TORMENTA DE IDEAS

Facts: On 7 December 1982, Judge Ernani Cruz-Paño, Executive Judge of the then CFI Rizal [Quezon City],

issued 2 search warrants where the premises at 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the “Metropolitan Mail” and “We Forum” newspapers, respectively, were searched, and office and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books and other written literature alleged to be in the possession and control of Jose Burgos, Jr. publisher-editor of the “We Forum” newspaper, were seized.

A petition for certiorari, prohibition and mandamus with preliminary mandatory and prohibitory injunction was filed after 6 months following the raid to question the validity of said search warrants, and to enjoin the Judge Advocate General of the AFP, the city fiscal of Quezon City, et.al. from using the articles seized as evidence in Criminal Case Q-022782 of the RTC Quezon City (People v. Burgos). The prayer of preliminary prohibitory injunction was rendered moot and academic when, on 7 July 1983, the Solicitor General manifested that said articles would not be used until final resolution of the legality of the seizure of said articles.

The Supreme Court declared the search warrants 20-82(a,b) issued on 7 December 1982 null and void, and granted the writ of mandatory injunction for the return of the seized articles, such articles seized ordered released to the petitioners; without costs.

1. Urgency of constitutional issue raised overrides procedural flaw; Failure to file motion to quash

Petitioners, before impugning the validity of the warrants before the Court, should have filed a motion to quash said warrants in the court that issued them. But this procedural flaw notwithstanding, the Court take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised, not to mention the public interest generated by the search of the “We Forum” offices, which was televised and widely publicized in all metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. In Vda. de Ordoveza v. Raymundo, it was said that “it is always in the power of the court [Supreme Court] to suspend its rules or to except a particular case from its operation, whenever the purposes of justice require it . . .”

2. Laches defined

Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned or declined to assert it.

3. Extrajudicial effort negates presumption of abandonment of right to the possession of property

Extrajudicial efforts exerted by petitioners negate the presumption that they had abandoned their right to the possession of the seized property, thereby refuting the charge of laches against them. Although the reason given by petitioners may not be flattering to the judicial system, The Court finds no ground to punish or chastise them for an error in judgment in pursuing other remedies, relying on the so-called executive benevolence or largesse (e.g. Letter of presidential friend Fiscal Flaminiano to Col. Balbino Diego, Chief Intelligence and Legal Officer of the PSG).

4. Documents marked as evidence in criminal case do not affect issue on the validity of the warrants

The documents seized lawfully belong to Jose Burgos, Jr. and he can do whatever he pleases with them, within legal bounds; such as marking them as evidence in the criminal case. The fact that he has used them as evidence does not and cannot in any way affect the validity or invalidity of the search warrants assailed in the petition.

5. Examination conducted

Petitioners’ objection that there is an alleged failure to conduct an examination under oath or affirmation of the applicant and his witnesses, as mandated by the Constitution as well as Sec. 4, Rule 126 of the Rules of Court, may properly be considered moot and academic, as petitioners themselves conceded during the hearing on 9 August 1983, that an examination had indeed been conducted by the judge of Col. Abadilla and his witnesses.

6. Defect on the address where items are to be seized is typographical error

Search Warrants No. 20-82[a] and No. 20-82[b] were used to search two distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution of Search Warrant No. 20-82[b] at the latter address on the ground that the two search warrants pinpointed only one place where petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued because the purpose and intent were to search two distinct premises. It would be quite absurd and illogical for respondent judge to have issued two warrants intended for one and the same place.

7. Determination whether warrant describes premises to be search with sufficient particularity

In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, the executing officer’s prior knowledge as to the place intended in the warrant is relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who issued the warrant intended the building described in the affidavit. And it has also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the warrant as to the place to be searched.

8. Property seized need not be owned by person against whom the warrant is directed

Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a search warrant, such as [a] Property subject of the offense; [b] Property stolen or embezzled and other proceeds or fruits of the offense; and [c] Property used or intended to be used as the means of committing an offense. The rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. Ownership is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized was alleged to have in relation to the articles and property seized under the warrants.

9. Machineries remain to be movable property; owner should place the machinery to be immovable

Under Article 415[5] of the Civil Code of the Philippines, “machinery, receptables, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land and which tend directly to meet the needs of the said industry or works” are considered immovable property. In Davao Sawmill Co. v. Castillo, it was said that machinery which is movable by nature becomes immobilized when placed by the owner of the tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of the owner. In the present case, petitioners do not claim to be the owners of the land and/or building on which the machineries were placed. The machineries, while in fact bolted to the ground, remain movable property susceptible to seizure under a search warrant.

10. Article IV, Section 3 of the 1973 Constitution; Finding of probable cause required to issue warrant

Section 3 provides that no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination

under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. In the present case, a statement in the effect that the petitioner “is in possession or has in his control printing equipment and other paraphernalia, news publications and other documents which were used and are all continuously being used as a means of committing the offense of subversion punishable under PD 885, as amended” is a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant.

11. Probable cause for search defined; Application to searches against newspaper publisher/editor

Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. When the search warrant applied for is directed against a newspaper publisher or editor in connection with the publication of subversive materials, the application and/or its supporting affidavits must contain a specification, stating with particularity the alleged subversive material he has published or is intending to publish. Mere generalization will not suffice.

12. Constitution requires personal knowledge of complainant / witnesses to justify issuance of warrant

In mandating that “no warrant shall issue except upon probable cause to be determined by the judge, after examination under oath or affirmation of the complainant and the witnesses he may produce”; the Constitution requires no less than personal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified. In Alvarez v. CFI, it was ruled that “the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause.”

13. General warrants invalid

In Standford v. State of Texas, the search warrant which authorized the search for ‘books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Parties of Texas, and the operations of the Communist Party in Texas,” was declared void by the U.S. Supreme Court for being too general. It is that it is not the policy of the government to suppress any newspaper or publication that speaks with “the voice of non-conformity” but poses no clear and imminent danger to state security.

14. Closure of publications in the nature of censorship abhorrent to the freedom of the press

As a consequence of the search and seizure, these premises of the Metropolitan Mail and We Forum were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, and constitutes a virtual denial of petitioners’ freedom to express themselves in print. Thus state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry.

15. Machines not sequestered under PD 885; Lack of IRR, contrary claim by Marcos and Romulo

Sequestration under Section 8 of PD 885, as amended, which authorizes “the sequestration of the property of any person, natural or artificial, engaged in subversive activities against the government and its duly constituted authorities in accordance with implementing rules and regulations as may be issued by the Secretary of National Defense” could not validly be effected in view of the absence of any implementing rules and regulations promulgated by the Minister of National Defense. Further, no less than President Marcos himself denied the request of the military authorities to sequester the property seized as reported in the 10 December 1982 issue of the Daily Express. This was confirmed by Foreign Minister Carlos P. Romulo on 10 February 1982, reiterating Marcos’ claims, in his letter to US Congressman Tony P. Hall.

[19]

Municipality of Cavite v. Rojas [G.R. No. 9069. March 31, 1915.]

En Banc, Torres (J): 3 concur, 1concur in result

Facts: The Municipality (constituted through Act 82), and as the successor to the rights said entity had under

the late Spanish government, and by virtue of Act 1039, had exclusive right, control and administration over the streets, lanes, plazas, and public places of the municipality of Cavite. Rojas, et.al., by virtue of a lease secured from the Municipality (Resolution 10, dated 3 July 1907), occupied a parcel of land 93 sq. m. in area that forms part of the public plaza known under the name of Soledad, belonging to the municipality of Cavite. Rojas constructed thereon a house, paying the Municipality a rental of P5.58 a quarter in advance for occupation thereof (schedule fixed in Ordinance 43, s. 1903), with the condition that Rojas are obligated to vacate the leased land within 60 days subsequent to the Municipality’s demand to that effect. Rojas has been required by the municipality to vacate and deliver possession of the said land, wherein the 60days within which it was ought to vacated elapsed without Rojas doing so. Thus, by an instrument dated 5 December 1911, afterwards amended on 14 March 1912, the provincial fiscal of Cavite, representing the municipality, filed a complaint in the CFI Cavite against Rojas alleging that the lease secured from the municipality of Cavite is ultra vires and therefore ipso facto null and void and of no force or effect, for the said land is an integral portion of a public plaza of public domain, and thus prayed that judgment be rendered declaring that possession of the said land lies with the Municipality and ordering Rojas to vacate the land and deliver possession thereof to the Municipality. After hearing and on 27 March 1913, the court rendered the judgment dismissing the complaint with cost against the Municipality. The counsel for the municipality excepted and in writing asked for a reopening of the case and the holding of a new trial. This motion was denied, with exception on the part of the Municipality, and the corresponding bill of exceptions was filed, approved and forwarded to the clerk of the Supreme Court.

The Supreme Court reversed the judgment appealed from and declared the land occupied public, as it formed part of the public plaza called Soledad, and the lease of said parcel of land as null and void. The Court ordered Rojas to vacate it and release the land within 30 days, leaving it and as it was before her occupation. There is no ground for the indemnity sought in the nature of damages, but the municipality must in its turn restore to Rojas the rentals collected; without special finding as to the costs.

1. Plaza Soledad; Municipality or objectors not entitled for inscription of land for public use and reserved for the common benefit

By section 3 of the said Act No. 1039, passed January 12, 1904, the Philippine Commission granted to the municipality of Cavite all the land included in the tract called Plaza Soledad. In the case of Nicolas vs. Jose (6 Phil 589), wherein the municipality of Cavite, represented by its president Catalino Nicolas, sought inscription in its name of the land comprised in the said Plaza Soledad, with objection on the part of Maria Jose et al., who occupied some parts thereof with their houses and who also sought that inscription be decreed in their name of the parcels of land in this plaza occupied by them, this court decided that neither the municipality nor the objectors were entitled to inscription, for with respect to the objectors said plaza belonged to the municipality of Cavite and with respect to the latter the said Plaza Soledad was not transferable property of that municipality to be inscribed in its name, because the intention of Act No. 1039 was that the said plaza and other places therein enumerated should be kept open for public transit; wherefore there can be no doubt that the defendant has no right to continue to occupy the land of the municipality leased by her, for it is an integral portion of Plaza Soledad, which is for public use and is reserved for the common benefit.

2. Property for public use in provinces and in towns

provincial and town roads, the squares, streets, fountains, and public waters, the promenades, and public works of general service supported by said towns or provinces.” Plaza Soledad being a promenade for public use, the municipal council of Cavite could not in 1907 withdraw or exclude from public use a portion thereof in order to lease it for the sole benefit of Rojas. In leasing a portion of said plaza or public place for private use, municipality exceeded its authority in the exercise of its powers by executing a contract over a thing of which it could not dispose, nor is it empowered so to do.

3. Communal things cannot be sold as they are outside the commerce of man

Article 1271 of the Civil Code prescribes that everything which is not outside the commerce of man may be the object of a contract. As plazas and streets are outside of this commerce, the 12 February 1895 decision of the Spanish Supreme Court stated that “communal things that cannot be sold because they are by their very nature outside of commerce are those for public use, such as the plazas, streets, common lands, rivers, fountains, etc.” The lease contract, whereby the municipality of Cavite leased to Rojas a portion of the Plaza Soledad, is null and void and of no force or effect, in accordance with the provision of Article 1303 of the Civil Code, because it is contrary to the law and the thing leased cannot be the object of a contract. Thus, Rojas must restore and deliver possession of the land described in the complaint to the municipality of Cavite, which in its turn must restore to Rojas all the sums it may have received from her in the nature of rentals just as soon as she restores the land improperly leased. For the same reasons as have been set forth, consequently Rojas is not entitled to claim that the municipality indemnify her for the damages she may suffer by the removal of her house from the said land.

[20]

Cebu Oxygen & Acetylene v. Bercilles [G.R. No. L-40474. August 29, 1975.]