Romualdez v. Sandiganbayan : 152259 : July 29, 2004 : J. Tinga : En Banc : Separate Opinion
EN BANC
[G.R. NO. 152259. July 29, 2004]
ALFREDO T. ROMUALDEZ,Petitioner, v. The Honorable SANDIGANBAYAN (Fifth Division) and the PEOPLE of the PHILIPPINES, Respondents.
SEPARATE OPINION
TINGA, J.:
I concur in the result of the ponencia and the proposition that Section 5 of the Anti-Plunder Law is constitutional. The validity of the provision has been passed upon by the Court before in Estrada v. Sandiganbayan.1 I also agree with the ponencias reiteration of the ruling in Estrada that Section 5 is receptive to the basic principle in statutory construction that words should be construed in their ordinary and usual meaning.2 ςrνll
However, with all due respect, I raise serious objections to the ponenciasholding that the so-called void for vagueness doctrine has special application only to free speechcases,3 andthe undeclared proposition that penal
laws may not be stricken down on the ground of ambiguity.4 I am aware that the assertions rely upon the separate opinions of the herein ponente5 and Mr. Justice Vicente Mendoza6 inEstrada. I am also aware that the critical portion of Mr. Justice Mendozas separate opinion in Estrada was cited with approval by Mr. Justice Bellosillos ponencia therein.7
The incontrovertible reality though is that the majoritys pronouncement in Estradathat penal statutes cannot be challenged on vagueness grounds did not form part of the ratio decidendi. The ratio, in the words of Justice Bellosillo, was: as it is written, thePlunder Law contains ascertainable standards and well-defined parameters which would enable the accused to determine the nature of his violation,8 and thus the law does not suffer from unconstitutionality. The discussion on the vagueness aspect was not decisive of the main issue and, therefore, clearlyobiter dictum.I submit that it is erroneous to resolve the present petition on the basis of that dictumin Estrada.
As the obiter dictum inEstrada is needlessly made a ratio in the present case, the ponenciaherein has even unwittingly elevated to doctrinal level the proposition that the constitutionality of penal laws cannot be challenged on the ground of vagueness.I humbly submit that the stance is flawed and contrary to fundamental principles of due process.
The Bill of Rights occupies a position of primacy in the fundamental law.9 It is thus sacrosanct in this jurisdiction that no person shall be deprived of life, liberty or property without due process of law.10
A challenge to a penal statute premised on the argument that the law is vague is a proper invocation of the due process clause. A statute that lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application violatesthedue process clause,forfailureto
accord persons fair notice of the conduct to avoid.11 As held by the Court in People v. Dela Piedra:12
Due process requires that the terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. A criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, or is so indefinite that it encourages arbitrary and erratic arrests and convictions, is void for vagueness. The constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning.13
It should also be reckoned that the Bill of Rights likewise guarantees that no person shall be held to answer for a criminal offense without due process of law,14 and that the accused enjoys the right to be informed of the nature and cause of the accusation against him or her.15 The Bill of Rights ensures the fullest measure of protection to an accused. If a particular mode of constitutional challenge, such as one predicated on the void for vagueness doctrine, is available to an ordinary person deprived of property or means of expression, then more so should it be accessible to one who is in jeopardy of being deprived of liberty or of life.16
Vagueness and Overbreadth Are DistinctConcepts
A fundamental flaw, to my mind, in the analysis employed by the ponenciaand some of the separate opinions in Estrada is the notion that the vagueness and overbreadth doctrines are the same and should be accorded similar treatment. This is erroneous.
Mr. Justice Kapunan, in his dissenting opinion in Estrada, offers a correct distinction between vagueness and overbreadth:
A view has been proferred that vagueness and overbreadthdoctrines are not applicable to penal laws.These two concepts, while related, are distinct from each other. On one hand, the doctrine of overbreadth applies generally to statutes that infringe upon freedom of speech. On the other hand, the void-for-vagueness doctrine applies to criminal laws, not merely those that regulate speech or other fundamental constitutional right. (not merely those that regulate speech or other fundamental constitutional rights.) The fact that a particular criminal statute does not infringe upon free speech does not mean that a facial challenge to the statute on vagueness grounds cannot succeed.17
This view should be sustained, especially in light of the fact that the void for vagueness doctrine has long been sanctioned as a means to invalidate penal statutes.
Void For Vagueness Invalidation of Penal Statutes has Long-Standing Jurisprudential History
As early as 1926, the United States Supreme Court held in Connally v. General Construction Co., thus:18
That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well- recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
Thus in Connally, a statute prescribing penalties for violation of an eight-hour workday law was voided, presenting as it did, a double uncertainty, fatal to its validity as a criminal statute.19
In Lanzetta v. State of New Jersey,20 a challenge was posed to a statute defining a gangster and prescribing appropriate penalties, for being void for vagueness. The U.S. Supreme Court ruled that the definition of a gang under the statute was vague, and the statute void for vagueness. It was of no moment that the information against the accused described the offense with particularity.
If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it. (United States v. Reese, 92 U.S. 214, 221; Czarra v. Board of Medical Supervisors, 25 App.D.C. 443, 453.) It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. (See Stromberg v. .California, 283 U.S. 359, 368, 51 S.Ct. 532, 535, 73 A.L. R. 1484; Lovell v. .Griffin, 303 U.S. 444, 58 S.Ct. 666.) No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.21 (Emphasis supplied)ςrαlαωlιbrαrÿ
InBouie v. City of Columbia,22 civil rights protesters were charged with violating a criminal trespass statuteproscribing entry upon the lands of another after notice prohibiting such entry. A state court construed the statute as applicable to the act of remaining on the premises of another after receiving notice to leave. The U.S. Supreme Court reversed, applying again the void for vagueness doctrine. Said Court admitted that typical applications of the principle, the uncertainty as to the statute's prohibition resulted from vague or overbroad language in the statute itself.23 Yet the Court noted that [t]here can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language.24 Accordingly, the Court overturned the convictions, holding that "the crime for which [they] were convicted was not enumerated in the statute at the time of their conduct, thus denying the accused due process of law.25
In Papachristou v. City of Jacksonville,26 a statute penalizing vagrancy was voided by the U.S. Supreme Court, again for being vague:
This ordinance is void for vagueness, both in the sense that it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," (United States v. Harriss, 347 U.S. 612, 617 ), and because it encourages arbitrary and erratic arrests and convictions (Thornhill v. Alabama, 310 U.S. 88 ; Herndon v. Lowry, 301 U.S. 242 ) . 27
Kolender v. Lawson28 involves another affirmation of the well-established doctrine. There, the US Supreme Court invalidated a loitering statute requiring a loiterer to produce credible and reliable identification when requested by a peace officer. It elucidated:
Although the doctrine focuses on both actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine-the requirement that a legislature establish minimal guidelines to govern law enforcements. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep [that] allows policemen, prosecutors and juries to pursue their personal predilections.29
In the fairly recent case of City of Chicago v. Morales,30 the U.S. Supreme Court affirmed a lower court ruling invalidating as void for vagueness an ordinance prohibiting criminal street gang members from loitering in public places, as well as the conviction based on the invalidated ordinance. The US Court again asserted:
For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that "simply regulates business behavior and contains a scienter requirement." (SeeHoffman Estatesv.Flipside, Hoffman Estates, Inc.,455 U. S. 489, 499 (1982)) . It is a criminal law that contains no mens rearequirement (seeColauttiv. Franklin, 439 U. S. 379, 395 (1979)), and infringes on constitutionally protected rights (seeid., at 391). When vagueness permeates the text of such a law, it is subject to facial attack. 22
Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. (SeeKolenderv. Lawson,461 U. S., at 357). 31
Given the wealth of jurisprudence invalidating penal statutes for suffering from vagueness, it is mystifying why the notion that the doctrine applies only to free-speech cases has gained a foothold in this Court. It might be argued that the above-cited cases are foreign jurisprudence, inapplicable to this jurisdiction. Yet it is submitted that the rule is applicable here, not because of its repeated affirmation by American courts, but because such rule is lucidly consistent with our own fundamental notions of due process, as enunciated in our own Constitution.
What then is the standard of due process which must exist both as a procedural and as substantive requisite to free the challenged ordinance, or any government action for that matter, from the imputation of legal infirmity; sufficient to spell its doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reasons and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly has it been identified as freedom from arbitrariness. It is the embodiment of the sporting idea of fair play. It exacts fealty "to those strivings for justice" and judges the act of officialdom of whatever branch" in the light of reason drawn from considerations of fairness that reflect [democratic] traditions of legal and political thought." It is not a narrow or "technical conception with fixed content unrelated to time, place and circumstances," decisions based on such a clause requiring a "close and perceptive inquiry into fundamental principles of our society."32
The dissent of Justice White, joined by Justice Rehnquist, in Kolender v. Lawson finds some kinship with Mr. Justice Mendozas views in Estrada, insofar as they point out a distinction between the vagueness doctrine, as applied to criminal statutes, on one hand, and as applied to US First Amendment cases, on the other.
The usual rule is that the alleged vagueness of a criminal statute must be judged in light of the conduct that is charged to be violative of the statute.If the actor is given sufficient notice that his conduct is within the proscription of the statute, his conviction is not vulnerable on vagueness grounds, even if as applied to other conduct, the law would be unconstitutionally vague. None of our cases suggests that one who has received fair warning of the criminality of his own conduct from the statute in question is nonetheless entitled to attack it because the language would not give similar fair warning;with respect to other conduct which might be within its broad and literal ambit. One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.The correlative rule is that a criminal statute is not unconstitutionally vague on its face unless it is impermissiblyvague in all of its applications.
These general rules are equally applicable to cases where First Amendment or other fundamental interests are involved. The Court has held that in such circumstances more precision in drafting may be required because of the vagueness doctrine in the case of regulation of expression, a greater degree of specificity is demanded than in other contexts.But the difference in such cases relates to how strict a test of vagueness shall be applied in judging a particular criminal statute.It does not permit the challenger of the statute to confuse vagueness and overbreadth by attacking the enactment as being vague as applied to conduct other than his own.Of course, if his own actions are themselves protected by the First Amendment or other constitutional provision, or if the statute does not fairly warn that it is proscribed, he may not be convicted. But it would be unavailing for him to claim that although he knew his own conduct was unprotected and was plainly enough forbidden by the statute, others may be in doubt as to whether their acts are banned by the law.33 (Emphasis supplied)ςrαlαωlιbrαrÿ
Still, the quoted dissenting opinion concedes the applicability of the void for vagueness rule in striking infirm criminal statutes. It just enunciates a greater demand for specificity in statutes which may infringe on free speech protections.
Moreover, Mr. Justice Mendoza likewise invoked American jurisprudence in support of his view that the overbreadth and vagueness doctrines apply only to free speech cases.34 He cites, among others, U.S. v. Salerno35
andBroadrick v. Oklahoma.36 InSalerno, the US Supreme Court notes that the overbreadth doctrine was inapplicable outside the context of the First Amendment.37 Notably though, the US Court did not make the same assertion as to the vagueness doctrine. Had it done so inSalerno, it would have been incongruent with its previous rulings, as well as with its subsequent ones.
Broadrick v. Oklahoma did not pertain to a challenge to a penal statute, but rather an Oklahoma law restricting the political activities of that states classified civil servants.38 Again, Broadrick may advert to a correct interpretation of the overbreadth doctrine. However, in the face of numerous jurisprudence affirming the vagueness challenge of American penal laws neither Broadrick nor Salernocan be utilized to assert a converse rule.
Mr. Justice Mendozas opinion also cites from the American constitutional law textbook of Sullivan and Gunther, to assert that vagueness challenges in the First Amendment context, like overbreadth challenges, typically produce facial invalidation, while statutes found vague asamatterofdue processtypicallyare invalidatedonlyas
applied to a particular defendant.39 This may be a correct restatement of the American rule. Yet, it does not necessarily mean that penal laws are not susceptible to a void for vagueness challenge. In fact, in the same page cited in Mr. Justice Mendozas opinion, Sullivan and Gunther cite cases wherein American penal laws were stricken down for being vague, such as Connally v. General Construction Co., Kolender v. Lawson, and Papachristou v. Jacksonville.40
The same citation likewise refers to the odd situation wherein unlike in First Amendment cases, due process invalidations for vagueness apply only to a particular defendant. Sullivan and Gunther posit that the broader protection afforded in First Amendment cases follow from a special concern about the chilling effect of vague statutes on protected speech.41 However, the ponencialatches onto this distinction in order to foist the bugaboo of mass acquittal of criminals due to the facial invalidation of criminal statutes.42 Moreover, the ponencia asserts that such invalidation would constitute a departure from the usual requirement of actual case and controversy and permit decisions to be made in a sterile abstract context having no factual concreteness.43
Such concerns are overwrought. In this jurisdiction, judicial review over the constitutionality of statutes, penal or otherwise, avails only upon the concurrence of (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) a plea that the function be exercised at the earliest opportunity; and (4) a necessity that the constitutional question be passed upon in order to decide the case.44 Challenges to the validity of laws are not lightly undertaken, and the non-existence of any of the four conditions precedent bar a successful challenge. Surely, not just anybody picked off the street prepossesses the requisite standing, nor could just any case present itself as the proper vehicle for a constitutional attack.
These conditions precedent successfully weigh the concerns of the State, fearful of instabilities brought by frequent invalidations of the laws it passes, and with the basic component of justice that a person to whom a wrong is done by the State can seek vindication from the courts. Our basic jurisprudential barrier has shielded this Court for generations from exercising unwarranted and unmitigated judicial review. There is no need to further raise the bar for review, especially on such flimsy foundations, lest we insulate ourselves from the pleas of the truly prejudiced, truly injured, truly violated.
At the same time, the ponenciaraises the concern that the invalidation of a void law will unnecessarily benefit those without actual cases or controversies. It must be remembered though that the Court will notunhesitatingly strike down a statute if a narrower alternative affording the same correct relief is available. Within the confines of this discretion, all the tools of searching inquiry are at the Courts disposal to carve as narrow a rule as necessary.
Still and all, if there is no alternative but to strike down a void law, there should be no hesitation on the part of this Court in ruling it so, no matter the effective scope and reach of the decision. The State has no business promulgating void laws, which stick out like a cancer infecting our constitutional order. When faced with the proper opportunity, it is the Courts duty to excise the tumor no matter how painful.Unfortunately, the solution advocated by the ponencia barring penal statutes from void for vagueness assaults hides the patient from the doctor.
People v. Dela Piedra, earlier cited,45 did not invalidate the statute questioned therein on the void for vagueness ground. Yet it affirms that the void for vagueness challengetoapenallaw maybe sustained if the statute
contravenes due process. The circumstance, as the ponencia herein points out, that no penal law has been declared unconstitutional on the ground of ambiguity, does not mean that no penal law can ever be invalidated on that ground.
As long as the due process clause remains immanent in our Constitution, its long reach should be applied to deter and punish unwarranted deprivations of life, liberty or property.Violations of due process are myriad, ranging as they do from the simple to the complicated, from the isolated to the intermittent, from the abashed to the brazen.No advance statement can outrightly cast an act as beyond the ambit of the due process clause, especially when applied to the lot of an accused, for such is simply presumptuous and anathema to the spirit of fair play.
I may disagree with the eventual conclusions of Justices Kapunan, Ynares-Santiago and Sandoval-Gutierrez in the Estrada case that Section 5 of the Anti-Plunder Law is void for vagueness.Yet, I submit that their inquiry as to whether the said criminal statute was void for being vague is a juristic exercise worth pursuing. If the ponenciaaffirms the earlier erroneous pronouncement as asserted in the main by Mr. Justice Mendoza in Estrada, then I expressthe samefeararticulated byMr.JusticeKapunan inhis
dissent, that such stance is tantamount to saying that no criminal law can be challenged however repugnant it is to the constitutional right to due process.46
DANTE
O. TINGA
Associate
Justice
Endnotes:
1 Estrada v. Sandiganbayan, 421 Phil. 290 (2001). The author of this Separate Opinion was not yet a member of the Court when the Estrada case was decided.
2 Page 19,ponencia. See also Estrada v. Sandiganbayan, id. at 348.
3 Page 12,ponencia.
4 Page 13, ponencia.
5 Estrada v. Sandiganbayan, supra note 1 at 451-482.
6 Id. at 421-450
7 Id. at 353-356.
8 Id. at 343.The main opinion in Estradacontinued: As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its validity will be sustained.It must sufficiently guide the judge in its application; the counsel, in defending the one charged with its violation; and more importantly, the accused, in identifying therealm of the proscribed conduct.Indeed, it can be understood with little difficulty that what the assailed statute punishes is the act of a public officerin amassing or accumulating ill-gotten wealth of at least
P50,000,000.00 through a series of combination of act enumerated in Sec. 1, par. (d), of the Plunder Law.Id. at 344.9 People v. Tudtud, G.R. No. 144037, 26 September 2003.
10 Section 1, Article III, Constitution.
11 People v. Nazario, G.R. No. L-44143, 31 August 1988, 165 SCRA 186, 195; citing L. Tribe, American Constitutional Law 718 (1978). Seealso Connally v. General Construction Co., 269 U.S. 385, 391. Such statute also violates the Constitution for leaving law enforcers unbridled discretion in carrying out its provisions and becoming an arbitrary flexing of the government muscle. People v. Nazario, ibid.
12 G.R. No. 121777, 24 January 2001, 350 SCRA 163.
13 Id. at 175-176.
14 Section 14(1), Article III, Constitution.See also Pagasian v. Azura, G.R. No. RTJ-89, 17 April 1990, 184 SCRA 291, 393; People v. Kidagan, G.R. NOS. G.R.88753-54, 20August 1990, 188 SCRA 763, 768.
15 Section 14(2), Article III, Constitution.See e.g., People v. Pailano, G.R. No. 43602, 31 January1989, 169 SCRA 649, 653-654; People v. Barte, G.R. No. 103211, 28 February 1994, 230 SCRA 401, 411.
16 While admittedly, penal statutes are worded in reasonably general terms to accomplish the legislatures objective of protecting the public from socially harmful conduct, this should not prevent a vagueness challenge in cases where a penal statute is so indeterminate as to cause the average person to guess at its meaning and application. For if a statute infringing upon freedom of speech may be challenged for being vague because such right is considered as fundamental, with more reason should a vagueness challenged with respect to a penal statute be allowed since the latter involve deprivation of liberty, and even of lifewhich, inarguably, are rights as important as, if not more than, free speech. J. Kapunan, dissenting, Estrada v. Sandiganbayan, supra note 1, at 383.
17 Estrada v. Sandiganbayan, supra note 1, J. Kapunan, dissenting, at 382-384.
18 269U.S. 385, 393 (1926).
19 Ibid.
20 306U.S. 451 (1939).
21 Id. at 453.
22 378U.S. 347 (1964).
23 Id. at 351.
24 Id.at352.
25 Id.at363.
26 405U.S. 156 (1972).
27 Id. at 162.
28 461U.S. 352 (1983).
29 Id.at358.
30 Case No. 97-1121, 10 June 1999.
31 Case No. 97-1121, 10 June 1999.
32 Ermita-Malate Hotel and Motel Operators Association v. City Mayor, 127 Phil. 306, 318-319 (1967).
33 Kolender v. Lawson, J. White, dissenting, 461U.S. 352, 369-370 (1983).
34 Estrada v. Sandiganbayan,supra note 1, J. Mendoza, concurring,at 430-431.
35 481U.S. 739 (1987).
36 413U.S. 601 (1973).
37 U.S. v. Salerno, 481 U.S. 739, 745.
38 413U.S. 601 (1973).
39 Estrada v. Sandiganbayan, supra note 1, J. Mendoza, concurring, at 431-432.
40 K. Sullivan and G. Gunther. Constitutional Law1299 (14th ed., 2001)
41 Ibid.
42 Ponencia, p. 14.
43 Ibid.
44 Dumlao v. COMELEC, G.R. No. L-52245, 22 January 1980, 95 SCRA 392, 400.
45 Supranote 11.
46 Estrada v. Sandiganbayan, supra note 1, J. Kapunan, dissenting, at 483.
