CONGRESSMAN FRANCISCO B. ANIAG, JR., PETITIONER, VS. COMMISSION ON ELECTIONS AND DEPARTMENT OF JUSTICE SPECIAL TASK FORCE, RESPONDENTS.

PETITIONER assails in this petition (for declaratory relief, certiorari
and prohibition) the following resolutions of the Commission on Elections: Resolution No. 2327 dated 26 December 1991
for being unconstitutional, and Resolution No. 92-0829 dated 6 April 1992 and
Resolution No. 92-0999 dated 23 April 1992, for want of legal and factual
bases.

The factual backdrop: In
preparation for the synchronized national and local elections scheduled on 11
May 1992, the Commission on Elections (COMELEC) issued on 11 December 1991
Resolution No. 2323 otherwise referred to as the “Gun Ban,” promulgating
rules and regulations on bearing, carrying and transporting of firearms or
other deadly weapons, on security personnel or bodyguards, on bearing arms by
members of security agencies or police organizations, and organization or
maintenance of reaction forces during the election period.^[1]
Subsequently, on 26 December 1991 COMELEC issued Resolution No. 2327 providing
for the summary disqualification of candidates engaged in gunrunning, using and
transporting of firearms, organizing special strike forces, and establishing
spot checkpoints.^[2]

On 10 January 1992, pursuant to the “Gun Ban,” Mr. Serapio P. Taccad,
Sergeant-at-Arms, House of Representatives, wrote petitioner who was then
Congressman of the 1st District of Bulacan requesting the return of the two (2)
firearms^[3]
issued to him by the House of Representatives. Upon being advised of the request on 13 January 1992 by his staff,
petitioner immediately instructed his driver, Ernesto Arellano, to pick up the
firearms from petitioner’s house at Valle Verde and return them to Congress.

Meanwhile, at about five o’clock in the afternoon of the same
day, the Philippine National Police (PNP) headed by Senior Superintendent
Danilo Cordero set up a checkpoint outside the Batasan Complex some twenty (20)
meters away from its entrance. About
thirty minutes later, the policemen manning
the outpost flagged down the car driven by Arellano as it approached the
checkpoint. They searched the car and
found the firearms neatly packed in their gun cases and placed in a bag in the
trunk of the car. Arellano was then
apprehended and detained. He explained
that he was ordered by petitioner to get the firearms from the house and return
them to Sergeant-at Arms Taccad of the House of Representatives.

Thereafter, the police referred Arellano’s case to the Office of
the City Prosecutor for inquest. The
referral did not include petitioner as among those charged with an election
offense. On 15 January 1992, the City
Prosecutor ordered the release of Arellano after finding the latter’s sworn
explanation meritorious.^[4]

On 28 January 1992, the City Prosecutor invited petitioner to
shed light on the circumstances mentioned in Arellano’s sworn explanation. Petitioner not only appeared at the
preliminary investigation to confirm Arellano’s statement but also wrote the
City Prosecutor urging him to exonerate Arellano. He explained that Arellano did not violate the firearms ban as he
in fact was complying with it when apprehended by returning the firearms to
Congress; and, that he was petitioner’s driver, not a security officer nor a
bodyguard.^[5]

On 6 March 1992, the Office of the City Prosecutor issued a
resolution which, among other matters, recommended that the case against
Arellano be dismissed and that the “unofficial” charge against
petitioner be also dismissed.^[6]

Nevertheless, on 6 April 1992, upon recommendation of its Law
Department, COMELEC issued Resolution No. 92-0829 directing the filing of
information against petitioner and Arellano for violation of Sec. 261, par.
(q), of B.P. Blg. 881 otherwise known as the Omnibus Election Code, in relation
to Sec. 32 of R.A. No. 7166;^[7] and
petitioner to show cause why he should not be disqualified from running for an
elective position, pursuant to COMELEC Resolution No. 2327, in relation to
Secs. 32, 33 and 35 of R.A. 7166, and Sec. 52, par. (c), of B.P. Blg. 881.^[8]

On 13 April 1992, petitioner moved for reconsideration and to
hold in abeyance the
administrative proceedings as well as the filing of the information in court.^[9]
On 23 April 1992, the COMELEC denied petitioner’s motion for reconsideration.^[10]
Hence, this recourse.

Petitioner questions the constitutionality of Resolution No.
2327. He argues that the rules and
regulations of an administrative body must respect the limits defined by law;
that the Omnibus Election Code provides for the disqualification of any
person/candidate from running for or holding a public office, i.e., any person
who has either been declared by competent authority as insane or incompetent or
has been sentenced by final judgment for subversion, insurrection, rebellion or
for any offense for which he has been sentenced to a penalty of more than
eighteen months or for a crime involving moral turpitude; that gunrunning,
using or transporting firearms or similar weapons and other acts mentioned in
the resolution are not within the letter or spirit of the provisions of the
Code; that the resolution did away with the requirement of final conviction
before the commission of certain offenses; that instead, it created a
presumption of guilt as a candidate may be disqualified from office in
situations (a) where the criminal charge is still pending, (b) where there is
no pending criminal case, and (c) where the accused has already been acquitted,
all contrary to the requisite quantum of proof for one to be disqualified from
running or holding public office under the Omnibus Election Code, i.e., proof
beyond reasonable doubt. As a result,
petitioner concludes, Resolution No. 2327 violates the fundamental law thus
rendering it fatally defective.

But, the issue on the disqualification of petitioner from running
in the 11 May 1992 synchronized elections was rendered moot when he lost his
bid for a seat in Congress in the elections that ensued. Consequently, it is now futile to discuss
the implications of the charge against him on his qualification to run for
public office.

However, there still remains an important question to be
resolved, i.e., whether he can be validly prosecuted for instructing his driver
to return to the Sergeant-at-Arms of the House of Representatives the two
firearms issued to him on the basis of the evidence gathered from the
warrantless search of his car.

Petitioner strongly protests against the manner by which the PNP
conducted the search. According to him,
without a warrant and without informing the driver of his fundamental rights
the policemen searched his car. The
firearms were not tucked in the waist nor within the immediate reach of
Arellano but were neatly packed in
their gun cases and wrapped in a bag kept in the trunk of the car. Thus, the search of his car that yielded the
evidence for the prosecution was clearly violative of Secs. 2 and 3, par. (2),
Art. III, of the Constitution.^[11]

Petitioner further maintains that he was neither impleaded as
party respondent in the preliminary investigation before the Office of the City
Prosecutor nor included in the charge sheet. Consequently, making him a respondent in the criminal information would
violate his constitutional right to due process.

Petitioner disputes the charge that he violated Sec. 33 of R.A.
7166, which prohibits any candidate for public office during the election
period from employing or availing himself or engaging the services of security
personnel or bodyguards since, admittedly, Arellano was not a security officer
or bodyguard but a civilian employee assigned to him as driver by the House of
Representatives. Specifically, petitioner
further argues, Arellano was instructed to return to Congress, as he did, the
firearms in compliance with the directive of its Sergeant-at-Arms pursuant to
the “Gun Ban,” thus, no law was in fact violated.^[12]

On 25 June 1992, we required COMELEC to file its own comment on
the petition^[13]
upon manifestation of the Solicitor General that it could not take the position
of COMELEC and prayed instead to be excused from filing the required comment.^[14]

COMELEC claims that petitioner is charged with violation of Sec.
261, par. (q), in relation to Sec. 263, of B.P. Blg. 881 which provides that
“the principals, accomplices and accessories, as defined in the Revised
Penal Code, shall be criminally liable for election offenses.” It points
out that it was upon petitioner’s instruction that Arellano brought the
firearms in question outside petitioner’s residence, submitting that his right
to be heard was not violated as he was invited by the City Prosecutor to
explain the circumstances regarding Arellano’s possession of the firearms. Petitioner also filed a sworn written
explanation about the incident. Finally, COMELEC claims that violation of the “Gun Ban” is mala prohibita, hence,
the intention of the offender is immaterial.^[15]

Be that as it may, we find no need to delve into the alleged
constitutional infirmity of Resolution No. 2327 since this petition may be
resolved without passing upon this particular issue.^[16]

As a rule, a valid search must be authorized by a search warrant
duly issued by an appropriate authority. However, this is not
absolute. Aside from a search incident
to a lawful arrest, a warrantless search had been upheld in cases of moving
vehicles and the seizure of evidence in plain view,^[17]
as well as the search conducted at police or
military checkpoints which we declared are not illegal per se, and stressed that the warrantless search is not violative of the Constitution for as long as
the vehicle is neither searched nor its occupants subjected to a body
search, and the inspection of the vehicle
is merely limited to a
visual search.^[18]

Petitioner contends that the guns were not tucked in Arellano’s
waist nor placed within his reach, and that they were neatly packed in gun
cases and placed inside a bag at the back of the car. Significantly, COMELEC did not rebut this claim. The records do not show that the manner by
which the package was bundled led the PNP to suspect that it contained
firearms. There was no mention either
of any report regarding any nervous, suspicious or unnatural reaction from
Arellano when the car was stopped and searched. Given these circumstances and relying on its visual observation,
the PNP could not thoroughly search the car lawfully as well as the package
without violating the constitutional injunction.

An extensive search without warrant could only be resorted to if
the officers conducting the search had reasonable or probable cause to believe before the search that either the motorist was a law offender or that
they would find the instrumentality or evidence pertaining to the commission of
a crime in the vehicle to be searched.^[19] The
existence of probable cause justifying the warrantless search is determined by
the facts of each case.^[20]
Thus, we upheld the validity of the warrantless search in situations where the
smell of marijuana emanated from a plastic bag owned by the accused, or where
the accused was acting suspiciously, and attempted to flee.^[21]

We also recognize the stop-and-search without warrant conducted
by police officers on the basis
of prior confidential information which were reasonably corroborated by other
attendant matters, e.g., where a confidential report that a sizeable volume of
marijuana would be transported along the route where the search was conducted
and appellants were caught in
flagrante delicto transporting
drugs at the time of their arrest;^[22]
where apart from the intelligence information, there were reports by an
undercover “deep penetration” agent that appellants were bringing
prohibited drugs into the country;^[23]
where the information that a Caucasian coming from Sagada bringing prohibited
drugs was strengthened by the conspicuous bulge in accused’s waistline and his
suspicious failure to produce his passport and other identification papers;^[24] where the physical appearance of the
accused fitted the description given in the confidential information about a
woman transporting marijuana;^[25]
where the accused carrying a bulging black leather bag were suspiciously quiet
and nervous when queried about its contents;^[26] or
where the identity of the drug courier was already established by police
authorities who received confidential information about the probable arrival of
accused on board one of the vessels arriving in Dumaguete City.^[27]

In the case at bench, we find that the checkpoint was set up
twenty (20) meters from the entrance to the Batasan Complex to enforce
Resolution No. 2327. There was no
evidence to show that the policemen were impelled to do so because of a
confidential report leading them to reasonably believe that certain motorists
matching the description furnished by their informant were engaged in
gunrunning, transporting firearms or in organizing special strike forces. Nor,
as adverted to earlier, was there any indication from the package or
behavior of Arellano that could have triggered the suspicion of the policemen. Absent such justifying circumstances
specifically pointing to the culpability of petitioner and Arellano, the search
could not be valid. The action then of
the policemen unreasonably intruded into petitioner’s privacy and the security
of his property, in violation of Sec. 2, Art. III, of the Constitution. Consequently, the firearms obtained in
violation of petitioner’s right against warrantless search cannot be admitted
for any purpose in any proceeding.

It may be argued that the seeming acquiescence of Arellano to the
search constitutes an implied waiver of petitioner’s right to question the
reasonableness of the search of the vehicle and the seizure of the firearms.

While Resolution No. 2327 authorized the setting up of
checkpoints, it however stressed that “guidelines shall be made to ensure
that no infringement of civil and political rights results from the
implementation of this authority,” and that “the places and manner of
setting up of checkpoints shall be determined in consultation with the
Committee on Firearms Ban and Security Personnel created under Sec. 5,
Resolution No. 2323.”^[28] The
facts show that PNP installed the checkpoint at about five o’clock in the
afternoon of 13 January 1992. The
search was made soon thereafter, or thirty minutes later. It was not shown that news of impending
checkpoints without necessarily giving their locations, and the reason for the
same have been announced in the media to forewarn the citizens. Nor did the informal checkpoint that
afternoon carry signs informing the public of the purpose of its
operation. As a result, motorists
passing that place did not have any inkling whatsoever about the reason behind
the instant exercise. With the
authorities in control to stop and search passing vehicles, the motorists did
not have any choice but to submit to the PNP’s scrutiny. Otherwise, any attempt to turnabout albeit
innocent would raise suspicion and provide probable cause for the police to
arrest the motorist and to conduct an extensive search of his vehicle.

In the case of petitioner, only his driver was at the car at that
time it was stopped for inspection. As
conceded by COMELEC, driver Arellano did not know the purpose of the
checkpoint. In the face of fourteen
(14) armed policemen conducting the operation,^[29]
driver Arellano being alone and a mere
employee of petitioner could not
have marshalled the strength and the courage to protest against the extensive
search conducted in the vehicle. In
such scenario, the “implied acquiescence,” if there was any, could
not be more than a mere passive conformity on Arellano’s part to the search,
and “consent” given under intimidating or coercive circumstances is
no consent within the purview of the constitutional guaranty.

Moreover, the manner by which COMELEC proceeded against
petitioner runs counter to the due process clause of the Constitution. The facts show that petitioner was not among
those charged by the PNP with violation of the Omnibus Election Code. Nor was he subjected by the City Prosecutor
to a preliminary investigation for such offense. The non-disclosure by the City Prosecutor to the petitioner that
he was a respondent in the preliminary investigation is violative of due
process which requires that the procedure established by law should be obeyed.^[30]

COMELEC argues that petitioner was given the chance to be heard
because he was invited to enlighten the City Prosecutor regarding the
circumstances leading to the arrest of his driver, and that petitioner in fact
submitted a sworn letter of explanation regarding the incident. This does not satisfy the requirement of due
process the essence of which is the reasonable opportunity to be heard and to
submit any evidence one may have in
support of his defense.^[31] Due process guarantees the observance of
both substantive and procedural rights, whatever the source of such rights, be
it the Constitution itself or only a statute or a rule of court.^[32] In Go v. Court of Appeals,^[33] we
held that –

While the right to preliminary investigation is statutory rather than
constitutional in its fundament, since it has in fact been established by
statute, it is a component part of due process in criminal justice. The right to have a preliminary
investigation conducted before being bound over to trial for a criminal offense
and hence formally at risk of incarceration or some other penalty is not a mere
formal or technical right; it is a substantive right x x x x [T]he right to an opportunity to
avoid a process painful to anyone save, perhaps, to hardened criminals is a valuable
right. To deny petitioner’s claim to a
preliminary investigation would be to deprive him of the full measure of his
right to due process.

Apparently, petitioner was merely invited during the preliminary
investigation of Arellano to corroborate the latter’s explanation. Petitioner then was made to believe that he
was not a party respondent in the case, so that his written explanation on the
incident was only intended to exculpate Arellano,
not petitioner himself. Hence, it
cannot be seriously contended that petitioner was fully given the
opportunity to meet the accusation against him as he was not apprised that he
was himself a respondent when he
appeared before the City Prosecutor.

Finally, it must be pointed out too that petitioner’s filing of a
motion for reconsideration with COMELEC cannot
be considered as a waiver of his claim to a separate preliminary investigation
for himself. The motion itself
expresses petitioner’s vigorous insistence on his right. Petitioner’s protestation started as soon as
he learned of his inclusion in the charge, and did not ease up even after COMELEC’s denial of his motion for
reconsideration. This is understandably
so since the prohibition against carrying firearms bears the penalty of
imprisonment of not less than one (1) year nor more than six (6) years without
probation and with disqualification from holding public office, and deprivation
of the right to suffrage. Against such
strong stance, petitioner clearly did not waive his right to a preliminary
investigation.

WHEREFORE, the instant petition is GRANTED. The warrantless search conducted by the Philippine National
Police on 13 January 1992 is declared illegal and the firearms seized during
the warrantless search cannot be used as evidence in any proceeding against
petitioner. Consequently, COMELEC Resolution No. 92-0829 dated 6
April 1992 being violative of the Constitution is SET ASIDE.

The temporary restraining order we issued on 5 May 1992 is made
permanent.

SO ORDERED.

Narvasa, C.J., Romero, Quiason, Puno, Kapunan, and Mendoza, JJ.,
concur.

Cruz, and Vitug, JJ., concurring opinion.

Regalado, and Davide Jr.
JJ., concurring and dissenting opinion.

Melo, J., join the concurring and dissenting opinion of J. Davide,
Jr.

Feliciano, Padilla, and
Bidin, JJ., on leave.

^[1]
Rollo, p. 56.

^[2]
Id., p. 35.

^[3]
One (1) 9 mm SN U164076 P-226 and one (1) Beretta 9 mm Para F-39721 SMG; Rollo,
p. 79.

^[4]
Rollo, pp. 74-75.

^[5]
Id., pp. 77-78.

^[6]
Id., pp. 91-94.

^[7]
Sec. 261. Prohibited Acts. – The
following shall be guilty of an election offense: x x x (q) Carrying firearms outside residence or place of
business. – Any person who, although possessing a permit to carry firearms,
carries any firearms outside his residence or place of business during the
election period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or
aircraft shall not be considered a residence or place of business or extension
hereof x x x x (B.P. Blg. 881).

Sec. 32. Who
May Bear Firearms. – During the election period, no person
shall bear, carry or transport firearms or other deadly weapons in public
places, including any building, street, park, private vehicle or public
conveyance, even if licensed to possess or carry the same, unless authorized in
writing by the Commission. The issuance
of firearm licenses shall be suspended during the election period x x x x (R.A.
No. 7166).

Sec. 33. Security Personnel and Bodyguards. – During
the election period, no candidate for public office, including incumbent public
officers seeking election to any public office, shall employ, avail himself of
or engage the services of security personnel or bodyguards, whether or not such
bodyguards are regular members or officers of the Philippine National Police,
the Armed Forces of the Philippines or other law enforcement agency of the
Government x x x x (ibid.).

Sec. 35. Rules and Regulations.
– The Commission shall issue rules and regulations to implement this
Act. Said rules shall be published in
at least two (2) national newspapers of general circulation (ibid.).

Sec. 52. Powers and functions of
the Commission on Elections. – In addition to the powers and
functions conferred upon it by the Constitution, the Commission shall have
exclusive charge of the enforcement and administration of all laws relative to
the conduct of elections for the purpose of ensuring free, orderly and honest
elections, and shall x x x x (c)
Promulgate rules and regulations implementing the provision of this Code or
other laws which the Commission is required to enforce and administer, and
require the payment of legal fees and collect the same in payment of any
business done in the Commission, at rates that it may provide and fix in its
rules and regulations x x x x (B.P. Blg. 881).

^[8]
Rollo, pp. 38-39.

^[9]
Id., p. 42.

^[10]
Id., p. 40.

^[11]
Art. 111, Sec. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge 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.

Sec. 3, par. (2). Any evidence
obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding.

^[12]
Id., pp. 18-30.

^[13]
Id., p. 110.

^[14]
Id., p. 128.

^[15]
Id., pp. 121-125.

^[16]
See Alger Electric, Inc. v. Court of Appeals, L-34298, 28
February 1985, 135 SCRA 37, 45; Arrastre Security Association-­TUPAS v. Ople,
L-45344, 20 February 1984, 127 SCRA 580, 595.

^[17]
People v. Bagista, G.R. No. 86218, 18 September 1992, 214 SCRA
63, 68-69.

^[18]
Valmonte v. de Villa, G.R. No. 83988, 24 May 1990, 185 SCRA 665, 669,
see also concurring opinion of Justice Gutierrez, Jr., pp. 672-673, and
dissenting opinions of Justice Cruz, pp. 173-174, and Justice Sarmiento, pp.
174-175.

^[19]
Id., p. 670; People v.
Bagista, supra.

^[20]
See Valmonte v. De Villa, G.R. No. 83988, 29 September 1989, 178 SCRA
211, 216.

^[21]
People v. Malmstedt, G.R. No. 91107, 19 June 1991, 198
SCRA 401, 408, citing People v. Claudio, G.R. No. 72564,
15 April 1988, 160 SCRA 646, People v. Tangliben, G.R. No. 63630,
6 April 1990, 184 SCRA 220, and Posadas v. Court of Appeals, G.R.
No. 83139, 2 August 1990, 188 SCRA 288, see also dissenting opinion of Justice
Cruz, pp. 410-412, and concurring and dissenting opinion of Justice Narvasa,
now Chief Justice, pp. 412-424.

^[22]
People v. Maspil, Jr., G.R. No. 85177, 20 August 1990, 188
SCRA 751.

^[23]
People v. Lo Ho Wing, G.R. No. 88017, 21 January 1991, 193
SCRA 122.

^[24]
People v. Malmstedt, ibid.

^[25]
People v. Bagista, supra, p. 10.

^[26]
People v. Exala, G.R. No. 76005, 23 April 1993, 221 SCRA 494, see
also dissenting opinion of Justice Cruz, pp. 502-503.

^[27]
People v. Saycon, G.R. No. 110995, 5 September 1994.

^[28]
Rollo, p. 36

^[29]
Rollo, p. 69.

^[30]
United States v. Ocampo, 18 Phil. 1, 41 (1910).

^[31]
See Mutuc v. Court of Appeals, No.
L-48108, 26 September 1990, 190 SCRA 43, 49.

^[32]
See Tupas v. Court of Appeals, G.R. No. 89571, 6 February 1991;
193 SCRA 597.

^[33]
G.R. No. 101837, 11 February 1992, 206
SCRA 138, 153, underscoring ours.

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