LEO PITA, DOING BUSINESS UNDER THE NAME AND STYLE OF PINOY PLAYBOY, PETITIONER, VS. THE COURT OF APPEALS, RAMON BAGATSING, AND NARCISO CABRERA, RESPONDENTS.

The petitioner, publisher of Pinoy Playboy, a “men’s magazine”, seeks the review of
the decision of the Court of Appeals,^[1]
rejecting his appeal from the decision of the Regional Trial Court, dismissing
his complaint for injunctive relief. He
invokes, in particular, the guaranty against unreasonable searches and seizures
of the Constitution, as well as its prohibition against deprivation of property
without due process of law.

There is no controversy as to the facts. We quote:

On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated
by the Mayor of the City of Manila,
Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary
Services Bureau, Western Police District, INP of the Metropolitan Police Force
of Manila, seized and confiscated
from dealers, distributors, newsstand owners and peddlers along Manila
sidewalks, maga­zines, publications and other reading materials believed to be
obscene, pornographic and indecent and later burned the seized materials in
public at the University belt along C.M. Recto Avenue, Manila, in the presence
of Mayor Bagatsing and several officers and mem­bers of various student
organizations.

Among the publications seized, and later burned, was “Pinoy
Playboy” magazines published and co-edited by plaintiff Leo Pita.

On December 7, 1983,
plaintiff filed a case for injunction with prayer for issuance of the writ of
preliminary injunction against Mayor Bagatsing and Narciso Cabrera, as
superintendent of Western Police District of the City of Manila, seeking to
enjoin and/or restrain said defendants and their agents from confiscating
plaintiff’s magazines or from otherwise preventing the sale or circulation
thereof claiming that the magazine is a decent, artistic and educational
magazine which is not per se obscene,
and that the publication is protected by the Constitutional guarantees of
freedom of speech and of the press.

By order dated December 8, 1983 the Court set the hearing on the
petition for preliminary injunction on December 14, 1983 and ordered the
defendants to show cause not later than December 13, 1983 why the writ prayed
for should not be granted.

On December 12, 1983, plaintiff filed an Urgent Motion for issuance
of a temporary restraining order against indiscriminate seizure, confiscation
and burning of plaintiff’s “Pinoy Playboy” Magazines, pending hearing on
the petition for preliminary injunction in view of Mayor Bagatsing’s
pronouncement to continue the Anti-Smut Campaign. The Court granted the temporary restraining order on December 14,
1983.

In his Answer and Opposition filed on December 27, 1983 defendant
Mayor Bagatsing admitted the confiscation and burning of obscene reading
materials on December 1 and 3, 1983, but claimed that the said materials were
voluntarily surrendered by the vendors to the police authorities, and that the
said confiscation and seizure was (sic) undertaken pursuant to P.D. No. 960, as
amended by P.D. No. 969, which amended Article 201 of the Revised Penal
Code. In opposing the plaintiff’s
application for a writ of preliminary injunction, defendant pointed out that in
that anti-smut campaign conducted on December 1 and 3, 1983, the materials
confiscated belonged to the magazine stand owners and peddlers who voluntarily
surrendered their reading materials, and that the plaintiff’s establishment was
not raided.

The other defendant, WPD Superin­tendent, Narcisco Cabrera, filed
no answer.

On January 5, 1984, plaintiff filed his Memorandum in support of
the issuance of the writ of preliminary injunction, raising the issue as to
“whether or not the defendants and/or their agents can without a court order
confiscate or seize plaintiff’s magazine before any judicial finding is made on
whether said magazine is obscene or not”.

The restraining order issued on December 14, 1983 having lapsed on
January 3, 1984, the plaintiff filed an urgent motion for issuance of another
restraining order, which was opposed by defendant on the ground that issuance
of a second restraining order
would violate the Resolution of the Supreme Court dated January 11, 1983,
providing for the Interim Rules Relative to the Implementation of Batas
Pambansa Blg. 129, which provides that a temporary restraining
order shall be effective only for twenty days from date of its issuance.

On January 9, 1984 defendant filed his Comment and/or Rejoinder
Memorandum in support of his opposition to the issuance of a writ of
preliminary injunction.

On January 11, 1984, the trial court issued an Order setting the
case for hearing on January 16, 1984 “for the parties to adduce evidence
on the question of whether the publication ‘Pinoy Playboy Magazine’ alleged
(sic) seized, confiscated and/or burned by the defendants, are obscene per se
or not”.

On January 16, 1984,
the Court issued an order granting plaintiff’s motion to be given three days
“to file a reply to
defendants’ opposition dated January 9, 1984, serving a copy thereof to the
counsel for the defendants, who may file a rejoinder within the same period
from receipt, after which the issue of Preliminary Injunction shall be
resolved”.

Plaintiff’s supplemental Memorandum was filed on January 18, 1984. Defend­ant filed his Comment on plaintiff’s supplemental Memorandum on
January 20, 1984, and plaintiff filed his “Reply-Memorandum” to
defendants’ Comment on January 25, 1984.

On February 3, 1984, the trial court promulgated the Order appealed
from denying the motion for a writ of preliminary injunction, and dismissing
the case for lack of merit.^[2]

The Appellate Court dismissed the appeal upon the grounds, among
other things, as follows:

We cannot quarrel with the basic postulate suggested by appellant
that seizure of allegedly obscene publications or materials deserves close
scrutiny because of the constitutional guarantee protecting the right to
express oneself in print (Sec. 9, Art. IV), and the protection afforded by the
constitution against unreasonable searches and seizure (Sec. 3, Art. IV). It must be equally conceded, however, that
freedom of the press is not without restraint, as the state has the right to
protect society from pornographic literature that is offensive to public
morals, as indeed we have laws punishing the author, publishers and sellers of
obscene publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D.
No. 960 and P.D. No. 969). Also well
settled is the rule that the right against unreasonable searches and seizures
recognizes certain exceptions, as when there is consent to the search or
seizure. (People vs. Malesugui, 63 Phil. 22) or search is an
incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76
Phil. 637) or is conducted in a vehicle or movable structure (See Papa vs.
Magno, 22 SCRA 857).^[3]

The petitioner now ascribes to the respondent court the following
errors:

1. The Court of Appeals erred in affirming the
decision of the trial court and,
in effect, holding that the police officers could without any court warrant or
order seize and confiscate petitioner’s magazines on the basis simply of their
determination that they are obscene.

2. The Court of Appeals erred in affirming the
decision of the trial court and, in effect, holding that the trial court could
dismiss the case on its merits without any hearing thereon when what was
submitted to it for resolution was merely the application of petitioner for the
writ of preliminary injunction.^[4]

The Court states at the outset that it is not the first time that
it is being asked to pronounce what “obscene” means or what makes for an
obscene or pornographic literature. Early on, in People vs. Kottinger,^[5] the
Court laid down the test, in determining the existence of obscenity, as follows: “whether the tendency of the matter
charged as obscene,
is to deprave or corrupt those whose minds are open to such immoral influences
and into whose hands a publication or other article charged as being obscene
may fall.”^[6]
“Another test,” so Kottinger further declares, “is that which
shocks the ordinary and common sense of men as an indecency.”^[7]
Kottinger hastened to say, however, that “(w)hether a picture is obscene
or indecent must depend upon the circumstances of the case,”^[8]
and that ultimately, the question is to be
decided by the “judgment of the aggregate sense of the community
reached by it.”^[9]

Yet Kottinger, in its effort to arrive at a “conclusive”
definition, succeeded merely in generalizing a problem that has grown
increasingly complex over the years. Precisely, the question is: When
does a publication have a corrupting tendency, or when can it be said to be
offensive to human sensibilities? And
obviously, it is to beg the question to say that a piece of literature has a corrupting influence because it
is obscene, and vice-versa.

Apparently, Kottinger was aware of its own uncertainty because in
the same breath, it would leave the final say to a hypothetical “community
standard” — whatever that is — and that the question must supposedly be
judged from case to case.

About three decades later, this Court promulgated People v. Go Pin,^[10] a prosecution under Article 201 of
the Revised Penal Code. Go Pin was also even hazier:

x x x We agree with counsel for appellant
in part. If such pictures, sculptures
and paintings are shown in art exhibits and art galleries for the cause of art,
to be viewed and appreciated by people interested in art, there would be no
offense committed. However, the
pictures here in question were used not exactly for art’s sake but rather for
commercial purposes. In other words,
the supposed artistic qualities of said pictures were being commercialized so
that the cause of art was of secondary or minor importance. Gain and profit would appear to have been
the main, if not the exclusive consideration in their exhibition: and it would not be surprising if the
persons who went to see those pictures and paid entrance fees for the privilege
of doing so, were not exactly artists and persons interested in art and who
generally go to art exhibitions and galleries to satisfy and improve their
artistic tastes, but rather people desirous of satisfying their morbid curiosity
and taste, and lust, and for love for excitement, including the youth who
because of their immaturity are not in a position to resist and shield
themselves from the ill and perverting effects of these pictures.^[11]

xxx                   xxx                     xxx

As the Court declared, the issue is a complicated one, in which
the fine lines have neither been drawn nor divided. It is easier said than done to say, indeed, that if “the
pictures here in question were used not exactly for art’s sake but rather for
commercial purposes,”^[12] the
pictures are not entitled to any constitutional protection.

It was People v. Padan y Alova,^[13] however,
that introduced to Philippine jurisprudence the “redeeming” element
that should accompany the work, to save it from a valid prosecution. We quote:

x x x We have had
occasion to consider offenses like the exhibition of still or moving pictures
of women in the nude, which we have condemned for obscenity and as offensive to
morals. In those cases, one might yet
claim that there was involved the element of art; that connoisseurs of the
same, and painters and sculptors might find inspiration in the showing of
pictures in the nude, or the human body exhibited in sheer nakedness, as models
in tableaux vivants. But an actual exhibition
of the sexual act, preceded by acts of lasciviousness, can have no redeeming
feature. In it, there is no room for
art. One can see nothing in it but
clear and unmitigated obscenity, indecency, and an offense to public morals,
inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially
on the youth of the land. x x x^[14]

Padan y Alova, like Go Pin, however, raised more questions
than answers. For one thing, if the
exhibition was attended by “artists and persons interested in art and who
generally go to art exhibitions and galleries to satisfy and improve their
artistic tastes,”^[15]
could the same legitimately lay claim to “art”? For another, suppose that the exhibition was
so presented that “connoisseurs of [art], and painters and sculptors might
find inspiration,”^[16] in it, would it cease to be a case of
obscenity?

Padan y Alova, like Go Pin also leaves too much latitude
for judicial arbitrament, which has permitted an ad lib of ideas and
“two-cents worths” among judges as to what is obscene and what is
art.

In a much later decision, Gonzalez v. Kalaw Katigbak,^[17] the Court,
following trends in the United States, adopted the test: “Whether to the average person,
applying contemporary standards, the dominant theme of the material taken as a
whole appeals to prurient interest.“^[18] Kalaw-Katigbak represented a marked departure from Kottinger
in the sense that it measured obscenity in terms of the “dominant
theme” of the work, rather than isolated passages, which were central to Kottinger (although both cases are agreed that
“contemporary community standards” are the final arbiters of what is “obscene”). Kalaw-Katigbak undertook moreover to make the
determination of obscenity essentially a judicial question and as a
consequence, to temper the wide discretion Kottinger had given unto law enforcers.

It is significant
that in the United States, constitutional law on obscenity continues to journey
from development to development,
which, states one authoritative commentator (with ample sarcasm), has been as “unstable as it is
unintelligible.”^[19]

Memoirs v. Massachusettes,^[20] a
1966 decision, which characterized obscenity as one “utterly without any
redeem­ing social value,”^[21]
marked yet another development.

The latest word, however, is Miller v. California,^[22]
which expressly abandoned Massachusettes, and established “basic
guidelines,”^[23] to
wit: “(a) whether ‘the average
person, applying contemporary standards’ would find the work, taken as a whole,
appeals to the prurient interest …; (b) whether the work depicts or describes,
in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value.”^[24]

(A year later, the American Supreme Court decided Hamling v.
United States,^[25]
which repeated Miller, and Jenkins v. Georgia,^[26]
yet another reiteration of Miller, Jenkins, curiously, acquitted the producers
of the motion picture, Carnal Knowledge, in the absence of “genitals”
portrayed on screen, although the film highlighted contemporary American
sexuality.)

The lack of uniformity in American jurisprudence as to what
constitutes “obscenity” has been attributed to the reluctance of the
courts to recognize the constitutional dimension of the problem.^[27]
Apparently, the courts have assumed that “obscenity” is not included
in the guaranty of free speech, an assumption that as we averred, has allowed a climate of
opinions among magistrates predicated upon arbitrary, if vague theories of what
is acceptable to society. And
“[t]here is little likelihood,” says Tribe, “that this
development has reached a state
of rest, or that it will ever do
so until the Court recognizes that obscene speech is speech nonetheless, although it is
subject -? as in all speech — to regulation in the interests of [society
as a whole] — but not in the interest of a uniform vision of how human
sexuality should be regarded and portrayed.”^[28]

In the case at bar, there
is no challenge on the right of
the State, in the legitimate exercise of police power, to suppress smut —
provided it is smut. For obvious
reasons, smut is not smut simply because one insists it is
smut. So is it equally evident that
individual tastes develop, adapt to wide-ranging influences, and keep in step
with the rapid advance of civilization. What shocked our forebears, say, five
decades ago, is not necessarily repulsive to the present generation. James Joyce and D. H. Lawrence were censored
in the thirties yet their works
are considered important literature today.^[29] Goya’s
La Maja desnuda was once banned from public exhibition but now adorns the
world’s most prestigious museums.

But neither should we say that “obscenity” is a bare
(no pun intended) matter of opinion. As we said earlier, it is the divergent
perceptions of men and women that have probably compounded the problem rather
than resolved it.

What the Court is impressing, plainly and simply, is that the question is not, and
has not been, an easy one to answer, as it is far from being a settled
matter. We share Tribe’s disappointment
over the discouraging trend in American decisional law on obscenity as well as
his pessimism on whether or not an “acceptable” solution is in sight.

In the final analysis perhaps, the task that confronts us is less
heroic than rushing to a
“perfect” definition of “obscenity”, if that is possible,
as evolving standards for proper police conduct faced with the problem, which,
after all, is the plaint specifically raised in the petition.

However, this much we have to say.

Undoubtedly, “immoral” lore or literature comes within
the ambit of free expression, although not its protection. In free expression cases, this Court has
consistently been on the side of the exercise of the right, barring a
“clear and present danger” that would warrant State interference and
action.^[30]
But, so we asserted in Reyes v. Bagatsing,^[31]
“the burden to show the existence of grave and imminent danger that would
justify adverse action … lies on the … authorit(ies).”^[32]

“There must be objective and convincing, not subjective or
conjectural, proof of the existence of such clear and present danger.”^[33]
“It is essential for the validity of … previous restraint or censorship
that the … authority does not rely solely on his own appraisal of what the
public welfare, peace or safety may require.”^[34]

“To justify such a limitation, there must be proof of such
weight and sufficiency to satisfy the clear and present danger test.”^[35]

The above disposition must not, however, be taken as a neat
effort to arrive at a solution — so only we may arrive at one — but rather as
a serious attempt to put the question in its proper perspective, that is, as a
genuine constitutional issue.

It is also significant that in his petition, the petitioner
asserts constitutional issues, mainly, due process and illegal search and
seizure.

As we so strongly stressed in Bagatsing, a case involving the delivery of a political
speech, the presumption is that the speech may validly be said. The burden is on the State to demonstrate
the existence of a danger, a danger that must not only be: (1) clear but also, (2) present, to justify State action to stop the speech. Meanwhile, the Government must allow it (the
speech). It has no choice. However, if it acts notwithstanding that
(absence of evidence of a clear and present danger), it must come to terms
with, and be held accountable for, due process.

The Court is not convinced that the private respondents have
shown the required proof to justify a ban and to warrant confiscation of the
literature for which mandatory injunction had been sought below. First of all, they were not possessed of a
lawful court order: (1) finding the
said materials to be pornography, and (2) authorizing them to carry out a
search and seizure, by way of a search warrant.

The Court of Appeals has no “quarrel that … freedom of the
press is not without restraint, as the state has the right to protect society
from pornographic literature that is offensive to public morals.”^[36]
Neither do we. But it bring us back to
square one: were the “literature”
so confiscated “pornographic”? That “we have laws punishing the author, publisher and sellers of
obscene publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D.
No. 960 and P.D. No. 969),”^[37] is
also fine, but the question, again, is: Has the petitioner been found guilty under the statute?

The fact that the former respondent Mayor’s act was sanctioned by
“police power” is no license to seize property in disregard of due
process. In Philippine Service
Exporters, Inc. v. Drilon,^[38] we
defined police power as “state authority to enact legislation that may
interfere with personal liberty or property in order to promote the general
welfare.”^[39]
Presidential Decrees Nos. 960
and 969 are, arguably, police power measures, but they are not, by themselves,
authorities for high-handed acts. They
do not exempt our law enforcers, in carrying out the decree of the twin
presidential issuances (Mr. Marcos’), from the commandments of the Constitution,
the right to due process of law and the right against unreasonable searches and
seizures, specifically. Significantly,
the Decrees themselves lay down procedures for implementation. We quote:

Sec. 2. Disposition of the
Pro­hibited Articles. – The disposition
of the literature, films, prints, engravings, sculptures, paintings, or other
materials involved in the violation referred to in Section 1 hereof (Art. 201),
RPC as amended) shall be governed
by the following rules:

(a) Upon conviction
of the offender, to be forfeited in favor of the Government to be destroyed.

(b) Where the
criminal case against any violator of this decree results in an acquittal, the
obscene/immoral literature, films, prints, engravings, sculptures, paintings or
other materials and articles involved in the violation referred to in Section 1
(referring to Art. 201) hereof shall nevertheless be forfeited in favor of the
government to be destroyed, after forfeiture proceedings conducted by the Chief
of Constabulary.

(c) The person aggrieved
by the forfeiture action of the Chief of Constabulary may, within fifteen (15)
days after his receipt of a copy of the decision, appeal the matter to the
Secretary of National Defense for review. The decision of the Secretary of National Defense shall be final and
unappealable. (Sec. 2, PD NO. 960 as
amended by PD No. 969.)

Sec. 4. Additional Penalties. – Additional penalties shall be imposed as follows:

1. In case the offender is a government
official or employee who allows the violations of Section 1 hereof, the penalty
as provided herein shall be imposed in the maximum period and, in addition, the
accessory penalties provided for in the Revised Penal Code, as amended, shall
likewise be imposed.^[40]

Under the Constitution,^[41] on
the other hand:

SEC. 3. 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
not be violated, and 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.^[42]

It is basic that searches and seizures may be done only through a
judicial warrant, otherwise, they become unreasonable and subject to
challenge. In Burgos v. Chief of Staff, AFP,^[43]
we countermanded the orders of the Regional Trial Court authorizing the search
of the premises of We Forum and Metropolitan Mail, two Metro Manila dailies, by
reason of a defective warrant. We have
greater reason here to reprobate the questioned raid, in the complete absence
of a warrant, valid or invalid. The
fact that the instant case involves an obscenity rap makes it no different from
Burgos, a political case, because, and as we have indicated, speech is speech,
whether political or “obscene”.

The Court is not ruling out warrantless searches, as the Rules of
Court (1964 rev.) (the Rules then prevailing), provide:

SEC. 12. Search without warrant of person
arrested.– A person charged with an offense may be searched for dangerous
weapons or anything which may be used as proof of the commission of the
offense.^[44]

but as the provision itself suggests, the
search must have been an incident to a lawful arrest, and the arrest must be on
account of a crime committed. Here, no
party has been charged, nor are such charges being readied against any party, under Article 201, as amended,
of the Revised Penal Code.

We reject outright the argument that “[t]here is no
constitutional nor legal provision which would free the accused of all criminal
responsibility because there had been no warrant,”^[45]
and that “violation of penal law [must] be punished.”^[46]
For starters, there is no
“accused” here to speak of, who ought to be “punished”. Second, to say that the respondent Mayor could have validly ordered the raid
(as a result of an anti-smut campaign) without a lawful search warrant because,
in his opinion, “violation of penal laws” has been committed, is to
make the respondent Mayor judge, jury, and executioner rolled into one. And precisely, this is the very complaint of
the petitioner.

We make this resume.

1. The authorities must apply for the issuance of a search warrant from a judge, if in their
opinion, an obscenity rap is in order;

2. The authorities must convince the court that the materials
sought to be seized are “obscene”, and pose a clear and present danger of an evil substantive enough to
warrant State interference and action;

3. The judge must determine whether or not the same are indeed
“obscene:” the question is to be resolved on a case-to-case basis and
on His Honor’s sound discretion.

4. If, in the opinion of the court, probable cause exists, it may
issue the search warrant prayed for;

5. The proper suit is then brought in the court under Article 201
of the Revised Penal Code;

6. Any conviction is subject to appeal. The appellate court may assess whether or not the properties
seized are indeed “obscene”.

These do not foreclose, however, defenses under the Constitution
or applicable statutes, or remedies against abuse of official power under the
Civil Code^[47]
or the Revised Penal Code.^[48]

WHEREFORE, the petition is GRANTED. The decision of the respondent court is
REVERSED and SET ASIDE. It appearing, however, that the magazines subject of
the search and seizure have been destroyed, the Court declines to grant
affirmative relief. To that extent, the case is moot and academic.

SO ORDERED.

Melencio-Herrera, Cruz, Paras, Gancayco, Padilla, Bidin,
Cortes, Griño-Aquino, Medialdea, and
Regalado, JJ., concur.

Fernan, C.J., Narvasa, and
Feliciano, JJ., in the result.

Gutierrez, Jr., on leave.

---

^[1]
Gonzaga-Reyes, Minerva, J., Javellana, Luis A. and Ramirez, Pedro A., JJ., Concurring.

^[2]
Rollo, 30-31.

^[3]
Id., 41.

^[4]
Id., 12-13.

^[5]
45 Phil. 352 (1923), per Malcolm, J.

^[6]
Supra, 356.

^[7]
Supra, 357.

^[8]
Supra.

^[9]
Supra, 359.

^[10]
97 Phil. 418 (1955), per Montemayor, J.

^[11]
Supra., 419.

^[12]
Supra.

^[13]
101 Phil. 749 (1957).

^[14]
Supra, 752.

^[15]
Go Pin, supra.

^[16]
Padan y Alova, supra.

^[17]
No. 69500, July 21, 1985, 137 SCRA 717, per Fernando, C.J.

^[18]
Supra, 726, citing Roth v. United States, 354 US 476 (1957).

^[19]
TRIBE, AMERICAN CONSTITUTIONAL LAW 656 (1978 ed.)

^[20]
383 US 410 (1966).

^[21]
See TRIBE, id., 661.

^[22]
413 US 15 (1973).

^[23]
Supra, 24.

^[24]
Supra.

^[25]
418 US 87 (1974).

^[26]
418 US 153 (1974).

^[27]
TRIBE, id.

^[28]
Id., 661-662; emphasis in the original.

^[29]
See Kingsley Pictures v. N.Y. Regents, 360 US 684 (1959). The case involved the movie version of Lady
Chatterley’s Lover. See also United
States v. One Book called “Ulysses”, 5 F. Supp. 182 (1934).

^[30]
Gonzales vs. COMELEC, No. L-27833, April 18, 1969, 27 SCRA 835; Reyes v.
Bagatsing, No. 65366, November 9, 1983, 125 SCRA 553.

^[31]
Supra

^[32]
Supra, 572 per Teehankee, J., Concurring; emphasis in the original.

^[33]
Supra, emphasis in the original.

^[34]
Supra, emphasis in the original.

^[35]
Supra, emphasis in the original.

^[36]
Rollo, id., 41.

^[37]
Id. The question whether or not Presidential Decrees Nos. 960 and 969
are unconstitutional is another thing; we will deal with the problem in the
proper hour and in the appropriate case. Judicial restraint is a bar to a
consideration of the problem that does not exist, or if it exists, it exists
but in the abstract.

^[38]
G. R. No. 81958, June 30, 1988.

^[39]
Supra, at 3.

^[40]
Pres. Decree No. 960, sec. 2 as
amended by Pres. Decree No. 969.

^[41]
CONST. (1973), the Charter then in force.

^[42]
Supra, art. IV, sec. 3.

^[43]
No. 64266, December 26, 1984, 133 SCRA 800.

^[44]
RULES OF COURT (1964). Rule 126, sec. 12. As amended, the provision now reads as follows: “SEC. 12. Search incident to lawful arrest. — A person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without
a search warrant.” [RULES ON CRIMINAL PROCEDURE (1985 rev.), Rule 126,
sec. 12.]

^[45]
Rollo, id., 51.

^[46]
Id.

^[47]
CIVIL CODE, art. 32. The provision
states: “ART. 32. Any public officer or employee, or any
private individual, who directly or indirectly obstructs, defeats, violates or
in any manner impedes or impairs any of the following rights and liberties of
another person shall be liable to the latter for damages:

(1) Freedom of religion;

(2) Freedom of speech;

(3) Freedom to write for the press or to maintain
a periodical publication;

(4) Freedom from arbitrary or illegal detention;

(5) Freedom of suffrage;

(6) The right against deprivation of property
without due process of law;

(7) The right to a just compensation when private
property is taken for public use;

(8) The right to the equal protection of the
laws;

(9) The right to be secure in one’s person,
house, papers, and effects against unreasonable searches and seizures;

(10) The liberty of
abode and of changing the same;

(11) The privacy of
communication and correspondence;

(12) The right to
become member of associations or societies for purposes not contrary to law;

(13) The right to take
part in a peaceable assembly to petition the Government for redress of grievances;

(14) The right to be
free from involuntary servitude in any form;

(15) The right of the
accused against excessive bail;

(16) The right of the
accused to be heard by himself and counsel, to be informed of the nature and
cause of the accusation against him, to have a speedy and public trial, to meet
the witnesses face to face, and to have compulsory process to secure the
attendance of witness in his behalf;

(17) Freedom from
being compelled to be a witness against one’s self, or from being forced to
confess guilt, or from being induced by a promise of immunity or reward to make such
confession, except when the person confessing becomes a State witness;

(18) Freedom from
excessive fines, or cruel and unusual punishment, unless the same is imposed or
inflicted in accordance with a statute which has not been judicially declared
unconstitutional; and

(19) Freedom of access
to the courts.

In any of the cases referred to in
this article, whether or not the defendant’s act or omission constitutes a
criminal offense, the aggrieved party has a right to commence an entirely
separate and distinct civil action for damages, and for other relief. Such
civil action shall proceed independently of any criminal prosecution (if the
latter be instituted), and may be proved by a preponderance of evidence.

The indemnity shall include moral
damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth
is not demandable from a judge unless his act or omission constitutes a
violation of the Penal Code or other penal statute.”

^[48]
REV. PEN. CODE. arts. 129, 130. The provisions state:

“ART. 129. Search warrants
maliciously obtained and abuse in the service of those legally obtained. – In
addition to the liability attaching to the offender for commission of any other
offense, the penalty of arresto mayor in its maximum period to prision
correccional in its minimum period and a fine not exceeding P1,000 pesos shall
be imposed upon any public officer or employee who shall procure a search
warrant without just cause, or, having legally procured the same, shall exceed
his authority or use unnecessary severity in executing the same.

The acts, committed by a public
officer or employee, punishable by the above article are:

(1) Procuring a search
warrant without just cause:

(2) Exceeding one’s
authority or using unnecessary severity in the execution of a legally procured
search warrant.”

“ART. 130. Searching domicile without witnesses. – The
penalty of arresto mayor in its medium and maximum periods shall be imposed
upon a public officer or employee who, in cases where a search is proper, shall
search the domicile, papers or other belongings of any person, in the absence
of the latter, any member of his family, or in their default, without the presence
of two witnesses residing in the same locality.