been tainted by abuse of discretion, and whether the nominees are in good standing. Should the

nominations meet these two criteria, the Committee on Honors shall make a recommendation to the President for conferment of the Order of National Artists.

In view of the various stages of deliberation in the selection process and as a consequence of his/her duty to faithfully enforce the relevant laws, the discretion of the President in the matter of the Order of National Artists is confined to the names submitted to him/her by the NCCA and the CCP Boards. This means that the President could not have considered conferment of the Order of National Artists on any person not considered and recommended by the NCCA and the CCP Boards. That is the proper import of the provision of Executive Order No. 435, s. 2005, that the NCCA and the CCP "shall advise the President on the conferment of the Order of National Artists." Applying this to the instant case, the former President could not have properly considered respondents Guidote-Alvarez, Caparas, Mañosa and Moreno, as their names were not recommended by the NCCA and the CCP Boards. Otherwise, not only will the stringent selection and meticulous screening process be rendered futile, the respective mandates of the NCCA and the CCP Board of Trustees under relevant laws to administer the conferment of Order of National Artists, draft the rules and regulations to guide its deliberations, formulate and implement policies and plans, and undertake any and all necessary measures in that regard will also become meaningless.

Furthermore, with respect to respondent Guidote-Alvarez who was the Executive Director of the NCCA at that time, the Guidelines expressly provides:

6.5 NCCA and CCP Board members and consultants and NCCA and CCP officers and staff are automatically disqualified from being nominated.85

Respondent Guidote-Alvarez could not have even been nominated, hence, she was not qualified to be considered and conferred the Order of National Artists at that time. The President’s discretion on the matter does not extend to removing a legal impediment or overriding a legal restriction.

From the foregoing, the advice or recommendation of the NCCA and the CCP Boards as to the conferment of the Order of National Artists on Conde, Dr. Santos, Francisco and Alcuaz was not binding on the former President but only discretionary or optional for her whether or not to act on such advice or recommendation. Also, by virtue of the power of control, the President had the authority to alter or modify or nullify or set aside such recommendation or

advice. It was well within the President’s power and discretion to proclaim all, or some or even none of the recommendees of the CCP and the NCCA Boards, without having to justify his or her action. Thus, the exclusion of Santos did not constitute grave abuse of discretion on the part of the former President.

The conferment of the Order of National Artists on respondents Guidote-Alvarez, Caparas, Mañosa and Moreno was an entirely different matter.

There is grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill will or personal bias.86

There was a violation of the equal protection clause of the Constitution87 when the former President gave preferential treatment to respondents Guidote-Alvarez, Caparas, Mañosa and Moreno.1âwphi1 The former President’s constitutional duty to faithfully execute the laws and observe the rules, guidelines and policies of the NCCA and the CCP as to the selection of the nominees for conferment of the Order of National Artists proscribed her from having a free and uninhibited hand in the conferment of the said award. The manifest disregard of the rules, guidelines and processes of the NCCA and the CCP was an arbitrary act that unduly favored respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. The conferment of the Order of National Artists on said respondents was therefore made with grave abuse of discretion and should be set aside.

While the Court invalidates today the proclamation of respondents Guidote-Alvarez, Caparas, Mañosa and Moreno as National Artists, such action should not be taken as a pronouncement on whether they are worthy to be conferred that honor. Only the President, upon the advise of the NCCA and the CCP Boards, may determine that. The Court simply declares that, as the former President committed grave abuse of discretion in issuing Proclamation Nos. 1826 to 1829 dated July 6, 2009, the said proclamations are invalid. However, nothing in this Decision should be read as a disqualification on the part of respondents Guidote-Alvarez, Caparas, Mañosa and Moreno to be considered for the honor of National Artist in the future, subject to compliance with the laws, rules and regulations governing said award.

WHEREFORE, the petition is hereby GRANTED in PART. Proclamation Nos. 1826 to 1829 dated July 6, 2009 proclaiming respondents Cecile Guidote-Alvarez, Carlo Magno Jose Caparas, Francisco Mañosa, and Jose

Moreno, respectively, as National Artists are declared INVALID and

SET ASIDE for having been issued with grave abuse of discretion.

SO ORDERED.

Disini v DOJ

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person can connect to the internet, a system that links him to other computers and enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study, amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special audiences like associates, classmates, or friends and read postings from them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges, trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individual accesses to and uses of the internet. The cyberspace is a boon to the need of the current generation for greater information and facility of communication. But all is not well with the system since it could not filter out a number of persons of ill will who would want to use cyberspace technology for mischiefs and crimes. One of them can, for instance, avail himself of the system to unjustly ruin the reputation of another or bully the latter by posting defamatory statements against him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-motivated can

use the cyberspace for committing theft by hacking into or surreptitiously accessing his bank account or credit card or defrauding him through false representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or for exposing to pornography guileless children who have access to the internet. For this reason, the government has a legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and networks of indispensable or highly useful institutions as well as to the laptop or computer programs and memories of innocent individuals. They accomplish this by sending electronic viruses or virtual dynamites that destroy those computer systems, networks, programs, and memories. The government certainly has the duty and the right to prevent these tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities violate certain of their constitutional rights. The government of course asserts that the law merely seeks to reasonably put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court extended the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012, enjoining respondent government agencies from implementing the cybercrime law until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts as crimes and impose penalties for their commission as well as provisions that would enable the government to track down and penalize violators.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the crime of libel.

The Rulings of the Court

Section 4(a)(1) 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."6 Since 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. 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:

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data interference, it intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a form of vandalism,8 the act of willfully destroying without right the things that belong to others, in this case their computer data, electronic document, or electronic data message. Such act has no connection to guaranteed freedoms. There is no freedom to destroy other 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. 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:

(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. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

b) Computer-related Offenses:

(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 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

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under this Act:

(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 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

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(c) Content-related Offenses:

(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

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(c) Content-related Offenses:

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject receipt of further commercial electronic messages (opt-out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and

(cc) The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or comment was said to be making a "spam." The term referred to a Monty 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 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:

(c) Content-related Offenses:

(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:

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.45 For his defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the 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.48 Indeed, 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 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

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 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 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.

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

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary and discriminatory enforcement.63 The terms "aiding or abetting" constitute broad sweep that generates chilling effect on those who express themselves through cyberspace posts, comments, and other messages.64 Hence, Section 5 of the cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on Elections,65 "we must view these statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are used to mount ‘facial’ challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third persons not before the court. This rule is also known as the prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or vague law thus chills him into silence.67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any government threat of punishment regarding certain uses of the medium creates a chilling effect on the constitutionally-protected freedom of expression of the great masses that use it. In this case, the particularly complex web of interaction on social media websites would give law enforcers such latitude that they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is lawful conduct. When a case is filed, how will the court ascertain

whether or not one netizen’s comment aided and abetted a cybercrime while another comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatory story against Armand like "He beats his wife and children," then that should be considered an original posting published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it will destroy relationships and, under certain circumstances, will generate enmity and tension between social or economic groups, races, or religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child pornography and facilitates the completion of transactions involving the dissemination of child pornography," does this make Google and its users aiders and abettors in the commission of child pornography crimes?68 Byars highlights a feature in the American law on child pornography that the Cybercrimes law lacks—the exemption of a provider or notably a plain user of interactive computer service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider and cannot be held civilly liable for any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene...whether or not such material is constitutionally protected.69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user downloads the Facebook mobile application, the user may give consent to Facebook to access his contact details. In this way, certain information is forwarded to third parties and unsolicited commercial communication could be disseminated on the basis of this information.70 As the source of this information, is the user aiding the distribution of this communication? The legislature needs to address this clearly to relieve users of annoying fear of possible criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on

the part of internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable unless consummated.71 In the absence of legislation tracing the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker may for instance have done all that is necessary to illegally access another party’s computer system but the security employed by the system’s lawful owner could frustrate his effort. Another hacker may have gained access to usernames and passwords of others but fail to use these because the system supervisor is alerted.72 If Section 5 that punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of the username and password could not file a complaint against him for attempted hacking. But this is not right. The hacker should not be freed from liability simply because of the vigilance of a lawful owner or his supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this may be true with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the commission of such acts can be identified with some reasonable certainty through adroit tracking of their works. Absent concrete proof of the same, the innocent will of course be spared.

Section 6 of the Cybercrime Law

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As the Solicitor General points out, there exists a substantial distinction between crimes committed through the use of information and communications technology and similar crimes committed using other means. In using the technology in question, the offender often evades identification and is able to reach far more victims or cause greater harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes.

Section 7 of the Cybercrime Law

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may be prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When two different laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although both offenses arise from the same fact, if each crime involves some important act which is not an essential element of the other.74 With the exception of the crimes of online libel and online child pornography, the Court would rather leave the determination of the correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be libelous, is again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4) is not a new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes the computer system as another means of publication.75 Charging the offender under

both laws would be a blatant violation of the proscription against double jeopardy.76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s scope so as to include identical activities in cyberspace. As previously discussed, ACPA’s definition of child pornography in fact already covers the use of "electronic, mechanical, digital, optical, magnetic or any other means." Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional prohibition against double jeopardy.

Section 8 of the Cybercrime Law

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) up to a maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos (PhP500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a fine of at least Five hundred thousand pesos (PhP500,000.00) up to maximum amount commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos (PhP1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (PhP50,000.00) but not exceeding Two hundred fifty thousand pesos (PhP250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the legislature prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They appear proportionate to the evil sought to be punished. The power to determine penalties for offenses is not diluted or improperly wielded simply because at some prior time the act or omission was but an element of another offense or might just have been connected with another crime.77 Judges and magistrates can only interpret and apply them and have no authority to modify or revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body.78

Section 12 of the Cybercrime Law

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time as tending to curtail civil liberties or provide opportunities for official abuse. They claim that data showing where digital messages come from, what kind they are, and where they are destined need not be incriminating to their senders or recipients before they are to be protected. Petitioners invoke the right of every individual to privacy and to be protected from government snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may require the disclosure of matters normally considered private but then only upon showing that such requirement has a rational relation to the purpose of the law,79 that there is a compelling State interest behind the law, and that the provision itself is narrowly drawn.80 In assessing regulations affecting privacy rights, courts should balance the legitimate concerns of the State against constitutional guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to the tremendous activities in cyberspace for public good.82 To do this, it is within the realm of reason that the government should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide law enforcement authorities with the power they need for spotting, preventing, and investigating crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest Convention on Cybercrimes requires signatory countries to adopt legislative measures to empower state authorities to collect or record "traffic data, in real time, associated with specified

communications."83 And this is precisely what Section 12 does. It empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been committed, adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently, it is not. Those who commit the crimes of accessing a computer system without right,84 transmitting viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or consideration;86 and producing child pornography87 could easily evade detection and prosecution by simply moving the physical location of their computers or laptops from day to day. In this digital age, the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places that provide free internet services, and from unregistered mobile internet connectors. Criminals using cellphones under pre-paid arrangements and with unregistered SIM cards do not have listed addresses and can neither be located nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle child pornography could use relays of computers to mislead law enforcement authorities regarding their places of operations. Evidently, it is only real-time traffic data collection or recording and a subsequent recourse to court-issued search and seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguards against crossing legal boundaries and invading the people’s right to privacy. The concern is understandable. Indeed, the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work together to create zones of privacy wherein governmental powers may not intrude, and that there exists an independent constitutional right of privacy. Such right to be left alone has been regarded as the beginning of all freedoms.89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy into two categories: decisional privacy and informational privacy. Decisional privacy involves the right to independence in making certain important decisions, while informational privacy refers to the interest in avoiding disclosure of personal matters. It is the latter right—the right to informational privacy—that those who oppose government collection or recording of traffic data in real-time seek to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freely without surveillance and intrusion.91 In determining whether or not a matter is entitled to the right to privacy, this Court has laid down a two-fold test. The first is a subjective test, where one claiming the right must have an actual or legitimate expectation of privacy over a certain matter. The second is an objective test, where his or her expectation of privacy must be one society is prepared to accept as objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person or group, petitioners’ challenge to Section 12 applies to all information and communications technology (ICT) users, meaning the large segment of the population who use all sorts of electronic devices to communicate with one another. Consequently, the expectation of privacy is to be measured from the general public’s point of view. Without reasonable expectation of privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a service provider, must of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the recipient ICT user. For example, an ICT user who writes a text message intended for another ICT user must furnish his service provider with his cellphone number and the cellphone number of his recipient, accompanying the message sent. It is this information that creates the traffic data. Transmitting communications is akin to putting a letter in an envelope properly addressed, sealing it closed, and sending it through the postal service. Those who post letters have no expectations that no one will read the information appearing outside the envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a way that may be likened to parcels of letters or things that are sent through the posts. When data is sent from any one source, the content is broken up into packets and around each of these packets is a wrapper or header. This header contains the traffic data: information that tells computers where the packet originated, what kind of data is in the packet (SMS, voice call, video, internet chat messages, email, online browsing data, etc.), where the packet is going, and how the packet fits together with other packets.93 The difference is that traffic data sent through the internet at times across the ocean do not disclose the actual names and addresses (residential or office) of the sender and the recipient,

only their coded internet protocol (IP) addresses. The packets travel from one computer system to another where their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover the identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s communication’s system will put his voice message into packets and send them to the other person’s cellphone where they are refitted together and heard. The latter’s spoken reply is sent to the caller in the same way. To be connected by the service provider, the sender reveals his cellphone number to the service provider when he puts his call through. He also reveals the cellphone number to the person he calls. The other ways of communicating electronically follow the same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that telephone users in the ‘70s must realize that they necessarily convey phone numbers to the telephone company in order to complete a call. That Court ruled that even if there is an expectation that phone numbers one dials should remain private, such expectation is not one that society is prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one another over cyberspace except through some service providers to whom they must submit certain traffic data that are needed for a successful cyberspace communication. The conveyance of this data takes them out of the private sphere, making the expectation to privacy in regard to them an expectation that society is not prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to create profiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a person’s close associations, religious views, political affiliations, even sexual preferences. Such information is likely beyond what the public may expect to be disclosed, and clearly falls within matters protected by the right to privacy. But has the procedure that Section 12 of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or

electronic means traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion of the police. Replying to this, the Solicitor General asserts that Congress is not required to define the meaning of every word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor General suggests that "due cause" should mean "just reason or motive" and "adherence to a lawful procedure." But the Court cannot draw this meaning since Section 12 does not even bother to relate the collection of data to the probable commission of a particular crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin to the use of a general search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case against an identified suspect? Can the data be used to prevent cybercrimes from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But this supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify the target communications. The power is virtually limitless, enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified communication they want. This evidently threatens the right of individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time" because it is not possible to get a court warrant that would authorize the search of what is akin to a "moving vehicle." But warrantless search is associated with a

police officer’s determination of probable cause that a crime has been committed, that there is no opportunity for getting a warrant, and that unless the search is immediately carried out, the thing to be searched stands to be removed. These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet users and that the procedure envisioned by the law could be better served by providing for more robust safeguards. His bare assurance that law enforcement authorities will not abuse the provisions of Section 12 is of course not enough. The grant of the power to track cyberspace communications in real time and determine their sources and destinations must be narrowly drawn to preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness doctrine and the overbreadth doctrine. These doctrines however, have been consistently held by this Court to apply only to free speech cases. But Section 12 on its own neither regulates nor punishes any type of speech. Therefore, such analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to monitor individuals and place them under surveillance in ways that have previously been impractical or even impossible. "All the forces of a technological age x x x operate to narrow the area of privacy and facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society."96 The Court must ensure that laws seeking to take advantage of these technologies be written with specificity and definiteness as to ensure respect for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to communication services provided by a service provider shall be preserved for a minimum period of six (6) months from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt of the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere furnishing to such service provider of the

transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its compliance.

Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to property. They liken the data preservation order that law enforcement authorities are to issue as a form of garnishment of personal property in civil forfeiture proceedings. Such order prevents internet users from accessing and disposing of traffic data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or recipients and are to be considered private communications. But it is not clear that a service provider has an obligation to indefinitely keep a copy of the same as they pass its system for the benefit of users. By virtue of Section 13, however, the law now requires service providers to keep traffic data and subscriber information relating to communication services for at least six months from the date of the transaction and those relating to content data for at least six months from receipt of the order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded. The service provider has never assumed responsibility for their loss or deletion while in its keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on orders of law enforcement authorities are not made inaccessible to users by reason of the issuance of such orders. The process of preserving data will not unduly hamper the normal transmission or use of the same.

Section 14 of the Cybercrime Law

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue an order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose of investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’ objection is

that the issuance of subpoenas is a judicial function. But it is well-settled that the power to issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue subpoena as an adjunct of their investigatory powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually lodged in the hands of law enforcers to enable them to carry out their executive functions. The prescribed procedure for disclosure would not constitute an unlawful search or seizure nor would it violate the privacy of communications and correspondence. Disclosure can be made only after judicial intervention.

Section 15 of the Cybercrime Law

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure procedures. On its face, however, Section 15 merely enumerates the duties of law enforcement authorities that would ensure the proper collection, preservation, and use of computer system or data that have been seized by virtue of a court warrant. The exercise of these duties do not pose any threat on the rights of the person from whom they were taken. Section 15 does not appear to supersede existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination, destroyed or deleted upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear up the service provider’s storage systems and prevent overload. It would also ensure that investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or examination violates the user’s right against deprivation of property without due process of law. But, as already stated, it is unclear that the user has a demandable right to require the service provider to have that copy of the data saved indefinitely for him in its storage system. If he wanted them preserved, he should have saved them in his computer when he generated the data or received it. He could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable searches and seizures. The Solicitor General concedes that this provision may be unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself that

Section 19 indeed violates the freedom and right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of property rights in the digital space, it is indisputable that computer data, produced or created by their writers or authors may constitute personal property. Consequently, they are protected from unreasonable searches and seizures, whether while stored in their personal computers or in the service provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Further, it states that no search warrant shall issue except upon probable cause to be determined personally by the judge. Here, the Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The Department of Justice order cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content violates some law, for to do so would make him judge, jury, and executioner all rolled into one.100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear and present danger rule.101 Section 19, however, merely requires that the data to be blocked be found prima facie in violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in relation to any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to

freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure to comply constitutes a legislative finding of guilt, without regard to situations where non-compliance would be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829,102 Section 20 necessarily incorporates elements of the offense which are defined therein. If Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts:

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There must still be a judicial determination of guilt, during which, as the Solicitor General assumes, defense and justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which are not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30) days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating Center (CICC), under the administrative supervision of the Office of the President, for policy coordination among concerned agencies and for the

formulation and enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan without any sufficient standards or parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is to enforce it.1avvphi1 The second test mandates adequate guidelines or limitations in the law to determine the boundaries of the delegate’s authority and prevent the delegation from running riot.103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient standards for the CICC to follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best practices, assurance and technologies that can be used to protect cyber environment and organization and user’s assets.104 This definition serves as the parameters within which CICC should work in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation."105 This policy is clearly adopted in the interest of law and order, which has been considered as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised Penal Code are committed with the use of information and communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic data and subscriber information as well as specified content data for six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after the expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I D and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel.1âwphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases, WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a violation of the same proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.

SO ORDERED.

Sameer overseas v Cabiles

This case involves an overseas Filipino worker with shattered dreams. It is our duty, given the facts and the law, to approximate justice for her.

We are asked to decide a petition for review1 on certiorari assailing the Court of Appeals’ decision2 dated June 27, 2005. This decision partially affirmed the National Labor Relations Commission’s resolution dated March 31, 2004,3 declaring respondent’s dismissal illegal, directing petitioner to pay respondent’s three-month salary equivalent to New Taiwan Dollar (NT$) 46,080.00, and ordering it to reimburse the NT$3,000.00 withheld from respondent, and pay her NT$300.00 attorney’s fees.4cralawred

Petitioner, Sameer Overseas Placement Agency, Inc., is a recruitment and placement agency.5 Responding to an ad it published, respondent, Joy C. Cabiles, submitted her application for a quality control job in Taiwan.6cralawred

Joy’s application was accepted.7 Joy was later asked to sign a one-year employment contract for a monthly salary of NT$15,360.00.8 She alleged that Sameer Overseas Agency required her to pay a placement fee of P70,000.00 when she signed the employment contract.9cralawred

Joy was deployed to work for Taiwan Wacoal, Co. Ltd. (Wacoal) on June 26, 1997.10 She alleged that in her employment contract, she agreed to work as quality control for one year.11 In Taiwan, she was asked to work as a cutter.12cralawred

Sameer Overseas Placement Agency claims that on July 14, 1997, a certain Mr. Huwang from Wacoal informed Joy, without prior notice, that she was terminated and that “she should immediately report to their office to get her salary and passport.”13 She was asked to “prepare for immediate repatriation.”14cralawred

Joy claims that she was told that from June 26 to July 14, 1997, she only earned a total of NT$9,000.15 According to her, Wacoal deducted NT$3,000 to cover her plane ticket to Manila.16cralawred

On October 15, 1997, Joy filed a complaint17 with the National Labor Relations Commission against petitioner and Wacoal. She claimed that she was illegally dismissed.18 She asked for the return of her placement fee, the withheld amount for repatriation costs, payment of her salary for 23 months as well as moral and exemplary damages.19 She identified Wacoal as Sameer Overseas Placement Agency’s foreign principal.20cralawred

Sameer Overseas Placement Agency alleged that respondent's termination was due to her inefficiency, negligence in her duties, and her “failure to comply with the work requirements [of] her foreign [employer].”21 The agency also claimed that it did not ask for a placement fee of ?70,000.00.22 As evidence, it showed Official Receipt No. 14860 dated June 10, 1997, bearing the amount of ?20,360.00.23 Petitioner added that Wacoal's accreditation with petitioner had already been transferred to the Pacific Manpower & Management Services, Inc. (Pacific) as of August 6, 1997.24 Thus, petitioner asserts that it was already substituted by Pacific Manpower.25cralawred

Pacific Manpower moved for the dismissal of petitioner’s claims against it.26 It alleged that there was no employer-employee relationship between them.27 Therefore, the claims against it were outside the jurisdiction of the Labor Arbiter.28 Pacific Manpower argued that the employment contract should first be presented so that the employer’s contractual obligations might be identified.29 It further denied that it assumed liability for petitioner’s illegal acts.30cralawred

On July 29, 1998, the Labor Arbiter dismissed Joy’s complaint.31 Acting Executive Labor Arbiter Pedro C. Ramos ruled that her complaint was based on mere allegations.32 The Labor Arbiter found that there was no excess payment of placement fees, based on the official receipt presented by petitioner.33 The Labor Arbiter found unnecessary a discussion on petitioner’s transfer of obligations to Pacific34 and considered the matter immaterial in view of the dismissal of respondent’s complaint.35cralawred

Joy appealed36 to the National Labor Relations Commission.

In a resolution37 dated March 31, 2004, the National Labor Relations Commission declared that Joy was illegally dismissed.38 It reiterated the doctrine that the burden of proof to show that the dismissal was based on a just or valid cause belongs to the employer.39 It found that Sameer Overseas Placement Agency failed to prove that there were just causes for termination.40 There was no sufficient proof to show that respondent was inefficient in her work and that she failed to comply with company requirements.41 Furthermore, procedural due process was not observed in terminating respondent.42cralawred

The National Labor Relations Commission did not rule on the issue of reimbursement of placement fees for lack of jurisdiction.43 It refused to entertain the issue of

the alleged transfer of obligations to Pacific.44 It did not acquire jurisdiction over that issue because Sameer Overseas Placement Agency failed to appeal the Labor Arbiter’s decision not to rule on the matter.45cralawred

The National Labor Relations Commission awarded respondent only three (3) months worth of salary in the amount of NT$46,080, the reimbursement of the NT$3,000 withheld from her, and attorney’s fees of NT$300.46cralawred

The Commission denied the agency’s motion for reconsideration47 dated May 12, 2004 through a resolution48 dated July 2, 2004.

Aggrieved by the ruling, Sameer Overseas Placement Agency caused the filing of a petition49 for certiorari with the Court of Appeals assailing the National Labor Relations Commission’s resolutions dated March 31, 2004 and July 2, 2004.

The Court of Appeals50 affirmed the decision of the National Labor Relations Commission with respect to the finding of illegal dismissal, Joy’s entitlement to the equivalent of three months worth of salary, reimbursement of withheld repatriation expense, and attorney’s fees.51 The Court of Appeals remanded the case to the National Labor Relations Commission to address the validity of petitioner's allegations against Pacific.52 The Court of Appeals held, thus:chanRoblesvirtualLawlibrary

Although the public respondent found the dismissal of the complainant-respondent illegal, we should point out that the NLRC merely awarded her three (3) months backwages or the amount of NT$46,080.00, which was based upon its finding that she was dismissed without due process, a finding that we uphold, given petitioner’s lack of worthwhile discussion upon the same in the proceedings below or before us. Likewise we sustain NLRC’s finding in regard to the reimbursement of her fare, which is squarely based on the law; as well as the award of attorney’s fees.

But we do find it necessary to remand the instant case to the public respondent for further proceedings, for the purpose of addressing the validity or propriety of petitioner’s third-party complaint against the transferee agent or the Pacific Manpower & Management Services, Inc. and Lea G. Manabat. We should emphasize that as far as the decision of the NLRC on the claims of Joy Cabiles, is concerned, the same is hereby affirmed with finality, and we hold petitioner liable thereon, but without prejudice to further hearings on its third party complaint against Pacific for reimbursement.

WHEREFORE, premises considered, the assailed Resolutions are hereby partly AFFIRMED in accordance with the foregoing discussion, but subject to the caveat embodied in the last sentence. No costs.

SO ORDERED.53

Dissatisfied, Sameer Overseas Placement Agency filed this petition.54cralawred

We are asked to determine whether the Court of Appeals erred when it affirmed the ruling of the National Labor Relations Commission finding respondent illegally dismissed and awarding her three months’ worth of salary, the reimbursement of the cost of her repatriation, and attorney’s fees despite the alleged existence of just causes of termination.

Petitioner reiterates that there was just cause for termination because there was a finding of Wacoal that respondent was inefficient in her work.55 Therefore, it claims that respondent’s dismissal was valid.56cralawred

Petitioner also reiterates that since Wacoal’s accreditation was validly transferred to Pacific at the time respondent filed her complaint, it should be Pacific that should now assume responsibility for Wacoal’s contractual obligations to the workers originally recruited by petitioner.57cralawred

Sameer Overseas Placement Agency’s petition is without merit. We find for respondent.

I. Sameer Overseas Placement Agency failed to show that there was just cause for causing Joy’s dismissal. The employer, Wacoal, also failed to accord her due process of law.

Indeed, employers have the prerogative to impose productivity and quality standards at work.58 They may also impose reasonable rules to ensure that the employees comply with these standards.59 Failure to comply may be a just cause for their dismissal.60 Certainly, employers cannot be compelled to retain the services of an employee who is guilty of acts that are inimical to the interest of the employer.61 While the law acknowledges the plight and vulnerability of workers, it does not “authorize the oppression or self-destruction of the employer.”62 Management prerogative is recognized in law and in our jurisprudence.

This prerogative, however, should not be abused. It is “tempered with the employee’s right to security of tenure.”63 Workers are entitled to substantive and procedural due process before termination. They may

not be removed from employment without a valid or just cause as determined by law and without going through the proper procedure.

Security of tenure for labor is guaranteed by our Constitution.64cralawred

Employees are not stripped of their security of tenure when they move to work in a different jurisdiction. With respect to the rights of overseas Filipino workers, we follow the principle of lex loci contractus.

Thus, in Triple Eight Integrated Services, Inc. v. NLRC,65 this court noted:chanRoblesvirtualLawlibrary

Petitioner likewise attempts to sidestep the medical certificate requirement by contending that since Osdana was working in Saudi Arabia, her employment was subject to the laws of the host country. Apparently, petitioner hopes to make it appear that the labor laws of Saudi Arabia do not require any certification by a competent public health authority in the dismissal of employees due to illness.

Again, petitioner’s argument is without merit.

First, established is the rule that lex loci contractus (the law of the place where the contract is made) governs in this jurisdiction. There is no question that the contract of employment in this case was perfected here in the Philippines. Therefore, the Labor Code, its implementing rules and regulations, and other laws affecting labor apply in this case. Furthermore, settled is the rule that the courts of the forum will not enforce any foreign claim obnoxious to the forum’s public policy. Here in the Philippines, employment agreements are more than contractual in nature. The Constitution itself, in Article XIII, Section 3, guarantees the special protection of workers, to wit:chanRoblesvirtualLawlibrary

The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

This public policy should be borne in mind in this case because to allow foreign employers to determine for

and by themselves whether an overseas contract worker may be dismissed on the ground of illness would encourage illegal or arbitrary pre-termination of employment contracts.66 (Emphasis supplied, citation omitted)

Even with respect to fundamental procedural rights, this court emphasized in PCL Shipping Philippines, Inc. v. NLRC,67 to wit:chanRoblesvirtualLawlibrary

Petitioners admit that they did not inform private respondent in writing of the charges against him and that they failed to conduct a formal investigation to give him opportunity to air his side. However, petitioners contend that the twin requirements of notice and hearing applies strictly only when the employment is within the Philippines and that these need not be strictly observed in cases of international maritime or overseas employment.

The Court does not agree. The provisions of the Constitution as well as the Labor Code which afford protection to labor apply to Filipino employees whether working within the Philippines or abroad. Moreover, the principle of lex loci contractus (the law of the place where the contract is made) governs in this jurisdiction. In the present case, it is not disputed that the Contract of Employment entered into by and between petitioners and private respondent was executed here in the Philippines with the approval of the Philippine Overseas Employment Administration (POEA). Hence, the Labor Code together with its implementing rules and regulations and other laws affecting labor apply in this case.68 (Emphasis supplied, citations omitted)

By our laws, overseas Filipino workers (OFWs) may only be terminated for a just or authorized cause and after compliance with procedural due process requirements.

Article 282 of the Labor Code enumerates the just causes of termination by the employer. Thus:chanRoblesvirtualLawlibrary

Art. 282. Termination by employer. An employer may terminate an employment for any of the following causes:cralawlawlibrary

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;chanroblesvirtuallawlibrary

(b) Gross and habitual neglect by the employee of his duties;chanroblesvirtuallawlibrary

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;chanroblesvirtuallawlibrary

(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; andChanRoblesVirtualawlibrary

(e) Other causes analogous to the foregoing.

Petitioner’s allegation that respondent was inefficient in her work and negligent in her duties69 may, therefore, constitute a just cause for termination under Article 282(b), but only if petitioner was able to prove it.

The burden of proving that there is just cause for termination is on the employer. “The employer must affirmatively show rationally adequate evidence that the dismissal was for a justifiable cause.”70 Failure to show that there was valid or just cause for termination would necessarily mean that the dismissal was illegal.71cralawred

To show that dismissal resulting from inefficiency in work is valid, it must be shown that: 1) the employer has set standards of conduct and workmanship against which the employee will be judged; 2) the standards of conduct and workmanship must have been communicated to the employee; and 3) the communication was made at a reasonable time prior to the employee’s performance assessment.

This is similar to the law and jurisprudence on probationary employees, which allow termination of the employee only when there is “just cause or when [the probationary employee] fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his [or her] engagement.”72cralawred

However, we do not see why the application of that ruling should be limited to probationary employment. That rule is basic to the idea of security of tenure and due process, which are guaranteed to all employees, whether their employment is probationary or regular.

The pre-determined standards that the employer sets are the bases for determining the probationary employee’s fitness, propriety, efficiency, and qualifications as a regular employee. Due process requires that the probationary employee be informed of such standards at the time of his or her engagement so he or she can adjust his or her character or workmanship accordingly. Proper adjustment to fit the standards upon which the employee’s qualifications will be evaluated will increase one’s chances of being

positively assessed for regularization by his or her employer.

Assessing an employee’s work performance does not stop after regularization. The employer, on a regular basis, determines if an employee is still qualified and efficient, based on work standards. Based on that determination, and after complying with the due process requirements of notice and hearing, the employer may exercise its management prerogative of terminating the employee found unqualified.

The regular employee must constantly attempt to prove to his or her employer that he or she meets all the standards for employment. This time, however, the standards to be met are set for the purpose of retaining employment or promotion. The employee cannot be expected to meet any standard of character or workmanship if such standards were not communicated to him or her. Courts should remain vigilant on allegations of the employer’s failure to communicate work standards that would govern one’s employment “if [these are] to discharge in good faith [their] duty to adjudicate.”73cralawred

In this case, petitioner merely alleged that respondent failed to comply with her foreign employer’s work requirements and was inefficient in her work.74No evidence was shown to support such allegations. Petitioner did not even bother to specify what requirements were not met, what efficiency standards were violated, or what particular acts of respondent constituted inefficiency.

There was also no showing that respondent was sufficiently informed of the standards against which her work efficiency and performance were judged. The parties’ conflict as to the position held by respondent showed that even the matter as basic as the job title was not clear.

The bare allegations of petitioner are not sufficient to support a claim that there is just cause for termination. There is no proof that respondent was legally terminated.

Petitioner failed to comply with the due process requirements

Respondent’s dismissal less than one year from hiring and her repatriation on the same day show not only failure on the part of petitioner to comply with the requirement of the existence of just cause for termination. They patently show that the employers did not comply with the due process requirement.

A valid dismissal requires both a valid cause and adherence to the valid procedure of dismissal.75 The employer is required to give the charged employee at least two written notices before termination.76 One of the written notices must inform the employee of the particular acts that may cause his or her dismissal.77 The other notice must “[inform] the employee of the employer’s decision.”78 Aside from the notice requirement, the employee must also be given “an opportunity to be heard.”79cralawred

Petitioner failed to comply with the twin notices and hearing requirements. Respondent started working on June 26, 1997. She was told that she was terminated on July 14, 1997 effective on the same day and barely a month from her first workday. She was also repatriated on the same day that she was informed of her termination. The abruptness of the termination negated any finding that she was properly notified and given the opportunity to be heard. Her constitutional right to due process of law was violated.

II. Respondent Joy Cabiles, having been illegally dismissed, is entitled to her salary for the unexpired portion of the employment contract that was violated together with attorney’s fees and reimbursement of amounts withheld from her salary.

Section 10 of Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, states that overseas workers who were terminated without just, valid, or authorized cause “shall be entitled to the full reimbursement of his placement fee with interest of twelve (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.”

Sec. 10. MONEY CLAIMS. – Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages.

The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provisions [sic] shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be

filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages.

Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract.

Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this section shall be paid within four (4) months from the approval of the settlement by the appropriate authority.

In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.

Section 15 of Republic Act No. 8042 states that “repatriation of the worker and the transport of his [or her] personal belongings shall be the primary responsibility of the agency which recruited or deployed the worker overseas.” The exception is when “termination of employment is due solely to the fault of the worker,”80 which as we have established, is not the case. It reads:chanRoblesvirtualLawlibrary

SEC. 15. REPATRIATION OF WORKERS; EMERGENCY REPATRIATION FUND. – The repatriation of the worker and the transport of his personal belongings shall be the primary responsibility of the agency which recruited or deployed the worker overseas. All costs attendant to repatriation shall be borne by or charged to the agency concerned and/or its principal. Likewise, the repatriation of remains and transport of the personal belongings of a deceased worker and all costs attendant thereto shall be borne by the principal and/or local agency. However, in cases where the termination of employment is due solely to the fault of the worker, the principal/employer or agency shall not in any manner be responsible for the repatriation of the former and/or his belongings.

The Labor Code81 also entitles the employee to 10% of the amount of withheld wages as attorney’s fees when the withholding is unlawful.

The Court of Appeals affirmed the National Labor Relations Commission’s decision to award respondent NT$46,080.00 or the three-month equivalent of her salary, attorney’s fees of NT$300.00, and the reimbursement of the withheld NT$3,000.00 salary, which answered for her repatriation.

We uphold the finding that respondent is entitled to all of these awards. The award of the three-month equivalent of respondent’s salary should, however, be increased to the amount equivalent to the unexpired term of the employment contract.

In Serrano v. Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc.,82 this court ruled that the clause “or for three (3) months for every year of the unexpired term, whichever is less”83 is unconstitutional for violating the equal protection clause and substantive due process.84cralawred

A statute or provision which was declared unconstitutional is not a law. It “confers no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative as if it has not been passed at all.”85cralawred

We are aware that the clause “or for three (3) months for every year of the unexpired term, whichever is less” was reinstated in Republic Act No. 8042 upon promulgation of Republic Act No. 10022 in 2010. Section 7 of Republic Act No. 10022 provides:chanRoblesvirtualLawlibrary

Section 7. Section 10 of Republic Act No. 8042, as amended, is hereby amended to read as follows:chanRoblesvirtualLawlibrary

SEC. 10. Money Claims. – Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damage. Consistent with this mandate, the NLRC shall endeavor to update and keep abreast with the developments in the global services industry.

The liability of the principal/employer and the recruitment/placement agency for any and all claims

under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to de [sic] filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages.

Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract.

Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this section shall be paid within thirty (30) days from approval of the settlement by the appropriate authority.

In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any unauthorized deductions from the migrant worker’s salary, the worker shall be entitled to the full reimbursement if [sic] his placement fee and the deductions made with interest at twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.

In case of a final and executory judgement against a foreign employer/principal, it shall be automatically disqualified, without further proceedings, from participating in the Philippine Overseas Employment Program and from recruiting and hiring Filipino workers until and unless it fully satisfies the judgement award.

Noncompliance with the mandatory periods for resolutions of case provided under this section shall subject the responsible officials to any or all of the following penalties:cralawlawlibrary

(a) The salary of any such official who fails to render his decision or resolution within the prescribed period shall be, or caused to be, withheld until the said official complies therewith;chanroblesvirtuallawlibrary

(b) Suspension for not more than ninety (90) days; or

(c) Dismissal from the service with disqualification to hold any appointive public office for five (5) years.

Provided, however, That the penalties herein provided shall be without prejudice to any liability which any such official may have incured [sic] under other existing laws or rules and regulations as a consequence of violating the provisions of this paragraph. (Emphasis supplied)

Republic Act No. 10022 was promulgated on March 8, 2010. This means that the reinstatement of the clause in Republic Act No. 8042 was not yet in effect at the time of respondent’s termination from work in 1997.86 Republic Act No. 8042 before it was amended by Republic Act No. 10022 governs this case.

When a law is passed, this court awaits an actual case that clearly raises adversarial positions in their proper context before considering a prayer to declare it as unconstitutional.

However, we are confronted with a unique situation. The law passed incorporates the exact clause already declared as unconstitutional, without any perceived substantial change in the circumstances.

This may cause confusion on the part of the National Labor Relations Commission and the Court of Appeals. At minimum, the existence of Republic Act No. 10022 may delay the execution of the judgment in this case, further frustrating remedies to assuage the wrong done to petitioner. Hence, there is a necessity to decide this constitutional issue.

Moreover, this court is possessed with the constitutional duty to “[p]romulgate rules concerning the protection and enforcement of constitutional rights.”87 When cases become moot and academic, we do not hesitate to provide for guidance to bench and bar in situations where the same violations are capable of repetition but will evade review. This is analogous to cases where there are millions of Filipinos working abroad who are bound to suffer from the lack of protection because of the restoration of an identical clause in a provision previously declared as unconstitutional.

In the hierarchy of laws, the Constitution is supreme. No branch or office of the government may exercise its powers in any manner inconsistent with the Constitution, regardless of the existence of any law that supports such exercise. The Constitution cannot be trumped by any other law. All laws must be read in light of the Constitution. Any law that is inconsistent with it is a nullity.

Thus, when a law or a provision of law is null because it is inconsistent with the Constitution, the nullity cannot

be cured by reincorporation or reenactment of the same or a similar law or provision. A law or provision of law that was already declared unconstitutional remains as such unless circumstances have so changed as to warrant a reverse conclusion.

We are not convinced by the pleadings submitted by the parties that the situation has so changed so as to cause us to reverse binding precedent.

Likewise, there are special reasons of judicial efficiency and economy that attend to these cases.

The new law puts our overseas workers in the same vulnerable position as they were prior to Serrano. Failure to reiterate the very ratio decidendi of that case will result in the same untold economic hardships that our reading of the Constitution intended to avoid. Obviously, we cannot countenance added expenses for further litigation that will reduce their hard-earned wages as well as add to the indignity of having been deprived of the protection of our laws simply because our precedents have not been followed. There is no constitutional doctrine that causes injustice in the face of empty procedural niceties. Constitutional interpretation is complex, but it is never unreasonable.

Thus, in a resolution88 dated October 22, 2013, we ordered the parties and the Office of the Solicitor General to comment on the constitutionality of the reinstated clause in Republic Act No. 10022.

In its comment,89 petitioner argued that the clause was constitutional.90 The legislators intended a balance between the employers’ and the employees’ rights by not unduly burdening the local recruitment agency.91 Petitioner is also of the view that the clause was already declared as constitutional in Serrano.92cralawred

The Office of the Solicitor General also argued that the clause was valid and constitutional.93 However, since the parties never raised the issue of the constitutionality of the clause as reinstated in Republic Act No. 10022, its contention is that it is beyond judicial review.94cralawred

On the other hand, respondent argued that the clause was unconstitutional because it infringed on workers’ right to contract.95cralawred

We observe that the reinstated clause, this time as provided in Republic Act. No. 10022, violates the constitutional rights to equal protection and due process.96 Petitioner as well as the Solicitor General have failed to show any compelling change in the circumstances that would warrant us to revisit the precedent.

We reiterate our finding in Serrano v. Gallant Maritime that limiting wages that should be recovered by an illegally dismissed overseas worker to three months is both a violation of due process and the equal protection clauses of the Constitution.

Equal protection of the law is a guarantee that persons under like circumstances and falling within the same class are treated alike, in terms of “privileges conferred and liabilities enforced.”97 It is a guarantee against “undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality.”98cralawred

In creating laws, the legislature has the power “to make distinctions and classifications.”99 In exercising such power, it has a wide discretion.100cralawred

The equal protection clause does not infringe on this legislative power.101 A law is void on this basis, only if classifications are made arbitrarily.102 There is no violation of the equal protection clause if the law applies equally to persons within the same class and if there are reasonable grounds for distinguishing between those falling within the class and those who do not fall within the class.103 A law that does not violate the equal protection clause prescribes a reasonable classification.104cralawred

A reasonable classification “(1) must rest on substantial distinctions; (2) must be germane to the purposes of the law; (3) must not be limited to existing conditions only; and (4) must apply equally to all members of the same class.”105cralawred

The reinstated clause does not satisfy the requirement of reasonable classification.

In Serrano, we identified the classifications made by the reinstated clause. It distinguished between fixed-period overseas workers and fixed-period local workers.106 It also distinguished between overseas workers with employment contracts of less than one year and overseas workers with employment contracts of at least one year.107 Within the class of overseas workers with at least one-year employment contracts, there was a distinction between those with at least a year left in their contracts and those with less than a year left in their contracts when they were illegally dismissed.108cralawred

The Congress’ classification may be subjected to judicial review. In Serrano, there is a “legislative classification which impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.”109cralawred

Under the Constitution, labor is afforded special protection.110 Thus, this court in Serrano, “[i]mbued with the same sense of ‘obligation to afford protection to labor,’ . . . employ[ed] the standard of strict judicial scrutiny, for it perceive[d] in the subject clause a suspect classification prejudicial to OFWs.”111cralawred

We also noted in Serrano that before the passage of Republic Act No. 8042, the money claims of illegally terminated overseas and local workers with fixed-term employment were computed in the same manner.112 Their money claims were computed based on the “unexpired portions of their contracts.”113 The adoption of the reinstated clause in Republic Act No. 8042 subjected the money claims of illegally dismissed overseas workers with an unexpired term of at least a year to a cap of three months worth of their salary.114 There was no such limitation on the money claims of illegally terminated local workers with fixed-term employment.115cralawred

We observed that illegally dismissed overseas workers whose employment contracts had a term of less than one year were granted the amount equivalent to the unexpired portion of their employment contracts.116 Meanwhile, illegally dismissed overseas workers with employment terms of at least a year were granted a cap equivalent to three months of their salary for the unexpired portions of their contracts.117cralawred

Observing the terminologies used in the clause, we also found that “the subject clause creates a sub-layer of discrimination among OFWs whose contract periods are for more than one year: those who are illegally dismissed with less than one year left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof, while those who are illegally dismissed with one year or more remaining in their contracts shall be covered by the reinstated clause, and their monetary benefits limited to their salaries for three months only.”118cralawred

We do not need strict scrutiny to conclude that these classifications do not rest on any real or substantial distinctions that would justify different treatments in terms of the computation of money claims resulting from illegal termination.

Overseas workers regardless of their classifications are entitled to security of tenure, at least for the period agreed upon in their contracts. This means that they cannot be dismissed before the end of their contract terms without due process. If they were illegally

dismissed, the workers’ right to security of tenure is violated.

The rights violated when, say, a fixed-period local worker is illegally terminated are neither greater than nor less than the rights violated when a fixed-period overseas worker is illegally terminated. It is state policy to protect the rights of workers without qualification as to the place of employment.119 In both cases, the workers are deprived of their expected salary, which they could have earned had they not been illegally dismissed. For both workers, this deprivation translates to economic insecurity and disparity.120 The same is true for the distinctions between overseas workers with an employment contract of less than one year and overseas workers with at least one year of employment contract, and between overseas workers with at least a year left in their contracts and overseas workers with less than a year left in their contracts when they were illegally dismissed.

For this reason, we cannot subscribe to the argument that “[overseas workers] are contractual employees who can never acquire regular employment status, unlike local workers”121 because it already justifies differentiated treatment in terms of the computation of money claims.122cralawred

Likewise, the jurisdictional and enforcement issues on overseas workers’ money claims do not justify a differentiated treatment in the computation of their money claims.123 If anything, these issues justify an equal, if not greater protection and assistance to overseas workers who generally are more prone to exploitation given their physical distance from our government.

We also find that the classifications are not relevant to the purpose of the law, which is to “establish a higher standard of protection and promotion of the welfare of migrant workers, their families and overseas Filipinos in distress, and for other purposes.”124 Further, we find specious the argument that reducing the liability of placement agencies “redounds to the benefit of the [overseas] workers.”125cralawred

Putting a cap on the money claims of certain overseas workers does not increase the standard of protection afforded to them. On the other hand, foreign employers are more incentivized by the reinstated clause to enter into contracts of at least a year because it gives them more flexibility to violate our overseas workers’ rights. Their liability for arbitrarily terminating overseas workers is decreased at the expense of the workers whose rights they violated. Meanwhile, these overseas

workers who are impressed with an expectation of a stable job overseas for the longer contract period disregard other opportunities only to be terminated earlier. They are left with claims that are less than what others in the same situation would receive. The reinstated clause, therefore, creates a situation where the law meant to protect them makes violation of rights easier and simply benign to the violator.

As Justice Brion said in his concurring opinion in Serrano:chanRoblesvirtualLawlibrary

Section 10 of R.A. No. 8042 affects these well-laid rules and measures, and in fact provides a hidden twist affecting the principal/employer’s liability. While intended as an incentive accruing to recruitment/manning agencies, the law, as worded, simply limits the OFWs’ recovery in wrongful dismissal situations. Thus, it redounds to the benefit of whoever may be liable, including the principal/employer – the direct employer primarily liable for the wrongful dismissal. In this sense, Section 10 – read as a grant of incentives to recruitment/manning agencies – oversteps what it aims to do by effectively limiting what is otherwise the full liability of the foreign principals/employers. Section 10, in short, really operates to benefit the wrong party and allows that party, without justifiable reason, to mitigate its liability for wrongful dismissals. Because of this hidden twist, the limitation of liability under Section 10 cannot be an “appropriate” incentive, to borrow the term that R.A. No. 8042 itself uses to describe the incentive it envisions under its purpose clause.

What worsens the situation is the chosen mode of granting the incentive: instead of a grant that, to encourage greater efforts at recruitment, is directly related to extra efforts undertaken, the law simply limits their liability for the wrongful dismissals of already deployed OFWs. This is effectively a legally-imposed partial condonation of their liability to OFWs, justified solely by the law’s intent to encourage greater deployment efforts. Thus, the incentive, from a more practical and realistic view, is really part of a scheme to sell Filipino overseas labor at a bargain for purposes solely of attracting the market. . . .

The so-called incentive is rendered particularly odious by its effect on the OFWs — the benefits accruing to the recruitment/manning agencies and their principals are taken from the pockets of the OFWs to whom the full salaries for the unexpired portion of the contract rightfully belong. Thus, the principals/employers and the recruitment/manning agencies even profit from their violation of the security of tenure that an

employment contract embodies. Conversely, lesser protection is afforded the OFW, not only because of the lessened recovery afforded him or her by operation of law, but also because this same lessened recovery renders a wrongful dismissal easier and less onerous to undertake; the lesser cost of dismissing a Filipino will always be a consideration a foreign employer will take into account in termination of employment decisions. . . .126

Further, “[t]here can never be a justification for any form of government action that alleviates the burden of one sector, but imposes the same burden on another sector, especially when the favored sector is composed of private businesses such as placement agencies, while the disadvantaged sector is composed of OFWs whose protection no less than the Constitution commands. The idea that private business interest can be elevated to the level of a compelling state interest is odious.”127cralawred

Along the same line, we held that the reinstated clause violates due process rights. It is arbitrary as it deprives overseas workers of their monetary claims without any discernable valid purpose.128cralawred

Respondent Joy Cabiles is entitled to her salary for the unexpired portion of her contract, in accordance with Section 10 of Republic Act No. 8042. The award of the three-month equivalence of respondent’s salary must be modified accordingly. Since she started working on June 26, 1997 and was terminated on July 14, 1997, respondent is entitled to her salary from July 15, 1997 to June 25, 1998. “To rule otherwise would be iniquitous to petitioner and other OFWs, and would, in effect, send a wrong signal that principals/employers and recruitment/manning agencies may violate an OFW’s security of tenure which an employment contract embodies and actually profit from such violation based on an unconstitutional provision of law.”129cralawred

III. On the interest rate, the Bangko Sentral ng Pilipinas Circular No. 799 of June 21, 2013, which revised the interest rate for loan or forbearance from 12% to 6% in the absence of stipulation, applies in this case. The pertinent portions of Circular No. 799, Series of 2013, read:chanRoblesvirtualLawlibrary

The Monetary Board, in its Resolution No. 796 dated 16 May 2013, approved the following revisions governing the rate of interest in the absence of stipulation in loan contracts, thereby amending Section 2 of Circular No. 905, Series of 1982:cralawlawlibrary

Section 1. The rate of interest for the loan or forbearance of any money, goods or credits and the rate allowed in judgments, in the absence of an express contract as to such rate of interest, shall be six percent (6%) per annum.

Section 2. In view of the above, Subsection X305.1 of the Manual of Regulations for Banks and Sections 4305Q.1, 4305S.3 and 4303P.1 of the Manual of Regulations for Non-Bank Financial Institutions are hereby amended accordingly.

This Circular shall take effect on 1 July 2013.

Through the able ponencia of Justice Diosdado Peralta, we laid down the guidelines in computing legal interest in Nacar v. Gallery Frames:130cralawred

II. With regard particularly to an award of interest in the concept of actual and compensatory damages, the rate of interest, as well as the accrual thereof, is imposed, as follows:chanRoblesvirtualLawlibrary

When the obligation is breached, and it consists in the payment of a sum of money, i.e., a loan or forbearance of money, the interest due should be that which may have been stipulated in writing. Furthermore, the interest due shall itself earn legal interest from the time it is judicially demanded. In the absence of stipulation, the rate of interest shall be 6% per annum to be computed from default, i.e., from judicial or extrajudicial demand under and subject to the provisions of Article 1169 of the Civil Code.

When an obligation, not constituting a loan or forbearance of money, is breached, an interest on the amount of damages awarded may be imposed at the discretion of the court at the rate of 6% per annum. No interest, however, shall be adjudged on unliquidated claims or damages, except when or until the demand can be established with reasonable certainty. Accordingly, where the demand is established with reasonable certainty, the interest shall begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code), but when such certainty cannot be so reasonably established at the time the demand is made, the interest shall begin to run only from the date the judgment of the court is made (at which time the quantification of damages may be deemed to have been reasonably ascertained). The actual base for the computation of legal interest shall, in any case, be on the amount finally adjudged.

When the judgment of the court awarding a sum of money becomes final and executory, the rate of legal interest, whether the case falls under paragraph 1 or

paragraph 2, above, shall be 6% per annum from such finality until its satisfaction, this interim period being deemed to be by then an equivalent to a forbearance of credit.

And, in addition to the above, judgments that have become final and executory prior to July 1, 2013, shall not be disturbed and shall continue to be implemented applying the rate of interest fixed therein.131

Circular No. 799 is applicable only in loans and forbearance of money, goods, or credits, and in judgments when there is no stipulation on the applicable interest rate. Further, it is only applicable if the judgment did not become final and executory before July 1, 2013.132cralawred

We add that Circular No. 799 is not applicable when there is a law that states otherwise. While the Bangko Sentral ng Pilipinas has the power to set or limit interest rates,133 these interest rates do not apply when the law provides that a different interest rate shall be applied. “[A] Central Bank Circular cannot repeal a law. Only a law can repeal another law.”134cralawred

For example, Section 10 of Republic Act No. 8042 provides that unlawfully terminated overseas workers are entitled to the reimbursement of his or her placement fee with an interest of 12% per annum. Since Bangko Sentral ng Pilipinas circulars cannot repeal Republic Act No. 8042, the issuance of Circular No. 799 does not have the effect of changing the interest on awards for reimbursement of placement fees from 12% to 6%. This is despite Section 1 of Circular No. 799, which provides that the 6% interest rate applies even to judgments.

Moreover, laws are deemed incorporated in contracts. “The contracting parties need not repeat them. They do not even have to be referred to. Every contract, thus, contains not only what has been explicitly stipulated, but the statutory provisions that have any bearing on the matter.”135 There is, therefore, an implied stipulation in contracts between the placement agency and the overseas worker that in case the overseas worker is adjudged as entitled to reimbursement of his or her placement fees, the amount shall be subject to a 12% interest per annum. This implied stipulation has the effect of removing awards for reimbursement of placement fees from Circular No. 799’s coverage.

The same cannot be said for awards of salary for the unexpired portion of the employment contract under Republic Act No. 8042. These awards are covered by Circular No. 799 because the law does not provide for a specific interest rate that should apply.

In sum, if judgment did not become final and executory before July 1, 2013 and there was no stipulation in the contract providing for a different interest rate, other money claims under Section 10 of Republic Act No. 8042 shall be subject to the 6% interest per annum in accordance with Circular No. 799.

This means that respondent is also entitled to an interest of 6% per annum on her money claims from the finality of this judgment.

IV. Finally, we clarify the liabilities of Wacoal as principal and petitioner as the employment agency that facilitated respondent’s overseas employment.

Section 10 of the Migrant Workers and Overseas Filipinos Act of 1995 provides that the foreign employer and the local employment agency are jointly and severally liable for money claims including claims arising out of an employer-employee relationship and/or damages. This section also provides that the performance bond filed by the local agency shall be answerable for such money claims or damages if they were awarded to the employee.

This provision is in line with the state’s policy of affording protection to labor and alleviating workers’ plight.136cralawred

In overseas employment, the filing of money claims against the foreign employer is attended by practical and legal complications. The distance of the foreign employer alone makes it difficult for an overseas worker to reach it and make it liable for violations of the Labor Code. There are also possible conflict of laws, jurisdictional issues, and procedural rules that may be raised to frustrate an overseas worker’s attempt to advance his or her claims.

It may be argued, for instance, that the foreign employer must be impleaded in the complaint as an indispensable party without which no final determination can be had of an action.137cralawred

The provision on joint and several liability in the Migrant Workers and Overseas Filipinos Act of 1995 assures overseas workers that their rights will not be frustrated with these complications.

The fundamental effect of joint and several liability is that “each of the debtors is liable for the entire obligation.”138 A final determination may, therefore, be achieved even if only one of the joint and several debtors are impleaded in an action. Hence, in the case of overseas employment, either the local agency or the foreign employer may be sued for all claims arising from the foreign employer’s labor law violations. This way,

the overseas workers are assured that someone — the foreign employer’s local agent — may be made to answer for violations that the foreign employer may have committed.

The Migrant Workers and Overseas Filipinos Act of 1995 ensures that overseas workers have recourse in law despite the circumstances of their employment. By providing that the liability of the foreign employer may be “enforced to the full extent”139 against the local agent, the overseas worker is assured of immediate and sufficient payment of what is due them.140cralawred

Corollary to the assurance of immediate recourse in law, the provision on joint and several liability in the Migrant Workers and Overseas Filipinos Act of 1995 shifts the burden of going after the foreign employer from the overseas worker to the local employment agency. However, it must be emphasized that the local agency that is held to answer for the overseas worker’s money claims is not left without remedy. The law does not preclude it from going after the foreign employer for reimbursement of whatever payment it has made to the employee to answer for the money claims against the foreign employer.

A further implication of making local agencies jointly and severally liable with the foreign employer is that an additional layer of protection is afforded to overseas workers. Local agencies, which are businesses by nature, are inoculated with interest in being always on the lookout against foreign employers that tend to violate labor law. Lest they risk their reputation or finances, local agencies must already have mechanisms for guarding against unscrupulous foreign employers even at the level prior to overseas employment applications.

With the present state of the pleadings, it is not possible to determine whether there was indeed a transfer of obligations from petitioner to Pacific. This should not be an obstacle for the respondent overseas worker to proceed with the enforcement of this judgment. Petitioner is possessed with the resources to determine the proper legal remedies to enforce its rights against Pacific, if any.

V. Many times, this court has spoken on what Filipinos may encounter as they travel into the farthest and most difficult reaches of our planet to provide for their families. In Prieto v. NLRC:141cralawred

The Court is not unaware of the many abuses suffered by our overseas workers in the foreign land where they have ventured, usually with heavy hearts, in pursuit of a more fulfilling future. Breach of contract, maltreatment,

rape, insufficient nourishment, sub-human lodgings, insults and other forms of debasement, are only a few of the inhumane acts to which they are subjected by their foreign employers, who probably feel they can do as they please in their own country. While these workers may indeed have relatively little defense against exploitation while they are abroad, that disadvantage must not continue to burden them when they return to their own territory to voice their muted complaint. There is no reason why, in their very own land, the protection of our own laws cannot be extended to them in full measure for the redress of their grievances.142chanrobleslaw

But it seems that we have not said enough.

We face a diaspora of Filipinos. Their travails and their heroism can be told a million times over; each of their stories as real as any other. Overseas Filipino workers brave alien cultures and the heartbreak of families left behind daily. They would count the minutes, hours, days, months, and years yearning to see their sons and daughters. We all know of the joy and sadness when they come home to see them all grown up and, being so, they remember what their work has cost them. Twitter accounts, Facetime, and many other gadgets and online applications will never substitute for their lost physical presence.

Unknown to them, they keep our economy afloat through the ebb and flow of political and economic crises. They are our true diplomats, they who show the world the resilience, patience, and creativity of our people. Indeed, we are a people who contribute much to the provision of material creations of this world.

This government loses its soul if we fail to ensure decent treatment for all Filipinos. We default by limiting the contractual wages that should be paid to our workers when their contracts are breached by the foreign employers. While we sit, this court will ensure that our laws will reward our overseas workers with what they deserve: their dignity.

Inevitably, their dignity is ours as well.

WHEREFORE, the petition is DENIED. The decision of the Court of Appeals is AFFIRMED with modification. Petitioner Sameer Overseas Placement Agency is ORDERED to pay respondent Joy C. Cabiles the amount equivalent to her salary for the unexpired portion of her employment contract at an interest of 6% per annum from the finality of this judgment. Petitioner is also ORDERED to reimburse respondent the withheld NT$3,000.00 salary and pay respondent attorney’s fees

of NT$300.00 at an interest of 6% per annum from the finality of this judgment.

The clause, “or for three (3) months for every year of the unexpired term, whichever is less” in Section 7 of Republic Act No. 10022 amending Section 10 of Republic Act No. 8042 is declared unconstitutional and, therefore, null and void.

SO ORDERED.

Bartolome v SSS

Nature of the Case

This Appeal, filed under Rule 43 of the Rules of Court, seeks to annul the March 17, 2010 Decision1 of the Employees Compensation Commission (ECC) in ECC Case No. SL-18483-0218-10, entitled Bernardina P. Bartolome v. Social Security System (SSS) [Scanmar Maritime Services, Inc.}, declaring that petitioner is not a beneficiary of the deceased employee under Presidential Decree No. (PD) 442, otherwise known as the Labor Code of the Philippines, as amended by PD 626.2

The Facts

John Colcol (John), born on June 9, 1983, was employed as electrician by Scanmar Maritime Services, Inc., on board the vessel Maersk Danville, since February 2008. As such, he was enrolled under the government's Employees' Compensation Program (ECP).3 Unfortunately, on June 2, 2008, an accident occurred on board the vessel whereby steel plates fell on John, which led to his untimely death the following day.4

John was, at the time of his death, childless and unmarried. Thus, petitioner Bernardina P. Bartolome, John’s biological mother and, allegedly, sole remaining beneficiary, filed a claim for death benefits under PD 626 with the Social Security System (SSS) at San Fernando City, La Union. However, the SSS La Union office, in a letter dated June 10, 20095 addressed to petitioner, denied the claim, stating:

We regret to inform you that wecannot give due course to your claim because you are no longer considered as the parent of JOHN COLCOL as he was legally adopted by CORNELIO COLCOL based on documents you submitted to us.

The denial was appealed tothe Employees’ Compensation Commission (ECC), which affirmed the ruling of the SSS La Union Branch through the assailed Decision, the dispositive portion of which reads:

WHEREFORE, the appealed decision is AFFIRMED and the claim is hereby dismissed for lack of merit.

SO ORDERED.6

In denying the claim, both the SSS La Union branch and the ECC ruled against petitioner’s entitlement to the death benefits sought after under PD 626 on the ground she can no longer be considered John’s primary beneficiary. As culled from the records, John and his sister Elizabeth were adopted by their great grandfather, petitioner’s grandfather, Cornelio Colcol (Cornelio), by virtue of the Decision7 in Spec. Proc. No. 8220-XII of the Regional Trial Court in Laoag City dated February 4, 1985, which decree of adoption attained finality.8 Consequently, as argued by the agencies, it is Cornelio who qualifies as John’s primary beneficiary, not petitioner. Neither, the ECC reasoned, would petitioner qualify as John’s secondary beneficiary even if it wereproven that Cornelio has already passed away. As the ECC ratiocinated:

Under Article 167 (j) of P.D. 626, as amended, provides (sic) that beneficiaries are the "dependent spouse until he remarries and dependent children, who are the primary beneficiaries. In their absence, the dependent parentsand subject to the restrictions imposed on dependent children, the illegitimate children and legitimate descendants who are the secondary beneficiaries; Provided; that the dependent acknowledged natural child shall be considered as a primary beneficiary when there are no other dependent children who are qualified and eligible for monthly income benefit."

The dependent parent referred to by the above provision relates to the legitimate parent of the covered member, as provided for by Rule XV, Section 1 (c) (1) of the Amended Rules on Employees’ Compensation. This Commission believes that the appellant is not considered a legitimate parent of the deceased, having given up the latter for adoption to Mr. Cornelio C. Colcol. Thus, in effect, the adoption divested her of the statusas the legitimate parent of the deceased.

In effect, the rights which previously belong [sic] to the biological parent of the adopted child shall now be upon the adopting parent. Hence, in this case, the legal parent referred to by P.D. 626, as amended, as the beneficiary, who has the right to file the claim, is the adoptive father of the deceased and not herein appellant.9 (Emphasis supplied)

Aggrieved, petitioner filed a Motion for Reconsideration, which was likewise denied by the ECC.10 Hence, the instant petition.

The Issues

Petitioner raises the following issues in the petition:

ASSIGNMENT OF ERRORS

I. The Honorable ECC’s Decision is contrary to evidence on record.

II. The Honorable ECC committed grave abuse in denying the just, due and lawful claims of the petitioner as a lawful beneficiary of her deceased biological son.

III. The Honorable ECC committed grave abuse of discretion in not giving due course/denying petitioner’s otherwise meritorious motion for reconsideration.11

In resolving the case, the pivotal issue is this: Are the biological parents of the covered, but legally adopted, employee considered secondary beneficiaries and, thus, entitled, in appropriate cases, to receive the benefits under the ECP?

The Court's Ruling

The petition is meritorious.

The ECC’s factual findings are not consistent with the evidence on record

To recall, one of the primary reasons why the ECC denied petitioner’s claim for death benefits is that eventhough she is John’s biological mother, it was allegedly not proven that his adoptive parent, Cornelio, was no longer alive. As intimated by the ECC:

Moreover, there had been no allegation in the records as to whether the legally adoptive parent, Mr. Colcol, is dead, which would immediately qualify the appellant [petitioner] for Social Security benefits. Hence, absent such proof of death of the adoptive father, this Commission will presume him to be alive and well, and as such, is the one entitled to claim the benefit being the primary beneficiary of the deaceased. Thus, assuming that appellant is indeed a qualified beneficiary under the Social Security law, in view of her status as other beneficiary, she cannot claim the benefit legally provided by law to the primary beneficiary, in this case the adoptive father since he is still alive.

We disagree with the factual finding of the ECC on this point.

Generally, findings of fact by administrative agencies are generally accorded great respect, if not finality, by the courts by reason of the special knowledge and expertise of said administrative agenciesover matters falling under their jurisdiction.12 However, in the extant

case, the ECC had overlooked a crucial piece of evidence offered by the petitioner – Cornelio’s death certificate.13

Based on Cornelio’s death certificate, it appears that John’s adoptive father died on October 26, 1987,14 or only less than three (3) years since the decree of adoption on February 4, 1985, which attained finality.15 As such, it was error for the ECC to have ruled that it was not duly proven that the adoptive parent, Cornelio, has already passed away.

The rule limiting death benefits claims to the legitimate parents is contrary to law

This brings us to the question of whether or not petitioner is entitled to the death benefits claim in view of John’s work-related demise. The pertinent provision, in this regard, is Article 167 (j) of the Labor Code, as amended, which reads:

ART. 167. Definition of terms. - Asused in this Title unless the context indicates otherwise:

(j) 'Beneficiaries' means the dependent spouse until he remarries and dependent children, who are the primary beneficiaries. In their absence, the dependent parents and subject to the restrictions imposed on dependent children, the illegitimate children and legitimate descendants who are the secondary beneficiaries; Provided, that the dependent acknowledged natural child shall be considered as a primary beneficiary when there are no other dependent children who are qualified and eligible for monthly income benefit. (Emphasis supplied)

Concurrently, pursuant to the succeeding Article 177(c) supervising the ECC "[T]o approve rules and regulations governing the processing of claims and the settlement of disputes arising therefrom as prescribed by the System," the ECC has issued the Amended Rules on Employees’ Compensation, interpreting the above-cited provision as follows:

RULE XV – BENEFICIARIES

SECTION 1. Definition. (a) Beneficiaries shall be either primary or secondary, and determined atthe time of employee’s death.

(b) The following beneficiaries shall be considered primary:

(1) The legitimate spouse living with the employee at the time of the employee’s death until he remarries; and

(2) Legitimate, legitimated, legally adopted or acknowledged natural children, who are unmarried not gainfully employed, not over 21 years of age, or over 21 years of age provided that he is incapacitated and incapable of self - support due to physicalor mental defect which is congenital or acquired during minority; Provided, further, that a dependent acknowledged natural child shall be considered as a primary beneficiary only when there are no other dependent children who are qualified and eligible for monthly income benefit; provided finally, that if there are two or more acknowledged natural children, they shall be counted from the youngest and without substitution, but not exceeding five.

(c) The following beneficiaries shall be considered secondary:

(1) The legitimate parentswholly dependent upon the employee for regular support;

(2) The legitimate descendants and illegitimate children who are unmarried, not gainfully employed, and not over 21 years of age, or over 21 years of age providedthat he is incapacitated and incapable of self - support dueto physical or mental defect which is congenital or acquired during minority. (Emphasis supplied)

Guilty of reiteration, the ECC denied petitioner’s claim on the ground that she is no longer the deceased’s legitimate parent, as required by the implementing rules. As held by the ECC, the adoption decree severed the relation between John and petitioner, effectively divesting her of the status of a legitimate parent, and, consequently, that of being a secondary beneficiary.

We disagree.

a. Rule XV, Sec. 1(c)(1) of the Amended Rules on Employees’ Compensation deviates from the clear language of Art. 167 (j) of the Labor Code, as amended

Examining the Amended Rules on Employees’ Compensation in light of the Labor Code, as amended, it is at once apparent that the ECC indulged in an unauthorized administrative legislation. In net effect, the ECC read into Art. 167 of the Code an interpretation not contemplated by the provision. Pertinent in elucidating on this point isArticle 7 of the Civil Code of the Philippines, which reads:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not beexcused by disuse, or custom or practice to the contrary.

When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.(Emphasis supplied)

As applied, this Court held in Commissioner of Internal Revenue v. Fortune Tobacco Corporation16 that:

As we have previously declared, rule-making power must be confined to details for regulating the mode or proceedings in order to carry into effect the law as it has been enacted, and it cannot be extended to amend or expand the statutory requirements or to embrace matters not covered by the statute. Administrative regulations must always be in harmony with the provisions of the law because any resulting discrepancy between the two will always be resolved in favor of the basic law. (Emphasis supplied)

Guided by this doctrine, We find that Rule XV of the Amended Rules on Employees’ Compensation is patently a wayward restriction of and a substantial deviation from Article 167 (j) of the Labor Code when it interpreted the phrase "dependent parents" to refer to "legitimate parents."

It bears stressing that a similar issue in statutory construction was resolved by this Court in Diaz v. Intermediate Appellate Court17 in this wise:

It is Our shared view that the word "relatives" should be construed in its general acceptation. Amicus curiae Prof. Ruben Balane has this to say:

The term relatives, although used many times in the Code, is not defined by it. In accordancetherefore with the canons of statutory interpretation, it should beunderstood to have a general and inclusive scope, inasmuch as the term is a general one. Generalia verba sunt generaliter intelligenda. That the law does not make a distinction prevents us from making one: Ubi lex non distinguit, nec nos distinguera debemus. xxx

According to Prof. Balane, to interpret the term relatives in Article 992 in a more restrictive sense thanit is used and intended is not warranted by any rule ofinterpretation. Besides, he further states that when the law intends to use the termin a more restrictive sense, it qualifies the term with the word collateral, as in Articles 1003 and 1009 of the New Civil Code.

Thus, the word "relatives" is a general term and when used in a statute it embraces not only collateral relatives but also all the kindred of the person spoken

of, unless the context indicates that it was used in a more restrictive or limited sense — which as already discussed earlier, is not so in the case at bar. (Emphasis supplied)

In the same vein, the term "parents" in the phrase "dependent parents" in the afore-quoted Article 167 (j) of the Labor Code is usedand ought to be taken in its general sense and cannot be unduly limited to "legitimate parents" as what the ECC did. The phrase "dependent parents" should, therefore, include all parents, whether legitimate or illegitimate and whether by nature or by adoption. When the law does not distinguish, one should not distinguish. Plainly, "dependent parents" are parents, whether legitimate or illegitimate, biological or by adoption,who are in need of support or assistance.

Moreover, the same Article 167 (j),as couched, clearly shows that Congress did not intend to limit the phrase "dependent parents" to solely legitimate parents. At the risk of being repetitive, Article 167 provides that "in their absence, the dependent parents and subject to the restrictions imposed on dependent children, the illegitimate children and legitimate descendants who are secondary beneficiaries." Had the lawmakers contemplated "dependent parents" to mean legitimate parents, then it would have simply said descendants and not "legitimate descendants." The manner by which the provision in question was crafted undeniably show that the phrase "dependent parents" was intended to cover all parents – legitimate, illegitimate or parents by nature or adoption.

b. Rule XV, Section 1(c)(1) of the Amended Rules on Employees’ Compensation is in contravention of the equal protection clause

To insist that the ECC validly interpreted the Labor Code provision is an affront to the Constitutional guarantee of equal protection under the laws for the rule, as worded, prevents the parents of an illegitimate child from claiming benefits under Art. 167 (j) of the Labor Code, as amended by PD 626. To Our mind, such postulation cannot be countenanced.

As jurisprudence elucidates, equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. It requires public bodies and institutions to treat similarly situated individuals in a similar manner.18 In other words, the concept of equal justice under the law requires the state to govern impartially, and it may not drawdistinctions between

individuals solely on differences that are irrelevant to a legitimate governmental objective.19

The concept of equal protection, however, does not require the universal application of the laws to all persons or things without distinction. What it simply requires isequality among equals as determined according to a valid classification. Indeed, the equal protection clause permits classification. Such classification, however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane tothe purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class. "Superficial differences do not make for a valid classification."20

In the instant case, there is no compelling reasonable basis to discriminate against illegitimate parents. Simply put, the above-cited rule promulgated by the ECC that limits the claim of benefits to the legitimate parents miserably failed the test of reasonableness since the classification is not germane to the law being implemented. We see no pressing government concern or interest that requires protection so as to warrant balancing the rights of unmarried parents on one hand and the rationale behind the law on the other. On the contrary, the SSS can better fulfill its mandate, and the policy of PD 626 – that employees and their dependents may promptly secure adequate benefits in the event of work-connected disability or death - will be better served if Article 167 (j) of the Labor Code is not so narrowly interpreted.

There being no justification for limiting secondary parent beneficiaries to the legitimate ones, there can be no other course of action to take other than to strikedown as unconstitutional the phrase "illegitimate" as appearing in Rule XV, Section 1(c)(1) of the Amended Rules on Employees’ Compensation.

Petitioner qualifies as John’s dependent parent

In attempting to cure the glaring constitutional violation of the adverted rule, the ECC extended illegitimate parents an opportunity to file claims for and receive death benefitsby equating dependency and legitimacy to the exercise of parental authority. Thus, as insinuated by the ECC in its assailed Decision, had petitioner not given up John for adoption, she could have still claimed death benefits under the law.

To begin with, nowhere in the law nor in the rules does it say that "legitimate parents" pertain to those who exercise parental authority over the employee enrolled under the ECP. Itwas only in the assailed Decision

wherein such qualification was made. In addition, assuming arguendothat the ECC did not overstep its boundaries in limiting the adverted Labor Code provision to the deceased’s legitimate parents, and that the commission properly equated legitimacy to parental authority, petitioner can still qualify as John’s secondary beneficiary.

True, when Cornelio, in 1985, adoptedJohn, then about two (2) years old, petitioner’s parental authority over John was severed. However, lest it be overlooked, one key detail the ECC missed, aside from Cornelio’s death, was that when the adoptive parent died less than three (3) years after the adoption decree, John was still a minor, at about four (4) years of age.

John’s minority at the time of his adopter’s death is a significant factor in the case at bar. Under such circumstance, parental authority should be deemed to have reverted in favor of the biological parents. Otherwise, taking into account Our consistent ruling that adoption is a personal relationship and that there are no collateral relatives by virtue of adoption,21 who was then left to care for the minor adopted child if the adopter passed away?

To be sure, reversion of parental authority and legal custody in favor of the biological parents is not a novel concept. Section 20 of Republic Act No. 855222 (RA 8552), otherwise known as the Domestic Adoption Act, provides:

Section 20. Effects of Rescission.– If the petition [for rescission of adoption] is granted, the parental authority of the adoptee's biological parent(s), if known, or the legal custody of the Department shall be restored if the adoptee is still a minoror incapacitated. The reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished. (emphasis added)

The provision adverted to is applicable herein by analogy insofar as the restoration of custody is concerned.1âwphi1 The manner herein of terminating the adopter’s parental authority, unlike the grounds for rescission,23 justifies the retention of vested rights and obligations between the adopter and the adoptee, while the consequent restoration of parental authority in favor of the biological parents, simultaneously, ensures that the adoptee, who is still a minor, is not left to fend for himself at such a tender age.

To emphasize, We can only apply the rule by analogy, especially since RA 8552 was enacted after Cornelio’s death. Truth be told, there is a lacuna in the law as to which provision shall govern contingencies in all fours

with the factual milieu of the instant petition. Nevertheless, We are guided by the catena of cases and the state policies behind RA 855224 wherein the paramount consideration is the best interest of the child, which We invoke to justify this disposition. It is, after all, for the best interest of the child that someone will remain charged for his welfare and upbringing should his or her adopter fail or is rendered incapacitated to perform his duties as a parent at a time the adoptee isstill in his formative years, and, to Our mind, in the absence or, as in this case, death of the adopter, no one else could reasonably be expected to perform the role of a parent other than the adoptee’s biological one.

Moreover, this ruling finds support on the fact that even though parental authority is severed by virtue of adoption, the ties between the adoptee and the biological parents are not entirely eliminated. To demonstrate, the biological parents, insome instances, are able to inherit from the adopted, as can be gleaned from Art. 190 of the Family Code:

Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules:

(2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur withthe adopter, they shall divide the entire estate, one-half tobe inherited by the parents or ascendants and the other half, by the adopters;

(6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply.

Similarly, at the time of Cornelio Colcol’s death, which was prior to the effectivity of the Family Code, the governing provision is Art. 984 of the New Civil Code, which provides:

Art. 984. In case of the death of an adopted child, leaving no children or descendants, his parents and relatives by consanguinity and not by adoption, shall be his legal heirs.

From the foregoing, it is apparent that the biological parents retain their rights of succession tothe estate of their child who was the subject of adoption. While the benefits arising from the death of an SSS covered employee do not form part of the estateof the adopted child, the pertinent provision on legal or intestate succession at least reveals the policy on the rights of the biological parents and those by adoption vis-à-vis the right to receive benefits from the adopted. In the same way that certain rights still attach by virtue of the blood

relation, so too should certain obligations, which, We rule, include the exercise of parental authority, in the event of the untimely passing of their minor offspring’s adoptive parent. We cannot leave undetermined the fate of a minor child whose second chance ata better life under the care of the adoptive parents was snatched from him by death’s cruel grasp. Otherwise, the adopted child’s quality of life might have been better off not being adopted at all if he would only find himself orphaned in the end. Thus, We hold that Cornelio’s death at the time of John’sminority resulted in the restoration of petitioner’s parental authority over the adopted child.

On top of this restoration of parental authority, the fact of petitioner’s dependence on John can be established from the documentary evidence submitted to the ECC. As it appears in the records, petitioner, prior to John’s adoption, was a housekeeper. Her late husband died in 1984, leaving her to care for their seven (7) children. But since she was unable to "give a bright future to her growing children" as a housekeeper, she consented to Cornelio’s adoption of Johnand Elizabeth in 1985.

Following Cornelio’s death in 1987, so records reveal, both petitioner and John repeatedly reported "Brgy. Capurictan, Solsona, Ilocos Norte" as their residence. In fact, this veryaddress was used in John’s Death Certificate25 executed in Brazil, and in the Report of Personal Injury or Loss of Life accomplished by the master of the vessel boarded by John.26 Likewise, this is John’s known address as per the ECC’s assailed Decision.27 Similarly, this same address was used by petitioner in filing her claim before the SSS La Union branch and, thereafter, in her appeal with the ECC. Hence, it can be assumed that aside from having been restored parental authority over John, petitioner indeed actually execised the same, and that they lived together under one roof.

Moreover, John, in his SSS application,28 named petitioner as one of his beneficiaries for his benefits under RA 8282, otherwise known as the "Social Security Law." While RA 8282 does not cover compensation for work-related deaths or injury and expressly allows the designation of beneficiaries who are not related by blood to the member unlike in PD 626, John’s deliberate act of indicating petitioner as his beneficiary at least evinces that he, in a way, considered petitioner as his dependent. Consequently, the confluence of circumstances – from Cornelio’s death during John’s minority, the restoration ofpetitioner’s parental authority, the documents showing singularity of address, and John’s clear intention to designate petitioner as a beneficiary - effectively made petitioner,

to Our mind, entitled to death benefit claims as a secondary beneficiary under PD 626 as a dependent parent.

All told, the Decision of the ECC dated March 17, 2010 is bereft of legal basis. Cornelio’s adoption of John, without more, does not deprive petitioner of the right to receive the benefits stemming from John’s death as a dependent parent given Cornelio’s untimely demise during John’s minority. Since the parent by adoption already died, then the death benefits under the Employees' Compensation Program shall accrue solely to herein petitioner, John's sole remaining beneficiary.

WHEREFORE, the petition is hereby GRANTED. The March 17, 2010 Decision of the Employees' Compensation Commission, in ECC Case No. SL-18483-0218-10, is REVERSED and SET ASIDE. The ECC is hereby directed to release the benefits due to a secondary beneficiary of the deceased covered employee John Colcol to petitioner Bernardina P. Bartolome.

No costs.

SO ORDERED.