Right To Bail Casee.docx

RIGHT TO BAIL G.R. No. 148571

September 24, 2002

GOVERNMENT OF THE UNITED STATES OF AMERICA, Represented by the Philippine Department of Justice, petitioner, vs. HON. GUILLERMO PURGANAN, Presiding Judge Regional Trial Court of Manila and MARC JIMENEZ a.k.a. MARCIO BATACAN CRESPO, respondent DECISION PANGANIBAN, J.: In extradition proceedings, are prospective extraditees entitled to notice and hearing before warrants for their arrest can be issued? Equally important, are they entitled to the right to bail and provisional liberty while the extradition proceedings are pending? In general, the answer to these two novel questions is "No." The explanation of and the reasons for, as well as the exceptions to, this rule are laid out in this Decision. The Case Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to void and set aside the Orders dated May 23, 2001 1 and July 3, 2001 2 issued by the Regional Trial Court (RTC) of Manila, Branch 42. 3 The first assailed Order set for hearing petitioner’s application for the issuance of a warrant for the arrest of Respondent Mark B. Jimenez. The second challenged Order, on the other hand, directed the issuance of a warrant, but at the same time granted bail to Jimenez. The dispositive portion of the Order reads as follows: WHEREFORE, in the light of the foregoing, the [Court] finds probable cause against respondent Mark Jimenez. Accordingly let a Warrant for the arrest of the respondent be issued. Consequently and taking into consideration Section 9, Rule 114 of the Revised Rules of Criminal Procedure, this Court fixes the reasonable amount of bail for respondent’s temporary liberty at ONE MILLION PESOS (Php 1,000,000.00), the same to be paid in cash. Furthermore respondent is directed to immediately surrender to this Court his passport and the Bureau of Immigration and Deportation is likewise directed to include the name of the respondent in its Hold Departure List." 4 Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the bond, and the taking of Jimenez into legal custody.

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The Facts This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v. Ralph C. Lantion. 5 Pursuant to the existing RP-US Extradition Treaty, 6 the United States Government, through diplomatic channels, sent to the Philippine Government Note Verbale No. 0522 dated June 16, 1999, supplemented by Note Nos. 0597, 0720 and 0809 and accompanied by duly authenticated documents requesting the extradition of Mark B. Jimenez, also known as Mario Batacan Crespo. Upon receipt of the Notes and documents, the secretary of foreign affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate action, pursuant to Section 5 of Presidential Decree (PD) No. 1069, also known as the Extradition Law. Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary Restraining Order (TRO) by the RTC of Manila, Branch 25. 7 The TRO prohibited the Department of Justice (DOJ) from filing with the RTC a petition for his extradition. The validity of the TRO was, however, assailed by the SOJ in a Petition before this Court in the said GR No. 139465. Initially, the Court -- by a vote of 9-6 -- dismissed the Petition. The SOJ was ordered to furnish private respondent copies of the extradition request and its supporting papers and to grant the latter a reasonable period within which to file a comment and supporting evidence. 8 Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October 17, 2000 Resolution. 9 By an identical vote of 9-6 -- after three justices changed their votes -- it reconsidered and reversed its earlier Decision. It held that private respondent was bereft of the right to notice and hearing during the evaluation stage of the extradition process. This Resolution has become final and executory. Finding no more legal obstacle, the Government of the United States of America, represented by the Philippine DOJ, filed with the RTC on May 18, 2001, the appropriate Petition for Extradition which was docketed as Extradition Case No. 01192061. The Petition alleged, inter alia, that Jimenez was the subject of an arrest warrant issued by the United States District Court for the Southern District of Florida on April 15, 1999. The warrant had been issued in connection with the following charges in Indictment No. 99-00281 CR-SEITZ: (1) conspiracy to defraud the United States and to commit certain offenses in violation of Title 18 US Code Section 371; (2) tax evasion, in violation of Title 26 US Code Section 7201; (3) wire fraud, in violation of Title 18 US Code Sections 1343 and 2; (4) false statements, in violation of Title 18 US Code Sections 1001 and 2; and (5) illegal campaign contributions, in violation of Title 2 US Code Sections 441b, 441f and 437g(d) and Title 18 US Code Section 2. In order to prevent the flight of Jimenez, the Petition prayed for the issuance of an order for his "immediate arrest" pursuant to Section 6 of PD No. 1069. Before the RTC could act on the Petition, Respondent Jimenez filed before it an "Urgent Manifestation/Ex-Parte Motion," 10 which prayed that petitioner’s application for an arrest warrant be set for hearing.

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In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for hearing on June 5, 2001. In that hearing, petitioner manifested its reservations on the procedure adopted by the trial court allowing the accused in an extradition case to be heard prior to the issuance of a warrant of arrest. After the hearing, the court a quo required the parties to submit their respective memoranda. In his Memorandum, Jimenez sought an alternative prayer: that in case a warrant should issue, he be allowed to post bail in the amount of P100,000. The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter, the court below issued its questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest and fixing bail for his temporary liberty at one million pesos in cash. 11 After he had surrendered his passport and posted the required cash bond, Jimenez was granted provisional liberty via the challenged Order dated July 4, 2001. 12 Hence, this Petition. 13 Issues Petitioner presents the following issues for the consideration of this Court: I. The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing an arrest warrant under Section 6 of PD No. 1069. II. The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in granting the prayer for bail and in allowing Jimenez to go on provisional liberty because: ‘1. An extradition court has no power to authorize bail, in the absence of any law that provides for such power. ‘2. Section 13, Article III (right to bail clause) of the 1987 Philippine Constitution and Section 4, Rule 114 (Bail) of the Rules of Court, as amended, which [were] relied upon, cannot be used as bases for allowing bail in extradition proceedings. ‘3. The presumption is against bail in extradition proceedings or proceedings leading to extradition.

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‘4. On the assumption that bail is available in extradition proceedings or proceedings leading to extradition, bail is not a matter of right but only of discretion upon clear showing by the applicant of the existence of special circumstances. ‘5. Assuming that bail is a matter of discretion in extradition proceedings, the public respondent received no evidence of ‘special circumstances’ which may justify release on bail. ‘6. The risk that Jimenez will flee is high, and no special circumstance exists that will engender a well-founded belief that he will not flee. ‘7. The conditions attached to the grant of bail are ineffectual and do not ensure compliance by the Philippines with its obligations under the RP-US Extradition Treaty. ‘8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case entitled ‘Eduardo T. Rodriguez et al. vs. The Hon. Presiding Judge, RTC, Branch 17, Manila,’ CA-G.R. SP No. 64589, relied upon by the public respondent in granting bail, had been recalled before the issuance of the subject bail orders.’" 14 In sum, the substantive questions that this Court will address are: (1) whether Jimenez is entitled to notice and hearing before a warrant for his arrest can be issued, and (2) whether he is entitled to bail and to provisional liberty while the extradition proceedings are pending. Preliminarily, we shall take up the alleged prematurity of the Petition for Certiorari arising from petitioner’s failure to file a Motion for Reconsideration in the RTC and to seek relief in the Court of Appeals (CA), instead of in this Court. 15 We shall also preliminarily discuss five extradition postulates that will guide us in disposing of the substantive issues. The Court’s Ruling The Petition is meritorious. Preliminary Matters Alleged Prematurity of Present Petition Petitioner submits the following justifications for not filing a Motion for Reconsideration in the Extradition Court: "(1) the issues were fully considered by such court after requiring the parties to submit their respective memoranda and position papers on the matter and thus, the filing of a reconsideration motion would serve no useful purpose; (2) the assailed orders are a patent nullity, absent factual and legal basis therefor; and (3) the need for relief is extremely urgent, as

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the passage of sufficient time would give Jimenez ample opportunity to escape and avoid extradition; and (4) the issues raised are purely of law." 16 For resorting directly to this Court instead of the CA, petitioner submits the following reasons: "(1) even if the petition is lodged with the Court of Appeals and such appellate court takes cognizance of the issues and decides them, the parties would still bring the matter to this Honorable Court to have the issues resolved once and for all [and] to have a binding precedent that all lower courts ought to follow; (2) the Honorable Court of Appeals had in one case 17ruled on the issue by disallowing bail but the court below refused to recognize the decision as a judicial guide and all other courts might likewise adopt the same attitude of refusal; and (3) there are pending issues on bail both in the extradition courts and the Court of Appeals, which, unless guided by the decision that this Honorable Court will render in this case, would resolve to grant bail in favor of the potential extraditees and would give them opportunity to flee and thus, cause adverse effect on the ability of the Philippines to comply with its obligations under existing extradition treaties." 18 As a general rule, a petition for certiorari before a higher court will not prosper unless the inferior court has been given, through a motion for reconsideration, a chance to correct the errors imputed to it. This rule, though, has certain exceptions: (1) when the issue raised is purely of law, (2) when public interest is involved, or (3) in case of urgency. 19 As a fourth exception, the Court has also ruled that the filing of a motion for reconsideration before availment of the remedy of certiorari is not a sine qua non, when the questions raised are the same as those that have already been squarely argued and exhaustively passed upon by the lower court. 20 Aside from being of this nature, the issues in the present case also involve pure questions of law that are of public interest. Hence, a motion for reconsideration may be dispensed with. Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue writs of certiorari when there are special and important reasons therefor. 21 In Fortich v. Corona 22 we stated: [T]he Supreme Court has the full discretionary power to take cognizance of the petition filed directly [before] it if compelling reasons, or the nature and importance of the issues raised, warrant. This has been the judicial policy to be observed and which has been reiterated in subsequent cases, namely: Uy vs. Contreras, et. al., Torres vs. Arranz, Bercero vs. De Guzman, and, Advincula vs. Legaspi, et. al. As we have further stated in Cuaresma: ‘x x x. A direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. x x x.’ Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present petition in the interest of speedy justice and to avoid future

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litigations so as to promptly put an end to the present controversy which, as correctly observed by petitioners, has sparked national interest because of the magnitude of the problem created by the issuance of the assailed resolution. Moreover, x x x requiring the petitioners to file their petition first with the Court of Appeals would only result in a waste of time and money. That the Court has the power to set aside its own rules in the higher interests of justice is well-entrenched in our jurisprudence. We reiterate what we said in Piczon vs. Court of Appeals: 23 ‘Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require. In the instant petition, we forego a lengthy disquisition of the proper procedure that should have been taken by the parties involved and proceed directly to the merits of the case.’ In a number of other exceptional cases, 24 we held as follows: This Court has original jurisdiction, concurrent with that of Regional Trial Courts and the Court of Appeals, over petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus, and we entertain direct resort to us in cases where special and important reasons or exceptional and compelling circumstances justify the same." In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts. Five Postulates of Extradition The substantive issues raised in this case require an interpretation or construction of the treaty and the law on extradition. A cardinal rule in the interpretation of a treaty or a law is to ascertain and give effect to its intent. 25Since PD 1069 is intended as a guide for the implementation of extradition treaties to which the Philippines is a signatory, 26 understanding certain postulates of extradition will aid us in properly deciding the issues raised here. 1. Extradition Is a Major Instrument for the Suppression of Crime.

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First, extradition treaties are entered into for the purpose of suppressing crime 27 by facilitating the arrest and the custodial transfer 28 of a fugitive 29 from one state to the other. With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of committing crime and evading prosecution has become more frequent. Accordingly, governments are adjusting their methods of dealing with criminals and crimes that transcend international boundaries. Today, "a majority of nations in the world community have come to look upon extradition as the major effective instrument of international cooperation in the suppression of crime." 30 It is the only regular system that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law. 31 An important practical effect x x x of the recognition of the principle that criminals should be restored to a jurisdiction competent to try and punish them is that the number of criminals seeking refuge abroad will be reduced. For to the extent that efficient means of detection and the threat of punishment play a significant role in the deterrence of crime within the territorial limits of a State, so the existence of effective extradition arrangements and the consequent certainty of return to the locus delicti commissi play a corresponding role in the deterrence of flight abroad in order to escape the consequence of crime. x x x. From an absence of extradition arrangements flight abroad by the ingenious criminal receives direct encouragement and thus indirectly does the commission of crime itself." 32 In Secretary v. Lantion 33 we explained: The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate the extradition of persons covered by treaties duly entered [into] by our government. More and more, crimes are becoming the concern of one world. Laws involving crimes and crime prevention are undergoing universalization. One manifest purpose of this trend towards globalization is to deny easy refuge to a criminal whose activities threaten the peace and progress of civilized countries. It is to the great interest of the Philippines to be part of this irreversible movement in light of its vulnerability to crimes, especially transnational crimes." Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with other states in order to improve our chances of suppressing crime in our own country.

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2. The Requesting State Will Accord Due Process to the Accused Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each other’s legal system and judicial process. 34 More pointedly, our duly authorized representative’s signature on an extradition treaty signifies our confidence in the capacity and the willingness of the other state to protect the basic rights of the person sought to be extradited. 35 That signature signifies our full faith that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality. 3. The Proceedings Are Sui Generis Third, as pointed out in Secretary of Justice v. Lantion, 36 extradition proceedings are not criminal in nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis -- in a class by itself -- they are not. An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee x x x. There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited ‘upon showing of the existence of a prima facie case.’ Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nation’s foreign relations before making the ultimate decision to extradite." Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be extradited. 37 Such determination during the extradition proceedings will only result in needless duplication and delay. Extradition is merely a measure of international judicial

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assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is not part of the function of the assisting authorities to enter into questions that are the prerogative of that jurisdiction. 38The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable. 39 4. Compliance Shall Be in Good Faith. Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the national interest. Fulfilling our obligations under the Extradition Treaty promotes comity 40 with the requesting state. On the other hand, failure to fulfill our obligations thereunder paints a bad image of our country before the world community. Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity. 41 Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty. 42 This principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied. In other words, "[t]he demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender." 43 Accordingly, the Philippines must be ready and in a position to deliver the accused, should it be found proper. 5. There Is an Underlying Risk of Flight Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement in the experience 44 of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state. The present extradition case further validates the premise that persons sought to be extradited have a propensity to flee. Indeed, extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting country. 45 Prior acts of herein respondent -- (1) leaving the requesting state right before the conclusion of his indictment proceedings there; and (2) remaining in the requested state despite learning that the requesting state is seeking his return and that the crimes he is charged with are bailable -- eloquently speak of his aversion to the processes in the requesting state, as well as his predisposition to avoid them at all cost. These circumstances point to an ever-present, underlying high risk of flight. He has demonstrated that he has the capacity and the will to

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flee. Having fled once, what is there to stop him, given sufficient opportunity, from fleeing a second time? First Substantive Issue: Is Respondent Entitled to Notice and Hearing Before the Issuance of a Warrant of Arrest? Petitioner contends that the procedure adopted by the RTC --informing the accused, a fugitive from justice, that an Extradition Petition has been filed against him, and that petitioner is seeking his arrest -- gives him notice to escape and to avoid extradition. Moreover, petitioner pleads that such procedure may set a dangerous precedent, in that those sought to be extradited -- including terrorists, mass murderers and war criminals -- may invoke it in future extradition cases. On the other hand, Respondent Jimenez argues that he should not be hurriedly and arbitrarily deprived of his constitutional right to liberty without due process. He further asserts that there is as yet no specific law or rule setting forth the procedure prior to the issuance of a warrant of arrest, after the petition for extradition has been filed in court; ergo, the formulation of that procedure is within the discretion of the presiding judge. Both parties cite Section 6 of PD 1069 in support of their arguments. It states: SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest of the accused which may be served any where within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer, or should the accused after having received the summons fail to answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof. (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case." (Emphasis ours) Does this provision sanction RTC Judge Purganan’s act of immediately setting for hearing the issuance of a warrant of arrest? We rule in the negative. 1. On the Basis of the Extradition Law

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It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word "immediate" to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the opposing parties, 46 receiving facts and arguments 47 from them, 48and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing can no longer be considered "immediate." The law could not have intended the word as a mere superfluity but, on the whole, as a means of imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should be issued. By using the phrase "if it appears," the law further conveys that accuracy is not as important as speed at such early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and actual situation, immediately upon the filing of the petition. From the knowledge and the material then available to it, the court is expected merely to get a good first impression -- a prima facie finding -- sufficient to make a speedy initial determination as regards the arrest and detention of the accused. Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the following: (1) Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage -- trial attorney in the Campaign Financing Task Force of the Criminal Division of the US Department of Justice; (2) Annexes H to G, evidentiary Appendices of various exhibits that constituted evidence of the crimes charged in the Indictment, with Exhibits 1 to 120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3) Annex BB, the Exhibit I "Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers" and enclosed Statements in two volumes; (4) Annex GG, the Exhibit J "Table of Contents for Supplemental Evidentiary Appendix" with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L "Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Betty Steward" and enclosed Statements in two volumes. 49 It is evident that respondent judge could have already gotten an impression from these records adequate for him to make an initial determination of whether the accused was someone who should immediately be arrested in order to "best serve the ends of justice." He could have determined whether such facts and circumstances existed as would lead a reasonably discreet and prudent person to believe that the extradition request was prima facie meritorious. In point of fact, he actually concluded from these supporting documents that "probable cause" did exist. In the second questioned Order, he stated: In the instant petition, the documents sent by the US Government in support of [its] request for extradition of herein respondent are enough to convince the Court of the existence of probable cause to proceed with the hearing against the extraditee." 50

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We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for issuing an arrest warrant was already evident from the Petition itself and its supporting documents. Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez. 51 Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of the accused to answer after receiving the summons. In connection with the matter of immediate arrest, however, the word "hearing" is notably absent from the provision. Evidently, had the holding of a hearing at that stage been intended, the law could have easily so provided. It also bears emphasizing at this point that extradition proceedings are summary 52 in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings. It is taken for granted that the contracting parties intend something reasonable and something not inconsistent with generally recognized principles of International Law, nor with previous treaty obligations towards third States. If, therefore, the meaning of a treaty is ambiguous, the reasonable meaning is to be preferred to the unreasonable, the more reasonable to the less reasonable x x x ." 53 Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing at some future date would give them ample opportunity to prepare and execute an escape. Neither the Treaty nor the Law could have intended that consequence, for the very purpose of both would have been defeated by the escape of the accused from the requested state. 2. On the Basis of the Constitution Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrest. It provides: 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." To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination -- under oath or affirmation -- of complainants

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and the witnesses they may produce. There is no requirement to notify and hear the accused before the issuance of warrants of arrest. In Ho v. People 54 and in all the cases cited therein, never was a judge required to go to the extent of conducting a hearing just for the purpose of personally determining probable cause for the issuance of a warrant of arrest. All we required was that the "judge must have sufficient supporting documents upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause." 55 In Webb v. De Leon, 56 the Court categorically stated that a judge was not supposed to conduct a hearing before issuing a warrant of arrest: Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence." At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their witnesses. 57 In the present case, validating the act of respondent judge and instituting the practice of hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire system. If the accused were allowed to be heard and necessarily to present evidence during the prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires -- in his effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also anathema to the summary nature of extraditions. That the case under consideration is an extradition and not a criminal action is not sufficient to justify the adoption of a set of procedures more protective of the accused. If a different procedure were called for at all, a more restrictive one -not the opposite -- would be justified in view of respondent’s demonstrated predisposition to flee. Since this is a matter of first impression, we deem it wise to restate the proper procedure: Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima facie finding whether (a) they are sufficient in form and substance, (b) they show compliance with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner. If, in spite of this

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study and examination, no prima facie finding 58 is possible, the petition may be dismissed at the discretion of the judge. On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and to appear at scheduled summary hearings. Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings. In our opinion, the foregoing procedure will "best serve the ends of justice" in extradition cases. Second Substantive Issue: Is Respondent ntitled to Bail? Article III, Section 13 of the Constitution, is worded as follows: Art. III, Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required." Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail of all persons, including those sought to be extradited. Supposedly, the only exceptions are the ones charged with offenses punishable with reclusion perpetua, when evidence of guilt is strong. He also alleges the relevance to the present case of Section 4 59 of Rule 114 of the Rules of Court which, insofar as practicable and consistent with the summary nature of extradition proceedings, shall also apply according to Section 9 of PD 1069. On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting the right to bail to a person who is the subject of an extradition request and arrest warrant. Extradition Different from Ordinary Criminal Proceedings We agree with petitioner. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as

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thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt." 60 It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion." 61 Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from the trial for the offenses for which he is charged. He should apply for bail before the courts trying the criminal cases against him, not before the extradition court. No Violation of Due Process Respondent Jimenez cites the foreign case Paretti 62 in arguing that, constitutionally, "[n]o one shall be deprived of x x x liberty x x x without due process of law." Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does not amount to a violation of his right to due process. We iterate the familiar doctrine that the essence of due process is the opportunity to be heard 63 but, at the same time, point out that the doctrine does not always call for a prior opportunity to be heard. 64 Where the circumstances -- such as those present in an extradition case -- call for it, a subsequent opportunity to be heard is enough. 65 In the present case, respondent will be given full opportunity to be heard subsequently, when the extradition court hears the Petition for Extradition. Hence, there is no violation of his right to due process and fundamental fairness. Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation of his liberty prior to his being heard. That his arrest and detention will not be arbitrary is sufficiently ensured by (1) the DOJ’s filing in court the Petition with its supporting documents after a determination that the extradition request meets the requirements of the law and the relevant treaty; (2) the extradition judge’s independent prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his arrest; and (3) his opportunity, once he is under the court’s custody, to apply for bail as an exception to the no-initial-bail rule.

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It is also worth noting that before the US government requested the extradition of respondent, proceedings had already been conducted in that country. But because he left the jurisdiction of the requesting state before those proceedings could be completed, it was hindered from continuing with the due processes prescribed under its laws. His invocation of due process now has thus become hollow. He already had that opportunity in the requesting state; yet, instead of taking it, he ran away. In this light, would it be proper and just for the government to increase the risk of violating its treaty obligations in order to accord Respondent Jimenez his personal liberty in the span of time that it takes to resolve the Petition for Extradition? His supposed immediate deprivation of liberty without the due process that he had previously shunned pales against the government’s interest in fulfilling its Extradition Treaty obligations and in cooperating with the world community in the suppression of crime. Indeed, "[c]onstitutional liberties do not exist in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and palpable government interests." 66 Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of facing the consequences of their actions, choose to run and hide. Hence, it would not be good policy to increase the risk of violating our treaty obligations if, through overprotection or excessively liberal treatment, persons sought to be extradited are able to evade arrest or escape from our custody. In the absence of any provision -- in the Constitution, the law or the treaty -- expressly guaranteeing the right to bail in extradition proceedings, adopting the practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from coming to the Philippines to hide from or evade their prosecutors.1âwphi1.nêt The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14 67 of the Treaty, since this practice would encourage the accused to voluntarily surrender to the requesting state to cut short their detention here. Likewise, their detention pending the resolution of extradition proceedings would fall into place with the emphasis of the Extradition Law on the summary nature of extradition cases and the need for their speedy disposition. Exceptions to the No Bail Rule The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the constitutional duty to curb grave abuse of discretion 68 and tyranny, as well as the power to promulgate rules to protect and enforce constitutional rights. 69 Furthermore, we believe that the right to due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the "life, liberty or property" of every person. It is "dynamic and resilient, adaptable to every situation calling for its application." 70

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Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances 71 including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. Since this exception has no express or specific statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or compromised. In short, while this Court is ever protective of "the sporting idea of fair play," it also recognizes the limits of its own prerogatives and the need to fulfill international obligations. Along this line, Jimenez contends that there are special circumstances that are compelling enough for the Court to grant his request for provisional release on bail. We have carefully examined these circumstances and shall now discuss them. 1. Alleged Disenfranchisement While his extradition was pending, Respondent Jimenez was elected as a member of the House of Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of 600,000 residents. We are not persuaded. In People v. Jalosjos, 72 the Court has already debunked the disenfranchisement argument when it ruled thus: When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full term in office. In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection. The Constitution guarantees: ‘x x x nor shall any person be denied the equal protection of laws.’ This simply means that all persons similarly

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situated shall be treated alike both in rights enjoyed and responsibilities imposed. The organs of government may not show any undue favoritism or hostility to any person. Neither partiality nor prejudice shall be displayed. Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confined under law? The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly [from] prison. The duties imposed by the ‘mandate of the people’ are multifarious. The accusedappellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends on the need for its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective governor has to serve provincial constituents. A police officer must maintain peace and order. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. A strict scrutiny of classifications is essential lest[,] wittingly or otherwise, insidious discriminations are made in favor of or against groups or types of individuals. The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of government authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded. We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class." 73 It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was already of public knowledge that the United States was requesting his extradition. Hence, his constituents were or should have been prepared for the consequences of the extradition case against their representative, including his detention pending the final resolution of the case.

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Premises considered and in line with Jalosjos, we are constrained to rule against his claim that his election to public office is by itself a compelling reason to grant him bail. 2. Anticipated Delay Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be unfair to confine him during the pendency of the case. Again we are not convinced. We must emphasize that extradition cases are summary in nature. They are resorted to merely to determine whether the extradition petition and its annexes conform to the Extradition Treaty, not to determine guilt or innocence. Neither is it, as a rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal action. We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings. This is quite another matter that is not at issue here. Thus, any further discussion of this point would be merely anticipatory and academic. However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of bail not be justified. Giving premium to delay by considering it as a special circumstance for the grant of bail would be tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch out and unreasonably delay the extradition proceedings even more. This we cannot allow. 3. Not a Flight Risk? Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned of the extradition request in June 1999; yet, he has not fled the country. True, he has not actually fled during the preliminary stages of the request for his extradition. Yet, this fact cannot be taken to mean that he will not flee as the process moves forward to its conclusion, as he hears the footsteps of the requesting government inching closer and closer. That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground and still be within reach of our government if and when it matters; that is, upon the resolution of the Petition for Extradition. In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the applicant has been taken into custody and prior to judgment, even after bail has been previously denied. In the present case, the extradition court may continue hearing evidence on the application for bail, which may be granted in accordance with the guidelines in this Decision. Brief Refutation of Dissents The proposal to remand this case to the extradition court, we believe, is totally unnecessary; in fact, it is a cop-out. The parties -- in particular, Respondent

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Jimenez -- have been given more than sufficient opportunity both by the trial court and this Court to discuss fully and exhaustively private respondent’s claim to bail. As already stated, the RTC set for hearing not only petitioner’s application for an arrest warrant, but also private respondent’s prayer for temporary liberty. Thereafter required by the RTC were memoranda on the arrest, then position papers on the application for bail, both of which were separately filed by the parties. This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy Memoranda and the Position Papers of both parties. Additionally, it has patiently heard them in Oral Arguments, a procedure not normally observed in the great majority of cases in this Tribunal. Moreover, after the Memos had been submitted, the parties -- particularly the potential extraditee -- have bombarded this Court with additional pleadings -- entitled "Manifestations" by both parties and "Counter-Manifestation" by private respondent -- in which the main topic was Mr. Jimenez’s plea for bail. A remand would mean that this long, tedious process would be repeated in its entirety. The trial court would again hear factual and evidentiary matters. Be it noted, however, that, in all his voluminous pleadings and verbal propositions, private respondent has not asked for a remand. Evidently, even he realizes that there is absolutely no need to rehear factual matters. Indeed, the inadequacy lies not in the factual presentation of Mr. Jimenez. Rather, it lies in his legal arguments. Remanding the case will not solve this utter lack of persuasion and strength in his legal reasoning. In short, this Court -- as shown by this Decision and the spirited Concurring, Separate and Dissenting Opinions written by the learned justices themselves -- has exhaustively deliberated and carefully passed upon all relevant questions in this case. Thus, a remand will not serve any useful purpose; it will only further delay these already very delayed proceedings, 74 which our Extradition Law requires to be summary in character. What we need now is prudent and deliberate speed, not unnecessary and convoluted delay. What is needed is a firm decision on the merits, not a circuitous cop-out. Then, there is also the suggestion that this Court is allegedly "disregarding basic freedoms when a case is one of extradition." We believe that this charge is not only baseless, but also unfair. Suffice it to say that, in its length and breath, this Decision has taken special cognizance of the rights to due process and fundamental fairness of potential extraditees. Summation As we draw to a close, it is now time to summarize and stress these ten points: 1. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes and the

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evidence that may be adduced during the hearing of the petition, complies with the Extradition Treaty and Law; and whether the person sought is extraditable. The proceedings are intended merely to assist the requesting state in bringing the accused -- or the fugitive who has illegally escaped -- back to its territory, so that the criminal process may proceed therein. 2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein. 3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are necessarily available. It is more akin, if at all, to a court’s request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity. 4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make a prima facie finding whether the petition is sufficient in form and substance, whether it complies with the Extradition Treaty and Law, and whether the person sought is extraditable. The magistrate has discretion to require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the potential extraditee and summons him or her to answer and to appear at scheduled hearings on the petition. 5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to the community; and (b) there exist special, humanitarian or compelling circumstances. The grounds used by the highest court in the requesting state for the grant of bail therein may be considered, under the principle of reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the context of the peculiar facts of each case. 6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk involved. Indeed, available during the hearings on the petition

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and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition. 7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy and the conscience of society. But it is also well aware of the limitations of its authority and of the need for respect for the prerogatives of the other co-equal and co-independent organs of government. 8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign relations and to implement treaties. Thus, the Executive Department of government has broad discretion in its duty and power of implementation. 9. On the other hand, courts merely perform oversight functions and exercise review authority to prevent or excise grave abuse and tyranny. They should not allow contortions, delays and "over-due process" every little step of the way, lest these summary extradition proceedings become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partner’s simple request to return a fugitive. Worse, our country should not be converted into a dubious haven where fugitives and escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice and international cooperation. 10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic contortions, delays and technicalities that may negate that purpose. WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is hereby declared NULL and VOID, while the challenged Order dated July 3, 2001 is SET ASIDE insofar as it granted bail to Respondent Mark Jimenez. The bail bond posted by private respondent is CANCELLED. The Regional Trial Court of Manila is directed to conduct the extradition proceedings before it, with all deliberate speed pursuant to the spirit and the letter of our Extradition Treaty with the United States as well as our Extradition Law. No costs. SO ORDERED.

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G.R. No. 134504

March 17, 2000

JOSELITO V. NARCISO, petitioner, vs. FLOR MARIE STA. ROMANA-CRUZ, respondent. PANGANIBAN, J.: When the penalty prescribed by law is death, reclusion perpetua or life imprisonment, a hearing must be conducted by the trial judge before bail can be granted to the accused. Absent such hearing, the order granting bail is void for having been issued with grave abuse of discretion. In parricide, the accused cannot be considered an offended party just because he was married to the deceased. In the interest of justice and in view of the peculiar circumstances of this case, the sister of the victim may be deemed to be an "offended party"; hence, she has the legal personality to challenge the void order of the trial court. The Case We invoke the foregoing principles in rejecting the Petition for Review on Certiorari before us, assailing the February 26, 1998 Decision 1 and the June 29, 1998 Resolution of the Court of Appeals (CA), 2 which reversed and set aside the Order of Executive Judge Pedro T. Santiago of the Regional Trial Court (RTC) of Quezon City, Branch 101, in Criminal Case No. Q-91-24179 entitled "People of the Philippines v. Joselito V. Narciso." The dispositive portion of the challenged CA Decision reads: WHEREFORE, the petition for certiorari is hereby GRANTED and the order granting bail is annulled and set aside. 3 The assailed Resolution, on the other hand, denied petitioner's Motion for Reconsideration. The full text of the August 3, 1992 RTC Order, which the Court of Appeals annulled and set aside, reads as follows: Accused who is present filed thru counsel a Motion to Allow Accused Joselito V. Narciso to Post Bail. Considering that the Presiding Judge of Branch 83 who is hearing this case is on leave and the Pairing Judge Honorable Salvador Ceguerra is no longer within the premises, there being no objection by the City Prosecutor Candido Rivera to the accused posting a cashbond of P150,000.00, the undersigned in his capacity as Executive Judge hereby approves the same. 4

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The Facts of the Case The undisputed antecedents of the case were summarized by the Court of Appeals as follows: 1) After conducting a preliminary investigation on the death of Corazon Sta. Romana-Narciso, wife of Joselito Narciso, Asst. City Prosecutor Myrna Dimaranan Vidal of Quezon City recommended and thereafter filed, the information for parricide against Joselito Narciso on November 13, 1991, with the Regional Trial Court of Quezon City, docketed therein as Criminal Case No. Q-91-24179. 2) Joselito Narciso thereafter asked for a review of the prosecutor's resolution [before] the Department of Justice (DOJ) which was however denied. Joselito Narciso moved for reconsideration, which was still denied by the DOJ. 3) Failing before DOJ, the accused on February 6, 1992, filed in Criminal Case No. Q-91-24179 an "Omnibus Motion for Reinvestigation and to Lift the Warrant of Arrest". The Motion was granted and the case was set for reinvestigation by another prosecutor. 4) Assistant Prosecutor Lydia A. Navarro, to whom the case was assigned for reinvestigation, found no reason to disturb the findings of the previous prosecutor and recommended the remand of the case to the court for arraignment and trial. 5) On August 3, 1992, accused filed an "Urgent Ex-Parte (Ex Abundanti Cautela) to Allow Accused Joselito Narciso to Post Bail". The Public Prosecutor registered no objection and said motion was granted on the same day, allowing accused to post bail at P150,000.00. 6) On August 14, 1992, the private prosecutor representing private complainant Flor Marie Sta. Romana-Cruz, a sister of accused's deceased wife, filed an "Urgent Motion to Lift Order Allowing Accused To Post Bail". 7) Accused objected to the aforesaid urgent motion by filing a "Motion to Expunge 1) Notice of Appearance of the Private Prosecutor and the 2) Urgent Motion to Lift Order Allowing Accused to Post Bail". 8) Arraignment was conducted on September 14, 1992 and the case was set for hearing on November 9, 16, 23, December 2, 9, 1992, January 6, 13, 20, 27, 1993, February 3, 7, 10 and 24 1993. 9) On October 15, 1992, private complainant through counsel filed her opposition to the motion to expunge [filed by] accused.

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10). On November 3, 1992 private complainant moved for the postponement of the trials set on November 9, 16 and 23 and the subsequent hearings thereon pending the resolution of their "Urgent Motion to Lift Order Allowing Accused To Post Bail". 11) On November 9, 1992, the court issued the first assailed order stating therein to wit: ORDER Counsel for the accused, upon being informed of the motion for postponement dated November 3, 1992 filed by the private complainant, through counsel, offered no objection to the cancellation of today's trial but not the trial set on November 16, 23 and December 2 and 9, 1992 for the reason that the trial can proceed independently of the pending "Urgent Motion to Lift Order Allowing the Accused to Post Bail". WHEREFORE, the trial set for today is hereby cancelled and re-set on November 16, 1992 at 10:30 o'clock in the morning, as previously scheduled. SO ORDERED. 12) On November 16, 1992, the court cancelled the hearing upon motion of the public prosecutor because no prosecution witness was available. 13) [I]n the hearing of November 23, 1992, the private prosecutor again moved for postponement because of the pendency of his "Motion to Lift Order Allowing Accused to Post Bail". On the same date, the court issued the second assailed order which reads: ORDER On motion of the Asst. City Prosecutor, for the reason that there is no showing in the record that the private complainant was duly notified, hence, there is no available witness this morning, the trial set for today is hereby cancelled and reset on December 2 and 9, 1992 both at 10:30 o'clock in the morning, as previously scheduled. Let a subpoena be issued to complainant Corazon [sic] Sta. Romana-Narciso, the same to be served personally by the Deputy Sheriff/Process server of this Court. The accused is notified of this Order in open court.

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SO ORDERED. Not obtaining any resolution on her "Motion To Lift Order Allowing Accused to Post Bail", private complainant filed this petition [before the CA]. As earlier mentioned, the Court of Appeals granted private respondent's Petition for Certiorari. Hence, this recourse to us via Rule 45 of the Rules of Court. 5 The Issues Petitioner imputes to the Court of Appeals this alleged error: The Respondent Court of Appeals has erroneously decided questions of substance, in a manner not in accord with law, the Rules of Court and applicable jurisprudence, as exemplified in the decisions of this Honorable Court, when it reversed and set aside the order of the Regional Trial Court of Quezon City which granted the petitioner his constitutional right to bail, considering the absence of strong evidence or proof of his guilt, and more especially when the public prosecutors, who have direct control of the proceedings and after assessment of the evidence, have themselves recommended the grant of bail. 6 Respondent, on the other hand, poses the following issues: 7 A Whether or not the Respondent Court of Appeals correctly ruled that the Order of the Regional Trial Court which granted bail to the petitioner is substantially and procedurally infirm notwithstanding the absence of any opposition from the public prosecutor. B Whether or not the private respondent has the legal personality to intervene in the present criminal case. To resolve this case, the Court believes that two issues must be taken up; namely, (1) the validity of the grant of bail and (2) private respondent's standing to file the Petition before the CA. The Court's Ruling The Petition is devoid of merit.

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First Issue: Validity of the Grant of Bail Sec. 13, Article III of the Constitution, provides: "All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required." Furthermore, Section 7, Article 114 of the Rules of Court, as amended, also provides: "No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution." Although petitioner was charged with parricide which is punishable with reclusion perpetua, he argued before the CA that he was entitled to bail because the evidence of his guilt was not strong. He contended that the prosecutor's conformity to his Motion for Bail was tantamount to a finding that the prosecution evidence against him was not strong. The Court of Appeals ruled, however, that there was no basis for such finding, since no hearing had been conducted on the application for bail — summary or otherwise. The appellate court found that only ten minutes had elapsed between the filing of the Motion by the accused and the Order granting bail, a lapse of time that could not be deemed sufficient for the trial court to receive and evaluate any evidence. We agree with the CA. Stressing in Basco v. Rapatalo 8 that the judge had the duty to determine whether the evidence of guilt was strong, the Court held: When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. "This discretion by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross examination and to introduce his own evidence in rebuttal." Consequently, in the application for bail of a person charged with a capital offense punishable by death, reclusion perpetua or life imprisonment, a hearing, whether summary or otherwise in the discretion of the court, must actually be conducted to determine whether or not the

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evidence of guilt against the accused is strong. "A summary hearing means such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross examination." If a party is denied the opportunity to be heard, there would be a violation of procedural due process. (Emphasis supplied.) Jurisprudence is replete with decisions compelling judges to conduct the required hearings in bail applications, in which the accused stands charged with a capital offense. The absence of objection from the prosecution is never a basis for the grant of bail in such cases, for the judge has no right to presume that the prosecutor knows what he is doing on account of familiarity with the case. "Said reasoning is tantamount to ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt of the accused is strong. Judicial discretion is the domain of the judge before whom the petition for provisional liberty will be decided. The mandated duty to exercise discretion has never been reposed upon the prosecutor. 9 Imposed in Baylon v. Sison 10 was this mandatory duty to conduct a hearing despite the prosecution's refusal to adduce evidence in opposition to the application to grant and fix bail. We quote below the pertinent portion of the Decision therein: The importance of a hearing has been emphasized in not a few cases wherein the Court ruled that even if the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it, against the accused. In Gimeno v. Arcueno Sr., 11 the Court also held: The grant of bail is a matter of right except in cases involving capital offenses when the matter is left to the sound discretion of the court. That discretion lies, not in the determination whether or not a hearing should be held but in the appreciation and evaluation of the prosecution's evidence of guilt against the accused. . . . A hearing is plainly indispensable before a judge can aptly be said to be in a position to determine whether the evidence for the prosecution is weak or strong.

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And in Concerned Citizens v. Elma, 12 the Court ruled: It is true that the weight of the evidence adduced is addressed to the sound discretion of the court. However, such discretion may only be exercised after the hearing called to ascertain the degree of guilt of the accused for the purpose of determining whether or not he should be granted liberty. Basco v. Rapatalo 13 summarized several cases 14 that emphasized the mandatory character of a hearing in a petition for bail in a capital case. It enunciated the following duties of the trial judge in such petition. (1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court as amended; (2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Sections 7 and 8, supra); (3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution (Baylon v. Sison, supra); (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. (Section 19, supra). Otherwise, petition should be denied. The Court added: "The above-enumerated procedure should now leave no room for doubt as to the duties of the trial judge in cases of bail applications. So basic and fundamental is it to conduct a hearing in connection with the grant of bail in the proper cases that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or awareness thereof." Additionally, the court's grant or refuse of bail must contain a summary of the evidence for the prosecution, on the basis of which should be formulated the judge's own conclusion on whether such evidence is strong enough to indicate the guilt of the accused. The summary thereof is considered an aspect of procedural due process for both the prosecution and the defense; its absence will invalidate the grant or the denial of the application for bail. 15 Clearly, the grant of bail by Executive Judge Santiago was laced with grave abuse of discretion and the Court of Appeals was correct in reversing him. Second Issue:

29

Respondent's Standing to File the Petition Petitioner attacks respondent's legal standing to file the Petition for Certiorari before the appellate court, maintaining that only the public prosecutor or the solicitor general may challenge the assailed Order. He invokes People v.Dacudao 16 which ruled: . . . A private prosecutor in a criminal case has no authority to act for the People of the Philippines before this Court. It is the Government's counsel, the Solicitor General who appears in criminal cases or incidents before the Supreme Court. At the very least, the Provincial Fiscal himself, with the conformity of the Solicitor General, should have raised the issue (of whether or not the prosecution was deprived of procedural due process on account of the grant of bail to the accused without any hearing on the motion for bail) before us, instead of the private prosecutor with the conformity of the Assistant Provincial Fiscal of Cebu. He also cites Republic v. Partisala 17 which held as follows: We make it known that only the Solicitor General can bring or defend actions on behalf of the Republic of the Philippines. Henceforth actions filed in the name of the Republic of the Philippines if not initiated by the Solicitor General will be summarily dismissed. Citing the "ends of substantial justice," People v. Calo, 18 however, provided an exception to the above doctrines in this manner: While the rule is, as held by the Court of Appeals, only the Solicitor General may bring or defend actions on behalf of the Republic of the Philippines, or represent the People or the State in criminal proceedings pending in this Court and the Court of Appeals (Republic vs. Partisala, 118 SCRA 320 [1982]), the ends of substantial justice would be better served, and the issues in this action could be determined in a more just, speedy and inexpensive manner, by entertaining the petition at bar. As an offended party in a criminal case, private petitioner has sufficient personality and a valid grievance against Judge Adao's order granting bail to the alleged murderers of his (private petitioner's) father. In Paredes vs. Gopengco, 29 SCRA 688 (1969), this Court ruled that the offended parties in criminal cases have sufficient interest and personality as "person(s) aggrieved" to file the special civil action of prohibition and certiorari under Sections 1 and 2 of Rule 65 in line with the underlying spirit of the liberal construction of the Rules of Court in order to promote their object, thus: Furthermore, as offended parties in the pending criminal case before petitioner judge, it cannot be gainsaid that respondents

30

have sufficient interest and personality as "person(s) aggrieved" by petitioner judge's ruling on his non-disqualification to file the special civil action under sections 1 and 2 of Rule 65. Recently, in line with the underlying spirit of a liberal construction of the Rules of Court in order to promote their object, as against the literal interpretation of Rule 110, section 2, we held, overruling the implication of an earlier case, that a widow possesses the right as an offended party to file a criminal complaint for the murder of her deceased husband. (Id., p. 699) The ends of substantial justice indeed require the affirmation of the appellate court's ruling on this point. Clearly, the assailed Order of Judge Santiago was issued in grave abuse of discretion amounting to lack of jurisdiction. A void order is no order at all. 19 It cannot confer any right or be the source of any relief. This Court is not merely a court of law; it is likewise a court of justice. To rule otherwise would leave the private respondent without any recourse to rectify the public injustice brought about by the trial court's Order, leaving her with only the standing to file administrative charges for ignorance of the law against the judge and the prosecutor. A party cannot be left without recourse to address a substantive issue in law. Moreover, we agree with the Office of the Solicitor General that "it is too late in the day for the petitioner to challenge the legal personality of private respondent considering that it was never disputed by [him] during the preliminary investigation of the case, in his appeal to the Department of Justice and during the reinvestigation of the case." 20 Corollary to the question of standing, petitioner submits that even if the exception were made to apply, private respondent is not an "offended party" who is granted the right to challenge the assailed RTC Order. He maintains that only the compulsory heirs of the deceased, who are the accused himself and his minor child, may file the instant action. We disagree. It should be remembered that the crime charged against the private respondent is parricide; hence, the accused cannot be regarded as an offended party. That would be a contradiction in terms and an absurdity in fact. Nor can one expect the minor child to think and to act for himself. Hence, we rule that in view of the peculiar circumstances of this case, the sister of the deceased is a proper partylitigant who is akin to the "offended party," she being a closer relative of the deceased. There is no closer kin who may be expected to take up the cudgels of justice for the deceased. WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against petitioner. SO ORDERED.

31

G.R. Nos. 99289-90 January 27, 1993 MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. CONRADO M. VASQUEZ, Ombudsman; GUALBERTO J. DE LA LLANA, Special Prosecutor; SANDIGANBAYAN and REGIONAL TRIAL COURT OF MANILA, respondents. REGALADO, J.: Filed directly with the Court, ostensibly as an incident in the present special civil action, is petitioner's so-called "Motion to Restrain the Sandiganbayan from Enforcing its Hold Departure Order with Prayer for the Issuance of a Temporary Restraining Order and/or Preliminary Injunction, with Motion to Set Pending Incident for Hearing." Despite the impropriety of the mode adopted in elevating the issue to us, as will hereinafter be discussed, we will disregard the procedural gaffe in the interest of an early resolution hereof. The chronology of events preceding the instant motion is best summarized to readily provide a clear understanding and perspective of our disposition of this matter, thus: 1. On May 13, 1991, an information dated May 9, 1991 and docketed as Criminal Case No. 16698 was filed against petitioner with the Sandiganbayan for alleged violation of Section 3(e), Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. 2. On May 14, 1991, an order of arrest was issued in said case against herein petitioner by Presiding Justice Francis E. Garchitorena of the Sandiganbayan, with bail for the release of the accused fixed at P15,000.00. 1 3. On even date, petitioner filed an "Urgent Ex-parte Motion for Acceptance of Cash Bail Bond for and in Behalf of Dr. Miriam Defensor-Santiago," 2 which pertinently states in part: 3. As a result of the vehicular collision, she suffered extensive physical injuries which required surgical intervention. As of this time, her injuries, specifically in the jaw or gum area of the mouth, prevents her to speak (sic) because of extreme pain. Further, she cannot for an extended period be on her feet because she is still in physical pain. . . . . 4. On the other hand, the accused Miriam Defensor Santiago seeks leave of this Honorable Court that she be considered as having placed herself under the jurisdiction of this Honorable Court, for purposes of the required trial and other proceedings and further seeks leave of this Honorable Court that the recommended bail bond of P15,000.00 that she is posting in cash be accepted.

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WHEREFORE, it is respectfully prayed of this Honorable Court that the bail bond she is posting in the amount of P15,000.00 be duly accepted, and that by this motion, she be considered as having placed herself under the custody of this Honorable Court and dispensing of her personal appearance for now until such time she will (sic) have recovered sufficiently from her recent near fatal accident. Further, on the above basis, it is also respectfully prayed that the warrant for her arrest be immediately recalled. 4. Also on the same day, the Sandiganbayan issued a resolution 3 authorizing petitioner to post a cash bond for her provisional liberty without need for her physical appearance until June 5, 1991 at the latest, unless by that time her condition does not yet permit her physical appearance before said court. On May 15, 1991, petitioner filed a cash bond in the amount of P15,000.00, aside from the other legal fees.4 5. On May 21, 1991, respondent Ombudsman Conrado M. Vasquez filed with the Sandiganbayan a manifestation "that accused Miriam Defensor-Santiago appeared in his office in the second floor of the Old NAWASA Building located in Arroceros Street, Ermita, Manila at around 3:30 o'clock in the afternoon of May 20, 1991. She was accompanied by a brother who represented himself to be Atty. Arthur Defensor and a lady who is said to be a physician. She came and left unaided, after staying for about fifteen minutes. 5 6. Acting on said manifestation, the Sandiganbayan issued a resolution also on May 21, 1991, setting the arraignment of the accused for May 27, 1991, and setting aside the court's resolution of May 14, 1991 which ordered her appearance before the deputy clerk of the First Division of said court on or before June 5, 1991.6 7. In a motion dated May 22, 1991, petitioner asked that her cash bond be cancelled and that she be allowed provisional liberty upon a recognizance. She contended that for her to continue remaining under bail bond may imply to other people that she has intentions of fleeing, an intention she would like to prove as baseless.7 8. Likewise on May 24, 1991, petitioner filed with this Court a petition for certiorari and prohibition with preliminary injunction, and a subsequent addendum thereto, seeking to enjoin the Sandiganbayan and the Regional Trial Court of Manila from proceeding with Criminal Cases Nos. 12298 (for violation of Section 3[e] of Republic Act No. 3019), 91-94555 (violation of Presidential Decree No. 46), and 91-94897 (for libel), respectively. Consequently, a temporary restraining order was issued by this Court on May 24, 1991, enjoining the Sandiganbayan and the Regional Trial Court of Manila, Branch 3, from proceeding with the criminal cases pending before them. This Court, in issuing said order, took into consideration the fact that according to petitioner, her arraignment, originally set for June 5, 1991, was inexplicably advanced to May 27, 1991, hence the

33

advisability of conserving and affording her the opportunity to avail herself of any remedial right to meet said contingency. 9. On May 27, 1991, the Sandiganbayan issued an order deferring: (a) the arraignment of petitioner until further advice from the Supreme Court; and (b) the consideration of herein petitioner's motion to cancel her cash bond until further initiative from her through counsel.8 10. On January 18, 1992, this Court rendered a decision dismissing the petition for certiorari and lifting and setting aside the temporary restraining order previously issued. 9 The motion for reconsideration filed by petitioner was eventually denied with finality in this Court's resolution dated September 10, 1992. 11. Meanwhile, in a resolution adopted on July 6, 1992, the Sandiganbayan issued a hold departure order against petitioner which reads as follows: Considering the information in media to the effect that accused Santiago intends to leave the country soon for an extended stay abroad for study purposes, considering the recent decision of the Supreme Court dismissing her petition promulgated on January 13, 1992, although the same is still subject of a Motion for Reconsideration from the accused, considering that the accused has not yet been arraigned, nor that she has not (sic) even posted bail the same having been by reason of her earlier claim of being seriously indisposed, all of which were overtaken by a restraining order issued by the Supreme Court in G.R. No. 99289 and No. 99290 dated May 24, 1991, the accused is ordered not to leave the country and the Commission on Immigration and Deportation is ordered not to allow the departure of the accused unless authorized from (sic) this Court.10 The hold departure order was issued by reason of the announcement made by petitioner, which was widely publicized in both print and broadcast media, that she would be leaving for the United States to accept a fellowship supposedly offered by the John F. Kennedy School of Government at Harvard University. Petitioner likewise disclosed that she would be addressing Filipino communities in the United States in line with her crusade against election fraud and other aspects of graft and corruption. In the instant motion submitted for our resolution, petitioner argues that: 1. The Sandiganbayan acted without or in excess of jurisdiction and with grave abuse of discretion in issuing the hold departure order considering that it had not acquired jurisdiction over the person of the petitioner. 2. The Sandiganbayan blatantly disregarded basic principles of judicial comity and due deference owing to a superior tribunal when it issued

34

the hold departure order despite the pendency of petitioner's motion for reconsideration with this Honorable Court. 3. The right to due process of law, the right to travel and the right to freedom of speech are preferred, pre-eminent rights enshrined not only in the Constitution but also in the Universal Declaration of Human Rights which can be validly impaired only under stringent criteria which do not obtain in the instant case. 4. The hold departure order in the instant case was issued under disturbing circumstances which suggest political harassment and persecution. 5. On the basis of petitioner's creditable career in the bench and bar and her characteristic transparency and candor, there is no reasonable ground to fear that petitioner will surreptitiously flee the country to evade judicial processes.11 I. Petitioner initially postulates that respondent court never acquired jurisdiction over her person considering that she has neither been arrested nor has she voluntarily surrendered, aside from the fact that she has not validly posted bail since she never personally appeared before said court. We reject her thesis for being factually and legally untenable. It has been held that where after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the court or was duly arrested, the court thereby acquires jurisdiction over the person of the accused.12 The voluntary appearance of the accused, whereby the court acquires jurisdiction over his person, is accomplished either by his pleading to the merits (such as by filing a motion to quash or other pleadings requiring the exercise of the court's jurisdiction thereover, appearing for arraignment, entering trial) or by filing bail. On the matter of bail, since the same is intended to obtain the provisional liberty of the accused, as a rule the same cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender. 13 In the case at bar, it becomes essential, therefore, to determine whether respondent court acquired jurisdiction over the person of herein petitioner and, correlatively, whether there was a valid posting of bail bond. We find and so hold that petitioner is deemed to have voluntarily submitted herself to the jurisdiction of respondent court upon the filing of her aforequoted "Urgent Ex-parte Motion for Acceptance of Cash Bail Bond for and in behalf of Dr. Miriam Defensor-Santiago" wherein she expressly sought leave "that she be considered as having placed herself under the jurisdiction of (the Sandiganbayan) for purposes of the required trial and other proceedings," and categorically prayed "that the bail bond she is posting in the amount of P15,000.00 be duly

35

accepted" and that by said motion "she be considered as having placed herself under the custody" of said court. Petitioner cannot now be heard to claim otherwise for, by her own representations, she is effectively estopped from asserting the contrary after she had earlier recognized the jurisdiction of the court and caused it to exercise that jurisdiction over the aforestated pleadings she filed therein. It cannot be denied that petitioner has posted a cash bail bond of P15,000.00 for her provisional release as evidenced by Official Receipt No. 4292925 dated May 15, 1991 and which is even attached as Annex C-2 to her own motion now under consideration. This is further buttressed by the fact that petitioner thereafter also filed a motion for the cancellation of said cash bond and for the court to allow her provisional liberty upon the security of a recognizance. With the filing of the foregoing motions, petitioner should accordingly and necessarily admit her acquiescence to and acknowledgment of the propriety of the cash bond she posted, instead of adopting a stance which ignores the injunction for candor and sincerity in dealing with the courts of justice. Petitioner would also like to make capital of the fact that she did not personally appear before respondent court to file her cash bond, thereby rendering the same ineffectual. Suffice it to say that in this case, it was petitioner herself, in her motion for the acceptance of the cash bond, who requested respondent court to dispense with her personal appearance until she shall have recovered sufficiently from her vehicular accident. It is distressing that petitioner should now turn around and fault respondent court for taking a compassionate stand on the matter and accommodating her own request for acceptance of the cash bond posted in her absence. II. Petitioner argues that the Sandiganbayan disregarded the rule of judicial comity when it issued the hold departure order despite the pendency of her motion for reconsideration of the decision of this Court which dismissed her petition. She claims that if the principle of judicial comity applies to prevent a court from interfering with the proceedings undertaken by a coordinate court, with more reason should it operate to prevent an inferior court, such as the Sandiganbayan, from interfering with the instant case where a motion for reconsideration was still pending before this Court. She contends further that the hold departure order contravenes the temporary restraining order previously issued by this court enjoining the Sandiganbayan from proceeding with the criminal case pending before it. It will be remembered that the Court rendered a decision in the present case on January 18, 1992 dismissing the petition for certiorari filed in this case and lifting and setting aside the temporary restraining order it previously issued. It is petitioner's submission that the filing of her motion for reconsideration stayed the lifting of the temporary restraining order, hence respondent court continued to be enjoined from acting on and proceeding with the case during the pendency of the motion for reconsideration. We likewise reject this contention which is bereft of merit.

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Section 4, Rule 39 of the Rules of Court provides that, unless otherwise ordered by the court, a judgment in an action for injunction shall not be stayed after its rendition and before an appeal is taken or during the pendency of an appeal. And, the rule is that the execution of a judgment decreeing the dissolution of a writ of preliminary injunction shall not be stayed before an appeal is taken or during the pendency of an appeal,14 and we see no reason why the foregoing considerations should not apply to a temporary restraining order. The rationale therefor is that even in cases where an appeal is taken from a judgment dismissing an action on the merits, the appeal does not suspend the judgment, hence the general rule applies that a temporary injunction terminates automatically on the dismissal of the action.15 It has similarly been held that an order of dissolution of an injunction may be immediately effective, even though it is not final.16 A dismissal, discontinuance, or non-suit of an action in which a restraining order or temporary injunction has been granted operates as a dissolution of the restraining order or temporary injunction17 and no formal order of dissolution is necessary to effect such dissolution.18 Consequently, a special order of the court is necessary for the reinstatement of an injunction.19 There must be a new exercise of .judicial power.20 The reason advanced in support of the general rule has long since been duly explained, to wit: . . . The court of this State, relying upon the last of the two clauses quoted, held that an appeal from an order dissolving an injunction continued the injunction in force. The evils which would result from such a holding are forcibly pointed out by Judge Mitchell in a dissenting opinion. He said: "Although a plaintiff's papers are so insufficient on their face or so false in their allegations that if he should apply on notice for an injunction, any court would, on a hearing, promptly refuse to grant one, yet, if he can find anywhere in the State a judge or court commissioner who will improvidently grant one ex parte, which the court on the first and only hearing ever had dissolves, he can, by appealing and filing a bond, make the ex parte injunction impervious to all judicial interference until the appeal is determined in this court." . . . Such a result is so unjust and so utterly inconsistent with all known rules of equity practice that no court should adopt such a construction unless absolutely shut up to it by the clear and unequivocal language of the statute. . . . .21 This ruling has remained undisturbed over the decades and was reiterated in a case squarely in point and of more recent vintage: The SEC's orders dated June 27, 1989 and July 21, 1989 (directing the secretary of UDMC to call a stockholders' meeting, etc.) are not premature, despite the petitioners then pending motion for reconsideration of the decision of the Court of Appeals. The lifting by the Court of Appeals of its writ of preliminary injunction in C.A.-G.R. SP No.

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17435 cleared the way for the implementation by the SEC's en banc resolution in SEC EB Case No. 191. The SEC need not wait for the Court of Appeals to resolve the petitioner's motion for reconsideration for a judgment decreeing the dissolution of a preliminary injunction is immediately executory. It shall not be stayed after its rendition and before an appeal is taken or during the pendency of an appeal. . . . .22 On the bases of the foregoing pronouncements, there is no question that with the dismissal of the petition for certiorari and the lifting of the restraining order, nothing stood to hinder the Sandiganbayan from acting on and proceeding with the criminal cases filed against herein petitioner. At any rate, as we have earlier mentioned, the motion for reconsideration filed by petitioner was denied with finality in our resolution dated September 10, 1992. Petitioner further posits, however, that the filing of the instant special civil action for certiorari divested the Sandiganbayan of its jurisdiction over the case therein. Whether generated by misconception or design, we shall address this proposition which, in the first place, had no reason for being and should not hereafter be advanced under like or similar procedural scenarios. The original and special civil action filed with this Court is, for all intents and purposes, an invocation for the exercise of its supervisory powers over the lower courts. It does not have the effect of divesting the inferior courts of jurisdiction validly acquired over the case pending before them. It is elementary that the mere pendency of a special civil action for certiorari, commenced in relation to a case pending before a lower court, does not even interrupt the course of the latter when there is no writ of injunction restraining it.23 The inevitable conclusion is that for as long as no writ of injunction or restraining order is issued in the special civil action for certiorari, no impediment exists and there is nothing to prevent the lower court from exercising its jurisdiction and proceeding with the case pending before it. And, even if such injunctive writ or order is issued, the lower court nevertheless continues to retain its jurisdiction over the principal action. III. It is further submitted by petitioner that the hold departure order violates her right to due process, right to travel and freedom of speech. First, it is averred that the hold departure order was issued without notice and hearing. Much is made by petitioner of the fact that there was no showing that a motion to issue a hold departure order was filed by the prosecution and, instead, the same was issued ex mero motu by the Sandiganbayan. Petitioner is in error. Courts possess certain inherent powers which may be said to be implied from a general grant of jurisdiction, in addition to those expressly conferred on them.24 These inherent powers are such powers as are necessary for the ordinary and efficient exercise of jurisdiction;25 or essential to the existence, dignity and functions of the courts,26 as well as to the due administration of justice;27 or are directly appropriate, convenient and suitable to the execution of their granted

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powers;28 and include the power to maintain the court's jurisdiction and render it effective in behalf of the litigants.29 Therefore, while a court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional provisions, every regularly constituted court has the power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction. Hence, demands, matters, or questions ancillary or incidental to, or growing out of, the main action, and coming within the above principles, may be taken cognizance of by the court and determined, since such jurisdiction is in aid of its authority over the principal matter, even though the court may thus be called on to consider and decide matters which, as original causes of action, would not be within its cognizance. Furthermore, a court has the inherent power to make interlocutory orders necessary to protect its jurisdiction.30 Such being the case, with more reason may a party litigant be subjected to proper coercive measures where he disobeys a proper order, or commits a fraud on the court or the opposing party, the result of which is that the jurisdiction of the court would be ineffectual. What ought to be done depends upon the particular circumstances. 31 Turning now to the case at bar, petitioner does not deny and, as a matter of fact, even made a public statement that she had every intention of leaving the country allegedly to pursue higher studies abroad. We uphold the course of action adopted by the Sandiganbayan in taking judicial notice of such fact of petitioner's plan to go abroad and in thereafter issuing sua sponte the hold departure order, in justified consonance with our preceding disquisition. To reiterate, the hold departure order is but an exercise of respondent court's inherent power to preserve and to maintain the effectiveness of its jurisdiction over the case and the person of the accused. Second, petitioner asseverates that considering that she is leaving for abroad to pursue further studies, there is no sufficient justification for the impairment of her constitutional right to travel; and that under Section 6, Article III of the 1987 Constitution, the right to travel may be impaired only when so required in the interest of national security, public safety or public health, as may be provided by law. It will be recalled that petitioner has posted bail which we have declared legally valid and complete despite the absence of petitioner at the time of filing thereof, by reason of the peculiar circumstances and grounds hereinbefore enunciated and which warrant a relaxation of the aforecited doctrine in Feliciano. Perforce, since under the obligations assumed by petitioner in her bail bond she holds herself amenable at all times to the orders and processes of the court, she may legally be prohibited from leaving the country during the pendency of the case. This was the

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ruling we handed down in Manotoc, Jr. vs. Court of Appeals, et al.,32 to the effect that: A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond. Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of a person who is in custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance. Its object is to relieve the accused of imprisonment and the state of the burden of keeping him, pending the trial, and at the same time, to put the accused as much under the power of the court as if he were in custody of the proper officer, and to secure the appearance of the accused so as to answer the call of the court and do what the law may require of him. The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel. As we have held in People vs. Uy Tuising, 61 Phil. 404 (1935): . . . the result of the obligation assumed by appellee (surety) to hold the accused amenable at all times to the orders and processes of the lower court, was to prohibit said accused from leaving the jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of the Philippines they would have no binding force outside of said jurisdiction. Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond the reach of the courts. This was reiterated in a more recent case where we held: Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel only on the grounds of "national security, public safety, or public health." The submission is not well taken. Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without

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Court Order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law," a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin, G., S.J., Vol. I, First Edition, 197, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party (See Salonga v. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121). Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such Court or officer (Rule 135, Section 6, Rules of Court). . . . Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to Court Orders and processes.33 One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated bylaw to be sought therein. This practice must be stopped, not only because of the imposition upon the precious time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction. For the guidance of the bench and the bar, we elucidate that such policy includes the matter of petitions or motions involving hold departure orders of the trial or lower courts. Parties with pending cases therein should apply for permission

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to leave the country from the very same courts which, in the first instance, are in the best position to pass upon such applications and to impose the appropriate conditions therefor since they are conversant with the facts of the cases and the ramifications or implications thereof. Where, as in the present case, a hold departure order has been issued ex parte or motu propio by said court, the party concerned must first exhaust the appropriate remedies therein, through a motion for reconsideration or other proper submissions, or by the filing of the requisite application for travel abroad. Only where all the conditions and requirements for the issuance of the extraordinary writs of certiorari, prohibition or mandamus indubitably obtain against a disposition of the lower courts may our power of supervision over said tribunals be invoked through the appropriate petition assailing on jurisdictional or clearly valid grounds their actuations therein. WHEREFORE, with respect to and acting on the motion now before us for resolution, the same is hereby DENIED for lack of merit. SO ORDERED.

PRESUMPTION OF INNOCENCE G.R. No. 132926

July 20, 2001

ELVIRA AGULLO, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. BUENA, J.: Charged with, tried and convicted in Criminal Case No. 13579 for malversation of public funds, herein petitioner Elvira Agullo, erstwhile Disbursing Officer of the then Ministry of Public Works and Highways (MPWH), Regional Office No. VIII, Candahug, Palo, Leyte, now comes before the High Court to assail the Decision1 of the Sandiganbayan promulgated on 16 March 1992, and its Resolution dated 11 March 1998, denying petitioner’s motion for reconsideration2 but reducing the penalty imposed on petitioner as follows: "WHEREFORE, the Court finds the accused Elvira S. Agullo guilty beyond reasonable doubt of the crime of Malversation of Public Funds, defined and penalized under Article 217, paragraph 4 of the Revised Penal Code. [There being neither mitigating nor aggravating circumstances, no evidence having been adduced respecting partial or full restitution of the amount malversed,] Considering the absence of any aggravating circumstances and her full restitution by salary deduction, the accused Elvira S. Agullo should be, as she is, hereby sentenced to the indeterminate penalty of, from TEN (10) YEARS and ONE (1) DAY of PRISION MAYOR, as

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MINIMUM; to [EIGHTEEN (18) YEARS, EIGHT (8) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL] SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of RECLUSION TEMPORAL, AS MAXIMUM, with the accessory penalties of the law; to pay a fine in the sum of P26,404.26 without subsidiary imprisonment in case of insolvency; to suffer the penalty of Perpetual Special Disqualification and to pay the costs." (Emphasis ours) In an information3 dated 30 September 1988, herein petitioner was charged with the crime of malversation of public funds, committed as follows: "That on or about the period October 22, 1985 to July 14, 1986, inclusive or within said dates in the Municipality of Palo, Province of Leyte, Philippines, and within the jurisdiction of the Honorable Court, the above-named accused, being then the disbursing officer of then Ministry of Public Works and Highways, Regional Office No. VIII, Candahug, Palo, Leyte, charged with the official custody of public funds thus paid, collected and received by her in her official capacity, and by reason of which duties she is accountable thereof, taking advantage of her official position, did then and there wilfully, unlawfully and feloniously take, convert and misappropriate for her own personal use and benefit the public funds she had in her possession in the amount of Twenty Six Thousand Four Hundred Four Pesos and 26/100 (P26,404.26), belonging to the government of the Republic of the Philippines, to the damage and prejudice of the latter in the aforestated amount. "Contrary to law." Upon arraignment, herein petitioner Agullo, assisted by counsel de officio Antonio Manzano, pleaded not guilty4 to the charge, after which the Sandiganbayan conducted a pre-trial on 11 February 1990 and issued the following Pre-Trial Order:5 "When this case was called for pre-trial, the accused personally and through her counsel Atty. Antonio Manzano of the CLAO readily entered into stipulations insofar as her official position in government as well as the fact of audit of her accounts are concerned, including therewith the admission that, in all respects the Cash Production Notice and the Examination of her Cash and Accounts which the government marked as Exhibit ‘A’ was faithful reproduction of the original, and insofar as the contents thereof are concerned, are correct. The accused likewise admitted that she had received a letter of demand, said letter dated July 14, 1986 marked as exhibit ‘B’. With this the accused stated that her defense was premised on her having suffered a stroke on October 22, 1985 as a result of which the amount subject of the shortage found in her audit had been lost. "The accused also indicated that not only had she immediately replied to the letter by various communications by her or in her behalf protesting the withholding of various amounts due her by way of salaries on the premise

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that the loss of the amount subject matter of the Information was not chargeable to her as a personal liability. The accused has likewise informed the Court that prior to the incident on October 22, 1985, she had been audited on May 27, 1985 and, after the incident, on December 23, 1985 although she concedes she was also audited on July 14, 1986. "Considering that all the documents necessary for the defense of the accused are still to be organized, Atty. Manzano is given ten (10) days from today within which to prepare a proposal for stipulations of facts and, if that is not possible, at least a complete outline of his case together with the marking of the documents he wishes to present which the prosecution might not admit as to the substance thereof though the genuineness of the documents presented might be conceded. "With the above, the prosecution may now rest its case and the presentation of the evidence for the defense may take place on April 5 and 6, and May 17 and 18, 1990, at 8:00 o’ clock in the morning and 2:00 o’ clock in the afternoon. "The setting for tomorrow is cancelled. "SO ORDERED." (Emphasis ours) As borne by the records, the charge of malversation against petitioner germinated from an audit conducted on 14 July 1986 by Ignacio Gerez, Auditing Examiner III, as a result of which a P26,404.26 cash shortage was discovered on petitioner’s accountability. On the same date, Gerez informed petitioner of said finding of cash shortage and required the latter, through a letter of demand,6 to "produce immediately the missing funds." Further, petitioner was required to submit within 72 hours from receipt a written explanation of the cash shortage. In a letter7 dated 25 August 1986, addressed to the Resident Auditor of the MPWH, petitioner complied with the directive by explaining that the cash shortage was, in effect, due to a "fortuitous event" where the amount could have been stolen/taken by somebody on the day she suffered a stroke on 22 October 1985, near the corner of Juan Luna Street and Imelda Avenue, Tacloban City. In the course of the pre-trial, petitioner Agullo conceded the fact of audit and admitted8 the findings in the Report of Cash Examination and the facts set forth in the Letter of Demand. In effect, she admitted the fact of shortage in the amount stated in the Information. Notwithstanding, petitioner Agullo, at all stages of the criminal indictment, persistently professed her innocence of the charge and categorically denied having malversed or converted the public funds in question for her own personal use or benefit.9 With petitioner’s admission of the fact of cash shortage, the prosecution then rested its case.10 For its part, the defense, in its bid to overturn the presumption of

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malversation and shatter the prima facie evidence of conversion, offered the testimony of the following witnesses: petitioner Elvira Agullo; Rene Briones Austero, Cashier III of the Department of Public Works and Highways (DPWH), Region VIII; and Engracia Camposano-Camaoy, Barangay Captain of Hinabuyan, Dagame, Leyte. During trial, the defense offered to present the testimony of witness Austero for the purpose of proving that an amount equal to P26,722.0511 was withheld from the salary and other compensation of petitioner Agullo. Further, the defense offered the testimony of witness Barangay Captain Camaoy for the purpose of establishing that "the accused suffered a heart attack (stroke) on October 22, 1985; that on June 30, 1986, the accused informed her that the accused lost the money for which she (was being) subjected to criminal prosecution x x x; and that between October 22, 1985 and June 30, 1986, there had been no demand upon the accused to produce the money for which she was declared short."12 Additionally, the defense presented the following documentary evidence,13 all of which were admitted by the Sandiganbayan: "Exhibit ‘1’ – Letter dated 25 August 1986 by accused to the Resident Auditor MPWH, Regional Office No. 8, Candahug, Palo, Leyte; "Exhibit ‘2’ – Letter dated 22 August 1987 by accused to Engr. Alfredo P. Torres, Regional Director; "Exhibit ‘3’ – Medical Certificate dated 05 August 1986, issued by Dr. Juan T. Abando, M.D., St. Paul’s Hospital, Tacloban City; "Exhibit ‘3-A’ – Verified Medical Certificate dated 19 January 1986, issued by Dr. Juan Abando, notarized on page 02; "Exhibit ‘4’ – Letter dated 26 December 1986 by accused to the Regional Director; "Exhibit ‘5’ – Letter dated 19 February 1987 to the Regional Director by Atty. Eric T. De Veyra; "Exhibit ‘6’ – Letter dated 15 April 1987 by accused to the Regional Director; "Exhibit ‘7’ – Letter dated 01 September 1987 of Director Alfredo Torres of DPWH to the Regional Director COA; "Exhibit ‘8’ – Letter of Accused dated 26 November 1987; "Exhibit ‘9’ – Affidavit of accused Elvira Agullo;

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"Exhibit ‘10’ – Affidavit of witness Engracia Camaoy; "Exhibit ‘11’ – Letter-Request dated 04 May 1988 of accused to the Regional Director; "Exhibit ‘12’ – Certification by Mauricio Pacatang; "Exhibit ‘13’ – Protest of accused against the appointment of Sylvia de la Rosa; "Exhibit ‘14’ – Letter dated 25 February 1987 to the Manager, Employees Compensation Department, GSIS, Metro Manila; "Exhibit ‘15’ – Initial Approval of the Employees Compensation Department, GSIS; "Exhibit ‘16’ – Hospitalization Claim for payment of accused; "Exhibit ‘17’ – Report of Injury signed and approved by Pablo P. Burgos, Regional Engineering Coordinator and Head of Office; "Exhibit ‘18’ – Certification issued by PNB Tacloban, thru its Asst. Manager B.L. Telmo; "Exhibit ‘19’ – Memorandum to accused dated 02 April 1984; "Exhibit ‘20’ – Memorandum dated 05 May 1990." At the witness stand, petitioner Agullo unrelentingly maintained her innocence and vehemently denied the accusation against her. Thus, according to petitioner, in the morning of 21 October 1985, she reported for work and prepared an inventory of her cash accountability14 as Disbursing Officer15 of the MPWH Regional Office, Candahug, Palo, Leyte. On the same day, petitioner received around thirteen (13) checks in the form of cash advances in her name totaling P26,076.87,16 which amount represented salaries of MPWH officials and employees. Around 1:30 PM, petitioner, together with Benjamin Veridiano, driver of MPWH Finance and Management Division, proceeded to the Philippine National Bank (PNB) Tacloban City Branch, on board the MPWH official vehicle, to encash the aforesaid checks. Upon encashment of the checks, petitioner then put the money inside a PNB envelope which she further placed in her bag. From the PNB, petitioner-- who boarded the official vehicle driven by Veridiano for the purpose of proceeding further to the MPWH Regional Office—felt dizziness, chest pain and nausea. As a result of her condition, petitioner Agullo requested driver Veridiano to drop her off at petitioner’s residence located at 109 Juan Luna Street-- about half a kilometer away from the PNB.17

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In the morning of the following day, 22 October 1985, petitioner – upon realizing that it was then the third-week payday of the month, and burdened with the thought that she failed to give the salary of the permanent employees – strove to report for work despite her weak physical condition. Petitioner Agullo testified that she left her residence alone and brought with her the bag containing the money which she encashed the previous day from the PNB.18 Upon leaving the house with the money inside her bag, she walked the stretch of Juan Luna Street and was able to reach almost the corner of Juan Luna and Imelda Avenue19 a distance of around 50 meters away from her residence20 when she was stricken with deep chest pain21 and experienced dizziness; her vision blurred and "the right part of (her) body (became) heavy" to the point that she "could not move anymore." At this point, she collapsed and lost consciousness.22 In the afternoon of the same day, she found herself in a hospital bed of St. Paul’s Hospital located about a block away from petitioner’s residence. Upon inquiry, she was informed that a certain Metro Tacloban Aide by the name of Teresa Lorenzo came to her rescue when she fainted, assisted in rushing her to the hospital, and informed her family about Agullo’s dire condition and the unfortunate event that befell her.23 Petitioner was confined in St. Paul’s Hospital for over a week – from 22 October 1985 to 01 November 198524 - under the care of her attending physician, Dr. Juan Abando, who issued the corresponding Medical Certificate pregnant with the following findings: "X X X Hypertension complicated with Cerebro Vascular Accident (CVA), Rt. Hemiparesis and Urinary Infection. "Condition started apparently 20 hrs. before admission as moderate headache and dizziness, associated with blurring of vision and nausea. Fifteen hrs. prior to admission, she felt weakness of her right half of her body and slurring of speech. Had history of high blood pressure taken last April 1985. B/P= 190/120. On admission B/P= was 230/120; PR= 83/min.; RR= 20/min. "Pertinent findings: conscious, coherent, slurred speech, rt. Hemiplegia. "Diagnosis: = Malignant hypertension. = CVA with Right Hemiplegia. = Urinary Tract Infection." As to petitioner’s medical history and physical condition after her stroke, the Sandiganbayan, in its decision, observed from the records:

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"X X X In the past, the accused had likewise suffered a stroke and had undergone medical treatment. A medical certificate, marked as Exhibits "3" and "3-A", attest(s) to the fact that she had a history of high blood pressure and had been undergoing treatment for the said malady. Since her sudden breakdown on October 22, 1985, the right part of her body became paralyzed and her speech has been impaired. She was advised by her doctor to undergo physical therapy and to take medicine regularly. She was advised not to report for work during such time that she was under recuperation. Only on February 2, 1986 did she start to report for work, although at irregular intervals, until the date of the audit, July 14, 1986." Striking down the defense as "incredible and without basis," the Sandiganbayan rendered its assailed decision, convicting petitioner Agullo of the crime of malversation of public funds, ratiocinating principally that "no evidence has been presented linking the loss of the government funds with the alleged sudden heart attack of the accused (herein petitioner)." We do not agree. By and large, the pieces of evidence presented against petitioner in this case do not fulfill the test of moral certainty and may not be deemed sufficient to support a conviction.25 Records reveal that evidence for the prosecution consisted solely of the Report of Cash Examination,26 dated 14 July 1986, which was presented by the prosecution to prove the cash shortage in the amount of P26,404.26, on petitioner Agullo’s accountability as Disbursing Officer of the then MPWH. Likewise, the prosecution presented the Letter of Demand27 dated 14 July 1986 signed by Auditing Examiner III Ignacio Gerez. Aside from the aforementioned documents, the prosecution opted not to present a single witness to buttress its bid for conviction and relied merely on the prima facie evidence of conversion or presumption of malversationunder Article 217, paragraph (4) of the Revised Penal Code, to wit: "ART. 217. Malversation of public funds or property—Presumption of malversation— X X X "The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses." Stated otherwise, the evidence for the prosecution, upon which the Sandiganbayan riveted its judgment of conviction, was limited to documents to wit, the Report of Cash Examination and Letter of Demand. As could be readily gleaned from the assailed decision, the verdict adjudging herein petitioner guilty of the crime of malversation was anchored solely on the presumption provided

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under Article 217, paragraph 4 of the Revised Penal Code, which prima facie evidence, in turn, was rooted loosely on the documentary evidence presented by the prosecution, to wit; the Report of Cash Examination and Letter of Demand—pieces of evidence which the defense concededly admitted, but which, to our mind, do not suffice to convict the petitioner beyond reasonable doubt of the crime charged. Thus, in a string of categorical pronouncements, this Court has consistently and emphatically ruled that the presumption of conversion incarnated in Article 217, paragraph (4) of the Revised Penal Code is — by its very nature — rebuttable. To put it differently, the presumption under the law is not conclusive but disputable by satisfactory evidence to the effect that the accused did not utilize the public funds or property for his personal use, gain or benefit. Accordingly, if the accused is able to present adequate evidence that can nullify any likelihood that he had put the funds or property to personal use, then that presumption would be at an end and the prima facie case is effectively negated. This Court has repeatedly said that when the absence of funds is not due to the personal use thereof by the accused, the presumption is completely destroyed; in fact, the presumption is never deemed to have existed at all.28 Applying the foregoing principle, the prosecution in the instant case upon whose burden, as in Diaz vs. Sandiganbayan,29 was laden the task of establishing by proof beyond reasonable doubt that petitioner had committed the offense charged, mainly relied on the statutory presumption aforesaid and failed to present any substantial piece of evidence to indicate that petitioner had used the funds for personal gain. Worth noting is that the Sandiganbayan, in its impugned decision, admitted that "conversion or the placing of malversed government funds to personal uses has, indeed, not been proven in the case at bar.30" Perhapsrealizing such gaping hole, the Sandiganbayan nonetheless leaped into the conclusion, albeit erroneous, that herein petitioner was just the same guilty of malversation invoking the prima facie evidence stated in Article 217, paragraph (4) of the Revised Penal Code. On this score, the rule of general application is that the factual findings of the Sandiganbayan are conclusive on this court. However, such rule admits of settled exceptions, among others: (1) the conclusion is a finding grounded entirely on speculation, surmise and conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on misapprehension of facts; and (5) the findings of fact of the Sandiganbayan are premised on a want of evidence and are contradicted by evidence on record.31 On this matter, the Sandiganbayan’s conclusion that "there is no evidence to show that the accused was then carrying the sum of P26,404.26 in her person when she allegedly collapsed at Juan Luna Street, Tacloban City," is to say the least, without factual basis and not duly supported by evidence. On the stark contrary, the

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records are extant, as petitioner Agullo, in fact, testified on the witness stand that she had the money with her when she suffered a stroke and collapsed on the streets of Tacloban City on 22 October 1985. Records likewise reveal that the amount of P327.39, which is the difference between P26,404.26 32 and P26,076.87,33 represents the salary of Mr. Alcober, Jr., Administrative Officer of the DPWH in Candahug, who made a telephone call to petitioner for the latter to bring the sum of P327.39, together with the payroll. In the case before us, the Sandiganbayan undoubtedly disregarded or overlooked certain evidence of substance which, to a large extent, bear considerable weight in the adjudication of petitioner’s guilt or the affirmation of her constitutional right to be presumed innocent until proven otherwise. Upon thorough scrutiny of the evidence adduced by both prosecution and defense, we hold that petitioner Agullo has satisfactorily overcome and rebutted by competent proof, the prima facie evidence of conversion so as to exonerate her from the charge of malversation. To this end, petitioner presented evidence that satisfactorily prove that not a single centavo of the missing funds was used for her own personal benefit or gain. True enough, the evidence adduced by the defense reveals sufficient circumstances to establish the strongest degree of probability that the public funds subject of the criminal indictment for malversation was lost during that fateful day of 22 October 1985, where petitioner Agullo suffered a stroke on the streets of Tacloban City as she was then on her way to the MPWH Regional Office. In fact, the records though insensate, clearly reveal that the prosecution admitted that petitioner suffered a stroke on the streets of Tacloban on 22 October 1985. As to the prosecution’s allegation that no evidence exists regarding loss of the public funds, this postulation is belied by the records as petitioner herself testified on the stand that she had the money subject of inquiry when she collapsed and lost consciousness as a result of the stroke. To us, this circumstance – coupled with the other peculiarities attendant in the instant case and further considering the palpable failure of the prosecution to adduce other evidence to clearly establish conversion – "suffice to make the mind uneasy as to Agullo’s guilt, notwithstanding the prima facie evidence established by law against herein petitioner, which by no means dispenses with the need of proving guilt beyond reasonable doubt."34 After all, mere absence of funds is not sufficient proof of conversion. Neither is the mere failure of the accused to turn over the funds at any given time sufficient to make even a prima facie case. Conversion must be affirmatively proved, either by direct evidence or by the production of facts from which conversion necessarily follows.35 Truly, these serve as strong considerations that seriously impair the basis upon which is founded the legal presumption of personal misappropriation of money or property of accountable officers who fail to have forthcoming, such money or property when so demanded by a duly authorized official.36 Verily, a finding

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of prima facie evidence of accountability does not shatter the presumptive innocence the accused enjoys because, before prima facieevidence arises, "certain facts [have still to be] proved"; the trial court cannot depend alone on such an evidence, because precisely, it is merely prima facie. It must still satisfy that the accused is guilty—beyond reasonable doubt—of the offense charged. Neither can it rely on the weak defense the latter may adduce.37 Notably, the Sandiganbayan, in convicting petitioner, obviously relied more on the flaws and deficiencies in the evidence presented by the defense, not on the strength and merit of the prosecution’s evidence.38 This course of action is impermissible for the evidence of the prosecution clearly cannot sustain a conviction "in an unprejudiced mind."39 All told, this Court, through the scholarly ponencia of Mr. Justice Isagani Cruz in People vs. De Guzman,40 inked in vivid prose the premium accorded to the right of an accused to be presumed innocent until the contrary is proved, to wit: "The constitutional presumption of innocence is not an empty platitude meant only to embellish the Bill of Rights. Its purpose is to balance the scales in what would otherwise be an uneven contest between the lone individual pitted against the People of the Philippines and all the resources at their command. Its inexorable mandate is that, for all the authority and influence of the prosecution, the accused must be acquitted and set free if his guilt cannot be proved beyond the whisper of doubt." Hence, in light of the satisfactory explanation proffered by the defense and in view of the impotency of the prosecution’s evidence, petitioner’s constitutional right to be presumed innocent necessarily thrives. Corollarily, the prima facie evidence of conversion in the instant case, withers, so to speak, like a petrified twig wilted in the scorching heat of the noonday sun. WHEREFORE, premises considered, the instant petition is granted. ACCORDINGLY, the decision of respondent Sandiganbayan dated 16 March 1992 and its Resolution dated 18 March 1998, are hereby REVERSED and SETASIDE. Petitioner Elvira Agullo is hereby ACQUITTED on grounds of reasonable doubt. MOREOVER, the DPWH is hereby directed to refund petitioner the sum of Three Hundred Seventeen Pesos and Seventy Nine Centavos (P317.79) representing the amount overdeducted from petitioner’s salary, cost of living allowance and other emoluments.1âwphi1.nêt SO ORDERED. G.R. No. 113804 January 16, 1998

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PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SERGIO BATO and ABRAHAM BATO, accused, ABRAHAM BATO, accused-appellant. PANGANIBAN, J.: In the absence of an eyewitness, the guilt of an accused may be established by circumstantial evidence. Such evidence, however, must still pass the test of moral certainty. When inadequate and uncorroborated, circumstantial evidence cannot sustain a conviction. Specifically, where the state's evidence does not constitute an unbroken chain leading beyond reasonable doubt to the guilt of the accused, the constitutional presumption of innocence prevails and the accused is entitled to an acquittal. The Case This postulate is applied by this Court in reversing the Decision of the Court of Appeals 1 finding Sergio and Abraham Bato guilty of murder and sentencing them to reclusion perpetua. In an Information dated July 7, 1989, Leyte Provincial Prosecutor Joventino P. Isidro charged the brothers Bato with murder allegedly committed as follows: That on or about the 9th day of May, 1988 in the Municipality of Pastrana, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping each other, with intent to kill, with treachery and evident premeditation and taking advantage of superior strength, did then and there wilfully, unlawfully and feloniously attack, assault, stab and wound one Ernesto Flores, Sr. with deadly weapons locally known as "sundang" which the accused had provided themselves for the purpose, thereby hitting and inflicting upon said Ernesto Flores, Sr. several wounds on the different parts of his body which wounds caused his death.2 Contrary to law. On January 15, 1990, the accused were arraigned in the Waray dialect which they understood and spoke. Assisted by Counsel Benjamin Pore, both pleaded not guilty.3 After due trial, the trial court 4 rendered a decision, 5 the dispositve portion of which reads: WHEREFORE, this Court finds each of the accused Abraham and Sergio, both surnamed "Bato" GUILTY beyond reasonable doubt of the crime of Murder penalized under Article 248 of the Revised Penal Code. With the

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abolition of the capital punishment in the 1987 Constitution, the penalty of Murder should now be Reclusion Temporal in its maximum period to Reclusion Perpetua. In the absence of any modifying circumstances, the penalty imposable is in its medium period or from EIGHTEEN (18) YEARS, EIGHT (8) MONTHS and ONE (1) DAY TO TWENTY (20) YEARS. Applying the Indeterminate Sentence Law, they are each imposed the penalty of TEN (10) YEARS AND ONE (1) DAY OF Prision Mayor as minimum to EIGHTEEN (18) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of Reclusion Temporal as maximum with all the accessory penalties provided by law, to indemnify jointly and severally the heirs of the deceased Ernesto Flores, Sr. in the sum of P50,000 and to pay the corresponding costs. 6 Both accused appealed to the Court of Appeals. On January 26, 1994, the said Court promulgated the assailed Decision affirming their guilt and increasing the penalty to reclusion perpetua in view of this Court's rulings in People vs. Benitez, Jr. 7 and People vs. Muñoz 8. Pursuant to Section 13, Rule 124 of the Rules of Court,9 the appellate court, instead of entering judgment, certified the case to the Supreme Court in this wise: WHEREFORE, since the crime for which the appellants were charged, tried and convicted is Murder, the penalty provided for by law is reclusion perpetua, within the power of the Supreme Court to review, revise, reverse, modify or affirm on appeal or certiorari (sec. 5-(2)-(d), Art. 8, 1987 Const.), this criminal case is hereby certified to the Supreme Court. 10 In a Resolution dated June 29, 1994, this Court First Division) informed the parties that they may file additional briefs. Conformably, the parties complied with said Resolution within the extended period granted them. 11 On July 28, 1994, during the pendency of the appeal, Sergio Bato died at the Leyte Regional Prison due to cardio-respiratory arrest secondary to acute beriberi. 12 Death before a final judgment extinguishes both the criminal and the civil liability (ex delicto) of an accused. 13 Hence, this Decision pertains only to the appeal of Abraham Bato. The Facts Version of the Prosecution The prosecution presented two witnesses, namely: Ernesto Flores, Jr., 14 son of the victim, and Dr. Virisimo Opiniano 15 who conducted the autopsy. The prosecution's version of the facts was summarized by the solicitor general as follows: On May 9, 1988 at about three o'clock in the afternoon, Ernesto Flores, Jr. together with his father Ernesto Flores, Sr., were going home from

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Barangay Tingib, Pastrana, Leyte to San Agustin, Jaro, Leyte. While passing by Barangay Hibucawan, they were called by the two appellants, Abraham and Sergio, both surnamed Bato, to join them in a drinking spree in the house of Paran Lescabo, which Ernesto, Sr. accepted. Ernesto, Jr. sat about two (2) meters away from his father while the latter joined appellants for two hours drinking tuba. When his father was already drunk, appellants tied him (father) with his hands placed at the back. Later, he saw appellants bring his father to somewhere else. Seeing his father being held, he ran away, as he was afraid he would also be taken by appellants (tsn, 6-18-90, pp. 3-10). It was only the following morning that they found his father already dead at the Binaha-an River, five kilometers away from the place where he last saw him in the previous afternoon. He immediately reported the incident to the Barangay Captain of Barangay Tingib. The latter informed the police department about the incident. Many policemen responded and the dead body of his father was brought to the Municipal Building of Pastrana, Leyte (tsn, 6-18-0, pp. 10-11). At the Municipal Building of Pastrana, Leyte, the Municipal Health Officer, Dr. Virisimo Opiniano, conducted the autopsy on the body of the deceased Ernesto Flores, Sr. He found that the deceased sustained five hacking and seven stab wounds. The cause of death is shock, secondary to a hacking and almost decapitating wound (Exhibit "A" and "B"). 16 Version of the Defense On the other hand, the accused raised the defense of denial. They maintained that their identification as the alleged perpetrators of Ernesto's murder was merely an afterthought, necessitated by a dearth of strong evidence on the part of the prosecution. They presented as witness Pfc. Benjamin Montanejos, 17 who affirmed that the entry he made in the police blotter 18 did not mention the accused as suspects in the crime. He further testified that it was the barangay captain who reported the incident to the police, contradicting Ernesto Jr. who claimed that he did so. 19 Ruling of the Trial and the Appellate Courts The trial court ruled that the prosecution witness, Ernesto Jr., positively identified the accused who invited him and his father for a drink. He witnessed how they tied the hands of Ernesto Sr. before they took him away. That the police blotter failed to state the names of the assailants did not negate appellant's participation in the slaying. Further, the entry was based on the information relayed not by the witness himself but by the barangay chairman, who had not witnessed the incident. 20 The trial court further appreciated the aggravating circumstance of treachery.

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The Court of Appeals affirmed the ruling of the trial court and further declared that the totality of the prosecution evidence "constitute[d] more than sufficient incriminatory and inculpatory circumstances" to reach the conclusion that the appellants killed the victim. The appellate court declared: Ernesto's testimony is clear. He pointed to and positively identified Abraham Bato and Sergio Bato as the persons who invited his father to drink with them while he and his father passed by Barangay Hibucawan. His father accepted the invitation and[,] with them for two hours[,] drank tuba at the house of Lescabo. All the while, Ernesto sat there about two meters away from his father. He saw his father drunk, and, under that condition, also saw Abraham and Sergio tied [sic] his father's hand with a rope and placed [sic] them at the back, then they brought him away with them, to what direction, "I do not know because I ran as I was also afraid" as "they might bring me also." He learned of his father's death on the following day, that they found him at the Binaha-an River, about 5 kilometers away from the house of Paran Lescabo. Ernesto added on cross-examination that after his father was taken by the duo, he went homeward, arrived there at about 6:00 p.m., told the incident to his mother, then they slept and that "it was only the following morning when they look [sic] for his father"; that he and his mother reported the incident to the Barangay Captain of Tingib, and together with barangay captain, they found his father dead at the Binaha-an River, and then they reported the incident to the police authorities. 21 Like the trial court, the appellate court found that Ernesto Jr. "positively identified" the Bato brothers as the killers of his father could not have been mistaken, as he had known them long before the commission of the offense, a fact not rebutted by the defense. The Court of Appeals further opined that it was a natural human behavior for Ernesto Jr. to get frightened and to wait for daybreak before looking for his father and reporting the incident to the authorities. The appellate court noted that it was nighttime when Ernesto Jr. reached home, and that he did not know where to look for his father. Assignment of Errors In their brief 22 before the Court of Appeals, the accused assigned the following errors: 23 I. The lower court erred in finding that there was positive identification of the accused-appellants. II. The lower court erred in finding that accused-appellants employed treachery in the commission of the offense.

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In his additional brief 24 submitted before this Court, Appellant Abraham Bato further contends that the appellate tribunal gravely erred in increasing to reclusion perpetua the penalty imposed by the trial court. This Court's Ruling Pursuant to the doctrine that appeals involving reclusion perpetua are subject to a review de novo, this Court pored over the entire records of both lower courts and concluded, after careful deliberation, that the appellant is entitled to an acquittal. The circumstantial evidence adduced by the prosecution fails to evoke moral certainty that appellant is guilty. Circumstantial Evidence Palpably Insufficient The conviction of Appellant Abraham Bato is based on circumstantial evidence gleaned from the sole testimony of the son of the deceased. True, in the absence of direct proof, a conviction may be based on circumstantial evidence, 25 but to warrant such conviction, the following requisites must concur: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.26 Hence, it has been held that a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proven constitute an unbroken chain leading to one fair and reasonable conclusion, to the exclusion of any other, that the accused are guilty. The circumstances proved must be concordant with each other, consistent with the hypothesis that the accused is guilty and, at the same time, inconsistent with any hypothesis other than that of guilt. 27 As a corollary to the constitutional precept that the accused is presumed innocent until the contrary is proved, a conviction based on circumstantial evidence must exclude each and every hypothesis consistent with his innocence. 28 Prosecution's Main Evidence Circumstantial Aside from the doctor who conducted the post mortem examination on the cadaver of the deceased, the only other witness for the prosecution was Ernesto Jr., who testified mainly as follows:29 Q What happened since you said you were at Tingib at about 3:00 o'clock in the afternoon of May 9, 1988? A When we passed by Hibucawon, they called my father for a drink. Q This Brgy. Hibucawon belongs to what municipality?

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A Jaro, Leyte. PROSECUTOR DAGANDAN: Q You said that they called your father, who is this "they" you referred to? A Abe Bato and Sergio Bato. Q Where were Abraham Bato and Sergio Bato when they called your father? A They were drinking in the house of Paran. Q Do you know the real name of this Paran? A I only know him as Paran. Q What is his family name? A Loscabo. Q Where is this house of Paran Loscabo located? A Barangay Hibucawon, Jaro, Leyte. Q In what manner was your father called by Abe Bato and Sergio Bate? A They called my father to a drink. Q What did your father do? A He approached Sergio Bato and Abe Bato, and he drank because he was offered to drink. Q Where were you when your father was called by Sergio Bato and Abe Bato? A I was near. PROSECUTOR DAGANDAN:

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Q Where were you when your father was called, at what distance were you to your father? A About two (2) meters (from the witness stand). Q Did you come to know if there were other persons present aside from your father and the two accused? A Yes, but I do not know them. Q Approximately, how many persons were present who were gathered? A They were many persons. Q Approximately, how many? A More than ten (10). Q Since you said you were near your father when you approached them, what did Abraham Bato and Sergio Bato got to do with your father when your father approached them? A They first offered my father a drink. Q Whay drink was offered? A Tuba. Q Did your father accept the offer? A Yes, ma'am. Q For how long did he stay in that group? A He stayed long. Q How about you, where did you stay while your father was drinking? A I was at a certain distance but I did not get near them. Q At about what time did the drinking spree last? A Two (2) hours.

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Q After two hours, what happened, if any? A When my father was already drank, they tied my father. Q Who tied your father? A Abe Bato and Sergio Bato. Q With what object or material was your father tied? A Rope. Q How was your father tied with the rope? A They tied him with a rope and both hands were placed at the back. Q After that, what happened? A They brought my father. Q Who is this "they" who brought your father? A Abe Bato and Sergio Bato. Q How did you come to know that your father was brought somewhere? A I saw them bringing my father. Q To what directions was your father brought? A I do not know because I ran away as I was afraid. Q Immediately before you ran away, where was your father. A They were bringing and holding my father. Q You said you were afraid, why were you afraid? A I was afraid because they might bring me also. Q Did you come to know what happened to your father?

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A I learned the following day that my father died because they brought him. In sum, therefore, the witness established only the following circumstances surrounding the crime: (1) that the Bato brothers invited the victim and his son for a drink; (2) that after two hours of drinking, said brothers suddenly tied the hands of the older Flores and took him away; and (3) that the following day, the body of the victim, which sustained several hack and stab wounds, was recovered at the Binaha-an River, about five kilometers away from where he was last seen by the witness. After a careful perusal of the evidence adduced by the prosecution, we believe that appellant's authorship of the crime was not established beyond reasonable doubt. Lapses in the Prosecution Evidence Ernesto Jr. admitted that there was no enmity or bad blood between his father and the accused. He further asserted that there was no altercation during the drinking spree. Likewise, he made no statement that the Bato brothers, at the time, earned any bladed weapon which could have been used in his father's murder. Moreover, he did not see where the appellants brought his father after they had tied his hands. More significantly, he failed to testify on how his father was killed, who, killed him, or even when he was killed. These lacunae in the prosecution account necessarily spawn doubts in the mind of a reasonable person. Because the appellants tied the victim's hands, can it be inferred that they intended to kill him, and actually killed him? Where did the accused take him? What happened between the time the accused tied the victim and the following morning when his lifeless body was found? There is absolutely no evidence of what transpired during that interval. The prosecution, in effect, asked the courts merely to guess or to surmise that the accused must have killed the victim during such interregnum. But conjectures, surmises and suspicions cannot take the place of evidence, particularly where — as in this case — contrary suspicions, surmises queries can also be floated and believed. It is also noteworthy that Ernesto Jr. did not attempt to attract the attention of other people who were nearby at the time, or to seek their aid. Instead, he ran home and related the events to his mother. Oddly, he hand his mother reacted not by reporting the matter to the police, or even just to their barangay chairman, their council members or their neighbors. They simply slept the night away! Notwithstanding the presence of other persons who were nearby when the appellants tied the hands of the victim, the prosecution failed to present any other witnesses to corroborate Ernesto Jr.'s testimony. As it was, his testimony was grossly insufficient and sorely in need of corroboration. It has been held that circumstantial evidence which has not been adequately established, much less corroborated, cannot by itself be the basis of conviction. 30

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Comparable Cases In People vs. Roluna, 31 the trial court's conviction of the appellant for kidnapping with murder was based merely on the testimonies of two witnesses — one of whom allegedly saw the appellant tie the hands of the victim before taking him away, and the other purportedly saw the victim walking with hands tied and the appellant following him. Declaring that the said circumstances were insufficient to convict the appellant, this Court held that the "conviction of accused-appellant for the serious crime of kidnapping with murder cannot be allowed to rest on the vague and nebulous facts established by the prosecution. . . [T]he evidence presented by the prosecution surrounding the events of that fateful day are grossly insufficient to establish the alleged liability of accused-appellant for the death of Moronia." In People vs. Argawanon, 32 appellant therein was charged and convicted of murder by the trial court. In acquitting the appellant, the Court explained: Furthermore, if indeed the two (2) Castro brothers were watching the cockfight when the alleged four (4) persons attacked Pat. Castro, it is quite difficult to comprehend that, considering that he (witness) was only six (6) meters away from his brother, nothing was done to him as he was able to run and hide. It seems out of the ordinary that the assailants, allegedly, two (2) of them armed with .45 caliber pistols would let Jennis Castro (an eye witness to the killing) loose and not put him out of the way. It is also quite unbelievable that despite his said distance, he (Jennis Castro) was able to identify the accusedappellant and was able to hear one of the assailants shout . . . . In addition to the above extrajudicial statements of Jennis Castro, the trial court considered the following circumstantial evidence in convicting the appellant Lambujon, to with: his presence at the house of one of the accused during the raid, the revolver of Pat. Castro which was allegedly found in accused-appellant's possession during the raid; positive testimony of Jennis Castro that the one who fired the second shot was the one wearing a blue T-shirt. We do not agree with the trial court's conclusion that the aforecited evidence are corroborative of Jennis Castro's incriminating testimony against the accused-appellant. Circumstantial evidence may be characterized as that evidence which proves a fact or series of facts from which the facts in issue may be established by inference. This Court cannot infer from said evidence, the identity of the victim's assailant nor the actual participation of the appellant Lambujon in the crime charged. 33 In People vs. Ragon, 34 there was no actual witness to the killing of a tricycle driver, but appellant therein, with two others, was identified as the last passenger of the victim before the cadaver was found hours later. Relying on purely circumstantial evidence, the trial court convicted the appellant of murder. On appeal, this Court

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acquitted him. Holding that there was no sufficient evidence to establish his actual participation in the killing, we concluded: Circumstantial evidence is akin to a tapestry made up of strands which create a pattern when interwoven, and cannot be plucked out and considered one strand at a time independently of the others. If the picture does not point to the accused as the perpetrator of the crime beyond a reasonable doubt, conviction based thereon will not weather judicial scrutiny. A painstaking review of the records of this case convinces us that the story pieced together by the trial court from the evidence of the prosecution provides no moral certainty of appellant's guilt. . . . 35 Presumption of Innocence Not Overturned In the instant case, the totality of the prosecution evidence does not constitute an unbroken chain leading, beyond reasonable doubt, to the guilt of the accused. The Constitution mandates that an accused shall be presumed innocent until the contrary is proven beyond reasonable doubt. 36 Where the state fails to meet the quantum of proof required to overcome the constitutional presumption, the accused is entitled to an acquittal, regardless of the weakness or even the absence of his defense. 37 By constitutional fiat, the burden of proof is accordingly vested in the prosecution. 38 In acquitting the herein appellant, this Court is not decreeing the did not participate in the killing. It is merely ruling that the state failed to present sufficient evidence to overturn the constitutional presumption of innocence. WHEREFORE, the appeal is GRANTED and the assailed Decision is hereby REVERSED and SET ASIDE. Appellant Abraham Bato is ACQUITTED on reasonable doubt. His RELEASE from confinement is immediately ORDERED, unless he is being detained for some other legal cause. The director of prisons is DIRECTED to inform this Court, within five days from receipt of this Decision, of the actual date the appellant is released. No costs. SO ORDERED.

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G.R. No. 186498

March 26, 2010

PEOPLE OF THE PHILIPPINES, Appellee, vs. RONALDO DE GUZMAN y DANZIL, Appellant. NACHURA, J.: Before this Court is an appeal by Ronaldo de Guzman y Danzil, accused in Criminal Case No. V-1118, filed before the Regional Trial Court (RTC) of Villasis, Pangasinan. He was charged with Illegal Sale of Dangerous Drugs, punishable under Republic Act (R.A.) No. 9165.1 In a decision2 dated December 5, 2006, the trial court found De Guzman guilty beyond reasonable doubt of the crime charged. His conviction was affirmed by the Court of Appeals (CA) in a Decision3 dated June 26, 2008. On June 10, 2003, a confidential informant reported De Guzman’s drug pushing activities to Alcala, Pangasinan’s Chief of Police, Sotero Soriano, Jr. Soriano immediately formed a team to conduct a buy-bust operation.4 After a short briefing, the team proceeded to De Guzman’s house. Once there, the confidential informant introduced appellant to Senior Police Officer (SPO)1 Daniel Llanillo, who was designated as poseur-buyer. Llanillo tried to buy ₱200 worth of shabu. He handed two marked ₱100 bills to De Guzman, and the latter, in turn, gave him two heat-sealed transparent plastic sachets containing what was suspected as shabu. Thereafter, Llanillo gave the prearranged signal to the rest of the team. Appellant was arrested and frisked. The team recovered from De Guzman two packs of empty transparent sachets, three disposable lighters, and ₱3,380.00 in cash, which included the marked money paid by SPO1 Llanillo. The team then brought De Guzman to the police station in Alcala, Pangasinan.5 At the police station, De Guzman and the items seized during the buy-bust operation were turned over to the police investigator, SPO3 Eduardo Yadao. SPO3 Yadao entered the incident in the police blotter. He then placed his initials on the packets of suspected shabu, which were later submitted to the Philippine National Police (PNP) Crime Laboratory in Urdaneta City.6 Confirmatory tests revealed that the substance in the packets that appellant handed to SPO1 Llanillo was indeed shabu.7 At the trial, appellant denied the charges against him. He claimed that, on the morning of June 10, 2003, he was on the second floor of his house watching television when he was informed by his wife that police officers were looking for him. He claimed that SPO1 Llanillo informed him about a report that he (De Guzman) was repacking shabu, which he denied. Thereafter, the police officers frisked him and took the ₱3,000.00 from his pocket. The police officers also searched the cabinet, where his television was, and found a lighter. Then, he was handcuffed and brought to the police station.8

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After trial, the RTC rendered a decision, finding De Guzman guilty beyond reasonable doubt of violating R.A. No. 9165. He was sentenced to life imprisonment and to pay a fine of ₱500,000.00.9 De Guzman appealed his conviction to the CA, which affirmed the RTC decision in toto.10 De Guzman now comes to this Court on a Petition for Review. He argues that the prosecution failed to show that the police officers complied with the mandatory procedures under R.A. No. 9165.11 In particular, he points to the fact that the seized items were not marked immediately after his arrest; that the police officers failed to make an inventory of the seized items in his presence or in the presence of his counsel and of a representative from the media and from the Department of Justice (DOJ); and that no photographs were taken of the seized items and of appellant.12 Appellant also claims that the unbroken chain of custody of the evidence was not established.13Further, appellant contends that the failure of the police officers to enter the buy-bust operation in the police blotter before the said operation, the lack of coordination with the Philippine Drug Enforcement Agency (PDEA), and the failure to observe the requirements of R.A. No. 9165 have effectively overturned the presumption of regularity in the performance of the police officers’ duties.14 The findings of fact of the trial court are accorded great respect, even finality when affirmed by the CA, in the absence of any clear showing that some facts and circumstances of weight or substance that could have affected the result of the case have been overlooked, misunderstood, or misapplied.15 Although the question of whether the degree of proof has been met is largely left for the trial courts to determine, an appeal throws the whole case open for review.16 Thus, the factual findings of the trial court may be reversed if, by the evidence or the lack of it, it appears that the trial court erred.17 A review of the records of this case reveals that circumstances warrant a reversal of the trial court’s decision. The Constitution mandates that an accused in a criminal case shall be presumed innocent until the contrary is proven beyond reasonable doubt. The prosecution is laden with the burden to overcome such presumption of innocence by presenting the quantum of evidence required. Consequently, courts are required to put the prosecution evidence through the crucible of a severe testing, and the constitutional right to presumption of innocence requires them to take a more than casual consideration of every circumstance or doubt favoring the innocence of the accused.18

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When the circumstances are capable of two or more inferences, as in this case, one of which is consistent with innocence and the other is compatible with guilt, the presumption of innocence must prevail, and the court must acquit.19 The duty to prove the guilt of an accused is reposed in the State. Law enforcers and public officers have the duty to preserve the chain of custody over the seized drugs. This guarantee of the integrity of the evidence to be used against an accused goes to the very heart of his fundamental rights.20 In a prosecution for illegal sale of dangerous drugs, the following elements must be proven: (1) that the transaction or sale took place; (2) that the corpus delicti or the illicit drug was presented as evidence; and (3) that the buyer and seller were identified.21] What is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the prohibited or regulated drug. The delivery of the contraband to the poseur-buyer and the receipt of the marked money consummate the buy-bust transaction between the entrapping officers and the accused.22 The presentation in court of the corpus delicti — the body or the substance of the crime – establishes the fact that a crime has actually been committed.231avvphi1 Contrary to De Guzman’s contention, the trial court correctly found that the buybust transaction took place. The buyer (SPO1 Llanillo) and seller (De Guzman) were both identified and the circumstances of how the purported sale of the illegal drugs took place were clearly demonstrated. Thus, the prosecution successfully established the first and third elements of the crime. However, there is a problem in the prosecution’s effort to establish the integrity of the corpus delicti. In a prosecution for violation of the Dangerous Drugs Act, the existence of the dangerous drug is a condition sine qua non for conviction. The dangerous drug is the very corpus delicti of the crime.24 The identity of the prohibited drug must be established with moral certainty. Apart from showing that the elements of possession or sale are present, the fact that the substance illegally possessed and sold in the first place is the same substance offered in court as exhibit must likewise be established with the same degree of certitude as that needed to sustain a guilty verdict.25 The corpus delicti should be identified with unwavering exactitude.261avvphi1 The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.27 Section 21 of R.A. No. 9165 states: Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well

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as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. On the other hand, the Implementing Rules and Regulations (IRR) of R.A. No. 9165 provides: SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. The Court finds that the apprehending officers failed to comply with the guidelines set under R.A. No. 9165 and its IRR. SPO1 Llanillo himself admitted that the marking of the seized items was done in the police station and not immediately after the buy-bust operation. He testified: Q: What did you do after you said you bought ₱200.00 worth of shabu?

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A: In return, he handed to me two (2) heat sealed transparent plastic sachet containing a suspected methamphetamine hydrochloride (shabu), sir. Q: After that what did you do next? A: The team made a frisking on [Ronaldo] de Guzman to see if there are other things he is keeping in his body, sir. Q: And what was the result of your frisking [Ronaldo] de Guzman? A: We recovered from him 2 packs of empty transparent plastic sachets, 3 disposable lighters, sir. Q: Aside from those items, what else did you recover from [Ronaldo] de Guzman? A: Money, sir, amounting to ₱3,380.00 including the marked money. Q: What did you do with those things that you were able to confiscate from [Ronaldo] de Guzman? A: We brought it to the police station for investigation and the specimen were (sic) brought to the crime laboratory for examination, sir.28 It is true that the IRR of R.A. No. 9165 provides that the physical inventory of the seized items may be done at the nearest police station, if the same cannot be done at the place where the items were seized. However, it must be emphasized that the IRR also provides that "non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items."29 The failure to follow the procedure mandated under R.A. No. 9165 and its IRR must be adequately explained. The justifiable ground for non-compliance must be proven as a fact. The court cannot presume what these grounds are or that they even exist. Accordingly, non-compliance with the procedure shall not render void and invalid the seizure and custody of the drugs only when: (1) such non-compliance is attended by justifiable grounds; and (2) the integrity and the evidentiary value of the seized items are properly preserved by the apprehending team. There must be proof that these two (2) requirements were met before such non-compliance may be said to fall within the scope of the proviso.30

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In this case, it was admitted that it was SPO3 Yadao, the assigned investigator, who marked the seized items, and only upon seeing the items for the first time at the police station. Moreover, there was no physical inventory made or photographs of the seized items taken under the circumstances required by R.A. No. 9165 and its IRR. There was also no mention that representatives from the media and from the DOJ, and any elected official, were present during this inventory. The prosecution never explained the reasons for these lapses. On crossexamination, SPO1 Llanillo admitted: Q: Do you know if your team or any member of your team issued an Inventory receipt of those confiscated items? A: I could not remember, sir. Q: And you have not seen any, right? A: Yes, sir. Q: Do you know if there were pictures taken on (sic) the confiscated items? A: I don’t know, sir. Q: And you have not seen pictures taken? A: Yes, sir.31 Thus, we find no justifiable ground for such non-compliance. Readily apparent in the prosecution’s evidence, likewise, is a gaping hole in the chain of custody of the seized illegal drugs. SPO3 Yadao, in his testimony, narrated how the evidence was handled, thus: Q: You did not place or put your initials on the buy-bust money, the 2 pieces of ₱100.00 bil (sic) that was used in the buy-bust operation, you did not (sic)? A: I did not maam (sic). Q: Is it not that this is the standard operating procedure (SOP) as police investigator that after your receipt of the specimens or items allegedly confiscated in the buy-bust operation that you should place your initials after you signed the same? A: Unless there is a directive from our Chief of Police, maam (sic).

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Q: So you are telling this Court that it is not your SOP, you should wait for your Chief of Police to direct you to place your initials on the specimens you received in the buy-bust operation, is that what you mean? A: Yes, maam (sic). Q: So you are telling us now that there was no instruction from your Chief of Police in this particular case that you will place your initials on the 2 pieces of ₱100.00 bill, that’s why you did not put your initials thereof (sic), is that what you mean? A: Yes, maam (sic). Q: Likewise, you did not place your initials on the transparent plastic sachets, disposable lighters and the ₱3,380.00 that were allegedly confiscated from the accused? A: I was directed to place my initials before submitting it to the PNP Crime Laboratory, Urdaneta City. Q: So the directive in this particular case is only limited or focused on the suspected plastic sachets containing shabu, is that what you mean? A: Yes, maam (sic). Q: But you submitted likewise to the PNP Crime Laboratory, Urdaneta City, the empty transparent plastic sachets and disposable lighters, is it not, Mr. Witness? A: Yes maam (sic). Q: For laboratory examination? A: Yes, maam (sic). Q: But there was no instruction from your Chief of Police to place your initials on the specimens? A: There was instruction maam (sic). Q: But you did not place your initials on the disposable lighters and transparent plastic sachets? A: I don’t know if I put my initials on the disposables lighters maam (sic).

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Q: You are now certain that you placed your initials on the suspected shabu but you are not sure if you placed your initials on the transparent plastic sachets and the disposable lighters? A: Yes, maam (sic). Q: What time on June 10, 2003 did you receive the specimens allegedly confiscated from the accused? A: On the same date maam. Q: You earlier said that at around 10:35 a.m. you conducted a buy bust operation and the specimens were turned over to you by your Chief of Police. My question is, what time did your Chief of Police turn over to you the specimens that were allegedly confiscated from the accused? A: 2:00 p.m. when I recorded the incident in the police blotter. Q: My question is, what time did the Chief of Police turn over to you the alleged specimens or items? A: 2:00 p.m. on June 10, 2003 and that was the time I immediately recorded the incident in the police blotter. Q: And you immediately prepared a request for laboratory examination? A: Yes, maam (sic). Q: What time did you finish preparing the request? A: I can’t remember, maam (sic). Q: You said that you immediately prepared it, how long did you prepare that request for laboratory examination? A: Until the following day because it was on the following day that the specimens were submitted. Q: What was submitted the following morning? A: If I remember it right, it was on June 11, 2003 when we submitted and received by (sic) the PNP Crime Laboratory and that was on June 11, 2003.32

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The length of time that lapsed from the seizure of the items from De Guzman until they were given to the investigating officer for marking is too long to be inconsequential. The buy-bust operation took place at about 10:30 a.m. From the accounts of SPO1 Llanillo and another member of the buy-bust team, SPO1 Romeo Manzano, De Guzman’s house was very near the police station and the team could easily walk to it. Likewise, the transaction took place rather quickly and appellant was brought to the police station immediately thereafter. All told, it should not have taken 3 1/2 hours, or until 2:00 p.m., for the seized items to be turned over to the investigating officer. There was no explanation why it took the Chief of Police that long to turn over the seized items. From the time SPO3 Yadao took custody of the seized items, it took yet more time before the same were submitted to the PNP Crime Laboratory, and without any clear explanation on who had custody in the meantime. This vacuum in the chain of custody of the seized items cannot simply be brushed aside. These circumstances cast a strong shadow of doubt on the identity and integrity of the evidence presented before the court. As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be.33 It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered in evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.34 Indeed, it is from the testimony of every witness who handled the evidence that a reliable assurance can be derived that the evidence presented in court and that seized from the accused are one and the same.35 While testimony about a perfect chain is not always the standard, because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination, and even substitution and exchange.36 A unique characteristic of narcotic substances is that they are not readily identifiable as, in fact, they are subject to scientific analysis to determine their composition and nature. The Court cannot simply close its eyes to the likelihood, or at least to the possibility, that, at any point in the chain of custody, there could have been tampering, alteration or substitution of substances from other cases— by accident or otherwise—in which similar evidence was seized or in which similar

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evidence was submitted for laboratory testing. Hence, in authenticating the same, a standard more stringent than that applied to cases involving objects that are readily identifiable must be applied, a more exacting standard that entails establishing a chain of custody of the item with sufficient completeness, if only to make it improbable that the original item has either been exchanged with another or been contaminated or tampered with.37 Accordingly, the failure to establish, through convincing proof, that the integrity of the seized items has been adequately preserved through an unbroken chain of custody is enough to engender reasonable doubt on the guilt of an accused. Reasonable doubt is that doubt engendered by an investigation of the whole proof and an inability after such investigation to let the mind rest upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict a person charged with a crime, but moral certainty is required as to every proposition of proof requisite to constitute the offense.38 A conviction cannot be sustained if there is a persistent doubt on the identity of the drug.39 Indeed, the prosecution’s failure to prove that the specimen submitted for laboratory examination was the same one allegedly seized from appellant is fatal to the prosecution’s case.40 Finally, the prosecution cannot find solace in its invocation of the presumption of regularity in the apprehending officers’ performance of official duty. The presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt.41 Moreover, the failure to observe the proper procedure negates the operation of the presumption of regularity accorded to police officers. As a general rule, the testimonies of the police officers who apprehended the accused are accorded full faith and credit because of the presumption that they have performed their duties regularly. But when the performance of their duties is tainted with failure to comply with the procedure and guidelines prescribed, the presumption is effectively destroyed.42 Thus, even if the defense evidence is weak, the prosecution’s whole case still falls. The evidence for the prosecution must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense.43 WHEREFORE, the foregoing premises considered, appellant RONALDO DE GUZMAN y DANZIL is hereby ACQUITTED of the crime charged. The Director of the Bureau of Prisons is ordered to cause the IMMEDIATE RELEASE of appellant from confinement, unless he is being held for some other lawful cause, and to REPORT to this Court compliance herewith within five (5) days from receipt of this Decision. SO ORDERED.

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RIGHT TO BE HEARD G.R. No. L-32888 August 12, 1983 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELOY MAGSI ET AL., defendants, TEODORO DEL ROSARIO, defendant- appellant. MAKASIAR, J: This is a mandatory review of a death sentence. information dated January 10, 1968 filed with the Court of First Instance of La Union, Second Judicial District, charged: That on or about the 14th day of January, 1968 in the Municipality of San Fernando, La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, namely ELOY MAGSI, JUAN PONCE y BILLON alias JOHNNY, PERFECTO ARCE alias PEPING, conspiring and confederating with their fellow accused GERARDO FLORES alias GERRY, OPRING OLAZO DORO DOE and PETER DOE, the latter four being still at large, and mutually helping one another with intent to kill and with treachery, while the said accused were armed with carbine pistols and revolvers did then and there wilfully, unlawfully and feloniusly enter the house where JESUS GALLARDO and his family live and once inside the said house, attack, assault and shoot one JESUS GALLARDO, inflicting upon the said offended party JESUS GALLARDO multiple gunshot wounds on the different parts of his body which caused the instantaneous death of the said JESUS GALLARDO. That the following aggravating circumstances were attendant in the commission of the offense: (1) abuse of superior strength; (2) use of a motor vehicle; (3) the offense was committed in the dwelling place of the offended party; and (4) that the offense was committed by a band. CONTRARY TO ARTICLE 248 in relation to Article 14 of the Revised Penal Code. (p. 2, rec.). "Doro Doe," subsequently Identified as Teodoro del Rosario, was arraigned on October 19, 1970 and an unqualified plea of guilt was entered. The next day, October 20, 1970, the court rendered its judgment, the dispositive part of which reads: WHEREFORE, the Court finds TEODORO DEL ROSARIO guilty beyond reasonable doubt of the crime of MURDER as charged in the information and hereby sentences him to suffer the penalty of DEATH ... (pp. 4-5, rec.).

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In his brief, defendant-appellant assailed the aforesaid decision and alleged that: I. The Trial Court erred in imposing upon the accused the DEATH penalty son a pleas of GUILTY without ascertaining that the accused fully understood the charges against him and the character of the penalty that may be imposed upon him notwithstanding his plea of guilty. II. The Trial Court erred in not making inquiry as to the extent of the force applied by Eloy Magsi and his companions upon the accused Teodoro del Rosario, when they ordered him to kill Jesus Gallardo III. The Trial Court erred in appointing as attorney de officio for the accused a lawyer who is the "compared" of the person killed by said accused and who, because of the special relationship with the deceased, reluctantly discharged his duties as attorney de officio, after the Court had denied his repeated petition to be relieved of his appointment as such (p. 46, rec.). The Solicitor General recommended the affirmation of the decision, and refuted the allegations of the defendant appellant, but said recommendation is negated by the facts that actually transpired during the proceedings. Records show that soon after defendant-appellant was apprehended on August 20, 1970, his arraignment was scheduled before the Criminal Circuit Court of San Fernando, La Union, presided over by Judge Lino Anover Altogether, this case was actually set and rescheduled for six (6) times, first of which was on August 1, 1970. On that date, despite appointment by the court of Atty. Mario Rivera as de officio counsel for the accused, hearing was re-set to September 8, 1970 on motion of Atty. Rivera, who was prompted to ask for it because of accused desire to be represented by a de parte counsel. Prior to the next hearing, Atty. Rivera moved to withdraw as de officio counsel and it was favorably acted on by the court on September 7, 1970. At the second hearing on September 8, 1970, for failure of the de officio and de parte counsels to appear, despite a second call of the case, the hearing was re-set for the next day and the court appointed Atty. Dominador Cariaso de officio counsel for the accused. On the third hearing date, neither the de parte nor the de officio counsel was in Court, so Atty. Rivera was reappointed that day as de officio counsel for arraignment purposes only. The accused del Rosario entered a plea of guilty but qualified it with the allegation that he committed the crime out of fear of his co-accused Eloy Magsi and the other coaccused. Hearing conducted that day showed, to wit: Court — seems that nobody wants to defend you. They probably think that you are guilty. "Del Rosario have not yet talked personally to the lawyer, ... (p. 4, t.s.n., Sept. 9, 1970). Court to Interpreter-Will you call Atty. Rivera? ... Atty. Rivera, do not be afraid to assist the accused ... (To the accused): This is for arraignment only,

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Do not expect Atty. Cariaso to come here and be your lawyer nor the top bracket lawyers of Manila. Del Rosario want to enter the plea of guilty (pp. 5-6, t.s.n., Sept. 9,1970). Court ... ... All right, arrange the accused. (Interpreter Mariano Lete reads the information before accused Teodoro del Rosario). Interpreter Lete-The accused prays that before he pleads, he be given a chance to say something in court. Court — Can your lawyer not say that for you? Atty. Rivera-Your Honor, he wants to manifest to the Court what I have already manifested regarding the mitigating circumstance and the extent of his participation (pp. 10-11, t.s.n., Sept. 9, 1970). Accused's allegation of' duress prompted Atty. Rivera to move for the re- setting of the case for the study and presentation of possible mitigating circumstances. The case was accordingly re-set for September 14, 1970. On the fourth hearing date. the presentation of mitigating circumstances was not held as scheduled, but de officio counsel Atty. Cariaso's explanation regarding his close ties with the deceased and his family was heard, and his motion to be relieved as counsel by reason thereof, and be replaced by one who can attend to the defense of the accused with candor, was denied by the court. however, per the note presented to the Court by Atty. Cariaso presumably from Atty. Baterina, de parte counsel for the accused, the contents of which sought the re-setting of the case for the first week of October, the case was again re-set for October 6, 1970. The Court motu proprio changed accused's plea of guilty to not guilty. At the fifth hearing, Atty. Cariaso who appeared in court only after a warrant for his arrest was issued, informed the Court that those interested in the conviction of the accused opposed his appearance, as de officio counsel, and at the same time, also turned over another note, the contents of which asked for another resetting. The Court denied the motion of Atty. Cariaso to withdraw as counsel. but re-set the case for October 19, 1970. At the outset of the sixth hearing held on October 19, 1970. Atty. Cariaso outrightly informed the Court that the accused was ready to enter an unqualified plea of guilty. Hearing conducted that day showed. to wit: Court — Witnesses for the prosecution? Atty. Cariaso — Before we proceed, may I inform the Court that I have just been conferring with the accused and he wants to be rearraigned because the order of this Court the last tune 'is that his plea of guilty be disregarded and a plea of not guilty was entered. Now he says he wants to be rearraigned and I believe he will not offer any qualifying circumstance,

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Court — Let me see the record. Now he wants to be rearraigned (Court issued an order.) Court to accused — Your attorney informed the court that you are willing to be re-arraigned and Chat this time you will enter an unqualified plea of guilty is that true Del Rosario admit, Court — All right, rearraigned the accused. Interpreter Lete-After reading the information the accused Del Rosario pleaded guilty (pp. 311-33, t.s.n., October 19, 1970). Based on accused's plea of guilty without any evidence for "he prosecution on anyof the alleged aggravating circumstances nor -Accused's evidence on duress the Court rendered its decision the next. day October 20, 97(), Of The six hearing dates held relative to the case, accused at two instances entred a qualified plea of guilty Recorded proceedings at the first instance on September 9, 1970 reproduced Previously showed that, de officiocounsel Atty. Rivera and accused were hardly afforded by the Court any opportunity to discuss the case together, and the qualified plea of guilty resulted from the Courts proddings rather than from accused's spontaneous volition. At the second i instance the Court knew accused's prior plea of was guilty be alleged duress employed on him by the other accused. It behooved the Court to allow the accused an opportunities qqqt present evidence on the alleged duress, as well as discover for itself the reasons for accused change of mind regarding his plea. But more importantly, the Court could have complied, as it failed to do so the first time, with its bounden duty to apprise and advise the accused of the seriousness of the charges, the meaning of the qualifying and modifying circumstances, and gravity of the penalty that may be imposed on him despite the plea of guilty, as well as received prosecution's evidence on the alleged aggravating circumstances attendant to the commission of the offense charged. But these considerations notwithstanding, sans any evidence whatsoever from the prosecution nor from the defense, after Atty. Cariaso's manifestation, and its trite queries addressed to the accused whether he confirmed the same or not, the Court proceeded to decide the case.

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WE have consistently enjoined strict and substantial adherence to Our rulings in cases where defendants are charged with capital offenses. Mere proforma appointment of de officio counsel, who fails to genuinely protect the interests of the accused, resetting of hearing by the court for alleged reception of evidence when in fact none was conducted, perfunctory queries addressed to the accused whether he understands the charges and the gravity of the penalty, are not sufficient compliance with Our qqqinjunctions On the appointment of reluctant de officio counsels, We have commented in the case of People vs. Valera (43 SCRA 207-211), thus: In the absence of an explanation why Atty. Ansaldo Jr. asked to be released as counsel de officio as soon as he was appointed by the trial court; why he failed to appear for the trial on July 2, 1968 when the court ordered his arrest and on July 3, 1968 when the Court had to appoint another (the third) counsel de officio and that when Ansaldo appeared on July 16, 1968 he informed the Court that his client, upon his advice wished to change his previous plea of not guilty to one of guilty, this Court is forced to conclude that counsel was not disposed to discharge his duties as counsel de officio and it was naive for the court to have proceeded to rearraign the accused with a counsel of such disposition and expect that the rights of the accused would be amply protected... In the case of People vs. Simeon (47 SCRA 141, 142), We brought to fore the court's obligation to the accused, and We said: The court a quo cannot plead ignorance of the injunction directed towards trial judges to exercise the patience and circumspection in explaining the meaning of the accusation and the full import of the plea of guilty to the accused, who should likewise be granted all the chances to acquaint his counsel de officio with his version of the incident and to conduct his own investigation at the locale of the crime as much as practicable, more than just examining the records of the case. This Court in numerous cases as early as October 29, 1906 in U.S. vs. Talbanos (6 Phil. 541, 543) enunciated that 'while there is no law requiring it, yet in every case under the plea of guilty where the penalty may be death, it is advisable for the court to call witnesses for the purpose of establishing the guilt and the degree of culpability of the defendant. This was reiterated over a year later on December 21, 1907 in U.S vs. Rota et al. ( Phil. 426, 431) wherein this Court added that 'in all cases, and especially in cases where the punishment to be inflicted is severe, the Court should be sure that the defendant fully understands the nature of the charges preferred against him and the character of the punishment to be imposed before sentencing him... Focusing attention on the trial court's duties to the accused, We have again said in People vs. Domingo (55 SCRA 243-244):

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WE enunciated times without number in Our injunctions addressed to the trial courts that they should exercise solicitous care before sentencing the accused on a plea of guilty especially in capital offenses by first insuring that the accused fully understands the gravity of the offense, the severity of the consequences attached thereto as well as the meaning and significance of his plea of guilty; and that the prudent and proper thing to do in capital cases is to take testimony, to assure the court that the accused has not misunderstood the nature and effect of his plea of guilty (People vs. Villafuerte, supra; People vs. Alamada L-34594-5, July 13, 1973; People vs. Busa L-32047, June 25, 1973; People vs. Silvestre, L2-1821, June 22, 1973; People vs. Simeon, L-33730, Sept. 28, 1972; People vs. Espina L-33028, June 20, 1972; People vs. Bulalake 106 Phil. 760: U.S. vs. Jamad, 37 Phil. 305. WE continued to stress lengthily the same injunctions in the case of People vs. Baluyut (L-32752-3, Jan. 31, 1977, 75 SCRA 153-55): To start with, the court a quo did not even ascertain for itself whether the accused completely understood the precise nature of the charge and the meaning of the aggravating circumstances of nighttime, craft and abuse of superior strength as having attended the commission of the crime, so as to obviate any doubt as to the possibility that they have mis understood the nature and gravity of the charge to which they were pleading guilty. The trial court did not conduct a dialogue with the accused on their educational attainment, especially considering that a cursory perusal of their signatures on the statements they have to the Malolos Police Force (Exhs. A, B and C) tends to show that they have very little or scanty education. Moreover, from the transcript, We have noted that after the arraignment, trial was held on three dates and on each day the accused were assisted by three different counsel de officio. In the hearing of October 7, 1970-the day the decision under review was rendered the counsel de officio who assisted the accused was designated by the trial court only after the case was designated for trial, i.e., after the accused had informed the trial court that they did not have a lawyer. Under these circumstances, it is not unreasonable to assume that said counsel de officio proceeded to trial without first fully investigating the facts of the case and that his interview with the accused, even if it lasted for twenty (20) minutes as the record insinuates, was not, and could not have been sufficient to enable him to acquire a fairly good grasp, much less a comprehensive knowledge, of the relevant facts of the case. Incidentally, under the Rules of this Court, whenever an attorney de officio is employed or assigned by the court to defend the accused at the trial, he shall be given a reasonable time to consult with the accused and prepare his defense before proceeding further in the case, which shall not be less than two (2) days in case oil trial (Sec. 5, Rule 116, Revised Rules of Court). The record, incidentally, does not show the existence of a 'good cause' to justify the trial court in shortening the trial fixed by the Rules.

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WE deeply lament this attitude of the court a quo. Be that as it may, however, We only hope that hereafter trial courts would strictly comply with the rigid standard set in the following cases of Apduhan, Arpa and Solacito, all of which have invariably, consistently and firmly established and stressed the duty of trial courts before accepting the plea of guilty of an accused to a capital offense, In the recent case of People vs. Regular (L-38674, Sept. 30, 1981, 108 SCRA 23, 3233), the injunction is reiterated: At the outset, it must be stated that the plea of guilty by the two accused were improvidently laid. During the arraignment, the trial judge did not adhere strictly to the doctrine laid down in People vs.Apduhan (24 SCRA 798) where We postulated the guideline in cases where there is a plea of guilty by the accused. In the instant cases under review, We observe that the trial judge failed to explain fully to the two accused the meaning and the far-reaching effect of their plea. It was not explained to them the meaning of the term 'treachery,' an aggravating circumstance which qualified the crime to murder and frustrated murder respectively. Neither did the judge explain the terms 'evident premeditation' and 'recidivism,' both aggravating circumstances alleged in the information which had legal significance and consequences not ordinarily understandable to a layman. The trial judge asked the appellants whether they were aware that the court had no other alternative except to impose the capital punishment on them without explaining why it had to be so. In People vs. Solacito (L-29209, August 25, 1969, 29 SCRA 61), We had the occasion to say that, judges are duty-bound to be extra solicitous in seeing to it that when an accused pleads guilty, he understands fully the meaning of his plea and the import of an inevitable conviction, The desire to speed up the disposition of cases should not be effected at the sacrifice of the basic rights of the accused (People vs. Simeon, 47 SCRA 141). The conduct of the court a quo taken in the light of the foregoing decisions clearly established the fact that it had been remiss in its duties to the herein accused, who was convicted on an improvident plea of guilty. WHEREFORE, THE JUDGMENT CONVICTING ACCUSED TEODORO DEL ROSARIO IS HEREBY SET ASIDE AND THE CASE IS HEREBY REMANDED TO THE COURT A QUO FOR REARRANGEMENT AND FURTHER PROCEEDINGS, NO COSTS.

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G.R. No. 139180

July 31, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO RIVERA, accused- appellant. MENDOZA, J.: This is a review pursuant to Rule 122, §10 of the Rules of Criminal Procedure of the decision,1 dated June 22, 1999, of the Regional Trial Court, Branch 49, Guagua, Pampanga, finding accused-appellant Rolando Rivera guilty of rape and sentencing him to suffer the penalty of death and to pay the offended party, Erlanie Rivera, the sum of P75,000.00 as compensatory damages and P50,000.00 as moral damages. The information against accused-appellant charged— That sometime in the month of March 1997, in barangay Santiago, municipality of Lubao, province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused ROLANDO RIVERA, by means of violence, threat and intimidation, did then and there willfully, unlawfully and feloniously, and maliciously succeeded in having carnal knowledge [of] his 13 year old daughter, Erlanie D. Rivera, against the latter’s will and without her consent. Contrary to law.2 When the information was read to him in the local dialect (Pampango) during his arraignment on September 30, 1997, accused-appellant, duly assisted by counsel de oficio, pleaded not guilty to the crime charged,3 whereupon trial was held. The prosecution presented as its witnesses complainant Erlanie Rivera, her aunt, Marietta Pagtalunan, and Dr. Demetria Barin, who conducted the physical examination of complainant. Complainant Erlanie Rivera testified that sometime in March 1997, her younger sister, Zaira,4 was taken by their parents to the Escolastica Romero Memorial Hospital in Lubao, Pampanga. Complainant’s mother stayed with her sister in the hospital, but her father, herein accused-appellant, went back home to Santiago, Lubao, Pampanga. At around 11 o’clock in the evening of the same day, complainant was awakened as accused-appellant started kissing her and fondling her breasts. Complainant tried to resist by kicking and pushing accusedappellant, but her efforts were to no avail. Accused-appellant removed her shorts and panty, touched her private parts, and then had sexual intercourse with her. After he was through with her, accused-appellant told complainant not to tell anyone what had happened or he would kill complainant’s mother and sister.

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Hence, when her mother came home the following day, Erlanie did not tell her what had happened because she was afraid of accused-appellant. On April 9, 1997, however, Erlanie, in the presence of her mother, told her aunt, Marietta Pagtalunan, and her grandmother, Maxima Payumo, that she had been raped by accused-appellant. For this reason, she was referred to Dr. Barin for physical examination. She also executed a sworn statement before the police of Lubao, Pampanga.5 Erlanie testified that she became pregnant as a result of the rape committed against her by accused-appellant, but the pregnancy was aborted.6 On crossexamination, she said she was 13 years old at the time of her testimony, the second child in the family. She said that her parents were not on good terms with each other and that she knew that her father had a mistress. Atty. Mangalindan, then defense counsel, questioned Erlanie about other supposed acts of molestation committed by accused-appellant against her previous to the rape subject of the present case, but, upon objection of the prosecution, the trial court disallowed the question on the ground that it concerned matters not covered by her direct examination.7 Erlanie testified that her mother, grandmother, aunt, and a certain Nora Baluyut were present when she made her sworn statement before the police. She said that her father raped her only once, sometime in March 1997. She could not remember the exact date when she was raped by accused-appellant, but she did remember that the same took place in March as her sister, Zaira, was hospitalized at the time. When the rape occurred, her younger brother and sister were in their house asleep. She did not tell her mother after the latter had returned home that she had been raped by accused-appellant because she was afraid of her father who had threatened her. After the rape, accused-appellant would only come home on Sundays.8 Questioned further on cross-examination, Erlanie said that she gave her sworn statement before the police and that her answers to questions asked during her direct examination were freely given without coaching by anyone. She could understand Tagalog, the language used in her sworn statement. She told the court that she struggled against accused-appellant, kicking and pushing him, but she was overpowered by her father. At that time, Erlanie’s younger sister, Corazon, was lying beside her, but Erlanie did not shout even when her father succeeded in penetrating her. Erlanie could not remember how long the sexual act took place, but she felt something like urine come out of her father’s penis after he was finished with her. Erlanie testified that she was 12 years old when she was raped by her father.9 On re-direct examination, when asked about the discrepancy between her testimony that her mother returned home only the day after the rape and her statement in her affidavit that accused-appellant slept beside her mother after the rape, Erlanie replied that she made a mistake as the incident narrated in her

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affidavit referred to a different occasion when no rape was committed against her by accused-appellant.10 The next witness for the prosecution was Marietta Pagtalunan, complainant’s aunt and the sister of complainant’s mother, Evangeline. Marietta corroborated Erlanie’s testimony that the latter told her sometime in April 1997 that she had been raped by accused-appellant. Marietta said she took complainant to Dr. Barin, who examined complainant.11 Dr. Demetria Barin was Chief Physician of the Escolastica Romero District Hospital. Her findings are as follows: P.E. FINDINGS: - No signs of external Physical Injuries I.E. FINDINGS: HYMEN - healed laceration at 3:00 o’clock VAGINA - Admits one finger with ease two fingers with difficulty UTERUS - not enlarged LMP - March 3, 1997 Pregnancy Test (+)12 Dr. Barin testified that on April 10, 1997, she examined complainant Erlanie Rivera and found that the victim had an injury in the hymen at the 3 o’clock position which could possibly have been caused by the insertion of a hard object, such as a male organ. Dr. Barin testified that complainant Erlanie went back to see her on May 2, 1997 because she suffered from vaginal bleeding indicative of a threatened abortion. She said that she found that complainant was then pregnant. Upon examination of the patient at that time, Dr. Barin found that abortion had not yet taken place and prescribed medicines for the complainant. Erlanie was subjected to another pregnancy test on May 13, 1997, but the result was negative. Dr. Barin stated that the vaginal bleeding suffered by complainant could have caused the abortion of the fetus.13 Thereafter, the defense presented its evidence. Accused-appellant, his sister, Concepcion Sayo, and Natividad Pinlac, Records Officer of the Escolastica Romero District Hospital, were presented as witnesses. Accused-appellant denied that he raped Erlanie Rivera. He alleged that the rape charge was filed against him because his wife, Evangeline, had a paramour and

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resented him because he hurt her. He explained that he saw his wife talking with another man in their house and beat her up on April 1, 1997 because he heard that she had a lover. He also said that his wife was angry with him because he had a mistress who stayed in their house for three weeks. He further stated that his wife’s relatives were likewise angry with him because he caused the lot owned by his father-in-law in Santiago, Lubao, Pampanga to be registered in his name. He said that he was compelled to sign a waiver of his rights over the land owned by his parents-in-law.14 The defense presented a letter to accused-appellant written by his wife, who was asking him to sign a document so that she could attend to it before he got out of prison.15 The defense also offered as evidence a document, designated as Waiver of Rights,16 signed by accused-appellant, in which he acknowledged that he was a tenant of a parcel of land and that he waived and voluntarily surrendered his right over the said landholding to the "SMPCI," recommending that a certain Ponciano Miguel be given the land to work on the same. The document was identified by accused-appellant in open court. He said that Ponciano Miguel was a first cousin of his wife and that he signed the document because his wife’s relatives promised him that he would get out of prison after signing the document.17 Another witness for the defense was Concepcion Sayo, accused-appellant’s sister, who testified that in March 1997, accused-appellant lived with her family in Malawak, Bustos, Bulacan, to help her husband operate a fishpond. She said that accused-appellant stayed in their house during the entire month of March, except in March 19, 1997 when he stayed with their sister, Perla, in Tibagan, Bustos, Bulacan.18 The last defense witness was Natividad Pinlac, Records Officer of the Escolastica Romero District Hospital, who identified19 a certification, dated April 29, 1999, in which it was stated that Zaira Rivera was confined at that hospital from March 1 to March 2, 1997.20 On June 22, 1999, the trial court rendered a decision, the dispositive portion of which stated: WHEREFORE, the court finding the accused guilty beyond reasonable doubt of the crime of rape as charged. For having violated Article 335 of the Revised Penal Code, as amended by Republic Act 7659, with the attendant circumstances that the victim is under eighteen (18) years of age and the offender is the father of the victim and absent any circumstance that could mitigate the commission thereof, accused is hereby sentenced to suffer the supreme penalty of death by lethal injection. In line with established jurisprudence, said accused is also ordered to indemnify the offended party Erlanie Rivera in the sum of P75,000.00 as compensatory damages and P50,000.00 as moral damages.

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SO ORDERED.21 Hence, this appeal. Accused-appellant contends that: 1. The lower court failed to observe the constitutional right of the AccusedAppellant to due process and right to counsel; 2. The lower court failed to consider the evidence of the AccusedAppellant.22 I. Accused-appellant invokes his right to due process of law. He claims that he was denied the same because: (a) the trial judge disallowed his lawyer from crossexamining Erlanie Rivera concerning the latter’s sworn statements on the ground of irrelevance and immateriality; (b) the trial court denied the motion made by accused-appellant’s counsel de oficio to postpone the cross-examination of Dr. Barin, the examining physician, because of which the said counsel consequently waived the cross-examination of Dr. Barin; (c) the judge propounded numerous questions to accused-appellant during his cross-examination by the prosecutor; and (d) the trial court’s decision was promulgated just one day after accusedappellant submitted his memorandum. Procedural due process simply means that a person must be heard before he is condemned. The due process requirement is a part of a person’s basic rights, not a mere formality that may be dispensed with or performed perfunctorily.23 Considering both the evidence and the law applicable to this case, we hold that accused-appellant has been accorded his right to due process. A. One basis for accused-appellant’s contention that he was denied due process is the refusal of the trial judge to allow Atty. Mangalindan’s questions concerning the other alleged acts of molestation committed by accused-appellant against complainant. Accused-appellant argues that no legal ground exists for the trial court’s ruling. The transcript of stenographic notes concerning this incident shows the following: ATTY. MANGALINDAN: Q You mentioned in your testimony that you were molested by your father since 1996. COURT: Are you referring to a chain of events because police station you are referring is something there are two places this girl testified that she was raped, you referred to us Acts of Lasciviousness and

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she did not testified about that, that is another case with another Court, we are only trying here a rape case that is only they you never mention. Only on the matters that she testified (sic). ATTY. MANGALINDAN: But this is also related to the rape case your Honor because I will confront it with another form of a question. ATTY. MANGALINDAN: Q

Prior to this incident, were you molested by your father?

PROSECUTOR SANTOS: Immaterial, your Honor, whatever acts w[ere] done by the accused is not a subject of the case at bar. COURT: Let us confine [questioning] to the complaint at bar which is a rape case. ATTY. MANGALINDAN: This is related to the incident because we are here your Honor to prove, we are trying to discredit her testimony. We will just direct our question touching on the direct examination. COURT: Only on the matters that she only testified that is only thing you can cross-examine. Only matters testified which is only a rape case let us not dwell the Court knows there are other cases Acts of Lasciviousness pending in the lower Court at the proper Court otherwise if I will allow you to ask questions on other matters specially I know you are pinpointing the Acts of Lasciviousness you are prolonging this case here (sic). ATTY. MANGALINDAN: I am trying to discredit the witness as one where the credibility as witness here your Honor is very important. I stated before our main cross-examination is the accused is not a plan in such case, although I do sympathize (sic). We would like to propound

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question that will discredit her as witness and a complainant not with her testimony alone. Our center of cross-examination is to discredit her as complaining witness that is why our question may not be limited to be accepted under the rule of cross-examination your Honor the cross-examination your Honor the cross-examiner is not limited on the direct-testimony of the witness but he can propound questions which may petition or destroy the credibility of the witness that is our view point (sic). PROSECUTOR SANTOS: We cannot dispute the right of accused to discredit or to adopt our credibility of our witness, but it should be done in the proper way, not to ask immaterial questions which are not related. ATTY. MANGALINDAN: The rule for cross-examination insofar as to destroy the credibility of the witness is not only limited to what the Honorable Fiscal we came approach of so many cross-examinations goes allow your Honor under the rules of Court insofar as this case is related to the present case we are trying, this is very related because even the witness I have transcript in my hand, testified not only the rape case your Honor she had testified by direct-examination the preparatory acts before the testimony of rape that she was been molested early, finger of the father, this were testified through by the witness, it is here direct-testimony it is not limited (sic). PROSECUTOR SANTOS: Prior to this incident were you molested by your father, obviously your Honor the question is not relevant. ATTY. MANGALINDAN: Your Honor please I’m very disagreeable (sic), I have not with me the transcript but I have read that you [can] ask questions concerning the rape case. COURT: A question referring to events prior to the complaint at bar.24 The trial court later issued an order, dated December 9, 1997, the pertinent parts of which provided:

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After private complainant testified on direct-examination, counsel for accused attempted to cross-examine her on matters relevant to the complaint for Acts of Lasciviousness which was objected to by Asst. Provincial Prosecutor Arturo G. Santos on the ground that private complainant did not testify on that matter but limited her testimony on the rape case only. Counsel for the accused argued that although that is correct nonetheless because [of] the sworn statement executed by private complainant identified by said witness in her direct examination and marked as Exhibit "C" for the prosecution, he is at liberty to crossexamine the witness on all matters stated in her sworn statement including that portion touching on the acts of lasciviousness subject matter of another case before another court. The Court sustained the objection. Section 6, Rule 132, Revised Rules on Evidence provides that "the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias or the reverse, and to elicit all important facts bearing upon the issue." The witness testified only on the rape case. She did not testify anything about acts of lasciviousness committed upon her person. She may not therefore be questioned on this matter because it is not connected with her direct testimony or has any bearing upon the issue. To allow adverse party to cross-examine the witness on the acts of lasciviousness which is pending trial in another court and which the witness did not testify is improper. Questions concerning acts of lasciviousness will not in any way test the accuracy and truthfulness and freedom from interest or bias or the reverse. On the contrary such questions, if allowed, will unduly burden the court with immaterial testimonies.25 In another order, dated January 13, 1998, the trial court gave accused-appellant’s counsel 20 days within which to elevate its ruling to the appellate court.26 The records reveal, however, that no such petition was filed by Atty. Mangalindan as regards this particular matter. The question, therefore, is whether the trial court correctly disallowed accusedappellant’s counsel from questioning complainant as regards the other supposed acts of lasciviousness contained in her sworn statement. On this point, Rule 132, §6 of the Revised Rules on Evidence provides: Upon the termination of the direct examination, the witness may be crossexamined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest, bias or the reverse and to elicit all important facts bearing upon the issue.

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The right of a party to cross-examine a witness is embodied in Art. III, §14(2) of the Constitution which provides that the accused shall have the right to meet the witnesses face to face and in Rule 115, §1(f) of the Revised Rules of Criminal Procedure which states that, in all criminal prosecutions, the accused shall have the right to confront and cross-examine the witnesses against him.27 The crossexamination of a witness is essential to test his or her credibility, expose falsehoods or half-truths, uncover the truth which rehearsed direct examination testimonies may successfully suppress, and demonstrate inconsistencies in substantial matters which create reasonable doubt as to the guilt of the accused and thus give substance to the constitutional right of the accused to confront the witnesses against him.28 The right of the accused to cross-examine a witness is, however, not without limits but is subject to the rules on the admissibility and relevance of evidence. Thus, in People v. Zheng Bai Hui,29 this Court upheld the ruling of the trial judge disallowing the questions propounded by the accused’s counsel on the ability of the arresting officer to distinguish between tawas and shabu without a laboratory examination, the academic degree of his training instructor, and the officer’s authorship of books on drug identity and analysis for being irrelevant, improper, and impertinent. In this case, accused-appellant’s counsel argued that his questions to Erlanie on the other acts of lasciviousness supposedly committed by accused-appellant against her were for the purpose of testing her credibility. There was, however, no showing on his part how these questions had any bearing on complainant’s credibility or on the truth of her claims. One is led to suspect that the purpose of these questions was to confuse complainant into committing mistakes in her answers during cross-examination that accused-appellant’s counsel could later use to possibly put complainant’s credibility, not to mention her character, in question. Accused-appellant insists that his counsel should have been allowed to ask questions in relation to the sworn statement executed by complainant. He cites Rule 132, §17 of the Revised Rules of Evidence which provides that: When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject matter may be inquired into by the other. Neither can this rule be invoked to justify the questioning of complainant which the trial court did not allow. As the above provision states, this rule applies to parts of "an act, declaration, conversation, writing or record" which is given in evidence. Indeed, the records show that after Erlanie had finished with her direct examination on November 25, 1997, the trial judge granted the motion made by Atty. Anselmo Mangalindan, accused-appellant’s private counsel, to postpone Erlanie Rivera’s cross-examination to allow him time to secure copies of the transcript of stenographic notes of Erlanie’s testimony and thus enable him to fully

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question complainant.30 Erlanie was first cross-examined on December 2, 1997, but several postponements, namely, on January 13, 1998,31 February 10, 1998,32 March 12, 1998,33 March 31, 1998,34 April 7, 1998,35 May 12, 1998,36 May 26, 1998,37 May 28, 1998,38 and June 11, 1998,39 on Erlanie’s cross-examination took place because of the failure of Atty. Mangalindan to appear on the said trial dates. Erlanie’s crossexamination was continued on July 14, 1998 and July 23, 1998. Her crossexamination by accused-appellant’s counsel was thorough and covered various subjects, such as the nature of the relationship between her parents, who were present during the execution of her sworn statement, whether the same had been executed by her voluntarily, the date when she was raped by accused-appellant the reason for her delay in reporting the rape committed by accused-appellant, her understanding of Tagalog, who were with her in the house at the time of the rape, the details surrounding the rape committed against her, and her age. It is evident that accused-appellant and his counsel were given ample opportunity to conduct the cross-examination of Erlanie Rivera in order to test her truthfulness. B. The record shows that because accused-appellant’s private counsel was not present when Dr. Barin testified, Atty. Eddie Bansil was appointed by the trial court as accused-appellant’s counsel de oficio for that particular hearing. Atty. Bansil moved for the postponement of the witness’ cross-examination, but the trial court denied his request because, on the one hand, accused-appellant was a detention prisoner and Dr. Barin was a very busy person, while, on the other hand, Atty. Bansil had heard the testimony of the said witness. Atty. Bansil then decided not to cross-examine Dr. Barin.40 Accused-appellant now contends that the trial judge denied the motion of Atty. Bansil for postponement because he was biased against him. Accused-appellant claims that the counsel de oficio was not familiar with the facts of his case and was thus in no position to cross-examine Dr. Barin. While the Constitution recognizes the accused’s right to competent and independent counsel of his own choice, his option to secure the services of a private counsel is not absolute. For considering the State’s and the offended party’s right to speedy and adequate justice, the court may restrict the accused’s option to retain a private counsel if the accused insists on an attorney he cannot afford, or if the chosen counsel is not a member of the bar, or if the attorney declines to represent the accused for a valid reason.41 The trial court appointed Atty. Bansil a counsel de oficio to represent accusedappellant on October 6, 1998 because his regular counsel, Atty. Anselmo Mangalindan, was absent without any explanation. Atty. Mangalindan had previously been granted several postponements. As this Court ruled in another case: . . . Courts are not required to wait indefinitely the pleasure and convenience of the accused as they are also mandated to promote the speedy and orderly administration of justice. Nor should they countenance such an obvious trifling with the rules. Indeed, public policy

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requires that the trial continue as scheduled, considering that appellant was adequately represented by counsels who were not shown to be negligent, incompetent or otherwise unable to represent him.42 Atty. Bansil was present and heard the testimony of Dr. Barin, the prosecution witness, on that day. Dr. Barin’s testimony on direct examination was simple, containing primarily a discussion of her findings on the hymenal laceration sustained by complainant. Her testimony did not require considerable study and extraordinary preparation on the part of defense counsel for the purpose of crossexamination. It seems Atty. Bansil no longer found it necessary to cross-examine Dr. Barin. Moreover, beyond stating that Dr. Barin was a vital witness, accused-appellant has not indicated what questions his counsel wanted to ask from Dr. Barin. It may well be that these questions do not exist at all and that the importance given by accused-appellant to counsel de oficio’s failure to cross-examine the witness is exaggerated. Indeed, a medical examination of the victim, together with the medical certificate, is merely corroborative and is not an indispensable element of rape.43 The primordial issue in this case remains to be whether the complainant’s testimony, not Dr. Barin’s, established beyond reasonable doubt the crime of rape. C. Accused-appellant likewise points to the trial judge’s questions propounded to him during his cross-examination as an indication of the latter’s partiality for the prosecution. We find no merit in this contention. Where the trial court is judge both of the law and of the facts, it is oftentimes necessary in the due and faithful administration of justice for the presiding judge to re-examine a witness so that his judgment, when rendered, may rest upon a full and clear understanding of the facts.44 Our reading of the transcript of stenographic notes in this case shows that the trial judge merely wanted to clarify certain points relating to the defense of accused-appellant and not to establish his guilt. It is a judge’s prerogative to ask questions to ferret out the truth.45 It cannot be taken against him if the questions he propounds reveals certain truths which, in turn, tend to destroy the theory of one party.46 As this Court held: In any case, a severe examination by a trial judge of some of the witness for the defense in an effort to develop the truth and to get at the real facts affords no justification for a charge that he has assisted the prosecution with an evident desire to secure a conviction, or that he had intimidated the witnesses for the defense. The trial judge must be accorded a reasonable leeway in putting such questions to witnesses as may be essential to elicit relevant facts to make the record speak the truth. Trial judges in this jurisdiction are judges of both the law and the facts, and they would be negligent in the performance of their duties if they permitted a miscarriage of justice as a result of a failure to propound a proper question to a witness which might develop some material bearing upon the outcome. In the exercise of sound discretion, he may

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put such question to the witness as will enable him to formulate a sound opinion as to the ability or the willingness of the witness to tell the truth. A judge may examine or cross-examine a witness. He may propound clarificatory questions to test the credibility of the witness and to extract the truth. He may seek to draw out relevant and material testimony though that testimony may tend to support or rebut the position taken by one or the other party. . .47 D. We also find no merit in accused-appellant’s argument that he was denied due process considering the speed with which the trial court rendered judgment against him, which judgment was promulgated one day after he filed his memorandum. The decision rendered by the trial court gives a clear account of the facts and the law on which it is based. It discusses in full the court’s findings on the credibility of both the prosecution and defense witnesses and its evaluation of the evidence of both parties. What we said in the analogous case of People v. Mercado48 applies to this case: . . . A review of the trial court’s decision shows that its findings were based on the records of this case and the transcripts of stenographic notes during the trial. The speed with which the trial court disposed of the case cannot thus be attributed to the injudicious performance of its function. Indeed, a judge is not supposed to study a case only after all the pertinent pleadings have been filed. It is a mark of diligence and devotion to duty that a judge studies a case long before the deadline set for the promulgation of his decision has arrived. The one-day period between the filing of accused-appellants’ memorandum and the promulgation of the decision was sufficient time to consider their arguments and to incorporate these in the decision. As long as the trial judge does not sacrifice the orderly administration of justice in favor of a speedy but reckless disposition of a case, he cannot be taken to task for rendering his decision with due dispatch. . . II. Coming now to the merits of this case, we find that the evidence proves beyond reasonable doubt the guilt of accused-appellant. In reviewing rape cases, we have been guided by the following principles: (a) An accusation for rape is easy to make, difficult to prove, and even more difficult to disprove; (b) In view of the intrinsic nature of the crime, the testimony of the complainant must be scrutinized with extreme caution; and (c) The evidence for the prosecution must stand on its own merits and cannot draw strength from the weakness of the evidence for the defense.49 A. Well-settled is the rule that the lone testimony of a rape victim, by itself, is sufficient to warrant a judgment of conviction if found to be credible. It has likewise been established that when a woman declares that she has been raped she says in effect all that is necessary to mean that she has been raped, and where her testimony passes the test of credibility the accused can be convicted

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on the basis thereof. This is because from the nature of the offense, the sole evidence that can usually be offered to establish the guilt of the accused is the complainant’s testimony.50 Considering complainant’s tender age, her shy demeanor, and manner of testifying in court, the trial court found Erlanie’s testimony to be straightforward, natural, and convincing and accorded the same full faith and credit.51 Complainant told the court how she was awakened because accused-appellant kissed her and fondled her breasts. She narrated that she tried to resist accusedappellant’s advances by pushing and kicking him, but the latter succeeded in ravishing her. She told of how her father threatened to kill her mother and her siblings if she reported the incident. Despite the lengthy cross-examination of accused-appellant’s counsel, she remained firm and steadfast in her story of how she was raped by her father. Her narration not only rings true and sincere but is consistent and unshaken on its material points. Complainant’s testimony is fully corroborated by the medical findings of Dr. Barin who examined complainant shortly after she had been raped. She found complainant to have suffered a hymenal laceration at the 3 o’clock position which could have been caused by the penetration of a hard object, such as a male organ. Complainant’s failure to remember the date of the commission of the rape cannot be taken against her. The exact date when complainant was sexually abused is not an essential element of the crime of rape.52 Nor does the fact that complainant was sleeping beside her sister when the rape occurred detract from her credibility. The possibility of rape is not negated by the fact that the presence of even the whole family of the accused inside the same room produced the possibility of discovery. For rape to be committed, it is not necessary for the place to be ideal, for rapists respect neither time nor place for carrying out their evil designs.53 In sum, accused-appellant failed to show any reason why this Court should disbelieve complainant’s testimony. Indeed, the gravity of filing a case for incestuous rape is of such a nature that a daughter’s accusation must be taken seriously. It is against human experience for a girl to fabricate a story which would drag herself and her family to a lifetime of dishonor, unless it is the truth. More so when her charge could mean the execution of her own father, as in this case. 54 Accused-appellant’s counsel on cross-examination made much of the discrepancy between complainant’s sworn statement where she stated that accused-appellant slept beside her mother after the rape55 and her testimony that her mother returned home from the hospital only the day after the rape took place.56 It must be pointed out, however, that discrepancies between a witness’ affidavit and his testimony in open court does not necessarily impair his credibility. Affidavits, which are taken ex parte, are often incomplete or inaccurate for lack of or absence of searching inquiries by the investigating officer.57

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Moreover, whether accused-appellant slept alone or with complainant’s mother after committing the rape of complainant is of no moment as it is a minor point that does not reflect on the commission of the crime itself. The rule is that discrepancies and inconsistencies on minor matters neither impair the essential integrity of the prosecution evidence as a whole nor reflect on the witness’ honesty. Such inconsistencies may in fact strengthen rather than weaken the credibility of the witness as they erase any suspicion of rehearsed testimony.58 Accused-appellant contends that complainant could not have been raped on March 1 or 2, 1997, the dates when her sister Zaira was hospitalized, because she had her last menstrual period on March 3, 1998 and thus she could not have gotten pregnant as a result of the rape. He argues that a woman who had her monthly period cannot be impregnated as a result of sexual intercourse five days before or five days after her last menstruation.59 Accused-appellant does not, however, cite any legal or medical authority for his thesis, except what he claims to be common knowledge. On the other hand, we have previously held that it is hard to ascertain the exact date of fertilization inasmuch as more than two weeks is considered to be the life span of the spermatozoa in the vaginal canal.60 Hence, even granting that complainant could not have been impregnated by accused-appellant during the period alleged by him, it remains possible for complainant to have gotten pregnant afterwards. More importantly, it must be emphasized that pregnancy is not an element of the crime of rape and is, therefore, totally immaterial to the question of accused-appellant’s guilt.61 In other words, accused-appellant being the cause of complainant’s pregnancy is a non-issue in the prosecution of the crime of rape. What should not be lost sight of is the fact that complainant’s testimony constitutes proof beyond reasonable doubt that accused-appellant had carnal knowledge of her without her consent, and such fully established the crime of rape. B. Accused-appellant imputes ill motive on the part of complainant’s mother and her relatives for bringing charges against him. He claims that complainant’s mother resented the fact that he used to beat her up out of jealousy and that he had several paramours in the past. He further asserts that his wife’s relatives were angry with him because of the land which he caused to be registered in his name to the prejudice of the latter. This allegation is without merit. Accused-appellant makes it appear that complainant’s mother was responsible for the filing of this case against him. This is not so. For that matter, his wife did not testify against him. It was his daughter, complainant, alone who denounced him in court. Accused-appellant’s claim that the motivation for the filing of this case was the animosity of his wife’s relatives towards him caused by his land-grabbing of their land is likewise without any basis. It may be that his wife’s relatives took advantage of his incarceration and made him sign his waiver of rights over the land.62 But this does not necessarily mean they conspired to persecute him. It is noteworthy that accused-appellant never claimed that the document which he signed (Exh. 3)

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existed before the filing of the criminal complaint against him or that his wife’s relatives fabricated the charge against him because of his failure to sign the same. Indeed, what accused-appellant’s defense cannot explain is the hymenal laceration sustained by complainant or the steadfastness she has exhibited in pursuing the charge against her own father. It is doubtful that complainant would let herself be embroiled in a petty family dispute in exchange for her honor and dignity. We cannot believe that a young girl, like complainant, would invent a sordid tale of sexual abuse by accused-appellant unless it was the truth.63 Where there is no evidence to show a doubtful reason or improper motive why a prosecution witness should testify against the accused or falsely implicate him in a crime, her testimony is trustworthy.64 Accused-appellant also raises the defense of denial and alibi. But the bare denial of accused-appellant cannot overcome the positive declarations of complainant. Denial, when unsubstantiated by clear and convincing evidence, constitutes negative self-serving evidence which deserves no greater evidentiary value than the testimony of a credible witness who testified on affirmative matters.65 Accused-appellant’s sister, Concepcion Sayo, testified that accused-appellant lived with her family in Bulacan at the time of the rape. No other witness not related to accused-appellant, however, was called to corroborate her claim. We have already held that the defense of alibi cannot prosper if it is established mainly by the accused and his relatives, and not by credible persons. It is not improbable that these witnesses would freely perjure themselves for the sake of their loved ones.66 Accused-appellant’s defense thus fails to convince this Court. C. The foregoing discussion notwithstanding, we think that the imposition of the death penalty by the trial court is erroneous. It is settled that to justify the imposition of the death penalty, both the relationship of the victim and her age must be alleged and proved.67 Thus, in People v. Javier,68 where the victim was alleged to be 16 years old at the time of the commission of the rapes, it was held: . . . Although the victim’s age was not contested by the defense, proof of age of the victim is particularly necessary in this case considering that the victim’s age which was then 16 years old is just two years less than the majority age of 18. In this age of modernism, there is hardly any difference between a 16-year old girl and an 18-year old one insofar as physical features and attributes are concerned. A physically developed 16-year old lass may be mistaken for an 18-year old young woman, in the same manner that a frail and young-looking 18-year old lady may pass as a 16year old minor. Thus, it is in this context that independent proof of the actual age of a rape victim becomes vital and essential so as to remove an iota of doubt that the victim is indeed under 18 years of age as to fall under the qualifying circumstances enumerated in Republic Act No. 7659. In a criminal prosecution especially of cases involving the extreme penalty of death, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime with which an accused is charged

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must be established by the prosecution in order for said penalty to be upheld. A duly certified certificate of live birth showing complainant’s age, or some other official document on record, such as a school record, has been recognized as competent evidence.69 In this case, although complainant’s minority has been alleged in the information, no independent evidence was presented by the prosecution to prove the same. Complainant did not even state her age at the time of the rape during direct examination; it was only during her cross-examination when she stated that she was 12 years old at the time she was raped by her father.70 Nor was her birth certificate or baptismal certificate or any school record presented by the prosecution to prove the age of Erlanie at the time of the rape. Not even her mother, whose testimony could have been sufficient to prove the age of complainant,71 testified in this case. What was relied upon by the trial court was that fact that the age of the victim was undisputed by the defense.72 It also took judicial notice of the victim’s minority on account of her appearance. 73 We do not agree with this conclusion. The trial court can only take judicial notice of the victim’s minority when the latter is, for example, 10 years old or below. Otherwise, the prosecution has the burden of proving the victim’s age at the time of the rape and the absence of denial on the part of accused-appellant does not excuse the prosecution from discharging its burden.74 In a similar case, People v. Tundag,75 in which the trial court took judicial notice of the minority of the victim who was alleged to be 13 years old, we ruled: In this case, judicial notice of the age of the victim is improper, despite the defense counsel’s admission, thereof acceding to the prosecution’s motion. As required by Section 3 of Rule 129, as to any other matters such as age, a hearing is required before courts can take judicial notice of such fact. Generally, the age of the victim may be proven by the birth or baptismal certificate of the victim, or in the absence thereof, upon showing that said documents were lost or destroyed, by other documentary or oral evidence sufficient for the purpose. The prosecution having failed to present evidence as to complainant’s age, accused-appellant can be convicted only of simple rape, for which the penalty is reclusion perpetua. Consequently, the award of civil indemnity in the amount of P75,000.00 made by the trial court cannot be sustained. Such amount can only be awarded if the crime of rape was effectively qualified by any of the circumstances under which the death penalty is authorized by the applicable amendatory laws.76 Accordingly, the civil indemnity awarded to complainant must be reduced to P50,000.00 in consonance with current rulings.77

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The award of moral damages in the amount of P50,000.00 to complainant is correct. Moral damages is awarded in rape cases without need of showing that the victim suffered from mental, physical, and psychological trauma as these are too obvious to require recital by the victim during trial.78 In addition to the damages given by the trial court, exemplary damages in the amount of P25,000.00 should likewise be awarded in favor of complainant. Accused-appellant being the father of complainant, such relationship can be appreciated as a generic aggravating circumstance warranting the award of exemplary damages. In rapes committed by fathers against their daughters, such award may be imposed to serve as a deterrent to other parents similarly disposed to commit the same crime.79 WHEREFORE, the decision of the Regional Trial Court, Branch 49, Guagua, Pampanga, finding accused-appellant guilty of the crime of rape is AFFIRMED with the modification that accused-appellant is sentenced to suffer the penalty of reclusion perpetua and to pay complainant Erlanie Rivera the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages. SO ORDERED.

G.R. No. 138335

May 20, 2004

THE PEOPLE OF THE PHILIPPINES, appellee, vs. OSCAR ALCANZADO, appellant. AUSTRIA-MARTINEZ, J.: Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the decision1dated April 5, 1999 issued by the Regional Trial Court (Branch 66) of Makati City (RTC for brevity) in Criminal Case No. 98-1634, the dispositive portion of which reads: IN VIEW OF THE FOREGOING, judgment is hereby rendered finding accused OSCAR ALCANZADO y ORQUEZA GUILTY beyond reasonable doubt of MURDER, with the qualifying circumstance of treachery, and the Court hereby sentences him to suffer the penalty of Reclusion Perpetua and to pay the heirs of the unidentified victim the sum of ₱50,000.00 as moral damages. SO ORDERED.

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Makati City, Metro Manila, April 5, 1999.2 However, a careful examination of the records reveals that the assailed decision will have to be set aside and the records remanded back to the RTC for reception of evidence for the defense. Appellant pleaded not guilty during his arraignment on July 30, 1998. Trial on the merits ensued. The prosecution rested its case on October 13, 1998. 3 Upon motion of appellant, the RTC issued an Order dated November 10, 1998 allowing appellant to file a demurrer to evidence.4 On November 19, 1998, appellant filed his Demurrer to Evidence5 which was opposed by the prosecution.6 On April 22, 1999, the RTC promulgated herein assailed decision convicting appellant. 7 The RTC committed a very serious error in promulgating a decision after denying the demurrer to evidence filed by appellant upon prior leave of court, without first giving appellant the opportunity to present his evidence. Section 15, Rule 119 of the Rules of Court provides: SEC. 15. Demurrer to evidence. – After the prosecution has rested its case, the court may dismiss the case on the ground of insufficiency of evidence: (1) on its own initiative after giving the prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave of court. If the court denies the motion for dismissal, the accused may adduce evidence in his defense. When the accused filed such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. Contrary to the RTC’s assertion in its decision that the demurrer to evidence was denied,8 the records of the case do not reveal that there was any prior order denying appellant’s demurrer to evidence before the rendition of the assailed judgment. Evidently, the trial court violated the aforequoted provisions of Section 15, Rule 119. Appellant had filed a motion for leave to file a demurrer to evidence which was granted by the RTC and therefore upon denial of his demurrer, if indeed it was denied, the trial court should have given appellant the opportunity to present his evidence. Equally astonishing is the fact that appellant’s counsel did not raise said irregularity as an issue in the RTC or in this Court. In effect, appellant has not been accorded due process. Due to the procedural unfairness and complete miscarriage of justice in the handling of the proceedings in the RTC,9 a remand of the case for reception of defense evidence is warranted. The constitutional right of the accused to be heard on his defense has been violated.10 So that appellant may be spared from further delay, the Court deems it necessary to treat the herein assailed judgment as a mere resolution denying the demurrer to

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evidence and ascertain whether the RTC has committed grave abuse of discretion in not granting the same. The RTC made the following findings of fact and law, viz: In brief, the evidence for the prosecution show that on the early morning of June 17, 1998, the Barangay Tanods of Bel-Air, while on duty, which is adjacent to TGIF American Bar, heard two (2) shots; when they investigated they found a dead body of the victim with two (2) gunshot wounds inside the storeroom of TGIF being guarded by the accused. The accused, who was the security guard of the TGIF, surrendered his service firearm (Exhibit "D") to policeman Bagon which was found to have spent two (2) spent shells. The ballistic report states that the two (2) spent shells were fired from the gun surrendered by the accused to policeman Bagon. The accused opted to file demurrer to evidence which was denied by the Court, instead of testifying and could have explained what really happened and why he surrendered his service firearm. The Court finds the presence of a qualifying circumstance of treachery, when the accused fired at the victim one on his shoulder and another at his head in close range (TSN dated October 13, 1998, p. 36).11 There was no eye-witness to the shooting incident. The RTC relied principally on the admission of appellant to the police officer that he shot the unknown victim when he surrendered his service firearm. In his demurrer to evidence, appellant pointed out the following: I. There is no evidence that the firearm marked and offered as Exhibit D belonged or was assigned to the accused. II. There is no evidence that the accused had recently fired a gun in the early morning of June 17, 1998. III. There is no evidence that the firearm marked and offered as Exhibit D was the same firearm that killed the unknown victim in this case. IV. There is reasonable doubt that the body examined by the medicolegal witness was the same body recovered from the scene of the killing. V. The extrajudicial admission made by the accused to the police officer and his alleged voluntary surrender of the .38 caliber revolver cannot be admitted in evidence against the accused for having been obtained in violation of his constitutional rights.

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VI. Without any admission on the part of the accused or an unbroken chain of incriminating circumstances, the accused is entitled to acquittal since the prosecution failed to prove his culpability for the death of the unknown victim here beyond a reasonable doubt.12 Considering that the first four items as above enumerated involve questions of fact, the Court will not pre-empt the RTC in rendering its findings of fact after it shall have received the defense evidence as well as rebuttal and sur-rebuttal evidence, if parties find it necessary. However, the Court is constrained to resolve the question arising from the fifth and sixth claims of appellant, which is: Whether or not the admission made by appellant to the police officer is admissible in evidence. It is the only link that would positively connect appellant to the shooting of the victim, for the service gun may belong to him and it may have been used in the shooting of the victim, but the missing link is the ascertainment of whether he was the one who shot the victim. Without the testimony of the police officer that appellant had verbally acknowledged to him having shot the victim, the herein-before quoted circumstantial evidence enumerated by the RTC do not support the conviction of appellant beyond reasonable doubt. Section 12 (1) and (3), Article III of the 1987 Constitution provides: Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. The rights cannot be waived except in writing and in the presence of counsel. (3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible in evidence against him. The rights of the accused as provided therein may be invoked only when a person is under "custodial investigation" or is "in custody investigation" 13 which has "been defined as the "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way" [People vs. Caguioa, G.R. No. L-38975, January 17, 1980, 95 SCRA 2, 9 citing Miranda v. Arizona, 384 U.S. 436].14 SPO1 Rolando Bagon, the police officer of Precinct 9, Makati City, who responded to the report of the shooting incident, testified as follows: Q: What time did you arrive there at TGI Friday’s Restaurant? A: When we arrived there it was at around 5:15 to 6:00.

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Q: A.M.? A: June 17, Sir. Q: When you arrived there, what did you do, Mr. Witness? A: The barangay tanod present at that time pointed to us and turned over to us the alleged suspect who is the security guard of the said establishment then we went to the security guard and he voluntarily surrendered himself to us, together with the firearm, a .38 caliber. Q: What did he tell you when he surrendered and gave to you his .38 caliber Mr. Witness? WITNESS: A: That he allegedly hold (sic) a robber inside "while stealing" according to him a cash register of the bar and some assorted goods. COURT: Q: Who told you that? WITNESS: A: The security guard, the alleged suspect Sir. FISCAL FLORES: Q: What else did he tell you? A: Nothing Sir, he fired his gun at the victim. FISCAL FLORES: Q: After the said accused surrendered himself and his firearm, what else did you do at the said bar? A: Sir, we invited him to our precinct to shed light or to answer what he committed.15 (Emphasis supplied). and, on his cross-examination, he testified as follows:

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Q: Is it not true that when the accused Oscar Alcanzado in this case approached you, he was not evasive and that he voluntarily turned over the firearm and his person to you? A: Yes, Sir.16 The cross-examination of homicide investigator PO2 Rio S. Bucalan who proceeded to the shooting incident, revealed the following: Q: Mr. Witness, when you arrived at the scene of the incident in questioned in this case, is it correct to say that you conducted the investigation right there and then? Witness: A: Yes sir. Atty. Alikpala: And at that scene at that time was the accused in this case, Osca Alcanzado, is that correct? Witness: Yes sir. Atty. Alikpala: Mr. Witness, isn’t it also true that at that time you conducted an investigation you spoke with the accused in this case? Witness: Yes sir. Atty. Alikpala: And when you spoke to the accused, did you tell him about his right to remain silent and his right to counsel? Witness: He is not still turn-over to me by the police officer.

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... Atty. Alikpala: Mr. Witness, so at that time that you conducted your investigation, you spoke to the accused? Witness: Yes sir. Atty. Alikpala: And did you tell him about his right to remain silent and his right to counsel? Witness: In fact I don’t know that he is the accused during my initial inquiry. Atty. Alikpala: But you knew that he was a Security Guard? Witness: Yes sir. Atty. Alikpala: And so could you tell us what happened when you talked to him? Witness: During the initial inquiry he claimed that . . . . he verbally claimed that he shot the victim because of self-defense. COURT: He claimed that he shot the victim? Witness: Yes, Your Honor.

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Atty. Alikpala: And this was in the course of your investigation, correct? Witness: Yes sir. Atty. Alikpala: And the accused in this case, did not execute any written waiver of his right to remain silent, is that correct? Witness: No sir. Atty. Alikpala: And also the accused in this case did not execute any written waiver of his right to counsel, is that correct? Witness: No sir. COURT: What do you mean no? Witness: He did not execute, sir. Atty. Alikpala: And it is also correct that the time he was talking to you there was no lawyer present assisting the accused, is that correct? Witness: Yes sir.17

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Under the above circumstances, the Court finds that while the admission made by appellant to PO2 Bucalan may not be admitted in evidence considering that the alleged verbal admission made by appellant before him as homicide investigator was made without appellant being informed of his right to remain silent and right to counsel and after appellant had been established as the suspect by the police officers who had arrived at the scene of the crime before PO2 Bucalan came. However, the Court cannot disregard the testimony of SPO1 Bagon who, together with his co-police officers, responded to the call of the barangay tanod and immediately upon his arrival, appellant spontaneously told him that he had shot the victim. This particular admission was made when appellant has not been taken into custody by the police officers and therefore admissible in evidence. The constitutional procedures on custodial investigation do not apply to a spontaneous statement not elicited through questioning by the authorities but given in an ordinary manner whereby the accused readily admitted having committed the crime.18 Consequently, for purposes of determining whether the demurrer to evidence should have been granted, the connection between the service gun and appellant as the perpetrator of the shooting, without any countervailing evidence, had been sufficiently established. Thus, the RTC did not commit any grave abuse of discretion in denying the demurrer to evidence BUT it committed grave abuse of discretion in outrightly convicting appellant of the crime of murder and sentencing him to suffer reclusion perpetua when appellant has not been given the opportunity to adduce evidence in his defense, pursuant to Section 15, Rule 119 of the Rules of Court. Further, the attendant justifying, mitigating or aggravating circumstance such as self-defense, treachery and voluntary surrender could only be ascertained fully after the defense evidence, rebuttal and sur-rebuttal, if any, shall have been adduced and evaluated by the RTC in the rendition of its judgment on the case. Had Presiding Judge Rosario, Jr. not compulsorily retired from the Judiciary, he could have been admonished to be more circumspect in the performance of his duties. WHEREFORE, the petition is GRANTED. The decision dated April 5, 1999 of the Regional Trial Court (Branch 66), Makati City is SET ASIDE for being null and void. Let the records of Criminal Case No. 98-1634 be remanded to said trial court for reception of defense evidence and further proceedings. The presiding judge is directed to conduct the trial of the case and render judgment thereon with immediate dispatch. SO ORDERED.

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RIGHT TO BE INFORMED G.R. No. 127845

March 10, 2000

PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. LODRIGO BAYYA, defendant and appellant. PURISIMA, J.: For automatic review here is a judgment handed down by Branch 16 1 of the Regional Trial Court in Ilagan, Isabela, finding appellant Lodrigo 2 Bayya guilty of incestuous rape and sentencing him to the ultimate penalty of DEATH. Filed on October 9, 1995 by Asst. Provincial Prosecutor Pacifico Paas and docketed as Criminal Case No. 2467, the accusatory portion of the Information indicting appellant, alleges: That on or about the year 1994 and for sometimes (sic) thereafter in the municipality of Burgos, province of Isabela, Philippines and within the jurisdiction of this Honorable Court, the said accused armed with a knife, did then and there, willfully, unlawfully and feloniously, by means of force, intimidation and with lewd designs, have carnal knowledge with his own daughter ROSIE S. BAYYA for several times against the latters (sic) will and consent. CONTRARY TO LAW. 3 After appellant pleaded Not Guilty upon arraignment on Nov. 22, 1995 4 , trial ensued. From the decision of Nov. 15, 1996 under review, it can be gleaned that: This is a case of a father raping his own daughter, a minor, aged 12 when she was first sexually assaulted up to July 12, 1995, the last molestation having done on her on said date (sic). . . . it appears that Rosie Bayya, a minor, revealed to her aunt, Trinidad Garcia, her horrible tale at the hands of her father, the accused herein, six (6) days after the last sexual assault on her when Rosie was asked by her to baby-sit for another aunt of hers at Santiago, Isabela. She was compelled to reveal what befell her when she was informed that her father asked her to go back home but never wanted to (sic), knowing that her father would continue raping her. She told her aunt Trining that she does not like to go home because her father used to have sexual intercourse with her.

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With the revelation made by Rosie Bayya, her aunt Trining went back to Malasin, Burgos, Isabela to inform Melquiades Bayya, Rosie’s granduncle who in turn informed a certain Major Turingan of the PNP what the accused did to his daughter (sic). The girl was brought to the PNP station of Burgos to give her statement which she did where she divulged what her father did to her. The gist of her testimony in court is that sometime in 1994 when she was still 12 years old, her father, the accused, forced her at the point of a knife to have sexual intercourse with her in the family house at Malasin, Burgos, Isabela. Being afraid as he threatened her, the accused succeeded in undressing the young daughter and he inserted his penis into her vagina. She felt pain as a result and just kept to herself what her father did fearing that her father would make good his threats if she squealed on him. She just cried helplessly. The first sexual molestation happened at an unholy hour at noon time (sic) when her mother and the rest of the siblings were out, her mother working in the field at the time. Her father repeated this bestial act in their house about twice a week when her mother was not at home; at times only a sister six years of age was present but probably did not know what her father was doing to her elder sister. Then later, he used her four (4) times a month and the last that she remembered was on July 12, 1995. After she was advised to file a complaint at her behest, she was brought to the PNP station at Burgos to continue and wind up her ordeal with a physical examination of her by a public physician, Dr. Elvie 5 Amurao of the Roxas District Hospital at Roxas, a nearby town of Burgos. Dr. Amurao found old lacerations compatible with the claim of the complainant that she was raped months before her examination. 6 Appellant and his wife, Cecilia Bayya, took the witness stand for the defense. Appellant unhesitatingly admitted having carnal knowledge of his daughter, Rosie Bayya, twice but theorized that he was "out of his mind" 7 when he did the lecherous acts on her. He traced his criminal behavior to a childhood that was neglected and forlorn in the mountains of Isabela, let alone the maltreatment endured in the hands of his very own parents.8 On the other hand, Cecilia Bayya, mother of the victim and wife of appellant, manifested on the witness stand her "neutral" stance 9 in the case. Nonetheless, she disclosed that she had forgiven her husband for his salacious conduct since they are poor and she cannot eke out a living without appellant as breadwinner. 10 Finding the facts established by the evidence falling squarely under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, the lower court,

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after trial on the merits, rendered a judgment of conviction, sentencing appellant to suffer the ultimate penalty of DEATH, disposing thus: WHEREFORE, finding the accused guilty beyond reasonable doubt of the offense charged, the court hereby sentences the accused LODRIGO BAYYA to suffer the supreme penalty of death without award to any form of damages for obvious reasons. SO ORDERED. 11 At the outset, it bears stressing that having admitted authorship of the offense charged, appellant does not dispute the trial court’s finding of guilt. However, appellant questions the penalty imposed below, contending that since the information made no reference to Republic Act No. 7659, it was a reversible error to convict thereunder. And because the only penal provision relied upon by the prosecution is Article 335 of the Revised Penal Code, he could only be sentenced to the maximum penalty of reclusion perpetua in accordance therewith. Therefore, the only issue raised by appellant is whether there was a transgression of his right to be informed of the nature and cause of accusation against him, in view of the fact that the Information is silent about the applicability of R.A. No. 7659. While departing from appellant's strained reasoning, the Court nonetheless agrees with and adopts his submission that the trial court erred in imposing the capital punishment on him. A careful perusal of the Information indicting appellant reveals a crucial omission in its averments of the minority of the victim, Rosie S. Bayya. Instructive in this regard is Section 6, Rule 110 of the Rules of Court, which reads: Sec. 6. Sufficiency of complaint or information. — A complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed. When an offense is committed by more than one person, all of them shall be included in the complaint or information. The purpose of the above-quoted rule is to inform the accused of the nature and cause of the accusation against him, a right guaranteed by no less than the fundamental law of the land. 12 Elaborating on the defendant’s right to be informed, the Court held in Pecho vs. People 13 that the objectives of this right are:

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1. To furnish the accused with such a description of the charge against him as will enable him to make the defense; 2. To avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and 3. To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. It is thus imperative that the Information filed with the trial court be complete — to the end that the accused may suitably prepare his defense. Corollary to this, an indictment must fully state the elements of the specific offense alleged to have been committed as it is the recital of the essentials of a crime which delineates the nature and cause of accusation against the accused.14 The Court held recently that to sustain a conviction under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, the prosecution must allege and prove the basic elements of: 1) sexual congress; 2) with a woman; 3) by force and without consent, and in order to warrant the imposition of the death penalty, the additional elements that 4) the victim is under 18 years of age at the time of the rape; and 5) the offender is a parent (whether legitimate, illegitimate or adopted) of the victim. 15 In the case under scrutiny, the information does not allege the minority of the victim, Rosie S. Bayya, although the same was proven during the trial as borne by the records. The omission is not merely formal in nature since doctrinally, an accused cannot be held liable for more than what he is indicted for. It matters not how conclusive and convincing the evidence of guilt may be, but an accused cannot be convicted of any offense, not charged in the Complaint or information on which he is tried or therein necessarily included. He has a right to be informed of the nature of the offense with which he is charged before he is put on trial. To convict an accused of an offense higher than that charged in the Complaint or information on which he is tried would constitute unauthorized denial of that right. 16 The Information under consideration charges nothing more than simple rape defined and penalized in the first and second paragraphs of Article 335 of the Revised Penal Code, that is — having carnal knowledge of a woman by means of force and intimidation and against her will. The additional allegation that the offender is a parent of the offended party can only be deemed a generic aggravating circumstance. The failure of the prosecution to allege the age of the victim has effectively removed the crime from the ambit of Section 11 of Republic Act No. 7659 prescribing the death penalty "when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the commonlaw spouse of the parent of the victim".

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Previously, this Court had occasion to hold that the death penalty may be imposed only If the information alleges and the evidence has proven both the age of the victim and her relationship to the offender. 17 This theory of "concurring allegations" finds support in the earlier case of People vs. Ramos 18 where the Court enunciated that the concurrence of the minority of the victim and her relationship with the offender gives a different character to the rape defined in the first part of Article 335 of the Revised Penal Code, having, as it does, the effect of raising the imposable penalty for rape from reclusion perpetua to the higher and supreme penalty of DEATH. The Court explained in Ramos that relationship and minority must be alleged jointly if the death penalty is sought to be imposed because the same partakes of the nature of a special qualifying circumstance which has the effect of increasing the prescribed penalty by degrees. When either one of the said circumstances is omitted or lacking, that which is pleaded in the information and proven by the evidence may be considered merely as a generic aggravating circumstance in accordance with the general principles of criminal law. But since the penalty for simple rape under Article 335 of the Revised Penal Code is the single indivisible penalty of reclusion perpetua, the generic aggravating circumstance cannot effectively augment the criminal liability of appellant, it being required that the single indivisible penalty prescribed by law is to be applied regardless of any modifying circumstance in attendance. Since the appellant had been informed of the elements of simple rape under the information indicting him and nothing more, he could only be convicted of simple rape and sentenced to reclusion perpetua as prescribed by law. 19 In conclusion, the Court also takes note of the fact that the trial court failed to award an indemnity ex delicto to the victim pursuant to Article 100 20 in relation to Article 104 21 of the Revised Penal Code. In line with prevailing jurisprudence, moral damages should also be awarded to the victim in such amount as the court deems just 22 . The award of exemplary damages is also indicated considering that the relationship between the offender and the victim aggravates the crime of rape, such as in the present case. WHEREFORE, the judgment of conviction under review is AFFIRMED with the MODIFICATION that appellant LODRIGO BAYYA is adjudged guilty of simple rape and is sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay the victim, ROSIE S. BAYYA, P50,000.00 as indemnity ex delicto, apart from P50,000.00 as moral damages and P 25,000.00 as exemplary damages. Costs against the appellant. SO ORDERED.

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G.R. No. 104399 March 20, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO ALVARADO Y GALON, accused-appellant. BELLOSILLO, J. ANTONIO ALVARADO Y GALON was found guilty by the Regional Trial Court of Quezon City, Br. 103, of violating Sec. 15, Art. III, of R.A. 6425 as amended,1 for selling 3.7 grams of methamphetamine hydrochloride, a regulated drug commonly known as shabu.2 Culled from the uncorroborated testimony of Pat. Jaime Gregorio the evidence for the prosecution tends to establish that on 7 February 1991, acting on the report of a confidential informant, a buy-bust team of the Special Task Force Unit, Quezon City Anti-Drug Abuse Council, was organized composed of Pat. Jaime Gregorio, Pfc. Jaime Santos and Pat. Placido Domingo to track down a certain Vicente "Itik" Galon at No. 10 Sta. Gertrudes St., Project 8, Quezon City. The report was that arrangements were already made with Galon's "aides," Antonio "Boy" Alvarado (herein appellant) and Manuel "Butch" Sevilla, for the purchase of shabu. Marked bills amounting to P2,100.00 were brought by the team to be used in the operation.3 At the given address, with the rest of the team positioned some distance away, Pat. Gregorio (as poseur-buyer) and his informant talked with "Butch" Sevilla and told him that they wanted to buy shabu. After telling the duo to wait at the front door of the house Sevilla left. A little later, Antonio Alvarado appeared and told them that what they wanted to buy was merely entrusted to him by "Itik." The two were again asked to wait. After a few minutes Alvarado reappeared with three (3) plastic bags of shabu which he handed over to Pat. Gregorio who in turn paid accused-appellant with the marked bills but who immediately gestured to his fellow officers the pre-arranged signal to indicate the completion of the transaction. Accused-appellant and Manuel "Butch" Sevilla were then arrested and brought to the office of the Quezon City Anti-Drug Abuse Council.4 A laboratory examination conducted on the merchandise yielded positive results for methamphetamine hydrochloride.5 The version of the defense is different. According to accused-appellant, on 7 February 1991 he was inside his residence when he heard the sound of a motor vehicle stopping suddenly in front. Then he noticed at least four (4) plainclothesmen armed with rifles alight from the vehicle and rushing towards his house. Before entering the men shouted that they were conducting a raid while one of them fired two warning shots in the air. Once inside they introduced themselves as police officers and started hollering the name "Itik," rounding up all the occupants of the house and ordering them to lie face downwards.6 However, after searching the premises and realizing that "Itik" and a certain "Lino" they were looking for were nowhere to be found in the premises, the raiding team

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announced that they would take all those present to the office of the Quezon City Anti-Drug Abuse Council for formal investigation. At this juncture accused-appellant asked why they were being arrested and whether the raiding team had any warrant to conduct the search. Instead of answering, one of the arresting officers showed him a plastic bag containing shabu allegedly taken from the premises and reiterated that all those present would be brought to the police station. Later accused-appellant discovered that "Itik" was Vicente Galon, a tenant occupying a room on the second floor of his house,7 Virginia Alvarado, mother of appellant, together with Manuel Sevilla corroborated the testimony of Antonio.8 On the basis of the report of the buy-bust team, accused-appellant Antonio Alvarado and Manuel Sevilla were charged before the court a quo for selling shabu in violation of Sec. 15 of The Dangerous Drugs Act of 1972.9 On 24 July 1991, in a decision anchored principally on the uncorroborated testimony of Pat. Gregorio, the court a quo ruled that the evidence presented by the prosecution sufficiently established the guilt of accused-appellant beyond reasonable doubt and that he should suffer the penalty of "reclusion perpetua and to pay a fine of twenty-five thousand pesos (P25,000.00)." 10 Manuel Sevilla was absolved from all liability on the ground that his participation in the negotiation and sale of the regulated drug was not properly established. 11 Antonio Alvarado is now before us reasserting his innocence. This Court concedes that the testimony of a poseur-buyer may suffice to convict an accused provided that such testimony be both clear and convincing. 12 In such case it is essential only that the witness be able to recount and relate the actual events that transpired which justified the arrest of the accused. Thus it is imperative that the witness declares that there was a negotiation for the purchase of the drug and that the pusher sold and delivered the drug in view of some material consideration which in most cases takes the form of marked peso bills. Once these facts are clearly established through the testimony of a credible witness, the guilt of the accused can be deemed established with moral certainty. However, the assessment of the trial court regarding the credibility of a witness can be set aside if it is shown that certain facts of substance have been overlooked or circumstances of significance which may affect the result of the case have been arbitrarily disregarded. 13 In the case at bench, the adjudication of the court a quo regarding the sufficiency of the evidence presented by the prosecution to prove the guilt of herein accused-appellant is specious. The lone testimony of Pat. Gregorio to prove the fact of entrapment is not without material contradictions. There is a significant discrepancy in his testimony regarding the fact of payment of the marked bills.

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Pat. Gregorio in his direct examination categorically stated that it was to accusedappellant Antonio Alvarado that he handed the marked money. Thus — Q What about the money you were carrying with you? A It was in my possession at that time. Q What happened next after you waited? A The suspect by the name of alias Boy Alvarado came down from the house and told me that (the) stuff was entrusted to one alias Tony.14 Q What happened when he told you that? A I told him that I am (sic) the one intending to buy the stuff, so he took the stuff upstairs and then came down again and bringing with him the shabu I am (sic) intending to buy and he handed it to me. Q How many plastic bags? A Three. Q What did you do with the money? A I gave him the money. I gave him the buy-bust money. 15 Thus it is apparent from the direct testimony of Pat. Gregorio that he gave the buy-bust money to Antonio Alvarado. However during his crossexamination Pat. Gregorio admitted negotiating with and handing over the marked bills to Manuel "Butch " Sevilla, and not to Antonio — Q In this affidavit, Paragraph 5, you stated and I quote that at the doorsteps of house No. 10, Sta. Gertudes, "I met alias Butch, the runner of alias Tony whom I was introduced by my informant as shabu user and he said he is (sic) intending it (sic) to purchase the drug, at this juncture, alias Butch ask (sic) how much and then demanding for the payment and I drew from my pocket the early mark(ed) money and gave the same after receiving the mark(ed) money and told us to wait and then went inside the house," end of quote. Is (sic) this statement . . . prepare(d) by you? A Yes sir. Q And this is your statement?

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A Yes sir. 16 In the case at bench, the conviction of accused-appellant is based primarily on the uncorroborated testimony of Pat. Gregorio regarding the circumstances of the entrapment. From the aforequoted portions of such testimony, he claimed on direct examination that he met Manuel Sevilla by the doorsteps and informed the latter that he wanted to buy shabu, and that Manuel in turn asked him to wait and then proceeded to the second floor of the house. According further to Pat. Gregorio, after a while Antonio Alvarado appeared, negotiated for the sale of the drug and received the buy-bust money. 17 However, during his cross-examination, Pat. Gregorio reaffirmed what he stated in his affidavit that he met Manuel Sevilla in front of the house, negotiated with him for the purchase of the shabu, handed the marked bills after which he was asked by Manuel to wait. Afterwards it was Antonio Alvarado who handed over the shabu to him. 18 With respect to this material contradiction, we are baffled as to how the court a quo could have arrived at the conclusion that what Pat. Gregorio stated on direct examination was more believable than what he stated in his affidavit and which he reaffirmed on cross-examination. It is indeed perplexing that the court a quo adjudged accused-appellant guilty while absolving Manuel Sevilla from all criminal liability. The trial court just concluded that Manuel's participation in the unlawful sale was not well-established 19 which conclusion, however, was based merely on the direct testimony of Pat. Gregorio that it was with accused-appellant that he negotiated the sale of shabu and to whom he handed the marked money without taking into consideration that it directly contradicted his statements on cross-examination that it was with Sevilla that the negotiation was effected. If the assertions of Pat. Gregorio were given the proper attention by the court a quo then it could not have failed to observe that different versions were given by the principal witness for the state. The records also reveal other instances when Pat. Gregorio directly contradicted himself. In his affidavit of 10 February 1991 he stated — 5. . . . Butch asked how much shabu I am (sic) intending to buy . . . demanded for the payment . . . and after receiving the marked money, told us to wait and then went inside the house. 6. That after a few minutes, alias Butch came out with a male companion whom he introduced to me as Tony. After learning that I am (sic) the purchaser of shabu, alias Tony drew from his pocket three (3) self-heat transparent plastic bags and gave the same to me . . . 7. That my co-STFU operatives upon seeing my signal quickly made their approach to effect the arrest of the two (2) suspected drug pushers.20 It is obvious from the foregoing that Pat. Gregorio unequivocally claims to have purchased the drug from both Manuel and Antonio. A cursory reading of the

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transcript of his direct testimony however reveals that Pat. Gregorio claimed in open court that he acquired and paid for the drug only from accusedappellant. 21 Finally, Pat. Gregorio again contradicted himself when asked as to whom the buybust operation was directed. In open court he admitted that the mission was to entrap a certain Vicente "Itik" Galon. According to him, he purchased the shabu from Alvarado because the latter claimed that the drug was merely entrusted to him by "Itik." 22 However, in his affidavit, he alleged that his confidential informant reported to him that it was only "the tandem of alias Tony (Alvarado) and Butch (Sevilla) (who) were conspiringly engaged in selling shabu at Project 8 . . ." 23 Although the general rule is that contradictions and discrepancies between the testimony of a witness and his statements in an affidavit do not necessarily discredit him, this rule is not without exception, as when the omission in the affidavit refers to a very important detail of the incident that one relating the incident as an eyewitness would not be expected to fail to mention, or when the narration in the sworn statement substantially contradicts the testimony in court. 24 The contradictory statements of Pat. Jaime Gregorio, the lone police witness in this case, cast doubt on the accuracy and veracity of his testimony which was principally relied upon by the trial court in convicting accused-appellant. We are disturbed by the fact that Pat. Gregorio who acted as poseur-buyer in the alleged buy-bust operation could not even give an accurate account, that is, one free from material and serious contradictions, of the actual transaction that transpired in his very presence. His testimony given a little over two (2) months after the buy-bust operation is irreconcilable with his affidavit executed three (3) days after the incident. 25 Considering that his testimony was the only evidence presented to prove the alleged illegal sale, it ought to have been scrutinized more carefully and accepted with extreme caution by the court a quo. Admittedly, an affidavit does not purport to contain a complete compendium of the details of an event and may contain discrepancies with statements made on the witness stand. 26 However, unexplained disparities between a previously executed sworn statement of a witness and his testimonial declarations regarding the participation of an accused in a crime erode the veracity of his account thereon. 27 Indeed where there are weighty discrepancies on material points between a police officer's testimony regarding the transaction and his affidavit, the fact of entrapment cannot be established with moral certitude. 28 In this case we cannot ignore the fact that the guilt of accused-appellant was adjudged on the basis of such a defective testimony and that the conflicting accounts are of material and substantial importance since they involve the very acts of negotiation and drugsale complained of as felonious. Consequently, we hold that the uncorroborated account given by Pat. Gregorio of the alleged sale does not justify the conviction of accused-appellant. It is doctrinal that the prosecution has the burden of proving the guilt of the accused beyond reasonable doubt. 29 In this case, the prosecution has failed to overcome the constitutional presumption of innocence of the accused. The evidence relied

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upon by the prosecution falls short of the quantum of proof required for a conviction. Although the testimony of a police officer should ordinarily be accorded faith and credence still it cannot prevail over the constitutional presumption of innocence that an accused enjoys, particularly in cases where the testimony of the law officer concerned is ambiguous and vacillating hence unpersuasive, as in the instant case. We emphasize that the penalty prescribed under Sec. 15, Art. III, of R.A. 6425, before the effectivity of R.A. 7659, 30was life imprisonment and not reclusion perpetua. 31 In this case the court a quo also erred in imposing the penalty of reclusion perpetua instead of life imprisonment since these are two (2) distinct penalties which are not interchangeable. Life imprisonment does not carry with it the accessory penalties provided in the Revised Penal Code and does not appear to have any definite extent or duration unlike reclusion perpetua. WHEREFORE, the decision of the court a quo declaring accused-appellant ANTONIO ALVARADO Y GALON guilty of violating Sec. 15, Art. III, of R.A. 6425, as amended, is REVERSED and SET ASIDE. Accused-appellant is ACQUITTED on reasonable doubt and ordered immediately released from custody unless held for some other lawful cause. SO ORDERED.

G.R. No. 154182

December 17, 2004

EDGAR Y. TEVES and TERESITA Z. TEVES, petitioners, vs. THE SANDIGANBAYAN, respondent. DAVIDE, JR., C.J. The pivotal issue in this petition is whether a public official charged with violation of Section 3(h) of Republic Act No. 3019, as amended, otherwise known as the AntiGraft and Corrupt Practices Act, for unlawful intervention, in his official capacity, in the issuance of a license in favor of a business enterprise in which he has a pecuniary interestmay be convicted, together with his spouse, of violation of that same provision premised on his mere possession of such interest. Edgar Y. Teves, former Mayor of Valencia, Negros Oriental, and his wife Teresita Z. Teves seeks to annul and set aside the 16 July 2002 Decision 1 of the Sandiganbayan in Criminal Case No. 2337 convicting them of violation of Section 3(h) of the Anti-Graft Law for possessing direct pecuniary interest in the Valencia Cockpit and Recreation Center in Valencia.

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The indictment reads:2 The undersigned Special Prosecution Officer II, Office of the Special Prosecutor, hereby accuses EDGAR Y. TEVES and TERESITA TEVES of violation of Section 3(h) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about February 4, 1992, and sometime subsequent thereto, in Valencia, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, accused Edgar Y. Teves, a public officer, being then the Municipal Mayor of Valencia, Negros Oriental, committing the crime-herein charged in relation to, while in the performance and taking advantage of his official functions, and conspiring and confederating with his wife, herein accused Teresita Teves, did then and there willfully, unlawfully and criminally cause the issuance of the appropriate business permit/license to operate the Valencia Cockpit and Recreation Center in favor of one Daniel Teves, said accused Edgar Y. Teveshaving a direct financial or pecuniary interest therein considering the fact that said cockpit arena is actually owned and operated by him and accused Teresita Teves. CONTRARY TO LAW. Upon their arraignment on 12 May 1997, the petitioners pleaded "not guilty." Pretrial and trial were thereafter set. The petitioners and the prosecution agreed on the authenticity of the prosecution’s documentary evidence. Thus, the prosecution dispensed with the testimonies of witnesses and formally offered its documentary evidence marked as Exhibits "A" to "V."3 On 23 February 1998, the petitioners filed their Comment/Objections to the evidence offered by the prosecution and moved for leave of court to file a demurrer to evidence.4 On 29 July 1998, the Sandiganbayan admitted Exhibits "A" to "S" of the prosecution’s evidence but rejected Exhibits "T," "U," and "V." 5 It also denied petitioners’ demurrer to evidence,6 as well as their motion for reconsideration.7 This notwithstanding, the petitioners filed a Manifestation that they were, nonetheless, dispensing with the presentation of witnesses because the evidence on record are inadequate to support their conviction. On 16 July 2002, the Sandiganbayan promulgated a decision 8 (1) convicting petitioners Edgar and Teresita Teves of violation of Section 3(h) of the Anti-Graft Law; (2) imposing upon them an indeterminate penalty of imprisonment of nine years and twenty-one days as minimum to twelve years as maximum; and (3) ordering the confiscation of all their rights, interests, and participation in the assets and properties of the Valencia Cockpit and Recreation Center in favor of the

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Government, as well as perpetual disqualification from public office.9 The conviction was anchored on the finding that the petitioners possessed pecuniary interest in the said business enterprise on the grounds that (a) nothing on record appears that Mayor Teves divested himself of his pecuniary interest in said cockpit; (b) as of April 1992, Teresita Teves was of record the "owner/licensee" of the cockpit; and (c) since Mayor Teves and Teresita remained married to each other from 1983 until 1992, their property relations as husband and wife, in the absence of evidence to the contrary, was that of the conjugal partnership of gains. Hence, the cockpit is a conjugal property over which the petitioners have pecuniary interest. This pecuniary interest is prohibited under Section 89(2) of R.A. No. 7160, otherwise known as the Local Government Code (LGC) of 1991, and thus falls under the prohibited acts penalized in Section 3(h) of the Anti-Graft Law. The Sandiganbayan, however, absolved the petitioners of the charge of causing the issuance of a business permit or license to operate the Valencia Cockpit and Recreation Center on or about 4 February 1992 for not being well-founded. On 26 August 2002, the petitioners filed the instant petition for review on certiorari10 seeking to annul and set aside the 16 July 2002 Decision of the Sandiganbayan. At first, we denied the petition for failure of the petitioners to sufficiently show that the Sandiganbayan committed any reversible error in the challenged decision as to warrant the exercise by this Court of its discretionary appellate jurisdiction.11 But upon petitioners’ motion for reconsideration,12 we reinstated the petition.13 The petitioners assert that the Sandiganbayan committed serious and palpable errors in convicting them. In the first place, the charge was for alleged unlawful intervention of Mayor Teves in his official capacity in the issuance of a cockpit license in violation of Section 3(h) of the Anti-Graft Law. But they were convicted of having a direct financial or pecuniary interest in the Valencia Cockpit and Recreation Center prohibited under Section 89(2) of the LGC of 1991, which is essentially different from the offense with which they were charged. Thus, the petitioners insist that their constitutional right to be informed of the nature and cause of the accusation against them was transgressed because they were never apprised at any stage of the proceedings in the Sandiganbayan that they were being charged with, and arraigned and tried for, violation of the LGC of 1991. The variance doctrine invoked by the respondent is but a rule of procedural law that should not prevail over their constitutionally-guaranteed right to be informed of the nature and cause of accusation against them. Second, according to the petitioners, their alleged prohibited pecuniary interest in the Valencia Cockpit in 1992 was not proved. The Sandiganbayan presumed that since Mayor Teves was the cockpit operator and licensee in 1989, said interest continued to exist until 1992. It also presumed that the cockpit was the conjugal property of Mayor Teves and his wife, and that their pecuniary interest thereof was direct. But under the regime of conjugal partnership of gains, any interest thereon is at most inchoate and indirect.

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Also assigned as glaring error is the conviction of Teresita Teves, who is not a public officer. In the information, only Mayor Teves was accused of "having a direct financial or pecuniary interest in the operation of the Valencia Cockpit and Recreation Center in Negros Oriental." His wife was merely charged as a coconspirator of her husband’s alleged act of "while in the performance and taking advantage of his official functions, … willfully, unlawfully and criminally caus[ing] the issuance of the appropriate business permit/license to operate" the said cockpit arena. Teresita Teves could not be convicted because conspiracy was not established. Besides, the Sandiganbayan had already absolved the petitioners of this offense. On the other hand, the Sandiganbayan, through the Office of the Special Prosecutor (OSP), insists that the uncontroverted documentary evidence proved that petitioner Edgar Teves had direct pecuniary interest over the cockpit in question as early as 26 September 1983. That interest continued even though he transferred the management thereof to his wife Teresita Teves in 1992, since their property relations were governed by the conjugal partnership of gains. The existence of that prohibited interest is by itself a criminal offense under Section 89(2) of the LGC of 1991. It is necessarily included in the offense charged against the petitioners, i.e., for violation of Section 3(h) of the Anti-Graft Law, which proscribes the possession of a direct or indirect financial or pecuniary interest in any business, contract, or transaction in connection with which the person possessing the financial interest intervenes in his official capacity, or in which he is prohibited by the Constitution or any law from having any interest. The use of the conjunctive word "or" demonstrates the alternative mode or nature of the manner of execution of the final element of the violation of the provision. Although the information may have alleged only one of the modalities of committing the offense, the other mode is deemed included in the accusation to allow proof thereof. There was, therefore, no violation of the constitutional right of the accused to be informed of the nature or cause of the accusation against them in view of the variance doctrine, which finds statutory support in Sections 4 and 5 of Rule 120 of the Rules of Court. The petition is not totally devoid of merit. Section 3(h) of the Anti-Graft Law provides: Section 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: … (h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is

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prohibited by the Constitution or by any law from having any interest. The essential elements set out in the afore-quoted legislative definition of the crime of violation of Section 3(h) of the Anti-Graft Law are as follows: 1. The accused is a public officer; 2. He has a direct or indirect financial or pecuniary interest in any business, contract, or transaction; 3. He either a. intervenes or takes part in his official capacity in connection with such interest; or b. is prohibited from having such interest by the Constitution or by any law. There are, therefore, two modes by which a public officer who has a direct or indirect financial or pecuniary interest in any business, contract, or transaction may violate Section 3(h) of the Anti-Graft Law. The first mode is if in connection with his pecuniary interest in any business, contract or transaction, the public officer intervenes or takes part in his official capacity. The second mode is when he is prohibited from having such interest by the Constitution or any law. We quote herein the Sandiganbayan’s declaration regarding petitioners’ culpability anent the first mode: …[T]hat portion of the Information which seeks to indict the spouses Teves for his causing the issuance of a business permit/license to operate the Valencia cockpit on or about February 4, 1992 is not well-founded. … Mayor Edgar Teves could not have issued a permit to operate the cockpit in the year 1992 because as of January 1, 1992 the license could be issued only by the Sangguniang Bayan. He may have issued the permit or license in 1991 or even before that when he legally could, but that is not the charge. The charge is for acts committed in 1992.14 [Emphasis supplied]. The Sandiganbayan found that the charge against Mayor Teves for causing the issuance of the business permit or license to operate the Valencia Cockpit and Recreation Center is "not well-founded." This it based, and rightly so, on the additional finding that only the Sangguniang Bayan could have issued a permit to operate the Valencia Cockpit in the year 1992. Indeed, under Section 447(3) 15 of the LGC of 1991, which took effect on 1 January 1992, it is the Sangguniang Bayan

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that has the authority to issue a license for the establishment, operation, and maintenance of cockpits. Unlike in the old LGC, Batas Pambansa Blg. 337, wherein the municipal mayor was the presiding officer of the Sangguniang Bayan,16 under the LGC of 1991, the mayor is not so anymore and is not even a member of the Sangguniang Bayan. Hence, Mayor Teves could not have intervened or taken part in his official capacity in the issuance of a cockpit license during the material time, as alleged in the information, because he was not a member of the Sangguniang Bayan.17 A fortiori, there is no legal basis to convict Teresita Teves as a co-conspirator in the absence of a finding that Mayor Teves himself is guilty of the offense charged. In short, the Sandiganbayan correctly absolved the petitioners of the charge based on the first mode. And there is no need to belabor this point. The Sandiganbayan, however, convicted the petitioners of violation of Section 3(h) of the Anti-Graft Law based on the second mode. It reasoned that the evidence overwhelmingly evinces that Mayor Teves had a pecuniary interest in the Valencia Cockpit, which is prohibited under Section 89(2) of the LGC of 1991. The information accuses petitioner Edgar Teves, then Municipal Mayor of Valencia, Negros Oriental, of causing, "while in the performance and taking advantage of his official functions, and conspiring and confederating with his wife … the issuance of the appropriate business permit/license to operate the Valencia Cockpit and Recreation Center in favor of one Daniel Teves." The last part of the dispositive portion of the information states that "said accused Edgar Y. Teves having a direct financial or pecuniary interest therein considering the fact that said cockpit arena is actually owned and operated by him and accused Teresita Teves." A careful reading of the information reveals that the afore-quoted last part thereof is merely an allegation of the second element of the crime, which is, that he has a direct or indirect "financial or pecuniary interest in any business, contract or transaction." Not by any stretch of imagination can it be discerned or construed that the afore-quoted last part of the information charges the petitioners with the second mode by which Section 3(h) of the Anti-Graft Law may be violated. Hence, we agree with the petitioners that the charge was for unlawful intervention in the issuance of the license to operate the Valencia Cockpit. There was no charge for possession of pecuniary interest prohibited by law. However, the evidence for the prosecution has established that petitioner Edgar Teves, then mayor of Valencia, Negros Oriental,18 owned the cockpit in question. In his sworn application for registration of cockpit filed on 26 September 198319 with the Philippine Gamefowl Commission, Cubao, Quezon City, as well as in his renewal application dated 6 January 198920 he stated that he is the owner and manager of the said cockpit. Absent any evidence that he divested himself of his ownership over the cockpit, his ownership thereof is rightly to be presumed because a thing once proved to exist continues as long as is usual with things of that nature.21 His affidavit22 dated 27 September 1990 declaring that effective

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January 1990 he "turned over the management of the cockpit to Mrs. Teresita Z. Teves for the reason that [he] could no longer devote a full time as manager of the said entity due to other work pressure" is not sufficient proof that he divested himself of his ownership over the cockpit. Only the management of the cockpit was transferred to Teresita Teves effective January 1990. Being the owner of the cockpit, his interest over it was direct. Even if the ownership of petitioner Edgar Teves over the cockpit were transferred to his wife, still he would have a direct interest thereon because, as correctly held by respondent Sandiganbayan, they remained married to each other from 1983 up to 1992, and as such their property relation can be presumed to be that of conjugal partnership of gains in the absence of evidence to the contrary. Article 160 of the Civil Code provides that all property of the marriage is presumed to belong to the conjugal partnership unless it be proved that it pertains exclusively to the husband or to the wife. And Section 143 of the Civil Code declares all the property of the conjugal partnership of gains to be owned in common by the husband and wife. Hence, his interest in the Valencia Cockpit is direct and is, therefore, prohibited under Section 89(2) of the LGC of 1991, which reads: Section 89. Prohibited Business and Pecuniary Interest. – (a) It shall be unlawful for any local government official or employee, directly or indirectly, to: … (2) Hold such interests in any cockpit or other games licensed by a local government unit…. [Emphasis supplied]. The offense proved, therefore, is the second mode of violation of Section 3(h) of the Anti-Graft Law, which is possession of a prohibited interest. But can the petitioners be convicted thereof, considering that it was not charged in the information? The answer is in the affirmative in view of the variance doctrine embodied in Section 4, in relation to Section 5, Rule 120, Rules of Criminal Procedure, which both read: Sec. 4. Judgment in case of variance between allegation and proof. – When there is a variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. Sec. 5. When an offense includes or is included in another. – An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint

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or information, constitutes the latter. And an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter. The elements of the offense charged in this case, which is unlawful intervention in the issuance of a cockpit license in violation of Section 3(h) of the Anti-Graft Law, are 1. The accused is a public officer; 2. He has a direct or indirect financial or pecuniary interest in any business, contract, or transaction, whether or not prohibited by law; and 3. He intervenes or takes part in his official capacity in connection with such interest. On the other hand, the essential ingredients of the offense proved, which is possession of prohibited interest in violation of Section 3(h) of the Anti-Graft Law, are as follows: 1. The accused is a public officer; 2. He has a direct or indirect financial or pecuniary interest in any business, contract or transaction; and 3. He is prohibited from having such interest by the Constitution or any law. It is clear that the essential ingredients of the offense proved constitute or form part of those constituting the offense charged. Put differently, the first and second elements of the offense charged, as alleged in the information, constitute the offense proved. Hence, the offense proved is necessarily included in the offense charged, or the offense charged necessarily includes the offense proved. The variance doctrine thus finds application to this case, thereby warranting the conviction of petitioner Edgar Teves for the offense proved. The next question we have to grapple with is under what law should petitioner Edgar Teves be punished. It must be observed that Section 3(h) of the Anti-Graft Law is a general provision, it being applicable to all prohibited interests; while Section 89(2) of the LGC of 1991 is a special provision, as it specifically treats of interest in a cockpit. Notably, the two statutes provide for different penalties. The Anti-Graft Law, particularly Section 9, provides as follows: SEC. 9. Penalties for violations. – (a) Any public official or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5, and 6 of this Act shall be punished by imprisonment of not less than six years and one month nor more than fifteen years, perpetual

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disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest…. On the other hand, Section 514 of the LGC of 1991 prescribes a lighter penalty; thus: SECTION 514. Engaging in Prohibited Business Transactions or Possessing Illegal Pecuniary Interest. – Any local official and any person or persons dealing with him who violate the prohibitions provided in Section 89 of Book I hereof shall be punished with imprisonment for six months and one day to six years, or a fine of not less than Three thousand pesos (P3,000.00) nor more than Ten Thousand Pesos (P10,000.00), or both such imprisonment and fine at the discretion of the court. It is a rule of statutory construction that where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter shall prevail regardless of whether it was passed prior to the general statute.23 Or where two statutes are of contrary tenor or of different dates but are of equal theoretical application to a particular case, the one designed therefor specially should prevail over the other.24 Conformably with these rules, the LGC of 1991, which specifically prohibits local officials from possessing pecuniary interest in a cockpit licensed by the local government unit and which, in itself, prescribes the punishment for violation thereof, is paramount to the Anti-Graft Law, which penalizes possession of prohibited interest in a general manner. Moreover, the latter took effect on 17 August 1960, while the former became effective on 1 January 1991. Being the earlier statute, the Anti-Graft Law has to yield to the LGC of 1991, which is the later expression of legislative will.25 In the imposition on petitioner Edgar Teves of the penalty provided in the LGC of 1991, we take judicial notice of the fact that under the old LGC, mere possession of pecuniary interest in a cockpit was not among the prohibitions enumerated in Section 4126 thereof. Such possession became unlawful or prohibited only upon the advent of the LGC of 1991, which took effect on 1 January 1992. Petitioner Edgar Teves stands charged with an offense in connection with his prohibited interest committed on or about 4 February 1992, shortly after the maiden appearance of the prohibition. Presumably, he was not yet very much aware of the prohibition. Although ignorance thereof would not excuse him from criminal liability, such would justify the imposition of the lighter penalty of a fine of P10,000 under Section 514 of the LGC of 1991. Petitioner Teresita Teves must, however, be acquitted. The charge against her is conspiracy in causing "the issuance of the appropriate business permit/license to operate the Valencia Cockpit and Recreation Center." For this charge, she was acquitted. But as discussed earlier, that charge also includes conspiracy in the possession of prohibited interest.

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Conspiracy must be established separately from the crime itself and must meet the same degree of proof, i.e., proof beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during, and after the commission of the crime, all taken together, the evidence must reasonably be strong enough to show community of criminal design.27 Certainly, there is no conspiracy in just being married to an erring spouse.28 For a spouse or any person to be a party to a conspiracy as to be liable for the acts of the others, it is essential that there be intentional participation in the transaction with a view to the furtherance of the common design. Except when he is the mastermind in a conspiracy, it is necessary that a conspirator should have performed some overt act as a direct or indirect contribution in the execution of the crime planned to be committed. The overt act must consist of active participation in the actual commission of the crime itself or of moral assistance to his co-conspirators.29 Section 4(b) of the Anti-Graft Law, the provision which applies to private individuals, states: SEC. 4. Prohibitions on private individuals. – … (b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof. We find no sufficient evidence that petitioner Teresita Teves conspired with, or knowingly induced or caused, her husband to commit the second mode of violation of Section 3(h) of the Anti-Graft Law. As early as 1983, Edgar Teves was already the owner of the Valencia Cockpit. Since then until 31 December 1991, possession by a local official of pecuniary interest in a cockpit was not yet prohibited. It was before the effectivity of the LGC of 1991, or on January 1990, that he transferred the management of the cockpit to his wife Teresita. In accordance therewith it was Teresita who thereafter applied for the renewal of the cockpit registration. Thus, in her sworn applications for renewal of the registration of the cockpit in question dated 28 January 199030 and 18 February 1991,31 she stated that she is the Owner/Licensee and Operator/Manager of the said cockpit. In her renewal application dated 6 January 1992,32 she referred to herself as the Owner/Licensee of the cockpit. Likewise in the separate Lists of Duly Licensed Personnel for Calendar Years 199133 and 1992,34 which she submitted on 22 February 1991 and 17 February 1992, respectively, in compliance with the requirement of the Philippine Gamefowl Commission for the renewal of the cockpit registration, she signed her name as Operator/Licensee. The acts of petitioner Teresita Teves can hardly pass as acts in furtherance of a conspiracy to commit the violation of the Anti-Graft Law that would render her

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equally liable as her husband. If ever she did those acts, it was because she herself was an owner of the cockpit. Not being a public official, she was not prohibited from holding an interest in cockpit. Prudence, however, dictates that she too should have divested herself of her ownership over the cockpit upon the effectivity of the LGC of 1991; otherwise, as stated earlier, considering her property relation with her husband, her ownership would result in vesting direct prohibited interest upon her husband. In criminal cases, conviction must rest on a moral certainty of guilt.35 The burden of proof is upon the prosecution to establish each and every element of the crime and that the accused is either responsible for its commission or has conspired with the malefactor. Since no conspiracy was proved, the acquittal of petitioner Teresita Teves is, therefore, in order. WHEREFORE, premises considered, the 16 July 2002 Decision of the Sandiganbayan, First Division, in Criminal Case No. 2337 is hereby MODIFIED in that (1) EDGAR Y. TEVES is convicted of violation of Section 3(h) of Republic Act No. 3019, or the AntiGraft and Corrupt Practices Act, for possession of pecuniary or financial interest in a cockpit, which is prohibited under Section 89(2) of the Local Government Code of 1991, and is sentenced to pay a fine of P10,000; and (2) TERESITA Z. TEVES is hereby ACQUITTED of such offense. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, ChicoNazario, and Garcia, JJ., concur. Callejo, Sr., J., on leave, but left his oath of concurrence with the dissent of J. Tinga. Tinga, J., dissenting opinion.

DISSENTING OPINION TINGA, J.: It is imperative for this Court as guardian of the people’s fundamental liberties, to redeem persons inflicted with the classic Kafkaesque nightmare – conviction for a crime the indictment for which the accused has no knowledge of. I sense that the majority recognizes, albeit tacitly, the absurdity of the convictions challenged in this petition. Thus the proposed quantum downgrading of the penalty of accused Edgardo Teves (Teves) from imprisonment of at least nine years, imposed by the Sandiganbayan, to a mere fine. However, I submit that Teves should be

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extenuated not as a matter of grace, but as a matter of right in consonance with the Constitution. My submission is ultimately premised on constitutional considerations – that Teves cannot be convicted of the present charges against him without violating his constitutional right to be informed of the nature and cause of the accusation against him.1 Furthermore, the punishment of Teves for a crime of which he was neither legally nor actually informed constitutes a violation of the constitutional right to due process of law.2 While the variance doctrine is a rule of long-standing, its mechanical application cannot supplant the Bill of Rights which occupies a position of primacy within our fundamental law.3 I believe that the variance between the offense charged to Teves, on one hand, and the offense of which the majority intends to convict him, on the other, is material and prejudicial enough so as to affect his substantial rights as an accused.4 In particular, the Information filed against Teves is deficient for the purpose of convicting him, as charged, of violating Section 3(h) of the Anti-Graft and Corrupt Practices Act, or for violating Section 89(b) of the Local Government Code, as is the wont of the majority. The offense of which Teves is charged is defined under Section 3(h) of the AntiGraft and Corrupt Practices Act,5which states: Section 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. As the majority correctly points out, there are two modes by which a public officer who has a direct or indirect financial or pecuniary interest in any business, contract or transaction may violate Section 3(h). The first is where the public officer, in connection with his financial or pecuniary interest in a business, contract or transaction, intervenes or takes part in his official capacity (First Mode). The second is where the public officer possesses such financial or pecuniary interest and said possession is prohibited by the Constitution or of any other law (Second Mode). The Information clearly charges the Teves spouses with violating Section 3(h) through the First Mode: The undersigned Special Prosecution Officer II, Office of the Special Prosecutor, hereby accuses EDGAR Y. TEVES and TERESITA TEVES of

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violation of Section 3(h) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about February 4, 1992, and sometime subsequent thereto, in Valencia, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, accused Edgar Y. Teves, a public officer, being then the Municipal Mayor of Valencia, Negros Oriental, commiting the crime herein charged in relation to, while in the performance and taking advantage of his official functions, and conspiring and confederating with his wife, herein accuse[d] Teresita Teves, did then and there willfully, unlawfully and criminally cause the issuance of the appropriate business permit/license to operate the Valencia Cockpit and Recreation Center in favor of one Daniel Teves, said accused Edgar Y. Teves having a direct or pecuniary interest therein considering the fact that said cockpit arena is actually owned and operated by him and accused Teresita Teves. CONTRARY TO LAW.6 The Sandiganbayan found that Teves could not have caused the issuance of the permit to operate the cockpit in 1992, as alleged in the Information. Hence, the offense through the First Mode for which Teves was charged was not proved. Still, the Sandiganbayan found the Teves spouses guilty of violating Section 3(h), through the Second Mode, although it was not at all alleged in the Information. In justifying the conviction, the Sandiganbayan merely noted that the fact of Teves’ pecuniary interest in the cockpit was unrebutted,7 and that Section 89(b) of the Local Government Code barred Teves from holding an interest in a cockpit. The Sandiganbayan was silent as to why the Teves spouses were convicted of an offense different from that charged in the Information. The ponencia fills in the blank, contending that conviction can be had by applying the "variance doctrine" encapsulated in Sections 4 and 5, Rule 120 of the Rules of Criminal Procedure. According to the majority, the offense proved the violation of Section 3(h) through holding the prohibited pecuniary interest, is necessarily included in the offense charged¾the violation of Section 3(h) through intervening/taking part in an official capacity in connection with a financial or pecuniary interest in any business, contract or transaction. However, the majority would prefer to convict Teves instead and fine him Ten Thousand Pesos (P10,000.00) for violating Section 89(b) of the Local Government Code, the law which specifically prohibits Teves from maintaining an interest in a cockpit. The deviation is sought to be justified by noting that Section 89(b) of the Local Government Code is more specific in application than the general proscription under Section 3(h) of the Anti-Graft and Corrupt Practices Act, a law which happens to antecede the Local Government Code. The ponencia would also do away with a sentence of imprisonment, imposing instead a fine as earlier adverted to.

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That an accused cannot be convicted of an offense not charged or included in the information is based upon the right to be informed of the true nature and cause of the accusation against him.8 This right was long ago established in English law, and is expressly guaranteed under Section 14(2), Article III of the Constitution. This right requires that the offense be charged with clearness and all necessary certainty to inform the accused of the crime of which he stands charged, in sufficient detail to enable him to prepare a defense.9 The peculiarities attaching to the Information herein preclude his conviction of any offense other than violation of Section 3(h) through the First Mode. Second Mode Not Necessarily Included in First Mode With due respect, I find unacceptable the general proposition that the Second Mode of violating Section 3(h) is necessarily included in the First Mode. Under Section 5, Rule 120 of the Rules of Criminal Procedure, the offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former constitute the latter. Thus, it should be established that the Second Mode is constituted of the essential elements of the First Mode. In analyzing the question, the majority makes the following pronouncement: The elements of the offense charged in this case, which is unlawful intervention in the issuance of a cockpit license in violation of Section 3(h) of the Anti-Graft Law, are 1. The accused is a public officer; 2. He has a direct or indirect financial or pecuniary interest in any business, contract or transaction, whether or not prohibited by law; and 3. He intervenes or takes part in his official capacity in connection with such interest. On the other hand, the essential ingredients of the offense proved, which is possession of prohibited interest in violation of Section 3(h) of the AntiGraft Law, are as follows: 1. The accused is a public officer; 2. He has a direct or indirect financial or pecuniary interest in any business, contract or transaction; and 3. He is prohibited from having such interest by the Constitution or any law.

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It is clear that the essential ingredients of the offense proved constitute or form part of those constituting the offense charged. Put differently, the first and second elements of the offense charged, as alleged in the information, constitute the offense proved. Hence, the offense proved is necessarily included in the offense charged, or the offense charged necessarily includes the offense proved. The variance doctrine thus finds application to this case, thereby warranting the conviction of petitioner Edgar Teves for the offense proved.10 The essential common ingredient appreciated by the majority is clearly the existence of "direct or indirect financial or pecuniary interest." Yet the element of "financial or pecuniary interest" contemplated under the Second Mode is one prohibited by law, a qualification not present in the First Mode. Under the First Mode, the element considered is simply that the public official maintains a financial or pecuniary interest, whether or not prohibited by law. This contrasts to the Second Mode, wherein such interest is particularly qualified as one prohibited by the Constitution or by any other statute. Thus, while the pecuniary interest of a town mayor who possesses an ownership share in a real estate firm may be cause for liability under the First Mode if the other requisites thereof concur, it is not cause for liability under the Second Mode as such ownership is not prohibited either by the Constitution or by any other law. It should be taken into the account that the proper application of the variance doctrine ordinarily does not run afoul of the Constitution because it is expected that the accused has been given the opportunity to defend himself/herself not only of the offense charged, but also of the offense eventually proven. This is because the essential elements of the offense proved are already necessarily included in the offense charged.11 For the variance doctrine to apply, there must be a commonality of elements within the offense charged and offense proved, to the extent that an Information detailing the offense charged can be deemed as well as an Information detailing the offense proven. Hence, the threshold question should be whether violation of Section 3(h) through the Second Mode is necessarily included in a violation of Section 3(h) through the First Mode. An affirmative answer is precluded by the difference in the nature of the pecuniary interest that respectively lie at the core of the two modes. Information Deficient To Sustain Conviction for Any Crime Other than the First Mode of Violation of Section 3(h) An even more crucial reason why Teves should be acquitted pertains to the particular Information charged against him. In relation to Teves’s pecuniary interest in the cockpit, all the Information alleges is that Teves had a direct financial or pecuniary interest in the cockpit. It does not allege that such pecuniary interest violates either the Constitution or any other

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law. It does not even state that maintaining the pecuniary interest in the cockpit is in itself unlawful. Moreover, it does not make any reference to Section 89(b) of the Local Government Code, more so of the fact that such pecuniary interest is prohibited under the said statute. Even the majority concedes that the Information does not charge the Teves spouses with violating the Second Mode. The ponencia notes that: "[n]ot by any stretch of imagination can it be discerned or construed that the afore-quoted last part of the information charges the petitioners with the second mode by which Section 3(h) of the Anti-Graft Law may be violated. Hence, we agree with the petitioners that the charge was for unlawful intervention in the issuance of the license to operate the Valencia Cockpit. There was no charge for possession of pecuniary interest prohibited by law."12 In short, the Information does not give any indication that the Office of the Special Prosecutor, which had lodged the charge sheet, was genuinely aware that the fact of Teves’s ownership of the cockpit actually constitutes a violation of a law, or any law for that matter. But before the Court chalks it up as a lucky break for the government, it should first examine whether Teves’s constitutional rights as an accused would be impaired if he were found guilty of a charge on the basis of an Information clearly predicated on a different ground. Clearly, the Information is sufficient to convict Teves for the First Mode of violating Section 3(h), had the evidence warranted conviction. It amply informs Teves of that particular charge to the extent that he could adequately prepare a defense in his behalf. However, would the same Information similarly suffice to have allowed Teves to defend himself against a charge that maintaining the financial/pecuniary interest in the cockpit is itself illegal? Clearly, it would not and I so maintain. Our holding in Esguerra v. People13 is in point. The accused was charged with estafa under Article 315, paragraph 1-b of the Revised Penal Code, which pertains to misappropriating personal property received by the offender reposed with trust to preserve or deliver it to another. However, while the Court of Appeals found that Esguerra could not be held liable for Estafa under Article 315, paragraph 1-b, he still could be held responsible for violation of the same Article, but under paragraph 3(2-a), which pertains to false pretenses or fraudulent acts committed by making misrepresentations as to his identity or status. 14 The Court reversed the conviction, noting that: It is undisputed that the information contains no allegation of misrepresentation, bad faith or false pretenses, essential element in the crime of which appellant was found guilty by the Court of Appeals. This is so, evidently, because, as already stated, the fiscal and the private prosecutor avowedly were prosecuting the accused for the crime of misappropriation and conversion committed with unfaithfulness and

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abuse of confidence for which the appellant went to trial and was convicted by the lower court. It is true the information states that "the accused, upon representations (not misrepresentations) that the accused had copras ready for delivery to it, took and received" the sum of P4,400.00. Nowhere does it appear in the information that these "representations" were false or fraudulent, or that the accused had no such copra at the time he allegedly made such "representations." The falsity or fraudulentness of the pretense or representation or act being the very constitutive element of the offense, allegation to that effect, either in the words of the law or in any other language of similar import, must be made in the information if the right of the accused to be informed of the nature and cause of the accusation against him is to be preserved.xxx15 In the case at bar, the constitutive element of the Second Mode for violating Section 3(h) is the possession of a pecuniary interest that the public officer is prohibited from having by law. Necessarily then, the Information should spell out which law prohibits such financial or pecuniary interest if conviction could be had based on the possession of such interest. Such fact would be critical in order to afford the accused the opportunity to prepare an intelligent defense. Had the Information notified Teves of his possible culpability hinging on Section 89(b) of the Local Government Code, Teves would have had the chance to study the provision and prepare accordingly. There are several avenues the defense could have pursued, such as an examination of relevant jurisprudential precedents regarding Section 89(b) or of its legislative history. Teves could have even conducted a contextual analysis of Section 89(b) in relation to the rest of the Local Government Code or of other statutes. Indeed, the validity itself of Section 89(b) could be fair game for judicial review, and it would be understood if Teves had pursued that line of argument, considering that the invalidity of the provision would equate to his absolution from criminal charges that may arise from Section 89(b). But the simple fact remains that Teves could not have pursued these plausible defenses because Section 89(b) was not put in issue by the Information. Had he raised any matter relating to Section 89(b) during trial, these would have been deemed irrelevant as it bears no relation to the charge at hand. Indeed, the prosecution made no effort to demonstrate that Teves’s interest in the cockpit was illegal under Section 89(b), as can be gleaned from the documentary evidence submitted16 on the basis of which judgment was rendered.17 Instead, intensive efforts were exerted by the prosecution to establish that Teves, in his official capacity, had caused the issuance of a license on or about 4 February 1992 to operate the cockpit in question. Confronted with the culpable acts alleged in the Information, Teves accordingly devoted his own defense to disprove the allegation that he had indeed issued the licenses for the operation of the cockpit. There is no indication that during the trial, the parties or the Sandiganbayan dwelt on the aspect that a municipal mayor may not hold an interest in a cockpit under Section 89(b), which is understandable considering that the Information itself does not proffer aspect as an issue.

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Yet the Sandiganbayan anyway based its finding of guilt on Section 89(b), in relation to the Second Mode, despite the fact that the aspect had not been raised, much more the accused afforded the opportunity to offer a defense against such claim. It would be simplistic to justify the finding by pointing out that the accused had anyway admitted the facts that constitute a violation of Section 89(b). Even if the questions of fact are settled, the accused remains entitled to raise a question of law on the scope and reach, if not validity, of Section 89(b). I am not arguing that Section 89(b) is invalid, but I am defending Teves’s putative right to argue in such manner, or to be allowed the opportunity to raise any similarly-oriented arguments pertaining to the provision. It may run counterintuitive to sustain a legal doctrine that extenuates the penalty of the seemingly or obviously guilty, but precisely our Constitution is a document that is not necessarily attuned to common sense if legal sense dictates otherwise. Thus, the Constitution regards every criminally accused as innocent at the onset of trial, even an accused who murders another person in front of live television cameras to the horror of millions who witnessed the crime on their television sets. In such an instance, everybody "knows" that the accused is guilty, yet a judicial trial still becomes necessary to warrant for a conviction conformably to the dictates of due process.18 It should be kept in mind that the question of guilt is not merely a factual question of did he/she do it, such being the usual treatment in the court of public opinion. In legal contemplation, it also requires a determination of several possible legal questions such as "is he/she justified in committing the culpable act;"19 "is he/she exempt from criminal liability despite committing the culpable act;"20 or even whether the acts committed actually constitute an offense. It is thus very possible that even if it has been factually established that the accused had committed the acts constituting a crime, acquittal may still be legally ordained. Therefore, it was not satisfactory on the part of the Sandiganbayan to have relied merely on the uncontroverted fact that Teves had a financial or pecuniary interest in the cockpit despite the prohibition under Section 89(b). That was not the charge lodged in the Information, nor is it even necessarily included in the offense actually alleged in the Information. The Anti-Graft Court’s conclusion of guilt is based on a de novo finding which the accused had neither an opportunity to defend against, nor even would have expected as a proper matter of inquiry considering the silence of the Information or the trial proceedings on the question of Section 89(b). Even more galling is that nowhere in the Information is it even alleged that maintaining an interest in a cockpit is actually illegal. Not only is the charge sheet silent as to which law was violated, but such fact of owning an interest in a cockpit actually constitutes an offense. For that reason, I am confident that my view does not run counter to the well settled ruling of the Court in U.S. v. Tolentino21 that "where an offense may be committed in any several different modes, and the offense is alleged to have been committed in two or modes specified, it is sufficient to prove the offense committed in any one of them, provided that it be such as to constitute the substantive offense."22 The Information was crafted in such a way that only one particular offense was charged, and the alleged manner

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through which such offense was committed did not constitute ground for conviction for another offense. There may have been stronger basis to uphold the conviction had the Information alleged that the mere act of possession of the pecuniary interest in the cockpit was in itself a violation of law, even if which law transgressed was not denominated in the Information. At least in such a case, Teves would have been put on guard that the legality of his ownership of the cockpit was a controversial issue and thus prepared accordingly, even if it would have to entail his having to research as to which law was actually violated by his ownership. But the Information herein is not so formulated. It was evidently crafted by persons who had no intention of putting into issue the illegality of Teves’ ownership of the cockpit, but arguing instead that Teves illegally abused his office by issuing a license in connection with such cockpit. My submission to acquit Edgar Teves necessarily results in the acquittal of his wife, Teresita. She is charged as a conspirator to the commission of her husband’s felonious acts, and thus the exoneration of her husband should lead to a similar result in her favor. This observation is made without disputing the finding of the majority that there is no sufficient evidence that Teresita Teves conspired with her husband to commit a violation of Section 3(h) of the Anti-Graft Law. Perhaps there is some reluctance in acquitting a public official accused of malfeasance in connection with the public office held. Such a result bolsters the general government crusade against graft and corruption, and is usually popular with the public at large. Still, the most vital essence of the democratic way of life is the protection of the bedrock guarantees extended by the Constitution to all persons regardless of rank. These rights cannot be bargained away, especially when they stand as the sole barrier to the deprivation of one’s cherished right to liberty. A due process violation cannot be obviated by the technical application of a procedural rule. I cannot join the Court in giving imprimatur to a conviction for a crime against which the accused was deprived the opportunity to defend himself. I respectfully DISSENT, and vote to ACQUIT Edgar and Teresita Teves.

RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL Republic Act No. 8493

February 12, 1998

AN ACT TO ENSURE A SPEEDY TRIAL OF ALL CRIMINAL CASES BEFORE THE SANDIGANBAYAN, REGIONAL TRIAL COURT, METROPOLITAN TRIAL COURT, MUNICIPAL TRIAL COURT, AND MUNICIPAL CIRCUIT TRIAL COURT, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES

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Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. Title. - This Act shall be known as the "Speedy Trial Act of 1998." Section 2. Mandatory Pre-Trial in Criminal Cases. - In all cases cognizable by the Municipal Trial Court, Municipal Circuit Trial Court, Metropolitan Trial Court, Regional Trial Court, and the Sandiganbayan, the justice or judge shall, after arraignment, order a pre-trial conference to consider the following: (a) Plea bargaining; (b) Stipulation of Facts; (c) Marking for identification of evidence of parties; (d) Waiver of objections to admissibility of evidence; and (e) Such other matters as will promote a fair and expeditious trial. Section 3. Pre-Trial Agreement. - All agreements or admissions made or entered into during the pre-trial conference shall be reduced to writing and signed by the accused and counsel, otherwise the same shall not be used in evidence against the accused. The agreements in relation to matters referred to in Section 2 hereof is subject to the approval of the court: Provided, That the agreement on the plea of the accused to a lesser offense may only be revised, modified, or annulled by the court when the same is contrary to law, public morals, or public policy. Section 4. Nonappearance at Pre-Trial Conference. - Where counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his/her lack of cooperation, the pre-trial justice or judge may impose proper sanctions or penalties. Section 5. Pre-Trial Order. - After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of and control the course of action during the trial, unless modified by the court to prevent manifest injustice. Section 6. Time Limit for Trial. - In criminal cases involving persons charged of a crime, except those subject to the Rules on Summary Procedure, or where the penalty prescribed by law does not exceed six (6) months imprisonment, or a fine of One thousand pesos (P1,000.00) or both, irrespective of other imposable penalties, the justice or judge shall, after consultation with the public prosecutor and the counsel for the accused, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy

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trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Chief Justice of the Supreme Court pursuant to Section 3, Rule 22 of the Rules of Court. Section 7. Time Limit Between Filing of Information and Arraignment and Between Arraignment and Trial. - The arraignment of an accused shall be held within thirty (30) days from the filing of the information, or from the date the accused has appeared before the justice, judge or court in which the charge is pending, whichever date last occurs. Thereafter, where a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. Trial shall commence within thirty (30) days from arraignment as fixed by the court. If the accused pleads not guilty to the crime charged, he/she shall state whether he/she interposes a negative or affirmative defense. A negative defense shall require the prosecution to prove the guilt of the accused beyond reasonable doubt, while an affirmative defense may modify the order of trial and require the accused to prove such defense by clear and convincing evidence. Section 8. Time Limit Following an Order for New Trial. - If the accused is to be tried again following an order of a court for a new trial, the trial shall commence within thirty (30) days from the date the order for a new trial becomes final, except that the court retrying the case may extend such period but in any case shall not exceed one hundred eighty (180) days from the date the order for a new trial becomes final if unavailability of witnesses or other factors resulting from passage of time shall make trial within thirty (30) days impractical. Section 9. Extended Time Limit. - Notwithstanding the provisions of Section 7 of this Act, for the first twelve-calendar-month period following its effectivity, the time limit with respect to the period from arraignment to trial imposed by Section 7 of this Act shall be one hundred eighty (180) days. For the second twelve-month period the time limit shall be one hundred twenty (120) days, and for the third twelvemonth period the time limit with respect to the period from arraignment to trial shall be eighty (80) days. Section 10. Exclusions. - The following periods of delay shall be excluded in computing the time within which trial must commence: (a) Any period of delay resulting from other proceedings concerning the accused, including but not limited to the following: (1) delay resulting from an examination of the accused, and hearing on his/her mental competency, or physical incapacity; (2) delay resulting from trials with respect to charges against the accused; (3) delay resulting from interlocutory appeals;

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(4) delay resulting from hearings on pre-trial motions: Provided, That the delay does not exceed thirty (30) days, (5) delay resulting from orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts; (6) delay resulting from a finding of the existence of a valid prejudicial question; and (7) delay reasonably attributable to any period, not to exceed thirty (30) days, during which any proceeding concerning the accused is actually under advisement. (b) Any period of delay resulting from the absence or unavailability of the accused or an essential witness. For purposes of this subparagraph, an accused or an essential witness shall be considered absent when his/her whereabouts are unknown and, in addition, he/she is attempting to avoid apprehension or prosecution or his/her whereabouts cannot be determined by due diligence. An accused or an essential witness shall be considered unavailable whenever his/her whereabouts are known but his/her presence for trial cannot be obtained by due diligence or he/she resists appearing at or being returned for trial. (c) Any period of delay resulting from the fact that the accused is mentally incompetent or physically unable to stand trial. (d) If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge. (e) A reasonable period of delay when the accused is joined for trial with a co-accused over whom the court has not acquired jurisdiction, or as to whom the time for trial has not run and no motion for severance has been granted. (f) Any period of delay resulting from a continuance granted by any justice or judge motu propio or on motion of the accused or his/her counsel or at the request of the public prosecutor, if the justice or judge granted such continuance on the basis of his/her findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this

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subparagraph shall be excludable under this section unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the accused in a speedy trial. Section 11. Factors for Granting Continuance. - The factors, among others, which a justice or judge shall consider in determining whether to grant a continuance under subparagraph (f) of Section 10 of this Act are as follows: (a) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice. (b) Whether the case taken as a whole is so novel, so unusual and so complex, due to the number of accused or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate preparation within the periods of time established by this Act. No continuance under subparagraph (f) of Section 10 shall be granted because of general congestion of the court's calendar, or lack of diligent preparation or failure to obtain available witnesses on the part of the public prosecutor. Section 12. Public Attorney's Duties Where Accused is Imprisoned. - If the public attorney knows that a person charged of a crime is preventively detained, either because he/she is charged of a bailable crime and has no means to post bail, or is charged of a non-bailable crime, or is serving a term of imprisonment in any penal institution, the public attorney shall promptly: (a) Undertake to obtain the presence of the prisoner for trial, or cause a notice to be served on the person having custody of the prisoner mandating such person to so advise the prisoner of his/her right to demand trial. (b) Upon receipt of a notice, the person having custody of the prisoner shall promptly advise the prisoner of the charge and of his/her right to demand trial. If at any time thereafter the prisoner informs the person having custody that he/she demands trial, such person shall cause notice to that effect to be sent promptly to the public attorney. (c) Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial. (d) When the person having custody of the prisoner receives from the public attorney a properly supported request for temporary custody of the prisoner for trial, the prisoner shall be made available to that public attorney.

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Section 13. Remedy Where Accused is Not Brought to Trial Within the Time Limit. - If an accused is not brought to trial within the time limit required by Section 7 of this Act as extended by Section 9, the information shall be dismissed on motion of the accused. The accused shall have the burden of proof of supporting such motion but the prosecution shall have the burden of going forward with the evidence in connection with the exclusion of time under Section 10 of this Act. In determining whether to dismiss the case with or without prejudice, the court shall consider, among other factors, the seriousness of the offense, the facts and circumstances of the case which led to the dismissal, and the impact of a reprosecution on the implementation of this Act and on the administration of justice. Failure of the accused to move for dismissal prior to trial or entry of a plea of guilty shall constitute a waiver of the right to dismissal under this section. Section 14. Sanctions. - In any case in which counsel for the accused, the public prosecution or public attorney: (a) knowingly allows the case to be set for trial without disclosing the fact that a necessary witness would be unavailable for trial; (b) files a motion solely for the purpose of delay which he/she knows is totally frivolous and without merit; (c) makes a statement for the purpose of obtaining continuance which he/she knows to be false and which is material to the granting of a continuance; or (d) otherwise willfully fails to proceed to trial without justification consistent with the provisions of this Act, the court may, without prejudice to any appropriate criminal and/or administrative charges to be instituted by the proper party against the erring counsel if and when warranted, punish any such counsel or attorney, as follows: (1) in the case of a counsel privately retained in connection with the defense of an accused, by imposing a fine not exceeding; fifty percent (50%) of the compensation to which he/she is entitled in connection with his/her defense of the accused; (2) by imposing on any appointed counsel de officio or public prosecutor a fine not exceeding Ten thousand pesos (10,000.00); and (3) by denying any defense counsel or public prosecutor the right to practice before the court considering the case for a period not exceeding thirty (30) days.

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The authority to punish provided for by this section shall be in addition to any other authority or power available to the court. The court shall follow the procedures established in the Rules of Court in punishing any counsel or public prosecutor pursuant to this section. Section 15. Rules and Regulations. - The Supreme Court shall promulgate rules, regulations, administrative orders and circulars which shall seek to accelerate the disposition of criminal cases. The rules, regulations, administrative orders and circulars formulated shall provide sanctions against justices and judges who willfully fail to proceed to trial without justification consistent with the provisions of this Act. Section 16. Funding. - For the effective implementation of the rules, regulations, administrative orders and circulars promulgated under this Act, the amount of Twenty million pesos (P20,000,000.00) annually shall be appropriated from the allocation of the Supreme Court under the General Appropriations Act. Thereafter, such additional amounts as may be necessary for its continued implementation shall be included in the annual General Appropriations Act. Section 17. Act Not a Bar to Speedy Trial Claim Under the Constitution. - No provision of this Act shall be interpreted as a bar to any claim of denial of speedy trial as required by Article III, Section 14(2) of the 1987 Constitution. Section 18. Repealing Clause. - All laws, presidential decrees, executive orders, rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. Section 19. Separability Clause. - In case any provision of this Act is declared unconstitutional, the other provisions shall remain in effect. Section 20. Effectivity. - This Act shall take effect after fifteen (15) days following its publication in the Official Gazette or in any newspaper of general circulation: Provided, That Section 7 of this Act shall become effective after the expiration of the aforementioned third-calendar-month period provided in Section 9 of this Act. Approved: February 12, 1998

G.R. No. 146710-15

March 2, 2001

JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent.

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---------------------------------------G.R. No. 146738

March 2, 2001

JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, respondent. PUNO, J.: On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The warring personalities are important enough but more transcendental are the constitutional issues embedded on the parties' dispute. While the significant issues are many, the jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine style. First, we take a view of the panorama of events that precipitated the crisis in the office of the President. In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the respondent were to serve a sixyear term commencing on June 30, 1998. From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1 The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from Governor Singson from November 1998 to August 2000. He also charged that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for joint investigation.2 The House of Representatives did no less. The House Committee on Public Order and Security, then headed by Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson. On the other hand, Representatives Heherson

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Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach the petitioner. Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step down from the presidency as he had lost the moral authority to govern.3 Two days later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino also demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's resignation.7 However, petitioner strenuously held on to his office and refused to resign. The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2, Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On November 3, Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10 The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more than 1/3 of all the members of the House of Representatives to the Senate. This caused political convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by Representative Fuentebella.12 On November 20, the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13 The political temperature rose despite the cold December. On December 7, the impeachment trial started.14 The battle royale was fought by some of the marquee names in the legal profession. Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during its course enjoyed the highest viewing rating. Its high and low points were the constant conversational piece of the chattering classes. The dramatic point of the December hearings was the testimony of Clarissa Ocampo, senior vice

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president of Equitable-PCI Bank. She testified that she was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on documents involving a P500 million investment agreement with their bank on February 4, 2000.15 After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider trading.16 Then came the fateful day of January 16, when by a vote of 11-1017 the senator-judges ruled against the opening of the second envelope which allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank account under the name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the eleven (11) senators. On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the impeachment proceedings until the House of Representatives shall have resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted the motion.20 January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics of persuasion, attracted more and more people.21 On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for President where he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the chiefs of all the armed services went to the EDSA Shrine. 22 In the presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are withdrawing our support to this government."23 A little later, PNP Chief, Director General Panfilo Lacson and the major service commanders gave a similar stunning announcement.24 Some Cabinet secretaries, undersecretaries, assistant

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secretaries, and bureau chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in various parts of the country. To stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of the highly controversial second envelope.26There was no turning back the tide. The tide had become a tsunami. January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine. At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He issued the following press statement: 30 "20 January 2001 STATEMENT FROM PRESIDENT JOSEPH EJERCITO ESTRADA At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in to promotion of a constructive national spirit of reconciliation and solidarity.

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May the Almighty bless our country and beloved people. MABUHAY! (Sgd.) JOSEPH EJERCITO ESTRADA" It also appears that on the same day, January 20, 2001, he signed the following letter:31 "Sir: By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice-President shall be the Acting President. (Sgd.) JOSEPH EJERCITO ESTRADA" A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another copy was transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m.33 On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers the duties of the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter No. 01-1-05-SC, to wit: "A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria MacapagalArroyo to Take her Oath of Office as President of the Republic of the Philippines before the Chief Justice — Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the court Resolve unanimously to confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001.1âwphi1.nêt This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper party." Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly followed. On January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the government of

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respondent Arroyo.35 US President George W. Bush gave the respondent a telephone call from the White House conveying US recognition of her government.36 On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of Representatives.37The House then passed Resolution No. 175 "expressing the full support of the House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo, President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the House of Representatives to the assumption into office by Vice President Gloria MacapagalArroyo as President of the Republic of the Philippines, extending its congratulations and expressing its support for her administration as a partner in the attainment of the nation's goals under the Constitution."39 On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later, she also signed into law the Political Advertising ban and Fair Election Practices Act.41 On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona, Jr.43Senators Miriam DefensorSantiago, Juan Ponce Enrile, and John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice President two (2) days later.46 On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the record" that she voted against the closure of the impeachment court on the grounds that the Senate had failed to decide on the impeachment case and that the resolution left open the question of whether Estrada was still qualified to run for another elective post.48 Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted by majorities in all social classes: 58% in the ABC or middleto-upper classes, 64% in the D or mass class, and 54% among the E's or very poor class.50 After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several cases previously filed against him in the Office of the

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Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and corruption. A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as other supporting documents in answer to the aforementioned complaints against him. Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as President is over and only if legally warranted." Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day, February 6, required the respondents "to comment thereon within a non-extendible period expiring on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February 15." On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag that they have "compromised themselves by indicating that they have thrown their weight on one side" but nonetheless inhibited themselves. Thereafter, the parties

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were given the short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous replies. In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court resolved: "(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the office of the President vacant and that neither did the Chief Justice issue a press statement justifying the alleged resolution; (2) to order the parties and especially their counsel who are officers of the Court under pain of being cited for contempt to refrain from making any comment or discussing in public the merits of the cases at bar while they are still pending decision by the Court, and (3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from resolving or deciding the criminal cases pending investigation in his office against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news reports that the respondent Ombudsman may immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001, which action will make the cases at bar moot and academic."53 The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for decision. The bedrock issues for resolution of this Court are: I Whether the petitions present a justiciable controversy. II Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President on leave while respondent Arroyo is an Acting President. III Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution of petitioner Estrada. In the

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negative and on the assumption that petitioner is still President, whether he is immune from criminal prosecution. IV Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity. We shall discuss the issues in seriatim. I Whether or not the cases At bar involve a political question Private respondents54 raise the threshold issue that the cases at bar pose a political question, and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that respondent Arroyo ascended the presidency through people power; that she has already taken her oath as the 14th President of the Republic; that she has exercised the powers of the presidency and that she has been recognized by foreign governments. They submit that these realities on ground constitute the political thicket, which the Court cannot enter. We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the shroud on political question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th century, the political question doctrine which rests on the principle of separation of powers and on prudential considerations, continue to be refined in the mills of constitutional law.55 In the United States, the most authoritative guidelines to determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz: "x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non

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justiciability on the ground of a political question's presence. The doctrine of which we treat is one of 'political questions', not of 'political cases'." In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation of the inner and outer perimeters of a political question.57 Our leading case is Tanada v. Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political questions refer "to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.59 Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction.60With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing. In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or the extension thereof x x x." Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they present a political question. A more cerebral reading of the cited cases will show that they are inapplicable. In the cited cases, we held that the government of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution63 declared that the Aquino government was installed through a direct exercise of the power of the Filipino people "in defiance of the provisions of the 1973 Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution.

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In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition the government for redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate. Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the reforms sine quibus non."65 The Malolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in writing, through the use of the press or other similar means; (2) of the right of association for purposes of human life and which are not contrary to public means; and (3) of the right to send petitions to the authorities, individually or collectively." These fundamental rights were preserved when the United States acquired jurisdiction over the Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.66 Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution. These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz: "Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances." The indispensability of the people's freedom of speech and of assembly to democracy is now self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is essential to provide for participation in decision-making by all members of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable community of maintaining the precarious balance between healthy cleavage and necessary consensus."69 In this sense, freedom of speech and of assembly provides a framework in which the "conflict necessary to the progress of

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a society can take place without destroying the society."70In Hague v. Committee for Industrial Organization,71 this function of free speech and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American Bar Association which emphasized that "the basis of the right of assembly is the substitution of the expression of opinion and belief by talk rather than force; and this means talk for all and by all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that "… it should be clear even to those with intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should listen. For in a democracy, it is the people who count; those who are deaf to their grievances are ciphers." Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers under section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid down that "it is emphatically the province and duty of the judicial department to say what the law is . . ." Thus, respondent's in vocation of the doctrine of political question is but a foray in the dark. II Whether or not the petitioner Resigned as President We now slide to the second issue. None of the parties considered this issue as posing a political question. Indeed, it involves a legal question whose factual ingredient is determinable from the records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he submits that the office of the President was not vacant when respondent Arroyo took her oath as President. The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which provides: "Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the Vice President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice President shall have been elected and qualified. The issue then is whether the petitioner resigned as President or should be considered resigned as of January 20, 2001 when respondent took her oath as the

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14th President of the Public. Resignation is not a high level legal abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment.78 The validity of a resignation is not government by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his act and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. Using this totality test, we hold that petitioner resigned as President. To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon investigation spiked the hate against him. The Articles of Impeachment filed in the House of Representatives which initially was given a near cipher chance of succeeding snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with 47 representatives in tow. Then, his respected senior economic advisers resigned together with his Secretary of Trade and Industry. As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The call reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of January 16 was over, the EDSA Shrine was swarming with people crying for redress of their grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the countryside like a brush fire. As events approached January 20, we can have an authoritative window on the state of mind of the petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)" 80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap presidential election and

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stressed he would not be a candidate. The proposal for a snap election for president in May where he would not be a candidate is an indicium that petitioner had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to go abroad with enough funds to support him and his family.83 Significantly, the petitioner expressed no objection to the suggestion for a graceful and dignified exit but said he would never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a week in the palace."85 This is proof that petitioner had reconciled himself to the reality that he had to resign. His mind was already concerned with the five-day grace period he could stay in the palace. It was a matter of time. The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary Angara readily agreed. Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of power. The resignation of the petitioner was implied. The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name of the petitioner.87 Again, we note that the resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following entry in the Angara Diary shows the reaction of the petitioner, viz: I explain what happened during the first round of negotiations. The President immediately stresses that he just wants the five-day period promised by Reyes, as well as to open the second envelope to clear his name. If the envelope is opened, on Monday, he says, he will leave by Monday. The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this – it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

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I just want to clear my name, then I will go."88 Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation. The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following happened: "Opposition's deal 7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona. For this round, I am accompanied by Dondon Bagatsing and Macel. Rene pulls out a document titled "Negotiating Points." It reads: '1. The President shall sign a resignation document within the day, 20 January 2001, that will be effective on Wednesday, 24 January 2001, on which day the Vice President will assume the Presidency of the Republic of the Philippines. 2. Beginning to day, 20 January 2001, the transition process for the assumption of the new administration shall commence, and persons designated by the Vice President to various positions and offices of the government shall start their orientation activities in coordination with the incumbent officials concerned. 3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice President as national military and police authority effective immediately. 4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of the President and his family as approved by the national military and police authority (Vice President). 5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings account of the President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant to the request to the Senate President. Our deal We bring out, too, our discussion draft which reads:

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The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows: '1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo. '2. In return, President Estrada and his families are guaranteed security and safety of their person and property throughout their natural lifetimes. Likewise, President Estrada and his families are guarantee freedom from persecution or retaliation from government and the private sector throughout their natural lifetimes. This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the Chief of Staff, as approved by the national military and police authorities – Vice President (Macapagal). '3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will authorize the opening of the second envelope in the impeachment trial as proof that the subject savings account does not belong to President Estrada. '4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the 'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet officials as part of the orientation program. During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice President (Macapagal) as national military and police authorities. Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the necessary signatures as affixed to this agreement and insure faithful implementation and observance thereof. Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided for in "Annex A" heretofore attached to this agreement."89 The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that during this second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only unsettled points at that time were the measures to be undertaken by the parties during and after the transition period.

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According to Secretary Angara, the draft agreement, which was premised on the resignation of the petitioner was further refined. It was then, signed by their side and he was ready to fax it to General Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the fateful events, viz;90 11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five points to effect a peaceful transition. I can hear the general clearing all these points with a group he is with. I hear voices in the background. Agreement. The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall be effective on 24 January 2001, on which day the Vice President will assume the presidency of the Republic of the Philippines. The rest of the agreement follows: 2. The transition process for the assumption of the new administration shall commence on 20 January 2001, wherein persons designated by the Vice President to various government positions shall start orientation activities with incumbent officials. '3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and security of the President and his families throughout their natural lifetimes as approved by the national military and police authority – Vice President. '4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as national military and police authorities. '5. Both parties request the impeachment court to open the second envelope in the impeachment trial, the contents of which shall be offered as proof that the subject savings account does not belong to the President. The Vice President shall issue a public statement in the form and tenor provided for in Annex "B" heretofore attached to this agreement. 11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side and awaiting the signature of the United opposition.

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And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon. 'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What about the agreement)?' I asked. Reyes answered: 'Wala na, sir (it's over, sir).' I ask him: Di yung transition period, moot and academic na?' And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).' Contrary to subsequent reports, I do not react and say that there was a double cross. But I immediately instruct Macel to delete the first provision on resignation since this matter is already moot and academic. Within moments, Macel erases the first provision and faxes the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel and General Reyes. I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other side, as it is important that the provisions on security, at least, should be respected. I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer the oath to Gloria at 12 noon. The President is too stunned for words: Final meal 12 noon – Gloria takes her oath as president of the Republic of the Philippines. 12:20 p.m. – The PSG distributes firearms to some people inside the compound. The president is having his final meal at the presidential Residence with the few friends and Cabinet members who have gathered. By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the PSG is there to protect the Palace, since

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the police and military have already withdrawn their support for the President. 1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's personal possessions as they can. During lunch, Ronnie Puno mentions that the president needs to release a final statement before leaving Malacañang. The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and our beloved people. MABUHAY!"' It was curtain time for the petitioner. In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacañang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind inability and that he was going to re-assume the presidency as soon as the disability disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Petitioner's reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and

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solidarity could not be attained if he did not give up the presidency. The press release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense. It is, however, urged that the petitioner did not resign but only took a temporary leave dated January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer to the said letter, viz: "Sir. By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice President shall be the Acting president. (Sgd.) Joseph Ejercito Estrada" To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the cases at bar did not discuss, may even intimate, the circumstances that led to its preparation. Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its existence when he issued his final press release. It was all too easy for him to tell the Filipino people in his press release that he was temporarily unable to govern and that he was leaving the reins of government to respondent Arroyo for the time bearing. Under any circumstance, however, the mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press release of the petitioner clearly as a later act. If, however, it was prepared after the press released, still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his reputation by the people. There is another reason why this Court cannot given any legal significance to petitioner's letter and this shall be discussed in issue number III of this Decision. After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and Corrupt Practices Act, which allegedly prohibits his resignation, viz: "Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery." A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No. 3019 originated form Senate Bill No. 293. The original draft of

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the bill, when it was submitted to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However, in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose during the period of amendments the inclusion of a provision to the effect that no public official who is under prosecution for any act of graft or corruption, or is under administrative investigation, shall be allowed to voluntarily resign or retire."92 During the period of amendments, the following provision was inserted as section 15: "Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under the Act or under the provisions of the Revised Penal Code on bribery. The separation or cessation of a public official form office shall not be a bar to his prosecution under this Act for an offense committed during his incumbency."93 The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph of the provision and insisted that the President's immunity should extend after his tenure. Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section 15 above became section 13 under the new bill, but the deliberations on this particular provision mainly focused on the immunity of the President, which was one of the reasons for the veto of the original bill. There was hardly any debate on the prohibition against the resignation or retirement of a public official with pending criminal and administrative cases against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement from being used by a public official as a protective shield to stop the investigation of a pending criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled to render service for that would be a violation of his constitutional right.94 A public official has the right not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal investigation or prosecution, such resignation or retirement will not cause the dismissal of the criminal or administrative proceedings against him. He cannot use his resignation or retirement to avoid prosecution. There is another reason why petitioner's contention should be rejected. In the cases at bar, the records show that when petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman were OMB Case Nos. 0-001629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner was immune from suit. Technically, the said cases cannot be considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for it contemplates of

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cases whose investigation or prosecution do not suffer from any insuperable legal obstacle like the immunity from suit of a sitting President. Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment proceeding is debatable. But even assuming arguendo that it is an administrative proceeding, it can not be considered pending at the time petitioner resigned because the process already broke down when a majority of the senator-judges voted against the opening of the second envelope, the public and private prosecutors walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There was, in effect, no impeachment case pending against petitioner when he resigned. III Whether or not the petitioner Is only temporarily unable to Act as President. We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and Speaker Fuentebella. Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that "Congress has the ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner provided for in section 11 of article VII." 95 This contention is the centerpiece of petitioner's stance that he is a President on leave and respondent Arroyo is only an Acting President. An examination of section 11, Article VII is in order. It provides: "SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President. Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President.

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Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call. If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office." That is the law. Now, the operative facts: 1. 2. 3.

Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President and Speaker of the House; Unaware of the letter, respondent Arroyo took her oath of office as President on January 20, 2001 at about 12:30 p.m.; Despite receipt of the letter, the House of Representatives passed on January 24, 2001 House Resolution No. 175;96

On the same date, the House of the Representatives passed House Resolution No. 17697 which states: "RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE CONSTITUTION WHEREAS, as a consequence of the people's loss of confidence on the ability of former President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine National Police and majority of his cabinet had withdrawn support from him; WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice Hilario G. Davide, Jr.;

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WHEREAS, immediately thereafter, members of the international community had extended their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national healing and reconciliation with justice for the purpose of national unity and development; WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus by reason of the constitutional duty of the House of Representatives as an institution and that of the individual members thereof of fealty to the supreme will of the people, the House of Representatives must ensure to the people a stable, continuing government and therefore must remove all obstacles to the attainment thereof; WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of national reconciliation and solidarity as it is a direct representative of the various segments of the whole nation; WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing, for the House of Representatives to extend its support and collaboration to the administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the national interest demanding no less: Now, therefore, be it Resolved by the House of Representatives, To express its support to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its congratulations and to express its support for her administration as a partner in the attainment of the Nation's goals under the Constitution. Adopted, (Sgd.) FELICIANO BELMONTE JR. Speaker This Resolution was adopted by the House of Representatives on January 24, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General"

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On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which states: "RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the Philippines; WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the Philippines – qualities which merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of the Republic of the Philippines. Adopted, (Sgd.) FELICIANO BELMONTE JR. Speaker This Resolution was adopted by the House of Representatives on February 7, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General"

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(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the Senate signed the following: "RESOLUTION WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change and challenge; WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of purpose and resolve cohesive resolute (sic) will; WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity despite diversities in perspectives; WHEREFORE, we recognize and express support to the new government of President Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99 On February 7, the Senate also passed Senate Resolution No. 82100 which states: "RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Philippines; WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice,

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Senator of the land - which qualities merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T. Guingona, Jr. as Vice President of the Republic of the Philippines. Adopted, (Sgd.) AQUILINO Q. PIMENTEL JR. President of the Senate This Resolution was adopted by the Senate on February 7, 2001. (Sgd.) LUTGARDO B. BARBO Secretary of the Senate" On the same date, February 7, the Senate likewise passed Senate Resolution No. 83101 which states: "RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus officioand has been terminated. Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved. Resolved, further, That the records of the Impeachment Court including the "second envelope" be transferred to the Archives of the Senate for proper safekeeping and preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof shall be made only upon written approval of the Senate president. Resolved, finally. That all parties concerned be furnished copies of this Resolution. Adopted, (Sgd.) AQUILINO Q. PIMENTEL, JR. President of the Senate This Resolution was adopted by the Senate on February 7, 2001.

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(Sgd.) LUTGARDO B. BARBO Secretary of the Senate" (5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate garnering the thirteenth (13 th) highest number of votes shall serve only for the unexpired term of Senator Teofisto T. Guingona, Jr.' (6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as President. (7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of government, and without any support from the Armed Forces of the Philippines and the Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary. What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly rejected petitioner's claim of inability. The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as president of the Philippines. Following Tañada v. Cuenco,102 we hold that this Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary authority has been delegated to the Legislative xxx branch of the government." Or to use the language in Baker vs. Carr,103 there is a "textually demonstrable or a lack of judicially discoverable and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of inability to discharge the power and duties of the presidency. The question is political in nature and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be decided by this Court without transgressing the principle of separation of powers. In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure, president made by a co-equal branch of government cannot be reviewed by this Court. IV Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity

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Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil. Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held: " The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to touch the acts of the Governor-General; that he may, under cover of his office, do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly free from interference of courts or legislatures. This does not mean, either that a person injured by the executive authority by an act unjustifiable under the law has n remedy, but must submit in silence. On the contrary, it means, simply, that the governors-general, like the judges if the courts and the members of the Legislature, may not be personally mulcted in civil damages for the consequences of an act executed in the performance of his official duties. The judiciary has full power to, and will, when the mater is properly presented to it and the occasion justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as possible in status quo any person who has been deprived his liberty or his property by such act. This remedy is assured to every person, however humble or of whatever country, when his personal or property rights have been invaded, even by the highest authority of the state. The thing which the judiciary can not do is mulct the Governor-General personally in damages which result from the performance of his official duty, any more than it can a member of the Philippine Commission of the Philippine Assembly. Public policy forbids it. Neither does this principle of nonliability mean that the chief executive may not be personally sued at all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears from the discussion heretofore had, particularly that portion which touched the liability of judges and drew an analogy between such liability and that of the Governor-General, that the latter is liable when he acts in a case so plainly outside of his power and authority that he can not be said to have exercised discretion in determining whether or not he had the right to act. What is held here is that he will be protected from personal liability for damages not only when he acts within his authority, but also when he is

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without authority, provided he actually used discretion and judgement, that is, the judicial faculty, in determining whether he had authority to act or not. In other words, in determining the question of his authority. If he decide wrongly, he is still protected provided the question of his authority was one over which two men, reasonably qualified for that position, might honestly differ; but he s not protected if the lack of authority to act is so plain that two such men could not honestly differ over its determination. In such case, be acts, not as Governor-General but as a private individual, and as such must answer for the consequences of his act." Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from suit, viz"xxx. Action upon important matters of state delayed; the time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the state and for the office he occupies; a tendency to unrest and disorder resulting in a way, in distrust as to the integrity of government itself." 105 Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity. Section 17, Article VII stated: "The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution. In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications effected by this constitutional amendment on the existing law on executive privilege. To quote his disquisition: "In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the absolute immunity concept. First, we extended it to shield the President not only form civil claims but also from criminal cases and other claims. Second, we enlarged its scope so that it would cover even acts of the President outside the scope of official duties. And third, we broadened its coverage so as to include not only the President but also other persons, be they government officials or private individuals, who acted upon orders of the President. It can be said that at that point most of us were suffering from AIDS (or absolute immunity defense syndrome)."

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The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos violated the principle that a public office is a public trust. He denounced the immunity as a return to the anachronism "the king can do no wrong."107 The effort failed. The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity provision of the 1973 Constitution. The following explanation was given by delegate J. Bernas vis:108 "Mr. Suarez. Thank you. The last question is with reference to the Committee's omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the President shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now facing litigation's almost daily? Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit. Mr. Suarez. So there is no need to express it here. Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things. Mr. Suarez. On that understanding, I will not press for any more query, Madam President. I think the Commissioner for the clarifications." We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then

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convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him, viz:110 "xxx Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for example, and the President resigns before judgement of conviction has been rendered by the impeachment court or by the body, how does it affect the impeachment proceeding? Will it be necessarily dropped? Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would render the case moot and academic. However, as the provision says, the criminal and civil aspects of it may continue in the ordinary courts." This is in accord with our ruling In Re: Saturnino Bermudez 111 that 'incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure" but not beyond. Considering the peculiar circumstance that the impeachment process against the petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted in the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and related cases113 are inapropos for they have a different factual milieu. We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any trespasser.114 Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was subpoenaed to

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produce certain recordings and documents relating to his conversations with aids and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to obstruct Justice and other offenses, which were committed in a burglary of the Democratic National Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among others, that the President was not subject to judicial process and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct. There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruptio." 119 it ordained that "public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest lives."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, latches or estoppel."121 It maintained the Sandiganbayan as an antigraft court.122 It created the office of the Ombudsman and endowed it with enormous powers, among which is to "investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust improper or inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These constitutional policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity from suit for criminal acts committed during his incumbency. V Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of the cases filed against him due to the barrage of

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prejudicial publicity on his guilt. He submits that the respondent Ombudsman has developed bias and is all set file the criminal cases violation of his right to due process. There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases.125 The British approach the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat.126 The American approach is different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and present danger, etc. This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that: "We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances accused's right to a fair trial for, as well pointed out, a responsible press has always been regarded as the criminal field xxx. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pretrial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality.

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At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at a bar, the records do not show that the trial judge developed actual bias against appellants as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity, which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden.' We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc.130 and its companion cases, viz: "Again petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case – the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was a.

The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized when a shocking crime occurs a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important

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b.

c.

prophylactic purpose, providing an outlet for community concern, hostility and emotion. To work effectively, it is important that society's criminal process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99 L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038. The freedoms of speech. Press and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedom such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which the draftsmen deliberately linked it. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. Even though the Constitution contains no provision which be its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trial is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for

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these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extrarecord evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity." (emphasis supplied) Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of proof.131 He needs to show more weighty social science evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds of the members of this special panel have already been infected by bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and the Court cannot second guess whether its recommendation will be unfavorable to the petitioner.1âwphi1.nêt The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of slanted news reports, and he has buckled to the threats and pressures directed at him by the mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has already prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating the petitioner will be influenced by this bias of their superior. Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of good faith and regularity in the performance of official duty to which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of Criminal Procedure, give investigation prosecutors the independence to make their own findings and recommendations albeit they are reviewable by their superiors.134 They can be reversed but they can not be compelled cases which they believe deserve dismissal. In other words, investigating prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the petitioner and the latter believes that the

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findings of probable cause against him is the result of bias, he still has the remedy of assailing it before the proper court. VI. Epilogue A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial which has been categorized as the "most fundamental of all freedoms."135To be sure, the duty of a prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the majority is not and should never be the definition of the rule of law. If democracy has proved to be the best form of government, it is because it has respected the right of the minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to man's progress from the cave to civilization. Let us not throw away that key just to pander to some people's prejudice. IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED. SO ORDERED.

A.M. No. 10-11-5-SC,

June 14, 2011

RE: PETITION FOR RADIO AND TELEVISION COVERAGE OF THE MULTIPLE MURDER CASES AGAINST MAGUINDANAO GOVERNOR ZALDY AMPATUAN, ET AL., x - - - - - - - - - - - - - - - - - - - - - - -x A.M. No. 10-11-6-SC

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RE: PETITION FOR THE CONSTITUTION OF THE PRESENT COURT HANDLING THE TRIAL OF THE MASSACRE OF 57 PERSONS, INCLUDING 32 JOURNALISTS, IN AMPATUAN, MAGUINDANAO INTO A SPECIAL COURT HANDLING THIS CASE ALONE FOR THE PURPOSE OF ACHIEVING GENUINE SPEEDY TRIAL and FOR THE SETTING UP OF VIDEOCAM AND MONITOR JUST OUTSIDE THE COURT FOR JOURNALISTS TO COVER AND FOR THE PEOPLE TO WITNESS THE "TRIAL OF THE DECADE" TO MAKE IT TRULY PUBLIC AND IMPARTIAL AS COMMANDED BY THE CONSTITUTION, x - - - - - - - - - - - - - - - - - - - - - - -x A.M. No. 10-11-7-SC RE: LETTER OF PRESIDENT BENIGNO S. AQUINO III FOR THE LIVE MEDIA COVERAGE OF THE MAGUINDANAO MASSACRE TRIAL. CARPIO MORALES, J.: On November 23, 2009, 57 people including 32 journalists and media practitioners were killed while on their way to Shariff Aguak in Maguindanao. Touted as the worst election-related violence and the most brutal killing of journalists in recent history, the tragic incident which came to be known as the "Maguindanao Massacre" spawned charges for 57 counts of murder and an additional charge of rebellion against 197 accused, docketed as Criminal Case Nos. Q-09-162148-72, Q09-162216-31, Q-10-162652-66, and Q-10-163766, commonly entitled People v. Datu Andal Ampatuan, Jr., et al. Following the transfer of venue and the reraffling of the cases, the cases are being tried by Presiding Judge Jocelyn Solis-Reyes of Branch 221 of the Regional Trial Court (RTC) of Quezon City inside Camp Bagong Diwa in Taguig City. Almost a year later or on November 19, 2010, the National Union of Journalists of the Philippines (NUJP), ABS-CBN Broadcasting Corporation, GMA Network, Inc., relatives of the victims,1 individual journalists2 from various media entities, and members of the academe3 filed a petition before this Court praying that live television and radio coverage of the trial in these criminal cases be allowed, recording devices (e.g., still cameras, tape recorders) be permitted inside the courtroom to assist the working journalists, and reasonable guidelines be formulated to govern the broadcast coverage and the use of devices.4 The Court docketed the petition as A.M. No. 10-11-5-SC. In a related move, the National Press Club of the Philippines5 (NPC) and Alyansa ng Filipinong Mamamahayag6(AFIMA) filed on November 22, 2010 a petition praying that the Court constitute Branch 221 of RTC-Quezon City as a special court to focus only on the Maguindanao Massacre trial to relieve it of all other pending cases and assigned duties, and allow the installation inside the courtroom of a sufficient number of video cameras that shall beam the audio and video signals to the television monitors outside the court.7 The Court docketed the petition as A.M. No. 10-11-6-SC.

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President Benigno S. Aquino III, by letter of November 22, 20108 addressed to Chief Justice Renato Corona, came out "in support of those who have petitioned [this Court] to permit television and radio broadcast of the trial." The President expressed "earnest hope that [this Court] will, within the many considerations that enter into such a historic deliberation, attend to this petition with the dispatch, dispassion and humaneness, such a petition merits."9The Court docketed the matter as A.M. No. 10-11-7-SC. By separate Resolutions of November 23, 2010,10 the Court consolidated A.M. No. 10-11-7-SC with A.M. No. 10-11-5-SC. The Court shall treat in a separate Resolution A.M. No. 10-11-6-SC. Meanwhile, various groups11 also sent to the Chief Justice their respective resolutions and statements bearing on these matters. The principal accused in the cases, Andal Ampatuan, Jr. (Ampatuan), filed a Consolidated Comment of December 6, 2010 in A.M. No. 10-11-5-SC and A.M. No. 10-11-7-SC. The President, through the Office of the Solicitor General (OSG), and NUJP, et al. filed their respective Reply of January 18, 2011 and January 20, 2011. Ampatuan also filed a Rejoinder of March 9, 2011. On Broadcasting the Trial of the Maguindanao Massacre Cases Petitioners seek the lifting of the absolute ban on live television and radio coverage of court proceedings. They principally urge the Court to revisit the 1991 ruling in Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquino’s Libel Case12 and the 2001 ruling in Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against the Former President Joseph E. Estrada13 which rulings, they contend, violate the doctrine that proposed restrictions on constitutional rights are to be narrowly construed and outright prohibition cannot stand when regulation is a viable alternative. Petitioners state that the trial of the Maguindanao Massacre cases has attracted intense media coverage due to the gruesomeness of the crime, prominence of the accused, and the number of media personnel killed. They inform that reporters are being frisked and searched for cameras, recorders, and cellular devices upon entry, and that under strict orders of the trial court against live broadcast coverage, the number of media practitioners allowed inside the courtroom has been limited to one reporter for each media institution. The record shows that NUJP Vice-Chairperson Jose Jaime Espina, by January 12, 2010 letter14 to Judge Solis-Reyes, requested a dialogue to discuss concerns over media coverage of the proceedings of the Maguindanao Massacre cases. Judge Solis-Reyes replied, however, that "matters concerning media coverage should be brought to the Court’s attention through appropriate motion."15 Hence, the present petitions which assert the exercise of the freedom of the press, right to

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information, right to a fair and public trial, right to assembly and to petition the government for redress of grievances, right of free access to courts, and freedom of association, subject to regulations to be issued by the Court. The Court partially GRANTS pro hac vice petitioners’ prayer for a live broadcast of the trial court proceedings, subject to the guidelines which shall be enumerated shortly. Putt’s Law16 states that "technology is dominated by two types of people: those who understand what they do not manage, and those who manage what they do not understand." Indeed, members of this Court cannot strip their judicial robe and don the experts’ gown, so to speak, in a pretense to foresee and fathom all serious prejudices or risks from the use of technology inside the courtroom. A decade after Estrada and a score after Aquino, the Court is once again faced with the same task of striking that delicate balance between seemingly competing yet certainly complementary rights. The indication of "serious risks" posed by live media coverage to the accused’s right to due process, left unexplained and unexplored in the era obtaining in Aquino and Estrada, has left a blow to the exercise of press freedom and the right to public information.lawphil The rationale for an outright total prohibition was shrouded, as it is now, inside the comfortable cocoon of a feared speculation which no scientific study in the Philippine setting confirms, and which fear, if any, may be dealt with by safeguards and safety nets under existing rules and exacting regulations. In this day and age, it is about time to craft a win-win situation that shall not compromise rights in the criminal administration of justice, sacrifice press freedom and allied rights, and interfere with the integrity, dignity and solemnity of judicial proceedings. Compliance with regulations, not curtailment of a right, provides a workable solution to the concerns raised in these administrative matters, while, at the same time, maintaining the same underlying principles upheld in the two previous cases. The basic principle upheld in Aquino is firm ─ "[a] trial of any kind or in any court is a matter of serious importance to all concerned and should not be treated as a means of entertainment[, and t]o so treat it deprives the court of the dignity which pertains to it and departs from the orderly and serious quest for truth for which our judicial proceedings are formulated." The observation that "[m]assive intrusion of representatives of the news media into the trial itself can so alter and destroy the constitutionally necessary atmosphere and decorum" stands. The Court concluded in Aquino:

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Considering the prejudice it poses to the defendant's right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper. Accordingly, in order to protect the parties' right to due process, to prevent the distraction of the participants in the proceedings and in the last analysis, to avoid miscarriage of justice, the Court resolved to PROHlBIT live radio and television coverage of court proceedings. Video footage of court hearings for news purposes shall be limited and restricted as above indicated.17 The Court had another unique opportunity in Estrada to revisit the question of live radio and television coverage of court proceedings in a criminal case. It held that "[t]he propriety of granting or denying the instant petition involve[s] the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial." The Court disposed: The Court is not all that unmindful of recent technological and scientific advances but to chance forthwith the life or liberty of any person in a hasty bid to use and apply them, even before ample safety nets are provided and the concerns heretofore expressed are aptly addressed, is a price too high to pay. WHEREFORE, the petition is DENIED. SO ORDERED.18 In resolving the motion for reconsideration, the Court in Estrada, by Resolution of September 13, 2001, provided a glimmer of hope when it ordered the audio-visual recording of the trial for documentary purposes, under the following conditions: x x x (a) the trial shall be recorded in its entirety, excepting such portions thereof as the Sandiganbayan may determine should not be held public under Rule 119, §21 of the Rules of Criminal Procedure; (b) cameras shall be installed inconspicuously inside the courtroom and the movement of TV crews shall be regulated consistent with the dignity and solemnity of the proceedings; (c) the audio-visual recordings shall be made for documentary purposes only and shall be made without comment except such annotations of scenes depicted therein as may be necessary to explain them; (d) the live broadcast of the recordings before the Sandiganbayan shall have rendered its decision in all the cases against the former President shall be prohibited under pain of contempt of court and other sanctions

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in case of violations of the prohibition; (e) to ensure that the conditions are observed, the audio-visual recording of the proceedings shall be made under the supervision and control of the Sandiganbayan or its Division concerned and shall be made pursuant to rules promulgated by it; and (f) simultaneously with the release of the audio-visual recordings for public broadcast, the original thereof shall be deposited in the National Museum and the Records Management and Archives Office for preservation and exhibition in accordance with law.19 Petitioners note that the 1965 case of Estes v. Texas20 which Aquino and Estrada heavily cited, was borne out of the dynamics of a jury system, where the considerations for the possible infringement of the impartiality of a jury, whose members are not necessarily schooled in the law, are different from that of a judge who is versed with the rules of evidence. To petitioners, Estes also does not represent the most contemporary position of the United States in the wake of latest jurisprudence21 and statistical figures revealing that as of 2007 all 50 states, except the District of Columbia, allow television coverage with varying degrees of openness. Other jurisdictions welcome the idea of media coverage. Almost all the proceedings of United Kingdom’s Supreme Court are filmed, and sometimes broadcast.22 The International Criminal Court broadcasts its proceedings via video streaming in the internet.23 On the media coverage’s influence on judges, counsels and witnesses, petitioners point out that Aquino and Estrada, like Estes, lack empirical evidence to support the sustained conclusion. They point out errors of generalization where the conclusion has been mostly supported by studies on American attitudes, as there has been no authoritative study on the particular matter dealing with Filipinos. Respecting the possible influence of media coverage on the impartiality of trial court judges, petitioners correctly explain that prejudicial publicity insofar as it undermines the right to a fair trial must pass the "totality of circumstances" test, applied in People v. Teehankee, Jr.24 and Estrada v. Desierto,25 that the right of an accused to a fair trial is not incompatible to a free press, that pervasive publicity is not per se prejudicial to the right of an accused to a fair trial, and that there must be allegation and proof of the impaired capacity of a judge to render a bias-free decision. Mere fear of possible undue influence is not tantamount to actual prejudice resulting in the deprivation of the right to a fair trial. Moreover, an aggrieved party has ample legal remedies. He may challenge the validity of an adverse judgment arising from a proceeding that transgressed a constitutional right. As pointed out by petitioners, an aggrieved party may early on move for a change of venue, for continuance until the prejudice from publicity is abated, for disqualification of the judge, and for closure of portions of the trial when necessary. The trial court may likewise exercise its power of contempt and issue gag orders.

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One apparent circumstance that sets the Maguindanao Massacre cases apart from the earlier cases is the impossibility of accommodating even the parties to the cases – the private complainants/families of the victims and other witnesses – inside the courtroom. On public trial, Estrada basically discusses: An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secrete conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process. In the constitutional sense, a courtroom should have enough facilities for a reasonable number of the public to observe the proceedings, not too small as to render the openness negligible and not too large as to distract the trial participants from their proper functions, who shall then be totally free to report what they have observed during the proceedings.26 (underscoring supplied) Even before considering what is a "reasonable number of the public" who may observe the proceedings, the peculiarity of the subject criminal cases is that the proceedings already necessarily entail the presence of hundreds of families. It cannot be gainsaid that the families of the 57 victims and of the 197 accused have as much interest, beyond mere curiosity, to attend or monitor the proceedings as those of the impleaded parties or trial participants. It bears noting at this juncture that the prosecution and the defense have listed more than 200 witnesses each. The impossibility of holding such judicial proceedings in a courtroom that will accommodate all the interested parties, whether private complainants or accused, is unfortunate enough. What more if the right itself commands that a reasonable number of the general public be allowed to witness the proceeding as it takes place inside the courtroom. Technology tends to provide the only solution to break the inherent limitations of the courtroom, to satisfy the imperative of a transparent, open and public trial. In so allowing pro hac vice the live broadcasting by radio and television of the Maguindanao Massacre cases, the Court lays down the following guidelines toward addressing the concerns mentioned in Aquino and Estrada: (a) An audio-visual recording of the Maguindanao massacre cases may be made both for documentary purposes and for transmittal to live radio and television broadcasting. (b) Media entities must file with the trial court a letter of application, manifesting that they intend to broadcast the audio-visual recording of the proceedings and that they have the necessary technological equipment and technical plan to carry out the same, with an undertaking

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that they will faithfully comply with the guidelines and regulations and cover the entire remaining proceedings until promulgation of judgment. No selective or partial coverage shall be allowed. No media entity shall be allowed to broadcast the proceedings without an application duly approved by the trial court. (c) A single fixed compact camera shall be installed inconspicuously inside the courtroom to provide a single wide-angle full-view of the sala of the trial court. No panning and zooming shall be allowed to avoid unduly highlighting or downplaying incidents in the proceedings. The camera and the necessary equipment shall be operated and controlled only by a duly designated official or employee of the Supreme Court. The camera equipment should not produce or beam any distracting sound or light rays. Signal lights or signs showing the equipment is operating should not be visible. A limited number of microphones and the least installation of wiring, if not wireless technology, must be unobtrusively located in places indicated by the trial court. The Public Information Office and the Office of the Court Administrator shall coordinate and assist the trial court on the physical set-up of the camera and equipment. (d) The transmittal of the audio-visual recording from inside the courtroom to the media entities shall be conducted in such a way that the least physical disturbance shall be ensured in keeping with the dignity and solemnity of the proceedings and the exclusivity of the access to the media entities. The hardware for establishing an interconnection or link with the camera equipment monitoring the proceedings shall be for the account of the media entities, which should employ technology that can (i) avoid the cumbersome snaking cables inside the courtroom, (ii) minimize the unnecessary ingress or egress of technicians, and (iii) preclude undue commotion in case of technical glitches. If the premises outside the courtroom lack space for the set-up of the media entities’ facilities, the media entities shall access the audio-visual recording either via wireless technology accessible even from outside the court premises or from one common web broadcasting platform from which streaming can be accessed or derived to feed the images and sounds. At all times, exclusive access by the media entities to the real-time audiovisual recording should be protected or encrypted.

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(e) The broadcasting of the proceedings for a particular day must be continuous and in its entirety, excepting such portions thereof where Sec. 21 of Rule 119 of the Rules of Court27 applies, and where the trial court excludes, upon motion, prospective witnesses from the courtroom, in instances where, inter alia, there are unresolved identification issues or there are issues which involve the security of the witnesses and the integrity of their testimony (e.g., the dovetailing of corroborative testimonies is material, minority of the witness). The trial court may, with the consent of the parties, order only the pixelization of the image of the witness or mute the audio output, or both. (f) To provide a faithful and complete broadcast of the proceedings, no commercial break or any other gap shall be allowed until the day’s proceedings are adjourned, except during the period of recess called by the trial court and during portions of the proceedings wherein the public is ordered excluded.1avvphi1 (g) To avoid overriding or superimposing the audio output from the ongoing proceedings, the proceedings shall be broadcast without any voice-overs, except brief annotations of scenes depicted therein as may be necessary to explain them at the start or at the end of the scene. Any commentary shall observe the sub judice rule and be subject to the contempt power of the court; (h) No repeat airing of the audio-visual recording shall be allowed until after the finality of judgment, except brief footages and still images derived from or cartographic sketches of scenes based on the recording, only for news purposes, which shall likewise observe the sub judice rule and be subject to the contempt power of the court; (i) The original audio-recording shall be deposited in the National Museum and the Records Management and Archives Office for preservation and exhibition in accordance with law. (j) The audio-visual recording of the proceedings shall be made under the supervision and control of the trial court which may issue supplementary directives, as the exigency requires, including the suspension or revocation of the grant of application by the media entities. (k) The Court shall create a special committee which shall forthwith study, design and recommend appropriate arrangements, implementing regulations, and administrative matters referred to it by the Court concerning the live broadcast of the proceedings pro hac vice, in accordance with the above-outlined guidelines. The Special Committee shall also report and recommend on the feasibility, availability and affordability of the latest technology that would meet the herein

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requirements. It may conduct consultations with resource persons and experts in the field of information and communication technology. (l) All other present directives in the conduct of the proceedings of the trial court (i.e., prohibition on recording devices such as still cameras, tape recorders; and allowable number of media practitioners inside the courtroom) shall be observed in addition to these guidelines. Indeed, the Court cannot gloss over what advances technology has to offer in distilling the abstract discussion of key constitutional precepts into the workable context. Technology per se has always been neutral. It is the use and regulation thereof that need fine-tuning. Law and technology can work to the advantage and furtherance of the various rights herein involved, within the contours of defined guidelines. WHEREFORE, in light of the foregoing disquisition, the Court PARTIALLY GRANTS PRO HAC VICE the request for live broadcast by television and radio of the trial court proceedings of the Maguindanao Massacre cases, subject to the guidelines herein outlined. SO ORDERED.

RIGHT TO MEET THE WITNESSES FACE TO FACE G.R. No. 143561

June 6, 2001

JONATHAN D. CARIAGA, petitioner, vs. COURT OF APPEALS, PEOPLE OF THE PHILIPPINES and DAVAO LIGHT and POWER CO., respondents. GONZAGA-REYES, J.: This is a petition for review on certiorari seeking the reversal of the decision1 of the Court of Appeals in CA-G.R. No. 13363 entitled People v. Jonathan Cariaga, promulgated on April 24, 1995 affirming the decision of the Regional Trial Court of Davao City, Branch 11,2 which convicted petitioner Jonathan Cariaga of the crime of Qualified Theft. In an amended Information3 dated October 3, 1989, petitioner was charged with qualified theft as follows:

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"That sometime during the period from October, 1988 to January, 1989, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, being then an employee of Davao Light & Power Co. Inc., Davao City, and as such has access to the said company, with intent to gain, with grave abuse of confidence and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal and carry away electrical equipment, supplies and materials totaling P7,038.96 belonging to Davao Light & Power Company, to the damage and prejudice of the said company, in the aforesaid amount of P7,038.96. Contrary to law." The factual background of this case as summarized by the trial court and adopted by the Court of Appeals is as follows: "Luis Miguel Aboitiz, employed at the time of the incident in question and for sometime prior thereto as Systems Analyst of the Davao Light & Power Company, Inc. (DLPC), whose duty was to devise systems, procedures or controls to promote efficiency, prevent losses due to waste, pilferage or theft of company property, etc., received reports that some private electricians were engaged in the clandestine sale of DLPC materials and supplies. He initiated a covert operation with the following objectives: (1) ascertain how DLPC materials were being stolen, the frequency of the thefts, who were perpetrating the thefts; and (2) `catch' at least one (1) DLPC employee that may be involved. In October, 1988, he sought the assistance of Sgt. Fermin Villasis, Chief, Theft & Robbery Section, San Pedro Patrol Station, Davao METRODISCOM. He also hired one Florencio Siton, a welder by occupation and a Civilian Home Defense Forces (CHDF) member, as his undercover agent under the pseudonym 'Canuto Duran', an 'electrician from Kabakan, Cotabato.' 'Canuto Duran' struck an acquaintance with one Ricardo Cariaga, a private electrician, at the Miguel Store, situated in front of the DLPC office along Ponciano Reyes (now Bangoy) Street, Davao City. He told Ricardo that his boss ordered him to buy electrical materials to be brought to Diwalwal, a gold panning area in Monkayo, Davao (formerly Davao del Norte). Ricardo offered to supply 'Canuto Duran' with electrical materials, saying that he has a cousin from whom he can procure the same. 'Canuto' purchased small electrical wires which, according to Ricardo, came from his cousin, Jonathan Cariaga, nicknamed Totoy. On November 17, 1988, Ricardo introduced 'Canuto' to Jonathan at Miguel Store. It turned out that Jonathan was the assigned driver of DLPC

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Service Truck 'S-143' assigned to Work Gang 'Venus'. 'Canuto' inquired from Jonathan if he could supply him with two (2) 15 KVA transformers. Jonathan replied that he could for P16,000. 'Canuto' placed an order for the transformers. The deal did not materialize, however, as 'Canuto's' boss (Miguel Aboitiz) who would provide the funds happened to be out of town. Jonathan appeared piqued. To appease him, 'Canuto' assured him that they shall continue their 'business' relationship. Not long after, he placed an order for a lightning arrester. Ricardo, Jonathan and 'Canuto' agreed to meet at the corner of Jacinto and Arellano Streets. Jonathan got DLPC Truck 'S-143' which was inside the DLPC Compound at Ponciano Reyes Street and drove it to the designated meeting place, leaving 'Canuto' and Ricardo at Miguel Store. After a while, Ricardo and 'Canuto' followed. On the way, 'Canuto gave Ricardo P1,800. At the meeting place, Ricardo gave the money to Jonathan, after which the latter got a lightning arrester (Exh. M) from his truck's toolbox and handed it to Ricardo, who, in turn gave it to 'Canuto'. On January 23, 1989, Ricardo accompanied 'Canuto' to Jonathan's house at Doña Pilar Village, Sasa, Davao City, to get a roll of Electrical Wire No. 2 (300 meters long) valued P5,010 (Exh. J) and 2 lightning arresters with cutout, valued P1,185.75 each, or P2,371.50 for both (Exhs. I and I-1) from Jonathan. 'Canuto' paid P2,500.00 only for the items. He gave the money to Ricardo; Ricardo, in turn, gave it to Jonathan. Siton's undercover work came to an abrupt end on February 1, 1989 when members of Sgt. Villasis' team 'apprehended' 'Canuto' and turned him over, including the electrical wires that he previously purchased from Jonathan through Ricardo, to the San Pedro Patrol Station. The team was unable to arrest Ricardo as he had already left when the team arrived at his house. 'Canuto Duran' 'confessed' in order to persuade Ricardo – and the others who were involved – to likewise come out with the truth. Thus, when Ricardo and Sergio Jamero appeared at the San Pedro Patrol Station on the invitation of the police, they confessed to their crimes (Exhs. A and G, respectively). Ricardo revealed that he acted as a fence for his cousin, Jonathan Cariaga and 'Canuto Duran' on November 27, 1988 and again on January 23, 1989; that the items that 'Canuto Duran' bought from Jonathan, thru him, were DLPC properties. Jamero also confessed that Ricardo was his fence in disposing of DLPC electrical materials that he pilfered but the items were not sold to 'Canuto Duran' but to someone else. The recitals of Ricardo and Jamero in their sworn statements are substantially corroborated by entries in the Daily Record of Events (blotter)

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of the San Pedro Patrol Station (Exhs. B, B-1; C, C-1; D, D-1; E, E-1; and F, F1). The accused was also invited to the San Pedro Patrol Station but, according to Sgt. Villasis, he refused to give a statement. The prosecution was unable to present Ricardo as its witness as the subpoena could not be personally served upon him as according to his wife, Antonieta Cariaga, he was in Sultan Kudarat and the date of his return to Davao City was not certain (Exhs. Y, Y-1). Acting on the extrajudicial confessions of the suspects, the reports of Siton to the police and the bust, the team under Sgt. Villasis recovered the following items: 1. 1 pc. Lightning Arrester MEW Valve Type V (Exh. "I"); 2. 1 pc. Lightning Arrester MEW Valve Type (Exh. "I-1"); 3. 1 pc. Lightning Arrester MEW Thorex Type (unmarked); 4. 1 pc. Fuse Cut-out S&C Brand with Bracket (unmarked); 5. 1 pc. Fuse Cut-out with Fuse Holder, AB Chance (Exh. "M"); 6. 1 roll (330 meters) Aluminum Wire No. 8 (Exh. "K"); 7. 1 roll (300 meters) Aluminum Wire No. 2 (Exh. "J"); 8. 1 roll (36 coils) Aluminum Wire No. 6; ) One of these 9. 1 roll (74 coils) Aluminum Wire No. 8; ) rolls is 10. 1 roll (41 coils) Aluminum Wire No. 2; ) marked Exh. 11. 1 set bracket for cut-out. ) "AA" Sgt. Villasis testified that Exh. "U" and Exh. "AA" were the wires recovered from Siton during the bust while the rest, particularly Exhs. "I" and "I-1" "J" and "M" were recovered at Roselo Toledo's house where Siton ("Canuto Duran") brought them; x x x."4 According to the trial court, "the prosecution's evidence considered as a whole is strong, clear and convincing. The statements in the extrajudicial confessions of Ricardo Cariaga (Exhs. A; O,O-1) implicative of the accused as the source of the

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stolen articles, corroborated by Siton's testimony and the police records (Exhs. D to F-2, inclusive) are formidable compared to the mere puny denial of the accused." In due course, the trial court on November 18, 1991, rendered judgment, the decretal portion reading: "WHEREFORE, the Court finds accused Jonathan Cariaga guilty beyond reasonable doubt of theft, qualified by grave abuse of confidence, under Article 310, in relation to Article 309, par. 2, of the Revised Penal Code, as charged, aggravated by the use of motor vehicle which is not offset by any mitigating circumstance. Applying the Indeterminate Sentence Law, he is sentenced to suffer an indeterminate penalty ranging from TEN (10) Years, EIGHT (8) MONTHS AND ONE (1) DAY, of prision mayor, as minimum, to EIGHTEEN (18) YEARS, TWO (2) MONTHS AND TWENTY ONE (21) DAYS of reclusion temporal, as maximum; and to pay the costs. No civil indemnity is awarded to DLPC, the private complainant, as the items stolen were recovered. The return to DLPC of all the items recovered by the police is ordered. SO ORDERED."5 On appeal by Jonathan Cariaga, the Court of Appeals affirmed on April 24, 1995, the decision of the trial court. The Court of Appeals reasoned out that the sworn statement of Ricardo Cariaga who did not testify in open court during the criminal proceedings against petitioner is admissible in evidence and properly considered by the trial court as this was annexed as part of DLPC's position paper submitted to the National Labor Relations Commission in Case No. RAB-11-05-00308-89, a complaint filed by the accused for illegal dismissal, as an exception to the hearsay rule under Section 47, Rule 130 of the Revised Rules of Court. The Court of Appeals likewise upheld the credibility of Siton's testimony which corroborated that of Ricardo Cariaga's sworn statement. Hence, the instant petition raising the following errors: "I The trial court erred in admitting in evidence the sworn statement of Ricardo Cariaga without him taking the witness stand since it violates the fundamental right of the accused to meet the witnesses against him face to face. Hence, Ricardo Cariaga's sworn statement is not admissible under Section 1(f), Rule 115 of the Revised Rules of Court for failure of the prosecution to comply with the strict requirements of said rule, to wit: a] Ricardo Cariaga did not orally testify in the labor case; b] Inability to testify must be for a grave cause almost amounting to death and the prosecution must exhaust all available remedies to secure the presence of its witnesses at the trial;

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c] That the former proceeding must also be criminal in nature. II. The appellate court erred in holding that the lone testimony of the prosecution's alleged eyewitness who is a paid witness and whose testimony was admittedly corrected or revised on the witness stand and which materially and significantly varies with his previous sworn statement on very vital and pivotal details is sufficient to prove the guilt of the accused beyond reasonable doubt. III.The appellate court erred in failing to appreciate the reasonable doubt engendered by the exculpatory statements of the superiors of the accused in favor of the latter."6 In his first assignment of error, petitioner argues that the sworn statement of Ricardo Cariaga who was not presented in court is inadmissible. The prosecution presented in evidence as Exh. P-2, Ricardo Cariaga's sworn statement which was attached as Annex "8-A" to DLPC's position paper in the labor case filed by Jonathan Cariaga against the latter for illegal dismissal. The trial court admitted the same in evidence despite the timely objection of the defense counsel; and the Court of Appeals upheld the admission thereof citing as basis, Section 47, Rule 130 of the Rules on Evidence and Section 1(f), Rule 115 of the Rules on Criminal Procedure. Section 47 of Rule 130 reads: SEC. 47. Testimony or deposition at a former proceeding. – The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. More specific however is the rule prescribed in Rule 115, Section 1(f) of the Rules of Court in respect of the admissibility in evidence in a criminal case of the previous testimony of unavailable witnesses which reads: Section 1. Rights of accused at the trial. – In all criminal prosecutions, the accused shall be entitled: f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having had the opportunity to cross-examine him; In Toledo, Jr. vs. People,7 this Court emphasized that "the preconditions set forth in Section 47, Rule 130 for the admission of testimony given by a witness out of court

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must be strictly complied with and that there is more reason to adopt such a strict rule in the case of Section 1(f) of Rule 115, for apart from being a rule of evidence with additional specific requisites to those prescribed by Section 47, more importantly, said provision is an implementing translation of the constitutional right of an accused person "to meet the witnesses (against him) face to face." In Tan vs. Court of Appeals,8 it was ruled that "'unable to testify' or for that matter 'unavailability', does not cover the case of witnesses who were subpoenaed but did not appear. It may refer to inability proceeding from a grave cause, almost amounting to death, as when the witness is old and has lost the power of speech. It does not refer to tampering of witnesses." The threshold question then is the admissibility of the sworn statement of Ricardo Cariaga which was attached to DLPC's position paper in the labor case filed by Jonathan Cariaga against it for illegal dismissal. The records reveal that witness Ricardo Cariaga was subpoenaed only once and did not appear to testify in the criminal case against petitioner. Concededly, this witness was not deceased or out of the Philippines. In fact, the private prosecutor informed the court that he is in Sultan Kudarat,9 and previously, his wife informed the sheriff that he was in Sultan Kudarat which is in Cotabato, a mere four hours drive from Davao City. Against this backdrop, can this witness be categorized as one that cannot be found despite due diligence, unavailable or unable to testify. We are inclined to rule in the negative and reverse the Court of Appeals on this point. It must be emphasized that this rule is strictly complied with in criminal cases, hence, "mere sending of subpoena and failure to appear is not sufficient to prove inability to testify. The Court must exercise its coercive power to arrest."10 In the instant case, no efforts were exerted to have the witness arrested which is a remedy available to a party-litigant in instances where witnesses who are duly subpoenaed fail to appear. On this score alone, the sworn statement of Ricardo Cariaga should not have been admitted as evidence for the prosecution, and we shall no longer delve into the other aspects of this rule. In his second assignment of error, petitioner assails the testimony of prosecution witness Florencio Siton alias "Canuto Duran", the undercover agent, as not credible because it is allegedly inconsistent in very material and pivotal details from the sworn statement he made at the police station and that he is admitted by the prosecution to be a paid witness. According to petitioner, Siton's testimony was overhauled and corrected to meet the crisis created by eyewitness Ricardo Cariaga's non-appearance in court. Petitioner argues further that Siton had thousands of reasons to vary or exaggerate or pervert the truth in his testimony because he admitted that he was given by DLPC through Mr. Aboitiz, a 15 KVA transformer worth P15,000.00 to P18, 000.00 and he also admitted on crossexamination that "after the hearing he (Mr. Aboitiz) will hire me as an employee or that he will give me privilege."

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He alleges that Siton never mentioned in his sworn statement that he bought anything directly from petitioner and only stated that the latter was around when he bought some wires and lightning arresters from Bondying and Bebing Tumali, and then claimed on the witness stand that he had direct dealings with petitioner. Siton also failed to state in his sworn statement that he went to the house of petitioner to purchase DLPC materials; and he mentioned therein that the arrangement was that the materials will be delivered three days after payment, but in his testimony, the materials were delivered upon payment. As we have so frequently ruled, the trial judge who sees and hears witnesses testify has exceptional opportunities to form a correct conclusion as to the degree of credit which should be accorded their testimonies.11 Next, the rule has also always been that the contradictions between the contents of an affiant's affidavit and his testimony on the witness stand do not always militate against the witness' credibility because we have long taken judicial notice that affidavits, which are usually taken ex parte, are often incomplete and inaccurate.12 Indeed, a sworn statement taken ex parte is generally considered to be inferior to a testimony given in open court as the latter is subject to the test of cross examination.13 We have carefully gone over the records and evidence in this case and we are persuaded that Siton's testimony in court deserves credence. We further find the same sufficient for conviction. Siton was consistent and straightforward in his testimony and had not been shaken by the lengthy and exhaustive crossexamination by the defense counsel. Having thoroughly convinced the trial and appellate courts as well as this Court of the truth of his testimony, we do not see how he could have fabricated the entire story. The fact that he stated on direct examination that he "corrected" his statement and that he was offered compensation for his undercover work does not necessarily discredit him. There is no rule of evidence to the effect that omission of certain particulars in a sworn statement would estop an affiant from making an elaboration thereof or from correcting inaccuracies during the trial. It appears that he was paid for his services rendered as an undercover agent and not for purposes of concocting a story and imputing a crime as that made out in the information. Similarly, the alleged inaccuracies in the testimony of Siton in open court relating to such minute details as whether the petitioner's house was two-stories high and located in a corner are too negligible to consider. Finally, we reject petitioner's claim that the testimonies of three witnesses for the prosecution, namely, Sauro, Saligan and Aboitiz, engendered reasonable doubt sufficient to exculpate him. He points out that "Rodolfo Sauro, gang crew supervisor of petitioner testified that he has not reported any missing materials in the truck driven by the petitioner; that Luis Aboitiz testified that he asked Estelito Saligan to conduct investigation if there were materials missing `but the latter came out with the report that he could not find any missing materials'; and that Estelito Saligan, head of Materials Management Department of the DLPC confirmed on cross-examination that there were no properties lost or missing."

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However, a more accurate reading of the testimonies of the said witnesses reveals that Rodolfo Sauro14 testified that petitioner is permanently assigned as driver to the S-143 truck; that he is in charge of all the equipment and supplies stored in the truck; that there were always reserve materials kept in the truck for emergency operations during the night and that he trusted him that these materials were being used for emergencies.15 He also testified that he took Jonathan's word that the reserve materials were used for emergencies because he found him trustworthy.16 On the other hand, Engr. Estelito Saligan was recalled to the witness stand to clarify Mr. Aboitiz's statement that "he was ordered to make inventories and that he did not find any missing." He clarified that he only inventoried the materials inside the warehouse which are within his jurisdiction, but he did not conduct inventory of materials or properties already in the possession of the operations department17 of which petitioner belonged to. In sum, nothing in the cited testimonies confirm petitioner's insistence that there were no stolen electrical supplies and materials from DLPC. In fine, we are satisfied that the participation of the petitioner in the commission of the crime at bar was well established by the testimony of witness Siton. In the determination of the sufficiency of evidence, what matters is not the number of witnesses but their credibility and the nature and quality of their testimonies.18 It is axiomatic that witnesses are weighed, not numbered and the testimony of only one witness, if credible and positive and if it satisfies the court beyond reasonable doubt, is sufficient to convict. The inadmissibility of Ricardo Cariaga's sworn statement as discussed above will not exculpate him. The defense, verily, anchors itself on the bare denial of petitioner of the specific acts imputed by the prosecution against him. Certainly, this negative assertion cannot prevail over the unimpeached testimony of the prosecution witness, Florencio Siton alias "Canuto Duran" describing in sufficient detail the active participation of petitioner in the commission of the crime charged. As aptly observed by the trial court: "The accused's defense consisted of a general denial; that the items alleged by the prosecution as having been pilfered from DLPC were available in any store selling electrical supplies. Despite having been positively pointed to as the person who sold small electrical wires, lightning arresters and a roll of Electrical Wire No. 2 that were pilfered from DLPC to "Canuto Duran" (Siton), thru Ricardo Cariaga, he did not categorically deny the imputation: he merely declared that he did not know Siton (he did not say that he did not know "Canuto Duran") nor did he say that he did not sell anything to "Canuto Duran" thru Ricardo Cariaga. As a rule, positive testimony as to a particular fact, uncontradicted by anyone, should control the decision of the court (Ko Tieck vs. People, L-48535-36, Dec. 21, 1991)." We note that the information alleged that petitioner was an employee of DLPC; that he had access to the electrical supplies of said company; and that with grave abuse of confidence, he stole electrical materials belonging to DLPC. The

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prosecution established that petitioner who was permanently assigned as driver of Truck "S-143" had charge of all the DLPC equipment and supplies kept in his vehicle, including lightning arresters, cut-out and wires, which were generally used for the installation of transformers and power lines; and specifically stored therein for emergency operations at night when the stockroom is closed. While the mere circumstance that the petitioner is an employee or laborer of DLPC does not suffice to create the relation of confidence and intimacy that the law requires to designate the crime as qualified theft, it has been held that access to the place where the taking took place or access to the stolen items changes the complexion of the crime committed to that of qualified theft.19 Thus, theft by a truck driver who takes the load of his truck belonging to his employer is guilty of qualified theft 20as was proven in this case. The trial court correctly considered petitioner's use of a motor vehicle in the commission of the crime as a generic aggravating circumstance thus raising the penalty to its maximum.21 While the aggravating circumstance of "by means of motor vehicle" was not alleged in the information, there is evidence that the same was employed to facilitate the commission of the crime. A generic aggravating circumstance may be proved even if not alleged.22 The theft could not have been effected without the aid of the motor vehicle,23 as proven by the prosecution, the service truck was used in storing and then transporting the stolen electrical materials to the place where they were sold.1âwphi1.nêt We now come to the correctness of the penalty imposed. The trial court meted on petitioner an indeterminate penalty ranging from ten (10) years, eight (8) months and one (1) day, of prision mayor, as minimum, to eighteen (18) years, two (2) months and twenty one (21) days of reclusion temporal as maximum. Since the value of the electrical materials is P7,038.96, the imposable penalty for the felony of theft is prision correccional in its medium and maximum periods in accordance with Article 309, paragraph 2 of the Revised Penal Code.24 However, under Article 310 of the Revised Penal Code,25 the crime of qualified theft is punished by the penalties next higher by two (2) degrees than that specified in Article 309 of the Revised Penal Code. Under Article 25 of the Revised Penal Code, two (2) degrees higher than prision correccional in its medium and maximum periods is prision mayor in its maximum period to reclusion temporal in its minimum period which is ten (10) years and one (1) day to fourteen (14) years and eight (8) months. Considering there is one generic aggravating circumstance, the penalty should be reclusion temporal in its minimum period. Applying the Indeterminate Sentence Law, the correct penalty is eight (8) years, eight (8) months and one (1) day of prision mayor as minimum to thirteen (13) years, one (1) month and eleven (11) days of reclusion temporal as maximum. WHEREFORE, the decision of the Court of Appeals dated April 24, 1995 is hereby AFFIRMED with the MODIFICATION that the penalty is reduced to EIGHT (8) years, EIGHT (8) months and ONE (1) day of prisionmayor as minimum to THIRTEEN (13) years, ONE (1) month and ELEVEN (11) days of reclusion temporal as maximum. SO ORDERED.

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G.R. No. 137348

June 21, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. WILLIAM ONG y LI and CHING DE MING @ ROBERT TIU, appellants. PUNO, J.: "… the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts." 1 Chief Justice Warren E. Burger The case at bar involves the clash of two classic values - - - the need for the State to stop crimes and preserve the peace against the right of an individual to confront material witnesses to establish his innocence. In balancing the two values, we shall scrutinize and set the parameters that ought to guide prosecution when to disclose the identity of confidential informers. On July 27, 1998 accused William Ong y Li and Ching De Ming @ Robert Tiu were charged with violation of Section 15, Article III, in relation to Section 2, Article I, of Republic Act No. 6425, otherwise known as The Dangerous Drugs Act of 1972, as amended. The Information2 reads: That on or about the 24th day of July, 1998 in Quezon City, Philippines, the said accused, conspiring together, confederating with and mutually helping each other not having been authorized by law to sell, dispense, deliver, transport or distribute any regulated drug, did then and there willfully and unlawfully sell or offer for sale 980.50 grams of Methyl Amphetamine Hydrochloride, which is a regulated drug. CONTRARY TO LAW. Upon arraignment, the two (2) accused, who are Chinese nationals, pled not guilty. The records do not show whether they had sufficient knowledge of the English language. Their trial proceeded. In the course of the trial, the two (2) accused were given the services of a Chinese interpreter. The prosecution, through the testimony of SPO1 Rodolfo S. Gonzales, sought to establish that on July 23, 1998 at around 5:00 P.M., a confidential informant (CI) of the Special Operations Division (SOD), PNP Narcotics Group, reported to Chief Inspector Albert Ignatius D. Ferro about the alleged illicit drug activities of a certain William Ong and an unidentified Chinese male partner. After an evaluation of the confidential information, Chief Inspector Ferro decided to conduct a buy-bust

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operation. He constituted a team of eight (8) with Police Inspector Medel N. Poñe as team leader, SPO1 Gonzales as poseur-buyer and the rest as back-up support. According to SPO1 Gonzales, the CI called up the alleged pusher, placed an order for one (1) kilo of shabu and agreed to a ₱600,000.00 consideration. The CI likewise agreed to meet with his contact on July 24, 1998 at 6th Street corner Gilmore Avenue, New Manila, Quezon City, between 4:00 and 5:00 A.M. The boodle money was prepared consisting of six (6) bundles of cut bond paper with a marked ₱1,000.00 peso bill on top of each bundle. On July 24, 2004 at 3:00 A.M., the CI received a call from the drug dealer changing the meeting time between 2:00 and 3:00 P.M. on the same day. The team, together with the CI, proceeded to the meeting place and arrived there at around 1:30 P.M. The CI rode with SPO1 Gonzales. They parked their car along 6th Street corner Gilmore Avenue. The rest of the team posted themselves at their back and their right side. A little while, accused Ong approached their car. The CI introduced him to SPO1 Gonzales who told accused Ong in broken Tagalog to get in the car. When Ong inquired about the money in payment of the shabu, SPO1 Gonzales showed him the slightly opened plastic bag containing the boodle money. SPO1 Gonzales then demanded to see the shabu. Accused Ong excused himself, went out of the car, walked a few steps and then waved his right hand to somebody. While accused Ong was walking back to the car, SPO1 Gonzales and the CI saw a green Toyota Corolla coming. The Corolla parked in front of their car and a Chinese-looking male, later identified as accused Ching De Ming @ Robert Tiu alighted, approached accused Ong and handed to him a gift-wrapped package. SPO1 Gonzales opened it and inside was one (1) sealed plastic bag with a white crystalline substance. After its inspection, accused Ong demanded for its payment. SPO1 Gonzales gave to accused Ong the boodle money placed in a "W. Brown" plastic bag. Thereafter, SPO1 Gonzales signaled his back-up team by turning on the hazard lights of the car. SPO1 Gonzales himself arrested accused Ong while the CI and the back-up agents arrested accused De Ming. The officers brought the two (2) accused to their office where the corresponding booking sheets and arrest report were prepared. The plastic bag containing the white crystalline substance was referred to the PNP Crime Laboratory for examination. The two (2) accused were subjected to a physical and mental examination as required. They were found to be free from any external signs of trauma. Police Inspector Grace M. Eustaquio, Forensic Chemist, PNP Crime Laboratory, testified that the specimen she examined had a net weight of 980.50 grams and manifested "positive results for methyl amphetamine hydrochloride" 3 or what is commonly known as shabu, a regulated drug. Her testimony was supported by her Physical Sciences Report.4

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Appellants denied the story of the prosecution. Accused William Ong, a Chinese citizen from the People’s Republic of China, claimed that he came to the Philippines in 1997 to look for a job. Upon the recommendation of a friend, he was able to work in a pancit canton factory in Quezon City. In June 1998, he stopped working at the factory and hunted for another job. Two (2) weeks prior to his arrest, accused Ong was introduced by his friend Kian Ling to Ong Sin for a possible job as technician in a bihon factory owned by Ong Sin. On July 22, 1998, Ong Sin called up and set a meeting with accused Ong at the Tayuman branch of Jollibee the next day. While waiting at Jollibee, accused Ong received a call from Ong Sin that he could not personally meet him. Instead, his two (2) co-workers would meet accused Ong as instructed. Subsequently, two (2) men answering to Ong Sin’s description approached accused Ong. He joined them inside a yellow car. When they reached a certain place, the driver reached for his cellular phone and called up someone. After a brief conversation, the driver handed the phone to him. Ong Sin was on the line and informed him that the driver would accompany him to the bihonfactory. The driver got out of the car and accused Ong followed him. After walking two (2) blocks, the driver picked up something from the place. They returned to the car. Suddenly, the companion of the driver poked a gun at him. He was arrested, blindfolded and brought to an undisclosed place. Several hours later, he was taken to the police station. There he met the other accused Ching De Ming for the first time. He maintained innocence to the crime charged. On his part, accused Ching De Ming testified that he is a legitimate businessman engaged in the RTW business. He claimed that he gets his products from Baclaran and sells them to customers in the cities of Naga and Daet in Bicol. On July 23, 1998 at around 4:30 and 5:00 P.M., while waiting inside his car for his girlfriend and her mother who just went in a townhouse at 8th Street, New Manila, Quezon City, he was approached by persons unknown to him. They asked him what he was doing there. One of them went to the car parked at his back, ordered somebody inside to get out and take a good look at him. The person pointed at him saying "maybe he is the one." He was then dragged out of his car and brought to the other car. They took his clutch bag. They blindfolded and brought him to a place. After a few hours, at Camp Crame, Quezon City, they removed his blindfold. He denied knowing accused Ong and the charge of conspiring with him to deliver shabu in New Manila, Quezon City. Avelina Cardoz, the mother of his girlfriend, and a divine healer, corroborated his story. She testified that she requested accused De Ming to drive her to a townhouse at 8th Street, New Manila, to cure a patient. She declared that the officers of the People’s Journal publication could attest to her profession. She asked accused De Ming to wait for her and her daughter inside his car. When they returned to the car, accused De Ming was nowhere to be found. They saw him next at the Quezon City Jail.

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On November 18, 1998 the trial court convicted appellants as charged and imposed on them the penalty of death. It likewise ordered each of them to pay a fine of P1 million pesos.5 The case is with us on automatic review. Appellants insist on their innocence. They claim that their guilt was not proven beyond reasonable doubt. We agree. I Rule 116, Section 1 (a) of the Revised Rules of Criminal Procedure, as amended, provides: SECTION 1. Arraignment and plea; how made.(a) The accused must be arraigned before the court where the complaint or information was filed or assigned for trial. The arraignment shall be made in open court by the judge or clerk by furnishing the accused with a copy of the complaint or information, reading the same in the language or dialect known to him, and asking him whether he pleads guilty or not guilty. The prosecution may call at the trial witnesses other than those named in the complaint or information. (Underscoring and emphasis supplied.) The arraignment of appellants violates the above rule. Appellants are Chinese nationals. Their Certificate of Arraignment6 states that they were informed of the accusations against them. It does not, however, indicate whether the Information was read in the language or dialect known to them. It merely states: This 4th day of Aug., 1998, the undersigns (sic) states: That, in open court, and in the presence of Trial Prosecutor Ruben Catubay, the following accused William Ong and Ching De Ming AKA Robert Tiu was/were called and, having been informed of the nature of the accusation filed against him/her/them, furnishing him/her/them a copy of the complaint or information with the list of witnesses, the said accused in answer to the question of the Court, pleaded Not Guilty to the crime as charged. TO WHICH I CERTIFY. Sgd. Mary Ruth Milo-Ferrer Branch Clerk of Court

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Sgd. William Ong ACCUSED WILLIAM ONG Sgd. Ching de Ming ACCUSED CHING DE MING @ ROBERT TIU Neither does the August 4, 1998 Order of Judge Diosdado M. Peralta of RTC-Br. 95, Quezon City, disclose compliance with the rule on arraignment. It merely stated in part that "[w]hen both accused William Ong y Li and Ching De Ming @ Robert Tiu were arraigned, assisted by counsel de parte, both accused entered a plea of not guilty."7 From the records, it is clear that appellants only knew the Chinese language. Thus, the services of a Chinese interpreter were used in investigating appellants. SPO1 Rodolfo S. Gonzales revealed in his testimony, viz:8 Q: Now, is it not a fact that you had the difficulty of investigating the two accused because of communication problem from your informant? A: We did not encounter such problem when we investigated them sir. We also asked question and we have another Chinese who was arrested who can speak Tagalog and we used that Chinese man to translate for us and for them if the questions are difficult to understand, sir. Q: Now that Chinese interpreter that is also an accused? A: Yes sir.9 After arraignment and in the course of the trial, the lower court had to secure the services of a certain Richard Ng Lee as Chinese interpreter. This appears in the Order of August 28, 1998 of Judge Peralta, viz: Considering that the counsel of the two (2) accused has still a lot of questions to ask on cross-examination x x x x From hereon, Mr. Richard Ng Lee, a businessman and a part time interpreter, is hereby designated by the Court as interpreter in this case considering that there is no official interpreter of the Court who is knowledgeable in the Chinese language or any Chinese dialect whatsoever. The appointment of Mr. Richard Ng Lee is without the objection of counsel of the accused and the public prosecutor and considering that the court is convinced that he indeed possesses the qualifications of an interpreter of a Chinese language or any other Chinese dialect known and spoken by the two (2) accused.10(Emphasis supplied.)

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What leaps from the records of the case is the inability of appellants to fully or sufficiently comprehend any other language than Chinese and any of its dialect. Despite this inability, however, the appellants were arraigned on an Information written in the English language. We again emphasize that the requirement that the information should be read in a language or dialect known to the accused is mandatory. It must be strictly complied with as it is intended to protect the constitutional right of the accused to be informed of the nature and cause of the accusation against him. The constitutional protection is part of due process. Failure to observe the rules necessarily nullifies the arraignment.11 II More important than the invalid arraignment of the appellants, we find that the prosecution evidence failed to prove that appellants willfully and unlawfully sold or offered to sell shabu. Appellants’ conviction is based on the lone testimony of SPO1 Gonzales. He was the designated poseur-buyer in the team formed for the buy-bust operation. But a careful reading of his testimony will reveal that he was not privy to the sale transaction that transpired between the CI and appellant William Ong, the alleged pusher. It is beyond contention that a contract of sale is perfected upon a meeting of the minds of the parties on the object and its price.12 Not all elements of the sale were established by the testimony of SPO1 Gonzales, viz: PROSECUTOR to SPO1 GONZALES Q: After you have prepared the boodle money and you had made the proper marking which you presented before this Honorable Court, what happen? A: Out CI make a couple of call and he contacted William Ong thru a broken tagalog conversation. Q: When your CI contacted with William Ong in broken tagalog? A: I have a conversation with William Ong in broken tagalog the deal of one kilo gram of shabu was initially closed. Q: When you say "closed", what do you mean by that? A: They agreed to the sale of the shabu. ATTY. TRINIDAD (counsel of accused) to the COURT

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We object to the line of questioning, Your Honor that would be hearsay. COURT: I think what you were asking is what happened he said it was the CI who talked. PROSECUTOR to SPO1 GONZALES Q: So after that, do you know what happen? A: The CI informed us that the price of that shabu which we’re supposed to buy from them amounts to 600,000.00 pesos, ma’am. Q: Where did you come to know about this information that the amount is already 600,000.00 pesos? ATTY. TRINIDAD to the COURT Already answered, Your Honor. COURT: In other words what he say is that, there was a telephone conversation but he has no personal knowledge. Your question then was what happened. PROSECUTOR to SPO1 GONZALES Q: After the CI informed you that the price of the shabu is 600,000.00 pesos? A: We prepared this boodle money and the 6,000 by our Chief SOD. COURT to SPO1 GONZALES Q: After the informant told you that there was an agreement to sell 600,000.00 pesos and that you have already prepared the boodle money as you have stated, what happened after that? A: The CI told us that the transaction is 600,000.00 pesos and venue is at 6th Street, corner Gilmore Avenue, New Manila, Quezon City, between 4 o’clock to 5 o’clock in the morning of July 24, 1998, ma’am. Q: So when the CI informed you that they will meet at 6th Street, New Manila, Quezon City, what transpired next?

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A: On or about 3 o’clock in the morning William Ong made a call to our CI informing him that the sale of the delivery of shabu was reset to another time.13 PROSECUTOR to SPO1 GONZALES Q: And when you were informed that there was a resetting of this deal? COURT to SPO1 GONZALES Q: How did you come to know that there was a resetting because he has no participation in the conversation and it was the CI according to him and the alleged poseur-buyer. A: The CI told our Chief Deputy. ATTY. TRINIDAD to the COURT That would be hearsay, Your Honor, and that would be a double hearsay. COURT Put on record that the counsel manifested that his answer is again hearsay and that a double hearsay evidence. PROSECUTOR to SPO1 GONZALES Q: And what did the CI do? A: The CI informed us that the time will be at about 2 to 3 o’clock in the afternoon of that same day and the place.14 It is abundantly clear that it was the CI who made the initial contact, albeit only through the telephone, with the pusher. The CI was likewise the one who closed the deal with appellant Ong as to the quantity of shabu to be purchased and its price. He also set the venue and time of the meeting when the sale would take place. The Joint Affidavit of Arrest 15 executed by SPO1 Gonzales, PO2 Elmer N. Sarampote and PO1 Noli Jingo G. Rivel fortifies these facts, viz: That after couple of calls made by our CI, suspect WILLIAM ONG was finally contacted on or about 9:30 in the evening of July 23, 1998 and through a broken Tagalog conversation, a drug deal/sale was initially closed in the agreed amount of six hundred thousand pesos (P600,000.00) and the agreed venue is at the corner of 6th Street and Gilmore Avenue, New Manila, Quezon City between 4:00 and 5:00 o’clock

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in the morning of July 24, 1998 through "Kaliwaan or Abutan" (Cash upon Delivery); That said information was relayed to our Deputy Chief, who upon learning said report, immediately grouped and briefed the team for the said operation; That on or about 3:00 o’clock in the morning of July 24, 1998, WILLIAM ONG made a call to our CIinforming him (CI) to reset the time of the drug deal/sale of one (1) kilogram of SHABU and it was scheduled again between 2:00 to 3:00 o’clock in the afternoon of same date and same place; It is therefore understandable that in his account of his meeting with appellant William Ong, SPO1 Gonzales made no reference to any further discussion of the price and the quantity of the shabu. When they met, they just proceeded with the exchange of money and shabu, viz: PROSECUTOR to SPO1 GONZALES Q: And when you were there stationed at the venue at 6th Street, New Manila, Quezon City, what happened? A: I and the CI parked our car at 6th Street corner Gilmore Avenue and then we saw William Ong emerged from Gilmore Avenue and approached me and our CI, ma’am.16 Q: And when he approached you what did you do if any? A: Our CI introduced me to William Ong as an interested buyer of one kilo gram of shabu and afterwards I asked William Ong in broken tagalog to get inside the car.17 Q: And while inside the car, what happened next? A: While inside the car William Ong asked me about the payment of the stuff and I got the paper bag and slightly opened. So that I get the plastic bag and show to William Ong the boodle money. Q: When you showed the boodle money to William Ong what did he do if there was any? A: He looked at it, ma’am. Q: And when he looked at it what happened next?

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A: I told him that I should look at the stuff before I give the money. Q: What stuff are you referring to? A: The shabu, ma’am. Q: And what did you do after expecting the boodle money or the bag where the boodle money was placed, if there was any? A: He excused himself and alighted from our car and told me to wait for his companion. Q: And where you able to wait for that male companion he is referring to? A: He walked a distance and waved at his companion as if somebody will come to him. Q: How did he do that? A: (put on record that the witness when answering the question he stood up and then used his right hand in waving as if he is calling for somebody) Q: When William Ong waved his right hand to his companion what happened? A: William Ong walked towards to me and suddenly a green Toyota appeared and parked in front of our car. Q: When a green Toyota corolla was parked in front of the car, what happened next? A: Chinese looking male person alighted from the car and he went to William Ong and handed to William Ong something that was gift wrapped.18 Q: When that thing was handed to William Ong which identified in Court and which was marked, what did William Ong do? A: William Ong took it from Ching De Ming, ma’am. Q: When this Exhibit was given to by William Ong what did you do in return?

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A: I opened that something which was gift wrapped and I saw one sealed plastic bag containing white crystalline substance suspected to be a shabu.19 Q: When you saw this Exhibit C-2 crystalline substance which was opened according to you. What did you do? A: The companion of William Ong demanded to me the money and I gave to him the boodle money. Q: When you gave the boodle money to him, what did he do if any these person who secured the money? A: He took the money inside the bag.20 Since only the CI had personal knowledge of the offer to purchase shabu, the acceptance of the offer and the consideration for the offer, we hold that SPO1 Gonzales is, in effect, not the "poseur-buyer" but merely the deliveryman. His testimony therefore on material points of the sale of shabu is hearsay and standing alone cannot be the basis of the conviction of the appellants.21 III We further hold that the prosecution failed to establish its claim of entrapment. A buy-bust operation is a form of entrapment, which in recent years has been accepted as a valid means of arresting violators of the Dangerous Drugs Law.22 It is commonly employed by police officers as an effective way of apprehending law offenders in the act of committing a crime.23 In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense.24 Its opposite is instigation or inducement, wherein the police or its agent lures the accused into committing the offense in order to prosecute him.25 Instigation is deemed contrary to public policy and considered an absolutory cause.26 To determine whether there was a valid entrapment or whether proper procedures were undertaken in effecting the buy-bust operation, it is incumbent upon the courts to make sure that the details of the operation are clearly and adequately laid out through relevant, material and competent evidence. For, the courts could not merely rely on but must apply with studied restraint the presumption of regularity in the performance of official duty by law enforcement agents. This presumption should not by itself prevail over the presumption of innocence and the constitutionally protected rights of the individual.27 It is the duty of courts to preserve the purity of their own temple from the prostitution of the criminal law through lawless enforcement.28 Courts should not allow themselves to be used as instruments of abuse and injustice lest innocent persons are made to suffer the unusually severe penalties for drug offenses.29

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In People v. Doria,30 we stressed the "objective" test in buy-bust operations. We ruled that in such operations, the prosecution must present a complete picture detailing the transaction, which "must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale.31 We emphasized that the manner by which the initial contact was made, the offer to purchase the drug, the payment of the 'buy-bust' money, and the delivery of the illegal drug must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense."32 In the case at bar, the prosecution evidence about the buy-bust operation is incomplete. The confidential informant who had sole knowledge of how the alleged illegal sale of shabu started and how it was perfected was not presented as a witness. His testimony was given instead by SPO1 Gonzales who had no personal knowledge of the same. On this score, SPO1 Gonzales’ testimony is hearsay and possesses no probative value unless it can be shown that the same falls within the exception to the hearsay rule.33 To impart probative value to these hearsay statements and convict the appellant solely on this basis would be to render nugatory his constitutional right to confront the witness against him, in this case the informant, and to examine him for his truthfulness.34 As the prosecution failed to prove all the material details of the buy-bust operation, its claim that there was a valid entrapment of the appellants must fail. IV The Court is sharply aware of the compelling considerations why confidential informants are usually not presented by the prosecution. One is the need to hide their identity and preserve their invaluable service to the police.35 Another is the necessity to protect them from being objects or targets of revenge by the criminals they implicate once they become known. All these considerations, however, have to be balanced with the right of an accused to a fair trial. The ruling of the U.S. Supreme Court in Roviaro v. U.S.36 on informer’s privilege is instructive. In said case, the principal issue on certiorari is whether the United States District Court committed reversible error when it allowed the Government not to disclose the identity of an undercover employee who had played a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness to whether the accused knowingly transported the drugs as charged.37 The Court, through Mr. Justice Burton, granted certiorari in order to pass upon the propriety of disclosure of the informer’s identity. Mr. Justice Burton explained that what is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.38 The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege

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recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. It was held that the scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of the communication will not tend to reveal the identity of an informer, the contents are not privileged.39Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.40 A further limitation on the applicability of the privilege, which arises from the fundamental requirements of fairness was emphasized. Where the disclosure of an informer’s identity, or the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.41 In these situations, the trial court may require disclosure and dismiss the action if the Government withholds the information.42 In sum, there is no fixed rule with respect to disclosure of the identity of an informer. The problem has to be resolved on a case to case basis and calls for balancing the state interest in protecting people from crimes against the individual’s right to prepare his defense. The balance must be adjusted by giving due weight to the following factors, among others: (1) the crime charged, (2) the possible defenses, (3) the possible significance of the informer’s testimony, and (4) other relevant factors.43 In the case at bar, the crime charged against the appellants is capital in character and can result in the imposition of the death penalty. They have foisted the defense of instigation which is in sharp contrast to the claim of entrapment by the prosecution. The prosecution has to prove all the material elements of the alleged sale of shabu and the resulting buy-bust operation. Where the testimony of the informer is indispensable, it should be disclosed. The liberty and the life of a person enjoy high importance in our scale of values. It cannot be diminished except by a value of higher significance. V Moreover, the mishandling and transfer of custody of the alleged confiscated methyl amphetamine hydrochloride or shabu further shattered the case of the prosecution. There is no crime of illegal sale of regulated drug when there is a nagging doubt on whether the substance confiscated was the same specimen examined and established to be regulated drug. After the arrest of the appellants, the records show that the substance allegedly taken from them was submitted to the PNP Crime Laboratory for examination upon request of the Chief of the SOD Narcotics Group, Quezon City.44Police Inspector Grace M. Eustaquio, Forensic Chemist, PNP Crime Laboratory, testified that the qualitative examination she conducted manifested "positive results for

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methyl amphetamine hydrochloride" with net weight of 980.50 grams.45 This is not in dispute. The issue is whether the substance examined was the same as that allegedly confiscated from appellants. The Joint Affidavit of Arrest46 merely states that the evidence confiscated was submitted to the "PNP Crime Laboratory Group for qualitative examination." SPO1 Gonzales testified on direct examination that: Q: When you arrested them according to you, what other steps did you take if any? A: We brought them to our office and we requested the crime laboratory Camp Crame to test the suspected shabu that we recovered from both of them.47 On cross-examination, the defense only got this statement from SPO1 Gonzales regarding the evidence allegedly confiscated: Q: And you immediately brought him to your office at Camp Aguinaldo? A: After we gathered the evidences we turned them over to our office, sir.48 Clearly, there was no reference to the person who submitted it to the PNP Crime Laboratory for examination. It is the Memorandum-Request for Laboratory Examination49 which indicates that a certain SPO4 Castro submitted the specimen for examination. However, the rest of the records of the case failed to show the role of SPO4 Castro in the buy-bust operation, if any. In the Joint Affidavit of Arrest, the only participants in the operation were enumerated as SPO1 Gonzales as the poseur-buyer, Police Inspector Medel M. Poñe as the team leader with PO2 Elmer N. Sarampote and PO1 Noli Jingo G. Rivel as back-up support.50 Other members of the team who acted as perimeter security were not identified. In fact, when SPO1 Gonzales was asked during the trial as to their identities, he was only able to name another member of the team: Q: When you say "team," who compose the team? A: I and more or less eight (8) person, ma’am. Q: Can you name the member of the team? A: Our team led by Inspector Medel Poñe, I myself, PO2 Elmer Sarampote, PO1 Noli Jingo G. Rivel, SPO3 Ronaldo Sayson, and I can not remember the others, ma’am.51

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These are questions which cannot be met with a lockjaw. Since SPO4 Castro appears not to be a part of the buy-bust team, how and when did he52 get hold of the specimen examined by Police Inspector Eustaquio? Who entrusted the substance to him and requested him to submit it for examination? For how long was he in possession of the evidence before he turned it over to the PNP Crime Laboratory? Who else had access to the specimen from the time it was allegedly taken from appellants when arrested? These questions should be answered satisfactorily to determine whether the integrity of the evidence was compromised in any way. Otherwise, the prosecution cannot maintain that it was able to prove the guilt of the appellants beyond reasonable doubt. VI Finally, the denials and proffered explanations of appellants assume significance in light of the insufficiency of evidence of the prosecution. Appellant Ong testified that he was arrested on July 23, 1998 when he was scheduled to meet with a certain Ong Sin for a possible job as technician in a bihon factory. On his part, appellant De Ming claimed that when he was arrested on July 23, 1998, he was in the area waiting for his girlfriend and her mother who just went inside a townhouse at 8th Street, New Manila, Quezon City. His girlfriend’s mother, Avelina Cardoz, confirmed his explanation. The prosecution tells a different story, the uncorroborated story of SPO1 Gonzales that their team entrapped the appellants in a buy-bust operation on July 24, 1998. Our minds rest uneasy on the lone testimony of SPO1 Gonzales. WHEREFORE, the Decision of the court a quo is REVERSED and SET ASIDE. Appellants WILLIAM ONG y LI and CHING DE MING @ ROBERT TIU, are ACQUITTED of the crime of violation of Section 15, Article III, in relation to Section 2, Article I of R.A. No. 6425, otherwise known as The Dangerous Drugs Act of 1972, as amended, and are ordered immediately released from custody unless held for some other lawful cause. The Director of Prisons is DIRECTED to implement this decision immediately and to inform this Court within five (5) days from receipt of this decision of the date the appellants are actually released from confinement. Costs de officio. SO ORDERED.

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G.R. No. 171729

July 28, 2008

PEOPLE OF THE PHILIPPINES, Appellee, vs. RICARDO BOHOL y CABRINO, Appellant. QUISUMBING, J.: On appeal is the Decision1 dated September 23, 2005 of the Court of Appeals in CA-G.R. CR-HC No. 01247 affirming the Decision2 dated March 7, 2003 of the Regional Trial Court (RTC) of Manila, Branch 35, in Criminal Cases Nos. 02-205461 and 02-205462. The RTC had convicted appellant Ricardo Bohol (Bohol) of violating Sections 11 (3)3 and 5,4 Article II, respectively, of Republic Act No. 91655 also known as the Comprehensive Dangerous Drugs Act of 2002. On August 7, 2002, two Informations6 were filed against Bohol before the RTC of Manila, Branch 35, for violations of Rep. Act No. 9165. In Criminal Case No. 02-205461, involving the violation of Section 11 (3), Article II of Rep. Act No. 9165, the information reads as follows: That on or about August 2, 2002, in the City of Manila, Philippines, the said accused, without being authorized by law to possess any dangerous drug, did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control three (3) heat-sealed transparent plastic sachets containing white crystalline substance commonly known as "shabu" weighing zero point zero four eight (0.048) gram, zero point zero three five (0.035) gram, and zero point zero three five (0.035) gram, respectively, which, after a laboratory examination, gave positive results for methylamphetamine (sic) hydrochloride, a dangerous drug. CONTRARY TO LAW.7 In Criminal Case No. 02-205462, for violation of Section 5 of the same law, the information reads as follows: That on or about August 2, 2002, in the City of Manila, Philippines, the said accused, without being authorized by law to sell, administer, deliver, transport or distribute any dangerous drug, did then and there willfully, unlawfully and knowingly sell or attempt to sell, or offer for sale for ₱100.00 and deliver to PO2 Ferdinand Estrada, a poseur buyer, one (1) heat-sealed transparent plastic sachet containing white crystalline substance commonly known as "shabu" weighing zero point zero five four (0.054) gram, which substance, after a qualitative examination, gave positive results for methamphetamine hydrochloride, which is a dangerous drug.

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CONTRARY TO LAW.8 The antecedent facts in these cases are as follows. On August 2, 2002, at around 8:30 p.m., a confidential informant came to the police station and tipped P/Sr. Insp. Jessie Nitullano that a certain Ricardo Bohol is engaged in illegal drug trade in Isla Puting Bato, Tondo, Manila. P/Sr. Insp. Nitullano then formed a team of six police operatives to verify the informant’s tip, and, if found positive, to launch then and there a buy-bust entrapment of Bohol. PO2 Ferdinand Estrada was assigned to act as poseur buyer, and he was provided with a marked ₱100-bill as buy-bust money. Between 9:30 p.m. to 10:00 p.m. of the same day, the team proceeded to the site of their operation. Guided by the informant, PO2 Estrada proceeded to the house of Bohol, whom they saw standing beside the stairs of his house. Following a short introduction, PO2 Estrada and the informant told Bohol of their purpose. Bohol asked, "How much?" to which PO2 Estrada replied, "Piso lang" (meaning ₱100 worth of shabu) and handed to the former the marked ₱100-bill. In turn, Bohol gave PO2 Estrada a plastic sachet containing white crystalline granules which the latter suspected to be shabu. The illicit transaction having been consummated, PO2 Estrada gave to his companions their pre-arranged signal. Emerging from their hiding places, PO2 Luisito Gutierrez and his companions arrested Bohol. PO2 Gutierrez frisked Bohol and recovered from him the buy-bust money and three plastic sachets containing similar white crystalline granules suspected to be shabu. Consequently, the police officers brought Bohol to the police station and the confiscated four plastic sachets of white crystalline substance were subjected to laboratory examination. The specimens were confirmed to be methamphetamine hydrochloride, commonly known as shabu. Upon arraignment, Bohol entered a plea of "not guilty" to both charges. Thereafter, trial on the merits ensued. On March 7, 2003, the trial court rendered the assailed Decision, the dispositive portion of which reads: WHEREFORE, judgment is rendered: (1) In Criminal Case No. 02-205461, pronouncing accused RICARDO BOHOL y CABRINO guilty beyond reasonable doubt of possession of a total of 0.118 gram of [methamphetamine] hydrochloride without authority of law, penalized under Section 11 (3) of Republic Act No. 9165, and sentencing the said accused to the indeterminate penalty of imprisonment from twelve (12) years and one (1) day, as minimum, to fifteen (15) years, as maximum, and to pay a fine of ₱300,000.00, plus the costs.

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(2) In Criminal Case No. 02-205462, pronouncing the same accused RICARDO BOHOL y CABRINO guilty beyond reasonable doubt of selling 0.054 gram of [methamphetamine] hydrochloride without authority of law, penalized under Section 5 of the same Republic Act No. 9165, and sentencing the said accused to life imprisonment and to pay a fine of ₱5,000,000.00, plus the costs. In the service of his sentence in Criminal Case No. 02-205461, the time during which the accused had been under preventive imprisonment should be credited in his favor provided that he had agreed voluntarily in writing to abide with the same disciplinary rules imposed on convicted prisoner. Otherwise, he should be credited with four-fifths (4/5) only of the time he had been under preventive imprisonment. Exhibits B and B-1, consisting of four sachets of shabu, are ordered forfeited and confiscated in favor of the Government. Within ten (10) days following the promulgation of this judgment, the Branch Clerk of this Court is ordered to turn over, under proper receipt, the drug involved in this case to the Philippine Drug Enforcement Agency (PDEA) for proper disposal. SO ORDERED.9 Since one of the penalties imposed by the trial court is life imprisonment, the cases were forwarded to this Court for automatic review. On June 15, 2005, this Court transferred the cases to the Court of Appeals for intermediate review pursuant to this Court’s decision in People v. Mateo.10 In a Decision dated September 23, 2005, the Court of Appeals denied the appeal and affirmed the decision of the trial court with modification, so that the penalty in Criminal Case No. 02-205461 should be imprisonment for 12 years, as minimum, to 14 years, 8 months and 1 day, as maximum. Bohol’s Motion for Reconsideration was likewise denied by the appellate court. Thus, Bohol filed a notice of appeal. By Resolution11 dated June 14, 2006, this Court required the parties to file their respective supplemental briefs if they so desire. Bohol and the Office of the Solicitor General (OSG), however, manifested that they are adopting their briefs before the appellate court. Hence, we shall resolve the instant appeal on the basis of the arguments of the parties in said briefs. In his appellant’s brief, Bohol assigns the following errors: I. THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THE ACCUSEDAPPELLANT’S SEARCH AND ARREST AS ILLEGAL. II.

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THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.12 Simply stated, the issues are: (1) whether Bohol’s arrest and the search on his person were illegal; and (2) whether the trial court erred in convicting Bohol despite the absence of proof beyond reasonable doubt. On the first issue, Bohol claims that his arrest was illegal since he could not have committed, nor was he about to commit, a crime as he was peacefully sleeping when he was arrested without a warrant. Consequently, the search conducted by the police officers was not incidental to a lawful warrantless arrest, and the confiscated shabuobtained from the search was inadmissible as evidence against him. For the appellee, the OSG maintains that the arrest of Bohol as well as the search on his person is legal. The OSG stresses that the search made on the person of Bohol was incidental to a lawful arrest which was made when he was caught in flagrante delicto. Further, the OSG maintains that at the time of Bohol’s arrest, the police officers had probable cause to suspect that a crime had been committed since they had received a tip from a confidential informant of the existence of illegal drug trade in the said place. Bohol’s arguments are bereft of merit. The arrest of Bohol is legal. The Constitution proscribes unreasonable arrests and provides in the Bill of Rights that no arrest, search and seizure can be made without a valid warrant issued by competent judicial authority.13However, it is a settled exception to the rule that an arrest made after an entrapment operation does not require a warrant. Such warrantless arrest is considered reasonable and valid under Rule 113, Section 5(a) of the Revised Rules on Criminal Procedure, which states: Sec. 5. Arrest without warrant; when lawful.–A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; In the present case, the arresting officers were justified in arresting Bohol as he had just committed a crime when he sold the shabu to PO2 Estrada. A buy-bust operation is a form of entrapment which has repeatedly been accepted to be a valid means of arresting violators of the Dangerous Drugs Law. Considering the legality of Bohol’s warrantless arrest, the subsequent warrantless search that resulted in the seizure of the shabu found in his person is likewise valid. In a legitimate warrantless arrest, the arresting police officers are authorized to

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search and seize from the offender (1) any dangerous weapons and (2) the things which may be used as proof of the commission of the offense.14 The constitutional proscription against warrantless searches and seizures admits of certain exceptions. This Court has ruled that the following instances constitute valid warrantless searches and seizures: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of the evidence in plain view; (5) search when the accused himself waives his right against unreasonable searches and seizures; (6) stop and frisk; and (7) exigent and emergency circumstances.15 As to the second issue, Bohol contends that the prosecution failed to establish his guilt beyond reasonable doubt. He faults the trial court for giving full faith and credence to the testimonies of the prosecution witnesses. He asserts that the only reason why he was arrested was because he was the overseer of a "videocarrera". The police officers filed the illegal drug trade and possession against him because they failed to find any evidence to have him tried for overseeing a "video-carrera" place. Lastly, he laments the failure of the prosecution to present the confidential informant as a witness during the trial, thereby preventing him from confronting said witness directly. The OSG counters that the prosecution established Bohol’s guilt beyond reasonable doubt. The police officers who testified against Bohol were not shown to have been actuated by improper motives, nor were they shown not properly performing their duty. Thus, their affirmative testimony proving Bohol’s culpability must be respected and must perforce prevail. Moreover, the findings of the trial court on the issue of credibility of witnesses are generally not disturbed by the appellate court and this Court, since it is the trial court that had the opportunity to appraise firsthand the demeanor of the witness. We agree with the OSG. This Court discerns no improper motive on the part of the police officers that would impel them to fabricate a story and falsely implicate Bohol in such a serious offense. In the absence of any evidence of the policemen’s improper motive, their testimony is worthy of full faith and credit. Also, courts generally give full faith and credit to officers of the law, for they are presumed to have performed their duties in a regular manner. Accordingly, in entrapment cases, credence is given to the narration of an incident by prosecution witnesses who are officers of the law and presumed to have performed their duties in a regular manner in the absence of clear and convincing evidence to the contrary.16 Moreover, we find no cogent reason to disturb the findings of the trial court. The settled rule is that the evaluation of the testimonies of witnesses by the trial court is entitled to the highest respect because such court has the direct opportunity to observe the witnesses’ demeanor and manner of testifying and thus, is in a better position to assess their credibility.17 Lastly, as ruled by the appellate court, Bohol cannot insist on the presentation of the informant. During trial, the informant’s presence is not a requisite in the

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prosecution of drug cases. The appellate court held that police authorities rarely, if ever, remove the cloak of confidentiality with which they surround their poseurbuyers and informers since their usefulness will be over the moment they are presented in court. Further, what is material to the prosecution for the illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti. Both requirements were sufficiently proven in this case. The police officers were able to testify positively and categorically that the transaction or sale actually took place. The subject shabu was likewise positively identified by the prosecution when presented in court. Hence, we agree that Bohol’s guilt has been established by the prosecution beyond reasonable doubt. Finally, the modification made by the Court of Appeals in the penalty imposed by the RTC in Criminal Case No. 02-205461 ought to be deleted. Section 1 of the Indeterminate Sentence Law18 provides that when the offense is punished by a law other than the Revised Penal Code, "the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by law and the minimum shall not be less than the minimum term prescribed by the same." Hence, the penalty originally imposed by the RTC of imprisonment from 12 years and 1 day, as minimum, to 15 years as maximum, and to pay a fine of ₱300,000 is correct and must be sustained. WHEREFORE, the appeal is DENIED. The Decision dated September 23, 2005 of the Court of Appeals in CA-G.R. CR-HC No. 01247 is hereby AFFIRMED with MODIFICATION, so that the original penalty imposed in the Decision dated March 7, 2003 of the Regional Trial Court of Manila, Branch 35, in Criminal Case No. 02205461 as well as No. 02-205462 is SUSTAINED. No pronouncement as to costs. SO ORDERED.

RIGHT TO COMPULSORY PROCESS G.R. No. 128280

April 4, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALICIA A. CHUA, accused-appellant. PARDO, J.: Accused Alicia Chua has appealed from the decision1 of the Regional Trial Court, Manila, Branch V finding her guilty beyond reasonable doubt of illegal recruitment committed in large scale and sentencing her to life imprisonment and a fine of

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P100,000.00, and eight (8) counts of estafa sentencing her to various penalties therefor. On October 05, 1993, Assistant City Prosecutor Leocadio H. Ramos, Jr. of Manila filed with the Regional Trial Court, Manila an information 2 against accused Alicia A. Chua reading as follows: Crim. Case No. 93-127418: "That in or about and during the period comprised between October 29, 1992 and January 19, 1993, inclusive, in the City of Manila, Philippines, the said accused, representing herself to have the capacity to contract, enlist and transport Filipino workers for employment abroad, did then and there wilfully, unlawfully, for a fee, recruit and promise employment/job placement abroad to the following persons, namely: DOMINGO F. TERCENIO, MARTIN B. BERMEJO, EVANGELINE F. GAVINA, DANTE F. BALUIS, EDUARD V. ESTILLER, EDGAR B. ABONAL, VIOLETA F. REGALADO, GLORIA J. RICAFRENTE and LONITO F. BALUIS, without first having secured the required license or authority from the Department of Labor. "Contrary to law."3 On the same date, the same prosecutor filed with the Regional Trial Court, Manila nine (9) other informations against the accused for estafa: Crim. Case No. 93-127419: "The undersigned accuses ALICIA A. CHUA of the crime of estafa, committed as follows: That on or about October 29, 1992, in the City of Manila, Philippines, the said accused, did then and there willfully, unlawfully and feloniously defraud DOMINGO F. TERCENIO in the following manner, to wit: the said accused, by means of false manifestations and fraudulent representation which she made to said DOMINGO F. TERCENIO to the effect that she had the power and capacity to recruit and employ said DOMINGO F. TERCENIO and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof and by-means of other similar deceits, induced and succeeded in inducing said DOMINGO F. TERCENIO to give and deliver, as in fact he gave and delivered to said accused the amount of P15,000.00 on the strength of said manifestations and representations, said accused well knowing that the same were false and fraudulent and were made solely to obtain as in fact she did obtain the amount of P15,000.00 which amount once in her possession with intent to defraud, willfully, unlawfully and feloniously misappropriated, misapplied and converted to her own personal use and benefit, to the damage and

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prejudice of said DOMINGO F. TERCENIO in the aforesaid amount of P15,000.00 Philippine Currency. "CONTRARY TO LAW."4 Crim. Case No. 93-127420: "That on or about November 21, 1992, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously defraud MARTIN B. BERMEJO in the following manner, to wit: the said accused, by means of false manifestations and fraudulent representation which he/they/she made to said MARTIN B. BERMEJO to the effect that she had the power and capacity to recruit and employ MARTIN BERMEJO in Taiwan and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, and by means of other similar deceits, induced and succeeded in inducing said MARTIN B. BERMEJO to give and deliver, as in fact he gave and delivered to said accused the amount of P15,000.00 on the strength of said manifestations and representations, said accused well knowing that the same were false and fraudulent and were made solely to obtain, as in fact she did obtain the amount of P15,000.00 which amount once in her possession with intent to defraud, wilfully, unlawfully and feloniously misappropriated, misapplied and converted to her own personal use and benefit to the damage and prejudice of said MARTIN B. BERMEJO in the aforesaid amount of P15,000.00, Philippine Currency. "CONTRARY TO LAW."5 Crim. Case No. 93-127421: "That on or about November 6, 1992, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously defraud EVANGELINE F. GAVINA in the following manner, to wit: the said accused, by means of false manifestations and fraudulent representation which he/they/she made to said EVANGELINE F. GAVINA to the effect that she had the power and capacity to recruit and employ EVANGELINE F. GAVINA and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, and by means of other similar deceits induced and succeeded in inducing said EVANGELINE F. GAVINA to give and deliver, as in fact she gave and delivered to said accused the amount of P15,000.00 on the strength of said manifestations and representations, said accused well knowing that the same were false and fraudulent and were made solely, to obtain, as in fact she did obtain the amount of P15,000.00 which amount once in her possession with intent to defraud, wilfully, unlawfully and

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feloniously misappropriated, misapplied and converted to her own personal use and benefit to the damage and prejudice of said EVANGELINE P. GAVINA in the aforesaid amount of P15,000.00, Philippine Currency.1âwphi1.nêt "CONTRARY TO LAW."6 Crim. Case No. 93-127422: "That on or about December 10, 1992, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously defraud DANTE F. BALUIS in the following manner, to wit: the said accused, by means of false manifestations and fraudulent representation which he/they/she made to said DANTE F. BALUIS to the effect that she had the power and capacity to recruit and employ DANTE F. BALUIS in Taiwan and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, and by means of other similar deceits, induced and succeeded in inducing said DANTE F. BALUIS to give and deliver, as in fact he gave and delivered to said accused the amount of P11,000.00 on the strength of said manifestations and representations, said accused well knowing that the same were false and fraudulent and were made solely to obtain, as in fact she did obtain the amount of P11,000.00 which amount once in her possession with intent to defraud, wilfully, unlawfully and feloniously misappropriated, misapplied and converted to her own personal use and benefit to the damage and prejudice of said DANTE G. BALUIS in the aforesaid amount of P11,000.00, Philippine Currency. "CONTRARY TO LAW."7 Crim. Case No. 93-127423: "That on or about November 24, 1992, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously defraud EDUARD V. ESTILLER in the following manner, to wit: the said accused, by means of false manifestations and fraudulent representation which he/she/they made to said EDUARD V. ESTILLER to the effect that she had the power and capacity to recruit and employ EDUARD V.' ESTILLER in Taiwan and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, and by means of other similar deceits, induced and succeeded in inducing said EDUARD V. ESTILLER to give and deliver, as in fact he/she/they gave and delivered to said accused the amount of P15,000.00 on the strength of said manifestations and representations, said accused well knowing that the same were false and fraudulent and were made solely, to obtain, as in fact she did obtain the amount of P15,000.00 which amount

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once in her possession, with intent to defraud, wilfully, unlawfully and feloniously misappropriated, misapplied and converted to her own personal use and benefit to the damage and prejudice of said EDUARD V. ESTILLER, in the aforesaid amount P15,000.00 Philippine Currency. "CONTRARY TO LAW."8 Crim. Case No. 93-127424: "That on or about December 11, 1992, in the City of Manila, Philippines, the said accused, did then and therein wilfully, unlawfully and feloniously defraud EDGAR B. ABONAL in the following manner, to wit: the said accused, by means of false manifestations and fraudulent representation which he/she/they made to said EDGAR B. ABONAL to the effect that she had the power and capacity to recruit and employ EDGAR B. ABONAL in Taiwan and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, and by means of other similar deceits, induced and succeeded in inducing said EDGAR B. ABONAL to give and deliver, as in fact he/she/they gave and delivered to said accused the amount of P15,000.00 on the strength of said manifestations and representations, said accused well knowing that the same were false and fraudulent and were made solely, to obtain, as in fact she did obtain the amount of P15,000.00 which amount once in her possession with intent to defraud, wilfully, unlawfully and feloniously misappropriated, misapplied and converted to her own personal use and benefit to the damage and prejudice of said EDGAR B. ABONAL in the aforesaid amount P15,000.00 Philippine Currency. "CONTRARY TO LAW."9 Crim. Case No. 93-127425: "That on or about, December 10, 1992, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously defraud VIOLETA F. REGALADO in the following manner, to wit: the said accused, by means of false manifestations and fraudulent representation which he/she/they made to said VIOLETA F. REGALADO to the effect that she had the power and capacity to recruit and employ VIOLETA F. REGALADO in Taiwan and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, and by means of other similar deceits, induced and succeeded in inducing said VIOLETA F. REGALADO to give and deliver, as in fact he/she/they gave and delivered to said accused the amount of P15,000.00 on the strength of said manifestations and representations, said accused

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well knowing that the same were false and fraudulent and were made solely, to obtain, as in fact she did obtain the amount of P15,000.00 which amount once in her possession, with intent to defraud, wilfully, unlawfully and feloniously misappropriated, misapplied and converted to her own personal use and benefit to the damage and prejudice of said VIOLETA F. REGALADO in the aforesaid amount P15,000.00 Philippine Currency. "Contrary to law."10 Crim. Case No. 93-127426: "That on or about January 19, 1993, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously defraud GLORIA J. RICAFRENTE in the following manner, to wit: the said accused, by means of false manifestations and fraudulent representation which he/she/they made to said GLORIA J. RICAFRENTE to the effect that she had the power and capacity to recruit and employ GLORIA J. RICAFRENTE in Taiwan and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, and by means of other similar deceits, induced and succeeded in inducing said GLORIA J. RICAFRENTE to give and deliver, as in fact he/she/they gave and delivered to said accused the amount of P15,000.00 on the strength of said manifestations and representations, said accused well knowing that the same were false and fraudulent and were made solely, to obtain, as in fact she did obtain the amount of P15,000.00 which amount once in her possession, with intent to defraud, wilfully, unlawfully and feloniously misappropriated, misapplied and converted to her own personal use and benefit, to the damage and prejudice of said GLORIA J. RICAFRENTE in the aforesaid amount of P15,000.00, Philippine Currency. "CONTRARY TO LAW."11 Crim. Case No. 93-127427: "That on or about October 29, 1992, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously defraud LONITO F. BALUIS in the following manner, to wit: the said accused, by means of false manifestations and fraudulent representation which he/she/they made to said LONITO F. BALUIS to the effect that she had the power and capacity to recruit and employ LONITO F. BALUIS in Taiwan and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, and by means of other similar deceits, induced and succeeded in inducing said LONITO F. BALUIS to give and deliver, as in fact he/she/they gave and delivered to said

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accused the amount of P15,000.00 on the strength of said manifestations and representations, said accused well knowing that the same were false and fraudulent and were made solely, to obtain, as in fact she did obtain the amount of P15,000.00 which amount once in her possession, with intent to defraud, wilfully, unlawfully and feloniously misappropriated, misapplied and converted to her own personal use and benefit to the damage and prejudice of said LONITO F. BALUIS in the aforesaid amount P15,000.00, Philippine Currency. "CONTRARY TO LAW."12 On November 8, 1993, the trial court arraigned the accused. She pleaded not guilty to each case.13 Trial ensued. The cases were consolidated and tried jointly. The facts are as follows: In September 1992, accused. Chua received a facsimile message from Harmony Electronics Company in Taiwan.14The message was written in Chinese characters except for the names of To-ong Zenon Tumenlaco and Tercenio Domingo Fornaliza. Harmony asked her to call up To-ong and Tercenio and tell them that they were needed in Taiwan. Accused Chua contacted To-ong and told him the message.15 In October 1992, To-ong and Tercenio went to the office of accused Chua, and the latter told them that she could send them to Taiwan upon payment of a placement fee of P15,000.00 each. She also asked them to secure NBI clearances and medical certificates.16 On October 29, 1992, Tercenio, together with private complainant Lonito Baluis, went back to the office of accused Chua and submitted the requirements. Tercenio and Lonito Baluis paid P15,000.00 each for which they were issued a receipt bearing the name Man Tai Trading and General Services with accused Chua's signature.17 Accused Chua assured Tercenio and Lonito Baluis that they would be able to leave for Taiwan soon. Three months passed, but they were not deployed. Tercenio became apprehensive and told accused Chua that he would withdraw his application and ask for refund of the placement fee. Accused Chua repeatedly promised that she would give back the money to him, but she never did. After a few more months, Tercenio could not anymore locate accused Chua.18 Accused Chua used the same modus operandi on the other private complainants. After requiring each complainant to pay a placement fee of P15,000.00 each, to secure NBI clearances and to undergo medical examinations, she would go in hiding.

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In time, complainants inquired from the Philippine Overseas Employment Agency (POEA) about accused Chua's activities. The POEA issued a certification that accused Chua was not licensed to recruit persons/workers for overseas employment.19 On October 3, 1995, the trial court promulgated a decision, the dispositive portion 20 of which reads: "WHEREFORE, premises considered, Alicia A. Chua is hereby found: "1) Guilty beyond reasonable doubt of the crime of Illegal Recruitment committed in large scale in Criminal Case No. 93-127418 and is therefore sentenced to serve a penalty of life imprisonment and a fine of P100,000.00; "2) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127419 and is sentenced to serve indeterminate sentence of four (4) years of prision correccional maximum, as minimum to six (6) years and eight (8) months of Prision Mayor minimum as maximum, and to pay the complainant the sum of P15,000.00 plus legal interest from the filing of the case until fully paid; "3) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127420 and is sentenced to serve an indeterminate sentence of four (4) years of prision correccional maximum as minimum to six (6) years and eight (8) months of prision mayor minimum as maximum, and to pay the complainant the sum of P15,500.00 plus legal interest from the filing of the case until fully paid; "4) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127421 and is sentenced to serve an indeterminate sentence of four (4) years of prision correccional maximum as minimum to six (6) years and eight (8) months of prision mayor minimum as maximum, and to pay the complainant the sum of P15,500.00 plus legal interest from the filing of the case until fully paid; "5) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127422 and is therefore sentenced to serve an indeterminate sentence of six (6) months of Arresto Mayor maximum, as minimum to two (2) years and eleven (11) months of prision correccional medium, as maximum, and to pay the complainant the sum of P11,500.00 plus legal interest from the filing of the case until fully paid; "6) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127423 and is therefore sentenced to serve an indeterminate sentence of four (4) years of prision correccional maximum, as minimum to six (6) years and eight (8) months of prision mayor minimum, as maximum

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and to pay the complainant the sum of P15,500.00 plus legal interest from the filing of the case until fully paid; "7) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127425 and is therefore sentenced to serve an indeterminate sentence of four (4) years of prision correccional maximum, as minimum to six (6) years and eight (8) months of prision mayor minimum as maximum, and to pay the complainant the sum of P14,500.00 plus legal interest from the filing of the case until fully paid; "8) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127426 and is therefore sentenced to serve indeterminate sentence of four (4) years of prision correccional maximum, as minimum to six (6) years and eight (8) months of prision mayor minimum as maximum, and to pay the complainant the sum of P14,500.00 plus legal interest from the filing of the case until fully paid; "9) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127427 and is sentenced to serve indeterminate sentence of four (4) years of prision correccional maximum, as minimum to six (6) years and eight (8) months of prision mayor minimum as maximum, and to pay the complainant the sum of P15,000.00 plus legal interest from the filing of the case until fully paid. "As earlier stated, Criminal Case No. 93-127424 is dismissed for failure of the prosecution to adduce evidence. "SO ORDERED. "Manila, September 20, 1995. "(Sgd.) ZEUS C. ABROGAR "Judge." Hence, this appeal.21 In her brief, accused-appellant anchors her defense on the approval of her application for a license to recruit on April 13, 1993, which, according to her, rendered her a genuine holder of authority. She also claimed that she was denied her constitutional right to compulsory process.22 On the other hand, the Solicitor General contends that appellant was a nonlicensee and had no authority to recruit anyone for overseas employment, and that she failed to proffer any compelling reason to justify her request for the production of POEA records.23

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We find the appeal devoid of merit. Appellant interposes the defense that the approval of her application for a service contractor's authority on April 13, 1993 should be given a retroactive effect as to make all her previous recruitment activities valid. However, this issue was not raised in the trial court. She cannot now be allowed to raise it for the first time on appeal without offending basic rules of fair play, justice and due process.24 The records show that the license was not issued due to her failure to comply with post-licensing requirements.25 It is the issuance of the license which makes the holder thereof authorized to perform recruitment activities. The law specifically provides that "every license shall be valid for at least two (2) years from the date of issuance unless sooner cancelled or revoked by the Secretary.26 Appellant herself admitted that she had no authority to recruit private complainants. thus: ATTY. MONTERO (to witness): Q: Now what was the reply of Harmony Electronics Company when you questioned them about the use of your company? A: They wrote back to me and they told me that "never mind, we only need Cenon To-ong and Domingo Tersenio." But I told them that I am not in the position to employ these people because I am not a licensed agency for that matter and they said that "I would just send you an authority and show this to the pertaining government agency who could at least send these two people." Q:

So what did you do after that?

A: I told them to send me something if I can do the way out of it, I will ask anybody from my colleagues to do the hiring of these people. Q: Did you ask anybody from your colleagues to do the hiring of these two? A:

I did but Alcamojar was not also licensed.

Q:

So what happened after that?

A: I told Cenon because Cenon is much better to understand that, he looked for one company who could just or whom I can transfer the authority that the Harmony Electronics would be sending me, so I will just transfer the authority to any agency who could send them back to Taiwan.27

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Appellant cannot now claim that she was a genuine holder of authority from the Secretary of Labor and Employment to recruit factory workers for Harmony Electronics Company based in Taiwan. As to her claim of denial of the constitutional right to compulsory process, we find the same to be without merit. The 1973 and 1987 Constitutions expanded the right to compulsory process which now includes the right to secure the production of evidence in one's behalf. 28 By analogy, U.S. vs. Ramirez29 which laid down the requisites for compelling the attendance of witnesses, may be applied to this expanded concept. Thus, the movant must show: (a) that the evidence is really material; (b) that he is not guilty of neglect in previously obtaining the production of such evidence; (c) that the evidence will be available at the time desired; and (d) that no similar evidence could be obtained. In the case at bar, the trial court correctly denied appellant's motion for the production of the records which were the basis in issuing the POEA Certification dated February 3, 1994,30 as the same would not in any way alter the undisputed fact that appellant was not issued a license until then.31 WHEREFORE, the Court AFFIRMS the appealed decision in toto, with costs against appellant. SO ORDERED.

RIGHT AGAINST SELF-INCRIMINATION G.R. No. 109775 November 14, 1996 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE ENCARNACION MALIMIT alias "MANOLO", accused-appellant. FRANCISCO, J.: Appellant Jose Encarnacion Malimit, charged with 1 and convicted of the special complex crime of robbery with homicide, 2 was meted by the trial court 3 the penalty of reclusion perpetua. He was also ordered to indemnify the heirs of Onofre Malaki the sum of Fifty Thousand Pesos (P50,000.00) without subsidiary imprisonment in case of insolvency, and to pay the cost. 4

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In this appeal, appellant asks for his acquittal alleging that the trial court committed the following errors, to wit: I THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE UNRELIABLE TESTIMONIES OF THE PROSECUTION WITNESSES ON THEIR ALLEGED IDENTIFICATION OF THE ACCUSED-APPELLANT AS THE PERPETRATOR OF THE CRIME DESPITE THE FACT (SIC) THEY REVEALED THEIR ALLEGED "KNOWLEDGE" OF TH6E CRIME MORE THAN FIVE MONTHS AFTER THE INCIDENT. II THE TRIAL COURT ERRED IN ADMITTING AS EVIDENCE THE WALLET AND ITS CONTENTS ALTHOUGH THE CIRCUMSTANCES WHICH LEAD TO ITS PRODUCTION WAS OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED. III THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. 5 The following is the recital of facts as summarized by the appellee in its Brief, and duly supported by the evidence on record: On April 15, 1991, around 8:00 o'clock in the evening, [Onofre] Malaki was attending to his store. Malaki's houseboy Edilberto Batin, on the other hand, was busy cooking chicken for supper at the kitchen located at the back of the store (TSN, June 19, 199 (sic), p. 14). Soon thereafter, Florencio Rondon, a farmer, arrived at the store of Malaki. Rondon was to purchase chemical for his rice farm (TSN, May 22, 1992, p. 19). Rondon came from his house, approximately one hundred and fifty (150) meters distant from Malaki's store (Ibid., p. 24). Meanwhile, Batin had just finished cooking and from the kitchen, he proceeded directly to the store to ask his employer (Malaki) if supper is to be prepared. As Batin stepped inside the store, he was taken aback when he saw appellant coming out of the store with a bolo (TSN, June 9, 1992, p. 14), while his boss, bathed in his own blood, was sprawled on the floor "struggling for his life" (hovering between life and death) (Ibid.).

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Rondon, who was outside and barely five (5) meters away from the store, also saw appellant Jose Malimit (or "Manolo") rushing out through the front door of Malaki's store with a blood-stained bolo (TSN, May 22, 1992, p. 29). Aided by the illumination coming from a pressure lamp ("petromax") inside the store, Rondon clearly recognized Malimit (Ibid., p. 22). Batin immediately went out of the store to seek help. Outside the store, he met Rondon (TSN, June 9, 1992, p. 15). After a brief conversation, both Batin and Rondon rushed to the nearby house of Malaki's brother-in-law Eutiquio Beloy and informed Beloy of the tragic incident which befell Malaki. Batin, along with Beloy, went back to the store. Inside, they saw the lifeless body of Malaki in a pool of blood lying prostrate at the floor. Beloy readily noticed that the store's drawer was opened and ransacked and the wallet of Malaki was missing from his pocket (Ibid., pp. 16-17). 6 In his first assignment of error, appellant questions the credibility of prosecution witnesses Florencio Rondon and Edilberto Batin by pointing out their alleged delay in revealing what they knew about the incident. He posits that while the crime took place on April 15, 1991, it was only on September 17, 1991 when these witnesses tagged him as the culprit. We find these contentions bereft of merit. Appellant haphazardly concluded that Rondon and Batin implicated the appellant to this gruesome crime only on September 17, 1991. The aforementioned date however, was merely the date 7 when Rondon and Batin executed their respective affidavits, 8 narrating that they saw the appellant on the night of April 15, 1991 carrying a bolo stained with blood and rushing out of Malaki's store. As to appellant's claim of delay, suffice it to state that extant from the records are ample testimonial evidence negating appellant's protestation, to wit: (1) after having discovered the commission of the crime, Rondon and Batin immediately looked for Eutiquio Beloy, Malaki's brother-in-law, and informed him that appellant was the only person they saw running away from the crime scene; 9 (2) Beloy and Batin reported the crime with the CAFGU detachment in their barangay where Batin declared that it was appellant who robbed Malaki on that fateful night; 10 and (3) Batin again made a similar statement later at the Silago Police Station.11 Next, appellant derided the non-presentation by the prosecution of the police blotter which could prove if appellant was indeed implicated right away by Batin to the crime.12 We do not believe, however, that it was necessary for the prosecution to present as evidence a copy of the aforementioned police blotter. Neither was its non-presentation in court fatal to the prosecution's case. Entries in the police blotter are merely corroborative evidence of the uncontroverted testimony of Batin that he identified the appellant as the perpetrator of the crime before the Silago police. As such, its presentation as evidence is not indispensable. 13 Besides, if appellant believed that he was not identified therein, then he should have secured a copy thereof from the Silago Police Station and

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utilized the same as controverting evidence to impeach Batin's credibility as witness. 14 Having failed to do so, appellant cannot now pass the blame on the prosecution for something which appellant himself should have done. Even assuming arguendo that Rondon and Batin identified the appellant only on September 15, 1991, or after the lapse of five months from commission of the crime, this fact alone does not render their testimony less credible. The nondisclosure by the witness to the police officers of appellant's identity immediately after the occurrence of the crime is not entirely against human experience. 15 In fact the natural reticence of most people to get involved in criminal prosecutions against immediate neighbors, as in this case, 16 is of judicial notice. 17 At any rate, the consistent teaching of our jurisprudence is that the findings of the trial court with regard to the credibility of witnesses are given weight and the highest degree of respect by the appellate court. 18 This is the established rule of evidence, as the matter of assigning values to the testimony of witnesses is a function best performed by the trial court which can weigh said testimony in the light of the witness" demeanor, conduct and attitude at the trial. 19 And although the rule admits of certain exceptions, namely: (1) when patent inconsistencies in the statements of witnesses are ignored by the trial court, or (2) when the conclusions arrived at are clearly unsupported by the evidence, 20 we found none in this case. In his second assignment of error, appellant asseverates that the admission as evidence of Malaki's wallet 21together with its contents, viz., (1) Malaki's residence certificate; 22 (2) his identification card;23 and (3) bunch of keys, 24 violates his right against self-incrimination. 25 Likewise, appellant sought for their exclusion because during the custodial investigation, wherein he pointed to the investigating policemen the place where he hid Malaki's wallet, he was not informed of his constitutional rights. We are not persuaded. The right against self-incrimination guaranteed under our fundamental law finds no application in this case. This right, as put by Mr. Justice Holmes in Holt vs. United States, 26 ". . . is a prohibition of the use of physical or moral compulsion, to extort communications from him . . ." It is simply a prohibition against legal process to extract from the [accused]'s own lips, against his will, admission of his guilt. 27 It does not apply to the instant case where the evidence sought to be excluded is not an incriminating statement but an object evidence. Wigmore, discussing the question now before us in his treatise on evidence, thus, said: If, in other words (the rule) created inviolability not only for his [physical control of his] own vocal utterances, but also for his physical control in whatever form exercise, then, it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles — a clear reduction ad absurdum. In other words, it is not merely

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compulsion that is the kernel of the privilege, . . . but testimonial compulsion 28 Neither are we prepared to order the exclusion of the questioned pieces of evidence pursuant to the provision of the Constitution under Article III, Section 12, viz: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (3) Any confession or admission obtained in violation of this or Sec. 17 hereof, shall be inadmissible in evidence against him. (Emphasis ours.) These are the so-called "Miranda rights" so oftenly disregarded by our men in uniform. However, infractions thereof render inadmissible only the extrajudicial confession or admission made during custodial investigation. The admissibility of other evidence, provided they are relevant to the issue and is not otherwise excluded by law or rules, 29 is not affected even if obtained or taken in the course of custodial investigation. Concededly, appellant was not informed of his right to remain silent and to have his own counsel by the investigating policemen during the custodial investigation. Neither did he execute a written waiver of these rights in accordance with the constitutional prescriptions. Nevertheless, these constitutional short-cuts do not affect the admissibility of Malaki's wallet, identification card, residence certificate and keys for the purpose of establishing other facts relevant to the crime. Thus, the wallet is admissible to establish the fact that it was the very wallet taken from Malaki on the night of the robbery. The identification card, residence certificate and keys found inside the wallet, on the other hand, are admissible to prove that the wallet really belongs to Malaki. Furthermore, even assuming arguendo that these pieces of evidence are inadmissible, the same will not detract from appellant's culpability considering the existence of other evidence and circumstances establishing appellant's identity and guilt as perpetrator of the crime charged. We, now come to appellant's third assignment of error where he demurs on the prosecution's evidence, contending that they are insufficient to sustain his conviction. Our close scrutiny of the record reveals otherwise. Time and again, we ruled that there can be a verdict of conviction based on circumstantial evidence when the circumstances proved form an unbroken chain which leads to a fair and reasonable conclusion pinpointing the accused, to the exclusion of all the others, as the perpetrator of the crime. 30In order that circumstantial evidence may be sufficient to convict, the same must comply with these essential requisites, viz., (a) there is more than one circumstance; (b) the facts from which the inferences are

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derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 31 In this case, there were at least five (5) circumstances constituting an unbroken chain of events which by their "concordant combination and cumulative effect", satisfy the requirements for the conviction of the appellant, 32specifically: (1) appellant was seen by Rondon and Batin, whose credibilities were untarnished, holding a bolo in his right hand and rushing out of Malaki's store seconds prior to their discovery of the crime; 33 (2) Malaki sustained multiple stab wounds 34 and he died of "cardiac arrest, secondary to severe external hemorrhage due to multiple stab wounds", 35 (3) witness Elmer Ladica saw the appellant on August 6, 1991, accompanied by some policemen, retrieve Malaki's wallet underneath a stone at the seashore in Barangay Hingatungan; 36 (4) appellant himself admitted in his testimony that on August 6, 1991, he accompanied several policemen to the seashore where he hid Malaki's wallet; 37 and (5) appellant's flight and his subsequent disappearance from Hingatungan immediately after the incident. 38 On the other hand, appellant's version of the story does not inspire belief. He maintains that on that fateful night he was in his house together with his wife. He claims that they had just arrived from a gambling spree allegedly in the house of a certain Maui Petalcorin. Surprisingly, however, the defense did not bother to call appellant's wife to the witness stand to corroborate appellant's alibi. Neither did it present as witness Maui Petalcorin, or any other person who may have seen the appellant in the said place, if only to provide a semblance of truth to this assertion. As the defense of alibi is weak in view of the positive identification of the appellant by the prosecution witnesses, 39 it becomes weaker because of the unexplained failure of the defense to present any corroboration. 40 Furthermore, proof that appellant was in his house when the crime was committed is not enough. Appellant must likewise demonstrate that he could not have been physically present at the place of the crime or in its vicinity, at the time of its commission. 41 In this case, appellant himself admitted that his house was just about eighty (80) meters away from the house of Malaki. 42 It was, therefore, not impossible for him to have been physically present at the place of the commission of the crime, as in fact, no evidence to negate this possibility was ever adduced by him at the trial. Appellant's insistence that he merely found Malaki's wallet by chance while gathering shells along the seashore, and that he feared being implicated in the crime for which reason he hid the wallet underneath a stone, hardly inspires belief. We are at a loss, just as the trial court was, as to why appellant should fear being implicated in the crime if indeed he merely found Malaki's wallet by chance. No inference can be drawn from appellant's purported apprehension other than the logical conclusion that appellant had knowledge of the crime. Besides, proof that appellant is in possession of a stolen property gives rise to a valid presumption that he stole the same. 43 In fine, as the killing of Malaki took place on the occasion of robbery, appellant was correctly convicted by the trial court of the special complex crime of robbery

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with homicide, defined and penalized under Article 294, paragraph 1 of the Revised Penal Code. WHEREFORE, the appealed judgment of conviction is hereby AFFIRMED in toto. SO ORDERED.

G.R. No. 125687 December 9, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DELFIN RONDERO, accused-appellant. PER CURIAM: When an accused appeals from the judgment of the trial court, he waives the constitutional safeguard against double jeopardy and throws the whole case open for review of the appellate court, which is then called to render such judgment as law and justice dictate, whether favorable or unfavorable. 1 With this precept in mind, this Court as the ultimate dispenser of justice, will not hesitate to render the proper imposable penalty, whenever it sees fit, even the supreme penalty of death. Before us is an appeal from a decision rendered by the Regional Trial Court of Dagupan City, Branch 41, sentencing herein accused-appellant Delfin Rondero y Sigua to suffer the penalty of reclusion perpetua for the crime of homicide. The facts of the case are as follows: On the evening of March 25, 1994, Mardy Doria came home late from a barrio fiesta. When he noticed that his nine year old sister, Mylene, was not around, he woke up his parents to inquire about his sister's whereabouts. Realizing that Mylene was missing, their father, Maximo Doria, sought the help of a neighbor, Barangay Kagawad Andong Rondero to search for Mylene. Maximo and Andong went to the house of a Barangay Captain to ask for assistance and also requested their other neighbors in Pugaro, Dagupan to look for Mylene. The group began searching for Mylene at around 1:00 o'clock in the morning of March 26, 1994. They scoured the campus of Pugaro Elementary School and the seashore in vain. They even returned to the school and inspected every classroom but to no avail. Tired and distraught, Maximo started on his way home. When he was about five (5) meters away from his house, Maximo, who was then carrying a flashlight, saw herein accused-appellant Delfin Rondero pumping the artesian well

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about one (1) meter away. Accused-appellant had an ice pick clenched in his mouth and was washing his bloodied hands. 2 Maximo hastily returned to the school and told Kagawad Andong what he saw without, however, revealing that the person he saw was the latter's own son. 3 Maximo and Andong continued their search for Mylene but after failing to find her, the two men decided to go home. After some time, a restless Maximo began to search anew for her daughter. He again sought the help of Andong and the barangay secretary. The group returned to Pugaro Elementary School where they found Mylene's lifeless body lying on a cemented pavement near the canteen. 4 Her right hand was raised above her head, which was severely bashed, and her fractured left hand was behind her back. She was naked from the waist down and had several contusions and abrasions on different parts of her body. Tightly gripped in her right hand were some hair strands. A blue rubber slipper with a tiny leaf painted in red was found beside her body while the other slipper was found behind her back. Half an hour later, five (5) policemen arrived at the scene and conducted a spot investigation. They found a pair of shorts 5 under Mylene's buttocks, which Maximo identified as hers. Thereafter, Maximo led the policemen to the artesian well where he had seen accused-appellant earlier washing his hands. The policemen found that the artesian well was spattered with blood. 6 After the investigation, the policemen, together with Maximo, went back to their headquarters in Dagupan City. There, Maximo disclosed that before they found Mylene's body, he saw accused-appellant washing his bloodstained hands at the artesian well. 7 Acting on this lead, the policemen returned to Pugaro and arrested accused-appellant. An autopsy of the body of the victim conducted by the Assistant City Health Officer of Dagupan City, Dr. Tomas G. Cornel, revealed the following injuries: EXTERNAL FINDINGS 1. Contusion hematoma, anterior chest wall, along the midclavicular line, level of the 2nd intercostal space, right. 2. Contusion hematoma, along the parasternal line, level of the 1st intercostal space, left. 3. Contusion hematoma, posterior aspect, shoulder, left. 4. Contusion hematoma, anterior axillary line, level of the 3rd intercostal space, left. 5. Contusion hematoma, anterior aspect, neck. 6. Contusion hematoma, lower jaw, mid portion.

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7. Contusion hematoma, periorbital, right. 8. Lacerated wound, 1" x 1/2" x 1/2", maxillary area, right. 9. Contusion hematoma, temporal area, left. 10. Contusion hematoma, mid frontal area. 11. Lacerated wound 1/2" x 1/4" x 1/4", frontal area, left. 12. Contusion hematoma, occipital area, right. 13. Abrasion, medial anterior aspect, elbow, left. 14. Abrasion, lateral aspect, buttock, right. 15. Abrasion, antero lateral aspect, iliac crest, right. 16. Contusion hematoma, upper lip. 17. Avulsion, upper central and lateral incisors. 18. Fresh laceration of the hymen at 1:00 o'clock, 6:00 o'clock and 9:00 o'clock position. Fresh laceration of the labia minora at 6:00 o'clock and 9:00 o'clock position. INTERNAL FINDINGS Massive intracranial hemorrhage with brain tissue injury. Fracture of the right occipital bone. Note: Vaginal smear was done at the Gov. Teofilo Sison Memorial Prov'l Hosp. laboratory and the result showed no sperm cell seen. (March 26, 1994) Cause of death: Cardio Respiratory Arrest Due to: Massive Intracranial Hemorrhage Traumatic

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For Mylene's burial, her parents spent P5,043.00 during her wake, 9 P9,000.00 for funeral expenses 10 and P850.00 for church services and entombment. 11

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On March 28, 1994, the hair strands which were found on the victim's right hand and at the scene of the crime, together with hair specimens taken from the victim and accused-appellant, were sent to the National Bureau of Investigation (NBI) for laboratory examination. 12 Meanwhile, on March 30, 1994, accused-appellant was formally charged with the special complex crime of rape with homicide in an information which reads: The undersigned 4th Assistant City Prosecutor accuses DELFIN RONDERO y Sigua, of Pugaro District, Dagupan City, of the crime of RAPE WITH HOMICIDE, committed as follows: That on or about the 26th day of March, 1994, in the city of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused DELFIN RONDERO y Sigua, did then and there, wilfully, unlawfully, criminally and forcibly have carnal knowledge with one MYLENE J. DORIA, a 9-year old girl, against her will and consent, and thereafter, with intent to kill, criminally and unlawfully employed violence against her person, thereby causing the death of said MYLENE J. DORIA, as evidenced by the Autopsy Report issued by Dr. Tomas G. Cornel, Asst. City Health Officer, this city, to the damage and prejudice of the legal heirs of said deceased, MYLENE J. DORIA in the amount of not less than FIFTY THOUSAND PESOS (P50,000.00), Philippine currency, and other consequential damages. Contrary to Article 335 in relation to Article 249 of the Revised Penal Code. Accused-appellant pleaded not guilty at his arraignment. In the meantime, the NBI sent a fax message to the Dagupan City Police Station saying that it could not conduct an examination on the hair strands because the proper comparative specimens were not given. The NBI suggested that hair strands be pulled, not cut, from the suspect and from the victim on the four regions of their heads so that all parts of the hair strands, from root to tip, may be presented. 13 Thereupon, accused-appellant, who executed a "waiver of detention" including a waiver of the provisions of Section 12, Article III of the Constitution on the rights of the accused during custodial investigation, 14was allegedly convinced by a certain Major Wendy Ocampo to give sample hair strands. Another police officer went to the Doria's residence to get hair samples from Mylene, who had not yet been interred. The hair strands taken from accused-appellant and the victim were later indorsed to the NBI for laboratory testing. 15 Comparative micro-physical examination on the specimens showed that the hair strands found on the right hand of the victim had similar characteristics to those of accused-appellant's, while the hair specimen taken from the crime scene showed similar characteristics to those of the victim's. 16 Alicia P. Liberato, the NBI Senior Forensic Chemist who

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conducted the microscopic examination on the hair samples, later reiterated the aforesaid findings in court. 17 At the trial, Dr. Cornel, the physician who conducted the autopsy on Mylene at around 9:30 o'clock in the morning of March 26, 1994, testified that the victim's death probably occurred before 11:00 o'clock in the evening of March 25, 1994 judging from the rigidity of her lower and upper extremities. He explained that the contusions and hematoma found on Mylene's body were possibly caused by a blunt instrument, a clenched fist or a piece of wood. 18 The lacerated wounds on her face may have been caused by a bladed instrument, not necessarily sharp, or by hitting her head on a concrete wall with jagged edges. The abrasions on her elbow, right buttock and upper hip may have been caused by a rough object that came in contact with her skin. 19 Dr. Cornel also explained that the victim's upper and lateral incisors may have been avulsed by a sudden blow in the mouth using a blunt instrument, stone or wood. He added that the fresh hymenal lacerations at 1:00 o'clock, 6:00 o'clock and 9:00 o'clock positions and the fresh laceration of the labia minora at 6:00 o'clock and 9:00 o'clock positions could have been caused either by sexual intercourse or by an object forcibly inserted in Mylene's vagina. 20 Accused-appellant resolved not to testify at the trial, opting instead to present his wife and his father as witnesses to account for his whereabouts on the night of the gruesome incident. Christine Gonzales, wife of accused-appellant, testified that on March 25, 1994, at around 7:00 o'clock in the evening, she had a quarrel with her husband. Accusedappellant was then slightly drunk and apparently irked when supper was not yet ready. He slapped his wife and shouted invectives at her, causing a disturbance in the neighborhood and prompting his father, who lived just a house away, to intervene. When accused-appellant refused to be pacified, his father hit him in the nose, mouth and different parts of the body. 21 His father left accused-appellant profusely bleeding. Accused-appellant then changed his blood-stained clothes and went to bed with his wife. It was a little after 8:00 o'clock in the evening. Christine woke up the next day at around 7:00 o'clock in the morning. She washed some clothes including the blood-stained ones her husband wore the night before. After doing the laundry, she went out to pay her father a visit. On her way back home, Christine was informed by a child that her husband was arrested by the police. Christine rushed home and found some policemen taking the newly washed undershirt and short pants of accused-appellant from the clothesline. The policemen brought Christine with them to the police headquarters for questioning. When asked about the blood on her husband's clothes, Christine told them about their quarrel the night before. 22 Accused-appellant's father, Leonardo Rondero, corroborated Christine's story. He testified that on the night in question, at around 7:00 o'clock in the evening, he was resting at home, located only a house away from his son's, when he heard the latter having a heated discussion with Christine. Embarrassed at the scene that his

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son was creating at such an hour, Leonardo went to the couple's house to pacify the slightly inebriated accused-appellant. Accused-appellant ignored his father and continued shouting at his wife. Leonardo then hit him several times causing his nose and mouth to bleed profusely that it stained his sando and short pants. Startled at the injuries that his son sustained, Leonardo went home. Early the next morning, March 26, 1994, at around 1:30 o'clock, Leonardo was awakened by his neighbor, Maximo Doria, who sought his assistance to search for his missing nineyear old daughter Mylene. Leonardo willingly obliged. Thus, Maximo, Leonardo and the barangay secretary searched the nearby houses for hours but failed to find Mylene. 23 On October 13, 1995, the trial court rendered judgment 24 convicting accusedappellant of the crime of murder and sentencing him to death. The dispositive portion of the decision reads: WHEREFORE: For the crime you had wilfully and deliberately committed, this court finds you guilty beyond reasonable doubt of the crime of murder defined and punished by Section 6 of Republic Act No. 7659, in relation to Article 248 of the Revised Penal Code, together with all its attendant aggravating circumstances without any mitigating circumstance of whatever nature. You, Delfin Rondero, are hereby therefore sentenced to die by electrocution pursuant to Article 81 of Republic Act No. 7659, for your heinous crime as charged in the information as a punishment and as an example to future offenders. You are hereby further ordered to indemnify the heirs of the victim by paying to them an amount of P60,000.00 for the loss of life of Mylene J. Doria; P15,000.00 for consequential damages and P100,000.00 as moral damages. May God have mercy on your soul. SO ORDERED. 25 Accused-appellant moved for reconsideration. On November 10, 1995, the trial court issued an order modifying its earlier decision, convicting accused-appellant of the crime of homicide and sentencing him to suffer the penalty of reclusion perpetua instead, on the ground that under Section 10 of Republic Act. No. 7610, otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," the penalty for homicide is reclusion perpetua when the victim is under twelve (12) years of age. 26 In this appeal, accused-appellant raises the following assignment of errors:

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I. THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF THE CRIME OF MURDER AMENDED TO HOMICIDE AND SENTENCING HIM TO SUFFER LIFE IMPRISONMENT (sic) AND TO INDEMNIFY THE AGGRIEVED PARTY IN THE AMOUNT OF P175,000.00 BASED ONLY ON CIRCUMSTANTIAL EVIDENCE. II. THE LOWER COURT COMMITTED GRAVE ERROR IN CONVICTING THE ACCUSED OF HOMICIDE. III. THE LOWER COURT COMMITTED GRAVE ERROR IN FINDING ACCUSED GUILTY TO (sic) THE CRIME OF HOMICIDE DESPITE ILLEGAL ARREST AND ILLEGAL DETENTION OF ACCUSEDAPPELLANT. 27 The appeal has no merit. Accused-appellant argues that the circumstantial evidence presented by the prosecution is not strong enough to sustain his conviction, asserting that Maximo Doria's testimony that he saw him about a meter away washing his bloodied hands at an artesian well was highly improbable inasmuch as it was dark at that time. Accused-appellant also considered it strange that when Maximo saw him, he did not bother to ask if he had seen Mylene. Finally, accused-appellant alleges that the slippers presented in court as evidence are not the same ones which were recovered at the scene of the crime since the pictures presented in court did not show the leaf painted in red on the left slipper. Sec. 4, Rule 133 of the Revised Rules of Court provides: Sec. 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstances; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in issue may be established by inference. 28 Such evidence is founded on experience and observed facts and coincidences establishing a connection between the known and proven facts and the facts sought to be proved. 29 Circumstantial evidence is sufficient for conviction in criminal cases when there is more than one circumstance, derived from facts duly given and the combination of all is such as to produce conviction beyond reasonable doubt. The

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test for accepting circumstantial evidence as proof of guilt beyond reasonable doubt is: the series of circumstances duly proved must be consistent with each other and that each and every circumstance must be consistent with the accused's guilt and inconsistent with his innocence. In the case at bar, the prosecution avers that there are several circumstances availing which, when pieced together, point to accused-appellant as the author of the gruesome crime committed on the night of March 25, 1994, to wit: 1. A few hours after the victim's probable time of death, Maximo saw accused-appellant, with an ice pick clenched in his mouth, washing his bloodied hands at an artesian well. 30 2 A pair of slippers which Maximo identified as belonging to accused-appellant was found at the scene of the crime. One was found beside the victim's body while the other was under her buttocks. 31 Maximo positively pointed to accused-appellant as the owner of the pair of slippers because of a distinguishing mark of the painting of a red leaf on the left slipper. Maximo said accused-appellant used to frequent their house wearing the same pair of slippers for over a year. 32 3. The hair strands which were found on Mylene's right hand and the hair strands taken from accusedappellant were shown to have similar characteristics when subjected to microscopic examination. 33 4. Accused-appellant's undershirt and short pants which he wore on the night of March 25, 1994 had bloodstains. His wife admitted having washed the undershirt and short pants in the early morning of March 26, 1994. 34 Contrary to the allegations of accused-appellant, the evidence presented by the prosecution is sufficient to sustain his conviction. Maximo stated on the witness stand that he was able to identify accused-appellant because he focused his flashlight on him while he was washing his bloodstained hands at an artesian well located only a meter away from where Maximo was standing. 35 Maximo considered it wise not to talk to accused-appellant because at that time he had an ice pick clenched in his mouth and looked slightly drunk. As to the allegation that the slippers presented in court were not the same ones recovered at the scene of the crime, suffice it to say that the photographs taken of the crime scene were not focused only on the pair of slippers; hence, the red leaf may be too minuscule to be noticed. In any case, the pair of slippers shown in the photographs corroborate the testimony of the prosecution's witnesses that a pair of rubber slippers were indeed recovered at the scene.

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It might not be amiss to note that Maximo was not shown to have had any motive to impute so grave a wrong on accused-appellant. Prior to the incident, accusedappellant used to frequent Maximo's house for a visit. 36 On the night of the incident, Maximo even sought the help of accused-appellant's father to search for Mylene. On the other hand, the testimonies of the witnesses for the defense are incredulous, to say the least. Leonardo Rondero, accused-appellant's father, testified that he mauled his son in an effort to pacify him during a heated altercation with his wife, Christine. Leonardo said that he felt embarrassed because his son was shouting invectives at Christine and was causing a scene in the neighborhood so he hit the accused-appellant several times. Leonardo's curious way of pacifying his son resulted in bodily injuries on the latter. Strangely, despite his sustained injuries and profuse bleeding, accused-appellant and his wife just went to sleep after Leonardo left. 37 We find it unnatural that a father, a barangay kagawad, would repeatedly hit his son in an effort to pacify him in the middle of a marital spat. We find it even more unnatural that one who was bleeding profusely would act so insouciant as to just go to sleep without attending to his injuries. Accused-appellant alleges that while in the custody of police officers, some hair strands were taken from him without his consent and submitted to the NBI for investigation, in violation of his right against self incrimination. Aside from executing a waiver of the provisions of Article 125 of the Revised Penal Code, accusedappellant executed a waiver of the provisions of Article III, Section 12 of the Constitution regarding the rights of an accused during custodial investigation. 38 It appears, however, that the waivers were executed by the accused without the assistance of a counsel of his own choice. The use of evidence against the accused obtained by virtue of his testimony or admission without the assistance of counsel while under custodial investigation is proscribed under Sections 12 and 17, Article III of the Constitution, to wit: Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

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Sec. 17. No person shall he compelled to be a witness against himself. The aforesaid rules are set forth in the Constitution as a recognition of the fact that the psychological if not physical atmosphere of custodial investigations in the absence of procedural safeguards is inherently coercive in nature. However, to paraphrase Justice Sanchez in the case of Chavez vs. Court of Appeals, 39 "Compulsion does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice or impair his capacity for making rational judgment would be sufficient. So is moral coercion tending to force testimony from the unwilling lips of the defendant." Needless to say, the above-mentioned provisions are an affirmation that "coercion can be mental as well as physical and that the blood of the accused is not the only hallmark of an unconstitutional inquisition." 40 It bears emphasis, however, that under the above-quoted provisions, what is actually proscribed is the use of physical or moral compulsion to extort communication from the accused-appellant and not the inclusion of his body in evidence when it may be material. For instance, substance emitted from the body of the accused may be received as evidence in prosecution for acts of lasciviousness 41 and morphine forced out of the mouth of the accused may also be used as evidence against him. 42 Consequently, although accused-appellant insists that hair samples were forcibly taken from him and submitted to the NBI for forensic examination, the hair samples may be admitted in evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from the accused under duress. On the other hand, the blood-stained undershirt and short pants taken from the accused are inadmissible in evidence. They were taken without the proper search warrant from the police officers. Accused-appellant's wife testified that the police officers, after arresting her husband in their house, took the garments from the clothesline without proper authority. 43 This was never rebutted by the prosecution. Under the libertarian exclusionary rule known as the "fruit of the poisonous tree," evidence illegally obtained by the state should not be used to gain other evidence because the illegally obtained evidence taints all evidence subsequently obtained. Simply put, accused-appellant's garments, having been seized in violation of his constitutional right against illegal searches and seizure, are inadmissible in court as evidence. Nevertheless, even without the admission of the bloodied garments of the accused as corroborative evidence, the circumstances obtaining against accused-appellant are sufficient to establish his guilt. Having disposed of the foregoing, we now come to the issue of whether accusedappellant should be convicted of the special complex crime of rape with homicide.

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It is a jurisprudential rule that an appeal throws a whole case to review and it becomes the duty of the appellate court to correct such error as may be found in the judgment appealed from whether they are made the subject of assigned errors or not. 44 The trial court dismissed the charge of rape holding that it has not been adequately proven due to the absence of spermatozoa in the victim's private part. It is well settled that the absence of spermatozoa in the victim's private part does not negate the commission of rape for the simple reason that the mere touching of the pudenda by the male organ is already considered as consummated rape. Mylene Doria was naked from waist down when she was found. Her private organ had hymenal lacerations at 1:00 o'clock, 6:00 o'clock and 9:00 o'clock positions. There were fresh lacerations in the labia minora at 6:00 o'clock and 9:00 o'clock positions as well. The trial judge even noted that "it can be conclusively deduced that her sex organ was subjected to a humiliating punishment." While the examining physician speculated that the lacerations could have been caused by a piece of wood or rounded object, he did not rule out the possibility of forcible sexual intercourse. The presence of physical injuries on the victim strongly indicates the employment of force on her person. Contusion was found on Mylene's face, arms and thighs. In rape cases, when a woman is forcibly made to lie down, she will utilize her elbow as the fulcrum so that abrasions will be observed. In an attempt to stand, the victim will flex her neck forward. The offender will then push her head backwards, causing hematoma at the region of the occiput. To prevent penetration of the male organ, she will try to flex her thighs and the offender will give a strong blow to the inner aspects of both thighs so that the victim will be compelled to straighten them. 45 As aptly observed by the Solicitor General, aside from the hymenal lacerations, the examining physician testified that Mylene sustained abrasions on her left elbow, right buttock and right upper hip and contusion hematoma at the occipital area, i.e., back part of the head, right side. 46 Indeed, the physical evidence indubitably tells a harrowing crime committed against nine-year old Mylene Doria in a manner that no words can sufficiently describe. Anent accused-appellant's third assignment of error, it might be true that accusedappellant's warrantless arrest was not lawful. The police officers who arrested him had no personal knowledge of facts indicating that he was the perpetrator of the crime just committed. His warrantless arrest was not based on a personal knowledge of the police officers indicating facts that he has committed the gruesome crime but solely on Maximo's suspicion that he was involved in the slaying of Mylene since he was seen washing his bloodied hands in the early morning of March 26, 1994. 47 Nevertheless, it is hornbook knowledge that any irregularity attending the arrest of an accused is deemed waived when, instead of quashing the information for lack of jurisdiction over his person, the accused voluntarily submits himself to the court by entering a plea of guilty or not guilty during the arraignment and participating in the proceedings.

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Finally, we reiterate that when an accused appeals from the sentence of the trial court, he waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court, which is then called to render judgment as the law and justice dictate, whether favorable or unfavorable, and whether they are made the subject of assigned errors or not. This precept should be borne in mind by every lawyer of an accused who unwittingly takes the risk involved when he decides to appeal his sentence. Accused-appellant's guilt having been established beyond reasonable doubt for the rape and brutal slaying of Mylene Doria, this Court has no other recourse but to impose the penalty of death upon accused-appellant Delfin Rondero y Sigua. Under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, "when by reason or on occasion of the rape, a homicide is committed, the penalty shall be death." At this juncture, it should be stated that four justices of the court have continued to maintain the unconstitutionality of R.A. No. 7659 insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority to the effect that this law is constitutional and that the death penalty can be lawfully imposed in the case at bar. The award of P50,000.00 as indemnity to the heirs of the victim is increased to P75,000.00 in line with our ruling in People vs. Mahinay. 48 The award of moral damages in the sum of P100,000.00 is reduced to P50,000.00. Further, accusedappellant is ordered to pay the sum of P15,000.00 as consequential damages. WHEREFORE, the decision of the Regional Trial Court, Branch 41, Dagupan City finding accused-appellant Delfin Rondero y Sigua guilty beyond reasonable doubt of the crime of homicide is MODIFIED. Accused-appellant Delfin Rondero y Sigua is found guilty beyond reasonable doubt of the charge of special complex crime of rape with homicide committed against Mylene J. Doria and is accordingly sentenced to suffer the supreme penalty of DEATH. He is also ordered to pay the heirs of the victim the sum of P75,000.00 by way of civil indemnity, P50,000.00 as moral damages and P15,000.00 as consequential damages. In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forwarded to the Office of the President for possible exercise of pardoning power. SO ORDERED.

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[G.R. No. 109242. January 26, 1999] LITO C. MARCELO, petitioner, vs. THE HON. SANDIGANBAYAN (First Division) and the PEOPLE OF THE PHILIPPINES, respondents. MENDOZA, J.: This is a petition for review on certiorari filed by Lito Marcelo from a decision of the Sandiganbayan (First Division)[1] convicting him and two others of qualified theft. The information against them alleges That on or about February 17, 1989, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused, ARNOLD PASICOLAN, a public officer, being then an Emergency Laborer assigned as bag opener at the printed matters section of Makati Central Post Office, and taking advantage of his official position by having access to the mail matters in conspiracy with accused RONNIE S. ROMERO and LITO MARCELO, both private individuals, did then and there wilfully, unlawfully and feloniously with grave abuse of confidence, and with intent of gain and without the consent of the owners thereof, take, steal and carry away from the Central Post office of Makati one bag containing assorted mail matters some of them containing U.S. Dollar Bills in the aggregate amount of $500, or its peso equivalent in the amount of P11,000.00, Philippine Currency, to the damage and prejudice of the different addressee (sic) or the government in the aforesaid mentioned (sic) amount. CONTRARY TO LAW. The facts established during the trial show the following: On February 10, 1989, Jacinto Merete, a letter carrier in the Makati Central Post Office, disclosed to his chief, Projecto Tumagan, the existence of a group responsible for the pilferage of mail matter in the post office. [2] Among those mentioned by Merete were Arnold Pasicolan, an emergency laborer assigned as a bag opener in the Printed Matters Section, and Redentor Aguinaldo, a mail sorter of the Makati Post Office. Merete likewise described the modus operandi of the group. For this reason, Tumagan sought the aid of the National Bureau of Investigation (NBI) in apprehending the group responsible for mail pilferage in the Makati Post Office. On February 17, 1989, NBI Director Salvador Ranin dispatched NBI agents to Legaspi Village following a report that the group would stage a theft of mail matter on that day. Tumagan accompanied a team of NBI agents composed of Senior Agent Arles Vela and two other agents in a private car. They arrived at Legaspi Village at about 1:00 p.m. They stayed at the corner of Adelantado and Gamboa Streets, while two other teams of NBI agents waited at Amorsolo Street, near the Esguerra Building.[3] At 2:00 p.m., a postal delivery jeep, driven by one Henry Orindai, was parked in front of the Esguerra Building on Adelantado Street.[4] Esguerra Building is located

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between Adelantado and Amorsolo Streets. Adelantado and Amorsolo Streets are parallel to each other. The passengers of the postal delivery jeep were Arnold Pasicolan, Jacinto Merete, and the driver, Henry Orindai.[5] Pasicolan alighted from the jeep bringing with him a mail bag. Merete stayed inside the jeep. Pasicolan then passed through an alley between Esguerra and Montepino Buildings going towards Amorsolo St.[6] Montepino Building is adjacent to Esguerra Building. The two are separated by the alley. Upon reaching Amorsolo St., Pasicolan gave the mail bag to two persons, who were later identified as Ronnie Romero and petitioner Lito Marcelo. The latter transferred the contents of the mail bag (i.e., assorted mail matter) to a travelling bag. The two then secured the bag to the back of their motorcycle.[7] Meanwhile, the NBI team led by agent Vela, upon seeing Pasicolan going towards Amorsolo St., moved their car and started towards Amorsolo St. They were just in time to see Pasicolan handing over the mail bag to Marcelo and Romero.[8] At that point, Atty. Sacaguing and Arles Vela arrested the two accused. Unaware of the arrest of Romero and Marcelo, Pasicolan went back to the postal delivery jeep and proceeded toward Pasay Road. The NBI agents followed the postal delivery jeep, overtook it, and arrested Pasicolan.[9] The NBI agents brought Pasicolan, Marcelo, and Romero to their headquarters. They also brought along with them the motorcycle of Romero and Marcelo and the bag of unsorted mail found in their possession.[10] On their way to the NBI headquarters, they passed by the Makati Central Post Office, intending to arrest another suspect, Redentor Aguinaldo. However, they were not able to find him there.[11] The unsorted mail seized from Marcelo and Romero consisted of 622 letters.[12] The names of the addressees were listed. They were subsequently notified by the Bureau of Posts to claim their letters.Many of them, after proper identification, were able to claim their letters. Some letters contained money. Romero, Marcelo, and Pasicolan were asked to affix their signatures on the envelopes of the letters. They did so in the presence of the members of the NBI Administrative and Investigative Staff and the people transacting business with the NBI at that time. According to Director Ranin, they required the accused to do this in order to identify the letters as the very same letters confiscated from them. [13] NBI Director Ranin allegedly saw US dollar bills in various denominations of 20, 50, and 100 dollars.[14] Vela and the other NBI agents stated in their affidavits that there were dollar bills in the letters which, if converted to Philippine pesos, at the then exchange rate of P22 to US $1, were worth P11,000.00.[15] The addressees agreed to leave the envelopes of the letters with the NBI. Those letters which were not claimed were opened in court in the presence of the counsel for the defense. The letters were found to contain three (3) one dollar bills, one (1) five dollar bill, one (1) twenty dollar bill, a check for twenty-five dollars, and fifty (50) Saudi Arabian riyals.[16] Arnold Pasicolan, Ronnie Romero, and herein petitioner Lito Marcelo were charged with infidelity in the custody of documents. The case was later withdrawn and another information for qualified theft was filed before the Sandiganbayan.

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On March 8, 1993, the Sandiganbayan found all the accused guilty beyond reasonable doubt as principals of the crime of qualified theft. The dispositive portion of its decision reads: WHEREFORE, the Court finds the three accused, Arnold Pasicolan y Mabazza, Ronnie Romero y Santos, and Lito Mercado [should be Marcelo] y Cruz, guilty, as principals, beyond reasonable doubt of the crime of qualified theft defined in Article 310, in conjunction with Articles 308 and 309, of the Revised Penal Code. Accordingly, applying the Indeterminate Sentence Law and considering the aggravating circumstances of taking advantage of public position, the Court imposes upon Arnold Pasicolan y Mabazza the penalty ranging from EIGHT (8) years, EIGHT (8) months, and ONE (1) day of Prision mayor, as minimum, to THIRTEEN (13) YEARS, ONE (1) month, and ELEVEN (11) days of reclusion temporal, as maximum. Applying again the Indeterminate Sentence Law and there being no aggravating nor mitigating circumstances, the Court imposes upon Ronnie Romero y Santos and Lito Marcelo y Cruz, the penalty ranging from SEVEN (7) YEARS, four (4) months, and ONE (1) day of prision mayor, as minimum, to eleven (11) years, SIX (6) months, and TWENTY-ONE (21) days of prision mayor, as maximum. Hence, the instant petition for review on certiorari based on the following assignment of errors: (1) Respondent Honorable Court had wrongly made the crucial finding against petitioner that he has committed the act charged in conspiracy with each other. (2) Respondent Honorable Court erred in admitting as evidence of petitioners guilt the letters signed by the accused during custodial investigation without the assistance of counsel, in utter disregard of his constitutional right. First. Petitioner says that since the subject of the alleged pilferage was mail matter, only a government employee may be held guilty of qualified theft unless a private individual was shown to have been in conspiracy with him. He contends that since he is not a government employee, then he cannot be charged or held guilty of the crime as there is no proof that he conspired with a postal employee. The petitioner argues that there is no evidence to prove that he was at any time in conspiracy with the members of the syndicate inside the post office. In fact, petitioner points out, Jacinto Merete, Projecto Tumagan, and his co-accused Arnold Pasicolan were one in saying that it was their first time to see him and Romero on February 17, 1989. Likewise, in the meeting allegedly conducted by the members of the syndicate, he and Romero were not around nor were their names mentioned. Petitioner says that although he and Romero knew each other, it was only on February 17, 1989 that they saw each other again in order to see a movie. We cannot understand petitioners theory that, as the subject of the pilferage was mail matter, only a government employee, presumably of the postal service, can be held liable of qualified theft. What makes the theft of mail matter qualified is the fact that the subject thereof is mail matter, regardless of whether the offender

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is a postal employee or a private individual. This much is clear from Art. 310 of the Revised Penal Code which provides: Qualified theft. The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. Thus, as long as the thing stolen is one of those enumerated in Art. 310, the crime is qualified theft. In this case, it is mail matter. Hence, it is not necessary that petitioner be shown to have been inconspiracy with a government employee in order to hold him liable for qualified theft. Be that as it may, conspiracy was proven in this case. NBI agent Arles Vela testified that petitioner was instrumental in transferring the contents of the mail bag which Pasicolan handed to them to their travelling bag and that afterward petitioner and his co-accused Romero tied the bag to their motorcycle. Velas testimony was corroborated by Projecto Tumagan, who likewise testified that Romero and Marcelo transferred the contents of the mail bag to their bags. Although Tumagan said petitioner and Romero had two bags, thus contradicting Velas testimony that petitioner and his co-accused had only one bag, the inconsistency in the testimonies of these two prosecution witnesses is not really of much importance. What is important is that Tumagan corroborated Velas testimony that petitioner helped in putting the letters in their bag. The discrepancy could be due to the fact that these two witnesses were inside a car and were at some distance from the persons they were observing. At any rate, during the crossexamination, Tumagan said that the contents of the mail bag were transferred to one other bagimplying that there was really just one bag involved.[17] Moreover, the defense should have confronted Tumagan with this inconsistency and asked him to explain. For its failure to do so, the defense cannot for the first time raise the point in this appeal. Petitioner Marcelo showed no sign of surprise or hesitation when Pasicolan handed the mail bag to him and Romero. It was apparent he was acting pursuant to a prior agreement because when the mail bag was given to him, he got the bag and he and Romero then transferred its contents to their travelling bag. Petitioner acted in concert with Pasicolan and Romero, thus indicating he was in conspiracy with them. As the Sandiganbayan said: The accused appear to have committed the acts charged in conspiracy with each other pursuant to a pre-conceived plan known to all of them to attain a common goal. Thus, when the postal delivery jeep stopped near Esguerra Building along Adelantado Street, Pasicolan alighted bringing with him a mail bag, passed through an alley beside Esquerra Building, and upon reaching Amorsolo Street handed over the mail bag to Romero and Marcelo who were waiting for

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him. Upon receiving the mail bag they quickly opened it and transferred its contents to a bag which Aguinaldo provided for the purpose. No words were exchanged between Pasicolan, on the other hand, and Romero and Marcelo, on the other, in effecting the delivery. Pasicolan did not ask if Romero and/or Marcelo were the person or persons sent to receive the mail bag. These facts indicate that the three accused already knew each other and were fully aware of what each had to do. And when Romero and Marcelo were arrested for receiving the mail bag, they said nothing to the NBI. Not even a whimper of protest was heard from them. They appear resigned to their fate after having been caught red-handed. Petitioner Marcelo claimed that he and Romero met on February 17, 1989 in order to see a movie; that when Pasicolan handed four envelopes to Romero, he was across the street buying cigarettes; and that when he joined Romero, a person identifying himself as an NBI agent arrested them. Marcelo testified:[18] ATTY. CRUZ Q So you were asked by Ronnie Romero if you will be reporting for work at that time? A Yes, sir. JUSTICE HERMOSISIMA Q What time was this when you were asked by Ronnie Romero? A 1:00 oclock in the afternoon. ATTY. CRUZ Q What was the reason why you were asked by Ronnie Romero? A He wanted me to go with him to see a movie. Q Did he tell you at what place you will see a movie? A No, sir. Q What was your reply? A I told him yes, I will go with you, anyway I have to go to my work at 10:00 oclock in the evening. .... Q What happened next Mr. Marcelo? A Then I rode at the back of his motorcycle and we went straight to Makati. Suddenly we stopped near a building and I asked him what we will do there and he told me he was going to wait for somebody there. .... ATTY. CRUZ Q What was told to you when you reached there?

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WITNESS A He told me he had to wait for somebody there and I told him to hurry up, I thought you said we are going to see a movie, and he said, this will not take long. Q While at Taguig, were you informed by Ronnie Romero that you will be waiting for somebody when you reached Makati? A No, sir. .... Q And what happened next? A While we were there I told Ronnie Romero I had to buy cigarette from across the street and after a while, about half an hour, Ronnie called me I saw somebody handing him about four pieces of envelopes. Q How would you describe that envelope? A It was like the Manila envelope that we see being used by the elementary grades. Q Was there any distinguishing mark in this envelope? A No, sir. Q Were you able to see what was the contents of these envelopes? A No, sir. Q That person who handed the envelope to Ronnie, do you know him? A I do not know him. Q While that envelope was being handed to Ronnie, you mean to say you were across the street? A Yes, sir. Q And so you crossed the street to reach Ronnie? A Yes, sir. Q When you crossed the street was the envelope still being handed or already handed to Ronnie? A It was already handed to him. Q What happened next? A After I crossed the street somebody shouted at us identifying himself as NBI, WE are from the NBI, do not move. The foregoing testimony is contrary to the testimony of Ronnie Romero. Romero said that Redentor Aguinaldo, a mail sorter, had asked him to meet a person in

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Makati who would give him an envelope to be delivered to an unidentified person at the BF Homes Subdivision in Paraaque. Romeros version is as follows:[19] ATTY. I. CRUZ: Q And do you know a certain person by the name of Redentor Aguinaldo? JUSTICE HERMOSISIMA: Q The accusation against you is that you conspired with your co-accused Arnold Pasicolan and Lito Marcelo in stealing the articles and things stated in the Information. Why do you say that you are not part of the conspiracy, what do you mean by that statement? A Because, sir, I do not know what was the contents of the envelope. You can proceed now. ATTY. I. CRUZ: Q You mentioned of an envelope which you claim not to have known the contents of the same. Who gave you the envelope? A Arnold Pasicolan. Q Do you know Arnold Pasicolan prior to and/or before February 17, 1989? .... A No, sir. ATTY. I. CRUZ: Q When for the first time did you come to know Arnold Pasicolan? A On February 17, sir. Q When, where specifically did you come to know him? A At the NBI office, sir. Q Now... JUSTICE HERMOSISIMA: Q February 17, 1989? A Yes, Your Honor. Proceed. .... ATTY. I. CRUZ: Q Do you know a certain Redentor Aguinaldo? A Yes, sir.

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JUSTICE HERMOSISIMA: Q Tell us the circumstances under which you received this envelope? A I received that envelope given to me by Arnold Pasicolan. Q If you answer in monosyllable we will not understand. Alright, you tell your story? A Redentor Aguinaldo on February 17 told me that he is going to give me a job. What I will do is get the envelope and bring it to a certain subdivision in Las Pias and somebody will pick it up and pay me P100.00 for it. Proceed. ATTY. I. CRUZ: Q Now, do you know the person to whom you are to deliver the envelope? A No, sir. Q Now, if you do now know the person to whom you will deliver the envelope. JUSTICE HERMOSISIMA: You may not cross-examine, tell him to tell us facts. ATTY. I. CRUZ: Q Where specifically in the subdivision in Paraaque where you will deliver the envelope? A BF Homes. JUSTICE HERMOSISIMA: Q To what particular person will you supposed to deliver it? A I was just asked to go to that place and somebody will approach me. Q To make your story more believable, BF Homes in Paraaque is a very big subdivision. You enter that subdivision and there will be several persons whom you can see there. How will the person know that you are carrying an envelope for him. Where were you supposed to deliver it. If you cannot explain that, we will not believe you? A In that subdivision, there is a vacant place where there are no houses. It is where I often go. Q BF Homes subdivision in Paraaque has several vacant lots, how will you know what vacant lot to proceed to? A It was pointed to me by Aguinaldo. Q So, Aguinaldo went with you in the morning of that same day and pointed to you the place? A In the morning of that same day and he pointed to me the place.

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Second. The petitioner contends that the Sandiganbayan erred in admitting in evidence the letters signed by him because he was asked to sign them during custodial investigation without the assistance of counsel. The following provisions of the Constitution are invoked by petitioner: Article III, 12(1). - Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. 17. No person shall be compelled to be a witness against himself. Petitioners counsel says that the signing of petitioners and his co-accuseds names was not a mere mechanical act but one which required the use of intelligence and therefore constitutes self-incrimination. Petitioners counsel presumably has in mind the ruling in Beltran v. Samson[20] to the effect that the prohibition against compelling a man to be a witness against himself extends to any attempt to compel the accused to furnish a specimen of his handwriting for the purpose of comparing it with the handwriting in a document in a prosecution for falsification. Writing is something more than moving the body, or the hand, or the fingers; writing is not a purely mechanical act because it requires the application of intelligence and attention,[21] so it was held. To be sure, the use of specimen handwriting in Beltran is different from the use of petitioners signature in this case. In that case, the purpose was to show that the specimen handwriting matched the handwriting in the document alleged to have been falsified and thereby show that the accused was the author of the crime (falsification) while in this case the purpose for securing the signature of petitioner on the envelopes was merely to authenticate the envelopes as the ones seized from him and Ronnie Romero. However, this purpose and petitioners signatures on the envelope, when coupled with the testimony of prosecution witnesses that the envelopes seized from petitioner were those given to him and Romero, undoubtedly help establish the guilt of petitioner. Since these signatures are actually evidence of admission obtained from petitioner and his co-accused under circumstances contemplated in Art. III, 12(1) and 17 of the Constitution, they should be excluded. For indeed, petitioner and his co-accused signed following their arrest. Hence, they were at the time under custodial investigation, defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in a significant way.[22] Under the Constitution, among the rights of a person under custodial investigation is the right to have competent and independent counsel preferably of his own choice and if the person cannot afford the services of counsel, that he must be provided with one. However, the letters are themselves not inadmissible in evidence. The letters were validly seized from petitioner and Romero as an incident of a valid arrest. A

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ruling that petitioners admission that the letters in question were those seized from him and his companion on February 17, 1989 is inadmissible in evidence does not extend to the exclusion from evidence of the letters themselves. The letters can stand on their own, being the fruits of a crime validly seized during a lawful arrest. That these letters were the ones found in the possession of petitioner and his companion and seized from them was shown by the testimonies of Vela and Tumagan. Indeed, petitioner and his co-accused were not convicted solely on the basis of the signatures found on the letters but on other evidence, notably the testimonies of NBI agents and other prosecution witnesses. WHEREFORE, the decision of the Sandiganbayan is AFFIRMED. SO ORDERED.

G.R. No. 89914 November 20, 1991 JOSE F.S. BENGZON JR., ABELARDO TERMULO, JOSE MANTECON, VICENTE MILLS JR., LEONARDO GAMBOA, KURT BACHMANN JR., JOSE V.E. JIMENEZ, ERNESTO CALUYA, AGERICO UNGSON, SUSAN ROXAS, ELVIE CASTILLO, and CYNTHIA SABIDO LIMJAP, petitioners, vs. THE SENATE BLUE RIBBON COMMITTEE AND ITS MEMBERS, represented by and through the CHAIRMAN, HON. WIGBERTO TAÑADA, respondents, JOSE S. SANDEJAS, intervenor. PADILLA, J.: This is a petition for prohibition with prayer for the issuance of a temporary restraining order and/or injuective relief, to enjoin the respondent Senate Blue Ribbon committee from requiring the petitioners to testify and produce evidence at its inquiry into the alleged sale of the equity of Benjamin "Kokoy" Romualdez to the Lopa Group in thirty-six (36) or thirty-nine (39) corporations. On 30 July 1987, the Republic of the Philippines, represented by the Presidential Commission on Good Government (PCGG), assisted by the Solicitor General, filed with the Sandiganbayan Civil Case No. 0035 (PCGG Case No. 35) entitled "Republic of the Philippines vs. Benjamin "Kokoy" Romualdez, et al.", for reconveyance, reversion, accounting, restitution and damages. The complaint was amended several times by impleading new defendants and/or amplifying the allegations therein. Under the Second Amended Complaint, 1 the herein petitioners were impleaded as party defendants. The complaint insofar as pertinent to herein petitioners, as defendants, alleges among others that:

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14. Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez Romualdez, acting by themselves and/or in unlawful concert with Defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking undue advantage of their relationship, influence and connection with the latter Defendant spouses, engaged in devices, schemes and strategems to unjuestly enrigh themselves at the expense of Plaintiff and the Filipino people, among others: (a) Obatained, with the active collaboration of Defendants Sene J. Gabaldon, Mario D. Camacho, Mamerto Nepomuceno, Carlos J. Valdez, Cesar C. Zalamea and Francisco Tantuico, Atty. Jose Bengzon, Jr. and his law partners, namely: Edilberto S. Narciso, Jr., Jose Vicente E. Jimenez, Amando V. Faustino, Jr., and Leonardo C. Cruz; Jose S. Sandejas and his fellow senior managers of FMMC/PNI Holdings groups of companies such as Leonardo Gamboa, Vicente T. Mills, Jr., Jose M. Mantecon, Abelardo S. Termulo, Rex C. Drilon II and Kurt Bachmann, Jr., control of some of the biggest business enterprises in the Philippines, such as the Manila Corporation (MERALCO), Benguet Consolidated and the Philippine Commercial International Bank (PCI Bank) by employing devious financial schemes and techniques calculated to require the massive infusion and hemorrhage of government funds with minimum or negligible "cashout" from Defendant Benjamin Romualdez... (m) manipulated, with the support, assistance and collaboration of Philgurantee officials led by chairman Cesar E.A. Virata and the Senior managers of FMMC/PNI Holdings, Inc. led by Jose S. Sandejas, Jr., Jose M. Mantecom and Kurt S. Bachmann, Jr., among others, the formation of Erectors Holdings, Inc. without infusing additional capital solely for the purpose of Erectors Incorporated with Philguarantee in the amount of P527,387,440.71 with insufficient securities/collaterals just to enable Erectors Inc, to appear viable and to borrow more capitals, so much so that its obligation with Philgurantee has reached a total of more than P2 Billion as of June 30, 1987. (n) at the onset of the present Administration and/or within the week following the February 1986 People's Revolution, in conspiracy with, supoort, assistance and collaboration of the abovenamed lawyers of the Bengzon Law Offices, or specifically Defendants Jose F.S. Bengzon, Jr., V.E. Jimenez, Amando V. Faustino, Jr., and Edilberto S. Narciso, Jr., manipulated, shcemed, and/or executed a series of devices intended to conceal and place, and/or for the purpose of concealing and placing, beyond the inquiry and jurisdiction of the Presidential Commission on Good Government (PCGG) herein Defendant's individual and collective funds, properties, and assets subject of and/or suited int he instant Complaint.

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(o) manuevered, with the technical know-how and legalitic talents of the FMMC senior manager and some of the Bengzon law partners, such as Attys. Jose F.S. Bengzon, Jr., Edilberto S. Narciso, Jr., Amando V. Faustino, Jose Vicente E. Jimenez and Leonardo C. Cruz, the purported sale of defendant Benjamin Romualdez's interests in the (i) Professional Managers, (ii) A & E International Corporation (A & E), (iii) First Manila Managerment Corporation (FMMC), (iv) Philippine World Travel Inc. (PWTI) and its subsidiaries consisting of 36 corporations in all, to PNI Holdings, Inc. (wjose purported incorporations are all members of Atty. Jose F.S. Bengzon's law firm) for only P5 million on March 3, 1986 or three days after the creation of the Presidential Commission on Good Government on February 28, 1986, for the sole purpose of deceiving and preempting the Government, particularly the PCGG, and making it appear that defendant Benjamin Romualdez had already divested himself of his ownership of the same when in truth and in fact, his interests are well intact and being protected by Atty. Jose F.S. Bengzon, Jr. and some of his law partners, together with the FMMC senior managers who still control and run the affiars of said corporations, and in order to entice the PCGG to approve the said fictitious sale, the above-named defendants offered P20 million as "donation" to the Government; (p) misused, with the connivance, support and technical assitance of the Bengzon law firm represented by Atty. Jose F.S. Bengzon, Jr. as legal counsel, together with defendants Cesar Zalamea, Antonio Ozaeta, Mario D. Camacho amd Senen J. Gabaldon as members of the Board of Directors of the Philippine Commercial International bank (PCIB), the Meralco Pension Fund (Fund, for short) in the amount of P25 million by cuasing it to be invested in the PCIB and through the Bank's TSG, assigned to PCI Development and PCI Equity at 50% each, the Fund's (a) 8,028.011 common shares in the Bank and (b) "Deposit in Subscription" in the amount of P4,929.972.50 but of the agreed consideration of P28 million for the said assignment, PCI Development and PCI Equity were able to pay only P5,500.00 downpayment and the first amortization of P3,937,500.00 thus prompting the Fund to rescind its assignment, and the consequent reversion of the assigned brought the total shareholding of the Fund to 11,470,555 voting shares or 36.8% of the voting stock of the PCIB, and this development (which the defendants themselves orchestrated or allowed to happen) was used by them as an excuse for the unlawful dismantling or cancellation of the Fund's 10 million shares for allegedly exceeding the 30-percent ceiling prescribed by Section 12-B of the General Banking Act, although they know for a fact that what the law declares as unlawful and void ab initio are the subscriptions in excess of the 30% ceiling "to the extent of the excess over any of the ceilings prescribed ..." and not the whole or entire stockholding which they allowed to stay for six years (from June 30, 1980 to March 24, 1986);

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(q) cleverly hid behind the veil of corporate entity, through the use of the names and managerial expertise of the FMMC senior manager and lawyers identified as Jose B. Sandejas, Leonardo Gamboa, Vicente T. Mills, Abelardo S, Termulo, Edilberto S. Narciso, Jr., Jose M. Mantecon, Rex C. Drilon II, Kurt Bachmann, Jr. together with the legal talents of corporate lawyers, such as Attys. Jose F.S. Bengzon, Jr., Jose V.E. Jimenez, Amando V. Faustino, Jr., and Leonardo C. Cruz, the illgotten wealth of Benjamin T. Romualdez including, among others, the 6,229,177 shares in PCIB registered in the names of Trans Middle East Phils. Equities, Inc. and Edilberto S. Narciso, Jr. which they refused to surrender to PCGG despite their disclosure as they tried and continue to exert efforts in getting hold of the same as well as the shares in Benguet registered in the names of Palm Avenue Holdings and Palm Avenue Realty Development Corp. purportedly to be applied as payment for the claim of P70 million of a "merger company of the First Manila Managerment Corp. group" supposedly owned by them although the truth is that all the said firms are still beneficially owned by defendants Benjamin Romualdez. On 28 September 1988, petitioner (as defendants) filed their respective answers. 2 Meanwhile, from 2 to 6 August 1988, conflicting reports on the disposition by the PCGG of the "Romualdez corporations" were carried in various metropolitan newspapers. Thus, one newspaper reported that the Romuladez firms had not been sequestered because of the opposition of certain PCGG officials who "had worked prviously as lawyers of the Marcos crony firms." Another daily reported otherwise, while others declared that on 3 March 1986, or shortly after the EDSA February 1986 revolution, the Romualdez companies" were sold for P5 million, without PCGG approval, to a holding company controlled by Romualdez, and that Ricardo Lopa, the President's brother-in-law, had effectively taken over the firms, even pending negotiations for the purchase of the corporations, for the same price of P5 million which was reportedly way below the fair value of their assets. 3 On 13 September 1988, the Senate Minority Floor Leader, Hon. Juan Ponce Enrile delivered a speech "on a matter of personal privilege" before the Senate on the alleged "take-over personal privilege" before the Senate on the alleged "take-over of SOLOIL Incorporated, the flaship of the First Manila Management of Companies (FMMC) by Ricardo Lopa" and called upon "the Senate to look into the possible violation of the law in the case, particularly with regard to Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act." 4

On motion of Senator Orlando Mercado, the matter was referred by the Senate to the Committee on Accountability of Public Officers (Blue Ribbon Committee). 5Thereafter,

the Senate Blue Ribbon Committee started its investigation on the matter. Petitioners and Ricardo Lopa were subpoenaed by the Committee to appear before it and testify on "what they know" regarding the "sale of thirty-six (36) corporations belonging to Benjamin "Kokoy" Romualdez."

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At the hearing held on 23 May 1989, Ricardo Lopa declined to testify on the ground that his testimony may "unduly prejudice" the defendants in Civil Case No. 0035 before the Sandiganbayan. Petitioner Jose F.S. Bengzon, Jr. likewise refused to testify involing his constitutional right to due process, and averring that the publicity generated by respondents Committee's inquiry could adversely affect his rights as well as those of the other petitioners who are his co-defendants in Civil Case No. 0035 before the Sandiganbayan. The Senate Blue Ribbon Committee, thereupon, suspended its inquiry and directed the petitioners to file their memorandum on the constitutional issues raised, after which, it issued a resolution 6 dated 5 June 1989 rejecting the petitioner's plea to be excused from testifying, and the Committee voted to pursue and continue its investigation of the matter. Senator Neptali Gonzales dissented. 7 Claiming that the Senate Blue Ribbon Committee is poied to subpoena them and required their attendance and testimony in proceedings before the Committee, in excess of its jurisdiction and legislative purpose, in clear and blatant disregard of their constitutional rights, and to their grave and irreparable damager, prejudice and injury, and that there is no appeal nor any other plain, speedy and adequate remedy in the ordinary course of law, the petitioners filed the present petition for prohibition with a prayer for temporary restraning order and/or injunctive relief.

Meanwhile, one of the defendants in Civil Case No. 0035 before the Sandiganbayan, Jose S. Sandejas, filed

which the Court granted in the resolution 9 of 21 December 1989, and required the respondent Senate Blue Ribbon Committee to comment on the petition in intervention. In compliance, therewith, respondent Senate Blue Ribbon Committee filed its comment 10 thereon. with the Court of motion for intervention, 8

Before discussing the issues raised by petitioner and intervenor, we will first tackle the jurisdictional question raised by the respondent Committee. In its comment, respondent Committee claims that this court cannot properly inquire into the motives of the lawmakers in conducting legislative investigations, much less cna it enjoin the Congress or any its regular and special commitees — like what petitioners seek — from making inquiries in aid of legislation, under the doctrine of separation of powers, which obtaines in our present system of government. The contention is untenable. In Angara vs. Electoral Commission, Court held:

11

the

The separation of powers is a fundamental principle in our system of government. It obtains not hrough express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters wihtin its

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jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government... But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The ovelapping and interlacing of funcstions and duties between the several deaprtments, however, sometimes makes it hard to say just where the political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated, in cases of conflict, the judicial departments is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries; it does not assert any superiority over the other departments; it does not inr eality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by tyhe Constitution to determine conflicting claims of authority under the Constitution and to established for the parties in an actual controversy the rights which that instrument secures and guarantess to them. This is in thruth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even the, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More thatn that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also becuase the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.

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The "allocation of constituional boundaries" is a task that this Court must perfomr under the Constitution. Moreowever, as held in a recent case, 12 "(t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with kthe applicability of the principle in appropriate cases." 13

The Court is thus of the considered view that it has jurisdiction over the present controversy for the purpose of determining the scope and extent of the power of the Senate Blue Ribbon Committee to conduct inquiries into private affirs in purported aid of legislation.

Coming to the specific issues raised in this case, petitioners contend that (1) the Senate Blue Ribbon Committee's inquiry has no valid legislative purpose, i.e., it is not done in aid of legislation; (2) the sale or disposition of hte Romualdez corporations is a "purely private transaction" which is beyond the power of the Senate Blue Ribbon Committee to inquire into; and (3) the inquiry violates their right to due process.

The 1987 Constition expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. 14

Thus, Section 21, Article VI thereof provides:

The Senate or the House of Representatives or any of its respective committee may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. 15 The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore, absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in accordance with its duly published rules of procedure" and that "the rights of persons appearing in or affected by such inquiries shall be respected." It follows then that the rights of persons under the Bill of Rights must be respected, including the right to due process and the right not to be compelled to testify against one's self.

The power to conduct formal inquiries or investigations in specifically provided for in Sec. 1 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation. Such inquiries may refer to the implementation or reexamination of any law or in connection with any proposed legislation or the formulation of future legislation. They may also extend to any and all matters vested by the Constitution in Congress and/or in the Seante alone.

the inquiry, to be within the jurisdiction of the legislative body making it, must be material or necessary to the exervise of a power in it vested by the Constitution, such as to legislate or to expel a member. As held in Jean L. Arnault vs. Leon Nazareno, et al., 16

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Under Sec. 4 of the aforementioned Rules, the Senate may refer to any committee or committees any speech or resolution filed by any Senator which in tis judgment requires an appropriate inquiry in aid of legislation. In order therefore to ascertain the character or nature of an inquiry, resort must be had to the speech or resolution under which such an inquiry is proposed to be made. A perusal of the speech of Senator Enrile reveals that he (Senator Enrile) made a statement which was published in various newspapers on 2 September 1988 accusing Mr. Ricardo "Baby" Lopa of "having taken over the FMMC Group of Companies." As a consequence thereof, Mr. Lopa wrote a letter to Senator Enrile on 4 September 1988 categorically denying that he had "taken over " the FMMC Group of Companies; that former PCGG Chairman Ramon Diaz himself categorically stated in a telecast interview by Mr. Luis Beltran on Channel 7 on 31 August 1988 that there has been no takeover by him (Lopa); and that theses repeated allegations of a "takeover" on his (Lopa's) part of FMMC are baseless as they are malicious. The Lopa reply prompted Senator Enrile, during the session of the Senate on 13 September 1988, to avail of the privilege hour, 17 so that he could repond to the said Lopa letter, and also to vindicate his reputation as a Member of the Senate of the Philippines, considering the claim of Mr. Lopa that his (Enrile's) charges that he (Lopa) had taken over the FMMC Group of Companies are "baseless" and "malicious." Thus, in his speech, 18Senator Enrile said, among others, as follows: Mr. President, I rise this afternnon on a matter of personal privilege; the privilege being that I received, Mr. President, a letter dated September 4, 1988, signed by Mr. ricardo A. Lopa, a.k.a. or Baby Lopa, wherein he denied categorically that he has taken over the First Manila Management Group of Companies which includes SOLOIL Incorporated. In answer to Mr. Lopa, I will quote pertinent portions from an Official Memorandum to the Presidential Commission of Good Government written and signed by former Governor, now Congressman Jose Ramirez, in his capacity as head of the PCGG Task Force for Region VIII. In his memorandum dated July 3, 1986, then Governor Ramirez stated that when he and the members of his task force sought to serve a sequestration order on the management of SOLOIL in Tanauan, Leyte, management officials assured him that relatives of the President of the Philippines were personally discussing and representing SOLOIL so that the order of sequestration would be lifted and that the new owner was Mr. Ricardo A. Lopa. I will quote the pertinent portions in the Ramire's memorandum.

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The first paragraph of the memorandum reads as follows and I quote, Mr. President: "Our sequestration work of SOLOIL in Tanauan, Leyte was not heeded by management because they said another representation was being made to this Commission for the ventual lifting of our sequestrationorder. They even assured us that Mr. Ricardo Lopa and Peping Cojunangco were personally discussing and representing SOLOIL, so the order of sequestration will finally be lifted. While we attempted to carry on our order, management refused to cooperate and vehemently turned down our request to make available to us the records of the company. In fact it was obviously clear that they will meet us with forcethe moment we insist on doing normally our assigned task. In view of the impending threat, and to avoid any untoward incident we decided to temporarily suspend our work until there is a more categorical stand of this Commission in view of the seemingly influential represetation being made by SOLOIL for us not to continue our work." Another pertinent portion of the same memorandum is paragraph five, which reads as follows, and I quote Mr. President: "The President, Mr. Gamboa, this is, I understand, the President of SOLOIL, and the Plant Superintendent, Mr. Jimenez including their chief counsel, Atty. Mandong Mendiola are now saying that there have been divestment, and that the new owner is now Mr. Ricardo Lopa who according to them, is the brother-in-law of the President. They even went further by telling us that even Peping Cojuangco who we know is the brother of her excellency is also interested in the ownership and management of SOLOIL. When he demanded for supporting papers which will indicate aforesaid divestment, Messrs. Gamboa, Jimenez and Mendiola refused vehemently to submit these papers to us, instead they said it will be submitted directly to this Commission. To our mind their continuous dropping of names is not good for this Commission and even to the President if our dersire is to achieve respectability and stability of the government." The contents of the memorandum of then Governor and now Congressman Jose Ramirez were personally confirmed by him in a news interview last September 7, 1988.

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Also relevant to this case, Mr. President, is a letter of Mr. Ricardo Lopa himself in August 11, 1988 issue of the newspaper Malaya headlined "On Alleged Takeover of Romualdez Firms." Mr. Lopa states in the last paragraph of the published letter and I quote him: 12. As of this writing, the sales agreement is under review by the PCGG solely to determine the appropriate price. The sale of these companies and our prior rigtht to requires them have never been at issue. Perhaps I could not make it any clearer to Mr. Lopa that I was not really making baseless and malicious statements. Senator Enrile concluded his privilege speech in the following tenor: Mr. President, it may be worthwhile for the Senate to look into the possible violation of the law in the case particularly with regard to Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, Section 5 of which reads as follows and I quote: Sec. 5. Prohibition on certain relatives. — It shall be unlawful for the spouse or for nay relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene directly or indirectly, in any business, transaction, contract or application with the Government: Provided, that this section shall not apply to any person who prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application filed by him for approval of which is not discretionary on the part of the officials concerned but depends upon compliance with requisites provided by law, nor to any act lawfully performed in an official capacity or in the exercise of a profession. Mr. President, I have done duty to this Senate and to myself. I leave it to this august Body to make its own conclusion. Verily, the speech of Senator Enrile contained no suggestion of contemplated legislation; he merely called upon the Senate to look into a

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possible violation of Sec. 5 of RA No. 3019, otherwise known as "The AntiGraft and Corrupt Practices Act." I other words, the purpose of the inquiry to be conducted by respondent Blue Ribbon commitee was to find out whether or not the relatives of President Aquino, particularly Mr. ricardo Lopa, had violated the law in connection with the alleged sale of the 36 or 39 corporations belonging to Benjamin "Kokoy" Romualdez to the Lopaa Group. There appears to be, therefore, no intended legislation involved. The Court is also not impressed with the respondent Committee's argument that the questioned inquiry is to be conducted pursuant to Senate Resolution No. 212. The said resolution was introduced by Senator Jose D. Lina in view of the representaions made by leaders of school youth, community groups and youth of non-governmental organizations to the Senate Committee on Youth and Sports Development, to look into the charges against the PCGG filed by three (3) stockholders of Oriental petroleum, i.e., that it has adopted a "get-rich-quick scheme" for its nominee-directors in a sequestered oil exploration firm.The pertinent portion of Senate Resolution No. 212 reads as follows: WHEREAS, recent developments have shown that no less than the Solicitor-General has stated that the PCGG Chairman and at least three Commissioners should resign and that the agency should rid itself of "ineptness, incompetence and corruption" and that the Sandiganbayan has reportedly ordered the PCGG to answer charges filed by three stockholders of Oriental Petroleum that it has adopted a "get-rich-quick scheme" for its nominee-directors in a sequestered oil exploration firm; WHEREAS, leaders of school youth, community groups and youth of non-governmental organization had made representations to the Senate Committee on Youth and Sports Development to look into the charges against the PCGG since said agency is a symbol of the changes expected by the people when the EDSA revolution took place and that the ill-gotten wealth to be recovered will fund priority projects which will benefit our people such as CARP, free education in the elementary and secondary levels reforestration, and employment generation for rural and urban workers; WHEREAS, the government and the present leadeship must demonstrate in their public and private lives integrity, honor and efficient management of government services lest our youth become disillusioned and lose hope and return to an Idelogy and form of government which is repugnant to true freedom, democratic participation and human rights: Now, therefore, be it. Resolved by the Senate, That the activities of the Presidential Commission on Good Government be investigated by the

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appropriate Committee in connection with the implementation of Section 26, Article XVIII of the Constitution. 19 Thus, the inquiry under Senate Resolution No. 212 is to look into the charges against the PCGG filed by the three (3) stockholders of Oriental Petroleum in connection with the implementation of Section 26, Article XVIII of the Constitution.

It cannot, therefore, be said that the contemplated inquiry on the subject of the privilege speech of Senator Juan Ponce Enrile, i.e., the alleged sale of the 36 (or 39) corporations belonging to Benjamin "Kokoy" Romualdez to the Lopa Group is to be conducted pursuant to Senate Resolution No. 212 because, firstly, Senator Enrile did not indict the PCGG, and, secondly, neither Mr. Ricardo Lopa nor the herein petitioners are connected with the government but are private citizens.

It appeals, therefore, that the contemplated inquiry by respondent Committee is not really "in aid of legislation" becuase it is not related to a purpose within the jurisdiction of Congress, since the aim of the investigation is to find out whether or not the ralatives of the President or Mr. Ricardo Lopa had violated Section 5 RA No. 3019, the "Anti-Graft and Corrupt Practices Act", a matter that appears more within the province of the courts rather than of the legislature. Besides, the Court may take judicial notice that Mr. Ricardo Lopa died during the pendency of this case. In John T. Watkins vs. United States, 20

it was held held:

... The power of congress to conduct investigations in inherent in the legislative process. That power is broad. it encompasses inquiries concerning the administration of existing laws as well as proposed, or possibly needed statutes. It includes surveys of defects in our social,economic, or political system for the purpose of enabling Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But broad asis this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs ofindividuals without justification in terms of the functions of congress. This was freely conceded by Solicitor General in his argument in this case. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to and in furtherance of a legitimate task of Congress. Investigations conducted soly for the personal aggrandizement of the investigators or to "punish" those investigated are indefensible. (emphasis supplied) It can not be overlooked that when respondent Committee decide to conduct its investigation of the petitioners, the complaint in Civil No. 0035 had already been filed with the Sandiganbayan. A perusal of that complaint shows that one of its principal causes of action against herein petitioners, as defendants therein, is the alleged sale of the 36 (or 39) corporations belonging to Benjamin "Kokoy" Romualdez. Since the issues in said complaint had long been joined by the filing of petitioner's respective answers thereto, the issue sought to be investigated by the respondent

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Commitee is one over which jurisdiction had been acquired by the Sandiganbayan. In short, the issue had been pre-empted by that court. To allow the respondent Committee to conduct its own investigation of an issue already before the Sandiganbayan would not only pose the possibility of conflicting judgments betweena legislative commitee and a judicial tribunal, but if the Committee's judgment were to be reached before that of the Sandiganbayan, the possibility of its influence being made to bear on the ultimate judgment of the Sandiganbayan can not be discounted. In fine, for the rspondent Committee to probe and inquire into the same justiciable controversy already before the Sandiganbayan, would be an encroachment into the exclusive domain of judicial jurisdiction that had much earlier set in. In Baremblatt vs. United States, 21 it was held that: Broad as it is, the power is not, howevern, without limitations. Since congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the government. Lacking the judicial power given to the Judiciary, it cannot inquire into mattes that are exclusively the concern of the Judiciary. Neither can it suplant the Executive in what exclusively belongs to the Executive. ... Now to another matter. It has been held that "a congressional committee's right to inquire is 'subject to all relevant limitations placed by the Constitution on governmental action,' including "'the relevant limitations of the Bill of Rights'." 22 In another case —

.. the mere semblance of legislative purpose would not justify an inquiry in the face of the Bill of Rights. The critical element is the exeistence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness. We cannot simply assume, however, that every congressional investigation is justified by a public need that over-balances any private rights affected. To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroah upon an individual's right to privacy nor abridge his liberty of speech, press, religion or assembly. 23

One of the basic rights guaranteed by the Constitution to an individual is the right against self-

Thir right constured as the right to remain completely silent may be availed of by the accused in a criminal case; but kit may be invoked by other witnesses only as questions are asked of them. incrimination. 24

This distinction was enunciated by the Court in Romeo Chavez vs. The Honorable Court of Appeals, et al. 25thus —

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Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is hot at him, an accused may altother refuse to take the witness stand and refuse to answer any all questions. Moreover, this right of the accused is extended to respondents in administrative investigations but only if they partake of the nature of a criminal proceeding or analogous to a criminal proceeding. In Galman vs. Pamaran,26 the Court reiterated the doctrine in Cabal vs. Kapuanan (6 SCRA 1059) to illustrate the right of witnesses to invoke the right against self-incrimination not only in criminal proceedings but also in all other types of suit It was held that: We did not therein state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right against self-incrimination only when a question which tends to elicit an answer that will incriminate him is propounded to him. Clearly then, it is not the characeter of the suit involved but the nature of the proceedings that controls. The privilege has consistenly been held to extend to all proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness, whether a party or not. We do not here modify these doctrines. If we presently rule that petitioners may not be compelled by the respondent Committee to appear, testify and produce evidenc before it, it is only becuase we hold that the questioned inquiry is not in aid of legislation and, if pursued, would be violative of the principle of separation of powers between the legislative and the judicial departments of government, ordained by the Constitution. WHEREFORE, the petition is GRANTED. The Court holds that, under the facts, including the circumtance that petitioners are presently impleaded as defendants in a case before the Sandiganbayan, which involves issues intimately related to the subject of contemplated inquiry before the respondet Committee, the respondent Senate Blue Ribbon Committee is hereby enjoined from compelling the petitioners and intervenor to testify before it and produce evidence at the said inquiry. SO ORDERED. Separate Opinions

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PARAS, J., concurring: I concur principally because any decision of the respondent committee may unduly influence the Sandiganbayan GUTIERREZ, JR., J., dissenting: I regret that I must express a strong dissent the Court's opinion in this case. The Court is asserting a power which I believe we do not possess. We are encroaching on the turf of Congress. We are prohibiting the Senate from proceeding with a consitutionally vested function. We are stopping the Senate Blue Ribbon Committee from exercising a legislative prerogative — investigations in aid of legislation. We do so becuase we somehow feel that the purported aim is not the real purpose. The Court has no power to second guess the motives behind an act of a House of Congress. Neither can we substitute our judgment for its judgment on a matter specifically given to it by the Constitution. The scope of the legislative power is broad. it emcompasses practically every aspect of human or corporate behavior capable of regulation. How can this Court say that unraveling the tangled and secret skeins behind the acquisition by Benjamin "Kokoy" Romualdez of 39 corporations under the past regime and their sudden sale to the Lopa Group at the outset of the new dispensation will not result in useful legislation? The power of either House of Congress to conduct investigations is inherent. It needs no textual grant. As stated in Arnault v. Nazareno, 87 Phil. 29 (1950) Our form of government being patterned after the American system — the framers of our Constitution having drawn largely from American institutions and practices — we can, in this case, properly draw also from American precedents in interpreting analogous provisions of our Constitution, as we have done in other cases in the past. Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisely and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the

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absence of information respecting the conditions which the legislation is intended to affect or change: and where the legislative body does not itself possess the requisite information — which is not infrequently true — recourse must be had to others who do possess it. ... (At p. 45) The framers of the present Constitution were not content to leave the power inherent, incidental or implied. The power is now expressed as follows: Sec. 21 — The Senate or the House of Representatives or may of its respective committees may conduct inquiries in aid of legialtion in accordance with its duly published rules of precedure. The rights of persons appearing in or affected by such inquiries shall be respected. Apart from the formal requirement of publishing the rules of procedure, I agree that there are three queries which, if answered in the affirmative, may give us cause to intervene. First, is the matter being investigated one on which no valid legislation could possibly be enacted? Second, is Congress encroaching on terrain which the Constitution has reserved as the exclusive domain of another branch of government? And third, is Congress violating the basic liberties of an individual? The classic formulation of the power of the Court to interpret the meaning of "in aid of legislation" is expressed in Kilbourn v. Thompson, 103 U.S. 168 (1880). The House of Representatives passed a resolution creating a committee to investigate the financial relations between Jay Cooke and Co., a depositary of federal funds and a real estate pool. A debtor of Jay Cooke and Co, Kilbourn, general manager of the pool refused to answer questions put to him by the Committee and to produce certain book sna papers. Consequently, he was ordered jailed for forty-five days. He brought an action for false imprisonment and the Supreme Court decided in his favor. Speaking through Justice Miller, the Court ruled: The resolution adopted as a sequence of this preamble contains no hint of any intention of final action by Congress on the subject, In all the argument of the case no suggestion has been made of

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what the House of Respresentatives or the Congress could have done in the way of remedying the wrong or securing the creditors of Jay Cooke and Co., or even the United States. Was it to be simply a fruitless investigation into the personal affiars of individuals? If so the House of Representatives had no power or authority in the matter more than any other equal number of gentlemen interested for the government of their country. By fruitless we mean that it could result in no valid legislation on the subject to which the inquiry referrred. (Kilbourn v. Thompson, Id. at page 388) The Kilbourn decision is, however, crica 1880. The world has turned over many times since that era. The same court which validated separate but equal facilities against of racial discrimination and ruled that a private contract may bar improved labor standards and social justice legislation has reversed itslef on these and many other questions. In McGrain v. Daugherty, 273 U.S. 135; 71 L. Ed. 580 [1927], the court went beyond the express terms of the Senate resolution directing the investigation of a former Attorney General for non-feasance, misfeasance, and malfeasance in office. It presumed that the action of the Senate was with a legitimate object. ... Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney-General and the duties of his assitants, are all subject to regulation by congressional legislation, and that the department is maintained and its activitites are carried on under such appropriations as in the judgment of Congress are needed from year to year. The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating, and we think the subject was the real object. An express avowal of the object would have been better; but in view of the particular subject matter was not indispenable. In People ex rel. Mc Donald v. Keeler, 99, N.Y. 463, 52 Am. Rep. 49, 2 N.E. 615, where the Court of Appeals of New york sustained an investigation order by the House of Representatives of that state where the resolution contained no avowal, but disclosed that it definitely related to the administrative of public office the duties of which were subject to legislative regulation, the court said (pp. 485, 487): Where public institutions under the control of the State are ordered to be investigated, it is generally with the view of some legislative action respecting them, and the same may be said in respect of public officers,' And again "We are bound to presume that the action of

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the legislative body was with a legitimate object if it is capable of being so construed, and we have no right to assume that the contrary was intended." (McGrain v. Daugherty Id., at page 594595, Emphasis supplied) The American Court was more categorical in United States v. Josephson, 333 U.S. 858 (1938). It declared that declaration of legislative purpose was conclusive on the Courts: Whatever may be said of the Committee on the un-American activities, its authorizing resolution recites it is in aid of legislation and that fact is establshed for courts. And since the matter before us in somethingwe inherited from the American constitutional system, rulings from the decision of federal courts may be apropos. (Stamler v. Willis, 287 F. Supp. 734 [1968] The Court cannot probe into the motives of the members of the Congress. Barsky v. United States, 167 F. 2d 241 [1948] The measure of the power of inquiry is the potentiality that constitutional legislation might ensue from information derived from such inquiry. The possibility that invalid as well as valid legislation might ensue from an inquiry does not limit the power of inquiry, since invalid legislation might ensue from any inquiry. United States v. Shelton, 148 F. Supp. 926 [1957] The contention of the defendant that the hearing at which he testified and from which the indictment arose was not in furtherance og a legislative purpose proceeds on the assumption that a failure to have specific legislation in contemplation, or a failure to show that legislation was in fact enacted, estabished an absence of legislative purpose. This argument is patently unsound. The investigative power of Congress is not subject to the limitation that hearings must result in legislation or recommendations for legislation. United States v. Deutch (147 F. Supp. 89 (1956) Under the Constitution of the U.S., the Federal Government is a government of limited powers. The Congress, being the legislative

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branch of the Federal Government, is also clothed with limited legislative powers. In orders, however, to carry its legislative powers into effect successfully, it has always been held that Congress has the power to secure information concerning matters in respect to which it has the authority to legislate. In fact, it would seem that Congress must secure information in order to legislate intelligently. Beyond that, the Congress has the right secure information in order to determine whether or not to legislate on a particular subject matter on which it is within its constitutional powers to act. — (Emphasis Supplied) The even broader scope of legislative investigation in the Philippine context is explained by a member of the Constitutional Commission. The requirement that the investigation be "in aid of legislation" is an essential element for establishing the jurisdiction of the legislative body. It is, however, a requirement which is not difficult to satisfy becuase, unlike in the United States, where legislative power is shared by the United State Congress and the states legislatures, the totality of legislative power is possessed by the Congress nad its legislative field is well-nigh unlimited. "It would be difficult to define any limits by which the subject matter of its inquiry can be bounded." (Supra, at p. 46) Moreover, it is not necessary that every question propounded to a witness must be material to a proposed legislation. "In other words, the materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible legislation. The reason is that the necessity or lack of necessity for legislative action and form and character of the action itself are determined by the sum total of the information to be gathered as a result of the investigation, and not by a fraction to be gathered as a result of the investigation, and not by a fraction of such information elicited from a single question. (Id., at 48) On the basis of this interpretation of what "in aid of legislation" means, it can readily be seen that the phrase contributes practically nothing towards protecting witnesses. Practically any investigation can be in aid of the broad legislative power of Congress. The limitation, therefore cannot effectively prevent what Kilbourn v. Thompson (103 U.S. 168 [1880]) characterized as "roving commissions" or what Watkins v. United States (354 U.S. 178, 200 [1957] labeled as exposure for the sake of exposure. (Bernas, Constitution of the Republic of the Philippines, Vol. II, 1st Ed., page 132). Applying the above principles to the present casem, it can readily be seen that the Senate is investigating an area where it may potentially

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legislate. The ease with which relatives of the President were allegedly able to amass great wealth under the past regime is a legitimate area of inquiry. And if we tack on the alleged attempts o f relatives of a succeeding adminsitration to duplicate the feat, the need for remedial legislation becomes more imperative. Our second area of concern is congressional encroachment on matters reserved by the Constitution for the Executive or the Judiciary. The majority opinion cites the decision in Angara v. Electoral Commission, 63 Phil. 139 (1936) explaining our power to determined conflicting claims of authority. It is indeed the function on this Court to allocate constitutional boundaries but in the exercise of this "umpire" function we have to take care that we do not keep any of the three great departments of government from performing functions peculiar to each department or specifically vested to it sby the Constitution. When a power is vested, ti carries with is everything legitimately neede to exercise it. It may be argued that the investigation into the Romualdez — Lopa transactions is more appropriate for the Department of Justice and the judiciary. This argument misses the point of legislative inquiry. The prosecution of offenders by the Department of Justice or the Ombudsman and their trial before courts of justice is intended to punish persons who violate the law. Legislative investigations go further. The aim is to arrive at policy determinations which may or may not be enacted into legislation. Referral to prosecutors or courts of justice is an added bonus. For sure, the Senate Blue Ribbon Committee knows it cannot sentence any offender, no matter how overwhelming the proof that it may gatherm to a jail term. But certainly, the Committee can recommend to Congress how the situation which enabled get-rich-quick schemes to flourish may be remedied. The fact that the subject of the investigation may currently be undergoing trial does not restrict the power of Congress to investigate for its own purposes. The legislative purpose is distinctly different from the judicial purpose. In Sinclair v. United States, 279 U.S. 263, 73 L ed. 692 (1928), leases of naval reservations to oil companies were investigated by the United States Senate. On a finding that certain leases were fraudulent, court action was recommended. In other words, court action on one hand and legislation on the other, are not mutually exclusive. They may complement each other. ... It may be conceded that Congress is without authority to compel disclosyres for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through it Committees, to require pertinent disclosures in aid of its own consitutional power is not abridged because the information

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sought to be elicited may also be of use in such suits... It is plain that investigation of the matters involved in suits brought or to be commenced under the Senate resolution directing the institution of suits for the cancellation of the leases might directly aid in respect of legislative action... (Sinclair v. United States, Id.at page 698). In United States v. Orman, 207 F. 2d Ed. 148 (1953), the court declared that it was pertinent for a legislative committee to seek facts indicating that a witness was linked to unlawful intestate gambling. The power of a congressional committee to investigate matters cannot be challenged on the ground that the Committee went beyond the scope of any contemplated legislative and assumed the functions of a grand jury. Whre the genral subject of investigation is one concerning which Congress can legislate, and the information sought might aid the congressional consideration, in such a situation a legitimate legislative purpose must be presumed... I submit that the filing of indictments or informations or the trial of certain persons cannot, by themselves, half the intitiation or stop the progress of legislative investigations. The other ground which I consider the more important one is where the legislative investigation violates the liberties of the witnesses. The Constitution expressly provides that "the rights of persons appearing in or affected by such inquiries shall be respected. It should be emphasized that the constitutional restriction does not call for the banning or prohibition of investigations where a violation of a basis rights is claimed. It only requires that in the course of the proceedings, the right of persons should be respected. What the majority opinion mandates is a blanket prohibition against a witness testifying at all, simply because he is already facing charges before the Sandiganbayan. To my mind, the Consitution allows him to interpose objections whenever an incriminating question is posed or when he is compelled to reveal his ocurt defenses, but not ot refuse to take the witness stand completely. Arnault v. Nazareno, supra, illustrates the reticence, with which the court views petitions to curtail legislative investigations even where an invocation of individual liberties is made.

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In Arnault, the entire country already knew the name of the presidential realtive whom the Sentate was trying to link to the Tambobong-Buenavista estate anomalies. Still, the Court did not interfere when Arnault refused to answer specific questions directed at him and he was punished for hir refusal. The Court did not restrain the Senate when Arnault was sent o the national penitentiary for an indefinite visit until the name which the Senate wanted him to utter was extracted. Only when the imprisonment became ureasonably prolonged and the situation in Congress had changed was he released. As pointed out by the respondents, not one question has been asked requiring an answer that would incriminate the petitioners. The allegation that their basic rights are vilolated is not only without basis but is also premature. I agree with the respondents that the slae of 39 Romualdez corporations to Mr. Lopa is not a purely private transaction into which the Senate may not inquire. if this were so, much of the work of the Presidential Commission on Good Government (PCGG) as it seeks to recover illegally acquired wealth would be negated. Much of what PCGG is trying to recover is the product of arrangements which are not only private but also secret and hidden. I therefore, vote to DISMISS the petition. Narvasa, J., dissents. CRUZ, J., dissenting: I regret I am unable to give my concurrence, I do not agree that the investigation being conducted by the Blue Ribbon Committee is not in aid of legislation. In Arnault v. Nazareno, 87 Phil. 29, this Court observed that "we are bound to presume that the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no right ot assume that the contrary was intended." (People ex rel. Mc Donald vs. Keeler, 99 N.Y. 463; 52 Am. Rep., 49; 2 N.E., 615, quoted with approval by the U.S. Supreme Court in McGrain vs. Daugherty, 273 U.S. 135). As far as I know, that is still the rule today. More importantly, the presumption is supported by the established facts. The inquiry is sustainable as an implied of power the legislature and even as expressly limited by the Constitution. The inquiry deals with alleged manipulations of public funds and illicit acquisitions of properties now being claimed by the PCGG for the

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Republic of the Philippines. The purpose of the Committee is to ascertain if and how such anomalies have been committed. It is settled that the legislature has a right to investigate the disposition of the public funds it has appropriated; indeed, "an inquiry into the expenditure of all public money is na indispensable duty of the legislature." Moreover, an investigation of a possible violation of a law may be useful in the drafting of amendatory legislation to correct or strengthen that law. The ponencia quotes lengthily from Senator Enrile's speech and concludes that it "contained no suggestions of contemplated legislation; he merely called upon the Senate to look into a possible violation of section 5 of R.A. No. 3019." However, according to McGrain v. Daugherty, supra: Primarily, the purpose for which legislative inquiry and investigation is pursued is to serve as an aid in legislation. Through it, the legislature is able to obtain facts or data in aid fo proposed legislation. However, it is not necessary that the resolution ordering an investigation should in terms expressly state that the object of the inquiry is to obtain data in aid of proposed legislation. It is enough that such purpose appears from a consideration of the entire proceedings or one in which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. An express avowal of the object would be better, but such is not indispensable. (Emphasis supplied). The petitioner's contention that the questioned investigation would compel them to reveal their defense in the cases now pending against them in the Sandigangbayan is untenable. They know or should know that they cannot be compelled to answer incriminating questions. The case of Chavez v. Court of Appeals, 24 SCRA 663, where we held that an accused may refuse at the outset to take the stand on the ground that the questions to be put by the prosecutor will tend to incriminate him is, of course, not applicable to them. They are not facing criminal charges before the Blue Ribbon Committee. Like any ordinary witness, they can invoke the right against self-incrimination only when and as the incriminating question is propounded. While it is true that the Court is now allowed more leeway in reviewing the traditionally political acts of the legislative and executive departments, the power must be exercised with the utmost circumspection lest we unduly trench on their prerogatives and disarrange the constitutional separation of powers. That power is available to us only if there is a clear showing of a grave abuse of discretion, which I do not see in the case at bar. Guided by the presumption and the facts, I vote to DISMISS the petition.

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Narvasa, J., dissents. # Separate Opinions PARAS, J., concurring: I concur principally because any decision of the respondent committee may unduly influence the Sandiganbayan GUTIERREZ, JR., J., dissenting: I regret that I must express a strong dissent the Court's opinion in this case. The Court is asserting a power which I believe we do not possess. We are encroaching on the turf of Congress. We are prohibiting the Senate from proceeding with a consitutionally vested function. We are stopping the Senate Blue Ribbon Committee from exercising a legislative prerogative — investigations in aid of legislation. We do so becuase we somehow feel that the purported aim is not the real purpose. The Court has no power to second guess the motives behind an act of a House of Congress. Neither can we substitute our judgment for its judgment on a matter specifically given to it by the Constitution. The scope of the legislative power is broad. it emcompasses practically every aspect of human or corporate behavior capable of regulation. How can this Court say that unraveling the tangled and secret skeins behind the acquisition by Benjamin "Kokoy" Romualdez of 39 corporations under the past regime and their sudden sale to the Lopa Group at the outset of the new dispensation will not result in useful legislation? The power of either House of Congress to conduct investigations is inherent. It needs no textual grant. As stated in Arnault v. Nazareno, 87 Phil. 29 (1950) Our form of government being patterned after the American system — the framers of our Constitution having drawn largely from American institutions and practices — we can, in this case, properly draw also from American precedents in interpreting analogous provisions of our Constitution, as we have done in other cases in the past. Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisely and effectively, such power is so far incidental to the legislative function as to be implied. In other

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words, the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change: and where the legislative body does not itself possess the requisite information — which is not infrequently true — recourse must be had to others who do possess it. ... (At p. 45) The framers of the present Constitution were not content to leave the power inherent, incidental or implied. The power is now expressed as follows: Sec. 21 — The Senate or the House of Representatives or may of its respective committees may conduct inquiries in aid of legialtion in accordance with its duly published rules of precedure. The rights of persons appearing in or affected by such inquiries shall be respected. Apart from the formal requirement of publishing the rules of procedure, I agree that there are three queries which, if answered in the affirmative, may give us cause to intervene. First, is the matter being investigated one on which no valid legislation could possibly be enacted? Second, is Congress encroaching on terrain which the Constitution has reserved as the exclusive domain of another branch of government? And third, is Congress violating the basic liberties of an individual? The classic formulation of the power of the Court to interpret the meaning of "in aid of legislation" is expressed in Kilbourn v. Thompson, 103 U.S. 168 (1880). The House of Representatives passed a resolution creating a committee to investigate the financial relations between Jay Cooke and Co., a depositary of federal funds and a real estate pool. A debtor of Jay Cooke and Co, Kilbourn, general manager of the pool refused to answer questions put to him by the Committee and to produce certain book sna papers. Consequently, he was ordered jailed for forty-five days. He brought an action for false imprisonment and the Supreme Court decided in his favor. Speaking through Justice Miller, the Court ruled:

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The resolution adopted as a sequence of this preamble contains no hint of any intention of final action by Congress on the subject, In all the argument of the case no suggestion has been made of what the House of Respresentatives or the Congress could have done in the way of remedying the wrong or securing the creditors of Jay Cooke and Co., or even the United States. Was it to be simply a fruitless investigation into the personal affiars of individuals? If so the House of Representatives had no power or authority in the matter more than any other equal number of gentlemen interested for the government of their country. By fruitless we mean that it could result in no valid legislation on the subject to which the inquiry referrred. (Kilbourn v. Thompson, Id. at page 388) The Kilbourn decision is, however, crica 1880. The world has turned over many times since that era. The same court which validated separate but equal facilities against of racial discrimination and ruled that a private contract may bar improved labor standards and social justice legislation has reversed itslef on these and many other questions. In McGrain v. Daugherty, 273 U.S. 135; 71 L. Ed. 580 [1927], the court went beyond the express terms of the Senate resolution directing the investigation of a former Attorney General for non-feasance, misfeasance, and malfeasance in office. It presumed that the action of the Senate was with a legitimate object. ... Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney-General and the duties of his assitants, are all subject to regulation by congressional legislation, and that the department is maintained and its activitites are carried on under such appropriations as in the judgment of Congress are needed from year to year. The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating, and we think the subject was the real object. An express avowal of the object would have been better; but in view of the particular subject matter was not indispenable. In People ex rel. Mc Donald v. Keeler, 99, N.Y. 463, 52 Am. Rep. 49, 2 N.E. 615, where the Court of Appeals of New york sustained an investigation order by the House of Representatives of that state where the resolution contained no avowal, but disclosed that it definitely related to the administrative of public office the duties of which were subject to legislative regulation, the court said (pp. 485, 487): Where public institutions under the control of the State are ordered to be

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investigated, it is generally with the view of some legislative action respecting them, and the same may be said in respect of public officers,' And again "We are bound to presume that the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no right to assume that the contrary was intended." (McGrain v. Daugherty Id., at page 594595, Emphasis supplied) The American Court was more categorical in United States v. Josephson, 333 U.S. 858 (1938). It declared that declaration of legislative purpose was conclusive on the Courts: Whatever may be said of the Committee on the un-American activities, its authorizing resolution recites it is in aid of legislation and that fact is establshed for courts. And since the matter before us in somethingwe inherited from the American constitutional system, rulings from the decision of federal courts may be apropos. (Stamler v. Willis, 287 F. Supp. 734 [1968] The Court cannot probe into the motives of the members of the Congress. Barsky v. United States, 167 F. 2d 241 [1948] The measure of the power of inquiry is the potentiality that constitutional legislation might ensue from information derived from such inquiry. The possibility that invalid as well as valid legislation might ensue from an inquiry does not limit the power of inquiry, since invalid legislation might ensue from any inquiry. United States v. Shelton, 148 F. Supp. 926 [1957] The contention of the defendant that the hearing at which he testified and from which the indictment arose was not in furtherance og a legislative purpose proceeds on the assumption that a failure to have specific legislation in contemplation, or a failure to show that legislation was in fact enacted, estabished an absence of legislative purpose. This argument is patently unsound. The investigative power of Congress is not subject to the limitation that hearings must result in legislation or recommendations for legislation. United States v. Deutch (147 F. Supp. 89 (1956)

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Under the Constitution of the U.S., the Federal Government is a government of limited powers. The Congress, being the legislative branch of the Federal Government, is also clothed with limited legislative powers. In orders, however, to carry its legislative powers into effect successfully, it has always been held that Congress has the power to secure information concerning matters in respect to which it has the authority to legislate. In fact, it would seem that Congress must secure information in order to legislate intelligently. Beyond that, the Congress has the right secure information in order to determine whether or not to legislate on a particular subject matter on which it is within its constitutional powers to act. — (Emphasis Supplied) The even broader scope of legislative investigation in the Philippine context is explained by a member of the Constitutional Commission. The requirement that the investigation be "in aid of legislation" is an essential element for establishing the jurisdiction of the legislative body. It is, however, a requirement which is not difficult to satisfy becuase, unlike in the United States, where legislative power is shared by the United State Congress and the states legislatures, the totality of legislative power is possessed by the Congress nad its legislative field is well-nigh unlimited. "It would be difficult to define any limits by which the subject matter of its inquiry can be bounded." (Supra, at p. 46) Moreover, it is not necessary that every question propounded to a witness must be material to a proposed legislation. "In other words, the materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible legislation. The reason is that the necessity or lack of necessity for legislative action and form and character of the action itself are determined by the sum total of the information to be gathered as a result of the investigation, and not by a fraction to be gathered as a result of the investigation, and not by a fraction of such information elicited from a single question. (Id., at 48) On the basis of this interpretation of what "in aid of legislation" means, it can readily be seen that the phrase contributes practically nothing towards protecting witnesses. Practically any investigation can be in aid of the broad legislative power of Congress. The limitation, therefore cannot effectively prevent what Kilbourn v. Thompson (103 U.S. 168 [1880]) characterized as "roving commissions" or what Watkins v. United States (354 U.S. 178, 200 [1957] labeled as exposure for the sake of exposure. (Bernas, Constitution of the Republic of the Philippines, Vol. II, 1st Ed., page 132).

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Applying the above principles to the present casem, it can readily be seen that the Senate is investigating an area where it may potentially legislate. The ease with which relatives of the President were allegedly able to amass great wealth under the past regime is a legitimate area of inquiry. And if we tack on the alleged attempts o f relatives of a succeeding adminsitration to duplicate the feat, the need for remedial legislation becomes more imperative. Our second area of concern is congressional encroachment on matters reserved by the Constitution for the Executive or the Judiciary. The majority opinion cites the decision in Angara v. Electoral Commission, 63 Phil. 139 (1936) explaining our power to determined conflicting claims of authority. It is indeed the function on this Court to allocate constitutional boundaries but in the exercise of this "umpire" function we have to take care that we do not keep any of the three great departments of government from performing functions peculiar to each department or specifically vested to it sby the Constitution. When a power is vested, ti carries with is everything legitimately neede to exercise it. It may be argued that the investigation into the Romualdez — Lopa transactions is more appropriate for the Department of Justice and the judiciary. This argument misses the point of legislative inquiry. The prosecution of offenders by the Department of Justice or the Ombudsman and their trial before courts of justice is intended to punish persons who violate the law. Legislative investigations go further. The aim is to arrive at policy determinations which may or may not be enacted into legislation. Referral to prosecutors or courts of justice is an added bonus. For sure, the Senate Blue Ribbon Committee knows it cannot sentence any offender, no matter how overwhelming the proof that it may gatherm to a jail term. But certainly, the Committee can recommend to Congress how the situation which enabled get-rich-quick schemes to flourish may be remedied. The fact that the subject of the investigation may currently be undergoing trial does not restrict the power of Congress to investigate for its own purposes. The legislative purpose is distinctly different from the judicial purpose. In Sinclair v. United States, 279 U.S. 263, 73 L ed. 692 (1928), leases of naval reservations to oil companies were investigated by the United States Senate. On a finding that certain leases were fraudulent, court action was recommended. In other words, court action on one hand and legislation on the other, are not mutually exclusive. They may complement each other. ... It may be conceded that Congress is without authority to compel disclosyres for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through it

281

Committees, to require pertinent disclosures in aid of its own consitutional power is not abridged because the information sought to be elicited may also be of use in such suits... It is plain that investigation of the matters involved in suits brought or to be commenced under the Senate resolution directing the institution of suits for the cancellation of the leases might directly aid in respect of legislative action... (Sinclair v. United States, Id.at page 698). In United States v. Orman, 207 F. 2d Ed. 148 (1953), the court declared that it was pertinent for a legislative committee to seek facts indicating that a witness was linked to unlawful intestate gambling. The power of a congressional committee to investigate matters cannot be challenged on the ground that the Committee went beyond the scope of any contemplated legislative and assumed the functions of a grand jury. Whre the genral subject of investigation is one concerning which Congress can legislate, and the information sought might aid the congressional consideration, in such a situation a legitimate legislative purpose must be presumed... I submit that the filing of indictments or informations or the trial of certain persons cannot, by themselves, half the intitiation or stop the progress of legislative investigations. The other ground which I consider the more important one is where the legislative investigation violates the liberties of the witnesses. The Constitution expressly provides that "the rights of persons appearing in or affected by such inquiries shall be respected. It should be emphasized that the constitutional restriction does not call for the banning or prohibition of investigations where a violation of a basis rights is claimed. It only requires that in the course of the proceedings, the right of persons should be respected. What the majority opinion mandates is a blanket prohibition against a witness testifying at all, simply because he is already facing charges before the Sandiganbayan. To my mind, the Consitution allows him to interpose objections whenever an incriminating question is posed or when he is compelled to reveal his ocurt defenses, but not ot refuse to take the witness stand completely. Arnault v. Nazareno, supra, illustrates the reticence, with which the court views petitions to curtail legislative investigations even where an invocation of individual liberties is made.

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In Arnault, the entire country already knew the name of the presidential realtive whom the Sentate was trying to link to the Tambobong-Buenavista estate anomalies. Still, the Court did not interfere when Arnault refused to answer specific questions directed at him and he was punished for hir refusal. The Court did not restrain the Senate when Arnault was sent o the national penitentiary for an indefinite visit until the name which the Senate wanted him to utter was extracted. Only when the imprisonment became ureasonably prolonged and the situation in Congress had changed was he released. As pointed out by the respondents, not one question has been asked requiring an answer that would incriminate the petitioners. The allegation that their basic rights are vilolated is not only without basis but is also premature. I agree with the respondents that the slae of 39 Romualdez corporations to Mr. Lopa is not a purely private transaction into which the Senate may not inquire. if this were so, much of the work of the Presidential Commission on Good Government (PCGG) as it seeks to recover illegally acquired wealth would be negated. Much of what PCGG is trying to recover is the product of arrangements which are not only private but also secret and hidden. I therefore, vote to DISMISS the petition. Narvasa, J., dissents. CRUZ, J., dissenting: I regret I am unable to give my concurrence, I do not agree that the investigation being conducted by the Blue Ribbon Committee is not in aid of legislation. In Arnault v. Nazareno, 87 Phil. 29, this Court observed that "we are bound to presume that the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no right ot assume that the contrary was intended." (People ex rel. Mc Donald vs. Keeler, 99 N.Y. 463; 52 Am. Rep., 49; 2 N.E., 615, quoted with approval by the U.S. Supreme Court in McGrain vs. Daugherty, 273 U.S. 135). As far as I know, that is still the rule today. More importantly, the presumption is supported by the established facts. The inquiry is sustainable as an implied of power the legislature and even as expressly limited by the Constitution. The inquiry deals with alleged manipulations of public funds and illicit acquisitions of properties now being claimed by the PCGG for the

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Republic of the Philippines. The purpose of the Committee is to ascertain if and how such anomalies have been committed. It is settled that the legislature has a right to investigate the disposition of the public funds it has appropriated; indeed, "an inquiry into the expenditure of all public money is na indispensable duty of the legislature." Moreover, an investigation of a possible violation of a law may be useful in the drafting of amendatory legislation to correct or strengthen that law. The ponencia quotes lengthily from Senator Enrile's speech and concludes that it "contained no suggestions of contemplated legislation; he merely called upon the Senate to look into a possible violation of section 5 of R.A. No. 3019." However, according to McGrain v. Daugherty, supra: Primarily, the purpose for which legislative inquiry and investigation is pursued is to serve as an aid in legislation. Through it, the legislature is able to obtain facts or data in aid fo proposed legislation. However, it is not necessary that the resolution ordering an investigation should in terms expressly state that the object of the inquiry is to obtain data in aid of proposed legislation. It is enough that such purpose appears from a consideration of the entire proceedings or one in which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. An express avowal of the object would be better, but such is not indispensable. (Emphasis supplied). The petitioner's contention that the questioned investigation would compel them to reveal their defense in the cases now pending against them in the Sandigangbayan is untenable. They know or should know that they cannot be compelled to answer incriminating questions. The case of Chavez v. Court of Appeals, 24 SCRA 663, where we held that an accused may refuse at the outset to take the stand on the ground that the questions to be put by the prosecutor will tend to incriminate him is, of course, not applicable to them. They are not facing criminal charges before the Blue Ribbon Committee. Like any ordinary witness, they can invoke the right against self-incrimination only when and as the incriminating question is propounded. While it is true that the Court is now allowed more leeway in reviewing the traditionally political acts of the legislative and executive departments, the power must be exercised with the utmost circumspection lest we unduly trench on their prerogatives and disarrange the constitutional separation of powers. That power is available to us only if there is a clear showing of a grave abuse of discretion, which I do not see in the case at bar. Guided by the presumption and the facts, I vote to DISMISS the petition.

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G.R. No. 133025

February 17, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RADEL GALLARDE, accused-appellant. DAVIDE, JR., C.J.: This is an appeal from the judgment of the Regional Trial Court of Tayug, Pangasinan, Branch 51, finding accused-appellant Radel Gallarde1 (hereafter GALLARDE) guilty beyond reasonable doubt of the crime of murder in Criminal Case No. T-1978 and sentencing him to suffer the penalty of reclusion perpetua and to pay the heirs of Editha Talan (hereafter EDITHA) the amount of P70,000 as actual damages.2 On 24 June 1997, GALLARDE was charged with the special complex crime of rape with homicide in an information whose accusatory portion reads as follows: That on or about the 6th day of May 1997, in the evening, amidst the field located at Brgy. Trenchera, [M]unicipality of Tayug, [P]rovince of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, and by means of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously have sexual intercourse with one EDITHA TALAN, a minor-10 years of age, against her will and consent, and thereafter, with intent to kill, cover the nose and mouth of the said minor resulting to her death and then bury her in the field, to the damage and prejudice of the heirs of said EDITHA TALAN.3 During the arraignment on 1 September 1997, GALLARDE, with the assistance of counsel, entered a plea of not guilty.4 Trial of the case immediately ensued as the defense waived the holding of the pre-trial conference. The witnesses presented by the prosecution were Mario Fernandez, Jaime Cabinta, Rosy Clemente, Felicisimo Mendoza, Alfredo Cortez, Renato Fernandez, SPO4 Oscar B. Lopez, and Dr. Perfecto Tebangin. The relevant and material facts established by their testimonies are faithfully summarized in the Appellee's Brief as follows: In the evening of May 26, 1997, at the house of spouses Eduardo and Elena Talan in Brgy. Trenchea, Tayug, Pangasinan, their neighbors converged. Among them were appellant Radel Gallarde, Francisco, Renato, Edwin, all surnamed Fernandez, Romel Hernandez, Jaime Cabinta, Rosy Clemente, Jon Talen, Noel Arellaga and Ramil Bargon. Idling by was Editha, 10 year old daughter of spouses Talan. A fluorescent lamp illuminated them as they partook beer (TSN dated October 13, 1997, pp. 3-4).

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After a while, Roger stood up and invited Jaime and appellant to dine in the kitchen. As they partook of the meal, appellant suddenly left. Jaime, too, stepped out of the kitchen to urinate. Outside the house, he chanced upon appellant and Editha talking to each other. Jaime whistled at appellant but instead of minding him, the latter sprinted towards the road leading to his house (Id., pp. 4-6). Thereafter, Editha entered the kitchen and took hold of a kerosene lamp. Jaime followed her and asked where she was going. Editha answered that she would look for appellant. Soon Editha left enroute to where appellant fled (Id., pp. 7-8). By 10:00 o'clock that evening, the drinking buddies had dispersed but Jaime, Francisco, Edwin and Rose regrouped at Renato's place where they talked and relaxed. Moments later, Roger arrived and informed them that Editha was missing. Roger asked the group to help look for her (Id., p. 10). Elena Talan informed his uncle, Barangay Ex-kagawad Mario Fernandez, about her daughter's disappearance. The latter, together with his son Edwin, wife Virginia and nephew Freddie Cortez wasted no time in joining their neighbors search the houses, dikes and fields to look for the missing child. The searchers used a lighted rubber tire (TSN dated Sept. 24, 1997, pp. 8-10 and 24). When Jaime mentioned that appellant was the last person he saw talking to Editha, the searchers went back to the house of appellant. About 7 meters away from appellant's house, one of the searchers, Alfredo Cortez, found Editha's left foot slipper (TSN dated October 22, 1997, pp. 4-6). Suddenly, Edwin Fernandez announced: "Tata, Radel is here!" pointing to the toilet about 6 meters away from appellant's house. The searchers found appellant squatting with his short pants. His hands and knees were covered with soil. When confronted by ex-kagawad Hernandez why he was there, appellant answered he was relieving himself (Id., pp. 11-16). Asked where Editha was, appellant replied: "I do not know, I did not do anything to her." When told — "according to Jimmy, you were with Editha." appellant responded "I let her go and brought her back to the dike and let her go home." To the next question, "where did you come from since a while a go you were not yet in this toilet?" appellant answered "I was with Kiko, I was asleep in their house. One of the searchers Mario Bado, got angry and countered that appellant's statement was impossible because Kiko was with him drinking (Id., pp. 16-20). After the confrontation at the toilet, Ex-kagawad Fernandez brought appellant to Brgy. Captain Felicisimo Mendoza, informing the latter that appellant was the last person seen talking with the missing child. Fernandez then rejoined the searchers (Id., pp. 21-22).

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Back in the field, Virginia Fernandez tripped on a wet ground. As she reached for her slipper, she saw Editha's right foot slipper (the other one was earlier found near the house of appellant) (Id., pp. 23-24). Around 3 meters farther from Editha's right foot slipper; another slipper was found. It was old, 8 to 9 inches in length and appellant was seen wearing it in the morning of that day (TSN dated Sept. 25, 1997, pp. 25). The searchers, thereafter, noticed disheveled grasses. Along the way, they saw a wide hole among the disheveled grass. Ex-kagawad Fernandez accidentally dropped the lighted rubber tire and as his nephew Freddie picked it up, the latter exclaimed: "Uncle, look at this loose soil!" Exkagawad Fernandez forthwith scratched some earth aside and then Editha's hand pitted out. The Fernandez screamed in terror (Id., pp. 5-6). Meantime, Barangay Captain Mendoza heard shouts saying: "She is here, she is now here already dead!" Mindful of appellant's safety, Brgy. Captain Mendoza decided to bring appellant to the municipal building. On their way though, they met policemen on board a vehicle. He flagged them down and turned over the person of appellant, saying: "Here is the suspect in the disappearance of the little girl. Since you are already here, I am giving him to you" (TSN dated Oct. 21, 1997, pp. 4-5). The policemen together with appellant proceeded to where the people found Editha. One of the policemen shoved more soil aside. The lifeless Editha was completely naked when she was recovered. (Id., pp. 9-10) The cause of Editha's death as revealed in the post-mortem examination showed "suffocation of the lungs as a result from powerful covering of the nose and mouth, associated with laceration of the vagina and raptured hymen (Exh. "T", TSN dated Oct. 23, 1997, pp. 22-23).5 On the other hand, GALLARDE was the lone witness for the defense. He interposed a denial and the alibi that he was at home with his mother and brothers at the time the crime occurred. He declared that he is 18 years old, single, a former construction worker. He knew EDITHA, a neighbor whom he considered as a sister because she used to come to his house. They never had a quarrel or misunderstanding. He neither raped not killed Editha.6 On cross-examination by the prosecutor and to questions propounded by the court, GALLARDE admitted that he saw Editha on the night of 6 May 1997 in her parent's house, particularly in the kitchen. He was there because he joined a group drinking Colt 45 beer, as he was called by Rudio Fernandez. He drank and had dinner in the kitchen. After dinner he returned to the drinking place and eventually went home because he was then a little drunk. He knows Kgd. Mario Fernandez, but after he left the Talan residence he did not see Kgd. Fernandez anymore. Kgd. Fernandez saw him inside his (Gallarde's) toilet on the night of May

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6; thereafter Fernandez took him to the barangay captain and later he was turned over to the PNP at Camp Narciso Ramos. The police informed him that he was a suspect in the rape and killing of Editha Talan, and he told them that he did not commit the crime. At the Talan residence he was wearing short pants and rubber slippers. Fernandez asked him at the police headquarters to pull down his shorts and he complied. He was then wearing briefs with a hemline that was a little loose. He was informed that a cadaver was recovered near his house. When he was asked questions while in police custody, he was not represented by any lawyer. GALLARDE further declared on cross-examination and on questions by the court that he considered Editha Talan as a sister and her parents also treated him in a friendly manner. When he came to know that Editha's parents suspected him of the crime, he was still on friendly terms with them. However, he did no go to them to tell them he was innocent because they brandished a bolo in anger. Finally, he testified that in the evening of May 6 he came to know that Editha died. She was still alive when he was drinking at the back of the Talan house and left for home. From the time he arrived, he never left again that night, and his mother and brothers knew it for a fact.7 On 12 February 1998, the trial court rendered a decision convicting GALLARDE of the crime of murder only, not of the complex crime of rape with homicide because of the lack of proof of carnal knowledge. It observed: Exh. "T" and Dr. Tebangin's testimony thereon show that the late Editha Talan sustained slit wounds inflicted as a means of suffocating her to death, a laceration of the lower portion of her vagina, and a ruptured hymen. What allegedly oozed from her vagina was blood, coupled with dirt. Had then been observed the presence of even just a drop of seminal fluid in or around her vagina, the Court would readily conclude that the laceration and rupture resulted from phallic intrusion. Without such observation, however, "carnal knowledge" as element of rape would be an open question. The trial court did not appreciate the alternative circumstance of intoxication either as a mitigating or aggravating circumstance pursuant to Article 15 of the Revised Penal Code because GALLARDE's alleged inebriation on the night of 6 May 1997, was not satisfactorily proven. As to the civil aspect of the case, the trial court considered the stipulation of the parties on 27 October 1997 fixing a liquidated amount of P70,000 as actual damages, and leaving the matter of moral damages to the discretion of the court. The trial court was not inclined to award moral damages because the "evidence before it tends to disclose that on the night of 6 May 1997, before she died, Editha was a much-neglected child." Accordingly, in its decision8 of 12 February 1998, the trial court decreed:

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WHEREFORE, his guilt having been established beyond a reasonable doubt, the Court hereby convicts the accused RADEL GALLARDE Y HERMOSA of the crime of MURDER, and sentences him to suffer the penalty of reclusion perpetua and to indemnify the heirs of the late Editha Talan in the negotiated sum of P70,000.00.9 His motion for reconsideration,10 having been denied by the trial court in its Resolution11 of 28 February 1998, GALLARDE seasonably appealed to us. We accepted the appeal on 9 September 1998. In his Appellant's Brief filed on 16 March 1999, GALLARDE alleges that the trial court committed the following errors: 1. In convicting [him] of the crime of murder in an information for rape with homicide. 2. In concluding that the prosecution has proven beyond reasonable doubt that [he] was responsible for the death of Editha Talan. 3. In not acquitting [him] on the ground of notches of proof beyond reasonable doubt.12 We sustain GALLARDE's contention that the trial court erred in convicting him of murder in an information charging him of rape with homicide. A reading of the accusatory portion of the information shows that there was no allegation of any qualifying circumstance. Although it is true that the term "homicide" as used in special complex crime of rape with homicide is to be understood in its generic sense, and includes murder and slight physical injuries committed by reason or on the occasion of rape,13 it is settled in this jurisdiction that where a complex crime is charged and the evidence fails to support the charge as to one of the component offense, the accused can be convicted of the other.14 In rape with homicide, in order to be convicted of murder in case the evidence fails to support the charge of rape, the qualifying circumstance must be sufficiently alleged and proved. Otherwise, it would be a denial of the right of the accused to be informed of the nature of the offense with which he is charged.15 It is fundamental that every element of the offense must be alleged in the complaint or information. The main purpose of requiring the various elements of a crime to be set out in an information is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense.16 In the absence then in the information of an allegation of any qualifying circumstance, GALLARDE cannot be convicted of murder. An accused cannot be convicted of an offense higher than that with which he is charged in the complaint or information under which he is tried. It matters not how conclusive and convincing the evidence of guilt may be, but an accused cannot be convicted of

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any offense, unless it is charged in the complaint or information for which he is tried, or is necessarily included in that which is charged. He has a right to be informed of the nature of the offense with which he is charged before he is put on trial. To convict an accused of a higher offense than that charged in the complaint or information under which he is tried would be an unauthorized denial of that right.17 Nevertheless, we agree with the trial court that the evidence for the prosecution, although circumstantial, was sufficient to establish beyond reasonable doubt the guilt of GALLARDE for the death of EDITHA. Direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt.18 The prosecution is not always tasked to present direct evidence to sustain a judgment of conviction; the absence of direct evidence does not necessarily absolve an accused from any criminal liability.19Even in the absence of direct evidence, conviction can be had on the basis of circumstantial evidence, provided that the established circumstances constitute an unbroken chain which leads one to one fair and reasonable conclusion which points to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty.20 The rules on evidence and precedents sustain the conviction of an accused through circumstantial evidence, as long as the following requisites are present: (1) there must be more than one circumstance; (2) the inference must be based on proven facts; and (3) the combination of all circumstances produces a conviction beyond doubt of the guilt of the accused.21 The importance of circumstantial evidence is more apparent in the prosecution of cases of rape, where it is homicide. The nature of the crime of rape, where it is usually only the victim and the rapist who are present at the scene of the crime, makes prosecutions for the complex crime of rape with homicide particularly difficult since the victim can no longer testify against the perpetrator of the crime. In these cases pieces of the evidence against the accused are usually circumstantial.22 The circumstantial evidence in the case at bar, when analyzed and taken together, leads to no other conclusion than that GALLARDE, and no other else, killed EDITHA and that he is guilty therefor. We quote with approval the lower court's enumeration of the circumstantial evidence in this case: 1. Gallarde, 18, and Editha, 10, were neighbors and friends, even as she used to frequent his place. 2. Both were at the Talan residence on the night of May 6, 1997 while neighbors indulged themselves in beer.

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3. Among said neighbors Cabinta saw them hand in hand by the toilet situated five (5) meters east of the Talan kitchen. 4. After Cabinta whistled he saw Gallarde run home towards north after letting go of Editha's hands. Neighbor Clemente also noticed that Gallarde disappeared, and that Editha returned to the kitchen. 5. Cabinta followed Editha back to the kitchen, and saw her holding a kerosene lamp. She told him that she was going to look for "Dalpac," and off she went in the same direction Gallarde took. 6. Gallarde wore short pants and rubber slippers at the drinking place. Subsequently he was seen wearing shorts in his own toilet. 7. At past 10:00 in the evening during an intensive search for the then missing Editha, her lifeless body was found in a shallow grave situated some distance behind Gallarde's residence. 8. Before Editha's body was discovered, a searcher found a girl's slipper (Exh. "B"), 5-6 inches long, among thickets seven meters away from Gallarde's house. 9. Another searcher saw a second slipper (Exh. B-1), of the same color and size as the first one. Both slippers were Editha's, the searchers recalled. 10. A third rubber slipper (Exh. "C") was thereafter found in the field, near Exh. "B-1." It was an old slipper, 8-9 inches long and with a hole at the rear end. 11. Soil stuck to each one of the three slippers. 12. Gallarde was not at home when searchers went to look for him there, after Cabinta told them that Editha was last seen with Gallarde. 13. When Gallarde was discovered squatting in the dark toilet behind his house and beside the thickets, his shorts were up and on. His hands and knees were soiled. 14. At the toilet he was asked the innocent question of where Editha was and he answered revealingly, thus: "I did not do anything to her" and "I let her go and brought her back to the dike and let her go home." 15. When asked where he had been, as the toilet was first seen empty, Gallarde said he was with Kiko and he slept at the latter's house, which answer Mario Bado promptly refuted saying, "Vulva of your mother. . . Kiko

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was with me drinking." Bado and Kiko were not at the place of the Talans that night. 16. Yanked out of the dark toilet near his own house, Gallarde joined Kgd. Mario Fernandez sans protest. 17. Dr. Tebangin found on Editha's cheeks two slit wounds, each being an inch away from her nostrils. Both wounds were fresh and reddish. From the lower portion of Editha's vagina blood oozed, accompanied by dirt. Her hymen was ruptured and was still bleeding. The medico-legal concluded that there must have been a forceful covering of Editha's nose and mouth because of the presence of the slit wounds on both sides of her face, and that in 30 seconds unconsciousness and weakening resulted, with the vaginal injuries contributing to her death.23 As to the crime of rape, there is much to be desired with respect to the prosecution's evidence therefor, but not for the reason adduced by the trial court, namely, the absence of spermatozoa in EDITHA's private part and thereabout. It is well settled that the absence of spermatozoa in or around the vagina does not negate the commission of rape.24Our doubt on the commission of rape is based on the fact that there is at all no convincing proof that the laceration of the vagina and the rupture of the hymen of EDITHA were caused in the course of coitus or by a male organ. Our meticulous reading of the testimony of Dr. Tebangin disclosed that he was never asked if the laceration and the rupture could have been caused by the penis of a human being. Needless to state, these could have been caused by any object other than the penis of a person. We cannot sustain the contention of GALLARDE that he was not positively identified as the assailant since there was no eyewitness to the actual commission of the crime. It does not follow that although nobody saw GALLARDE in the act of killing EDITHA, nobody can be said to have positively identified him. Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. There are two types of positive identification. A witness may identity a suspect or accused in a criminal case as the perpetrator of the crime as an eyewitness to the very act of the commission of the crime. This constitutes direct evidence. There may, however, be instances where, although a witness may not have actually seen the very act of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime as for instance when the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the second type of positive identification, which forms part of circumstantial evidence, which, when taken together with

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other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that the accused is the author of the crime to the exclusion of all others. If the actual eyewitnesses are the only ones allowed to possibly positively identify a suspect or accused to the exclusion of others, then nobody can ever be convicted unless there is an eyewitness, because it is basic and elementary that there can be no conviction until and unless an accused is positively identified. Such a proposition is absolutely absurd, because it is settled that direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt.25 If resort to circumstantial evidence would not be allowed to prove identity of the accused on the absence of direct evidence, then felons would go free and the community would be denied proper protection. As discussed above, the circumstantial evidence as established by the prosecution in this case and enumerated by the trial court positively established the identity of GALLARDE, and no one else, as the person who killed EDITHA. We cannot agree with the trial court's rejection of the photographs (Exhibits "I," "J" and "K") taken of GALLARDE immediately after the incident on the ground that "the same were taken while [GALLARDE] was already under the mercy of the police." The taking of pictures of an accused even without the assistance of counsel, being a purely mechanical act, is not a violation of his constitutional right against self-incrimination. The constitutional right of an accused against self-incrimination26 proscribes the use of physical or moral compulsion to extort communications from the accused and not the inclusion of his body in evidence when it may be material. Purely mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the assistance and guiding hand of counsel is not required.27 The essence of the right against self-incrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act.28Hence, it has been held that a woman charged with adultery may be compelled to submit to physical examination to determine her pregnancy;29 and an accused may be compelled to submit to physical examination and to have a substance taken from his body for medical determination as to whether he was suffering from gonorrhea which was contracted by his victim;30 to expel morphine from his mouth;31 to have the outline of his foot traced to determine its identity with bloody footprints;32 and to be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done.33 There is also no merit in GALLARDE's argument that the failure of the prosecution to prove beyond reasonable doubt the place and time of the commission of the crime is fatal and will justify his acquittal. The place, time and date of the commission of the offense are not essential elements of the crime of rape with homicide. The gravamen of the offense is the carnal knowledge of a woman and that on the occasion of or as a reason thereof,

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the crime of homicide was committed. Conviction may be had on proof of the commission of the crime provided it appears that the specific crime charged was in fact committed prior to the date of the filing of the complaint or information, within the period of the statute of limitation, and within the jurisdiction of the court.34 The allegation of the place of commission of the crime in the complaint or information is sufficient if it can be understood therefrom that the offense was committed or some of the essential ingredients thereof occurred at some place within the jurisdiction of the court.35 The rule merely requires that the information shows that the crime was committed within the territorial jurisdiction of the court. The Court may even take judicial notice that said place is within its jurisdiction. 36 As to the time of the commission of the crime, the phrase "on or about" employed in the information does not require the prosecution "to prove any precise date or time," but may prove any date or time which is not so remote as to surprise and prejudice the defendant."37 Contrary to the claim of GALLARDE, the prosecution was able to establish the proximate time of the commission of the crime, which was sometime between 9:00 p.m., when GALLARDE left the house of Talan followed by EDITHA, and 10:30 p.m., when the body of EDITHA was found. This was further corroborated by the examining physician who testified, on the basis of the degree of rigor mortis, that EDITHA died more or less, at 10:00 p.m. of 6 May 1997.38 Likewise, GALLARDE's alibi and bare denial deserve no consideration. He did not present witnesses who could confirm his presence in his house. No member of his family corroborated him on this matter. The defenses of denial and alibi, if unsubstantiated by clear and convincing evidence, are negative and self-serving, deserve no weight in law, and cannot be given evidentiary value over the testimony of credible witnesses who testify on affirmative matters.39 Moreover, even assuming that GALLARDE's claim is true, his stay in his house did not preclude his physical presence at the locus criminis or its immediate vicinity. The place where the body of EDITHA was found buried was a few meters from his house, the place pointed to in the alibi and can be reached in a short while. For the defense of alibi to prosper, the requirements of time and place must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed, he must demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission.40 Besides, no evil motive has been established against the witnesses for the prosecution that might prompt them to incriminate the accused or falsely testify against him. It is settled that when there is no showing that the principal witnesses for the prosecution were actuated by improper motive, the presumption is that the witnesses were not so actuated and their testimonies are thus entitled to full faith and credit.41 Testimonies of witnesses who have no motive or reason to falsify or perjure their testimonies should be given credence.42

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With respect to GALLARDE's claim that he was arrested without warrant, suffice it to say that any objection, defect, or irregularity attending an arrest must be made before the accused enters his plea.43 The records show no objection was ever interposed prior to arraignment and trial.44 GALLARDE's assertion that he was denied due process by virtue of his alleged illegal arrest is negated by his voluntary submission to the jurisdiction of the trial court, as manifested by the voluntary and counsel-assisted plea he entered during arraignment and by his active participation in the trial thereafter.45 It is settled that any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived.46 It is much too late in the day to complain about the warrantless arrest after a valid information had been filed and the accused arraigned and trial commenced and completed and a judgment of conviction rendered against him.47 Verily, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after trial free from error; such arrest does not negate the validity of the conviction of the accused.48 Homicide, which we find to be the only crime committed by GALLARDE, is defined in Article 249 of the Revised Penal Code and is punished with reclusion temporal. In the absence of any modifying circumstance, it shall be imposed in its medium period. GALLARDE is entitled to the benefits of the Indeterminate Sentence Law. Accordingly, he can be sentenced to suffer an indeterminate penalty ranging from ten (10) years of the medium period of prision mayor as minimum to seventeen (17) years and four (4) months of the medium period of reclusion temporal as maximum. As to the civil aspect of the case, the parties agreed on P70,000 as liquidated damages. This should be construed as actual damages. However, as indemnity for death, the additional sum of P50,000, per current case law, should be awarded. WHEREFORE, the assailed decision of the Regional Trial Court, Branch 51, Tayug, Pangasinan, in Criminal Case No. T-1978 finding accused-appellant RADEL GALLARDE guilty of the crime of murder is hereby modified. As modified, RADEL GALLARDE is hereby found guilty beyond reasonable doubt, as principal, of the crime of Homicide, defined under Article 249 of the Revised Penal Code, and is hereby sentenced to suffer an indeterminate penalty ranging from ten (10) years of the medium period of of prision mayor as minimum to seventeen (17) years and four (4) months of the medium period of reclusion temporal as maximum, and to pay the heirs of the victim, Editha Talan, the sum of P70,000 as liquidated actual damages and P50,000 as indemnity for the death of Editha Talan. Costs against accused-appellant RADEL GALLARDE in both instances.1âwphi1.nêt SO ORDERED.

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[G. R. Nos. 148948 & 148951-60. February 17, 2003]

COMMISSION ON ELECTIONS, petitioner, vs. HON LUCENITO N. TAGLE, Presiding Judge, Regional Trial Court, Branch 20, Imus, Cavite, respondent.

DAVIDE, JR., C.J.: In this special civil action for certiorari and mandamus, petitioner Commission on Elections (COMELEC) seeks the nullification of the orders of 16 March 2001 [1] and 9 May 2001[2] of respondent Judge Lucenito N. Tagle of the Regional Trial Court (RTC), Branch 20, Imus, Cavite, denying petitioners motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 and motion for reconsideration, respectively. During the 11 May 1998 elections, Florentino A. Bautista ran for the position of mayor in the Municipality of Kawit, Cavite. On 8 July 1998, he filed with the COMELEC a complaint against then incumbent mayor Atty. Federico Poblete, Bienvenido Pobre, Reynaldo Aguinaldo, Arturo Ganibe, Leonardo Llave, Diosdado del Rosario, Manuel Ubod, Angelito Peregrino, Mario Espiritu, Salvador Olaes and Pedro Paterno, Jr., for violation of Section 261 (a) and (b) of the Omnibus Election Code. The complaint was supported by the separate affidavits of forty-four (44) witnesses attesting to the vote-buying activities of the respondents and was docketed as E.O. Case No. 98-219. On 25 February 1999, upon the recommendation of its Law Department, the COMELEC en banc issued a resolution[3] directing the filing of the necessary information against the respondents in E.O. Case No. 98-219 and authorizing the Director IV of the Law Department to designate a COMELEC prosecutor to handle the prosecution of the cases and to file the appropriate motion for the preventive suspension of the respondents. The Law Department filed the corresponding information against the respondents in E.O. Case No. 98-219 before the RTC, Branch 90, Imus, Cavite, which was docketed as Criminal Case No. 7034-99. Before the trial of Criminal Case No. 7034-99 commenced, or on 2 December 1999, a complaint was filed by Innocencio Rodelas and Gerardo Macapagal with the Office of the Provincial Prosecutor in Imus, Cavite, for violation of Section 261(a) of the Omnibus Election Code against the witnesses in the criminal case for votebuying, who were the witnesses in E.O. Case No. 98-219. The complaint was docketed as I.S. No. 1-99-1080. On 10 April 2000, the Office of the Provincial Prosecutor resolved to file separate informations for vote-selling in the various branches of the RTC in Imus, Cavite, against the respondents in I.S. No. 1-99-1080. The cases were docketed as (1) Criminal Cases Nos. 7940-00 to 7949-00 and 7981-00, which were assigned to Branch 22; (2) Criminal Cases Nos. 7973-00 to 7979-00 and 7970-00, assigned to Branch 21;

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(3) Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00, assigned to Branch 20; and (4) Criminal Cases Nos. 7960-00 to 7969-00, assigned to Branch 90. On 23 June 2000, the respondents in I.S. No. 1-99-1080 appealed before the COMELEC the 10 April 2000 Resolution of the Provincial Prosecutor. On 6 July 2000, the COMELEC en banc denied the appeal for lack of jurisdiction.[4] However, upon the urgent motion to set for hearing the appeal, the COMELEC en banc resolved to defer action on the appeal and refer the same to the Law Department for comment and recommendation.[5] The Law Department of the COMELEC filed motions to suspend proceedings before Branches 20, 21, 22 and 90 of the RTC of Imus, Cavite, until the COMELEC would have resolved the appeal of the respondents in I.S. No. 1-99-1080. The Presiding Judge of Branch 22 granted the motion for the suspension of proceedings in Criminal Cases Nos. 7940-00 to 7949-00 and 7981-00. In its Minute Resolution No. 00-2453,[6] the COMELEC en banc, upon the recommendation of its Law Department, declared null and void the resolution of the Office of the Provincial Prosecutor in I.S. No. 1-99-1080. It held that the respondents therein are exempt from criminal prosecution pursuant to the fourth paragraph of Section 28 of R.A. No. 6646,[7] otherwise known as The Electoral Reforms Law of 1987, which grants immunity from criminal prosecution persons who voluntarily give information and willingly testify against those liable for vote-buying or vote-selling. It further directed the Law Department to file the necessary motions to dismiss the criminal cases filed against the said respondents. Pursuant to Minute Resolution No. 00-2453, the Law Department filed a motion to dismiss[8] Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 before Branch 20 of the RTC of Imus, Cavite, presided by herein respondent judge. The latter, however, denied the said motion and the motion for reconsideration. According to respondent judge, before one can be exempt from prosecution under the fourth paragraph of Section 28 of R.A. No. 6646, it is necessary that such person has already performed the overt act of voluntarily giving information or testifying in any official investigation or proceeding for the offense to which such information or testimony was given. It was thus premature to exempt the respondents in I.S. No. 1-99-1080 from criminal prosecution, since they have not yet testified. Hence, this petition, ascribing to the respondent judge grave abuse of discretion amounting to excess or lack of jurisdiction in peremptorily denying the prosecutions motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00. This Court referred the petition to the Office of the Solicitor General (OSG) and required it to manifest whether it is adopting the petition. [9] In a Manifestation and Motion[10] filed with this Court, the OSG stated that it repleads the submissions contained in the petition and adopts the petition as its own. The petition is meritorious. A free, orderly, honest, peaceful, and credible election is indispensable in a democratic society. Without it, democracy would not flourish and would be a sham. Election offenses, such as vote-buying and vote-selling, are evils which prostitute the election process. They destroy the sanctity of the votes and abet the

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entry of dishonest candidates into the corridors of power where they may do more harm. As the Bible says, one who is dishonest in very small matters is dishonest in great ones. One who commits dishonesty in his entry into an elective office through the prostitution of the electoral process cannot be reasonably expected to respect and adhere to the constitutional precept that a public office is a public trust, and that all government officials and employees must at all times be accountable to the people and exercise their duties with utmost responsibility, integrity, loyalty, and efficiency. The provision of law alleged to have been violated by the respondents in E.O. Case No. 98-219, who are the accused in Criminal Case No. 7034-99, reads as follows: SEC. 261. Prohibited Acts. - The following shall be guilty of an election offense: (a) Vote-buying and vote-selling. - (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party. (2) Any person, association, corporation, group or community who solicits or receives, directly or indirectly, any expenditure or promise of any office or employment, public or private, for any of the foregoing considerations. (b) Conspiracy to bribe voters. - Two or more persons whether candidates or not, who come to an agreement concerning the commission of any violation of paragraph (a) of this section and decide to commit it. One of the effective ways of preventing the commission of vote-buying and of prosecuting those committing it is the grant of immunity from criminal liability in favor of the party whose vote was bought. This grant of immunity will encourage the recipient or acceptor to come into the open and denounce the culprit-candidate, and will ensure the successful prosecution of the criminal case against the latter. Congress saw the wisdom of this proposition, and so Section 28 of R.A. No. 6646 on Prosecution of Vote-Buying and Vote-Selling concludes with this paragraph: The giver, offeror, the promisor as well as the solicitor, acceptor, recipient and conspirator referred to in paragraphs (a) and (b) of Section 261 of Batas Pambansa Blg. 881 shall be liable as principals: Provided, That any person, otherwise guilty under said paragraphs who voluntarily gives information and willingly testifies on any violation thereof in any official investigation or proceeding shall be exempt from prosecution and punishment for the offenses with reference to which his information and testimony were given: Provided, further, That nothing

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herein shall exempt such person from criminal prosecution for perjury or false testimony. However, to avoid possible fabrication of evidence against the vote-buyers, especially by the latters opponents, Congress saw it fit to warn vote-sellers who denounce the vote-buying that they could be liable for perjury or false testimony should they not tell the truth. It must be stressed that the COMELEC has the exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. [11] The Chief State Prosecutor, all Provincial and City Prosecutors, or their respective assistants are, however, given continuing authority, as deputies of the COMELEC, to conduct preliminary investigation of complaints involving election offenses and to prosecute the same.[12] This authority may be revoked or withdrawn by the COMELEC anytime whenever, in its judgment, such revocation or withdrawal is necessary to protect the integrity of the COMELEC and to promote the common good, or when it believes that the successful prosecution of the case can be done by the COMELEC.[13] In this case, when the COMELEC nullified the resolution of the Provincial Prosecutor in I.S. No. 1-99-1080, which was the basis of the informations for voteselling, it, in effect, withdrew the deputation granted to the prosecutor. Such withdrawal of the deputation was clearly in order, considering the circumstances obtaining in these cases where those who voluntarily executed affidavits attesting to the vote-buying incident and became witnesses against the vote-buyers now stand as accused for the same acts they had earlier denounced. What the Prosecutor did was to sabotage the prosecution of the criminal case against the vote-buyers and put in serious peril the integrity of the COMELEC, which filed the said case for vote-buying.If the Prosecutor had listened to the command of prudence and good faith, he should have brought the matter to the attention of the COMELEC. Petitioner COMELEC found that the respondents in I.S. No. 1-99-1080, who executed affidavits and turned witnesses in Criminal Case No. 7034-99, voluntarily admitted that they were the acceptors or recipients in the vote-buying done by the accused in said case. It was precisely because of such voluntary admission and willingness to testify that the COMELEC en banc,in its Minute Resolution No. 00-2453, declared null and void the resolution of the Office of the Provincial Prosecutor of Cavite in I.S. No. 1-99-1080 and held that the respondents therein are exempt from criminal prosecution pursuant to the last paragraph of Section 28 of R.A. No. 6646. Hence, it directed its Law Department to file a motion to dismiss the criminal cases which the Office of the Provincial Prosecutor filed in court against the respondents in I.S. No. 1-99-1080. We agree with the petitioner and hold that the respondents in I.S. No. 1-991080, who are the accused in Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00, are exempt from criminal prosecution for vote-selling by virtue of the proviso in the last paragraph of Section 28 of R.A. No. 6646. Respondent judge lost sight of the fact that at the time the complaint for vote-selling was filed with the Office of the

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Provincial Prosecutor, the respondents in I.S. No. 1-99-1080 had already executed sworn statements attesting to the corrupt practice of vote-buying in the case docketed as Criminal Case No. 7034-99. It cannot then be denied that they had already voluntarily given information in the vote-buying case. In fact, they willingly testified in Criminal Case No. 7034-99 per petitioners Memorandum filed with this Court.[14] In a futile attempt to justify his denial of the motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00, respondent judge averred in his comment on the petition that nothing was mentioned in the motion to dismiss that the accused in said cases had already given information or testified in any proceeding. Besides, no record of any preliminary investigation was attached to the motion to dismiss. The petitioner merely referred to the dispositive portion of Minute Resolution No. 002453 without mentioning any preliminary investigation conducted by the Law Department of the COMELEC. This contention is without basis. A reading of the motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 shows that a certified true copy of COMELEC Minute Resolution No. 00-2453 was attached thereto and was made an integral part thereof. The attached resolution indicated that the accused in the cases sought to be dismissed had voluntarily given information and were willing to testify against the vote-buyers, and are therefore utilized as witnesses in the pending case for vote-buyers docketed as Criminal Case No. 7034-99. Clearly then, respondent judge committed grave abuse of discretion when he denied the motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 despite COMELECs determination that the accused therein are exempt from criminal prosecution for vote-selling pursuant to the proviso in the fourth paragraph of Section 28 of R.A. No. 6646. WHEREFORE, the petition is GRANTED. The challenged orders dated 16 March 2001 and 9 May 2001 of respondent judge in Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 before Branch 20 of the Regional Trial Court in Imus, Cavite, are hereby SET ASIDE, and said criminal cases are ordered DISMISSED. No pronouncement as to costs. SO ORDERED.

G.R. No. 200748

July 23, 2014

JAIME D. DELA CRUZ, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. SERENO, CJ: This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz, from the Decision1 dated 22 June 2011 issued by the Twentieth Division of the Court of

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Appeals (CA) and Resolution2 dated 2 February 2012 issued by the Former Twentieth Division of the CA in CA-G.R. C.R. No. 00670. THE ANTECEDENT FACTS Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of Republic Act No. (R.A.) 9165, or The Comprehensive Dangerous Drugs Act of 2002, by the Graft Investigation and Prosecution Officer of the Office of the Ombudsman - Visayas, in an Information3 dated 14 February 2006, which reads: That on or about the 31st day of January 2006, at Cebu City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, JAIME D. DE LA CRUZ, a public officer, having been duly appointed and qualified to such public position as Police Officer 2 of the Philippine National Police (PNP) assigned in the Security Service Group of the Cebu City Police Office, after having beenarrested by agents of the National Bureau of Investigation (NBI) in an entrapment operation, was found positive for use of METHAMPHETAMINE HYDROCHLORIDEcommonly known as "Shabu", the dangerous drug after a confirmatory test conducted on said accused. CONTRARY TO LAW. When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the charge. The records do not reveal whether De la Cruz was likewise charged for extortion. VERSION OF THE PROSECUTION The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the agents and special investigators of the National Bureau of Investigation, Central Visayas Regional Office (NBI-CEVRO) or simply NBI, received a Complaint from Corazon Absin (Corazon) and Charito Escobido (Charito). The complainants claimed that at 1:00 a.m. of that same day, Ariel Escobido (Ariel), the live-in partner of Corazon and son of Charito, was picked up by several unknown male persons believed to be police officers for allegedly selling drugs. An errand boy gave a number to the complainants, and when the latter gave the number a ring, they were instructed to proceed to the Gorordo Police Office located along Gorordo Avenue, Cebu City. In the said police office, they met "James" who demanded from them ₱100,000, later lowered to ₱40,000, in exchange for the release of Ariel. After the meeting, the complainants proceeded to the NBI-CEVRO to file a complaint and narrate the circumstances of the meeting to the authorities. While at the NBI-CEVRO, Charitoeven received calls supposedly from "James" instructing her to bring the money as soon as possible. The special investigators at the NBI-CEVRO verified the text messages received by the complainants.1âwphi1 A team was immediately formed to implement an entrapment operation, which took place inside a Jollibee branch at the corner of

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Gen. Maxilom and Gorordo Avenues, Cebu City. The officers were able to nab Jaime dela Cruz by using a pre-marked 500 bill dusted with fluorescent powder, which was made part of the amount demanded by "James" and handed by Corazon. Petitioner was later brought to the forensic laboratory of the NBI-CEVRO where forensic examination was done by forensic chemist Rommel Paglinawan. Petitioner was required to submit his urine for drug testing. It later yielded a positive result for presence of dangerous drugs as indicated in the confirmatory test result labeled as Toxicology (DangerousDrugs) Report No. 2006-TDD-2402 dated 16 February 2006. VERSION OF THE DEFENSE The defense presented petitioner as the lone witness. He denied the charges and testified that while eating at the said Jollibee branch, he was arrested allegedly for extortion by NBI agents. When he was at the NBI Office, he was required to extract urine for drug examination, but he refused saying he wanted it to be done by the Philippine National Police (PNP) Crime Laboratory and not by the NBI. His request was, however, denied. He also requested to be allowed to call his lawyer prior to the taking of his urine sample, to no avail. THE RULING OF THE RTC The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision 4 dated 6 June 2007, found the accused guilty beyond reasonable doubt of violating Section 15, Article II of R.A. 9165 and sentenced him to suffer the penalty of compulsory rehabilitation for a period of not less than six (6) months at the Cebu Center for the Ultimate Rehabilitation of Drug Dependents located at Salinas, Lahug, Cebu City. 5 Petitioner filed an appeal assigning as error the RTC’s validation of the result of the urine test despite its dubiousness having been admitted in spite of the lack of legal basis for itsadmission. First, he alleges that the forensic laboratory examination was conducted despite the fact that he was not assisted by counsel, in clear violation of his constitutional right. Secondly, he was allegedly held guilty beyond reasonable doubt notwithstanding the lack of sufficient basis to convict him. THE RULING OF THE CA The CA found the appeal devoid of merit and affirmed the ruling of the RTC. Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked prevailing jurisprudence, which states that drug testing conducted under circumstancessimilar to his would violate a person’s right to privacy. The appellate court nevertheless denied the motion. Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors the use of hearsay evidence as basis for his conviction and the questionable circumstances surrounding his arrest and drug test.

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Respondent, through the Office of the Solicitor General, filed its Comment,6 saying that "petitioner’s arguments cannot be the subject of a petition for review on certiorariunder Rule 45, as they involve questions of facts which may not be the subject thereof; after his arraignment, he can no longer contest the validity of his arrest, less so at this stage of the proceedings; his guilt has been adequately established by direct evidence; and the manner in which the laboratory examination was conducted was grounded on a valid and existing law. THE ISSUE We deem it proper to give due course to this Petition by confronting head-on the issue of whether or not the drug test conducted upon the petitioner is legal. OUR RULING We declare that the drug testconducted upon petitioner is not grounded upon any existing law or jurisprudence. We gloss over petitioner’s non-compliance with the Resolution7 ordering him to submit clearly legible duplicate originals or certified true copies of the assailed Decision and Resolution. Petitioner was charged with use of dangerous drugs in violation of the law, the pertinent provision of which reads: Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (₱50,000.00) to Two hundred thousand pesos (₱200,000.00): Provided,That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply.8 The RTC subsequently convicted petitioner, ruling that the following elements of Section 15 were established: (1) the accused was arrested; (2) the accused was subjected to drug test; and (3) the confirmatory test shows that he used a dangerous drug. Disregarding petitioner’s objection regarding the admissibility of the evidence, the lower court also reasoned that "a suspect cannot invoke his right to counsel when he is required to extract urine because, while he is already in custody, he is not compelled to make a statement or testimony against himself. Extracting urine from one’s body is merely a mechanical act, hence, falling outside the concept of a custodial investigation."

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We find the ruling and reasoning of the trial court, as well as the subsequent affirmation by the CA, erroneous on three counts. The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful act, but only for unlawful acts listed under Article II of R.A. 9165. First, "[a] person apprehended orarrested" cannot literally mean any person apprehended or arrested for any crime.The phrase must be read in context and understood in consonance with R.A. 9165. Section 15 comprehends persons arrested or apprehended for unlawful acts listed under Article II of the law. Hence, a drug test can be made upon persons who are apprehended or arrested for, among others, the "importation,"9 "sale, trading, administration, dispensation, delivery, distribution and transportation",10"manufacture"11 and "possession"12 of dangerous drugs and/or controlled precursors and essential chemicals; possession thereof "during parties, social gatherings or meetings"13 ; being "employees and visitors of a den, dive or resort";14 "maintenance of a den, dive or resort";15 "illegal chemical diversion of controlled precursors and essential chemicals"16 ; "manufacture or delivery"17 or "possession"18 of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs and/or controlled precursors and essential chemicals; possession of dangerous drugs "during parties, social gatherings or meetings"19 ; "unnecessary"20 or "unlawful"21 prescription thereof; "cultivation or culture of plantsclassified as dangerous drugs or are sources thereof";22 and "maintenance and keeping of original records of transactions on dangerous drugs and/orcontrolled precursors and essential chemicals." 23 To make the provision applicable to all persons arrested or apprehended for any crime not listed under Article II is tantamount to unduly expanding its meaning. Note thataccused appellant here was arrested in the alleged act of extortion. A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the law to rehabilitate persons apprehended or arrested for the unlawful acts enumerated above instead of charging and convicting them of other crimes with heavier penalties. The essence of the provision is more clearly illustrated in People v. Martinez24 as follows: On a final note, this Court takes the opportunity to be instructive on Sec. 11 (Possession of Dangerous Drugs) and Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165, withregard to the charges that are filed by law enforcers. This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases where the presence of dangerous drugs as basis for possession is only and solely in the form of residue, being subsumed under the last paragraph of Sec. 11. Although not incorrect, it would be more in keeping withthe intent of the law to file charges under Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided thatthere is a positive confirmatory test result as required under Sec. 15.The minimum penalty under the last paragraph of Sec. 11 for the possession of residue isimprisonment of twelve years and one day, while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six months rehabilitation in a government center. To file charges under Sec. 11 on the basis of residue alone

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would frustrate the objective of the law to rehabilitate drug users and provide them with an opportunity to recover for a second chance at life. In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug paraphernalia, and the accused were found positive for use of dangerous drugs. Granting that the arrest was legal, the evidence obtained admissible, and the chain of custody intact, the law enforcers should have filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there was no residue at all, they should have been charged under Sec. 14 (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings). Sec. 14 provides that the maximum penalty under Sec. 12(Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) shall be imposed on any person who shall possess any equipment, instrument, apparatus and other paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment of four years and a fine of ₱50,000.00. In fact, under the same section, the possession of such equipment, apparatus or other paraphernalia is prima facieevidence that the possessor has used a dangerous drug and shall be presumed to have violated Sec. 15. In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the presence of dangerous drugs isonly and solely in the form of residue and the confirmatory test required under Sec. 15 is positive for use of dangerous drugs.In such cases, to afford the accused a chance to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should only be done when another separate quantity of dangerous drugs, other than mere residue, is found in the possession of the accused as provided for in Sec. 15. (Emphasis supplied) Furthermore, making the phrase "a person apprehended or arrested" in Section 15 applicable to all persons arrested or apprehended for unlawful acts, not only under R.A. 9165 but for all other crimes, is tantamount to a mandatory drug testing of all persons apprehended or arrested for any crime. To overextend the application of thisprovision would run counter to our pronouncement in Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency,25 to wit: x x x [M]andatory drug testing can never be random and suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor’s office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of

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RA 6195. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. (Emphasis supplied) The drug test is not covered by allowable non-testimonial compulsion. We find that petitioner never raisedthe alleged irregularity of his arrest before his arraignment and raises the issue only now before this tribunal; hence, he is deemed to have waived his right to question the validity of his arrest curing whatever defect may have attended his arrest.26 However, "a waiver of an illegal warrantless arrest does not mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest."27 We are aware of the prohibition against testimonial compulsion and the allowable exceptions to such proscription. Cases where non-testimonial compulsion has been allowed reveal, however, that the pieces of evidence obtained were all material to the principal cause of the arrest. The constitutional right of an accused against self-incrimination proscribes the use of physical or moral compulsion to extort communications from the accused and not the inclusion of his body in evidence when it may be material. Purely mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the assistance and guiding hand ofcounsel is not required. (People vs. Olvis, 238 Phil. 513 [1987]) The essence of the right against selfincrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act. (People vs. Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs. Rondero, 378 Phil. 123 [1999]) Hence,it has been held that a woman charged with adultery may be compelled to submit to physical examination to determine her pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920]) and an accused may be compelled to submit to physical examination and to have a substance taken from his body for medical determination as to whether he was suffering from gonorrhea which was contracted by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to have the outline of his foot traced todetermine its identity with bloody footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done.(People vs. Otadora, 86 Phil. 244 [1950])28(Emphasis supplied) In the instant case, we fail to see howa urine sample could be material to the charge of extortion.1âwphi1 The RTC and the CA, therefore, both erred when they held that the extraction of petitioner’s urine for purposes of drug testing was "merely a mechanical act, hence, falling outside the concept of a custodial investigation." We note a case where a urine sample was considered as admissible. In Gutang v. People,29 the petitioner therein and his companions were arrested in connection with the enforcement of a search warrant in his residence. A PNP-NARCOM team

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found and confiscated shabu materials and paraphernalias. The petitioner and his companions in that case were also asked to give urine samples, which yielded positive results. Later, the petitioner therein was found guilty of the crime of illegal possession and use of prohibited drugs. Gutang claimed that the latter’s urine sample was inadmissible in evidence, since it was derived in effect from an uncounselled extrajudicial confession. In the Gutang et al.case, the Court clarified that "what the Constitution prohibits is the use of physical or moral compulsion to extort communication from the accused, but not an inclusion of his body in evidence, when it may be material." The situation in Gutangwas categorized as falling among the exemptions under the freedom from testimonial compulsion since what was sought tobe examined came from the body of the accused. The Court said: This was a mechanical act the accused was made to undergo which was not meant to unearth undisclosedfacts but to ascertain physical attributes determinable by simple observation. In fact, the record shows that petitioner and his co-accused were not compelled to give samples of their urine but they in fact voluntarily gave the same when they were requested to undergo a drug test. Assuming arguendothat the urine samples taken from the petitioner are inadmissible in evidence, we agree with the trial court that the record is replete with other pieces of credible evidence including the testimonial evidence of the prosecution which point to the culpability of the petitioner for the crimes charged. We emphasize that the circumstances in Gutangare clearly different from the circumstances of petitioner in the instant case.1awp++i1 First, Gutang was arrested in relation to a drug case. Second, he volunteered to give his urine. Third, there were other pieces of evidence that point to his culpability for the crimes charged. In the present case, though, petitioner was arrested for extortion; he resisted having his urine sample taken; and finally, his urine sample was the only available evidencethat was used as basis for his conviction for the use of illegal drugs. The drug test was a violation of petitioner’s right to privacy and right against selfincrimination. It is incontrovertible that petitioner refused to have his urine extracted and tested for drugs. He also asked for a lawyer prior to his urine test. He was adamant in exercising his rights, but all of his efforts proved futile, because he was still compelled to submit his urine for drug testing under those circumstances. The pertinent provisions in Article III of the Constitution are clear: Section 2. The right of the people to be securein 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

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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. Section 17. No person shall be compelled to be a witness against himself. In the face of these constitutional guarantees, we cannot condone drug testing of all arrested persons regardless of the crime or offense for which the arrest is being made. While we express our commendation of law enforcement agents as they vigorously track down offenders intheir laudable effort to curb the pervasive and deleterious effects of dangerous drugs on our society, they must, however, be constantly mindful of the reasonable limits of their authority, because it is not unlikely that in their clear intent to purge society of its lawless elements, they may be knowingly or unknowingly transgressing the protected rights of its citizens including even members of its own police force. WHEREFORE, premises considered, the assailed Decision dated 22 June 2011 issued by the Twentieth Division, and the Resolution dated 2 February 2012 issued by the former Twentieth Division of the Court of Appeals, in CA-G.R. C.R. No. 00670 are SET ASIDE. Petitioner is hereby ACQUITTED. SO ORDERED.

RIGHT AGAINST CRUEL, DEGRADING AND INHUMAN PUNISHMMENT REPUBLIC ACT N0. 9745 AN ACT PENALIZING TORTURE AND OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT AND PRESCRIBING PENALTIES THEREFOR Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Section 1. Short Title. - This Ad shall be known as the "Anti-Torture Act of 2009". Section 2. Statement of Policy. - It is hereby declared the policy of the State: (a) To value the dignity of every human person and guarantee full respect for human rights;

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(b) To ensure that the human rights of all persons, including suspects, detainees and prisoners are respected at all times; and that no person placed under investigation or held in custody of any person in authority or, agent of a person authority shall be subjected to physical, psychological or mental harm, force, violence, threat or intimidation or any act that impairs his/her free wi11 or in any manner demeans or degrades human dignity; (c) To ensure that secret detention places, solitary, incommunicado or other similar forms of detention, where torture may be carried out with impunity, are prohibited; and (d) To fully adhere to the principles and standards on the absolute condemnation and prohibition of torture as provided for in the 1987 Philippine Constitution; various international instruments to which the Philippines is a State party such as, but not limited to, the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDA W) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and all other relevant international human rights instruments to which the Philippines is a signatory. Section 3. Definitions. - For purposes of this Act, the following terms shall mean: (a) "Torture" refers to an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession; punishing him/her for an act he/she or a third person has committed or is suspected of having committed; or intimidating or coercing him/her or a third person; or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority. It does not include pain or Buffering arising only from, inherent in or incidental to lawful sanctions. (b) "Other cruel, inhuman and degrading treatment or punishment" refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against a person under his/her custody, which attains a level of severity causing suffering, gross humiliation or debasement to the latter. (c) "Victim" refers to the person subjected to torture or other cruel, inhuman and degrading treatment or punishment as defined above and any individual who has suffered harm as a result of any act(s) of torture, or other cruel, inhuman and degrading treatment or punishment.

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(d) "Order of Battle" refers to any document or determination made by the military, police or any law enforcement agency of the government, listing the names of persons and organizations that it perceives to be enemies of the State and that it considers as legitimate targets as combatants that it could deal with, through the use of means allowed by domestic and international law. Section 4. Acts of Torture. - For purposes of this Act, torture shall include, but not be limited to, the following: (a) Physical torture is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, such as: (1) Systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach; (2) Food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten; (3) Electric shock; (4) Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound(s); (5) The submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation; (6) Being tied or forced to assume fixed and stressful bodily position; (7) Rape and sexual abuse, including the insertion of foreign objects into the sex organ or rectum, or electrical torture of the genitals; (8) Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.; (9) Dental torture or the forced extraction of the teeth; (10) Pulling out of fingernails;

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(11) Harmful exposure to the elements such as sunlight and extreme cold; (12) The use of plastic bag and other materials placed over the head to the point of asphyxiation; (13) The use of psychoactive drugs to change the perception, memory. alertness or will of a person, such as: (i) The administration or drugs to induce confession and/or reduce mental competency; or (ii) The use of drugs to induce extreme pain or certain symptoms of a disease; and (14) Other analogous acts of physical torture; and (b) "Mental/Psychological Torture" refers to acts committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person's dignity and morale, such as: (1) Blindfolding; (2) Threatening a person(s) or his/fher relative(s) with bodily harm, execution or other wrongful acts; (3) Confinement in solitary cells or secret detention places; (4) Prolonged interrogation; (5) Preparing a prisoner for a "show trial", public display or public humiliation of a detainee or prisoner; (6) Causing unscheduled transfer of a person deprived of liberty from one place to another, creating the belief that he/she shall be summarily executed; (7) Maltreating a member/s of a person's family; (8) Causing the torture sessions to be witnessed by the person's family, relatives or any third party; (9) Denial of sleep/rest;

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(10) Shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim's head or putting marks on his/her body against his/her will; (11) Deliberately prohibiting the victim to communicate with any member of his/her family; and (12) Other analogous acts of mental/psychological torture. Section 5. Other Cruel, Inhuman and Degrading Treatment or Punishment. - Other cruel, inhuman or degrading treatment or punishment refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against another person in custody, which attains a level of severity sufficient to cause suffering, gross humiliation or debasement to the latter. The assessment of the level of severity shall depend on all the circumstances of the case, including the duration of the treatment or punishment, its physical and mental effects and, in some cases, the sex, religion, age and state of health of the victim. Section 6. Freedom from Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, An Absolute Bight. - Torture and other cruel, inhuman and degrading treatment or punishment as criminal acts shall apply to all circumstances. A state of war or a threat of war, internal political instability, or any other public emergency, or a document or any determination comprising an "order of battle" shall not and can never be invoked as a justification for torture and other cruel, inhuman and degrading treatment or punishment. Section 7. Prohibited Detention. - Secret detention places, solitary confinement, incommunicado or other similar forms of detention, where torture may be carried out with impunity. Are hereby prohibited. In which case, the Philippine National Police (PNP), the Armed Forces of the Philippines (AFP) and other law enforcement. agencies concerned shall make an updated list of all detention centers and facilities under their respective jurisdictions with the corresponding data on the prisoners or detainees incarcerated or detained therein such as, among others, names, date of arrest and incarceration, and the crime or offense committed. This list shall be made available to the public at all times, with a copy of the complete list available at the respective national headquarters of the PNP and AFP. A copy of the complete list shall likewise be submitted by the PNP, AFP and all other law enforcement agencies to the Commission on Human Rights (CHR), such list to be periodically updated, by the same agencies, within the first five (5) days of every month at the minimum. Every regional office of the PNP, AFP and other law enforcement agencies shall also maintain a similar list far all detainees and detention facilities within their respective areas, and shall make the same available to the public at all times at their respective regional headquarters, and submit a copy. updated in the same manner provided above, to the respective regional offices of the CHR.

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Section 8. Applicability of the Exclusionary Rule; Exception. - Any confession, admission or statement obtained as a result of torture shall be inadmissible in evidence in any proceedings, except if the same is used as evidence against a person or persons accused of committing torture. Section 9. Institutional Protection of Torture Victims and Other Persons Involved. - A victim of torture shall have the following rights in the institution of a criminal complaint for torture: (a) To have a prompt and an impartial investigation by the CHR and by agencies of government concerned such as the Department of Justice (DOJ), the Public Attorney's Office (PAO), the PNP, the National Bureau of Investigation (NBI) and the AFP. A prompt investigation shall mean a maximum period of sixty (60) working days from the time a complaint for torture is filed within which an investigation report and/or resolution shall be completed and made available. An appeal whenever available shall be resolved within the same period prescribed herein, (b) To have sufficient government protection against all forms of harassment; threat and/or intimidation as a consequence of the filing of said complaint or the presentation of evidence therefor. In which case, the State through its appropriate agencies shall afford security in order to ensure his/her safety and all other persons involved in the investigation and prosecution such as, but not limited to, his/her lawyer, witnesses and relatives; and (c) To be accorded sufficient protection in the manner by which he/she testifies and presents evidence in any fora in order to avoid further trauma. Section 10. Disposition of Writs of Habeas Corpus, Amparo and Habeas Data Proceedings and Compliance with a Judicial 07'der. - A writ of habeas corpus or writ of amparo or writ of habeas data proceeding, if any, filed on behalf of the victim of torture or other cruel, degrading and inhuman treatment or punishment shall be disposed of expeditiously and any order of release by virtue thereof, or other appropriate order of a court relative thereto, shall be executed or complied with immediately. Section 11. Assistance in Filing a Complaint. - The CHR and the PAO shall render legal assistance in the investigation and monitoring and/or filing of the complaint for a person who suffers torture and other cruel, inhuman and degrading treatment or punishment, or for any interested party thereto. The victim or interested party may also seek legal assistance from the Barangay Human Rights Action Center (BRRAC) nearest him/her as well as from human rights nongovernment organizations (NGOs).

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Section 12. Right to' Physical, Medical and Psychological Examination. - Before and after interrogation, every person arrested, detained or under custodial investigation shall have the right to he informed of his/her right to demand physical examination by an independent and competent doctor of his/her own choice. If such person cannot afford the services of his/her own doctor, he/she shall he provided by the State with a competent and independent doctor to conduct physical examination. The State shall endeavor to provide the victim with psychological evaluation if available under the circumstances. If the person arrested is a female, she shall be attended to preferably by a female doctor. Furthermore, any person arrested, detained or under custodial investigation, including his/her immediate family, shall have the right to immediate access to proper and adequate medical treatment. The physical examination and/or psychological evaluation of the victim shall be contained in a medical report, duly signed by the attending physician, which shall include in detail his/her medical history and findings, and which shall he attached to the custodial investigation report. Such report shall be considered a public document. Following applicable protocol agreed upon by agencies tasked to conduct physical, psychological and mental examinations, the medical reports shall, among others, include: (a) The name, age and address of the patient or victim; (b) The name and address of the nearest kin of the patient or victim; (c) The name and address of the person who brought the patient or victim for physical, psychological and mental examination, and/or medical treatment; (d) The nature and probable cause of the patient or victim's injury, pain and disease and/or trauma; (e) The approximate time and date when the injury, pain, disease and/or trauma was/were sustained; (f) The place where the injury, pain, disease and/or trauma was/were sustained; (g) The time, date and nature of treatment necessary; and (h) The diagnosis, the prognosis and/or disposition of the patient. Any person who does not wish to avail of the rights under this pr<;lvision may knowingly and voluntarily waive such rights in writing, executed in the presence and assistance of his/her counsel.

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Section 13. Who are Criminally Liable. - Any person who actually participated Or induced another in the commission of torture or other cruel, inhuman and degrading treatment or punishment or who cooperated in the execution of the act of torture or other cruel, inhuman and degrading treatment or punishment by previous or simultaneous acts shall be liable as principal Any superior military, police or law enforcement officer or senior government official who issued an order to any lower ranking personnel to commit torture for whatever purpose shall be held equally liable as principals. The immediate commanding officer of the unit concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies shall be held liable as a principal to the crime of torture or other cruel or inhuman and degrading treatment or punishment for any act or omission, or negligence committed by him/her that shall have led, assisted, abetted or allowed, whether directly or indirectly, the commission thereof by his/her subordinates. If he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed, or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence shall also be liable as principals. Any public officer or employee shall be liable as an accessory if he/she has knowledge that torture or other cruel, inhuman and degrading treatment or punishment is being committed and without having participated therein, either as principal or accomplice, takes part subsequent to its commission in any of the following manner: (a) By themselves profiting from or assisting the offender to profit from the effects of the act of torture or other cruel, inhuman and degrading treatment or punishment; (b) By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments thereof in order to prevent its discovery; or(c) By harboring, concealing or assisting m the escape of the principal/s in the act of torture or other cruel, inhuman and degrading treatment or punishment: Provided, That the accessory acts are done with the abuse of the official's public functions. Section 14. Penalties. - (a) The penalty of reclusion perpetua shall be imposed upon the perpetrators of the following acts:

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(1) Torture resulting in the death of any person; (2) Torture resulting in mutilation; (3) Torture with rape; (4) Torture with other forms of sexual abuse and, in consequence of torture, the victim shall have become insane, imbecile, impotent, blind or maimed for life; and (5) Torture committed against children. (b) The penalty of reclusion temporal shall be imposed on those who commit any act of mental/psychological torture resulting in insanity, complete or partial amnesia, fear of becoming insane or suicidal tendencies of the victim due to guilt, worthlessness or shame. (c) The penalty of prision correccional shall be imposed on those who commit any act of torture resulting in psychological, mental and emotional harm other than those described 1n paragraph (b) of this section. ' (d) The penalty of prision mayor in its medium and maximum periods shall be imposed if, in consequence of torture, the victim shall have lost the power of speech or the power to hear or to smell; or shall have lost an eye, a hand, a foot, an arm or a leg; or shall have lost the use of any such member; Or shall have become permanently incapacitated for labor. (e) The penalty of prision mayor in its minimum and medium periods shall be imposed if, in consequence of torture, the victim shall have become deformed or shall have lost any part of his/her body other than those aforecited, or shall have lost the use thereof, or shall have been ill or incapacitated for labor for a period of more than ninety (90) days. (f) The penalty of prision correccional in its maximum period to prision mayor in its minimum period shall be imposed if, in consequence of torture, the victim shall have been ill or incapacitated for labor for mare than thirty (30) days but not more than ninety (90) days. (g) The penalty of prision correccional in its minimum and medium period shall be imposed if, in consequence of torture, the victim shall have been ill or incapacitated for labor for thirty (30) days or less. (h) The penalty of arresto mayor shall be imposed for acts constituting cruel, inhuman or degrading treatment or punishment as defined in Section 5 of this Act.

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(i) The penalty of prision correccional shall be imposed upon those who establish, operate and maintain secret detention places and/or effect or cause to effect solitary confinement, incommunicado or other similar forms of prohibited detention as provided in Section 7 of this Act where torture may be carried out with impunity. (j) The penalty of arresto mayor shall be imposed upon the responsible officers or personnel of the AFP, the PNP and other law enforcement agencies for failure to perform his/her duty to maintain, submit or make available to the public an updated list of detention centers and facilities with the corresponding data on the prisoners or detainees incarcerated or detained therein, pursuant to Section 7 of this Act. Section 15. Torture as a Separate and Independent Crime. - Torture as a crime shall not absorb or shall not be absorbed by any other crime or felony committed as a consequence, or as a means in the conduct or commission thereof. In which case, torture shall be treated as a separate and independent criminal act whose penalties shall be imposable without prejudice to any other criminal liability provided for by domestic and international laws. Section 16. Exclusion from the Coverage of Special Amnesty Law. - In order not to depreciate the crime of torture, persons who have committed any act of torture shall not benefit from any special amnesty law or similar measures that will have the effect of exempting them from any criminal proceedings and sanctions. Section 17. Applicability of Refouler. - No person shall be expelled, returned or extradited to another State where there are substantial grounds to believe that such person shall be in danger of being subjected to torture. For the purposes of determining whether such grounds exist, the Secretary of the Department of Foreign Affairs (DFA) and the Secretary of the DOJ, in coordination with the Chairperson of the CHR, shall take into account all relevant considerations including, where applicable and not limited to, the existence in the requesting State of a consistent pattern of gross, flagrant or mass violations of human rights. Section 18. Compensation to Victims of Torture. - Any person who has suffered torture shall have the right to claim for compensation as provided for under Republic Act No. 7309: Provided, That in no case shall compensation be any lower than Ten thousand pesos (P10,000.00). Victims of torture shall also have the right to claim for compensation from such other financial relief programs that may be made available to him/her under existing law and rules and regulations. Section 19. Formulation of a Rehabilitation Program. - Within one (1) year from the effectivity of this Act, the Department of Social Welfare and Development (DSWD), the DOJ and the Department of Health (DOH) and such other concerned government agencies, and human rights organizations shall formulate a comprehensive rehabilitation program for victims of torture and their families. The DSWD, the DOJ and thc DOH shall also call on human rights nongovernment organizations duly recognized by the government to actively participate in the

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formulation of such program that shall provide for the physical, mental, social, psychological healing and development of victims of torture and their families. Toward the attainment of restorative justice, a parallel rehabilitation program for persons who have committed torture and other cruel, inhuman and degrading punishment shall likewise be formulated by the same agencies. Section 20. Monitoring of Compliance with this Act. - An Oversight Committee is hereby created to periodically oversee the implementation of this Act. The Committee shall be headed by a Commissioner of the CRR, with the following as members: the Chairperson of the Senate Committee on Justice and Human Rights, the respective Chairpersons of the House of Representatives' Committees on Justice and Human Rights, and the Minority Leaders of both houses or their respective representatives in the minority. Section 21. Education and Information Campaign. - The CHR, the DOJ, the Department of National Defense (DND), the Department of the Interior and Local Government (DILG) and such other concerned parties in both the public and private sectors shall ensure that education and information regarding prohibition against torture and other cruel, inhuman and degrading treatment or punishment shall be fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. The Department of Education (DepED) and the Commission on Higher Education (CHED) shall also ensure the integration of human rights education courses in all primary, secondary and tertiary level academic institutions nationwide. Section 22. Applicability of the Revised Penal Code. - The provisions of the Revised Penal Code insofar as they are applicable shall be suppletory to this Act. Moreover, if the commission of any crime punishable under Title Eight (Crimes Against Persons) and Title Nine (Crimes Against Personal Liberty and Security) of the Revised Penal Code is attended by any of the acts constituting torture and other cruel, inhuman and degrading treatment or punishment as defined herein, the penalty to be imposed shall be in its maximum period. Section 23. Appropriations. - The amount of Five million pesos (Php5,000,000.00) is hereby appropriated to the CHR for the initial implementation of tills Act. Thereafter, such sums as may be necessary for the continued implementation of this Act shall be included in the annual General Appropriations Act. Section 24. Implementing Rules and Regulations. - The DOJ and the CHR, with the active participation of human rights nongovernmental organizations, shall promulgate the rules and regulations for the effective implementation of tills Act. They shall also ensure the full dissemination of such rules and regulations to all officers and members of various law enforcement agencies.

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Section 25. Separability Clause. - If any provision of this Act is declared invalid or unconstitutional, the other provisions not affected thereby shall continue to be in full force and effect. Section 26. Repealing Clause. - All laws, decrees, executive orders or rules and regulations contrary to or inconsistent with the provisions of this Act are hereby repealed or modified accordingly. Section 27. Effectivity. - This Act shall take effect fifteen (15) days after its publication in the Official Gazette or in at least two (2) newspapers of general circulation. Approved, (Sgd.) PROSPERO C. NOGRALES Speaker of the House of Representatives

(Sgd.) JUAN PONCE ENRILE President of the Senate

This Act which is a consolidation of House Bill No. 5709 and Senate Bill No. 1978 was finally passed by the House of Representatives and the Senate on September 2,2009. (Sgd.) MARILYN B. BARUA-YAP Secretary General House of Representives

(Sgd.) EMMA LIRIO-REYES Secretary of Senate

Approved: November 10, 2009 (Sgd.) GLORIA MACAPAGAL-ARROYO President of the Philippines

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[G.R. No. 117472. February 7, 1997] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO ECHEGARAY y PILO, accused-appellant. PER CURIAM: On June 25, 1996, we rendered our decision in the instant case affirming the conviction of the accused-appellant for the crime of raping his ten-year old daughter. The crime having been committed sometime in April, 1994, during which time Republic Act (R.A.) No. 7659, commonly known as the Death Penalty Law, was already in effect, accused-appellant was inevitably meted out the supreme penalty of death. On July 9, 1996, the accused-appellant timely filed a Motion for Reconsideration which focused on the sinister motive of the victim's grandmother that precipitated the filing of the alleged false accusation of rape against the accused. We find no substantial arguments on the said motion that can disturb our verdict. On August 6, 1996, accused-appellant discharged the defense counsel, Atty. Julian R. Vitug, and retained the services of the Anti-Death Penalty Task Force of the Free Legal Assistance Group of the Philippines (FLAG). On August 23, 1996, we received the Supplemental Motion for Reconsideration prepared by the FLAG on behalf of accused-appellant. The motion raises the following grounds for the reversal of the death sentence: "[1] Accused-appellant should not have been prosecuted since the pardon by the offended party and her mother before the filing of the complaint acted as a bar to his criminal prosecution. [2] The lack of a definite allegation of the date of the commission of the offense in the Complaint and throughout trial prevented the accused-appellant from preparing an adequate defense. [3] The guilt of the accused was not proved beyond a reasonable doubt. [4] The Honorable Court erred in finding that the accused-appellant was the father or stepfather of the complainant and in affirming the sentence of death against him on this basis. [5] The trial court denied the accused-appellant of due process and manifested bias in the conduct of the trial. [6] The accused-appellant was denied his constitutional right to effective assistance of counsel and to due process, due to the incompetence of counsel. [7] se:

R.A. [No.] 7659, reimposing the death penalty is unconstitutional per

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a. For crimes where no death results from the offense, the death penalty is a severe and excessive penalty in violation of Article III, Sec. 19 ( I ) of the 1987 Constitution. b. The death penalty is cruel and unusual punishment in violation of Article III, Sec. 11 of the 1987 Constitution." In sum, the Supplemental Motion for Reconsideration raises three (3) main issues: (1) mixed factual and legal matters relating to the trial proceedings and findings; (2) alleged incompetence of accused-appellant's former counsel; and (3) purely legal question of the constitutionality of R.A. No. 7659. I. It is a rudimentary principle of law that matters neither alleged in the pleadings nor raised during the proceedings below cannot be ventilated for the first time on appeal before the Supreme Court. Moreover, as we have stated in our Resolution in Manila Bay Club Corporation v. Court of Appeals:[1] "If well-recognized jurisprudence precludes raising an issue only for the first time on appeal proper, with more reason should such issue be disallowed or disregarded when initially raised only in a motion for reconsideration of the decision of the appellate court." It is to be remembered that during the proceedings of the rape case against the accused-appellant before the sala of then presiding Judge xxx, the defense attempted to prove that: a) the rape case was motivated by greed, hence, a mere concoction of the alleged victim's maternal grandmother; b)

the accused is not the real father of the complainant;

c) the size of the penis of the accused cannot have possibly penetrated the alleged victim's private part; and d)

the accused was in xxx during the time of the alleged rape.

In his Brief before us when the rape case was elevated for automatic review, the accused-appellant reiterated as grounds for exculpation: a) the ill-motive of the victim's maternal grandmother in prompting her grandchild to file the rape case; b) the defense of denial relative to the size of his penis which could not have caused the healed hymenal lacerations of the victim; and c)

the defense of alibi.

Thus, a second hard look at the issues raised by the new counsel of the accused-appellant reveals that in their messianic appeal for a reversal of our judgment of conviction, we are asked to consider for the first time, by way of a Supplemental Motion for Reconsideration, the following matters:

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a) the affidavit of desistance written by the victim which acted as a bar to the criminal prosecution for rape against the accused-appellant; b) the vagueness attributed to the date of the commission of the offense in the Complaint which deprived the accused-appellant from adequately defending himself; c) the failure of this Court to clearly establish the qualifying circumstance that placed the accused-appellant within the coverage of the Death Penalty Law; d) the denial of due process and the manifest bias exhibited by the trial court during the trial of the rape case. Apparently, after a careful scrutiny of the foregoing points for reconsideration, the only legitimate issue that We can tackle relates to the Affidavit of Desistance which touches on the lack of jurisdiction of the trial court to have proceeded with the prosecution of the accused-appellant considering that the issue of jurisdiction over the subject matter may be raised at any time, even during appeal.[2] It must be stressed that during the trial proceedings of the rape case against the accused-appellant, it appeared that despite the admission made by the victim herself in open court that she had signed an Affidavit of Desistance, she, nevertheless, "strongly pointed out that she is not withdrawing the charge against the accused because the latter might do the same sexual assaults to other women."[3] Thus, this is one occasion where an affidavit of desistance must be regarded with disfavor inasmuch as the victim, in her tender age, manifested in court that she was pursuing the rape charges against the accused-appellant. We have explained in the case of People v. Gerry Ballabare,[4] that: "As pointed out in People v. Lim (24 190 SCRA 706 [1990], which is also cited by the accused-appellant, an affidavit of desistance is merely an additional ground to buttress the accused's defenses, not the sole consideration that can result in acquittal. There must be other circumstances which, when coupled with the retraction or desistance, create doubts as to the truth of the testimony given by the witnesses at the trial and accepted by the judge."[5] In the case at bar, all that the accused-appellant offered as defenses mainly consisted of denial and alibi which cannot outweigh the positive identification and convincing testimonies given by the prosecution. Hence, the affidavit of desistance, which the victim herself intended to disregard as earlier discussed, must have no bearing on the criminal prosecution against the accused-appellant, particularly on the trial court's jurisdiction over the case. II The settled rule is that the client is bound by the negligence or mistakes of his counsel.[6] One of the recognized exceptions to this rule is gross incompetency in a way that the defendant is highly prejudiced and prevented, in effect, from having his day in court to defend himself.[7]

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In the instant case, we believe that the former counsel of the accusedappellant to whom the FLAG lawyers now impute incompetency had amply exercised the required ordinary diligence or that reasonable decree of care and skill expected of him relative to his client's defense. As the rape case was being tried on the merits, Atty. Vitug, from the time he was assigned to handle the case, dutifully attended the hearings thereof. Moreover, he had seasonably submitted the Accused-Appellant's Brief and the Motion for Reconsideration of our June 25, 1996 Decision with extensive discussion in support of his line of defense. There is no indication of gross incompetency that could have resulted from a failure to present any argument or any witness to defend his client. Neither has he acted haphazardly in the preparation of his case against the prosecution evidence. The main reason for his failure to exculpate his client, the accused-appellant, is the overwhelming evidence of the prosecution. The alleged errors committed by the previous counsel as enumerated by the new counsel could not have overturned the judgment of conviction against the accused-appellant. III Although its origins seem lost in obscurity, the imposition of death as punishment for violation of law or custom, religious or secular, is an ancient practice. We do know that our forefathers killed to avenge themselves and their kin and that initially, the criminal law was used to compensate for a wrong done to a private party or his family, not to punish in the name of the state. The dawning of civilization brought with it both the increasing sensitization throughout the later generations against past barbarity and the institutionalization of state power under the rule of law. Today every man or woman is both an individual person with inherent human rights recognized and protected by the state and a citizen with the duty to serve the common weal and defend and preserve society. One of the indispensable powers of the state is the power to secure society against threatened and actual evil. Pursuant to this, the legislative arm of government enacts criminal laws that define and punish illegal acts that may be committed by its own subjects, the executive agencies enforce these laws, and the judiciary tries and sentences the criminals in accordance with these laws. Although penologists, throughout history, have not stopped debating on the causes of criminal behavior and the purposes of criminal punishment, our criminal laws have been perceived as relatively stable and functional since the enforcement of the Revised Penal Code on January 1, 1932, this notwithstanding occasional opposition to the death penalty provisions therein. The Revised Penal Code, as it was originally promulgated, provided for the death penalty in specified crimes under specific circumstances. As early as 1886, though, capital punishment had entered our legal system through the old Penal Code, which was a modified version of the Spanish Penal Code of 1870. The opposition to the death penalty uniformly took the form of a constitutional question of whether or not the death penalty is a cruel, unjust, excessive or unusual punishment in violation of the constitutional proscription against cruel and unusual punishments. We unchangingly answered this question in the negative in the cases

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of Harden v. Director of Prison, [8] People v. Limaco,[9] People v. Camano,[10] People v. Puda[11] and People v. Marcos,[12] In Harden, we ruled: "The penalty complained of is neither cruel, unjust nor excessive. In Exparte Kemmler, 136 U.S., 436, the United States Supreme Court said that 'punishments are cruel when they involve torture or a lingering death, but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.'"[13] Consequently, we have time and again emphasized that our courts are not the fora for a protracted debate on the morality or propriety of the death sentence where the law itself provides therefor in specific and well-defined criminal acts. Thus we had ruled in the 1951 case of Limacothat: "x x x there are quite a number of people who honestly believe that the supreme penalty is either morally wrong or unwise or ineffective. However, as long as that penalty remains in the statute books, and as long as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of their private opinions,"[14] and this we have reiterated in the 1995 case of People v. Veneracion.[15] Under the Revised Penal Code, death is the penalty for the crimes of treason, correspondence with the enemy during times of war, qualified piracy, parricide, murder, infanticide, kidnapping, rape with homicide or with the use of deadly weapon or by two or more persons resulting in insanity, robbery with homicide, and arson resulting in death. The list of capital offenses lengthened as the legislature responded to the emergencies of the times. In 1941, Commonwealth Act (C.A.) No. 616 added espionage to the list. In the 1950s, at the height of the Huk rebellion, the government enacted Republic Act (R.A.) No. 1700, otherwise known as the Anti-Subversion Law, which carried the death penalty for leaders of the rebellion. From 1971 to 1972, more capital offenses were created by more laws, among them, the Anti-Hijacking Law, the Dangerous Drugs Act, and the AntiCarnapping Law. During martial law, Presidential Decree (P.D.) No. 1866 was enacted penalizing with death, among others, crimes involving homicide committed with an unlicensed firearm. In the aftermath of the 1986 revolution that dismantled the Marcos regime and led to the nullification of the 1973 Constitution, a Constitutional Commission was convened following appointments thereto by Corazon Aquino who was catapulted to power by the people. Tasked with formulating a charter that echoes the new found freedom of a rejuvenated people, the Constitutional Commissioners grouped themselves into working committees among which is the Bill of Rights Committee with Jose B. Laurel, Jr. As Chairman and Father Joaquin G. Bernas, S.J., as Vice-Chairman. On July 17, 1986, Father Bernas presented the committee draft of the proposed bill of rights to the rest of the commission. What is now Article III, Section 19 (1) of the

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1987 Constitution was first denominated as Section 22 and was originally worded as follows: "Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment, or the death penalty inflicted. Death penalty already imposed shall be commuted to reclusion perpetua." Father Bernas explained that the foregoing provision was the result of a consensus among the members of the Bill of Rights Committee that the death penalty should be abolished. Having agreed to abolish the death penalty, they proceeded to deliberate on how the abolition was to be done -- whether the abolition should be done by the Constitution or by the legislature -- and the majority voted for a constitutional abolition of the death penalty. Father Bernas explained: "x x x [T]here was a division in the Committee not on whether the death penalty should be abolished or not, but rather on whether the abolition should be done by the Constitution -- in which case it cannot be restored by the legislature -- or left to the legislature. The majority voted for the constitutional abolition of the death penalty. And the reason is that capital punishment is inhuman for the convict and his family who are traumatized by the waiting, even if it is never carried out. There is no evidence that the death penalty deterred deadly criminals, hence, life should not be destroyed just in the hope that other lives might be saved. Assuming mastery over the life of another man is just too presumptuous for any man. The fact that the death penalty as an institution has been there from time immemorial should not deter us from reviewing it. Human life is more valuable than an institution intended precisely to serve human life. So, basically, this is the summary of the reasons which were presented in support of the constitutional abolition of the death penalty".[16] The original wording of Article III, Section 19 (1), however, did not survive the debate that it instigated. Commissioner Napoleon G. Rama first pointed out that "never in our history has there been a higher incidence of crime" and that "criminality was at its zenith during the last decade".[17] Ultimately, the dissent defined itself to an unwillingness to absolutely excise the death penalty from our legal system and leave society helpless in the face of a future upsurge of crimes or other similar emergencies. As Commissioner Rustico F. de los Reyes, Jr. suggested, "although we abolish the death penalty in the Constitution, we should afford some amount of flexibility to future legislation,"[18] and his concern was amplified by the interpellatory remarks of Commissioner Lugum L. Commissioner and now Associate Justice Florenz Regalado, Commissioner Crispino M. de Castro, Commissioner Ambrosio B. Padilla, Commissioner Christian Monsod, Commissioner Francisco A. Rodrigo, and Commissioner Ricardo Romulo. Commissioner Padilla put it succinctly in the following exchange with Commissioner Teodoro C. Bacani: "BISHOP BACANI. x x x At present, they explicitly make it clear that the church has never condemned the right of the state to inflict capital punishment.

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MR. PADILLA. x x x So it is granted that the state is not deprived of the right even from a moral standpoint of imposing or prescribing capital punishment. BISHOP BACANI. Yes. What I am saying is that from the Catholic point of view, that right of the state is not forbidden. MR. PADILLA. In fact x x x we have to accept that the state has the delegated authority from the Creator to impose the death penalty under certain circumstances. BISHOP BACANI. The state has the delegation from God for it to do what is needed for the sake of the common good, but the issue at stake is whether or not under the present circumstances that will be for the common good. MR. PADILLA. But the delegated power of the state cannot be denied. BISHOP BACANI. Yes, the state can be delegated by God at a particular stage in history, but it is not clear whether or not that delegation is forever under all circumstances MR. PADILLA. So this matter should be left to the legislature to determine, under certain specified conditions or circumstances, whether the retention of the death penalty or its abolition would be for the common good. I do not believe this Commission can a priori, and as was remarked within a few days or even a month, determine a positive provision in the Constitution that would prohibit even the legislature to prescribe the death penalty for the most heinous crimes, the most grievous offenses attended by many qualifying and aggravating circumstances."[19] What followed, thus, were proposed amendments to the beleaguered provision. The move to add the phrase, "unless for compelling reasons involving heinous crimes, the national assembly provides for the death penalty," came from Commissioners Monsod, Jose E. Suarez and de los Reyes. Commissioner Rodrigo, however, expressed reservations even as regards the proposed amendment. He said: "x x x [T]he issue here is whether or not we should provide this matter in the Constitution or leave it to the discretion of our legislature. Arguments pro and con have been given x x x. But my stand is, we should leave this to the discretion of the legislature. The proposed amendment is halfhearted. It is awkward because we will, in effect, repeal by our Constitution a piece of legislation and after repealing this piece of legislation, tell the legislature that we have repealed the law and that the legislature can go ahead and enact it again. I think this is not worthy of a constitutional body like ours. If we will leave the matter of the death penalty to the legislature, let us leave it completely to the discretion of the legislature, but let us not have this half-baked provision. We have many provisions in the Revised Penal

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Code imposing the death penalty. We will now revoke or repeal these pieces of legislation by means of the Constitution, but at the same time say that it is up to the legislature to impose this again. x x x The temper and condition of the times change x x x and so we, I think we should leave this matter to the legislature to enact statutes depending on the changing needs of the times. Let us entrust this completely to the legislature composed of representatives elected by the people. I do not say that we are not competent. But we have to admit the fact that we are not elected by the people and if we are going to entrust this to the legislature, let us not be half-baked nor half-hearted about it. Let us entrust it to the legislature 100 percent."[20] Nonetheless, the proposed amendment was approved with twenty-three (23) commissioners voting in favor of the amendment and twelve (12) voting against it, followed by more revisions, hence the present wording of Article III, Section 19 (1) of the 1987 Constitution in the following tenor: "Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua." The implications of the foregoing provision on the effectivity of the death penalty provisions in the Revised Penal Code and certain special criminal laws and the state of the scale of penalties thereunder, were tremendous. The immediate problem pertained to the applicable penalty for what used to be capital crimes. In People v. Gavarra,[21] we stated that "in view of the abolition of the death penalty under Section 19, Article III of the 1987 Constitution, the penalty that may be imposed for murder isreclusion temporal in its maximum period to reclusion perpetua"[22] thereby eliminating death as the original maximum period. The constitutional abolition of the death penalty, it seemed, limited the penalty for murder to only the remaining periods, to wit, the minimum and the medium, which we then, in People v. Masangkay,[23] People v. Atencio[24] and People v. Intino[25] divided into three new periods, to wit, the lower half of reclusion temporal maximum as the minimum; the upper half of reclusion temporal maximum as the medium; and reclusion perpetua as the maximum, in keeping with the three-grade scheme under the Revised Penal Code. In People v. Munoz,[26] however, we reconsidered these aforecited cases and after extended discussion, we concluded that the doctrine announced therein did not reflect the intention of the framers. The crux of the issue was whether or not Article III, Section 19 (1) absolutely abolished the death penalty, for if it did, then, the aforementioned new three-grade penalty should replace the old one where the death penalty constituted the maximum period. But if no total abolition can be read from said constitutional provision and the death penalty is only suspended, it cannot as yet be negated by the institution of a new three-grade penalty premised on the total inexistence of the death penalty in our statute books. We thus ruled in Munoz:

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"The advocates of the Masangkay ruling argue that the Constitution abolished the death penalty and thereby limited the penalty for murder to the remaining periods, to wit, the minimum and the medium. These should now be divided into three new periods in keeping with the threegrade scheme intended by the legislature. Those who disagree feel that Article III, Section 19 (1) merely prohibits the imposition of the death penalty and has not, by reducing it toreclusion perpetua, also correspondingly reduced the remaining penalties. These should be maintained intact. A reading of Section 19 (1) of Article III will readily show that there is really nothing therein which expressly declares the abolition of the death penalty. The provision merely says that the death penalty shall not be imposed unless for compelling reasons involving heinous crimes the Congress hereafter provides for it and, if already imposed, shall be reduced to reclusion perpetua. The language, while rather awkward, is still plain enough".[27] Nothing is more defining of the true content of Article III, Section 19 (1) of the 1987 Constitution than the form in which the legislature took the initiative in reimposing the death penalty. The Senate never doubted its power as vested in it by the constitution, to enact legislation re-imposing the death penalty for compelling reasons involving heinous crimes. Pursuant to this constitutional mandate, the Senate proceeded to a twostep process consisting of: first, the decision, as a matter of policy, to re-impose the death penalty or not; and second, the vote to pass on the third reading the bill reimposing the death penalty for compelling reasons involving heinous crimes. On February 15, 1993, after a fierce and fiery exchange of arguments for and against capital punishment, the Members of the Senate voted on the policy issue of death penalty. The vote was explained, thus: "SUSPENSION OF THE RULES Upon motion of Senator Romulo, there being no objection, the Body suspended the Rules of the Senate. Thereafter, upon motion of Senator Romulo, there being no objection, the Chair directed that a nominal voting be conducted on the policy issue of death penalty. INQUIRY OF SENATOR TOLENTINO Asked by Senator Tolentino on how the Members of the Senate would vote on this policy question, Senator Romulo stated that a vote of Yes would mean a vote in favor of death as a penalty to be reincorporated in the scale of penalties as provided in the Revised Penal Code, and a vote of No would be a vote against the reincorporation of death penalty in the scale of penalties in the Revised Penal Code. INQUIRY OF SENATOR ALVAREZ

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xxx The Chair explained that it was agreed upon that the Body would first decide the question whether or not death penalty should be reimposed, and thereafter, a seven-man committee would be formed to draft the compromise bill in accordance with the result of the voting. If the Body decides in favor of the death penalty, the Chair said that the committee would specify the crimes on which death penalty would be imposed. It affirmed that a vote of Yes in the nominal voting would mean a vote in favor of death penalty on at least one crime, and that certain refinements on how the penalty would be imposed would be left to the discretion of the seven-man committee. xxx INQUIRY OF SENATOR TAADA In reply to Senator Taada's query, the Chair affirmed that even if a senator would vote 'yes' on the basic policy issue, he could still vote 'no' on the imposition of the death penalty on a particular crime. REMARKS OF SENATOR TOLENTINO Senator Tolentino observed that the Body would be voting on the basic policy issue of whether or not the death penalty would be included in the scale of penalties found in Article 27 of the Revised Penal Code, so that if it is voted down, the Body would discontinue discussing Senate Bill No. 891 pursuant to the Rules, but if approved, a special committee, as agreed upon in the caucus, is going to be appointed and whatever course it will take will depend upon the mandate given to it by the Body later on. The Chair affirmed Senator Tolentino's observations. REMARKS OF SENATOR ROCO Senator Roco stated that the Body would vote whether or not death as a penalty will be reincorporated in the scale of penalties provided by the Revised Penal Code. However, he pointed out that if the Body decides in favor of death penalty, the Body would still have to address two issues: 1) Is the crime for which the death penalty is supposed to be imposed heinous pursuant to the constitutional mandate? 2) And, if so, is there a compelling reason to impose the death penalty for it? The death penalty, he stressed, cannot be imposed simply because the crime is heinous."[28] With seventeen (17) affirmative votes and seven (7) negative votes and no abstention, the Chair declared that the Senate has voted to re-incorporate death as a penalty in the scale of penalties as provided in the Revised Penal Code. A nineperson committee was subsequently created to draft the compromise bill pursuant to said vote. The mandate of the committee was to retain the death penalty, while

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the main debate in the committee would be the determination of the crimes to be considered heinous. On March 17, 1993, Senator Arturo Tolentino, Chairman of the Special Committee on the Death Penalty, delivered his Sponsorship Speech. He began with an explanation as to why the Senate Bill No. 891 re-imposes the death penalty by amending the Revised Penal Code and other special penal laws and includes provisions that do not define or punish crimes but serve purposes allied to the reimposition of the death penalty. Senator Tolentino stated: x x x [W]hen the Senate approved the policy of reimposing the death penalty on heinous crimes and delegated to the Special Committee the work of drafting a bill, a compromise bill that would be the subject for future deliberations of this Body, the Committee had to consider that the death penalty was imposed originally in the Revised Penal Code. So, when the Constitution was approved in order to do away with the death penalty, unless Congress should, for compelling reasons reimpose that penalty on heinous crimes, it was obvious that it was the Revised Penal Code that was affected by that provision of the Constitution. The death penalty, as provided in the Revised Penal Code, would be considered as having been repealed -- all provisions on the death penalty would be considered as having been repealed by the Constitution, until Congress should, for compelling reasons, reimpose such penalty on heinous crimes. Therefore, it was not only one article but many articles of the Revised Penal Code that were actually affected by the Constitution. And it is in consideration of this consequence of the constitutional provision that our Special Committee had to consider the Revised Penal Code itself in making this compromise bill or text of the bill. That is why, in the proposed draft now under consideration which we are sponsoring, the specific provisions of the Revised Penal Code are actually either reenacted or amended or both. Because by the effect of the Constitution, some provisions were totally repealed, and they had to be reenacted so that the provisions could be retained. And some of them had to be amended because the Committee thought that amendments were proper."[29] In response to a query by Senator Gloria Macapagal-Arroyo as to whether or not it would have been better if the Senate were to enact a special law which merely defined and imposed the death penalty for heinous crimes, Senator Tolentino explicated, thus: "x x x [T]hat may be a way presenting the bill. But we must bear in mind that the death penalty is imposed in the Revised Penal Code. Therefore, when the Constitution abolished the death penalty, it actually was amending the Revised Penal Code to such an extent that the Constitution provides that where the death penalty has already been imposed but not yet carried out, then the penalty shall be reclusion perpetua, that is the penalty in the Revised Penal Code. So we thought

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that it would be best to just amend the provisions of the Revised Penal Code, restoring the death penalty for some crimes that may be considered as heinous. That is why the bill is in this form amending the provisions of the Revised Penal Code. Of course, if some people want to present a special bill . . . the whole trouble is, when a special bill is presented and we want to punish in the special bill the case of murder, for instance, we will have to reproduce the provisions of the Revised Penal Code on murder in order to define the crime for which the death penalty shall be imposed. Or if we want to impose the death penalty in the case of kidnapping which is punished in the Revised Penal Code, we will do the same -- merely reproduce. Why will we do that? So we just followed the simpler method of keeping the definition of the crime as the same and merely adding some aggravating circumstances and reimposing the death penalty in these offenses originally punished in the Revised Penal Code."[30] From March 17, 1993, when the death penalty bill was presented for discussion until August 16, 1993, the Members of the Senate debated on its provisions. The stiffest opposition thereto was bannered by Senator Lina who kept prodding the sponsors of the bill to state the compelling reason for each and every crime for which the supreme penalty of death was sought. Zeroing in on the statement in the preamble of the death penalty bill that the same is warranted in the face of "the alarming upsurge of [heinous] crimes", Senator Lina demanded for solid statistics showing that in the case of each and every crime in the death penalty bill, there was a significantly higher incidence of each crime after the suspension of the death penalty on February 2, 1987 when the 1987 Constitution was ratified by the majority of the Filipino people, than before such ratification.[31]Inasmuch as the re-impositionists could not satisfy the abolitionists with sufficient statistical data for the latter to accept the alarming upsurge of heinous crimes as a compelling reason justifying the reimposition of the death penalty, Senator Lina concluded that there were, in fact, no compelling reasons therefor. In the alternative, Senator Lina argued that the compelling reason required by the constitution was that "the State has done everything in its command so that it can be justified to use an inhuman punishment called death penalty".[32] The problem, Senator Lina emphasized, was that even the re-impositionists admit that there were still numerous reforms in the criminal justice system that may and must be put in place, and so clearly, the recourse to the enactment of a death penalty bill was not in the nature of a last resort, hence, unconstitutional in the absence of compelling reasons. As an initial reaction to Senator Lina's contentions, Senator Tolentino explained that the statement in the preamble is a general one and refers to all the crimes covered by the bill and not to specific crimes. He added that one crime may not have the same degree of increase in incidence as the other crimes and that the public demand to impose the death penalty is enough compelling reason.[33] Equally fit to the task was Senator Wigberto Taada to whom the battle lines were clearly drawn. He put to issue two things: first, the definition of "heinous crimes" as provided for in the death penalty bill; and second, the statement of compelling reasons for each and every capital crime. His interpellation of Senator Tolentino clearly showed his objections to the bill:

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"Senator Taada. x x x But what would make crimes heinous, Mr. President? Are crimes heinous by their nature or elements as they are described in the bill or are crimes heinous because they are punished by death, as bribery and malversation are proposed to be punished in the bill? Senator Tolentino. They are heinous by their nature, Mr. President, but that is not supposed to be the exclusive criterion. The nature of the offense is the most important element in considering it heinous but, at the same time, we should consider the relation of the offense to society in order to have a complete idea of the heinous nature of these offenses. In the case of malversation or bribery, for instance, these offenses by themselves connected with the effect upon society and the government have made them fall under the classification of heinous crimes. The compelling reason for imposing the death penalty is when the offenses of malversation and bribery becomes so grave and so serious as indicated in the substitute bill itself, then there is a compelling reason for the death penalty. Senator Taada. With respect to the compelling reasons, Mr. President, does the Gentleman believe that these compelling reasons, which would call for the reimposition of the death penalty, should be separately, distinctly and clearly stated for each crime so that it will be very clear to one and all that not only are these crimes heinous but also one can see the compelling reasons for the reimposition of the death penalty therefor? Senator Tolentino. Mr. President, that matter was actually considered by the Committee. But the decision of the Committee was to avoid stating the compelling reason for each and every offense that is included in the substitute measure. That is why in the preamble, general statements were made to show these compelling reasons. And that, we believe, included in the bill, when converted into law, would be sufficient notice as to what were considered compelling reasons by the Congress, in providing the death penalty for these different offenses. If a matter like this is questioned before the Supreme Court, I would suppose that with the preamble already in general terms, the Supreme Court would feel that it was the sense of Congress that this preamble would be applicable to each and every offense described or punishable in the measure. So we felt that it was not necessary to repeat these compelling reasons for each and every offense. Senator Taada. Mr. President, I am thinking about the constitutional limitations upon the power of Congress to enact criminal legislation, especially the provisions on the Bill of Rights, particularly the one which says that no person shall be held to answer for a criminal offense without due process of law. Can we not say that under this provision, it is required that the compelling reasons be so stated in the bill so that the bill, when it becomes a law, will clearly define the acts and the omissions punished as crimes?

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Senator Tolentino. Mr. President, I believe that in itself, as substantive law, this is sufficient. The question of whether there is due process will more or less be a matter of procedure in the compliance with the requirements of the Constitution with respect to due process itself which is a separate matter from the substantive law as to the definition and penalty for crimes. Senator Taada. Under the Constitution, Mr. President, it appears that the reimposition of the death penalty is subject to three conditions and these are: 1.

Congress should so provide such reimposition of the death penalty;

2.

There are compelling reasons; and

3.

These involve heinous crimes. Under these provision of the Constitution, paragraph 1, Section 13, does the distinguished Gentleman not feel that Congress is bound to state clearly the compelling reasons for the reimposition of the death penalty for each crime, as well as the elements that make each of the crimes heinous included in the bill? Senator Tolentino. Mr. President, that is a matter of opinion already. I believe that whether we state the compelling reasons or not, whether we state why a certain offense is heinous, is not very important. If the question is raised in the Supreme Court, it is not what we say in the bill that will be controlling but what the Supreme Court will fell as a sufficient compelling reason or as to the heinous nature whether the crime is heinous or not. The accused can certainly raise the matter of constitutionality but it will not go into the matter of due process. It will go into the very power of Congress to enact a bill imposing the death penalty. So that would be entirely separate from the matter of due process." [34]

Senator Francisco Tatad, on his part, pointed out that the death penalty bill violated our international commitment in support of the worldwide abolition of capital punishment, the Philippines being a signatory to the International Covenant on Civil and Political Rights and its Second Optional Protocol. Senator Ernesto Herrera clarified, however, that in the United Nations, subject matters are submitted to the different committees which vote on them for consideration in the plenary session. He stressed that unless approved in the plenary session, a declaration would have no binding effect on signatory countries. In this respect, the Philippines cannot be deemed irrevocably bound by said covenant and protocol considering that these agreements have reached only the committee level.[35] After the protracted debate, the Members of the Senate voted on Senate Bill No. 891 on third reading. With seventeen (17) affirmative votes, four (4) negative votes, and one abstention, the death penalty bill was approved on third reading on August 16, 1993. The Senate's vote to pass Senate Bill No. 891 on third reading on August 16, 1993 was a vindication of, the House of Representatives. The House had, in the Eight

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Congress, earlier approved on third reading House Bill No. 295 on the restoration of the death penalty for certain heinous crimes. The House was in effect rebuffed by the Senate when the Senate killed House Bill No. 295 along with other bills coming from the House. House Bill No. 295 was resurrected during the Ninth Congress in the form of House Bill No. 62 which was introduced by twenty one (21) Members of the House of Representatives on October 27, 1992. House Bill No. 62 was a merger of House Bill Nos. 125, 187, 411, 764, 506, 781, 955, 1565, 1586, 2206, 3238, 3576 and 3632 authored by various Members of the Lower House. In his Sponsorship Speech, Representative Manuel R. Sanchez of Rizal ably essayed the constitutional vesting in Congress of the power to re-impose the death penalty for compelling reasons invoking heinous crimes as well as the nature of this constitutional pre-requisite to the exercise of such power. "Mr. Speaker, in Article III, Section 19(1) of Constitution reads, a I quote: 'Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress shall thereafter provide for it . . .' The phrase 'unless, for compelling reasons involving heinous crimes, the Congress shall thereafter provide for it was introduced as an amendment by then Comm. Christian Monsod. The import of this amendment is unmistakable. By this amendment, the death penalty was not completely abolished by the 1987 Constitution. Rather, it merely suspended the death penalty and gave Congress the discretion to review it at the propitious time. Arguing for the inclusion of said amendment in the fine provision, Comm. Ricardo Romulo said, and I quote: "'The people should have the final say on the subject, because, at some future time, the people might want to restore death penalty through initiative and referendum. Commissioner Monsod further argued, and I quote: We cannot presume to have the wisdom of the ages. Therefore, it is entirely possible in the future that circumstances may arise which we should not preclude today. I believe that [there] are enough compelling reasons that merit the reimposition of the capital punishment. The violent manner and the viciousness in which crimes are now committed with alarming regularity, show very clearly a patent disregard of the law and a mockery of public peace and order. In the public gallery section today are the relatives of the victims of heinous crimes the Hultmans, the Maguans, the Vizcondes, the Castanoses, and many more, and they are all crying for justice. We ought to listen to them because their lives, their hopes, their dreams, their future have fallen asunder by the cruel and vicious criminality of a few who put their selfish interest above that of society.

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Heinous crime is an act or series of acts which, by the flagrantly violent manner in which the same was committed or by the reason of its inherent viciousness, shows a patent disregard and mockery of the law, public peace and order, or public morals. It is an offense whose essential and inherent viciousness and atrocity are repugnant and outrageous to a civilized society and hence, shock the moral self of a people. Of late, we are witness to such kind of barbaric crimes. The Vizconde massacre that took the lives of a mother and her two lovely daughters, will stand in the people's memory for many long years as the epitome of viciousness and atrocity that are repugnant to civilized society. The senseless murder of Eldon Maguan, and up-and-coming young business executive, was and still is an outrage that shocks the moral self of our people. The mind-boggling death of Maureen Hultmann, a comely 16 year-old high school student who dreamt of becoming a commercial model someday, at the hands of a crazed man was so repulsive, so brutal that it offends the sensibilities of Christians and non-Christians alike The cold-blooded double murder of Cochise Bernabe and Beebom Castanos, the lovely and promising couple from the University of the Philippines, is eternally lodged in the recesses of our minds and still makes our stomach turn in utter disgust. The seriousness of the situation is such that if no radical action is taken by this body in restoring death penalty as a positive response to the overwhelming clamor of the people, then, as Professor Esteban Bautista of the Philippine Law Center said, and I quote: 'When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they deserve, there are sown the seeds of anarchy of self-help, of vigilante justice and lynch law. The people will take the law upon their hands and exact vengeance in the nature of personal vendetta.' It is for this reason, Mr. Speaker, that I stand here and support House Bill No. 62. As duly elected Representatives of our people, collectively, we ought to listen to our constituents and heed their plea a plea for life, liberty and pursuit of their happiness under a regime of justice and democracy, and without threat that their loves ones will be kidnapped, raped or butchered. But if such a misfortune befalls them, there is the law they could rely on for justice. A law that will exact retribution for the victims. A law that will deter future animalistic behavior of the criminal who take their selfish interest over and above that of society. A law that will deal a deathblow upon all heinous crimes. Mr. Speaker, my distinguished colleagues, for the preservation of all that we hold dear and sacred, let us restore the death penalty." [36] A studious comparison of the legislative proceedings in the Senate and in the House of Representatives reveals that, while both Chambers were not wanting of

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oppositors to the death penalty, the Lower House seemed less quarrelsome about the form of the death penalty bill as a special law specifying certain heinous crimes without regard to the provisions of the Revised Penal Code and more unified in the perception of what crimes are heinous and that the fact of their very heinousness involves the compulsion and the imperative to suppress, if not completely eradicate, their occurrence. Be it the foregoing general statement of Representative Sanchez or the following details of the nature of the heinous crimes enumerated in House Bill No. 62 by Representative Miguel L. Romero of Negros Oriental, there was clearly, among the hundred or so re-impositionists in the Lower House, no doubt as to their cause: "My friends, this bill provides for the imposition of the death penalty not only for the importation, manufacture and sale of dangerous drugs, but also for other heinous crimes such as reason; parricide; murder; kidnapping; robbery; rape as defined by the Revised Penal Code with or without additionally defined circumstances; plunder, as defined in R.A. 7080; piracy, as defined under Section 2 of PD 532; carnapping, as defined in Section 2 of RA 6539, when the owner, driver or occupant is killed; hijacking, as defined in xxx RA 6235; and arson resulting in the death of any occupants. All these crimes have a common denominator which qualifies them to the level of heinous crimes. A heinous crime is one which, by reason of its inherent or manifest wickedness, viciousness, atrocity or perversity, is repugnant and outrageous to the common standards of decency and morality in a just and civilized society. For instance, the crime of treason is defined as a breach of allegiance to a government, committed by a person who owes allegiance to it (U.S. v. Abad 1 Phil. 437). By the 'allegiance' is meant the obligation of fidelity and obedience which individuals owe to the government under which they live or to their sovereign in return for the protection which they receive (52 Am Jur 797). In kidnapping, the though alone of one's loved one being held against his or her own will in some unidentified xxx house by a group of scoundrels who are strangers is enough terrify and send shivers of fear through the spine of any person, even scoundrels themselves. In robbery accompanied by rape, intentional mutilation or arson, what is being punished by death is the fact that the perpetrator, at the time of the commission of the crime, thinks nothing of the other crime he commits and sees it merely as a form of self-amusement. When a homicide is committed by reason of the robbery, the culprits are perceived as willing to take human life in exchange for money or other personal property. In the crime of rape, not only do we speak of the pain and agony of the parents over the personal shock and suffering of their child but the stigma of the traumatic and degrading incident which has shattered the victim's life and permanently destroyed her reputation, not to mention the ordeal of having to undergo the shameful experience of police interrogation and court hearings.

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Piracy, which is merely a higher form of robbery, is punished for the universal hostility of the perpetrators against their victims who are passengers and complement of the vessel, and because of the fact that, in the high seas, no one may be expected to be able to come to the rescue of the helpless victims. For the same reason, Mr. Speaker, the crime of air piracy is punished due to the evil motive of the hijackers in making unreasonable demands upon the sovereignty of an entire nation or nations, coupled with the attendant circumstance of subjecting the passengers to terrorism." [37] The debate on House Bill No. 62 lasted from October 27, 1992 to February 11, 1993. On February 11, 1993, the Members of the House of Representatives overwhelmingly approved the death penalty bill on second reading. On February 23, 1993, after explaining their votes, the Members of the House of Representatives cast their vote on House Bill No. 62 when it was up for consideration on third reading. [38] The results were 123 votes in favor, 26 votes against, and 2 abstentions After the approval on third reading of House Bill No. 62 on February 23, 1993 and of Senate Bill No. 891 on August 16, 1993, the Bicameral Conference Committee convened to incorporate and consolidate them. On December 31, 1993, Republic Act (R.A.) No. 7659, entitled, "An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Code, as Amended, Other Special Penal Laws, and for Other Purposes," took effect.[39] Between December 31, 1993, when R.A. No. 7659 took effect, and the present time, criminal offenders have been prosecuted under said law, and one of them, herein accused-appellant, has been, pursuant to said law, meted out the supreme penalty of death for raping his ten-year old daughter. Upon his conviction, his case was elevated to us on automatic review. On June 25, 1996, we affirmed his conviction and the death sentence. Now, accused-appellant comes to us in the heels of this court's affirmation of his death sentence and raises for the first time the issue of the constitutionality of R.A. 7659. His thesis is two-fold: (1) that the death penalty law is unconstitutional per se for having been enacted in the absence of compelling reasons therefor; and (2) that the death penalty for rape is a cruel, excessive and inhuman punishment in violation of the constitutional proscription against punishment of such nature. We reject accused-appellant's proposition. Three justices interposed their dissent hereto, agreeing with accusedappellant's view that Congress enacted R.A. No. 7659 without complying with the twin requirements of compelling reasons and heinous crimes. At this juncture, the detailed events leading to the enactment of R.A. No. 7659 as unfurled in the beginning of this disquisition, necessarily provide the context for the following analysis.

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Article III, Section 19 (1) of the 1987 Constitution plainly vests in Congress the power to re-impose the death penalty "for compelling reasons involving heinous crimes". This power is not subsumed in the plenary legislative power of Congress, for it is subject to a clear showing of "compelling reasons involving heinous crimes." The constitutional exercise of this limited power to re-impose the death penalty entails (1) that Congress define or describe what is meant by heinous crimes; (2) that Congress specify and penalize by death, only crimes that qualify as heinous in accordance with the definition or description set in the death penalty bill and/or designate crimes punishable by reclusion perpetua to death in which latter case, death can only be imposed upon the attendance of circumstances duly proven in court that characterize the crime to be heinous in accordance with the definition or description set in the death penalty bill; and (3) that Congress, in enacting this death penalty bill be singularly motivated by "compelling reasons involving heinous crimes." In the second whereas clause of the preamble of R.A. No. 7659, we find the definition or description of heinous crimes. Said clause provides that "x x x the crimes punishable by death under this Act are heinous for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society." Justice Santiago Kapunan, in his dissenting opinion in People v. Alicando, [40] traced the etymological root of the word "heinous" to the Early Spartans' word, "haineus", meaning, hateful and abominable, which, in turn, was from the Greek prefix "haton", denoting acts so hatefully or shockingly evil. We find the foregoing definition or description to be a sufficient criterion of what is to be considered a heinous crime. This criterion is deliberately undetailed as to the circumstances of the victim, the accused, place, time, the manner of commission of crime, its proximate consequences and effects on the victim as well as on society, to afford the sentencing authority sufficient leeway to exercise his discretion in imposing the appropriate penalty in cases where R.A. No. 7659 imposes not a mandatory penalty of death but the more flexible penalty of reclusion perpetua to death. During the debates on the proposed death penalty bill, Senators Lina and Taada grilled the sponsors of the bill as regards what they perceived as a mere enumeration of capital crimes without a specification of the elements that make them heinous. They were oblivious to the fact that there were two types of crimes in the death penalty bill: first, there were crimes penalized by reclusion perpetua to death; and second, there were crimes penalized by mandatory capital punishment upon the attendance of certain specified qualifying circumstances. Under R.A. No. 7659, the following crimes are penalized by reclusion perpetua to death: (1)

Treason (Sec. 2);

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(2)

Qualified piracy (Sec. 3);

(3)

Parricide (Sec. 5);

(4)

Murder (Sec. 6);

(5)

Infanticide (Sec. 7);

(6) Kidnapping and serious illegal detention if attended by any of the following four circumstances: (a) the victim was detained for more than three days; (b) it was committed simulating public authority; (c) serious physical injuries were inflicted on the victim or threats to kill him were made; and (d) if the victim is a minor, except when the accused is any of the parents, female or a public officer (Sec. 8); (7)

Robbery with homicide, rape or intentional mutilation (Sec. 9);

(8) Destructive arson if what is burned is (a) one or more buildings or edifice; (b) a building where people usually gather; (c) a train, ship or airplane for public use; (d) a building or factory in the service of public utilities; (e) a building for the purpose of concealing or destroying evidence Or a crime; (f) an arsenal, fireworks factory, or government museum; and (g) a storehouse or factory of explosive materials located in an inhabited place; or regardless of what is burned, if the arson is perpetrated by two or more persons (Sec. 10); (9) Rape attended by any of the following circumstances: (a) the rape is committed with a deadly weapon; (b) the rape is committed by two or more persons; and (c) the rape is attempted or frustrated and committed with homicide (Sec. 11); (10) Plunder involving at least P50 million (Sec. 12); (11) Importation of prohibited drugs (Sec. 13); (12) Sale, administration, delivery, distribution, and transportation of prohibited drugs (id.); (13) Maintenance of den, dive or resort for users of prohibited drugs (id.); (14) Manufacture of prohibited drugs (id.); (15) Possession or use of prohibited drugs in certain specified amounts (id.); (16) Cultivation of plants which are sources of prohibited drugs (id.) (17) Importation of regulated drugs (Sec. 14); (18) Manufacture of regulated drugs (id.); (19) Sale, administration, dispensation, delivery, transportation, and distribution of regulated drugs (id.);

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(20) Maintenance of den, dive, or resort for users of regulated drugs (Sec. 15); (21) Possession or use of regulated drugs in specified amounts (Sec. 16); (22) Misappropriation, misapplication or failure to account dangerous drugs confiscated by the arresting officer (Sec. 17); (23) Planting evidence of dangerous drugs in person or immediate vicinity of another to implicate the latter (Sec. 19); and (24) Carnapping where the owner, driver or occupant of the carnapped motor vehicle is killed or raped (Sec. 20). All the foregoing crimes are not capital crimes per se, the uniform penalty for all of them being not mandatory death but the flexible penalty of reclusion perpetua to death. In other words, it is premature to demand for a specification of the heinous elements in each of foregoing crimes because they are not anyway mandatorily penalized with death. The elements that call for the imposition of the supreme penalty of death in these crimes, would only be relevant when the trial court, given the prerogative to impose reclusion perpetua, instead actually imposes the death penalty because it has, in appreciating the evidence proffered before it, found the attendance of certain circumstances in the manner by which the crime was committed, or in the person of the accused on his own or in relation to the victim, or in any other matter of significance to the commission of the crime or its effects on the victim or on society, which circumstances characterize the criminal acts as grievous, odious, or hateful, or inherently or manifestly wicked, vicious, atrocious or perverse as to be repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society. On the other hand, under R.A. No. 7659, the mandatory penalty of death is imposed in the following crimes: (1) Qualified bribery "If any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death in consideration of any offer, promise, gift or present, he shall suffer the penalty for the offense which was not prosecuted. If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of death." (Sec. 4) (2) Kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured or subjected to dehumanizing acts "The penalty shall be death where the kidnapping or detention was committed for the purpose of ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense.

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When the victim is killed or dies as a consequence of the detention or is raped, or is subject to torture or dehumanizing acts, the maximum penalty [of death] shall be imposed." (Sec. 8) (3)

Destructive arson resulting in death

"If as a consequence of the commission of any of the acts penalized under this Article, death results, the mandatory penalty of death shall be imposed." (Sec. 10) (4)

Rape with the victim becoming insane, rape with homicide and qualified

"When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent or the victim. 2.

when the victim is under the custody of the police or military authorities.

3. when the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. 4.

when the victim is a religious or a child below seven (7) years old

5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. 6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. 7. when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation." (Sec. 11 ) (5) Sale, administration, delivery, distribution and transportation of prohibited drugs where the victim is a minor or the victim dies "Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of victim thereof, the maximum penalty [of death] herein provided shall be imposed." (Sec. 13) (6) Maintenance of den, dive, or resort for users of prohibited drugs where the victim is a minor or the victim dies

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"Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum of the penalty [of death] shall be imposed in every case where a prohibited drug is administered, delivered or sold to a minor who is allowed to use the same in such place. Should a prohibited drug be the proximate case of the death of a person using the same in such den, dive or resort, the maximum penalty herein provided shall be imposed on the maintainer notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 13) (7) Sale, administration, dispensation, delivery, distribution and transportation of regulated drugs where the victim is a minor or the victim dies "Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a regulated drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty [of death] herein provided shall be imposed." (Sec. 14) (8) Maintenance of den, dive, or resort for users of regulated drugs where the victim is a minor or the victim dies "Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum penalty [of death] herein provided shall be imposed in every case where a regulated drug is administered, delivered or sold to a minor who is allowed to use the same in such place. Should a regulated drug be the proximate cause of death of a person using the same in such den, dive or resort, the maximum penalty herein provided shall be imposed on the maintainer notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 15) (9) Drug offenses if convicted are government officials, employees or officers including members of police agencies and armed forces "The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1), 6, 7, 8, 9, 11,12 and 13 of Article II and Sections 14, 14-A, 14(1), 15A (1), 16, and 19 of Article III [of the Dangerous Drugs Act of 1972] shall be imposed, if those found guilty or any of the same offenses are government officials, employees or officers including members of police agencies and the armed forces." (Sec. 19) (10) Planting of dangerous drugs as evidence in drug offenses with the mandatory death penalty if convicted are government officials, employees or officers "Any such above government official, employee or officer who is found guilty of 'planting' any dangerous drugs punished in Section s 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15, and 16 of Article III (of the Dangerous Drugs Act of 1972) in the person or in the immediate vicinity of another as evidence to implicate the latter, shall suffer the same penalty as therein provided." (Sec. 19) (11) In all the crimes in RA. No. 7659 in their qualified form

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"When in the commission of the crime, advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum [of death] regardless of mitigating circumstances. The maximum penalty [of death] shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group. An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime." (Sec. 23) It is specifically against the foregoing capital crimes that the test of heinousness must be squarely applied. The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely disrupt the normal course of his or her growth as a human being. The right of a person is not only to live but to live a quality life, and this means that the rest of society is obligated to respect his or her individual personality, the integrity and the sanctity of his or her own physical body, and the value he or she puts in his or her own spiritual, psychological, material and social preferences and needs. Seen in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death, and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention where the victim is detained for more than three days or serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature. There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal acts in the scheme of the larger sociopolitical and economic context in which the state finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the government and impoverished the population, the Philippine Government must muster the political will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of society and psyche of the populace. Terribly lacking the money to provide even the most basic services to its people, any form of misappropriation or misapplication of government funds translates to an actual threat to the very existence of government, and in turn, the very survival of the people it governs over. Viewed in this context, no less heinous are the effects and repercussions of crimes like qualified bribery, destructive arson resulting in death, and drug offenses involving government officials, employees or officers, that their perpetrators must not be allowed to cause further destruction and damage to society.

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We have no doubt, therefore, that insofar as the element of heinousness is concerned, R.A. No. 7659 has correctly identified crimes warranting the mandatory penalty of death. As to the other crimes in R.A. No. 7659 punished by reclusion perpetua to death, they are admittingly no less abominable than those mandatorily penalized by death. The proper time to determine their heinousness in contemplation of law, is when on automatic review, we are called to pass on a death sentence involving crimes punishable by reclusion perpetua to death under R.A. No. 7659, with the trial court meting out the death sentence in exercise of judicial discretion. This is not to say, however, that the aggravating circumstances under the Revised Penal Code need be additionally alleged as establishing the heinousness of the crime for the trial court to validly impose the death penalty in the crimes under R.A. No. 7659 which are punished with the flexible penalty of reclusion perpetua to death. In the first place, the 1987 Constitution did not amend or repeal the provisions of the Revised Penal Code relating to aggravating circumstances. Secondly, R.A. No. 7659, while it specifies circumstances that generally qualify a crime provided therein to be punished by the maximum penalty of death, neither amends nor repeals the aggravating circumstances under the Revised Penal Code. Thus, construing R.A. No. 7659 in parimateria with the Revised Penal Code, death may be imposed when (1) aggravating circumstances attend the commission of the crime as to make operative the provision of the Revised Penal Code regarding the imposition of the maximum penalty; and (2) other circumstances attend the commission of the crime which indubitably characterize the same as heinous in contemplation of R.A. No. 7659 that justify the imposition of the death, albeit the imposable penalty is reclusion perpetua to death. Without difficulty, we understand the rationale for the guided discretion granted in the trial court to cognize circumstances that characterize the commission of the crime as heinous. Certainly there is an infinity of circumstances that may attend the commission of a crime to the same extent that there is no telling the evil that man is capable of. The legislature cannot and need not foresee and inscribe in law each and every loathsome act man is capable of. It is sufficient thus that R.A. 7659 provides the test and yardstick for the determination of the legal situation warranting the imposition of the supreme penalty of death. Needless to say, we are not unaware of the ever existing danger of abuse of discretion on the part of the trial court in meting out the death sentence. Precisely to reduce to nil the possibility of executing an innocent man or one criminal but not heinously criminal, R.A. 7659 is replete with both procedural and substantive safeguards that ensure only the correct application of the mandate of R.A. No. 7659. In the course of the congressional debates on the constitutional requirement that the death penalty be re-imposed for compelling reasons involving heinous crimes, we note that the main objection to the death penalty bill revolved around the persistent demand of the abolitionists for a statement of the reason in each and every heinous crime and statistical proof the such compelling reason actually exists. We believe, however, that the elements of heinousness and compulsion are inseparable and are, in fact, interspersed with each other. Because the subject crimes are either so revolting and debasing as to violate the most minimum of the human standards of decency or its effects, repercussions, implications and

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consequences so destructive, destabilizing, debilitating, or aggravating in the context of our socio-political and economic agenda as a developing nation, these crimes must be frustrated, curtailed and altogether eradicated. There can be no ifs or buts in the face of evil, and we cannot afford to wait until we rub elbows with it before grasping it by the ears and thrashing it to its demission. The abolitionists in congress insisted that all criminal reforms first be pursued and implemented before the death penalty be re-imposed in case such reforms prove unsuccessful. They claimed that the only compelling reason contemplated of by the constitution is that nothing else but the death penalty is left for the government to resort to that could check the chaos and the destruction that is being caused by unbridled criminality. Three of our colleagues, are of the opinion that the compelling reason required by the constitution is that there occurred a dramatic and significant change in the socio-cultural milieu after the suspension of the death penalty on February 2, 1987 such as an unprecedented rise in the incidence of criminality. Such are, however, interpretations only of the phrase "compelling reasons" but not of the conjunctive phrase "compelling reasons involving heinous crimes". The imposition of the requirement that there be a rise in the incidence of criminality because of the suspension of the death penalty, moreover, is an unfair and misplaced demand, for what it amounts to, in fact, is a requirement that the death penalty first proves itself to be a truly deterrent factor in criminal behavior. If there was a dramatically higher incidence of criminality during the time that the death penalty was suspended, that would have proven that the death penalty was indeed a deterrent during the years before its suspension. Suffice it to say that the constitution in the first place did not require that the death penalty be first proven to be a deterrent; what it requires is that there be compelling reasons involving heinous crimes. Article III, Section 19 (1) of the 1987 Constitution simply states that congress, for compelling reasons involving heinous crimes, may re-impose the death penalty. Nothing in the said provision imposes a requirement that for a death penalty bill to be valid, a positive manifestation in the form of a higher incidence of crime should first be perceived and statistically proven following the suspension of the death penalty. Neither does the said provision require that the death penalty be resorted to as a last recourse when all other criminal reforms have failed to abate criminality in society. It is immaterial and irrelevant that R.A. No. 7659 cites that there has been an "alarming upsurge of such crimes", for the same was never intended by said law to be the yardstick to determine the existence of compelling reasons involving heinous crimes. Fittingly, thus, what R.A. No. 7659 states is that "the Congress, in the interest of justice, public order and rule of law, and the need to rationalize and harmonize the penal sanctions for heinous crimes, finds compelling reasons to impose the death penalty for said crimes." We now proceed to answer accused-appellant's other ground for attacking the constitutionality of R.A. No. 7659, i.e., that the death penalty imposed in rape is violative of the constitutional proscription against cruel, degrading or inhuman punishment. Accused-appellant first claims that the death penalty is per se a cruel, degrading or inhuman punishment as ruled by the United States (U.S.) Supreme Court in Furman v. Georgia.[41] To state, however, that the U.S. Supreme Court, in

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Furman, categorically ruled that the death penalty is a cruel, degrading or inhuman punishment, is misleading and inaccurate. The issue in Furman was not so much death penalty itself but the arbitrariness pervading the procedures by which the death penalty was imposed on the accused by the sentencing jury. Thus, the defense theory in Furman centered not so much on the nature of the death penalty as a criminal sanction but on the discrimination against the black accused who is meted out the death penalty by a white jury that is given the unconditional discretion to determine whether or not to impose the death penalty. In fact, the long road of the American abolitionist movement leading to the landmark case of Furman was trekked by American civil rights advocates zealously fighting against racial discrimination. Thus, the U.S. Supreme Court stated in Furman: "We cannot say from facts disclosed in these records that these defendants were sentenced to death because they were black. Yet our task is not restricted to an effort to divine what motives impelled these death penalties. Rather, we deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die x x x. In a Nation committed to equal protection of the laws there is no permissible 'caste' aspect of law enforcement. Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised x x x. Thus, these discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on 'cruel and unusual' punishments." Furman, thus, did not outlaw the death penalty because it was cruel and unusual per se. While the U.S. Supreme Court nullified all discretionary death penalty statutes in Furman, it did so because the discretion which these statutes vested in the trial judges and sentencing juries was uncontrolled and without any parameters, guidelines, or standards intended to lessen, if not altogether eliminate, the intervention of personal biases, prejudices and discriminatory acts on the part of the trial judges and sentencing juries. Consequently, in the aftermath of Furman, when most of the states re-enacted their death penalty statutes now bearing the procedural checks that were required by the U.S. Supreme Court, said court affirmed the constitutionality of the new death penalty statutes in the cases of Gregg v. Georgia,[42] Jurek v. Texas,[43] and Profitt v. Florida.[44] Next, accused-appellant asseverates that the death penalty is a cruel, inhuman or degrading punishment for the crime of rape mainly because the latter, unlike murder, does not involve the taking of life. In support of his contention, accused-appellant largely relies on the ruling of the U.S. Supreme Court in Coker v. Georgia.[45]

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In Coker, the U.S. Supreme Court ruled as follows: "x x x It is now settled that the death penalty is not invariably cruel and unusual punishment within the meaning of the Eighth Amendment; it is not inherently barbaric or an unacceptable mode of punishment for crime; neither is it always disproportionate to the crime for which it is imposed. It is also established that imposing capital punishment, at least for murder, in accordance with the procedures provided under the Georgia statutes saves the sentence from the infirmities which led the Court to invalidate the prior Georgia capital punishment statute in Furman v. Georgia x x x. In Gregg [v. Georgia] x x x the Court's judgment was that the death penalty for deliberate murder was neither the purposeless imposition of severe punishment nor a punishment grossly disproportionate to the crime. But the Court reserved the question of the constitutionality of the death penalty when imposed for other crimes. x x x That question, with respect to rape of an adult woman, is now before us. x x x [T]he public judgment with respect to rape, as reflected in the statutes providing the punishment for that crime, has been dramatically different. In reviving death penalty laws to satisfy Furman's mandate, none of the States that had not previously authorized death for rape chose to include rape among capital felonies. Of the 16 States in which rape had been a capital offense, only three provided the death penalty for rape of an adult woman in their revised statutes -- Georgia, North Carolina. and Louisiana. In the latter two States, the death penalty was mandatory for those found guilty, and those laws were invalidated by Woodson and Roberts. When Louisiana and North Carolina, respondent to those decisions, again revised their capital punishment laws, they reenacted the death penalty for murder but not for rape; none of the seven other legislatures that to our knowledge have amended or replaced their death penalty statutes since July 2, 1976, including four States (in addition to Louisiana and North Carolina) that had authorized the death sentence for rape prior to 1972 and had reacted to Furman with mandatory statutes, included rape among the crimes for which death was an authorized punishment. It should be noted that Florida, Mississippi, and Tennessee also authorized the death penalty in some rape cases, but only where the victim was a child, and the rapist an adult, the Tennessee statute has since been invalidated because the death sentence was mandatory. x x x The upshot is that Georgia is the sole jurisdiction in the United States at the present time that authorizes a sentence of death when the rape victim is an adult woman, and only two other jurisdictions provide capital punishment when the victim is a child The current judgment with respect to the death penalty for rape is not wholly unanimous among state legislatures, but it obviously weighs very heavily on the side of rejecting capital punishment as a suitable penalty for raping an adult woman.

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x x x [T]he legislative rejection of capital punishment for rape strongly confirms our own judgment, which is that death is indeed a disproportionate penalty for the crime of raping an adult woman. We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the 'ultimate violation of self.' It is also a violent crime because it normally involves force, or the threat of force or intimidation, to over come the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage. Because it undermines the community's sense of security, there is public injury as well. Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which 'is unique in its severity and irrevocability' x x x is an excessive penalty for the rapist who, as such, does not take human life." The U.S. Supreme Court based its foregoing ruling on two grounds: first, that the public has manifested its rejection of the death penalty as a proper punishment for the crime of rape through the willful omission by the state legislatures to include rape in their new death penalty statutes in the aftermath of Furman; and second, that rape, while concededly a dastardly contemptuous violation of a woman's spiritual integrity, physical privacy, and psychological balance, does not involve the taking of life. Anent the first ground, we fail to see how this could have any bearing on the Philippine experience and in the context of our own culture. Anent the second ground, we disagree with the court's predicate that the gauge of whether or not a crime warrants the death penalty or not, is the attendance of the circumstance of death on the part of the victim. Such a premise is in fact an ennobling of the biblical notion of retributive justice of "an eye for an eye, a tooth for a tooth". We have already demonstrated earlier in our discussion of heinous crimes that the forfeiture of life simply because life was taken, never was a defining essence of the death penalty in the context of our legal history and cultural experience; rather, the death penalty is imposed in heinous crimes because the perpetrators thereof have committed unforgivably execrable acts that have so deeply dehumanized a person or criminal acts with severely destructive effects on the national efforts to lift the masses from abject poverty through organized governmental strategies based on a disciplined and honest citizenry, and because they have so caused irreparable and substantial injury to both their victim and the society and a repetition of their acts would pose actual threat to the safety of

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individuals and the survival of government, they must be permanently prevented from doing so. At any rate, this court has no doubts as to the innate heinousness of the crime of rape, as we have held in the case of People v. Cristobal: [46] "Rape is the forcible violation of the sexual intimacy of another person. It does injury to justice and charity. Rape deeply wounds the respect, freedom, and physical and moral integrity to which every person has a right. It causes grave damage that can mark the victim for life. It is always an intrinsically evil act xxx an outrage upon decency and dignity that hurts not only the victim but the society itself." We are not unaware that for all the legal posturings we have so essayed here, at the heart of the issue of capital punishment is the wistful, sentimental life-anddeath question to which all of us, without thinking, would answer, "life, of course, over death". But dealing with the fundamental question of death provides a context for struggling with even more basic questions, for to grapple with the meaning of death is, in an indirect way, to ask the meaning of life. Otherwise put, to ask what the rights are of the dying is to ask what the rights are of the living. "Capital punishment ought not to be abolished solely because it is substantially repulsive, if infinitely less repulsive than the acts which invoke it. Yet the mounting zeal for its abolition seems to arise from a sentimentalized hyperfastidiousness that seeks to expunge from the society all that appears harsh and suppressive. If we are to preserve the humane society we will have to retain sufficient strength of character and will to do the unpleasant in order that tranquillity and civility may rule comprehensively. It seems very likely that capital punishment is a x x x necessary, if limited factor in that maintenance of social tranquillity and ought to be retained on this ground. To do otherwise is to indulge in the luxury of permitting a sense of false delicacy to reign over the necessity of social survival." [47] WHEREFORE, in view of all the foregoing, the Motion for Reconsideration and the Supplemental Motion for Reconsideration are hereby DENIED [48] for LACK OF MERIT. SO ORDERED.

[G.R. No. 116239. November 29, 2000] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELPIDIO MERCADO y HERNANDO and AURELIO ACEBRON y ADORA, accused-appellants.

PER CURIAM: For automatic review by the court is the decision,[1] dated July 22, 1994, of the Regional Trial Court, Branch 156, Pasig, convicting accused-appellants SPO2 Elpidio Mercado y Hernando and SPO1 Aurelio Acebron y Adora, of the Philippine National Police of Tanay, Rizal, of kidnapping with murder and sentencing them as follows:

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WHEREFORE, in the light of the foregoing discussions and finding the guilt of both accused to be proven beyond reasonable doubt, while the undersigned Presiding Judge does not believe in the imposition of the death penalty as a form of punishment, nevertheless, in obedience to the law which is his duty to uphold, the Court hereby sentences both accused, ELPIDIO MERCADO y HERNANDO and AURELIO ACEBRON y ADORA, to death, to proportionately indemnify the heirs of the deceased Richard Buama in the sum of fifty thousand pesos (P50,000.00); to pay the sum of fifty two thousand six hundred eighty pesos (P52,680.00) (Exhibit J, J1 to J-7) as expenses incident to the burial; and the further sum of one hundred thousand pesos (P100,000.00) by way of moral and exemplary damages, all without subsidiary imprisonment in case of insolvency and to pay the costs. Let a Commitment Order be issued for the transfer of both accused from the Pasig Municipal Jail to the Bureau of Corrections, Muntinlupa, Metro Manila. Let the records of this case be forwarded immediately to the Supreme Court for mandatory review. SO ORDERED.[2] The information against accused-appellants chargedThat on or about the 9th day of February, 1994, in the Municipality of Pasig, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, being them members of the PNP, conspiring and confederating together and mutually helping and aiding one another, did then and there wilfully, unlawfully, and feloniously kidnap one Richard Buama, a 17 year old minor and boarded him in a Red car bearing License plate No. CGZ 835 against his will thus depriving him of his freedom of liberty (sic), brought him to Tanay, Rizal in a safe house and there subjected him to extreme/brutal physical violence, and thereafter with abuse of superior strength and evident premeditation hacked and bludgeoned/clubbed said Richard Buama who thereby sustained mortal wounds which directly caused his death. Contrary to law.[3] Because of the gravity of the charge, no bail was recommended for the provisional release of accused-appellants. When arraigned on March 8, 1994, both accused-appellants, assisted by counsel,[4] pleaded not guilty to the crime charged. During the trial, the prosecution presented the following witnesses: Florencio Villareal, Eric Ona, SPO2 Virgilio Buama, Maria Buama, Lourdes Vergara, SPO2 Delfin Gruta, SPO2 James Mabalot, Jesus Nieves Vergara, and Lupito Buama. Their testimonies are as follows: Twelve-year-old Florencio Villareal testified that at around 9 oclock in the evening of February 9, 1994, he and Richard Buama were picked up by accusedappellant Elpidio Mercado near Mercados house in Sto. Tomas, Bukid, Pasig, Metro

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Manila. Mercado arrived in a car, together with Eric Ona. Mercado suspected Florencio Villareal and Richard Buama of being the ones who had broken into his store and stolen money. Florencios friend, Rex Bugayong, was able to run from Mercado. Florencio and Richard were pushed into Mercados car. Florencio said Mercado poked a gun at Richard which made the latter say, Sasama na lang po ako. Wag ninyo lang po akong sasaktan. (I will go with you. Just dont hurt me.) Mercado drove the car to Tanay, Rizal. Florencio and Richard were seated at the back, behind Mercado and Eric, respectively. Upon reaching Tanay at around 11 oclock in the evening Mercado took the three of them (Florencio, Richard, and Eric) to an apartment. Florencio was led inside the apartment while Richard was held outside by Mercado. When Florencio looked through the window, he saw Mercado slap and box Richard. Then he was brought inside. Mercado later went upstairs. According to Florencio, Richard asked if they could leave the place as he held his stomach in pain, but Florencio replied that the door was padlocked. Eventually, Mercado came down with Acebron. Richard was made to sit on the floor in the kitchen of the apartment. Mercado then told Aceborn that the had brought him a present (pasalubong) and that they were going to kill two boys a small one and a big one who was dark. In reply, Aceborn said, Pare, huwag yung maliit dahil kasing hawig ng anak ko, saka magbebirthday pa kinabukasan. (Buddy, not the small one because he resembles my son who will celebrate his birthday tomorrow.) As the conversation was made within his hearing distance, Richard became so scared that he could not answer when asked by Acebron about a girls picture found in his wallet. This angered Acebron who boxed Richards in the stomach. Mercado thereafter ordered Richard to take off all his clothes and lie face down on the kitchen floor. Mercado asked his aide Jeff to get a rope. Jeff brought a piece of rattan rope and tied Richards hands, while Mercado tied Richards feet. This happened at about 11:30 in the evening. Mercado also ordered Jeff to get rags with which to blindfold and gag Richard and then asked Acebron to get a bolo or a big knife. After getting a bolo, Acebron and Jeff put Richard into the luggage compartment of Mercado's car. They then drove away, leaving behind Florencio and Eric in the apartment. After two hours, Mercado and Acebron came back. Florencio saw Acebron washing the bloodstains off the bolo. He asked Mercado where Richard was, to which Mercado replied, "Wala na. Pinatahimik ko na." ("Gone. I have already silenced him.") Mercado and Acebron then took Eric and Florencio to a beerhouse in Tanay, Rizal and warned them not to tell anyone about the incident or they and their families would be killed. For fear of his life and that of his family, Florencio promised he would not. From the beerhouse, Mercado drove to Acebron's apartment, where the latter was dropped off, and then proceeded home to Pasig with Eric and Florencio. Florencio waited three days for news about Richard. On February 12, 1994, with still no news about Richard, Florencio decided to talk to Richard's sister, a flower vendor whose store was located near the Pasig Church. Florencio told her to look for Richard in Tanay; he even promised to help them once they found him. Actually, it was Richard's brother, Virgilio Buama, a policeman, who found Richard's body in

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a morgue in Morong, Rizal. He was told by a funeral parlor employee that they had retrieved Richard's body near the boundary of Laguna. Florencio attended the wake of his friend in Sto. Tomas, Pasig.[5] Virgilio Buama, a policeman and brother of Richard, last saw the latter on December 25, 1993 as Richard lived with their mother. On February 11, 1994, Virgilio learned from his sister, Maria Buama, that Richard had been picked up by a policeman on February 9, 1994. Hence, he went to see Florencio Villareal, who related to him how Richard had been kidnapped and killed by Mercado. Virgilio took Florencio to his house, and the following day, February 12, 1994, they went to the PNP headquarters at Hilltop, Taytay, Rizal, where Florencio was shown pictures by Maj. Patricio Abenido. Florencio picked out pictures of Mercado and Acebron and identified them as the culprits in the killing of Richard. Florencio gave a sworn statement concerning the incident to SPO2 James Mabalot at the PNP headquarters. Mercado was thereafter ordered to report to the Provincial Director, Col. Maralit, and it was there that Florencio pointed to Mercado as the person who had kidnapped and killed Richard. Acebron was likewise called, and he and Mercado were detained at the Rizal PNP Command Stockade. Virgilio found Richard's body at the San Francisco Funeral Homes in Morong, Rizal. The owner/manager of the funeral parlor told him that Richard's body had been recovered in Mabitac, Laguna. Virgilio brought the remains of his brother home.[6] Eric Matanggihan Ona, 21 years old, was in the house of his neighbor Coco San Juan, in Sto. Tomas, Pasig, Metro Manila, at around 9 o'clock in the evening of February 9, 1994 when Mercado arrived and asked him to go with him, after Mercado had asked Eric's father for permission to do so. Along the way, Eric asked Mercado where they were going, and the latter said that they would look for "Bunso" (Florencio Villareal's nickname) who had stolen money from his video machines. Eric went with Mercado in the latter's car. Florencio voluntarily went with them when Eric and Mercado saw him. Later, they saw Richard and Rex Bugayong seated on the street gutter. When the two saw the car stop, Rex stood up and ran away. Mercado told Eric to go after Rex, but Eric refused to do so because Rex was his friend. Mercado was able to get Richard. Mercado placed his arm around Richard's shoulders while his other hand poked a gun at Richard's side. Eric heard Richard pleading with Mercado not to hurt him and saying that he would go with him. Eric knew that Mercado poked a gun at Richard because the latter was Mercado's suspect in the robbery of his store. He heard Mercado ask, "Eric, bakit naman pinasok nina Richard Buama at Florencio Villareal ang tindahan ko?" (Eric, why did Richard Buama and Florencio Villareal break into my store?") He answered that he did not know anything about it. Then, Mercado told Richard and Florencio, "Nagkamali kayo ng tinalo. Isang napakalaking bangungot ang ginawa ninyo." ("You picked on the wrong guy. What you have done is a big nightmare.") According to Eric, they then boarded Mercado's car. Along the way, Eric asked Mercado where they were going, to which Mercado replied, "Sa Tanay. Have you been there?" Mercado asked Richard how many they were in the family, to which Richard replied that they were ten and that one of his brothers was "one of them." ("Kabaro ninyo.") Mercado also asked them when their birthdays were and whether they would like to have another birthday.

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Upon reaching Tanay, they were brought to an apartment. There Mercado hit Richard on the face and told him to take off his clothes. Mercado then went upstairs to wake up Acebron. Acebron tried to talk to Richard, but the latter would not speak. This so angered Acebron that he boxed Richard hard on the stomach. Mercado then asked his aide named Jeff to tie Richard's hands and feet and to blindfold and gag him. This done, Acebron and Jeff loaded Richard into the luggage compartment of the car. Eric described Richard as pale (maputla). He had hematoma on his stomach and a swollen right cheek that was blackish in color. Eric saw Acebron get a bolo from the kitchen, a long one, "mapurol" ("dull and not sharp"), and with a black handle. Fearing for his safety, Eric kept quiet. Mercado warned them not to tell anybody about the incident; otherwise, they would be killed. After two hours, Mercado and Acebron returned to the apartment without Richard. Eric saw the bolo with bloodstains. He asked Mercado, "Tata Pedi, where is Richard?" Mercado answered, "Wala na, pinagpahinga ko na." ("He is gone. I have laid him to rest.") At around 4 o'clock in the morning, they went to the nearby "Space" beerhouse in Tanay, Rizal where they were made to drink. It was there that Eric heard Mercado and Acebron's conversation. Mercado asked, "Pare, ilan na ba ang napatay mo?" ("How many have you killed?") Acebron said, "Ako, labimpito." ("Me, 17.") Mercado countered, "Pare, ako dalawampu't lima." ("Buddy, me, 25.") Acebron said Richard was the 17th person he had killed while Mercado said that Richard was his 25th victim. Thereafter, with Eric and Florencio in tow, Mercado brought Acebron back to the apartment and they then went home to Pasig in Mercado's car. They reached Sto. Tomas, Pasig at around 5:30 in the morning. Mercado again warned them: "Eric, Bunso, yung sinabi ko, ha." ("Eric, Bunso, don't forget what I told you.") Eric took that to mean that they should not tell anyone about the incident; otherwise, something bad would happen to them. Hence, hounded by fear, Eric did not report the matter to the police. He also did not know that Richard had been killed. He said if he had known that Richard was already dead when Mercado brought him home, he would have reported the matter to police authorities. Richard's brothers and sisters searched for him the following day, but Eric, fearing for his life, did not talk to them. It was only when he saw the wake being held for Richard at the Sto. Tomas Chapel that Eric realized that Richard was dead. After Richard's wake, Mercado told Eric to look for Florencio lest the latter talk about the incident. Eric did not obey Mercado. When Mercado asked him if he had seen Florencio, Eric said he had not. Thereafter, someone from the PNP headquarters in Hilltop picked him up. At the investigation conducted, Eric executed a sworn statement.[7] The sisters Maria Buama and Lourdes Buama Vergara testified that Richard was informally adopted by the Buama family. When Richard was six months old, his mother gave him to Maria at the Pasig Immaculate Conception Church on June 18, 1977. They considered Richard as their own brother and a member of their family. It was Florencio who informed them that Mercado had picked him up and Richard on February 9, 1994. In the evening of February 11, 1994, upon learning about the

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incident, Maria and Lourdes went to Mercado's house cum store in Sto. Tomas, Pasig where Richard used to play video machines. Mercado's wife told them that Richard no longer came to the video store as he had done something wrong. Asked what it was that Richard had done, Mercado's wife failed to answer because someone inside the store said, "Hinahanap si Richard ng mga kapatid niya." When asked why his parents were not informed about Richard's alleged mischief, Mercado's wife allegedly replied it was because their store had not yet been emptied. ("Hindi pa raw nauubos ang tindahan nila.") Lourdes and Maria eventually found Richard's body in the early morning of February 12, 1994. For the wake the Buama family held for Richard at the Chapel of Sto. Tomas in Pasig and his funeral, they spent P52,680.00.[8] SPO2 James Mabalot took the statements of Eric and Florencio. When the latter implicated Mercado and Acebron, SPO2 Mabalot took the two boys to the Administrative Building. From the pictures of almost all of the more than 100 members of the PNP Rizal, Eric and Florencio picked those of Mercado and Acebron. The statements that Eric and Florencio executed were signed in the presence of both SPO2 Mabalot and his superior. SPO2 Mabalot and his team thereafter went to a funeral parlor in Morong, Rizal where they were told that Richard's body had been taken to the PNP Crime Laboratory Services for autopsy. They learned that Richard's body had been found at the boundary of Rizal and Laguna. On the way to that site, SPO2 Mabalot and his team dropped by the Tanay Police Station to coordinate with the Tanay police in the investigation of the case. When Florencio, who was with them, saw Mercado's car parked outside the police station, he recognized it as the one used in taking them from Pasig to Tanay. When SPO2 Mabalot and his team opened the car, they found blood spots on the backseat. The car was then taken to the PNP Headquarters in Hilltop, Taytay, Rizal for proper identification and examination of the bloodstains. On orders of Col. Maralit, Mercado and Acebron were placed in detention. SPO2 Mabalot wanted Florencio and Eric to confront Mercado and Acebron, but Florencio and Eric were so scared to do so for fear that the accused might hurt them.[9] Dr. Jesusa Nieves Vergara, Acting Chief of the Medico-legal Division of the PNP Crime laboratory in Camp Crame, Quezon City, executed and signed the postmortem examination report on Richard's body. Her report shows that the cadaver had previously been embalmed; that there were two marks at the back of the left hand; that both hands were tied with plastic cord while both feet were tied with rattan; and that it sustained nine injuries on the head, neck, left upper extremity, and the left arm. There were abrasions, lacerations, and stab wounds. The multiple abrasions on the forehead and the back of the left arm were possibly secondary to a fall against a hard surface. The lacerations were on the lower jaw, on the front right ear, at the right ear lobe, and two on the right side of the neck. These could have been caused by a blunt object such as a piece of wood, an iron bar, a hollow block, or anything hard. There were also injuries and other lacerations on the back of the head towards the right side which could have been caused by the application of blunt force. Opening of the head revealed hematoma or accumulation of blood. The medical report stated that Richard died of "(i)ntracranial hemorrhage as a result of skull fracture."[10]

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Accused-appellants' defense was alibi. SPO1 Miguel Catapusan, Administrative Officer of the Tanay PNP Municipal Station, testified that accusedappellants both reported for work on February 9, 1994 at the police station. The morning and evening Formation Sheets and the Police Duty Roster Book or the logbook showed that accused-appellant Elpidio Mercado and accused- appellant Aurelio Acebron were both present from 8:00 a.m. to 8:00 p.m. However, after signing the logbook in the morning, accused-appellants were told to report to the Rizal PNP Headquarters Command between 9:00 a.m. and 5:00 p.m. regarding some important matters. After the head count that night, the Chief of Police briefed the policemen on their assignments for thirty minutes, until 8:30 p.m. [11] Testifying in his own defense, accused-appellant Elpidio Mercado said that before he joined the PNP Tanay, Rizal, he was with the Philippine Navy since 1976. He was transferred to the Philippine Coast Guard in 1981 where he served until 1986. When the EDSA Revolution broke out, he was assigned to Malacaang as a member of the Presidential Security Group (PSG) until 1991. His next assignment from 1991 to 1992 was at the Maritime Command, Anti-smuggling Division. Thereafter, he was assigned to Task Force Habagat under Col. Panfilo Lacson of the Presidential AntiCrime Commission (PACC). In 1993, he was assigned to the PNP of Rizal. For his military and police services, Mercado claimed he received several awards, commendations, and medals.[12] On February 9, 1994, Mercado reported to the Tanay police station because Col. Maralit had summoned him the night before. After signing the logbook, Mercado, together with Acebron and one SPO4 Bias, asked permission from their superior officer to go to the PNP Hilltop Headquarters for an investigation. They left the Tanay Police Station at 8:10 a.m. and proceeded to the Hilltop Headquarters where they stayed until 5:00 p.m. They went back to the Tanay Police Station to attend the evening formation that lasted up to 8:30 p.m. Thereafter, Mercado went home with Acebron. They invited SPO4 Bias to have dinner with them in their house at Plaza Aldea, Tanay. The house was provided to them by the local government of Tanay, and they shared it with SPO2 Sagat and Chief Inspector Genabe. After SPO4 Bias went home at 10 o'clock in the evening, Mercado went to bed. At around 7 o'clock in the morning the following day, February 10, 1994, Acebron woke Mercado up as he prepared to go to the office. Mercado told Acebron to inform his officer that he would not attend the morning formation. Mercado said he was married and that his wife stayed in their house in Sto. Tomas, Baltazar St., Pasig, Metro Manila, to attend to their store and two video machines. He usually went home every 15th and 30th of the month except when there were special occasions. He owned a red Chevrolet car, but it was seized by the 221st Mobile Force on the ground that it was used in a crime. Mercado claimed that the travel time from Pasig to Tanay was one-and-a-half hours and if traffic was heavy, two hours. Mercado denied the allegations against him. He claimed that Eric and Florencio implicated them in the crime because of an incident on January 23, 1994 in which Eric created trouble in his video machine shop. Mercado saw Eric strangling a kid. He was going to pacify Eric, but the latter uttered bad words against him. So, he slapped Eric. The youngsters scampered, but Acebron, who was visiting Mercado, was able to grab Florencio. Mercado hit Florencio on the back of the

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head and told him not to show their faces anymore in his store because they were driving away his customers. Since then, Eric and Florencio harbored ill feelings against him. They had been calling his house and threatening his family that they would kill his son and rape his daughters. Hence, as a precautionary measure, he sent his children to Cavite; only his wife, sister-in-law, and their maid remained in their house in Pasig.[13] Aurelio Acebron, the other accused-appellant, also testified. He said that before he joined the Tanay Police Force in November 1993, he had been a member of the Philippine Constabulary since 1975. He was assigned to the 61st PC Battalion in Basilan and Cebu until 1978. From 1978 to 1979, he was an investigator of the Constabulary Metrocom. From 1979 to 1982, he was also an investigator at the regional headquarters of the RT Division in Zamboanga City. From 1982 to 1985, he served in the Military Police Brigade in Camp Aguinaldo. At the Rizal PNP Command, he was also an investigator. During his active duty, he received 22 commendations, two medals, and six military merit medals. He was also awarded a bronze medal in the aftermath of the 1989 failed coup d' etat in Makati. Acebron claimed that on February 9, 1994, he reported for work before 8 o'clock in the morning as shown by the logbook he signed. With Mercado and SPO4 Bias, he was ordered to report to Supt. Crescencio Maralit at Hilltop, Taytay, Rizal. They left Tanay at 8: 10 a.m. and arrived at Hilltop at 9 o'clock that same morning. They conferred with Supt. Maralit from 2 until 5 o'clock in the afternoon. They then went back to the Tanay PNP station and reported to Major Genabe. Acebron attended the evening formation that lasted up to 8:30 in the evening, after which he went home to Plaza Aldea, Tanay together with Mercado and SPO4 Bias. They had dinner with Bias and Major Genabe. Bias left at 10 o'clock in the evening and they settled for the night. The following morning, he woke up at 6 o'clock. Before leaving for the office, he woke up Mercado who, however, said that he would not attend the morning formation as he would go directly to his assignment at Post No. 2. Acebron also denied all accusations against him. He claimed that he had been implicated in revenge for what happened on January 23, 1994 when he collared Florencio and Mercado hit the boy's back for causing trouble in Mercado's video shop. Acebron claimed that he had been asked by police officers Mabalot and Ople to testify against Mercado, but he refused. He claimed he had been detained on February 12, 1994 after he was implicated in this case.[14] Corroborating other defense witnesses, SPO4 Teofilo Paz Bias swore that at 7:30 in the morning on February 9, 1994, he attended the morning formation at the Tanay police station. Mercado and Acebron were there present. At past 8:00 a.m., as he accompanied Mercado and Acebron to the headquarters at Hilltop, Taytay, Rizal, they saw Col. Maralit with whom they conferred from 2:00 p.m. until 5:00 p.m. They then went back to Tanay to attend the evening formation which lasted until about 8:45 in the evening. Major Genabe ordered him to go with Mercado and Acebron to discuss in the house the result of the investigation at Hilltop, Taytay. They arrived in that house at 9:00 p.m. While they were having dinner, they discussed what had happened at the investigation of Mercado and Acebron by the Provincial Director. At 10 o'clock that evening, after supper, Bias went home to Pililla, Rizal. The following morning, he saw Acebron report to work.[15]

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On the basis of the foregoing evidence, the trial court found both accused guilty and sentenced them to death. Hence, this appeal. The joint brief of accusedappellants Mercado and Acebron contains the following assignment of errors: FIRST ASSIGNMENT OF ERROR WITH ALL DUE RESPECT, THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION IN GIVING CREDENCE TO CLASHING MATERIAL INCONSISTENCIES ON THE TESTIMONIES OF THE TWO (2) PROSECUTIONS (sic) PRINCIPAL WITNESSES. THEIR CONTRADICTING TESTIMONIES AND EVIDENCES CREATED NOT ONLY REASONABLE DOUBT BUT RATHER ESTABLISHED FACTUAL ERROR THAT WOULD BRING ABOUT ACQUITTAL OF THE ACCUSEDAPPELLANTS. SECOND ASSIGNMENT OF ERROR WITH ALL DUE RESPECT, THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION IN DISREGARDING THE DIRECT MATERIAL EVIDENCE CONSISTING OF POLICE LOGBOOK OR DUTY ROSTER BOOK (EXHIBITS "6" -MERCADO AND "4" -ACEBRON) AND TESTIMONIES OF SPO2 POLICE CATAPUSAN THAT BOTH ACCUSED-APPELLANTS ATTENDED THE MORNING FORMATION AT 8:00 IN THE MORNING OF FEBRUARY 9, 1994 AT TANAY, RIZAL, THEN ATTENDED A CONFERENCE CALL OF SUPT. CHIEF COLONEL MARALIT THE WHOLE DAY AT TAYTAY, RIZAL, THEN BACK TO TANAY, RIZAL AT 6:00 P.M. AND BOTH ACCUSED-APPELLANTS ATTENDED THE EVENING FORMATION AT 8:00 P.M. WHICH LASTED UP TO 8:45 P.M., AFTER WHICH, THEY (SPO1 BIAS, MERCADO & ACEBRON) PROCEEDED TO MAJOR GENABE AT THE TANAY APARTMENT AND MADE REPORT REGARDING THE CONFERENCE CONDUCTED BY COL. MARALIT UP TO 10:00 P.M. HENCE, PHYSICALLY IMPOSSIBLE FOR THE ACCUSED MERCADO TO PICK UP THE VICTIM AT 9:00 P.M. AT PASIG, METRO MANILA. THIRD ASSIGNMENT OF ERROR WITH ALL DUE RESPECT, THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION IN FINDING THAT THERE EXIST (sic) A CONSPIRACY, WITHOUT ANY EVIDENCE AND BASIS IN FACT AND IN LAW THAT WILL SUPPORT ITS DECISION. FOURTH ASSIGNMENT OF ERROR WITH ALL DUE RESPECT, THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION IN FINDING THE ACCUSEDAPPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME KIDNAPPING WITH HOMICIDE, THERE BEING NO EVIDENCE ADDUCED THAT HOMICIDE HAS BEEN COMMITTED IN FURTHERANCE OR AS A CONSEQUENCE OF KIDNAPPING. FIFTH ASSIGNMENT OF ERROR

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WITH ALL DUE RESPECT, THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION IN WRITING THE DECISION WITH UNDUE HASTE AND INCREDIBLE SPEED ONE (1) DAY AFTER THE SUBMISSION OF ACCUSED (sic) 32-PAGE JOINT MEMORANDUM ON JULY 21, 1994, WITHIN THE 15DAY PERIOD GRANTED BY THE COURT AND PROMULGATING ITS DECISION ON THE NEXT DAY, JULY 22, 1994, CONSISTING OF 39 PAGES, THUS, RESULTING IN FATAL ERROR OF CONVICTING BOTH ACCUSED SENTENCING THEM TO DEATH BASED ON WRONG APPRECIATION OF FACTS, SPECULATIONS AND PROBABILITIES AND DESPITE PATENT FAILURE OF THE PROSECUTION TO PROVE WHAT HAVE BEEN ALLEGED UNDER THE CRIMINAL INFORMATION. These assigned errors boil down to the following main issues: (1) credibility of witnesses, (2) alibi as a defense, and (3) the presence of conspiracy. These issues will be discussed in the course of this decision, although not necessarily in the order discussed by accused-appellants in their brief. But before doing so, we first consider the threshold question raised in the Supplemental Brief filed for accused-appellants by collaborating counsel Rene V. Sarmiento with regard to the constitutionality of Republic Act No. 7659 providing for the death penalty for 13 heinous crimes. I. CONSTITUTIONALITY OF R.A. 7659 AND R.A. 8177 Accused-appellants argue that Republic Act 7659 violates the 1987 Constitution because 1. There are no compelling reasons to impose the death penalty for the crimes of treason, qualified piracy, qualified bribery, parricide, murder, infanticide, kidnapping and serious illegal detention, robbery with violence against or intimidation of persons, destructive arson, rape, plunder, importation of prohibited drugs, etc. 2. R.A. No.7659 violates the constitutional ban against infliction of cruel, degrading or inhuman punishment. 3. R.A. No. 7659 impugns the constitutional right to equality before the law. 4. R.A. No. 7659 repudiates the obligation of the Philippines under international law. 5. Death penalty is not deterrence to the commission of crimes.[16] The constitutionality of Republic Act No. 7659 has already been settled in the Court's 12-3 per curiam Resolution in People vs. Echegaray,[17] wherein the following rulings were made: 1. The death penalty is not a "cruel, unjust, excessive or unusual punishment." It is an exercise of the state's power to "secure society against the threatened and actual evil."

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2. The offenses for which Republic Act No. 7659 provides the death penalty satisfy "the element of heinousness" by specifying the circumstances which generally qualify a crime to be punishable by death; 3. Republic Act No. 7659 provides both procedural and substantial safeguards to insure its correct application. 4. The Constitution does not require that "a positive manifestation in the form of a higher incidence of crime should first be perceived and statistically proven" before the death penalty may be prescribed. Congress is authorized under the Constitution to determine when the elements of heinousness and compelling reasons are present, and the Court would exceed its own authority if it questioned the exercise of such discretion. In the subsequent case of Echegaray vs. Secretary of Justice, [18] the Court sustained the constitutionality of Republic Act No. 8177, providing for death by lethal injection against claims that death by lethal injection was cruel, degrading, or inhuman punishment, and that the law violated treaty obligations. Petitioner in that case argued that death by lethal injection constituted cruel, degrading, and inhuman punishment because: (1) Republic Act No. 8177 failed to provide for the drugs to be used in administering lethal injection, the dosage for the drug to be administered, and the procedure in administering drug(s) to the convict; (2) Republic Act No. 8177 and its implementing rules did not fix either the date of execution of the convict or the time for notifying him, with the result that such uncertainties cause pain and suffering to the convict, and (3) the possibility of botched executions or mistakes in administering drugs renders lethal injection inherently cruel. Rejecting petitioner's contention that death by lethal injection violates the prohibition against cruel, degrading, and inhuman punishment in Section 19(1), Article III of the Constitution, the Court said: "Now it is well-settled in jurisprudence that the death penalty per se is not a cruel, degrading or inhuman punishment. In the oft-cited case of Harden v. Director of Prisons, this Court held that '[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.' Would the lack in particularity then as to the details involved in the execution by lethal injection render said law 'cruel, degrading or inhuman'? The Court believes not. For reasons hereafter discussed, the implementing details of R.A. No. 8177 are matters which are properly left to the competence and expertise of administrative officials." [19] As to the contention that the re-imposition of the death penalty violates international treaty obligations, particularly the International Covenant on Civil and Political Rights, the Court explained:

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"Indisputably, Article 6 of the Covenant enshrines the individual's right to life. Nevertheless, Article 6(2) of the Covenant explicitly recognizes that capital punishment is an allowable limitation on the right to life, subject to the limitation that it be imposed for the most serious crimes.' Pursuant to Article 28 of the Covenant, a Human Rights Committee was established and under Article 40 of the Covenant, States Parties to the Covenant are required to submit an initial report to the Committee on the measures they have adopted which give effect to the rights recognized within the Covenant and on the progress made on the enjoyment of those rights within one year of its entry into force for the State Party concerned and thereafter, after five years. On July 27, 1982, the Human Rights Committee issued General Comment No. 6 interpreting Article 6 of the Covenant stating that '(while) it follows from Article 6(2) to (6) that State parties are not obliged to abolish the death penalty totally, they are obliged to limit its use and, in particular, to abolish it for other than the 'most serious crimes.' Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the 'most serious crimes.' The article strongly suggests (pars. 2[2] and [6]) that abolition is desirable. x x x. The Committee is of the opinion that the expression 'most serious crimes' must be read restrictively to mean that the death penalty should be a quite exceptional measure. Further, The Safeguards Guaranteeing Protection of Those Facing the Death Penalty adopted by the Economic and Social Council of the United Nations declare that the ambit of the term 'most serious crimes' should not go beyond intentional crimes, with lethal or other extremely grave consequences. "The Optional Protocol to the International Covenant on Civil and Political Rights was adopted by the General Assembly of the United Nations on December 16, 1966, and signed and ratified by the Philippines on December 19, 1966 and August 22, 1989, respectively. The Optional Protocol provides that the Human Rights Committee shall receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant. "On the other hand, the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty was adopted by the General Assembly on December 15, 1989. The Philippines neither signed nor ratified said document. Evidently, petitioner's assertion of our obligation under the Second Optional Protocol ismisplaced."[20] Accused-appellants further argue that Republic Act No. 7659 denies equality before the law. They cite studies here and abroad allegedly showing that "the death penalty has most often been used against the poor." This statement is too sweeping to merit further serious consideration. Anyone, regardless of his economic status in life, may commit a crime. While there may be perceived imbalances in the imposition of penalties, there are adequate safeguards in the Constitution, the law, and procedural rules to ensure due process and equal protection of the law. As pointed out by Representative Pablo Garcia when interpellated by Representative Joker Arroyo during the congressional deliberation on the death penalty bill:

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"x x x. (T)here is something more in the bill that protects the rights of every accused person, be he rich or poor. I refer to the provisions under the Bill of Rights of the Constitution. The Constitution itself protects, envelops the accused with the mantle of protection guaranteed by the Bill of Rights. Section 1 of Article III of the Constitution provides that no person shall be deprived of life, liberty or property without due process of law. In other words, the accused cannot be deprived of his life without due process of law nor shall any person be denied the equal protection of the laws. In other words, the laws protect the rich and the poor, the lettered and the unlettered. That is guaranteed by the Constitution. x x x. [21] Similarly, in People vs. Mijano,[22] this Court recently said: "Finally, accused-appellant in his reply brief contends that the death penalty law is violative of the equal protection clause of the 1987 Constitution because it punishes only people like him, the poor, the uneducated, and the jobless. "The equality the Constitution guarantees is legal equality or, as it is usually put, the equality of all persons before the law. Under this guarantee, each individual is dealt with as an equal person in the law, which does not treat the person differently because of who he is or what he is or what he possesses (Bernas, The Constitution of the Republic of the Philippines, A Commentary, 1987 ed., p. 6). "Apparently, as it should be, the death penalty law makes no distinction. It applies to all persons and to all classes of persons - rich or poor, educated, or uneducated, religious or non-religious. No particular person or classes of persons are identified by the law against whom the death penalty shall be exclusively imposed." Accused-appellants' claim that the death penalty does not deter the commission of crimes is without any basis. To be sure, deterrence is not the only aim of the law. As Representative Pablo Garcia, the principal author of the death penalty bill, explained "more than deterrence, x x x is retributive justice." [23] In People vs. Echegaray, it was further stated: "The abolitionists in Congress insisted that all criminal reforms first be pursued and implemented before the death penalty be reimposed in case such reforms prove unsuccessful. They claimed that the only compelling reason contemplated by the Constitution is that nothing else but the death penalty is left for the government to resort to that could check the chaos and the destruction that is being caused by unbridled criminality. Three of our colleagues are of the opinion that the compelling reason required by the constitution is that there occurred a dramatic and significant change in the socio-cultural milieu after the suspension of the death penalty on February 2, 1987 such as an unprecedented rise in the incidence of criminality. Such are, however, interpretations only of the phrase 'compelling reasons' but not of the conjunctive phrase 'compelling reasons involving heinous crimes.' The imposition of the requirement that there be a rise in the incidence of criminality because of the suspension of the death penalty, moreover, is an unfair and misplaced demand, for what it amounts to, in fact, is a requirement that the

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death penalty first prove itself to be a truly deterrent factor in criminal behavior. If there was a dramatically higher incidence of criminality during the time that the death penalty was suspended, that would have proven that the death penalty was indeed a deterrent during the years before its suspension. Suffice it to say that the constitution in the first place did not require that the death penalty be first proven to be a deterrent; what it requires is that there be compelling reasons involving heinous crimes. "Article III, Section 19 (1) of the 1987 Constitution simply states that Congress, for compelling reasons involving heinous crimes, may re-impose the death penalty. Nothing in the said provision imposes a requirement that for a death penalty bill to be valid, a positive manifestation in the form of a higher incidence of crime should first be perceived and statistically proven following the suspension of the death penalty. Neither does the said provision require that the death penalty be resorted to as a last recourse when all other criminal reforms have failed to abate criminality in society. It is immaterial and irrelevant that R.A. No. 7659 cites that there has been an 'alarming upsurge of such crimes,' for the same was never intended by said law to be the yardstick to determine the existence of compelling reasons involving heinous crimes. Fittingly, thus, what R.A. No. 7659 states is that 'the Congress, in the interest of justice, public order and rule of law, and the need to rationalize and harmonize the penal sanctions for heinous crimes, finds compelling reasons to impose the death penalty for said crimes.'"[24] Indeed, today, even members of the Court who originally dissented from the majority ruling sustaining the validity of Republic Act No. 7659 agree on the imposition of the death penalty without in the least changing their view about the constitutionality of the penalty. As we did in People vs. Godoy,[25] we restate mankind's age-old observation and experience on the penological and societal effect of capital punishment: "If it is justified, it serves as a deterrent; if injudiciously imposed, it generates resentment."[26] We now consider the merits of this case. II. THE CREDIBILITY OF WITNESSES The question of credibility of witnesses is primarily for the trial court to determine.[27] For this reason, its observations and conclusions are accorded great respect on appeal.[28] This rule is variously stated thus: The trial court's assessment of the credibility of a witness is entitled to great weight. It is conclusive and binding unless shown to be tainted with arbitrariness or unless, through oversight, some fact or circumstance of weight and influence has not been considered.[29] Absent any showing that the trial judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would affect the result of the case, or that the judge acted arbitrarily, his assessment of the credibility of witnesses deserves high respect by appellate courts.[30]

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In the case at bar, inconsistencies and discrepancies in the testimonies of the two principal prosecution witnesses, Florencio Villareal and Eric Ona, are alleged as undermining their credibility, to wit: (1) Florencio testified that on February 9, 1994 at about 9 o'clock in the evening, he and the victim, Richard Buama, were picked up by Mercado and Eric while he and Richard, in the company of Rex Bugayong, were passing time near Mercado's house. Eric belied this testimony when, on cross-examination, he said that he and Mercado saw Florencio first at about 8 o'clock, not 9 o'clock in the evening of February 9, 1994 at the corner of Sto. Tomas Street, Pasig, one block away from the place where they later found Richard. (2) Florencio testified that when they were apprehended at the corner of Baltazar Street, Mercado pushed him straight into the car, and held and poked a gun at Richard. On the other hand, Eric testified that Florencio voluntarily went with them into the car as Mercado, with a .38 black gun tucked at his side, placed his arm around Richard's shoulder. (3) In his sworn statement, Florencio stated in answer to Question No.3, "At kami po ay dinala ng pulis na humuli sa amin doon sa inuupahan niyang bahay at isinakay kami sa kanyang kotse at kami ay dinala sa Tanay, Rizal. However, in answer to Question No. 6, Eric said "Una kaming dinala sa bahay na inuupahan ni Elpidio Mercado dito sa Pasig. Eric denied Florencio's statement that they did not stay in Mercado's house; instead, they just circled the place and then proceeded to Tanay, Rizal right away. Florencio in fact contradicted his own statement at the trial by declaring that they just passed by Mercado's house and did not stay there. (4) In his testimony, Florencio said that on their way to Tanay, Rizal, he did not hear conversation between Mercado and Eric. Yet Eric testified that, upon reaching Rosario, he talked to Mercado and asked him where they were going. Mercado answered, "Sa Tanay, have you been there?" Mercado even asked them their birthdays and if they still wanted to have birthdays. (5) Florencio testified that upon reaching Tanay, Rizal and alighting from the car he was brought inside the apartment and that when he peeped through the window he saw Mercado slapping Richard on the face. On the contrary, Eric testified that upon their arrival in Tanay, Rizal, they alighted from the car and were told to go inside the apartment and it was there where Mercado slapped Richard on the face and asked him to undress. (6) Florencio further testified that after Richard had taken off his clothes as ordered by Mercado, the latter asked Richard to lie down, face downward, and thereafter, Richard's feet and hands were tied by Mercado and his aide, Jeff, with a rattan rope. Eric stated on crossexamination that when Richard was lying down, Mercado stepped on

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Richard's left cheek, implying that Richard lay not with his face down but with his right cheek on the ground. (7) Florencio stated in his sworn statement that upon reaching Tanay, Rizal, they were taken into an apartment opposite a beerhouse. On the other hand, Eric claimed that the apartment was some 130 to 150 meters away from the beerhouse. (8) Florencio stated in his sworn statement that after Richard was beaten up, his hands and feet were tied and then Mercado and his police companion loaded (sinakay) Richard into the car. Eric, however, testified that Richard was loaded in the baggage compartment of the car by Acebron and Jeff. On cross-examination, Florencio contradicted himself by admitting that it was Acebron and Jeff who loaded Richard into the car. (9) Florencio testified that, although Mercado asked Acebron to get a bolo, the latter got a long knife (not a bolo) with a "sharp pointed edge" (sic). Eric declared that the bolo taken by Acebron was "mapurol." (10) Eric testified that on February 12, 1994, he was investigated ahead of Florencio by SPO2 James Mabalot and insisted that his statement was the truth. He even stated that as he was being investigated, Florencio was around, talking. However, this testimony was contradicted by SPO2 James Mabalot who declared that it was Florencio who was first investigated as shown by the fact that Florencio was investigated at 6:20 p.m., while Eric was investigated at 10:45 p.m. of February 12, 1994. (11) On cross-examination, Eric testified that while SPO2 Mabalot was investigating him and Florencio, SPO1 Buama was just outside the office and even saw him. SPO1 Buama confirmed this statement. However, SPO2 Mabalot said that when he investigated Florencio and Eric, SPO1 Buama was not present having then already left. (12) SPO1 Buama testified that Richard was his full blood brother, but his sister, Maria Buama, said that Richard was an adopted child, although they considered him their full blood brother.[31] Inconsistencies in the testimonies of witnesses which refer only to minor details and collateral matters do not affect the veracity and weight of their testimonies where there is consistency in relating the principal occurrence and positive identification of the assailants. Slight contradictions in fact even serve to strengthen the credibility of the witnesses and prove that their testimonies are not rehearsed. They are thus safeguards against memorized perjury.[32] Nor are such inconsistencies and even improbabilities unusual, for there is no person with perfect faculties or senses.[33] An adroit cross-examiner may trap a witness into making statements contradicting his testimony on direct examination. Intensive cross-examination on points not anticipated by a witness and his lawyer may make a witness blurt out statements which do not dovetail even with his own testimony. Yet, if it appears that the same witness has not willfully perverted the truth,

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as may be gleaned from the tenor of his testimony and the conclusion of the trial judge regarding his demeanor and behavior on the witness stand, his testimony on material points may be accepted. A witness' testimony may likewise contradict that of another witness. As long as the contradiction involves minor details and collateral matters, the credibility of both witnesses will not be deemed impaired. After all, no two witnesses could testify on a matter from the same point of view or perception. The recollection of different witnesses with respect to the time, place, and other circumstances of a criminal event would naturally differ in various details. Absolute uniformity in every detail of testimonies cannot be expected of witnesses who by nature react differently to what they see and hear depending upon their situation and state of mind. [34] On the contrary , if witnesses should agree on every detail of a transaction that occupied a considerable space of time and should undertake to tell all that occurred in precisely the same order, each giving the same incidents as the others in precisely the same words, that fact should make their testimonies suspect. [35] Applying these rules to this case, the alleged inconsistencies in the testimonies of Florencio Villareal and Eric Ona pointed out by appellants concern only minor details which do not detract from the essential points of their testimonies that accused-appellants, after beating up the victim, took him away in accusedappellant Mercado's car, and, when they returned to the apartment, both admitted that they had "silenced" the victim or had "laid him to rest." The alleged inconsistencies between the testimonies of the prosecution witnesses and their affidavits, on the other hand, refer to minor matters that do not affect the substance of the prosecution's evidence. Affidavits are not entirely reliable evidence in court due to their incompleteness and the inaccuracies that may have attended their formulation.[36] In general, such affidavits are not prepared by the affiants themselves but by another person (i.e., investigator) who may have used his own language in writing the statement or misunderstood the affiant or omitted material facts in the hurry and impatience that usually attend the preparation of such affidavits. As this Court has often said: "An affidavit, 'being taken ex-parte, is almost always incomplete and often inaccurate, sometimes from partial suggestion, and sometimes from want of suggestion and inquiries, without the aid of which the witness may be unable to recall the connected collateral circumstances necessary for the correction of the first suggestion of his memory and for his accurate recollection of all that belongs to the subject.'"[37] "'We have too much experience of the great infirmity of affidavit evidence. When the witness is illiterate and ignorant, the language presented to the court is not his; it is; and must be, the language of the person who prepares the affidavit; and it may be, and too often is, the expression of that person's erroneous inference as to the meaning of the language used by the witness himself; and however carefully the affidavit may be read over to the witness, he may not understand what is said in a language so different from that which he is accustomed to use. Having expressed his meaning in his own language, and finding it translated by a person on whom he relies, into language not his own, and which he does not perfectly

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understand, he is too apt to acquiesce; and testimony not intended by him is brought before the court as his.' (2 Moore on Facts, sec. 952, p. 1105; People v. Timbang, 74 Phil. 295, 299)."[38] For this reason, affidavits have generally been considered inferior to testimony given in open court.[39] Neither is the credibility of prosecution witnesses Florencio Villareal and Eric Ona in any way lessened, much less impaired, by the motives imputed to them by accused-appellants who claim that the former testified against them on account of an incident on January 23, 1994 when Mercado slapped Eric and hit Florencio on the back. Accused-appellants' contention is nothing more than a desperate attempt to discredit said witnesses. It is inconceivable that these principal prosecution witnesses, two young boys, would impute a crime as heinous as kidnapping with murder to anyone if the same was not true. Indeed, it would be contrary to the natural order of events and of human nature, and against the presumption of good faith for Florencio and Eric to falsely testify against accusedappellants.[40] These young boys, in testifying against accused-appellants, would have nothing to gain and everything to lose, including their lives. Florencio and Eric knew that, even if accused-appellants were bemedalled military and police officers, they had no compunction at all in claiming to have killed a number of people. Even granting that such braggadocio was simply meant to frighten these young boys into silence, it would nonetheless have the same effect on them and would have deterred them from testifying against accused-appellants had what they testified to been a mere fabrication. III. SUFFICIENCY OF THE EVIDENCE OF THE PROSECUTION It is true that no eyewitnesses were presented by the prosecution o testify on the actual killing of Richard Buaman. But it is settled that a conviction may rest on purely circumstantial evidence, provided the following requisites concur: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[41] Thus, in People vs. Fulinara,[42] wherein the victim was kidnapped in the evening and the following day his body found in a ravine, this Court said: "While the positive identification made by the key witness does not refer to the actual killing of the deceased, the circumstantial evidence on record constitutes an unbroken chain which leads to a fair and reasonable conclusion that accusedappellants are indeed guilty of the offense charged. It is not only by direct evidence upon which guilt may be predicated. The accused may also be convicted on circumstantial evidence." In this case, the following circumstances, viewed in their entirety, show beyond shadow of a doubt that accused-appellants are indeed guilty of kidnapping with murder:

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(1) Mercado picked up Richard on the night of February 9, 1994 near his (Mercado's) house in Pasig and, poking a gun at him, forced him to ride with him in his car; (2) Mercado took Richard to his apartment in Tanay; (3) Mercado slapped and boxed Richard before bringing him inside the apartment; (4) Mercado went up the second floor of the apartment and came down with Acebron; (5) Mercado and Acebron took turns in subjecting Richard to physical abuse; (6) Mercado ordered his aide named Jeff to get a piece of rope with which to bind Richard and Jeff obliged by getting a rattan rope; (7) Richard was gagged and his limbs were bound; (8) Acebron and Jeff put Richard into the luggage compartment of Mercado's car; (9) Mercado asked Acebron to get a bolo before they drove away; (10) Accused-appellants rode together in the car with Richard in its compartment; (11) After two hours, accused-appellants returned to the apartment without Richard; (12) When Florencio asked Mercado about Richard's whereabouts, Richard replied, "Wala na, pinatahimik ko na." ("Gone, I already silenced him"). (13) When Eric asked Mercado the same question, the latter replied, "Wala na, pinagpahinga ko na." (He is gone. I have laid him to rest"). (14) Eric saw Acebron wiping off bloodstains on the bolo; (15) At the disco bar, accused-appellants bragged about the fact that Richard was the 25th person and the 17th person Mercado and Acebron had killed, respectively; (16) Richard's body was found in a morgue on February 12, 1994; (17) The victim's body showed signs that his hands and feet had been tied and his mouth stuffed with a towel; and (18) Mercado warned Eric and Florencio not to talk to anyone regarding the incident. These circumstances constitute an unbroken chain clearly pointing to accused-appellants' culpability to the crime of kidnapping with murder.

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IV. THE EVIDENCE OF CONSPIRACY Accused-appellants argue that the trial court erred in finding conspiracy in the commission of the crime because the prosecution allegedly failed to establish a common resolution between them to commit the crime charged. This argument is likewise without merit. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. To establish the existence of conspiracy, direct proof is not essential, as it may be shown by the conduct of the accused before, during, and after the commission of the crime.[43] It may be proven by facts and circumstances from which may logically be inferred the existence of a common design among the accused to commit the offense charged, or it may be deduced from the mode and manner by which the offense was perpetrated.[44] In this case, the concatenation of facts and circumstances establish beyond a shadow of a doubt that accused-appellants conspired to kill Richard, to wit: (1) upon reaching the Tanay apartment, which he shared with Acebron, Mercado went upstairs and called Acebron; (2) as they came downstairs, Mercado told appellant Acebron that he had a present for him and that they were going to kill someone, saying "Pare, may regalo ako sa iyo, may papatayin tayo"; (3) Mercado and Acebron slapped and boxed Richard; (4) when told by Mercado to get a bolo, Acebron did so; (5) Acebron helped in loading Richard into the car's luggage compartment; (6) Mercado and Acebron left the apartment together in Mercado's car with Richard in the car's luggage compartment; (7) after two hours, the two came back to the apartment without Richard; (8) when Eric and Florencio asked them where Richard was, they answered that Richard had been "silenced" or had been "laid to rest"; and (9) Acebron washed a bloodstained bolo. V. ACCUSED-APPELLANTS' ALIBI Invoking alibi as a defense, accused-appellants argue that it was impossible for them to be in Pasig at the time of the commission of the crime because they were then in Tanay, Rizal on official duty, as members of the PNP force in that town. For this purpose, they cite the PNP logbook, duly signed by them. However, as the trial court pointed out: "This defense, however, collapsed with the testimony of SPO4 Bias when he affirmed before the Court that travel time between Tanay and Pasig could take less than an hour, especially at nighttime. Moreover, the Court finds wanting the evidence presented by the defense to support its claim that both accused were indeed present at the Tanay PNP Headquarters until about 8:30 p.m. of February 9, 1994. "Firstly, it was admitted by the defense that the duty log-book and the morning/evening formation sheet do not always reflect the whereabouts of the Tanay PNP members for the day such that even when they have deviated from their regular assignments, no note whatsoever appears on said log-book. Accused were at the Hilltop Headquarters in Taytay from around 9:15 a.m. to 5 p.m. of

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February 9, 1994 and yet, the duty log-book they submitted in Court show otherwise. In said log-book, the Post/Assignment of accused Acebron was "Intel Optvs/follow-up" while accused Mercado was supposed to be at "Post OP #2." The Court does not believe this log-book is reliable. Secondly, again by the defense' own admission, Tanay PNP members sign their names once on the log-book and this will be enough to confirm their presence or attendance for the entire day. Surely, the possibility that all the PNP members do not in fact arrive at and leave their office at the same time of 8 a.m. and 8 p.m. can not be disregarded. Still, a reading of the entries in the log-book submitted by the defense would somehow suggest this. The physical impossibility of accused Mercado, at least, being in Pasig at around 9 p.m. on February 9, 1994 is not established. The defense of alibi is, therefore, rejected by the Court.[45] Indeed, alibi is generally regarded with suspicion and is always received with caution, not only because it is inherently weak and unreliable but also because it can be easily fabricated and concocted. For alibi to prosper as a defense, it must be convincing enough to preclude any doubt on the physical impossibility of the presence of the accused at the locus criminis or its immediate vicinity at the time of the incident.[46] An accused who invokes the defense of alibi must prove (a) his presence at another place at the time of the perpetration of the crime and (b) the physical impossibility for him to be at the scene of the crime.[47] In this case, even granting that accused-appellants were in Tanay at the time they were supposed to have taken the two prosecution witnesses and the victim to Pasig, it was still not physically impossible for them to be in that place. Pasig is only an hour's drive from Tanay and when traffic is light, as it would generally be late in the evening, the distance could be negotiated in less time. Significantly, when the three young men were taken from Pasig at around 9 o'clock in the evening, accused-appellants had already been discharged from their duties because, by their own admission, the evening formation at the Tanay Police Station ended at around 8:30 that evening. Above all, given Florencio and Eric's clear and positive identification of accused-appellants as the perpetrators of the crime, the failure of the defense to give any plausible reason for Florencio and Eric to testify falsely against accusedappellants renders the latter's alibi bereft of any probative value. [48] Their positive identification by the witnesses prevails over their alibi and denial.[49] VI. ACCUSED-APPELLANTS' CRIMINAL AND CIVIL LIABILITY Accused-appellants are guilty of kidnapping because, by placing the victim in an enclosed place consisting of the luggage compartment of the car, they detained or otherwise deprived him of his liberty. There was also actual restraint of the victim's liberty when he was taken at gunpoint from Pasig to accusedappellants' apartment in Tanay.[50] The evidence proves that Mercado initiated the kidnapping of the victim. Acebron's subsequent loading of the victim into the car's compartment after tying the latter shows community of criminal purpose with

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Mercado. However, although both were police officers, they acted in this case in their private capacities.[51] The crime was committed by accused-appellants on February 9, 1994, after the amendment of the Revised Penal Code on December 31, 1993 by Republic Act No. 7659. Article 267 of the Revised Penal Code, as thus amended, provides: "Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than three days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made 4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer; "The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense. "When the victim is killed or dies as a conseguence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed." (Underscoring supplied) In People vs. Ramos,[52] the accused was found guilty of two separate heinous crimes of kidnapping for ransom and murder committed on July 13, 1994 and sentenced to death. On appeal, this Court modified the ruling and found the accused guilty of the "special complex crime" of kidnapping for ransom with murder under the last paragraph of Article 267, as amended by Republic Act No. 7659. This Court said: "x x x This amendment introduced in our criminal statutes the concept of 'special complex crime' of kidnapping with murder or homicide. It effectively eliminated the distinction drawn by the courts between those cases where the killing of the kidnapped victim was purposely sought by the accused, and those where the killing of the victim was not deliberately resorted to but was merely an afterthought. Consequently, the rule now is: Where the person kidnapped is killed in the course of the detention, regardless of whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer be complexed under Art. 48, nor be treated as separate crimes, but shall be punished as a special complex crime

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under the last paragraph of Art. 267, as amended by RA No. 7659." (Underscoring supplied) Thus, in the case at bar, the trial court correctly found accused-appellants guilty of kidnapping with murder and sentenced each of them to death. Four (4) members of the Court, although maintaining their adherence to the separate opinions expressed in People vs. Echegaray[53] that R.A. No. 7659, insofar as it prescribes the penalty of death, is unconstitutional, nevertheless submit to the ruling of the majority that the law is constitutional and that the death penalty should accordingly be imposed. It does not matter whether there are circumstances qualifying the killing as murder. Under the last paragraph of Article 267, it is sufficient that the victim is "killed or dies as a consequence of the detention." In any event, the killing of Richard Buama as a consequence of his kidnapping was committed under circumstances which make it murder. His limbs were tied and his mouth gagged before he was taken away. When his body was discovered, his limbs were still tied and his mouth gagged, indicating that treachery attended the killing of Richard Buama. The trial court awarded P50,000.00 civil indemnity and P100,000.00 by way of moral and exemplary damages to the Buama family as heirs of the deceased Richard Buama pursuant to Articles 2206 and 2230 of the Civil Code. It is not disputed, however, that Richard had not been legally adopted by the Buamas, and so the latter cannot be considered his heirs, the term "heirs" being limited to the deceased's "spouse, legitimate, and illegitimate ascendants and descendants" per the definition of "heirs" under Articles 782 and 2206 of the Civil Code. For this reason, in one case,[54] the award of moral damages for the death of a brother caused by quasi-delict was disallowed. In this case, since the heirs of the deceased Richard Buama are not known, the awards of civil indemnity and moral and exemplary damages to the Buamas should be disallowed. As to the award of P52,680.00 for actual damages incurred for wake and funeral expenses, only the amount of P22,690.00 is supported by receipts (Exhs. J-2 to J-7). Accused-appellants contend that these receipts constitute hearsay evidence because the witness who identified them, Lourdes Vergara, admitted that she merely collated the same but had otherwise no personal knowledge of the facts pertaining to their issuance.[55] In People vs. Paraiso,[56] this Court disregarded the list of burial expenses for being hearsay since it was prepared by the victim's sister-inlaw and not by the victim's eldest son who testified thereon. The Court held that actual damages should be based upon competent proof and on the best evidence available. One receipt (Exh. J-5) for P1,300.00 shows that it was issued by the Immaculate Conception Parish Church in Pasig to Lourdes Vergara, and it was for Richard Buama's burial mass. Another receipt (Exh. J-7), for the amount of P2,210.00 for flowers for Richard Buama's wake, was issued by Lourdes Vergara herself as the owner of the flower shop. These two receipts should be considered competent evidence of the amount of expenses indicated therein, and therefore the total amount of P3,510.00 should be awarded to Lourdes Vergara as actual damages.

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VII. ALLEGED HASTE OF THE TRIAL COURT IN DECIDING THE CASE One last point. Accused-appellants bewail the fact that the trial court rendered its decision just a day after it had received their Joint Memorandum.[57] Accused-appellants charge that their case was decided with "fantastic, incredible and unbelievable speed" with the result that "grave and serious errors" were committed in convicting them.[58] This contention has no merit. A review of the trial court's decision shows that its findings were based on the records of this case and the transcripts of stenographic notes taken during the trial. The speed with which the trial court disposed of the case cannot thus be attributed to the injudicious performance of its function. Indeed, a judge is not supposed to study a case only after all the pertinent pleadings have been filed. It is a mark of diligence and devotion to duty that a judge studies a case long before the deadline set for the promulgation of his decision has arrived. The one-day period between the filing of accused-appellants' memorandum and the promulgation of the decision was sufficient time to consider their arguments and to incorporate these in the decision. As long as the trial judge does not sacrifice the orderly administration of justice in favor of a speedy but reckless disposition of a case, he cannot be taken to task for rendering his decision with due dispatch. The trial court in this case committed no reversible errors and, consequently, except for some modification, its decision should be affirmed. WHEREFORE, the decision of the Regional Trial Court, Branch 156, Pasig City, finding accused-appellants Elpidio Mercado y Hernando and Aurelio Acebron y Adora guilty beyond reasonable doubt of the crime of kidnapping with murder and imposing upon each of them the DEATH PENALTY, is AFFIRMED with the MODIFICATIONS that the awards of P50,000.00 as civil indemnity and P100,000.00 as moral and exemplary damages are DELETED and accused-appellants are ORDERED to pay jointly and severally to Lourdes Vergara the amount of P3,510.00 as reimbursement for the expenses she incurred for the victim's wake and funeral. In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon the finality of this decision, let the records of this case be forthwith forwarded to the Office of the President for his use in case he decides to exercise his prerogative of mercy. SO ORDERED.

RIGHT AGAINST DOUBLE JEOPARDY G.R. No. 102096 August 22, 1996 CARMELA CUIZON * Y MONTALBAN, petitioner, vs. COURT OF APPEALS AND SPOUSES GERARDO AND MARIA PARAY, respondents.

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TORRES, JR., J.:p In contractual relations, the law allows the parties much leeway and considers their agreement to be the law between them. This is because "courts cannot follow one every step of his life and extricate him from bad bargains . . . relieve him from one-sided contracts, or annul the effects of foolish acts.1 This is an aspect to be resolved in this case. Petitioner seeks to review and set aside the Decision2 of the respondent Court of Appeals dated September 27, 1991 (CA-GR. No. 17228) which reversed and annulled the January 20, 1988 decision of the Regional Trial Court of Cebu City (Civil Case No. CEB-3835) and the Resolution promulgated on September 27, 1991 which denied her Motion for Reconsideration. The following antecedent facts, as found by the trial court, are culled from the testimony of, and the documents presented by petitioner: Plaintiff is a businesswoman engaged in general merchandising under the trademark Tropic Philippines Food. In 1983, she was introduced to defendants-spouses Gerardo and Maria Paray, who are in the real estate business, by a certain Romy Verano, a mutual friend. When the friendship between the two parties developed, Maria Paray proposed to Carmela Kuizon that the spouses Paray would execute Special Power of Attorney in favor of plaintiff for five parcels of land with an aggregate area of 3,803 square meters, owned by defendants, which the plaintiff is to mortgage in her name using those same parcels of land as collaterals. The defendants at that time were in dire need of money to pay off their bank obligations. Plaintiff acceded to the plans after much persuasion on the agreement that Carmela Kuizon pay for the amortization of the loan and that for whatever amounts covered by the loans released from time to time, turned over to the defendants by plaintiff, the defendants will immediately convey to the plaintiff, each lot within the amount received by them computed at a mutually agreed price of P170.00 per square meter. As an inducement to the proposal and in partial compliance with their agreement, defendants executed in favor of plaintiff a Deed of Sale of Real Property over Lot. No. 800-A-1-B under TD No. 34504 (Exhibit M-Deed of Sale dated June 6, 1983 — for P25,000.00 over TCT No. 84791, Lot No. 800-A-1-B, 314 sq. m.). Defendants also executed Special Power of Attorney, notarized June 30, 1983 over TCT Nos. 84793, 84792 and 84794 covering Lots Nos. 800-A-3, 800-A-2 and 800A-4 (Exhibit C), and registered with the Register of Deeds). After said SPA (Exhibit C) was executed, plaintiff secured loan from the Rural Bank of Compostela for P50,000 with maturity dated on April 22, 1984 covering Lot No. 800-A-4 as collateral (Exhibit D and D-1 Discount and Disclosure Statement of Loan Transaction issued to Carmela Montalban by the Rural Bank of Compostela (Cebu) for P50,000.00 with net proceeds of P43,459.50; and Real Estate Mortgage executed by Carmela and

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Antonio Montalban in favor of Rural Bank of Compostela (Ceb) [sic]. Subsequently, plaintiff secured an IBRD loan from the same Rural Bank of Compostela for P183,910.00 maturing on October 19, 1983 with Lots No. [sic] 800-A-3, 800-A-2 and 800-A-4, part of the proceeds of which she used to pay the previous loan of P50,000.00 with the same bank (Exhibits F, F-1 and F-2 — Discount and Disclosure Statement on Loan Transaction issued to plaintiff by Rural Bank of Compostela for IBRD loan of P188,910.00 dated November 25, 1983 with net proceeds of P183,242.70; Promissory Note for P188,910.00 executed by plaintiff; and Real Estate Mortgage executed by Carmela and Antonio Montalban over Lots Nos. [sic] 800-A-4, 800-A-2 and 800-A-3). Later, defendants executed another Special Power of Attorney notarized August 19, 1983 for Tax Declaration No. 01-03242 under TCT No. 74735 covering Lot No. 720-A (Exhibit B) and registered with the Register of Deeds (Exhibit B-3), with said SPA (Exhibit B) plaintiff was able to secure a loan from Isla Bank in the amount of P60,000.00 to mature on February 27, 1984 (Exhibit E — Certified true copy of Discount Statement by Isla Bank for loan of P60,000.00 by plaintiff of net proceeds of P52,256.64; and Exhibit E-1-certified true copy of the Real Estate Mortgage executed by plaintiff in favor of Isla Bank over Lot No. 720-A to guarantee loan of P60,000.00). Defendants again issued another Special Power of Attorney (Exhibit-A) notarized on May 23, 1984 over Lot No. 800-A-1 covered by TD No. 01-34503 in favor of plaintiff and duly notarized by the Register of Deeds (Exhibit-A-3). Plaintiff, with said SPA, secured a loan from J. Finance in the amount of P44,941.75 with maturity date on November 30, 1985 (Exhibit A-2-letter and transmittal dated May 30, 1984 from J. Finance Corporation for loan of P44,941.75 with net proceeds of P35,000.00; and Exhibit N-1 Deed of Real Estate Mortgage executed by Carmela and Antonio Montalban in favor of J. Finance over Lot No. 800-A-I-4). For Lot No. 800-A-1B which was earlier conveyed by defendants to plaintiff in a Deed of Sale (Exhibit M), defendants pressured plaintiff to secure a housing loan with DBP in the amount of P201,000.00 (Exhibits G and G-1-certified true copy of Promissory Note for P103,200.00 and P97,800.00, respectively, dated February 8, 1984) using the same lots as collateral, with defendants promising to convey to plaintiff the adjacent Lot No. 800-A-1-A to serve as lawn for the house erected: pictures of the house were presented as Exhibits L, L-1, L-2, L-3. For the several loans entered into by plaintiff a total amount of P492,002.04 was actually received by plaintiff as against the total loan of P544,851.75 summarized as follows: a) P50,000.00 — loan from R.B. of Compostela, net of P43,859.50 b) P60,000.00 — from Isla Bank, net proceeds of P52,326.24

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c) P188,910.00 — IBRD loan, net proceeds of P183,242.70 d) P201,000.00 — DBP loan, net proceeds of P177,573.60 e) P44,941.75 — from J. Finance, net proceeds of P35,000.00 P544,851.75 — P492,902.04 (total loan) (total net) From the net proceeds of P492,002.04, plaintiff remitted to defendants P198,000.00 which was duly receipted . . . . . . The receipted amount of P198,00.00 is broken down as follows: a. Exhibit I — handwritten receipt issued by Maria Paray for P20,000.00 dated May 25, 1983. This was considered the down payment for the consideration of P25,000.00 for Lot No. 800-A-1-B conveyed by defendants to plaintiff under Deed of Sale (Exhibit M). b. Exhibit J — handwritten receipt issued by Maria Paray for P78,000.00 dated November 28, 1983. The balance of P5,000.00 for Lot No. 800-A-1-B was paid from this payment of P78,000.00 (Exhibit J). c. Exhibit K — handwritten receipt of Maria Paray for P100,000.00 dated February 14, 1984. After plaintiff remitted the P20,000.00 (Exhibit I of defendant), Mrs. Paray borrowed plaintiff's title to a lot in Ozamis City, under TCT No. 8648 (Exhibit N dated May 28, 1983), and in turn Mrs. Paray handed to plaintiff the Deed of Sale for Lot No. 800-A-1-B, together with two documents, a Deed of Agreement (Annex A of Answer) and a Supplemental Agreement (Annex B of Answer) for plaintiff to sign. The Supplemental Agreement in effect prohibited plaintiff from selling the land unless with consent of defendant spouses. Plaintiff initially refused to sign the Deed of Agreement as the purchase price indicated P25,170.00 with a down payment of P20,000.00 but the balance reflected was P33,380.00 instead of only P5,000.00, but upon defendants plea, she affixed her signature and issued a postdated check for P33,380.00 to accommodate defendants with the understanding that those will be deducted from the loan releases and her assurance that these documents won't be notarized. . . .3

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Petitioner admitted that out of the P492,002.04 net proceeds of the loans, P194,002.04 were used in the building of her house on Lot No. 800-A-1-B,4 the land which was then subject to the DBP housing loan, and P100,000.00 were allegedly given to the bank fixers as grease money for the release of the loans.5 From 1983 to 1984, she also paid P2,342.63 worth of realty taxes6 on the collaterals and complied with her obligation of paying loan amortization in the amount of P109,916.28.7 When she demanded that a deed of sale be executed over Lot No. 800-A-1-A,8 the lot which was adjacent to Lot No. 800-A-1-B, private respondents refused to convey said lot claiming that an accounting or liquidation of the loans and the lands she used as collaterals must first be made.9 On May 5, 1985, petitioner filed a complaint10 for specific performance with damages against private respondents. She alleged, inter alia, that in compliance with their agreement, she turned over to private respondents P198,000.00 of loan proceeds,11 deducting the purchase price of P25,120.00 for Lot No. 800-A-1-B from P198,000.00, private respondents were still obligated to convey to petitioner a total of no less than 1,017 square meters of land12representing the amount of P172,880.00 (P198,000.00 minus P25,120.00) computed at a mutually agreed price of P170.00 per square meter. She asked specifically for the conveyance of the 250 square meter Lot No. 800-A-1-A to provide a spacious lawn to the house built on Lot No. 800-A-1-B13 and to pay back the amount of P130,380.00 (P172,800.00 minus the price of P42,500.00 for Lot No. 800-A-1-A), or in the alternative to pay back the amount of P172,880.00 plus interest.14 In their Answer,15 private respondents claim that petitioner undertook to buy their six parcels of land with a total area of 4,117 square meters for P699,890.00 at a price of P170.00 per square meter.16 In violation of their agreement that the purchase price would be paid out of the loans secured from various financial institutions, petitioner remitted to private respondents the amount of P198,000.00 only out of the total loan of P544,851.75.17 As to Lot No. 800-A-1-B, they denied that its purchase price was P25,120.00 as claimed by petitioner. They insisted that with the down payment of P20,000.00, petitioner still had a balance of P33,380.00. So petitioner had to issue a postdated check of P33,380.00 and execute a Deed of Agreement offering her real property (TCT No. 8648) as a security for the balance of P33,380.00.18 They also alleged that petitioner incurred loans and advances from them in the amount of P76,200.00 which were used by petitioner in the construction of her house on Lot No. 800-A-1-B.19 On December 4, 1985, a third party complaint20 was filed by private respondents against Antonio Montalban (Montalban, for brevity). It appears that the real estate mortgage contracts entered into by petitioner with the banks showed that Montalban signed with petitioner as mortgagors and appeared on these documents as the husband of petitioner. Private respondents alleged that since their properties had been encumbered pursuant to the obligations entered into by Montalban and petitioner,21 Montalban should be held solidarily liable with petitioner for their claims adverted to in the complaint.22

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Montalban denied any marital relationship with petitioner contending in his Answer to Third Party Complaint23 that it was private respondents who insisted that he should appear as husband of petitioner to facilitate the release of the loans sought by private respondents. He acceded only by way of an accommodation to the request of the private respondents because they (private respondents) could not be granted the subject loans in their names as they had outstanding obligations with other financial institutions.24 After trial on the merits, the trial court rendered a decision 25 in favor of petitioner. The dispositive portion of which reads: WHEREFORE, this Court finds in favor of plaintiff and against defendants. Defendants are hereby ordered to: 1. Immediately return to plaintiff Owner's duplicate copy of TCT No. T-8648 covering the latter's Ozamis lot free from all liens and encumbrances; 2. Convey to plaintiff Lot. Nos. 800-A-1-A under Tax Declaration No. 03242, 800-A-4 under Tax Declaration No. 0133513, 800-A-3 under Tax Declaration No. 33515, Lot 800-A-2 under Tax Declaration No. 33516. If said loands [sic] have been transferred to third parties, defendants shall pay plaintiff the price of said lot or lots which have been transferred to third parties, which is hereby fixed at P170.00 per square meter with interest at the legal rate from date of transfer to third parties; 3. Reimburse plaintiff with the taxes paid on the lands which is P2,343.63 with interest at the legal rate; 4. Pay plaintiff moral damages of P100,000.00; exemplary damages of P50,000.00; attorney's fees of P25,000.00; litigation expenses of P10,000.00 plus costs. Third Party Complaint is hereby dismissed with costs against defendants-third party plaintiffs. SO ORDERED. Dissatisfied with the decision of the trial court, private respondents filed an appeal with the Court of Appeals. After due consideration of the parties' respective Briefs,26 respondent court promulgated the questioned decision27 on June 25, 1991, the dispositive portion of which reads: WHEREFORE, the decision dated January 20, 1988 is hereby annulled and set aside and another one is rendered, as follows:

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1. Sustaining the validity and effectiveness of the sale of Lot 800-A1-B in favor of appellee; 2. Ordering appellants to return to appellee the owner's duplicate of TCT T-8648; 3. Ordering appellants to execute a Deed Of Absolute Sale in favor of appellee over Lot 800-A-1-A at P300.00/sq. m., within thirty (30) days from the finality of this decision; 4. Ordering appellee to cause the discharge and free lots 800-A-2, 800-A-3 and 800-A-4 from mortgages, liens and encumbrances within thirty (30) days from the finality of this decision; 5. If appellee fails to discharge said lots from the mortgages, liens and encumbrances, then appellee is ordered to pay their value at P300/sq. m. within thirty (30) days from the finality of this decision; and, 6. Without pronouncement as to costs. SO ORDERED. The Motion for Reconsideration28 filed by petitioner was denied by the respondent court for lack of merit, by virtue of a Resolution 29 dated September 27, 1991. Petitioner, impugns said decision and resolution of the Court of Appeals and, filed this petition for certiorari30 on October 19, 1991. The comment31 thereto was filed by private respondents on December 19, 1991. Petitioner filed a reply 32 dated November 28, 1991. By the Resolution33 of this Court dated January 15, 1992, the parties were required to submit their respective memoranda. A manifestation34 was submitted by petitioner stating that she is adopting the petition dated October 17, 1991 and her reply as her memorandum, which manifestation was noted by Resolution35 of October 28, 1992. Private respondents filed their memorandum36 on February 24, 1992 while petitioner submitted her memorandum on February 15, 1993.3 7 In her Memorandum, petitioner submitted the following arguments: 1. The respondents court illegally made a contract between the parties in rendering the questioned decision which is diametrically opposed to the evidence presented by the parties in the court a quo. 2. The issues raised in the instant petition are purely legal and, therefore, cognizable by this Honorable Court.

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The petition is meritorious. While it has always been the policy of this Court to review only errors of law from decisions elevated to it from the Court of Appeals in a petition for certiorari under Rule 45 of the Revised Rules of Court, this rule is not absolute. Thus, in Floro vs. Llenado,38 we stated: In a petition to review the decision of the Court of Appeals under the Rule 45 of the Rules of Court, the jurisdiction of the Court is ordinarily confined to reviewing errors of law committed by the Court of Appeals, its findings of fact being conclusive on the Court. There are however exceptional circumstances that would compel the Court to review the findings of fact of the Court of Appeals, summarized in Remalante vs. Tibe and subsequent cases as follows: 1) when the inference made is manifestly mistaken, absurd or impossible; 2) when there is grave abuse of discretion; 3) when the finding is grounded entirely on speculations, surmises or conjectures; 4) when the judgment of the Court of Appeals are based on misapprehension of facts; 5) when the findings of facts are conflicting; 6) When the Court of Appeals in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; 7) when the findings of the Court of Appeals are contrary to those of the trial court; 8) when the findings of facts are conclusions without citations of specific evidence on which they are based; 9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which if properly considered would justify a different conclusion; and 10) when the findings of fact by the Court of Appeals are premised in the absence of evidence and are contradicted by the evidence on record. It appears that the instant case is within the purview of the seventh exception. The respondent court's findings and conclusions are clearly contrary to those of the trial court. The first issue to be resolved is the determination of the real agreement of the parties. Petitioner claims that their verbal agreement was for her to secure loans from financial institutions using private respondents' real properties as collaterals. Though petitioner would pay the loan amortization, the proceeds of the loan would be shared by them and whatever amount actually received by private respondents would then be treated as purchase price of the lot covered by the loan releases at an agreed price of P170.00 per square meter,39 hence, the number of lots that would be conveyed depends on the amount of loan proceeds actually received by private respondents. Denying these assertions, private respondents alleged that petitioner orally agreed to buy the six subject lots for P699,890.00 at a rate of P170.00 per square meter,40 the purchase price of which would be paid by the loan proceeds that would be secured by petitioner using

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the same lots as securities. They alleged that the transfer of the lots would be made only upon completion of payment.41 Upon a painstaking review of the records, this Court is persuaded to affirm petitioner's claim. In arriving at a sensible meaning of the agreement of the parties, the first thrust of the Court is to discover and ascertain the intention of the contracting parties. And in order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered.42 Private respondents admitted to have conveyed to petitioner Lot No. 800-A-1-B as an initial step to consummate their agreement43 although petitioner gave a partial amount only of the total purchase price of P699,890.00. Where the parties to a contract have given a practical construction by their conduct, as by acts in partial performance, such construction may be considered by the court in determining its meaning and ascertaining the mutual intention of the parties at the time of the contracting.44 If it were true as private respondents claim that their agreement was for the transfer of the subject lots only upon payment of the full consideration of P699,890.00, why then did private respondents execute a deed of sale over Lot No. 800-A-1-B although they knew too well that a partial amount only of the purchase price was paid. No credible explanation was given by private respondents. The act of executing the Deed of Sale of Real Property (Exhibit M) by the private respondents obviously destroys their claim that their agreement was for the conveyance of the parcels of land only upon full payment of the purchase price. This circumstance is decisive and we are convinced that their intention was that every lot covered by the loan proceeds given from time to time by petitioner to private respondents, are to be transferred to the petitioner. Respecting Lot No. 800-A-1-B, petitioner claims that the consideration for the same is only P25,1200.00 as reflected in the Deed of Sale of Real Property while private respondents aver that it should be P53,380.00 as can be gleaned from the Deed of Agreement. The relevant portions of the Deed of Sale of Real Property,45 Deed of Agreement46and Supplemental Agreement to the Deed of Agreement dated June 6, 1983,4 7 which are the three contracts involved in the sale of the subject lot, are reproduced as follows for clarity: DEED OF SALE OF REAL PROPERTY That we, GERARDO PARAY and MARIA S. PARAY, . . . in consideration of the sum of TWENTY FIVE THOUSAND ONE HUNDRED TWENTY (P25,120.00) PESOS Philippine Currency, to us in hand paid by CARMELA R. KUIZON, . . . do hereby SELL, CEDE, TRANSFER, AND CONVEY unto CARMELA R. KUIZON . . . that certain portion of land . . . particularly described as follows:

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TRANSFER CERTIFICATE OF TITLE NO. 84791 TAX DECLARATION NO. 01-33512 Property Index No. 152-1-14-0004 TECHNICAL DESCRIPTION Lot 800-A-1-B, Psd-07-01-008471 A parcel of land (Lot 800-A-1-B of the subdivision plan Psd-07008401 . . .) . . . ; containing an area of THREE HUNDRED FOURTEEN (314) SQUARE METERS . . . . DEED OF AGREEMENT That we, GERARDO PARAY and MARIA S. PARAY, . . . ; and CARMELA R. KUIZON, . . . , due to the Deed of Sale of Lot 800-A-1B, Psd-07-008401, . . . , executed by GERARDO PARAY and MARIA S. PARAY in favor of CARMELA R. KUIZON, do hereby agree . . . : 1. . . . 2. That the consideration of the Deed of Sale is TWENTY FIVE THOUSAND ONE HUNDRED TWENTY (P25,120.00) Philippine Currency, the down payment in the amount of TWENTY THOUSAND (P20,000.00) PESOS, Philippine Currency; and the remaining balance is THIRTY THREE THOUSAND THREE HUNDRED EIGHTY (P33,380.00) Pesos, Philippine Currency; 3. That as security and collateral of the said deed of sale, the vendee, CARMELA R. KUIZON offered as her collateral to the balance of THIRTY THREE THOUSAND THREE HUNDRED PESOS Lot No. 5284 . . . , covered by TRANSFER CERTIFICATE OF TITLE NO. T-8648; in an area of THIRTY THOUSAND NINE HUNDRED ELEVEN . . . SUPPLEMENTAL AGREEMENT TO THE DEED OF AGREEMENT DATED JUNE 6, 1983 That I, CARMELA R. KUIZON, . . . do hereby agree, consent, accede to the spouses, GERARDO PARAY and MARIA S. PARAY . . . , THAT: I cannot dispose by sale Lot 800-A-1-B containing an area of THREE HUNDRED FOURTEEN SQUARE METERS (314) more or less;

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That if ever I wanted to dispose by SALE, I would secure the consent and approval of the spouses, GERARDO PARAY and MARIA S. PARAY. The Deed of Sale is duly notarized while the Deed of Agreement and the Supplemental Agreement are not notarized. All the three documents are dated June 6, 1983. Sustaining private respondent's view, the respondent court found that since the agreed price is P170.00 per square meter, the cost of the lot which has an area of 314 square meters would be P53,380.00.48 With a down payment of P20,000.00, there would be an outstanding balance of P33,380.00.49 This is the reason according to respondent court why the parties had to execute the Deed of Agreement to reflect the balance of P33,380.00 and why petitioner had to issue the UCPB check No. CBU-293316 for the same amount, payable to the order of Maria Paray, which however, was not encashed due to unavailability of funds.50 It is well settled that in construing a written agreement, the reason behind and the circumstances surrounding its execution are of paramount importance to place the interpreter in the situation occupied by the parties concerned at the time the writing was executed.51 Admittedly, the intention of the contracting parties should always prevail because their will has the force of law between them. 52 The respondent court apparently failed to consider certain relevant facts and circumstances surrounding the execution of the documents involved which, if appreciated, would clearly indicate the intention of the parties and would result to a different conclusion. First, the sale of Lot No. 800-A-1-B was an incentive given to petitioner who acquiesced to the proposal of private respondents of securing loans for them by using their lands as collaterals. As compared to the other five lots which had a price of P170.00 per square meter, Lot No. 800-A-1-B had a lower cost of P25,120.00 precisely to serve as an inducement of private respondents for petitioner to agree to their transaction. As testified to by petitioner: Atty. Fernandez: Did you agree to the proposal which you narrated? Kuizon: Well, at first I was hesitant firstly because I have no experience in borrowing money especially as much as P50,000.00 secondly, although I was looking for a bigger space I did not have the need for five parcels of land, however Mrs. Paray kept coming back to me to get the money from the bank to induce me to agree to that proposal, Mrs. Paray assured she and her husband would immediately execute a Deed of Absolute Sale, upon downpayment of P20,000.00 on Lot-800-A-1-B under Tax Declaration No. 34504 consisting of 314 square meters and that they would sell it to me at the price of only P25,000.00 as a further incentive to my applying for the loan and paying it myself.

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Atty. Fernandez: What prompted you to agree on the defendants' proposal? Kuizon: She told me that she will sell their lot for P25,000.00 and will accept a down payment of P20,000.00. Atty. Fernandez: What lot are you referring to? Kuizon: Lot 800-A-1-B.53 Second, petitioner and private respondents in executing the Deed of Agreement did not intend to be bound by the provisions thereof. The alleged balance of P33,380.00 was indicated in the Deed of Agreement because private respondents wanted petitioner to issue a postdated check for the same amount to pay the former's obligations. Thus, the UCPB check which was issued afterwards, was not intended for the payment of the alleged balance of P33,380.00 as appearing in the Deed of Agreement but was made by petitioner to enhance the standing of private respondents to their creditors. Petitioner's testimony in this regard is enlightening. Thus, Atty. Fernandez: So after this receipt was signed or was made out by Mrs. Paray to you, what happened if any? Kuizon: On June 6, 1983 defendants returned to me with the Deed of Sale. Atty. Fernandez: Are you referring to this Exhibit M? Kuizon: Yes Sir. Together with the Deed of Sale, they handed the deed of agreement which is Annex A to their Answer and supplemental agreement which is Annex B to their Answer.

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Atty. Fernandez: When they returned to you with these documents what happened if any? Kuizon: They told me that they will give me this Deed of Sale but I have to sign these two documents. I told them that I could sign the Supplemental Agreement because it prohibits me from selling the land unless the balance of P5,000.00 is being paid off. I told them I could sign this because I have no intention of selling this lot. But I told them I could not sign the Deed of Agreement because it did no tell the truth that the purchase price of Lot 800-A-1-B was only P25,000.00. Atty. Fernandez: When you told Mrs. Paray that you will not sign Annex A of their Answer what happened next, what did you do? Kuizon: When I told her I could not sign Annex A she said that the P33,380.00 was just indicated there because she wanted me to issue a postdated check, such amount to pay off certain obligation of the same amount, anyway she said that this will be charged against any loan releases, so because I trusted them I must issue a postdated check Annex C to the Answer, . . . Atty. Fernandez: So when Mrs. Paray explained to you that P33,380.00 only represented certain obligation, what did you do if any? Kuizon: She told me that the P33,380.00 was just indicated there because she wanted to pay certain obligation in such amount that she wanted me to issue a postdated check from the P33,380.00 which is just to support the check.54 Third, private respondents did not deny any of these statements of petitioners. They gave no sensible explanation regarding the discrepancy in the consideration between the Deed of Sale and Deed of Agreement and no reason whatsoever was given as to why the Deed of Agreement, unlike the Deed of Sale, was not

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notarized, although both had the same date. Their allegation that upon request of petitioner the amount of P25,120.00 was placed in the Deed of Sale as the consideration of the sale so that petitioner would pay lesser taxes deserves scant consideration because as pointed out correctly by the trial court the liability to pay capital gains tax falls not on the buyer but on the seller, the private respondents in this case. Considering these circumstances, we find that the Deed of Sale is the embodiment of the parties' true agreement. The consideration in the sale of Lot 800-A-1-B is P25,120.00 only which as appearing on record was fully paid by petitioner. The Deed of Agreement was executed merely to suit private respondents' nefarious motive of boosting their credit image with an understanding that it was not to become binding and operative between themselves. At most it was a simulated agreement,55 which is not really designed nor intended by the parties to produce legal effects. As a fictitious and simulated agreement it lacks valid consent so essential to a valid and enforceable contract. In compliance with their agreement, petitioner remitted to private respondents the sum of P198,000.00 which represent the loan proceeds secured by her. Deducting the sum of P25,120.00 which was the price of Lot No. 800-A-1-B from the abovestated amount, there is still a remaining balance of P172,800.00 in the hands of private respondents. With this available amount she specifically asked in her Complaint for the conveyance of Lot No. 800-A-1-A to provide a lawn space to Lot No. 800-A-1-B which was just adjacent to it. Private respondents were also willing to sell Lot No. 800-A-1-A as can be deduced from the allegations in their Answer. These circumstances were amply taken into account by respondent court which properly considered and appreciated the foregoing manifestations of the parties when it ruled for the execution of a deed of sale over Lot No. 800-A-1-A. The respondent court stated: It is observed in appellee's first cause of action, in connection with her general quest that appellants be directed to execute deeds of absolute sale, that she specifically mentioned lot 800-A-1-A containing an area of 250 sq. m., alleging in paragraph 1.13 of her complaint, that when she offered lot 800-A-1-B to the prospective buyers, they signified their intention to buy that lot ". . . only if adjacent Lot No. 800-A-1-A was included in the sale to provide a loan thereto". In connection with such specific quest, there is in appellant's answer, specifically paragraph 3-(j), that "when plaintiff negotiated to discontinue the agreement and offered to proceed only with the sale of lots nos. 800-A-1-B and 800-A-1-A with 314 and 250 square meters in area respectively, defendants demanded that they would return the excess minus the cost of the two lots . . . provided that all other properties be cleared of all the encumbrances, liabilities and mortgages since they were not benefitted by the same. . . .

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In the light of the above manifest submissions of the contending parties, in their respective prayer, most specially the underlined portion in appellants' answer, it is appropriate, fair and just to require appellants to execute a deed of sale in favor of appellee over Lot 800-A-1-A, containing an area of 250 sq. m., . . . While we agree with the foregoing observations of respondent court, we do not find it proper to use the fair market value of P300.00 per square meter as the price of Lot 800-A-1-A or for a total cost of P75,000.00. This is not in accord with the contract between the parties. It is not the province of the court to alter a contract by construction or to make a new contract for the parties; its duty is confined to the interpretation of the one which they have made for themselves without regard to its wisdom or folly as the court cannot supply material stipulations or read into the contract words which it does not contain.56 Their agreement is that every parcel of land covered by the loan releases would be conveyed at an agreed price of P170.00 per square meter. As testified to by private respondent Maria Paray, to wit: Q What transpired when Carmela Kuizon was introduced to you? A Carmela Kuizon told me that she is going to buy my land. Q Was there in effect an agreement to buy the land? A There was. Q For what price was the land to be purchased? A At P170.00 per square meter.57 This price of P170.00 per square meter was confirmed by petitioner. She declared: Atty. Fernandez: My question your honor is at what point did you agree to fix the price of P170.00? Kuizon: Well, before the SPAs were executed the price we agreed was P130.00 but after the execution of the SPAs they increased the price from P130 to P170.00 per square meter.58

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It is undisputed that the selling price of the real property involved as agreed upon by the parties is P170.00 per square meter. That which is agreed to in a contract is the law between the parties. Thus, obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith. 59 This, not withstanding the findings of the respondent court to the effect that — . . . it is appropriate, fair and just to require appellants to execute a deed of sale in favor of appellee over lot 800-A-1-A, containing an area of 250 sq. m. at P300.00/sq. m. which is the present "fair market value" of the property . . . (Decision, p. 28). We cannot make a new contract for the parties in the case at bar. Neither can "present market value" result to a novation, which cannot be presumed; neither can we disturb the consensuality of a contract of sale where the rights and obligations of the parties are determined at the time it was entered into, but above all, courts are not to play as decisionmakers as to the terms of a business contract when it is not asked to play that role. The sanctity of contracts must be respected and delicately preserved. Consequently, from the amount of P198,000.00, the sums of P25,120.00 which is the consideration for the sale of Lot No. 800-A-1-B and, P42,500.00 which is the purchase price of Lot No. 800-A-1-A, shall be deducted thereby leaving a balance of P130,380.00. In the Answer of private respondents, they demanded for the payment of P76,200.07 which represents the advances or loans extended to petitioner in finishing the construction of her house on Lot No. 800-A-1-B. On this, we agree with the findings of the respondent court upholding the validity of the loans in the amount of P67,326.07,60 which shall be deducted from the balance of P130,380.00. We find the evidence for private respondents as adequate to establish their cause of action against the petitioner. As it is, the mere denial of petitioner cannot outweigh the strength of the documentary evidence presented by and the positive testimony of private respondents. As a jurist once said, "I would sooner trust the smallest slip of paper for truth than the strongest and most retentive memory ever bestowed on moral man."61 In De Gala vs. De Gala,62 this Court stated, thus: . . . It is a general rule of evidence, that all other things being equal, affirmative testimony is stronger than negative; in other words, that the testimony of a credible witness, that he saw or heard a particular thing at a particular time and place is more reliable than that of an equally reliable witness who, with the same opportunities, testifies that he did not hear or see the same thing at the same time and place. Petitioner would like us to believe that the P100,000.00 allegedly given as grease money to bank fixers would be credited against the account of private respondents.63 Petitioner claims that this amount was given to bank personnel to

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facilitate the approval of the loans. Admittedly, the sum of P100,000.00 as alleged by petitioner was part of the total net proceeds of the loan in the amount of P492,002.04. The respondent court seasonably denied this claim of petitioner. Bare allegations which are not supported by any evidence, documentary or otherwise, sufficient to support her claim fall short to satisfy the degree of proof needed. We likewise agree with the findings of the respondent court which reads in part, viz: Appellee moreover claimed to have given P100,000.00 to appellants, which was handed every now and then in the amount of P20,000.00 or P30,000.00, and admittedly that the same was not receipted for. She has not explain why she did not demand a receipt, when, on the contrary, she demanded receipts for the P20,000.00, the P78,000.00, and the P100,000.00 when she delivered them on May 25, 1983; November 28, 1983; and February 14, 1984 (exhibits I, J and K). As appellee so expressed, that amount were given as "grease money" to facilitate the approval and release of the loans themselves. For this reason, that sum cannot be credited against the account of appellants, and unfair, unjust and uncalled for to consider the same as representative/part of the purchase price of appellants' properties. . .64 Petitioner also claims that she was forced by private respondents to construct the house on Lot No. 800-A-1-B, hence, the amount of P194,002.04 which were used in the building of the house should likewise be credited against the account of private respondents and be considered as part of the purchase price of the real properties involved. Simply stated, this allegation does not deserve any credence. We take note of the fact that petitioner was already the owner of Lot No. 800-A-1B as early as June, 1983 when the Deed of Sale over said lot was executed and delivered to her by private respondents. By law, all works, sowing and plating are presumed made by the owner and at his expense, unless the contrary is proved.65 No convincing and sufficient evidence whatsoever was presented by petitioner to rebut the presumption. On the contrary she admitted that she spent an additional amount of P100,000.0066 in building the house. She also incurred loans from private respondents and used them in the construction of the house. These circumstances clearly show that she of her own volition decided to build the house on Lot No. 800-A-1-B. We are not, however, inclined to toe the line of the trial court's finding that private respondents are liable for fraud. Fraud is the deliberate or intentional evasion of the normal fulfillment of an obligation.67 The mere failure of private respondents to execute a deed of sale because they demanded first an accounting of the lots used as collaterals by petitioner and the amount of loans secured68 could not be considered as fraud. Fraud is never presumed. It must be alleged and proven69 Fraus est odiosa et non praesumenda. Fraud is negated when private respondents had partially performed their obligation when they executed a deed of sale over Lot No. 800-A-1-B. Likewise, as appearing on record, private

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respondents intimated their willingness to execute a deed of sale over Lot No. 800A-1-A. The testimony of private respondent Maria Paray confirms this, thus: REDIRECT EXAMINATION BY ATTY. VALENTINO LEGASPI Now, you stated in your cross examination that you refused to transfer a part of the lands even though you have received already P198,000.00, my question is, what was the offer of Carmela Kuizon with respect to the land which were not covered by the payment which is the subject of the mortgage? Mrs. Maria Paray: What Carmela Kuizon suggested to me is that I would execute in her favor a Deed of Absolute Sale for the area of 250 sq. m. but what I can say is that the title covering this lot has been mortgage by her to J Finance so I think it would not be wise for me as yet to execute that Deed of Sale in her favor. Atty. Valentino Legaspi: In this connection did Carmela Kuizon agree to release other titles not covered by the payment? Mrs. Maria Paray: What Carmela Kuizon told me is that, if I will execute a Deed of Sale in her favor for the area of 250 square meters she would pay off her other obligations, get the title and return the titles to me. Atty. Valentino Legaspi: And what was your answer? Mrs. Maria Paray: I went to see her lawyer Atty. Fernandez and I told Atty. Fernandez to please call his client Carmela Kuizon to pay off to clear the titles so that the titles will be returned to me and that I will be ready to execute a Deed of Sale of the 250 sq. m.70 Lest we unnecessarily traverse the fact-finding role of the trial court, we echo once more what has been said in Vales vs. Villa (35 Phil. 76) thus:

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Men may do foolish things, make rediculous contracts, use miserable judgment, and lose money by them — indeed, all they have in the world; but not for that alone can the law intervene and restore. There must be, in addition, a violation of law, the commission of what the law knows as an actionable wrong, before the courts are authorized to lay hold of the situation and remedy it. We have, as a final note considered the remediable aspects of the instant case as far as the law and the circumstances would allow and permit. IN VIEW OF THE FOREGOING PREMISES, the appealed decision is hereby AFFIRMED with modifications: 1. Ordering private respondents to execute a Deed of Absolute Sale over Lot No. 800-A-1-A at a price of P170.00 per square meter within thirty (30) days from finality of the decision; 2. Ordering private respondents to reimburse petitioner the amount of P63,053.93 with legal interest within 30 days from finality of the decision. Without pronouncement as to costs. SO ORDERED.

G.R. No. 127772

March 22, 2001

ROBERTO P. ALMARIO, petitioner, vs. COURT OF APPEALS, HON. FLORENTINO A. TUASON, JR., PEOPLE OF THE PHILIPPINES AND RIZAL COMMERCIAL BANKING CORP., respondents. QUISUMBING, J.: This appeal by certiorari seeks to set aside the resolutions of the Court of Appeals dated November 21, 19961 and of January 7, 1997,2 in CA-G.R. No. SP-42312, which denied the petition for certiorari, prohibition and mandamus with preliminary injunction instituted by petitioner against the Hon. Florentino A. Tuason, Jr., in his capacity as Presiding Judge of Branch 139, Regional Trial Court of Makati City, the Rizal Commercial Banking Corporation (RCBC), and the People of the Philippines.3 Involved in said petition were the orders of Judge Jaime D. Discaya and Judge Tuason dated October 25, 19954 and April 11, 1996,5 respectively, issued in Criminal Cases Nos. 91-6761-62 which petitioner claimed were violative of

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his constitutional right against double jeopardy but which respondent appellate court upheld.1âwphi1.nêt The factual antecedents in these cases, as culled by the Court of Appeals, are as follows: Petitioner is one of the accused in Criminal Case No. 91-6761, for estafa thru falsification of public document, and Criminal Case No. 91-6762, for estafa, with respondent RCBC as the offended party in both cases. The informations were filed on October 22, 1992. After petitioner’s arraignment on March 18, 1992, pre-trial was held, which was terminated on October 21, 1994. Thereafter, the cases were scheduled for continuous trial in December 1994, and in January and February 1993, but the hearings were cancelled because the Presiding Judge of the court was elevated to this Court and no trial judge was immediately appointed/detailed thereto. The hearing set for June 21, 1995, was postponed for lack of proof of notice to all the accused and their counsel. The hearing on July 17, 1995, upon request of private prosecutor, and without objection on the part of petitioner’s counsel, postponed to July 24, 1995. However, for lack of proof of service of notice upon petitioner’s three co-accused, the hearing set for July 24, 1995, was likewise cancelled and the cases were reset for trial on September 8 and 25, 1995. On September 8, 1995, private complainant failed to appear despite due notice. Hence, upon motion of petitioner’s counsel, respondent court issued the following order: When this case was called for hearing, private complainant is not in Court despite notice. Atty. Alabastro, counsel for accused Roberto Almario, moved that the case against the latter be dismissed for failure to prosecute and considering that accused is entitled to a speedy trial. WHEREFORE, the case against accused Roberto Almario is hereby dismissed. With respect to accused Spouses Susensio and Guillerma Cruz and Dante Duldulao, 1st warrant be issued for their arrest. SO ORDERED. Upon motion of the private prosecutor and despite the opposition of petitioner, respondent court in its Order dated October 25, 1995, reconsidered the Order of September 8, 1995. The pertinent portion of said order reads as follows:

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In Hipolito vs. Court of Appeals (G.R. No. 108478-79, Feb. 21, 1993) the Supreme Court held that the right of the accused to a speedy trial is deemed violated only when the proceedings is attended by vexations, capricious and oppressive delays, or when unjustified postponements of the trial are asked for and secured, or when without cause or unjustifiable motive, a long period of time is allowed to (e) lapse without the party having his case tried. At least this right is relative, taking into (the) account the circumstances of each case. There has been no vexations, capricious and oppressive delays, or unjustified postponements of the trial, or a long time is allowed to (e) lapse without the party having his case tried which would constitute, according to the above case, violation of the right of the accused to speedy trial. After arraignment of the accused, the pre-trial was set and the same was ordered terminated on October 25, 1994. On June 21, 1995, the case was set for initial presentation of evidence of the proof of service of the notices to the accused and their respective counsels. On July 17, 1995, counsel for the accused did not interpose objection to private prosecutor's motion to postpone due to absence of witnesses. On July 24, 1995, the trial could not proceed as, being a joint trial of three criminal cases, the three other accused were not present. There were only three settings from the date of termination of the pre-trial for the prosecution to present evidence and the same were postponed with valid reasons. The dismissal in the Order dated September 8, 1995, did not result in the acquittal of the accused since the right of the accused to speedy trial has not been violated, and its dismissal having been made upon the motion of the accused there is no double jeopardy. WHEREFORE, premises considered, the Order dated September 8, 1995 dismissing the charge/case against the accused Roberto Almario is reconsidered and set aside. SO ORDERED. Petitioner sought a reconsideration of the above order. Acting on the Motion for Reconsideration dated November 9, 1995, respondent Judge issued his assailed Order of April 11, 1996, the dispositive portion of which reads as follows: IN VIEW OF THE FOREGOING, the Motion for Reconsideration dated 9 November 1995 is hereby denied for lack of merit considering that, based on the foregoing facts, the proceedings in this case have not been prolonged unreasonably nor were

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there oppressive delays and unjustified postponements in violation of the Accused's constitutional right to speedy trial. SO ORDERED.6 Aggrieved by the foregoing order, petitioner filed before the Court of Appeals a petition for certiorari, prohibition and mandamus with preliminary injunction against the presiding judge of Branch 139 of the Regional Trial Court of Makati City, RCBC and the People of the Philippines. In a resolution dated November 21, 1996, respondent appellate court denied the petition due course and dismissed it for lack of merit. Petitioner's motion to reconsider it was likewise denied for lack of merit in a resolution dated January 7, 1997. Before us, petitioner maintains that the appellate court erred in sustaining the trial court which, in turn, had gravely abused its discretion, amounting to lack of jurisdiction, when it reconsidered the order which dismissed the criminal cases against him. Petitioner asserts that this reversal was a violation of the doctrine of double jeopardy, as the criminal cases were initially dismissed for an alleged violation of petitioner's constitutional right to a speedy trial.7 The issue for resolution is whether, in petitioner's cases, double jeopardy had set in so that petitioner's constitutional right against such jeopardy had been violated. Article III, Section 21 of the 1987 Constitution provides: Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Section 7, Rule 117 of the Revised Rules of Court provides: Section 7. Former conviction or acquittal; double jeopardy. - When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had leaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. Clearly, jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered,

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and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused.8 In the cases at bar, the order of dismissal based on a violation of the right to speedy trial was made upon motion by counsel for petitioner before the trial court. It was made at the instance of the accused before the trial court, and with his express consent. Generally, the dismissal of a criminal case resulting in acquittal made with the express consent of the accused or upon his own motion will not place the accused in double jeopardy. However, this rule admits of two exceptions, namely: insufficiency of evidence and denial of the right to speedy trial.9 Double jeopardy may attach when the proceedings have been prolonged unreasonably, in violation of the accused's right to speedy trial.10 Here we must inquire whether there was unreasonable delay in the conduct of the trial so that violation of the right to speedy trial of the accused, herein petitioner, resulted. For it must be recalled that in the application of the constitutional guaranty of the right to speedy disposition of cases, particular regard must also be taken of the facts and circumstances peculiar to each case.11 Both the trial court and the appellate court noted that after pre-trial of petitioner's case was terminated on October 21, 1994, continuous trial was set in the months of December 1994, and January and February of 1995. The scheduled hearings, however, were cancelled when the presiding judge was promoted to the Court of Appeals, and his successor as trial judge was not immediately appointed, nor another judge detailed to his sala.1âwphi1.nêt Records show that on June 21, 1995, hearing was postponed for lack of proof of notice to the accused and their counsel. The hearing on July 17, 1995, was postponed upon motion of the private prosecutor without objection from petitioner's counsel. The hearing set on July 24, 1995 was reset, despite the presence of petitioner and his counsel, because of lack of proof of service of notice to co-accused Dante Duldulao and the spouses Susencio and Guillerma Cruz.12 As observed by respondent appellate court, delay in the trial was due to circumstances beyond the control of the parties and of the trial court. The first and third postponements were clearly justified on the ground of lack of notice to accused, co-accused, and/or counsel. Another was made without objection from petitioner's counsel. However, on September 8, 1995, counsel for petitioner moved for dismissal of this case, because of the absence of the private prosecutor due to a severe attack of gout and arthritis, although he had sent his associate lawyer acceptable to the court.13 All in all, there were only three re-setting of hearing dates. Thus, after a closer analysis of these successive events, the trial court realized that the dates of the hearings were transferred for valid grounds. Hence, the trial court set aside its initial order and reinstated the cases against petitioner,14 which order the appellate court later sustained. That there was no unreasonable delay of the proceedings is apparent from the chronology of the hearings with the reasons for their postponements or transfers.

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Petitioner could not refute the appellate court's findings that petitioner's right to speedy trial had not been violated. As both the trial and appellate courts have taken pains to demonstrate, there was no unreasonable, vexatious and oppressive delay in the trial. Hence, there was no violation of petitioner's right to speedy trial as there were no unjustified postponements which had prolonged the trial for unreasonable lengths of time.15 There being no oppressive delay in the proceedings, and no postponements unjustifiably sought, we concur with the conclusion reached by the Court of Appeals that petitioner's right to speedy trial had not been infringed. Where the right of the accused to speedy trial had not been violated, there was no reason to support the initial order of dismissal. It follows that petitioner cannot invoke the constitutional right against double jeopardy when that order was reconsidered seasonably.16 For as petitioner's right to speedy trial was not transgressed, this exception to the fifth element of double jeopardy - that the defendant was acquitted or convicted, or the case was dismissed or otherwise terminated without the express consent of the accused was not met. The trial court's initial order of dismissal was upon motion of petitioner's counsel, hence made with the express consent of petitioner. That being the case, despite the reconsideration of said order, double jeopardy did not attach. As this Court had occasion to rule in People vs. Tampal, (244 SCRA 202) reiterated in People vs. Leviste,17 where we overturned an order of dismissal by the trial court predicated on the right to speedy trial It is true that in an unbroken line of cases, we have held that the dismissal of cases on the ground of failure to prosecute is equivalent to an acquittal that would bar further prosecution of the accused for the same offense. It must be stressed, however, that these dismissals were predicated on the clear right of the accused to speedy trial. These cases are not applicable to the petition at bench considering that the right of the private respondents to speedy trial has not been violated by the State. For this reason, private respondents cannot invoke their right against double jeopardy. Both the trial court and the Court of Appeals were thus not in error when they allowed reinstatement of the cases against petitioner. WHEREFORE, the resolutions of the Court of Appeals in CA-G.R. No. SP-42312, dated November 21, 1996 and January 7, 1997, which upheld the orders of the Regional Trial Court of Makati, Branch 139, in Criminal Cases Nos. 91-6761-62, are hereby AFFIRMED. Costs against petitioner. SO ORDERED.

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G.R. No. 107125

January 29, 2001

GEORGE MANANTAN, petitioner, vs. THE COURT OF APPEALS, SPOUSES MARCELINO NICOLAS and MARIA NICOLAS, respondents. QUISUMBING, J.: This is a petition for review of the decision dated January 31, 1992 of the Court of Appeals in CA-G.R. CV No. 19240, modifying the judgment of the Regional Trial Court of Santiago, Isabela, Branch 21, in Criminal Case No. 066. Petitioner George Manantan was acquitted by the trial court of homicide through reckless imprudence without a ruling on his civil liability. On appeal from the civil aspect of the judgment in Criminal Case No. 066, the appellate court found petitioner Manantan civilly liable and ordered him to indemnify private respondents Marcelino Nicolas and Maria Nicolas P104,400.00 representing loss of support, P50,000.00 as death indemnity, and moral damages of P20,000.00 or a total of P174,400.00 for the death of their son, Ruben Nicolas. The facts of this case are as follows: On June 1, 1983, the Provincial Fiscal of Isabela filed an information charging petitioner Manantan with reckless imprudence resulting in homicide, allegedly committed as follows: That on or about the 25th day of September 1982, in the municipality of Santiago, province of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then the driver and person-incharge of an automobile bearing Plate No. NGA-816, willfully and unlawfully drove and operated the same while along the Daang Maharlika at Barangay Malvar, in said municipality, in a negligent, careless and imprudent manner, without due regard to traffic laws, regulations and ordinances and without taking the necessary precaution to prevent accident to person and damage to property, causing by such negligence, carelessness and imprudence said automobile driven and operated by him to sideswipe a passenger jeep bearing plate No. 918-7F driven by Charles Codamon, thereby causing the said automobile to turn down (sic) resulting to the death of Ruben Nicolas a passenger of said automobile. CONTRARY TO LAW.1 On arraignment, petitioner pleaded not guilty to the charge. Trial on the merits ensued.

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The prosecution's evidence, as summarized by the trial court and adopted by the appellate court, showed that: [I]n the morning of September 25, 1982, Fiscal Wilfredo Ambrocio… decided to catch shrimps at the irrigation canal at his farm. He invited the deceased who told him that they (should) borrow the Ford Fiera of the accused George Manantan who is also from Cordon. The deceased went to borrow the Ford Fiera but…said that the accused also wanted to (come) along. So Fiscal Ambrocio and the deceased dropped by the accused at the Manantan Technical School. They drank beer there before they proceeded to the farm using the Toyota Starlet of the accused. At the farm they consumed one (more) case of beer. At about 12:00 o'clock noon they went home. Then at about 2:00 or 3:00 o'clock that afternoon, (defense witness Miguel) Tagangin and (Ruben) Nicolas and the accused returned to the house of Fiscal Ambrocio with a duck. They cooked the duck and ate the same with one more case of beer. They ate and drank until about 8:30 in the evening when the accused invited them to go bowling. They went to Santiago, Isabela on board the Toyota Starlet of the accused who drove the same. They went to the Vicap Bowling Lanes at Mabini, Santiago, Isabela but unfortunately there was no vacant alley. While waiting for a vacant alley they drank one beer each. After waiting for about 40 minutes and still no alley became vacant the accused invited his companions to go to the LBC Night Club. They had drinks and took some lady partners at the LBC. After one hour, they left the LBC and proceeded to a nearby store where they ate arroz caldo…and then they decided to go home. Again the accused drove the car. Miguel Tabangin sat with the accused in the front seat while the deceased and Fiscal Ambrocio sat at the back seat with the deceased immediately behind the accused. The accused was driving at a speed of about 40 kilometers per hour along the Maharlika Highway at Malvar, Santiago, Isabela, at the middle portion of the highway (although according to Charles Cudamon, the car was running at a speed of 80 to 90 kilometers per hours on [the] wrong lane of the highway because the car was overtaking a tricycle) when they met a passenger jeepney with bright lights on. The accused immediately tried to swerve the car to the right and move his body away from the steering wheel but he was not able to avoid the oncoming vehicle and the two vehicles collided with each other at the center of the road. As a result of the collision the car turned turtle twice and landed on its top at the side of the highway immediately at the approach of the street going to the Flores Clinic while the jeep swerved across the road so that one half front portion landed on the lane of the car while the back half portion was at its right lane five meters away from the point of impact as shown by a sketch (Exhibit "A") prepared by Cudamon the following morning at the Police Headquarters at the instance of his lawyer. Fiscal Ambrocio lost consciousness. When he regained consciousness he was still inside the car (lying) on his belly with the deceased on top of him. Ambrocio pushed (away) the deceased and then he was pulled out of

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the car by Tabangin. Afterwards, the deceased who was still unconscious was pulled out from the car. Both Fiscal Ambrocio and the deceased were brought to the Flores Clinic. The deceased died that night (Exhibit "B") while Ambrocio suffered only minor injuries to his head and legs.2 The defense version as to the events prior to the incident was essentially the same as that of the prosecution, except that defense witness Miguel Tabangin declared that Manantan did not drink beer that night. As to the accident, the defense claimed that: …The accused was driving slowly at the right lane [at] about 20 inches from the center of the road at about 30 kilometers per hour at the National Highway at Malvar, Santiago, Isabela, when suddenly a passenger jeepney with bright lights which was coming from the opposite direction and running very fast suddenly swerve(d) to the car's lane and bumped the car which turned turtle twice and rested on its top at the right edge of the road while the jeep stopped across the center of the road as shown by a picture taken after the incident (Exhibit "1") and a sketch (Exhibit "3") drawn by the accused during his rebuttal testimony. The car was hit on the driver's side. As a result of the collision, the accused and Miguel Tabangin and Fiscal Ambrocio were injured while Ruben Nicolas died at the Flores Clinic where they were all brought for treatment.3 In its decision dated June 30, 1988, promulgated on August 4, 1988, the trial court decided Criminal Case No. 066 in petitioner's favor, thus: WHEREFORE, in the light of the foregoing considerations, the Court finds the accused NOT GUILTY of the crime charged and hereby acquits him. SO ORDERED.4 On August 8, 1988, private respondents filed their notice of appeal on the civil aspect of the trial court's judgment. In their appeal, docketed as CA-G.R. CV No. 19240, the Nicolas spouses prayed that the decision appealed from be modified and that appellee be ordered to pay indemnity and damages. On January 31, 1992, the appellate court decided CA-G.R. CV No. 19240 in favor of the Nicolas spouses, thus: WHEREFORE, the decision appealed from is MODIFIED in that defendantappellee is hereby held civilly liable for his negligent and reckless act of driving his car which was the proximate cause of the vehicular accident, and sentenced to indemnify plaintiffs-appellants in the amount of P174,400.00 for the death of Ruben Nicolas, SO ORDERED.5

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In finding petitioner civilly liable, the court a quo noted that at the time the accident occurred, Manantan was in a state of intoxication, due to his having consumed "all in all, a total of at least twelve (12) bottles of beer…between 9 a.m. and 11 p.m."6 It found that petitioner's act of driving while intoxicated was a clear violation of Section 53 of the Land Transportation and Traffic Code (R.A. No. 4136)7 and pursuant to Article 2185 of the Civil Code,8 a statutory presumption of negligence existed. It held that petitioner's act of violating the Traffic Code is negligence in itself "because the mishap, which occurred, was the precise injury sought to be prevented by the regulation."9 Petitioner moved for reconsideration, but the appellate court in its resolution of August 24, 1992 denied the motion. Hence, the present case. Petitioner, in his memorandum, submits the following issues for our consideration: FIRST – THE DECISION OF THE TRIAL COURT ACQUITTING THE PETITIONER OF THE CRIME OF RECKLESS IMPRUDENCE RESULTING TO HOMICIDE FORECLOSED ANY FURTHER INQUIRY ON THE ACCUSED'S (PETITIONER'S) NEGLIGENCE OR RECKLESS IMPRUDENCE BECAUSE BY THEN HE WILL BE PLACED IN "DOUBLE JEOPARDY" AND THEREFORE THE COURT OF APPEALS ERRED IN PASSING UPON THE SAME ISSUE AGAIN. SECOND – THE COURT OF APPEALS DID NOT HAVE JURISDICTION TO AWARD DAMAGES AND INDEMNITY TO THE PRIVATE RESPONDENTS CONSIDERING THAT THE NON-DECLARATION OF ANY INDEMNITY OR AWARD OF DAMAGES BY THE REGIONAL TRIAL COURT OF ISABELA, BRANCH XXI, WAS ITSELF CONSISTENT WITH THE PETITIONER'S ACQUITTAL FOR THE REASON THAT THE CIVIL ACTION WAS IMPLIEDLY INSTITUTED WITH THE CRIMINAL ACTION AND THERE WAS NO EXPRESS WAIVER OF THE CIVIL ACTION OR RESERVATION TO INSTITUTE IT SEPARATELY BY THE PRIVATE RESPONDENTS IN THE TRIAL COURT. THIRD – THE COURT OF APPEALS DID NOT HAVE JURISDICTION TO TAKE COGNIZANCE OF THE CASE CA-G.R. CV No. 19240 ENTITLED: SPOUSES MARCELINO NICOLAS AND MARIA NICOLAS v. GEORGE MANANTAN, AND RENDER THE DECISION SOUGHT TO BE REVIEWED WHEN THE SAME WAS PROSECUTED BY THE PRIVATE RESPONDENTS IN THEIR PERSONAL CAPACITIES AND THE FILING FEES NOT HAVING BEEN PAID, THUS VIOLATING THE MANCHESTER DOCTRINE. In brief, the issues for our resolution are: (1) Did the acquittal of petitioner foreclose any further inquiry by the Court of Appeals as to his negligence or reckless imprudence?

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(2) Did the court a quo err in finding that petitioner's acquittal did not extinguish his civil liability? (3) Did the appellate court commit a reversible error in failing to apply the Manchester doctrine to CA-G.R. CV No. 19240? On the first issue, petitioner opines that the Court of Appeals should not have disturbed the findings of the trial court on the lack of negligence or reckless imprudence under the guise of determining his civil liability. He argues that the trial court's finding that he was neither imprudent nor negligent was the basis for his acquittal, and not reasonable doubt. He submits that in finding him liable for indemnity and damages, the appellate court not only placed his acquittal in suspicion, but also put him in "double jeopardy." Private respondents contend that while the trial court found that petitioner's guilt had not been proven beyond reasonable doubt, it did not state in clear and unequivocal terms that petitioner was not recklessly imprudent or negligent. Hence, impliedly the trial court acquitted him on reasonable doubt. Since civil liability is not extinguished in criminal cases, if the acquittal is based on reasonable doubt, the Court of Appeals had to review the findings of the trial court to determine if there was a basis for awarding indemnity and damages.1âwphi1.nêt Preliminarily, petitioner's claim that the decision of the appellate court awarding indemnity placed him in double jeopardy is misplaced. The constitution provides that "no person shall be twice put in jeopardy for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act."10 When a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the consent of the accused, the latter cannot again be charged with the same or identical offense.11 This is double jeopardy. For double jeopardy to exist, the following elements must be established: (a) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have terminated; and (3) the second jeopardy must be for the same offense as the first.12 In the instant case, petitioner had once been placed in jeopardy by the filing of Criminal Case No. 066 and the jeopardy was terminated by his discharge. The judgment of acquittal became immediately final. Note, however, that what was elevated to the Court of Appeals by private respondents was the civil aspect of Criminal Case No. 066. Petitioner was not charged anew in CAG.R. CV No. 19240 with a second criminal offense identical to the first offense. The records clearly show that no second criminal offense was being imputed to petitioner on appeal. In modifying the lower court's judgment, the appellate court did not modify the judgment of acquittal. Nor did it order the filing of a second criminal case against petitioner for the same offense. Obviously, therefore, there was no second jeopardy to speak of. Petitioner's claim of having been placed in double jeopardy is incorrect. Our law recognizes two kinds of acquittal, with different effects on the civil liability of the accused. First is an acquittal on the ground that the accused is not the

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author of the act or omission complained of. This instance closes the door to civil liability, for a person who has been found to be not the perpetrator of any act or omission cannot and can never be held liable for such act or omission.13 There being no delict, civil liability ex delicto is out of the question, and the civil action, if any, which may be instituted must be based on grounds other than the delictcomplained of. This is the situation contemplated in Rule 111 of the Rules of Court.14 The second instance is an acquittal based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of the accused has not been satisfactorily established, he is not exempt from civil liability which may be proved by preponderance of evidence only.15 This is the situation contemplated in Article 29 of the Civil Code,16 where the civil action for damages is "for the same act or omission." Although the two actions have different purposes, the matters discussed in the civil case are similar to those discussed in the criminal case. However, the judgment in the criminal proceeding cannot be read in evidence in the civil action to establish any fact there determined, even though both actions involve the same act or omission.17 The reason for this rule is that the parties are not the same and secondarily, different rules of evidence are applicable. Hence, notwithstanding herein petitioner's acquittal, the Court of Appeals in determining whether Article 29 applied, was not precluded from looking into the question of petitioner's negligence or reckless imprudence. On the second issue, petitioner insists that he was acquitted on a finding that he was neither criminally negligent nor recklessly imprudent. Inasmuch as his civil liability is predicated on the criminal offense, he argues that when the latter is not proved, civil liability cannot be demanded. He concludes that his acquittal bars any civil action. Private respondents counter that a closer look at the trial court's judgment shows that the judgment of acquittal did not clearly and categorically declare the nonexistence of petitioner's negligence or imprudence. Hence, they argue that his acquittal must be deemed based on reasonable doubt, allowing Article 29 of the Civil Code to come into play. Our scrutiny of the lower court's decision in Criminal Case No. 066 supports the conclusion of the appellate court that the acquittal was based on reasonable doubt; hence, petitioner's civil liability was not extinguished by his discharge. We note the trial court's declaration that did not discount the possibility that "the accused was really negligent." However, it found that "a hypothesis inconsistent with the negligence of the accused presented itself before the Court" and since said "hypothesis is consistent with the record…the Court's mind cannot rest on a verdict of conviction."18 The foregoing clearly shows that petitioner's acquittal was predicated on the conclusion that his guilt had not been established with moral certainty. Stated differently, it is an acquittal based on reasonable doubt and a suit to enforce civil liability for the same act or omission lies. On the third issue, petitioner argues that the Court of Appeals erred in awarding damages and indemnity, since private respondents did not pay the corresponding filing fees for their claims for damages when the civil case was impliedly instituted

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with the criminal action. Petitioner submits that the non-payment of filing fees on the amount of the claim for damages violated the doctrine in Manchester Development Corporation v. Court of Appeals, 149 SCRA 562 (1987) and Supreme Court Circular No. 7 dated March 24, 1988.19 He avers that since Manchester held that "The Court acquires jurisdiction over any case only upon payment of the prescribed docket fees," the appellate court was without jurisdiction to hear and try CA-G.R. CV No. 19240, much less award indemnity and damages. Private respondents argue that the Manchester doctrine is inapplicable to the instant case. They ask us to note that the criminal case, with which the civil case was impliedly instituted, was filed on July 1, 1983, while the Manchesterrequirements as to docket and filing fees took effect only with the promulgation of Supreme Court Circular No. 7 on March 24, 1988. Moreover, the information filed by the Provincial Prosecutor of Isabela did not allege the amount of indemnity to be paid. Since it was not then customarily or legally required that the civil damages sought be stated in the information, the trial court had no basis in assessing the filing fees and demanding payment thereof. Moreover, assuming that the Manchester ruling is applied retroactively, under the Rules of Court, the filing fees for the damages awarded are a first lien on the judgment. Hence, there is no violation of the Manchester doctrine to speak of. At the time of the filing of the information in 1983, the implied institution of civil actions with criminal actions was governed by Rule 111, Section 1 of the 1964 Rules of Court.20 As correctly pointed out by private respondents, under said rule, it was not required that the damages sought by the offended party be stated in the complaint or information. With the adoption of the 1985 Rules of Criminal Procedure, and the amendment of Rule 111, Section 1 of the 1985 Rules of Criminal Procedure by a resolution of this Court dated July 7, 1988, it is now required that: When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate or exemplary damages, the filing fees for such civil action as provided in these Rules shall constitute a first lien on the judgment except in an award for actual damages. In cases wherein the amount of damages, other than actual, is alleged in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial. The foregoing were the applicable provisions of the Rules of Criminal Procedure at the time private respondents appealed the civil aspect of Criminal Case No. 066 to the court a quo in 1989. Being in the nature of a curative statute, the amendment applies retroactively and affects pending actions as in this case. Thus, where the civil action is impliedly instituted together with the criminal action, the actual damages claimed by the offended parties, as in this case, are not included in the computation of the filing fees. Filing fees are to be paid only if other items of damages such as moral, nominal, temporate, or exemplary

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damages are alleged in the complaint or information, or if they are not so alleged, shall constitute a first lien on the judgment.21 Recall that the information in Criminal Case No. 066 contained no specific allegations of damages. Considering that the Rules of Criminal Procedure effectively guarantee that the filing fees for the award of damages are a first lien on the judgment, the effect of the enforcement of said lien must retroact to the institution of the criminal action. The filing fees are deemed paid from the filing of the criminal complaint or information. We therefore find no basis for petitioner's allegations that the filing fees were not paid or improperly paid and that the appellate court acquired no jurisdiction. WHEREFORE, the instant petition is DISMISSED for lack of merit. The assailed decision of the Court of Appeals in CA-G.R. CV No. 19240 promulgated on January 31, 1992, as well as its resolution dated August 24, 1992, denying herein petitioner's motion for reconsideration, are AFFIRMED. Costs against petitioner.1âwphi1.nêt SO ORDERED.

G.R. No. 136258

October 10, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CARLOS FELICIANO, accused-appellant. VITUG, J.: From being the subject of moral condemnation, the "Kiss of Judas" appears to attain a different dimension in criminal procedure. Indeed, by entering into a "unholy" contract with an accused, so that the latter might betray his partner in crime in exchange for an acquittal, the State demonstrates how far its efforts could go to vindicate crime. That the State should agree to become a party to setting up a premium on "treachery," and that it should reward conduct from which an honorable man would ordinarily recoil with aversion, paradoxically illustrates the perceived necessity of such kind of an arrangement in criminal procedure.1 It is this doggedness of purpose on the part of the State which herein accused-appellant, in one of his assignment of errors, decries — "The trial court [has] erred in discharging accused Rodel de la Cruz to be the state witness against co-accused Carlos Feliciano despite strong objections from the defense."2 The accused-appellant, Carlos Feliciano, was a security guard detailed by the Atlantic Security Agency at the Kingsmen building, also popularly known in the small community as the hub of four disco pubs located on four floors of the edifice, in Kalibo, Aklan. He was assigned to the "Superstar" disco pub and his duties ranged from refusing entry to dubious characters to making certain that no

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customer would leave without first paying his bill. Rodel de la Cruz, a security guard from another agency, the Rheaza Security Agency, was stationed at the parking lot of the same building. In keeping with the nocturnal business hours of the establishments at Kingsmen, the two security guards would report for duty at 7:00 in the evening until the wee hours of the next morning or when the last customer would have by then left the premises. In the early morning of 05 June 1995, Feliciano and de la Cruz centrally figured in the investigation over the grisly death of an unidentified woman whose body was found sprawled in Barangay New Buswang, Kalibo, Aklan. Finding a dead body at 5:30 in the morning in nearby Barangay Buswang was big news to the small community of Kalibo The radio news about an unidentified lifeless female lying in the Sampaton Funeral Parlor caught the curiosity of Rosalie Ricarto. The dead woman, so described as wearing a red jacket emblazoned with the words "El-Hassan, Kingdom of Saudi Arabia" and maong pants, fit the description of Teresita Fuentes. Rosalie, a rice retailer, shared a stall with Teresita, a vendor of spices, condiments and fruits, at the Yambing Building. Rosalie last saw Teresita on the afternoon of 04 June 1995. Teresita, who regularly went to twice a week to buy goods to sell, was scheduled to leave the following morning of 05 June 1995. According to Rosalie, Teresita, who normally would take the 2:00 a.m. trip to Iloilo, should already be back at Kalibo by about 4:00 p.m. of the same day. But Teresita did not return that afternoon. Rosalie said that Teresita wore pieces of jewelry — a necklace, a pair of earrings, a bracelet, four rings and a Seiko wristwatch — all of which, except for the timepiece, were eventually recovered. Anna Liza Pronton Fuentes, the daughter of Teresita, was able to identify the bag recovered by Myca Banson from the crime scene, as well as all its t contents, to be those belonging to her mother. Likewise, recovered at the crime scene were twelve P100.00 bills, seven P5.00 bills and the broken windshield of the tricycle owned by Ruben Barte. Turned over to the police by the manager of the Superstar Disco Club was the sum of P1,000.00. The autopsy report showed that whoever bludgeoned the hapless Teresita Fuentes to death had used a blunt instrument, inflicting twelve different wounds on her head and face. The cause of death was noted to be severe hemorrhage secondary to lacerated wounds and skull fracture. On 02 August 1995, an Information was filed against Rodel de la Cruz and Carlos Feliciano — 'That on or about the 5th day of June 1995, in the early morning, in Barangay New Buswang, Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, while armed with a handgun, by means of force and violence, and with intent of gain and without the consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal, rob and carry away cash money in the amount of TEN THOUSAND PESOS (P10,000.00), Philippine currency, more or less,

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belonging to TERESITA FUENTES Y OSORIO, to the damage and prejudice of the owner in the aforesaid amount; that by reason or in the occasion of said robbery, and for the purpose of enabling the accused to take, steal and carry away the aforesaid amount, the above-named accused with intent to kill and conspiring with one another, did then and there willfully, unlawfully and feloniously and with evident premeditation and under the cover of darkness, treacherously attack, assault and wound TERESITA FUENTES Y OSORIO, thereby inflicting upon her mortal wounds, to wit: 1. Lacerated wound about 1¼ inches in length left chin. 2. Lacerated wound about 1 inch in length left lower lip. 3. Fracture of the left mandible. 4. Fracture of the left upper lateral incisor and the left upper canine. 5. Lacerated wound about 1¼ inches in length and about 1½ in depth left face. 6. Punctured wound ½ in diameter and about 1½ inches in depth mid-portion base nose bridge left. 7. Lacerated wound about 2 inches in length and about 1½ inches in depth left cheek. 8. Lacerated wound about 1 inch in length left ear medially. 9. Lacerated wound about ½ inch in length left face near the left ear. 10. Lacerated wound about 1½ in length below the left eyebrow. 11. Punctured wound about 1 inch in diameter and about 5 inches in depth left parietal. 12. Skull fracture occiput right. "as per autopsy report of Dr. Agrelita D. Fernandez, of the Rural Health Unit, Kalibo, Aklan, hereto attached and forming an integral part hereof which wounds directly caused the death of said TERESITA FUENTES Y OSORIO.

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"That as a result of the criminal acts of the accused, the heirs of the victim suffered actual and compensatory damages in the amount of FIFTY THOUSAND (P50,000.00) PESOS."3 The prosecution sought the discharge of accused Rodel de la Cruz so that the latter could testify against his co-accused Carlos Feliciano. Pending resolution by the trial court on the motion, Carlos Feliciano and Rodel de la Cruz were arraigned on 08 February 1996. The two accused entered a plea of not guilty. On 18 June 1996, the court a quo granted the motion of the prosecution and the name of Rodel de la Cruz, an accused turned state witness, was forthwith stricken off from the Information.4 A detailed account of the incident presented at the trial by the prosecution was narrated by the Office of the Solicitor General. "In the early morning of June 5, 1995, before 2 o'clock, appellant went to the guard post of Dela Cruz to tell the latter to assist him in going after a customer who did not pay the bill. It was not the first time that they had to run after a non-paying customer. Dela Cruz thus accompanied appellant who rented for the purpose a tricycle from its driver, Ruben Barte, who stayed behind. Appellant initially drove but about twenty meters past Kingsmen Building, he asked Dela Cruz to take over while he stayed inside the passenger sidecar of the tricycle. Somewhere between the Ceres and Libacao terminals, appellant alighted from the tricycle after instructing Dela Cruz to stop and wait for him. Appellant subsequently informed Dela Cruz that they shall wait there for the customer they were after. About a half hour later, however, appellant decided to leave the place, apparently because the person he was looking for was nowhere in sight. As they passed Banga, New Washington crossing, they saw a woman walking alone. Appellant waved at her, giving Dela Cruz the impression that they knew each other. Dela Cruz stopped the vehicle, as he was told by appellant, who then jumped out. Drawing his service gun, appellant suddenly held the woman by the neck and at the same time poked his gun at her face. He dragged her towards the tricycle and ordered her to board it. The woman would later be identified as Teresita Fuentes. Dela Cruz was shocked with what appellant did and was at a loss on what to do. Still stricken with panic, Dela Cruz asked appellant what was going on and said he was leaving as he did not want to be part of whatever plans appellant had. Appellant retorted that Dela Cruz was already involved. Dela Cruz was about to alight from the tricycle when appellant poked his gun at him and ordered him to drive. Thinking that appellant was in a position to easily shoot him, Dela Cruz did as he was ordered. "Appellant then instructed Dela Cruz to drive back to the public market. When they reached the junction of Toting Reyes and Roxas Avenues, appellant told Dela Cruz to turn right at Rizal Memorial College of Arts and Trade (RMCAT) They noticed at this point that another tricycle, which came from the direction of Kingsmen Building, was following them. This

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prompted appellant to order Dela Cruz to turn left at Magdalena Village instead and to drive faster. During the ride, appellant held Fuentes, who was crouching, by her hair, pressing her head down. He also kicked her and struck her head with the butt of his gun whenever she struggled. Dela Cruz asked appellant to stop hurting Fuentes and to have pity but his entreaties fell on deaf ears. Appellant even threatened to shoot Dela Cruz if he does not stop complaining. 'When they reached New Buswang, they noticed that the other tricycle they saw earlier was still trailing them by about 15 meters. As they approached Magdalena Village after passing Camp Martelino, Fuentes struggled so appellant hit her again. Dela Cruz told appellant to desist from striking her. Appellant did not take kindly to the unsolicited advice and fired his gun in the air. Seeing an opportunity for escape, Dela Cruz suddenly swerved the tricycle towards Magdalena Village until the vehicle toppled over. When the tricycle was lifted from its fallen state, Dela Cruz immediately jumped out of it and ran towards a feeder road leading to the Cooperative Rural Bank. He was resting at the back of the bank for a few minutes when appellant also arrived. Enraged, Dela Cruz this time drew his service firearm and aimed it at appellant, demanding from the latter an explanation why he had to involve him (Dela Cruz). With an assurance that he would own up the responsibility for everything that had happened, appellant was able to calm Dela Cruz down. After returning his service gun to the holster, Dela Cruz headed back to the road. Behind him following was appellant. Then, they saw Barte, from whom appellant rented the tricycle earlier, trying to start the engine thereof. It turned out that it was Barte who was in the other tricycle, driven by Ramon Yael. Appellant assured Barte that he will pay for all the damages of the rented tricycle. "Meanwhile, Dela Cruz went back to Kingsmen Building aboard Yael's tricycle to look for his dancer girlfriend, Myka (or Mika) Banzon (or Vanson), but she was not there. Dela Cruz, with Yael in his tricycle, were about to go to Banzon's boarding house when appellant approached them, insisting that Yael take him first to Magdalena Village. Afraid of appellant, Yael agreed. When they got there, particularly where Barte's tricycle turned over earlier, appellant walked towards a mango tree. Curious, Dela Cruz followed him. Dela Cruz saw appellant hitting Fuentes on the head with his gun. She was lying down face up, groaning. Dela Cruz admonished and pushed appellant away, telling him to have pity on Fuentes. Since he did not want to get involved further nor did he want to. see any more of what appellant was up to, Dela Cruz walked back to the tricycle He took a last look back and saw appellant getting something from the pocket of Fuentes and putting it inside the pocket of his chaleco. Soon enough, appellant caught up with Dela Cruz and Yael as they were about to leave and they all went back to Kingsmen Building.

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"Dela Cruz finally found Banzon at the third floor of the building and informed her that he was going to bring her home already. She passed by the ladies' room while he stood watch outside. Appellant arrived and told Dela Cruz and Banzon that they had to talk inside the ladies' room. He was giving Dela Cruz and Banzon P600.00 each, but they declined to accept the money. Appellant threatened Dela Cruz not to squeal whatever he knows or appellant will kill him and his family. When appellant insisted in giving the money, Dela Cruz took it only to place it on the sink, then, he and Banzon left. "Dela Cruz and Banzon were leaving for her boarding house aboard Yael's tricycle when appellant caught up with them again and ordered Yael to first take him to Ceres terminal. As they passed the Tumbokan Memorial Hospital, they came across Barte driving his tricycle. After signaling for Barte to stop, appellant gave him money. Dela Cruz and Banzon quickly transferred to Barte's tricycle since Yael still had to take appellant to the terminal. In the course of the transfer to the other tricycle, appellant placed something inside the pocket of Dela Cruz who thought nothing of it as he was in a hurry to go home. In Banzon's boarding house, Dela Cruz found out that what appellant had put in his pocket was a blood-stained necklace wrapped in a piece of paper. Banzon also showed him a bag she found at the place where Barte's tricycle turned turtle. Dela Cruz planned to return the necklace and the bag the next day. "In the evening of June 5, 1995, Dela Cruz reported for work. Appellant asked him for the necklace so that he could pawn it. Dela Cruz, however, was unable to give the necklace back because in the morning of June 6, 1995, the police raided the boarding house of Banzon. Among those confiscated by the police was his wallet where he placed the necklace. The police invited Dela Cruz to the police station to shed light on what he knew about a murder committed in Magdalena Village. The police had earlier confirmed an anonymous call that a dead woman was found at New Buswang. Twelve 100-peso bills were found at the scene, as well as a broken windshield that was traced to the tricycle rented by Barte to appellant. The dead person was identified as Fuentes by her daughter, Analiza Fuentes Pronton. Thus, Dela Cruz revealed everything that appellant had done. The police asked Dela Cruz to go with them to Lalab, Bataan where appellant was arrested. Appellant was then brought to the Kalibo Police Station for investigation."5 Carlos Feliciano, in his testimony, denied the asseverations of state witness de la Cruz. He claimed that the accusations were motivated out of pure spite and revenge borne of the hostility between them due to work-related differences. An altercation arose between him and de la Cruz two months before the incident, on 06 April 1995, when a customer had complained to the Kingsmen Building manager that the toolbox of his tricycle, parked near the building, was missing. The manager then ordered Feliciano to go to the parking lot and summon de la Cruz. Feliciano r reported back to say that he did not find de la Cruz in his designated

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post, a fact that de la Cruz later resented. The next incident happened the following month. On the evening of 01 May 1995, Myca Banson, the live-in girlfriend of de la Cruz, was to be "taken out" by a customer. Feliciano upon orders of the management, refused de la Cruz entry within the premises of the pub house, in order to avoid any possible trouble, which culminated in a physical tussle between the two men and ended with de la Cruz aiming his gun at Feliciano. The third incident occurred when a motorcycle parked at the Kingsmen parking lot could not be located and de la Cruz again was not at his post. Feliciano reported the matter to the manager and, two days later, de la Cruz was fired from work. Feliciano admitted having seen de la Cruz at about 9:30 on the evening of 04 June 1995 escorting Myca Banson to the pubhouse. De la Cruz stayed at the billiard house fronting Kingsmen, while waiting for Myca to finish work, often at 4:00 in the early morning of the next day. Feliciano said that he knew Ramon Barte, the driver, being a habitue of the Kingsmen premises. It was Barte who would often fetch Rodel de la Cruz and Myca Banson from work during early mornings. The defense placed at the stand two additional witnesses. Eduardo Magsangya, a cigarette vendor at the Ceres terminal, testified that on the late evening of 04 June 1995, de la Cruz went to see him at the Ceres Terminal to inquire whether Teresita Fuentes had already arrived. Magsangya responded in the negative. De la Cruz returned to the terminal looking for Teresita four times that night. Magsangya knew Teresita as being a biweekly passenger of the 2:00 a.m. bus for Iloilo and de la Cruz as a security guard at Kingsmen where he would at times sell his wares. Jefferson Arafol, a pahinante of Ideal Trucking, testified that at approximately 2:30 on the early morning of 05 June 1995, he and truck driver "Oca"," were transporting coconut lumber to Iloilo, when, at the vicinity of Magdalena Village, they spotted a tricycle running at high speed, eventually overtaking them. Its fast pace caused the vehicle to turn turtle. When Arafol approached, the tricycle diver, Rodel de la Cruz, pointed a gun at him and told him not to come any closer. Arafol was acquainted with Rodel de la Cruz and Carlos Feliciano because he frequented Kingsmen on Sundays after getting his salary. The pahinante saw two more persons with de la Cruz, one male and the other female Arafol was certain that the male companion of de la Cruz was not Carlos Feliciano. While de la Cruz was pointing his gun at him, his male companion was dragging an unidentified woman towards the nearby mango tree. When the trial concluded, the Regional Trial Court of Kalibo, Aklan, found for the prosecution and pronounced accused Carlos, Feliciano guilty beyond reasonable doubt of the crime of Robbery with Homicide and r sentenced him to suffer the extreme penalty of death — "WHEREFORE, finding the accused CARLOS FELICIANO Y MARCELINO guilty beyond reasonable doubt as principal by direct participation of the crime of Robbery with Homicide defined and penalized under paragraph 1 of Article 294 x x x, with three aggravating circumstances, the court hereby imposes upon the said accused the supreme penalty of DEATH and to indemnify the heirs of Teresita Fuentes the sum of P50,000.00.

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"The caliber .38 revolver Squires Bingham with SN #14223 (Exhibit J) used by Feliciano is hereby forfeited and confiscated in favor of the government to be disposed in accordance with law. "Costs against the accused."6 In an automatic review before this tribunal, appellant Carlos Feliciano raised the following assignment of errors — "I. "THE TRIAL COURT ERRED IN DISCHARGING THE ACCUSED RODEL DE LA CRUZ TO BE THE STATE WITNESS AGAINST CO-ACCUSED CARLOS FELICIANO DESPITE STRONG OBJECTIONS FROM THE DEFENSE. "II. "THE TRIAL COURT ERRED IN RELYING HEAVILY ON THE WELL-REHEARSED TESTIMONY OF PROSECUTION WITNESSES. "III 'THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT CARLOS FELICIANO FOR THE CRIME CHARGED IN THE INFORMATION DESPITE THE INSUFFICIENCY OF EVIDENCE AGAINST HIM."7 The Court is inclined to agree with appellant that state witness Rodel de la Cruz appears to be far from being the inculpable young man who has simply been an unwitting and reluctant accomplice to a gruesome crime. Several incidents militate against his innocence. The events, related by him, make tenuous the purported threat and intimidation exerted by appellant over him. The behavior of Rodel de la Cruz during and immediately after the crime could not be that of a threatened, frightened man. If he indeed wanted to escape, he had in his possession his own service gun, and he was in control of the tricycle. He had enough advantage and chances to escape, if he really wanted to, from Feliciano who was at that time engrossed at restraining a struggling victim. In fact, it was de la Cruz who was caught in the possession of the dead woman's necklace. Another damning evidence against de la Cruz was the letter introduced by police inspector Winnie Jereza, Chief of Intelligence of the Philippine National Police of Kalibo, Aklan, who, after taking the witness stand for the prosecution, testified for the defense. The letter, dated 02 June 1995, came from one Roger R. Zaradulla, proprietor of the Rheaza Security Agency, addressed to SPO3 Gregorio F. Ingenerio of the Kalibo Police Station, to the effect that the detail order of Rodel de la Cruz to the Kingsmen Disco pub had expired as of 31 May 1995. According to Zaradulla, de la Cruz was nowhere to be found and his whereabouts were

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unknown. Apprehensive that de la Cruz had gone on AWOL without first surrendering to the agency the firearm issued to him, Zaradulla sought the arrest of de la Cruz by the police. The evident attempt, nevertheless, of the accused turned state witness to mitigate his own culpability did not adversely affect his discharge nor did it render completely weightless the evidentiary value of his testimony. The rules of procedure allowing the discharge of an accused to instead be a witness for the state8 is not a home grown innovation but is one with a long and interesting history. It has its origins in the common law of ancient England where faithful performance of such an agreement with the Crown could entitle a criminal offender to an equitable right to a recommendation for executive clemency. The practice, soon recognized through widespread statutory enactments in offer jurisdictions, finally has found its way to our own criminal procedure in a short and compact military General Order No. 58 issued in 1900. Its adoption highlights the emphasis placed by the new system on the presumption of innocence in favor of the accused, on the requirement that the State must first establish its case beyond a reasonable doubt before an accused can be called upon to defend himself, and on the proscription against compelling an accused to be a witness against himself as well as against drawing inferences of guilt from his silence.9 Underlying the rule is the deep-lying intent of the State not to let a crime that has been committed go unpunished by allowing an accused who appears not to be the most guilty to testify, in exchange for an outright acquittal, against a more guilty co accused. It is aimed at achieving the greater purpose of securing the conviction of the most guilty and the greatest number among the accused for an offense committed.10 In this jurisdiction, it is the trial court judge who has the exclusive responsibility of ensuring that the conditions prescribed by the rules exist.11 This grant is not one of arbitrary discretion but rather a sound judicial prerogative to be exercised with due regard to the proper and correct dispensation of criminal justice.12 But that there would be the possibility of error on the part of the judge is understandable. A trial judge cannot be expected or required to inform himself with absolute certainty at the outset of the trial as to everything which may develop in the course of the trial in regard to the guilty participation of the accused in the commission of the crime charged in the complaint.13 If that were possible, the judge would conveniently rely on large part upon the suggestion and the information furnished by the prosecuting officer in coming to the conclusion as to the "necessity for the testimony of the accused whose discharge is requested, as to the "availability of other direct or corroborative evidence," and as to who among the accused is the "most guilty," and so the like.14 Then, there would be little need for the formality of a trial.15 Thus, here, even while one might be convinced that state witness Rodel de la Cruz would, on the basis of evidence ultimately submitted, appear to be equally as, and not less than, guilty in conspiracy with appellant Carlos Feliciano, the hands of the State are now stayed and the Court must assure the exemption of the witness from punishment.

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It is widely accepted that the discharge of an accused to become a state witness has the same effect as an acquittal. The impropriety of the discharge would not have any effect on the competency and quality of the testimony, nor would it have the consequence of withdrawing his immunity from prosecution. 16 A discharge, if granted at the stage where jeopardy has already attached, is equivalent to an acquittal, such that further prosecution would be tantamount to the state reneging on its part of the agreement and unconstitutionally placing the state witness in doubt jeopardy. The rule, of course, is not always irreversible. In an instance where the discharged accused fails to fulfill his part of the bargain and refuses to testify against his co-accused, the benefit of his discharge can be withdrawn and he can again be prosecuted for the same offense. In US vs. de Guzman,17 one of the earlier cases discussing this issue, Justice Carson had occasion to briefly touch on the immunity clauses in the Acts of the United States Congress and some States. In Wisconsin, the immunity clause contained a proviso providing that persons committing perjury when called upon to testify could be punished therefor.18 Oklahoma law suffered from the absence of any reservation; thus observed Justice Carson — "x x x We have no such reservation in our constitutional provision; and, as before said, if we should follow the precedents, when the witness does not speak the truth, the State would be left without redress, although the witness had violated the purpose and spirit of the constitution. We cannot believe that it was the purpose of the intelligent and justice-loving people of Oklahoma, when they voted for the adoption of the constitution, to grant immunity to any man, based upon a lie, or, in other words, that they intended that the commission of perjury should atone for an offense already committed. It is a familiar rule of common law, common sense, and common justice that a legal right cannot be based upon fraud. We therefore hold that the witness who claims immunity on account of selfincriminatory testimony which he had been compelled to give must act in good faith with the State, and must make truthful replies to the questions which are propounded to him, and which he had been compelled to answer, and that any material concealment or suppression of the truth on his part will deprive him of the immunity provided by the constitution; and the witness must testify to something which, if true, would tend to criminate him. This immunity is only granted to those who earn it by testifying in good faith. In our judgment any other construction would be an insult to and a libel upon the intelligence of the people of Oklahoma, an outrage on law, and a prostitution of justice."19 Despite an obvious attempt to downgrade his own participation in the crime, state witness de la Cruz, nevertheless, did not renege from his agreement to give a good account of the crime, enough to indeed substantiate the conviction of his co-accused, now appellant Carlos Feliciano, by the trial court. On significant points, the damaging testimony of de la Cruz against appellant was corroborated by Ruben Barte and Ramon Yael. On the night of the incident, Feliciano hired his vehicle and drove it himself while De la Cruz was seated on its passenger seat.

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When the two did not return at the appointed time, Barte asked Ramon Yael, another tricycle driver who happened to be at the Kingsmen parking area, to accompany him to look for them. Myca Banson decided to come with them. After a while, the trio spotted Barte's tricycle being driven by de la Cruz, and followed it. Barte testified how the first tricycle turned turtle at the junction towards Magdalena Village. When the tricycle tilted, he saw a person in red falling from the vehicle, while another person who was in white, lifted the first person. When the first tricycle precariously lurched, its occupants hurriedly abandoned the vehicle. The obfuscating foliage, however, blocked his view so Barte was not able to identify who was with appellant and de la Cruz nor ascertain where the two men were later headed. When the three of them approached the overturned tricycle they found no one. Near the vehicle, they saw an abandoned bag which Myca Banson hastily retrieved. While Barte struggled to turn his vehicle upright, Myca left with Ramon Yael. Later, while riding his vehicle on his way back, Ruben Barte was forced to stop because its engine stalled. While inspecting the tricycle engine, appellant and de la Cruz approached him, and the former told him not to worry as he would pay for the damages. After a while, at the parking lot of the Kingsmen Building, appellant told him to take his vehicle to a dark place where he wiped off the blood from the tricycle's seats. When they met again several hours later, appellant gave him P450.00 for the damages sustained by the vehicle. Much later, Yael handed him another P250.00 given by appellant as additional payment. Ruben Barte kept quiet about the incident because appellant warned him against reporting the matter to anyone. Ramon Yael corroborated the testimony of Barte, adding that while they were chasing appellant and de la Cruz, one of the two fired a gun in the air, constraining them to decrease their speed. Militating against the unbiased nature of the testimony of these two witnesses was their admission of having willingly accepted the blood money which appellant gave them that could well qualify them as being themselves accessories to the crime.20 Appellant Carlos Feliciano was not able to sufficiently dispute his participation therein. Neither his blanket denial nor his alibi, both inherently weak defenses, was amply proved. Article 294(1) of the Revised Penal Code as amended by Republic Act No. 7659, provides — "1. The penalty of reclusion perpetua to death [shall be imposed], when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson." (Emphasis supplied.) Given the evidence in this case, heretofore narrated, the Court is not convinced that the prosecution has succeeded in establishing beyond reasonable doubt any of the aggravating circumstances alleged in the information that can warrant the imposition of the maximum of the penalty prescribed by law. Evidence is wanting that appellant has especially sought nighttime to perpetrate the crime or that the criminal act has been preceded, required in evident premeditation, by cool thought and reflection. Not only is treachery an aggravating circumstance merely

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applicable to crimes against persons but neither also has the mode of attack on the victim of the robbery been shown to have been consciously adopted. WHEREFORE, the judgment of the court a quo is AFFIRMED except insofar as it imposed on appellant Carlos Feliciano the penalty of death which is hereby reduced to reclusion perpetua. Costs de oficio. SO ORDERED.

G.R. No. 124171

March 18, 2002

LETICIA R. MERCIALES, petitioner, vs. THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES, JOSELITO NUADA, PAT. EDWIN MORAL, ADONIS NIEVES, ERNESTO LOBETE, DOMIL GRAGEDA, and RAMON "POL" FLORES, respondents. YNARES-SANTIAGO, J.: Petitioner seeks the reversal of the Decision of the Court of Appeals 1 in CA-G.R. SP No. 37341, denying her petition to annul the Order of the Regional Trial Court of Legazpi City, Branch 8,2 in Criminal Case Nos. 6307-6312, which dismissed the charge of rape with homicide based on a demurrer to evidence filed by private respondents, accused therein. The antecedent facts as succinctly synthesized by the respondent court are as follows: On August 12, 1993, Criminal Case Nos. 6307, 6308, 6309, 6310, 6311, and 6312, for rape with homicide, in connection with the death of one Maritess Ricafort Merciales, were filed against the private respondents, Joselito Nuada, Pat. Edwin Moral, Adonis Nieves, Ernesto Lobete, Domil Grageda and Ramon "Pol" Flores, before the Regional Trial Court, Fifth Judicial Region, Legaspi City. The said cases were consolidated in Branch 8, presided over by the respondent judge. During the trial, after presenting seven witnesses, the public prosecutor filed a motion for the discharge of accused Joselito Nuada, in order that he may be utilized as a state witness. However, the prosecution contended that it was not required to present evidence to warrant the discharge of accused Nuada, since the latter had already been admitted into the Witness Protection Program of the Department of Justice. Consequently, the

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respondent judge denied the motion for discharge, for failure of the prosecution to present evidence as provided for by Section 9, Rule 119 of the 1985 Rules on Criminal Procedure. On December 22, 1993, the prosecution filed a petition 3 for certiorari [G.R. No. 113273-78] before the Supreme Court, questioning the respondent judge's denial of the motion to discharge the accused Nuada. Despite the fact that the petition did not contain a prayer for a temporary restraining order, the trial judge did not set the case for further hearing so as to give the prosecution time to secure such temporary restraining order from the Supreme Court. On July 13, 1994, herein private respondents filed a motion to set the case for hearing, invoking their constitutional right to speedy trial. The respondent judge granted the motion, and set the case for hearing on July 29, 1994. On the said date, the prosecution filed a motion for reconsideration, instead of presenting further evidence. The respondent Judge postponed the hearing and reset the same for August 9, 1994. On August 9, 1994, again the prosecution filed a motion for reconsideration, invoking its pending petition for certiorari with the Supreme Court. The private respondents, thru counsel, objected to any further resetting as this would constitute a violation of their right to a speedy trial. The respondent judge called for a recess so as to let the prosecution decide whether or not to present an NBI agent, who was then present, to prove the due execution of the accused Nuada's extrajudicial confession. However, after the recess, the public prosecutor declined to present the NBI agent, and instead manifested that he was not presenting any further evidence. The defense then moved that the cases be deemed submitted for decision, and asked leave of court to file a demurrer to evidence. On August 29, 1994, the Solicitor General filed [in G.R. No. 113273-78] a motion for issuance of a writ of preliminary injunction or temporary restraining order with the Supreme Court, to enjoin the respondent judge from proceeding with the resolution of the case. However, on September 19, 1994, the motion was denied by the Supreme Court. In due time, the accused filed their demurrer to evidence x x x.4 On October 21, 1994, the trial court issued the assailed Order, the dispositive portion of which reads: For lack of sufficient evidence to prove the guilt of the accused beyond reasonable doubt, all the accused in all these cases are hereby ACQUITTED and the cases filed against them are hereby DISMISSED. The accused in all

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these cases, being detention prisoners, are hereby ordered RELEASED from detention, unless they are being detained for some other legal cause. SO ORDERED.5 Petitioner Leticia Merciales, who is the mother of the victim in the said criminal cases, filed before the respondent Court of Appeals a petition to annul the foregoing Order of the trial court. However, the Court of Appeals dismissed the petition on October 4, 1995. A motion for reconsideration was denied on March 6, 1996. Hence, the instant petition based on the ground that: THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT REFUSED TO NULLIFY THE ORDER DATED OCTOBER 21, 1994 OF THE TRIAL COURT FOR BEING NULL AND VOID ON THE GROUND THAT THE TRIAL JUDGE TOLERATED AND/OR COMMITTED INJUSTICE BY FAILING TO REQUIRE THE PROSECUTION TO PRESENT ALL THEIR EVIDENCE INSTEAD OF SUPPRESSING THEM APPARENTLY TO FAVOR THE ACCUSED IN VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO DUE PROCESS, OUSTING THE TRIAL COURT OF ITS JURISDICTION.6 The case was set for oral argument on December 11, 2001. Counsel for petitioner and the Solicitor General appeared. During the oral argument, the Solicitor General manifested that he was joining the cause of petitioner in order to prevent a miscarriage of justice. The Court directed the parties to submit their respective memoranda in amplification of the points raised during the oral argument. Petitioner maintains that the reopening of the criminal case will not violate the accused's right to double jeopardy. More particularly, she ascribes prosecutorial and judicial misconduct in the undue haste which attended the prosecution's premature resting and the trial court's grant of the demurrer to evidence when the presentation of the evidence for the prosecution has not been completed. Private respondent Ramon Flores filed his Memorandum, arguing that petitioner, being the private complainant in the criminal case below, has no legal standing to appeal the acquittal of private respondents; that there was no extrinsic fraud, abuse of discretion or jurisdictional defect to warrant either a petition for annulment of judgment or certiorari; and that the reopening of the criminal case will violate the accused's right against double jeopardy. It is true that a private complainant cannot bring an action questioning a judgment of acquittal, except insofar as the civil aspect of the criminal case is concerned.7 In the case at bar, we agree with petitioner that this issue was rendered moot when the Solicitor General, in representation of the People, changed his position and joined the cause of petitioner, thus fulfilling the

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requirement that all criminal actions shall be prosecuted under the direction and control of the public prosecutor.8 In any event, petitioner has an interest in the maintenance of the criminal prosecution, being the mother of the deceased rape victim. The right of offended parties to appeal an order of the trial court which deprives them of due process has always been recognized, the only limitation being that they cannot appeal any adverse ruling if to do so would place the accused in double jeopardy.9 The criminal case below was for rape with homicide. Although the public prosecutor presented seven witnesses, none of these actually saw the commission of the crime. It was only Joselito Nuada, one of the accused, who came forward and expressed willingness to turn state witness. His testimony was vital for the prosecution, as it would provide the only eyewitness account of the accused's complicity in the crime. The trial court required the public prosecutor to present evidence to justify Nuada's discharge as a state witness, but the latter insisted that there was no need for such proof since Nuada had already been admitted into the Witness Protection Program of the Department of Justice. The public prosecutor's obstinate refusal to present the required evidence prompted the trial court to deny the motion to discharge Nuada. The prosecution elevated the matter to the Supreme Court on a petition for certiorari. Meanwhile, the accused moved to set the case for hearing, invoking their constitutional right to speedy trial. The trial court granted the motion. The public prosecutor moved for a continuance, and the trial court acceded. At the next scheduled hearing, however, the trial court denied a similar motion by the prosecution in view of the objection of the accused. The trial court directed the public prosecutor to present Atty. Carlos S. Caabay, the NBI Agent who took Nuada's extrajudicial confession. At the resumption of the hearing, the public prosecutor declared that he was resting the prosecution's case, knowing fully well that the evidence he has presented was not sufficient to convict the accused. Consequently, the ensuing demurrer to evidence filed by the accused was granted by the trial court. It is clear from the foregoing that the public prosecutor was guilty of serious nonfeasance. It is the duty of the public prosecutor to bring the criminal proceedings for the punishment of the guilty.10 Concomitant with this is the duty to pursue the prosecution of a criminal action and to represent the public interest. A crime is an offense against the State, and hence is prosecuted in the name of the People of the Philippines. For this reason, Section 5 of Rule 110 provides that "all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal x x x." As the representative of the State, the public prosecutor has the right and the duty to take all steps to protect the rights of the People in the trial of an accused.11 If the public prosecutor commits a nonfeasance in refusing to perform a specific duty imposed on him by law, he can be compelled by an action for mandamus.12

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In the case at bar, the public prosecutor knew that he had not presented sufficient evidence to convict the accused. Yet, despite repeated moves by the accused for the trial court to continue hearing the case, he deliberately failed to present an available witness and thereby allowed the court to declare that the prosecution has rested its case. In this sense, he was remiss in his duty to protect the interest of the offended parties. More specifically, the public prosecutor in this case was guilty of blatant error and abuse of discretion, thereby causing prejudice to the offended party. Indeed, the family of the deceased victim, Maritess Merciales, could do nothing during the proceedings, having entrusted the conduct of the case in the hands of the said prosecutor. All they could do was helplessly watch as the public prosecutor, who was under legal obligation to pursue the action on their behalf, renege on that obligation and refuse to perform his sworn duty. Indeed, Rule 119, Section 9 (now Section 17) of the Rules of Court expressly requires the presentation of evidence in support of the prosecution's prayer for the discharge of an accused to be a state witness, viz: When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, xxx xxx xxx. By refusing to comply with the trial court's order to present evidence, the public prosecutor grossly violated the above-quoted rule. Moreover, the public prosecutor violated his bounden duty to protect the interest of the offended party, at least insofar as the criminal aspect is concerned. After the trial court denied his motion to discharge Nuada as a state witness, he should have proceeded to complete the evidence of the prosecution by other means. Instead, he willfully and deliberately refused to present an available witness, i.e., the NBI Agent who was present in court on that date and time. The public prosecutor was duty-bound to exhaust all available proofs to establish the guilt of the accused and bring them to justice for their offense against the injured party. Likewise guilty for serious nonfeasance was the trial court. Notwithstanding its knowledge that the evidence for the prosecution was insufficient to convict, especially after the public prosecutor tenaciously insisted on utilizing Nuada as state witness, the trial court passively watched as the public prosecutor bungled the case. The trial court was well aware of the nature of the testimonies of the seven prosecution witnesses that have so far been presented. Given this circumstance, the trial court, motu proprio, should have called additional witnesses for the purpose of questioning them himself in order to satisfy his mind with reference to particular facts or issues involved in the case.13 Based on the foregoing, it is evident that petitioner was deprived of her day in court. Indeed, it is not only the State, but more so the offended party, that is entitled to due process in criminal cases. Inasmuch as the acquittal of the

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accused by the court a quo was done without regard to due process of law, the same is null and void. It is as if there was no acquittal at all, and the same cannot constitute a claim for double jeopardy.14 By contending that the challenged Decision is void for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, the petition does not violate the right of the accused against double jeopardy. It is elementary that double jeopardy attaches only when the following elements concur: (1) the accused are charged under a complaint or information sufficient in form and substance to sustain their conviction; (2) the court has jurisdiction; (3) the accused have been arraigned and have pleaded; and (4) they are convicted or acquitted, or the case is dismissed without their consent. Thus, even assuming that a writ of certiorari is granted, the accused would not be placed in double jeopardy because, from the very beginning, the lower tribunal had acted without jurisdiction. Precisely, any ruling issued without jurisdiction is, in legal contemplation, necessarily null and void and does not exist.15 Otherwise put, the dismissal of the case below was invalid for lack of a fundamental prerequisite, that is, due process.16 In rendering the judgment of dismissal, the trial judge in this case acted without or in excess of jurisdiction, for a judgment which is void for lack of due process is equivalent to excess or lack of jurisdiction.17Indeed, "jurisdiction" is the right to hear and determine, not to determine without hearing.18 Lack of jurisdiction is one of the grounds for the annulment by the Court of Appeals of judgments or final orders and resolutions of Regional Trial Courts.19 Hence, the remedy taken by petitioner before the Court of Appeals was correct. WHEREFORE, in view of the foregoing, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 37341 is REVERSED AND SET ASIDE. The Order dismissing Criminal Case Nos. 6307-6312 is ANNULLED, and this case is REMANDED to the Regional Trial Court of Legazpi City, Branch 8, for further proceedings. The public prosecutor is ORDERED to complete the presentation of all available witnesses for the prosecution. SO ORDERED.

[G. R. No. 143547. June 26, 2002] JOEY POTOT y SURIO, petitioner, vs. PEOPLE OF THE PHILIPPINES and LOLITO DAPULAG, respondents.

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SANDOVAL-GUTIERREZ, J.: After the accused has filed with the trial court a manifestation that he is not appealing its Decision convicting him of homicide and that he is ready to serve his sentence, can the same court, upon motion by the private complainant with the conformity of the public prosecutor, set aside the said judgment and remand the records of the case to the Office of the Provincial Prosecutor for re-evaluation of the evidence and the filing of the corresponding charge? This is the issue raised in the instant petition for review on certiorari. Joey S. Potot, petitioner, was charged with homicide in Criminal Case No. 2739 before the Regional Trial Court (RTC), Branch 19, Catarman, Northern Samar. The information against him, filed on December 12, 1999, alleges: That on or about the 2nd day of November, 1999, at about 3:00 oclock in the early morning in the public cemetery of the Municipality of Mondragon, Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a knife locally called dipang, with deliberate intent to kill and without justifiable cause, did then and there wifully, unlawfully and feloniously attack, assault and stab RODOLFO DAPULAG @ PILI with the use of said weapon which the accused had provided himself for the purpose, thereby inflicting upon said Rodolfo Dapulag @ Pili a mortal wound which caused the death of said victim. CONTRARY TO LAW. [1] Upon arraignment on February 1, 2000, wherein the information was read to him in his own dialect, petitioner, assisted by counsel, pleaded guilty to the charge.[2] Forthwith, he invoked not only the mitigating circumstance of plea of guilty, but also the circumstance of voluntary surrender since, as shown in the records, he surrendered voluntarily to the Philippine National Police (PNP) Headquarters immediately after the commission of the crime. The public prosecutor did not raise any objection. Instead, he manifested that there is no aggravating circumstance which attended the commission of the crime. Thereupon, the trial court, after being satisfied that petitioner understood the meaning and consequences of his plea of guilty, rendered and promulgated its Decision[3] in open court convicting him of homicide, with the mitigating circumstances of plea of guilty and voluntary surrender appreciated in his favor. The dispositive portion of the Decision reads: WHEREFORE, the Court accepts the plea of guilty of Joey Potot y Sorio, and finds him guilty beyond reasonable doubt of the crime of homicide, and appreciating in his favor the mitigating circumstances of plea of guilty and voluntary surrender, with no aggravating circumstance in attendance, and applying the Indeterminate Sentence Law, sentences him to suffer an imprisonment ranging

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from two (2) years four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum; to indemnify the heirs of Rodolfo Dapulag y Conge, also known as Pili, in the amount of P50,000.00; and to pay the costs. The period during which the accused has undergone preventive imprisonment shall be deducted in full from the foregoing sentences involving deprivation of liberty should the records reveal that he expressly agreed in writing to abide by the same rules and regulations governing convicted prisoner during his entire detention period and if the records show that he is entitled to the privilege under the law. SO ORDERED.[4] On February 3, 2000, petitioner, through counsel, filed a manifestation with motion[5] informing the trial court that he is not appealing from the Decision and praying that a commitment order be issued so he could immediately serve his sentence. Attached to the motion is petitioner's letter to the court stating that he does not intend to appeal from its Decision.[6] However, on February 11, 2000, the private complainant, Rosalie Dapulag (wife of the victim), filed through counsel, a motion for reconsideration/retrial [7] praying that the Decision be set aside and that the case be heard again because there were irregularities committed before and during the trial which caused miscarriage of justice. The motion, which bears the conformity of the public prosecutor, alleges, among others, that: The true facts surrounding the commission of the crime as revealed by the eyewitnesses, EDUARDO BOYSON and JIMUEL MARQUITA, on December 8, 1999 is that RODOLFO DAPULAG, private offended partys deceased husband, was killed on that fateful morning by accused JOEY POTOT with the aid of DOMING JARILLA and MARLITO NAZAM who respectively held the right and left arm of Rodolfo Dapulag to ensure the commission of the crime by accused Joey Potot. This information was deliberately withheld by the said eyewitnesses, especially EDUARDO BOYSON, during the investigation conducted by the police and the preliminary investigations conducted by the presiding judge of MCTC of Mondragon-San Roque and the Office of the Provincial Prosecutor upon the solicitations of Mayor Elito Dapulag, who in good faith believed that the inclusion of Doming Jarilla and Marlito Nazam would make the prosecution of the case more difficult. The eyewitnesses, who are likewise in the belief that indeed the inclusion of the above-named persons would complicate the case, withheld the said information until witness Jimuel Marquita revealed the same to the private offended party on December 8, 1999. The private offended party (not in her capacity as such, but as a citizen) has the right to demand from the State the punishment of heinous crimes in accordance

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with law. And such right is now in jeopardy of being lost for some causes not attributable to her. Hereto attached and made integral parts hereof are the affidavits of eyewitnesses JIMUEL MARQUITA and EDUARDO BOYSON. (Emphasis supplied) Petitioner opposed[8] the motion, asserting that there was no irregularity in the preliminary investigation of the case and in the proceedings before the trial court; and that the decision can no longer be modified or set aside because it became final when he formally waived his right to appeal. The trial court, in its order dated May 3, 2000,[9] granted private complainant's motion and set aside its February 1, 2000 Decision as proceeding from a rigged, hence, sham hearing. It likewise ordered that the records of the case be remanded to the Office of the Provincial Prosecutor for re-evaluation of the evidence and to file the corresponding charge, thus: From the records are gathered that the case, as originally referred to the Municipal Circuit Trial Court, was for murder. In the conduct of the preliminary investigation, said court determined that a prima faciecase exists and recommended the accused be held for trial on the charge. In his resolution reviewing the records of the preliminary investigation conducted by the municipal court, the prosecutor entirely missed discussion of the participation of two others allegedly in conspiracy with the accused. The exclusion of the two others identified as Doming Jarilla and Marlito Nazam was orchestrated by the Municipal Mayor who, in good faith, prevailed upon the witnesses not to implicate them. To these foregoing, the Provincial Prosecutor is in conformity. Accordingly, the Branch Clerk of Court shall remand the records hereof to the Office of the Provincial Prosecutor for re-evaluation of the evidence and to file the corresponding charge supported by the same.The motion or manifestation requesting for the issuance of a commitment order filed by the defense is DENIED. SO ORDERED. Petitioner filed a motion for reconsideration[10] contending that the trial court has no jurisdiction to issue the February 1, 2000 order as the Decision had become final, and that the said order would place the accused in double jeopardy. In the order of May 26, 2000,[11] the trial court denied the motion for reconsideration for the reason that the State is not bound by the error or negligence of its prosecuting officers, hence, jeopardy does not attach. Petitioner now assails the orders of May 3 and 26, 2000. The Solicitor General agrees with the petitioner that the challenged orders should be set aside and that the February 1, 2000 Decision should be reinstated. [12] We find the petition meritorious.

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Section 7, Rule 120 of the Revised Rules on Criminal Procedure, as amended, provides: SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation. (7a) (Emphasis ours) It is thus clear that only the accused may ask for a modification or setting aside of a judgment of conviction. And this he must do before the said judgment becomes final or before he perfects his appeal.Such judgment becomes final in any of the following ways: (a) when no appeal is seasonably filed by the accused, except in case of automatic review of the decision imposing the capital penalty;[13] (b) when he has partially or totally served his sentence; (c) when he expressly waives his right to appeal the judgment, except when the death penalty is imposed; or (d) when he applies for probation. When one of these circumstances is present, the trial court which rendered the judgment of conviction loses jurisdiction to alter, modify or revoke it.[14] It is an undisputed fact that on February 3, 2000, or three days after the promulgation of the judgment of conviction, petitioner filed a manifestation expressly waiving his right to appeal therefrom. His intention not to appeal is further indicated by his prayer in the same manifestation for the immediate issuance of a commitment order so he could serve his sentence. Such waiver has the effect of causing the judgment to become final and unalterable. [15] Thus, it was beyond the authority of the trial court to issue the order of May 3, 2000 setting aside its February 3, 2000 Decision which had attained finality. In Calalang vs. Register of Deeds of Quezon City[16] and in a long line of cases, this Court (En Banc) held that a judgment which has acquired the status of finality becomes immutable. Any error, assuming one was committed in the judgment, will not justify its amendment except only to correct clerical errors or mistakes. It is likewise procedurally impermissible for the trial court to grant private complainant's motion for reconsideration of its Decision. Section 1, Rule 121 of the same Rules provides: SECTION 1. New trial or reconsideration. - At any time before a judgment of conviction becomes final, the court may, on motion of the accused or at its own instance but with the consent of the accused, grant a new trial or reconsideration. (1a) (Emphasis ours) Since the motion for reconsideration of the judgment of conviction was not initiated by the accused (petitioner) or at the instance of the trial court with his consent, the same should have been denied outright as being violative of the above provision.

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At any rate, the records do not show any irregularity in the preliminary investigation of the case before the Provincial Prosecutors Office. The motion for reconsideration filed by the private complainant questions the (1) alleged failure of the Provincial Prosecutor to appreciate the sworn statements of two prosecution witnesses implicating two other individuals in the commission of the crime; and the (2) downgrading by the Provincial Prosecutor of the initial charge of murder to homicide. But the motion for reconsideration itself reveals that the supposed vital information from two witnesses implicating two other persons in the crime was deliberately withheld by the said witnesses during the police investigation and the preliminary investigation conducted by the MCTC Judge and the Office of the Provincial Prosecutor. Hence, the Provincial Prosecutor who reviewed the records could not have possibly appreciated the alleged vital facts. Besides, the complainant did not appeal from the Provincial Prosecutors finding of probable cause for the crime of homicide against petitioner. It bears stressing at this point that the public prosecutor has the quasi-judicial prerogative to determine what crime should be filed in court and who should be charged therefor. He always assumes and retains full discretion and control of the prosecution of all criminal actions. [17] As held by this Court in People vs. Vergara:[18] Section 5 of Rule 110 of the New Rules of Criminal Procedure expressly provides that [a]ll criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the fiscal. It must be remembered that as public prosecutor he is the representative not of the ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. Hence, the fiscal or public prosecutor always assumes and retains full direction and control of the prosecution of the case. The institution of a criminal action depends upon his sound discretion. He has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court; whether a prima facie case exists to sustain the filing of an Information; whether to include in the charge those who appear to be responsible for the crime; whether to present such evidence which he may consider necessary. (Emphasis ours) Finally, we agree with the petitioner that the assailed orders would violate his constitutional right against double jeopardy.[19] Such right prohibits any subsequent prosecution of any person for a crime of which he has previously been acquitted or convicted. The objective is to set the effects of the first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to the peril and anxiety of a second charge against him for the same offense.[20] To invoke the defense of double jeopardy, the following requisites must be present: (1) a valid complaint or information; (2) the court has jurisdiction to try the case; (3) the accused has pleaded to the charge; and (4) he has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent.[21]

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These requisites have been established. Records show that petitioner was charged with homicide in Criminal Case No. 2739 under a valid information before the trial court which has jurisdiction over it.He was arraigned and pleaded guilty to the charge. On the basis of his plea, petitioner was convicted and meted the corresponding penalty. As petitioner has been placed in jeopardy for the crime of homicide, he cannot be prosecuted anew for the same offense, or any offense which necessarily includes or is necessarily included in the first offense charged.[22] WHEREFORE, the instant petition is hereby GRANTED. The assailed orders dated May 3, 2000 and May 26, 2000 issued in Criminal Case No. 2739 by the trial court are SET ASIDE. Its Decision dated February 1, 2000 is REINSTATED. SO ORDERED.

[G.R. No. 141518. April 29, 2003]

PEOPLE

OF THE PHILIPPINES, appellee, vs. CLARENCE ASTUDILLO, CRISANTO ASTUDILLO, alias ANTENG or ENTENG, HILARIO ASTUDILLO, alias BODA, appellant.

YNARES-SANTIAGO, J.: This is an appeal from the decision[1] of the Regional Trial Court of Bangued, Abra, Branch 2, in Criminal Case No. 1698, convicting appellants Clarence Astudillo, Crisanto Astudillo and Hilario Astudillo of the crime of Murder; sentencing them to suffer the penalty reclusion perpetua and ordering them, jointly and severally, to pay damages to the heirs of the deceased, Silvestre Aquino, Jr. The Information filed against the appellants reads: That on or about November 12, 1995, at around 7:30 oclock in the evening at Zone 7, Municipality of Bangued, Province of Abra, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, with treachery and evident premeditation and while armed with a sharp-pointed instrument (unrecovered) did then and there, wilfully, unlawfully and feloniously stab one SILVESTRE AQUINO, JR., thereby inflicting multiple stab wounds on the different parts of his body, which caused his death and thereafter, the accused rode on an unregistered

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motorized tricycle (recovered) with Municipal Plate No. 7077, which they used in escaping from the crime scene. CONTRARY TO LAW.[2] Upon arraignment on November 21, 1995, appellants pleaded not guilty. [3] Trial on the merits thereafter ensued. The prosecutions account of the antecedent facts are as follows: At around 7:00 p.m., of November 12, 1995, brothers Clarence, Crisanto and Hilario Astudillo, went to house of Alberto Damian who was celebrating the eve of his birthday. Clarence greeted Alberto and thereafter asked the victim, Silvestre Aquino, who was one of the visitors, to go with him.[4] Silvestre acceded and the two walked towards Floras Store, where they were later joined by Crisanto and Hilario. While at the store, Crisanto and Silvestre had an argument.[5] At around that time, prosecution eyewitnesses Manuel Bareng and Eduardo Bata, 12 and 11 years of age, respectively, were selling balut in front of Floras Store. They saw Clarence stab Silvestre with a bolo while Crisanto and Hilario held him by the wrists. Clarence delivered several stab blows at the back and on the chest of the victim until the latter fell to the ground.Thereafter, the three appellants fled on board a tricycle.[6] Silvestre was rushed to the Municipal Health Office of Bangued, Abra, where he was pronounced dead on arrival. The Autopsy Report prepared by Dr. Milagros Cardenas-Burgos revealed that the victim sustained 15 stab wounds and 1 abrasion, as follows: EXTERNAL FINDINGS: Stab wound 2 cm., Antero-lateral aspect, neck, [r]ight Stab wound #2, penetrating 3 cm., each. Antero-lateral aspect, neck, left [2 cm.], penetrating , 3rd Intercostal space, paresternal area, left 2 cm., 7th mid axillary line, left 1.5 cm., anterior superior iliac spine, left 1.5 cm., upper outer quadrant, left 1.5 cm., Antero-lateral aspect, middle third thigh, left 2.0 cm., infrascapular area, left 3.0 cm., dorsolateral aspect, forearm, middle third, left 2 cm., dorsomidial aspect, forearm, middle third, left 2.0 cm., suprascapular area, right 1.5 cm., infrascapular area, paravertebral area, right 1.5 cm., paravertebral area, right 2.5 cm., Level of T8, midscapular area, right #2, 1.5-2.0 cm., lumbar area, paravertebral area, right

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Abrasion #2 1.0 2.0 cm., Level T7, paravertebral area, left and right INTERNAL FINDINGS: Pericardium, 1.5 liter LW, Right atrium traversing the right ventricle Hemothorax, left 1 liter LW, 1.0 cm., posterior lobe, lung left CAUSE OF DEATH: Cardiac Tamponade, secondary to Stab Wound.[7] On the other hand, the version of the defense is as follows: On November 12, 1995 at around 7:00 p.m., Clarence passed by the house of Alberto Damian where Silvestre and several others were playing cards. Silvestre offered Clarence a glass of gin, which he declined. Silvestre got embarrassed and cursed him so he decided to leave the house. However, Silvestre followed him in front of Floras Store and pushed him twice, causing him to fall on the ground. Then, Silvestre struck him on the head and arm with an empty one-liter softdrink bottle.[8] Hilario arrived and tried to pacify Silvestre but the latter attacked him. As he retreated, he saw a knife which he then swung at the victim. Silvestre was hit but continued to attack him.Left with no choice, Hilario stabbed Silvestre 2 or 3 times. When the latter collapsed to the ground, Hilario rushed to the succor of his elder brother, Clarence.[9] Meanwhile, Clarence suffered from shock and remained seated on the ground while their other brother, Crisanto, stood on the roadside and called for help.[10] The appellants left the scene on board a tricycle and proceeded to the house of Clarences in-laws. On the same night, they surrendered to the Philippine National Police, stationed at Bangued, Abra.[11] On March 16, 1998, the trial court rendered a decision convicting appellants of the crime of Murder qualified by abuse of superior strength.[12] Appellants filed a motion for reconsideration contending that the prosecution failed to prove their guilt beyond reasonable doubt and, assuming that it did, the qualifying circumstance of abuse of superior strength, not having been alleged in the information, cannot be appreciated against them. [13] Appellants motion for reconsideration was denied in an Order dated July 13, 1998.[14] However, an Amended Decision[15] was rendered where the phrase abuse of superior strength was replaced with TREACHERY in the body of the Decision and in the decretal portion thereof, which reads: WHEREFORE, the Court finds all the accused guilty beyond reasonable doubt of murder, defined and penalized under Article 248 of the Revised Penal Code as amended by Rep Act No. 7659, qualified by TREACHERY AND for having conspired together and helping one another to kill Silvestre Aquino, Jr., with the aggravating circumstance of use of motor vehicle, [which is] however, offset by the ordinary mitigating circumstance of voluntary surrender and sentences them to suffer the penalty of reclusion perpetua and to pay jointly and severally the heirs of Silvestre Aquino, Jr., the amount of P65,288.50 [as] actual damages, P50,000.00 for his death and suffering plus P500,000.00 [as] moral and exemplary damages and to pay the costs of this suit.

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SO ORDERED.[16] Hence, appellants interposed the instant appeal, raising the following errors: THE TRIAL COURT COMMITTED A REVERSIBLE ERROR WHEN IT DID NOT ACQUIT THE ACCUSED-APPELLANTS ON THE GROUND OF REASONABLE DOUBT. THE TRIAL COURT LIKEWISE COMMITTED A REVERSIBLE ERROR WHEN IT CONVICTED THE ACCUSED-APPELLANTS OF MURDER. THE TRIAL COURT FURTHER COMMITTED A REVERSIBLE ERROR AND ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT RENDERED THE SECOND DECISION DATED JULY 10, 1998. THE TRIAL COURT ALSO ERRED WHEN IT CONVICTED ALL THE ACCUSED-APPELLANTS. THE TRIAL COURT FURTHER ERRED WHEN IT RULED THE ACCUSED-APPELLANTS GUILTY OF CONSPIRACY AND SENTENCED THEM TO A UNIFORM PENALTY.[17] The resolution of the instant case hinges on the credibility of the witnesses. The settled rule is that the matter of assigning value to a declaration on the witness stand is more competently performed by a trial judge who had the front-line opportunity to personally evaluate the witnesses demeanor, conduct, and behavior while testifying. In the absence of a clear showing that some fact or circumstance of weight or substance had been overlooked, misunderstood or misapplied, the trial judges assessment of the witnesses testimonies shall not be disturbed on appeal. A careful review of the records of the case at bar shows that the trial court did not miss any such material circumstance, nor did it commit any palpable error in upholding the facts as established by the prosecution. We see no reason to doubt the positive and straightforward testimonies of the prosecution eyewitnesses, Manuel Bareng and Eduardo Bata, that the appellants ganged up on the defenseless victim. These witnesses were not shown to have been impelled by illmotive to falsely testify against the appellants, hence, their testimony is entitled to full faith and credit.[18] Moreover, the alleged inconsistencies between the testimony of the prosecution witnesses and their affidavit are too inconsequential to merit consideration. Specifically, appellants point to the failure of Eduardo Bata to state in his sworn statement that appellants Crisanto and Hilario restrained the victim while Clarence stabbed him, as well as the alleged unfamiliarity of prosecution witness Manny Bareng with the Ilocano words bagsol and binagsol (which mean stab and stabbed, respectively), in his sworn statement. Suffice it to state that inconsistencies between the sworn statement and direct testimony given in open court do not necessarily discredit the witness since an affidavit, being taken ex-parte, is oftentimes incomplete and is generally regarded as inferior to the testimony of the witness in open court. Judicial notice can be taken of the fact that testimonies given during trial are much more exact and elaborate than those stated in sworn statements, usually being incomplete and inaccurate for a variety of reasons, at times because of partial and innocent suggestions or for want of specific inquiries. Additionally, an extrajudicial statement or affidavit is generally not prepared by the affiant himself but by another who uses his own language in writing the affiants statement, hence, omissions and misunderstandings by the writer are

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not infrequent. Indeed, the prosecution witnesses direct and categorical declarations on the witness stand are superior to their extrajudicial statements. This is especially so because their testimony to the effect that Crisanto and Hilario held the victims wrists while Clarence stabbed him remained consistent even under crossexamination.[19] The trial court correctly rejected the appellants self-defense theory. When an accused invokes self-defense, he thereby admits authorship of the crime. The burden of proof is thus shifted on him to prove all the elements of self-defense, to wit: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to repel the aggression; and (3) lack of sufficient provocation on the part of the accused.[20] In the instant case, even if it was true that the initial act of aggression came from the deceased, still the appellants plea of self-defense will not prosper. As stated above, the evidence overwhelmingly shows that appellants Crisanto and Hilario were able to restrain the victim by the wrists. At that point, any unlawful aggression or danger on the lives of the appellants ceased, hence, it was no longer necessary for appellant Clarence to repeatedly stab the victim. Verily, their act could no longer be interpreted as an act of self-preservation but a perverse desire to kill.[21] Furthermore, the number of wounds sustained by the victim negates selfdefense. It certainly defies reason why the victim sustained a total of 15 wounds on the different parts of his body if appellants were only defending themselves. Parenthetically, the number of wounds was eloquently established by the physical evidence, which is a mute manifestation of truth and ranks high in the hierarchy of trustworthy evidence.[22] From the attendant circumstances, it is evident that appellants collective and individual act of holding the victims wrists and delivering several stab blows demonstrated the existence of their common design to kill the victim. Direct proof of an agreement concerning the commission of a felony and the decision to commit it is not necessary. Conspiracy, as in the instant case, can be inferred from the acts of the three appellants which clearly manifest a concurrence of wills and a common intent or design to commit a crime.[23] Anent the qualifying circumstance of treachery, we find no merit in appellants contention that the trial cannot validly appreciate the same in its amended decision because the attendance of treachery was not one of the issues raised in their motion for reconsideration. Otherwise stated, appellants posit that the reconsideration of the judgment of conviction should be limited only to the issues raised in their motion for reconsideration, i.e., their guilt or innocence and/or the propriety of appreciating the qualifying circumstance of abuse of superior strength which was not alleged in the information. Under Rule 121, Section 1 of the Revised Rules on Criminal Procedure, [24] a motion for reconsideration of a judgment of conviction may be filed by the accused, or initiated by the court, with the consent of the accused. Likewise, under Rule 120, Section 7,[25] a judgment of conviction may be modified or set aside only upon motion of the accused.[26] These provisions changed the previous rulings [27] of the Court to the effect that such modification may be made upon motion of the fiscal, provided the same is made before a judgment has become final or an

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appeal has been perfected.[28] The requisite consent of the accused to such motion for reconsideration or modification is intended to protect the latter from having to defend himself anew from more serious offenses or penalties which the prosecution or the court may have overlooked.[29] Accordingly, once the judgment has been validly promulgated, any reconsideration or amendment to correct a manifest substantial error, even if unwittingly committed by the trial court through oversight or an initially erroneous comprehension, can be made only with the consent or upon the instance of the accused. Errors in the decision cannot be corrected unless the accused consents thereto, or himself moves for reconsideration of, or appeals from, the decision.[30] It must be stressed, however, that the protection against double jeopardy in the foregoing rules may be waived by the accused. Thus, when the accused himself files or consents to the filing of a motion for reconsideration or modification, double jeopardy cannot be invoked because the accused waived his right not to be placed therein by filing such motion.[31] His motion gives the court an opportunity to rectify its errors or to reevaluate its assessment of facts and conclusions of law and make them conformable with the statute applicable to the case in the new judgment it has to render.[32] The raison detre is to afford the court a chance to correct its own mistakes and to avoid unnecessary appeals from being taken.[33] In effect, a motion for reconsideration or modification filed by or with consent of the accused renders the entire evidence open for the review of the trial court without, however, conducting further proceedings, such as the taking of additional proof. Clearly, therefore, appellants cannot dictate upon the trial court which aspects of the judgment of conviction should be reviewed. Having filed a timely motion for reconsideration asking the court to acquit, or in the alternative, convict them of the lesser offense of homicide, appellants waived the defense of double jeopardy and effectively placed the evidence taken at the trial open for the review of the trial court. At any rate, the issue of the attendant qualifying circumstance in the case at bar was squarely raised by the appellants in their alternative prayer for conviction for the lesser offense of homicide in view of the erroneous appreciation of the qualifying circumstance of abuse of superior strength which was not alleged in the information.Hence, the court a quo is not only empowered but also under obligation to rectify its mistake in appreciating the qualifying circumstance of abuse of superior strength instead of treachery.Verily, it is precluded from considering the attendance of a qualifying circumstance if the complaint or information did not allege such facts.[34] Even before the Revised Rules on Criminal Procedure [35] took effect on December 1, 2000, qualifying circumstances were required to be so specified in the complaint or information, otherwise they cannot be appreciated against the accused. In order that treachery may be considered, the following requisites must concur: (1) the employment of means, method or manner of execution which would ensure the safety of the malefactor from defensive or retaliatory acts on the part of the victim, no opportunity being given to the latter to defend himself or to retaliate; and (2) the means, method, or manner of execution were deliberately or consciously adopted by the offender.[36] Here, it is clear that treachery qualified the killing of the deceased to murder, considering that the appellants deliberately

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restrained the victim so as to enable one of them to successfully deliver the stab blows without giving the latter a chance to defend himself or to retaliate. As regards the generic aggravating circumstance of use of motor vehicle, the trial court erred in appreciating the same inasmuch as the prosecution failed to show that the tricycle was deliberately used by the appellants to facilitate the commission of the crime or that the crime could not have been committed without it. The use of motor vehicle is not aggravating where the use thereof was merely incidental and was not purposely sought to facilitate the commission of the offense or to render the escape of the offender easier and his apprehension difficult. [37] The mitigating circumstance of voluntary surrender was correctly appreciated in favor of appellants. To benefit an accused, the following requisites must be proven, namely: (1) the offender has not actually been arrested; (2) the offender surrendered himself to a person in authority; and (3) the surrender was voluntary. A surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either because he acknowledges his guilt, or he wishes to save them the trouble and expense necessarily incurred in his search and capture.[38] In the case at bar, appellants voluntarily surrendered to the authorities on the same night of the incident when they learned that the authorities were looking for them.[39] Though they did not give a statement regarding the stabbing incident, the mitigating circumstance of voluntary surrender should nonetheless be considered in their favor. What matters is that they spontaneously, voluntarily and unconditionally placed themselves at the disposal of the authorities. This act of respect for the law indicates a moral disposition favorable to their reform.[40] Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, Murder is punishable by reclusion perpetua to death. With no generic aggravating circumstance and one generic mitigating circumstance of voluntary surrender, the penalty imposable on the appellants, in accordance with Article 63 (3) of the Revised Penal Code, should be the minimum period, which is reclusion perpetua.[41] With respect to the civil liability of the appellants, the award of moral and exemplary damages cannot be lumped together as was done by the trial court. These kinds of damages are different in nature, and require separate determination. Moral damages are awarded where the claimant experienced physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury as a result of the felonious act.[42] The award of exemplary damages, on the other hand, is warranted when the commission of the offense is attended by an aggravating circumstance, whether ordinary or qualifying. In People v. Catubig,[43] we explained: The term aggravating circumstances used by the Civil Code, the law not having specified otherwise, is to be understood in its broad or generic sense. The commission of an offense has a two-pronged effect, one on the public as it breaches the social order and the other upon the private victim as it causes personal sufferings, each of which is addressed by, respectively, the prescription of heavier punishment for the accused and by an award of additional damages to

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the victim. The increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by the attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability which is basically a State concern, the award of damages, however, is likewise, if not primarily, intended for the offended party who suffers thereby. It would make little sense for an award of exemplary damages to be due the private offended party when the aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code.[44] As testified to by the widow of the deceased, the death of her husband brought grief and emotional suffering to their family.[45] Hence, they are entitled to moral damages in the amount of P50,000.00, pursuant to current jurisprudence.[46] Likewise, the presence of the qualifying circumstance of treachery in the killing of the deceased justifies the award of P25,000.00 as exemplary damages.[47] The award of actual damages should also be modified. In order that actual damages may be recovered, the amount actually expended in connection with the death of the victim must be substantiated with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party. In the instant case, the records show that the amount of P65,288.50 awarded by the trial court as actual damages is not fully substantiated by receipts.[48] However, as the heirs of the deceased actually incurred funeral expenses, they are entitled to temperate damages.[49] In the recent case of People v. Abrazaldo,[50] we ruled that where the amount of actual damages cannot be determined because of absence or lack of receipts to prove the amount claimed, temperate damages in the amount of P25,000.00 should be awarded. Finally, the civil indemnity in the amount of P50,000.00 is affirmed. In murder, the grant of civil indemnity which has been fixed by jurisprudence at P50,000.00, requires no proof other than the fact of death as a result of the crime and proof of the accuseds responsibility therefor.[51] WHEREFORE, in view of all the foregoing, the Decision of the Regional Trial Court of Bangued, Abra, Branch 2, in Criminal Case No. 1698, finding appellants, Clarence Astudillo, Crisanto Astudillo @ Anteng or Enteng, and Hilario Astudillo @ Boda, guilty beyond reasonable doubt of the crime of murder and sentencing them to suffer the penalty of reclusion perpetuais AFFIRMED with MODIFICATION as to the civil liability. As modified, appellants are ordered, jointly and severally, to pay the heirs of the deceased, Silvestre Aquino, Jr., the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00 as temperate damages, and P25,000.00 as exemplary damages. Costs de oficio. SO ORDERED.

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RIGHT AGAINST EX POST FACTO LAW AND BILL OF ATTAINDER [G.R. Nos. 61776 to 61861. March 23, 1984.] REYNALDO R. BAYOT, Petitioner, v. SANDIGANBAYAN (SECOND DIVISION) and PEOPLE OF THE PHILIPPINES, Respondents. Renato J. Bihasa for Petitioner. The Solicitor General for Respondents. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; EX POST FACTO LAW; LAWS PROVIDING FOR SUSPENSION FROM OFFICE OF PUBLIC OFFICERS PENDING TRIAL, NOT IN VIOLATION OF CONSTITUTION. — There is no merit in petitioner’s contention that Section 13 of Republic Act 3019, as amended by Batas Pambansa Blg. 195, which includes the crime of Estafa thru Falsification of Public Document as among the crimes subjecting the public officer charged therewith with suspension from office pending action in court, is a penal provision which violates the constitutional prohibition against the enactment of ex post facto law. 2. CRIMINAL LAW; CRIMES COMMITTED BY PUBLIC OFFICERS; SUSPENSION FROM OFFICE PENDING TRIAL; APPLICABILITY THEREOF TO ANY OFFICE WHICH THE OFFICER CHARGED MAY BE HOLDING CASE AT BAR. — The claim of petitioner that he cannot be suspended because he is presently occupying a position different from that under which he is charged is untenable. The amendatory provision clearly states that any incumbent public officer against whom any criminal prosecution under a valid information under Republic Act 3019 or for any offense involving fraud upon the government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Thus, by the use of the word "office" the same applies to any office which the officer charged may be holding, and not only the particular office under which he was charged. DECISION RELOVA, J.: Petitioner Reynaldo R. Bayot is one of the several persons accused in more than one hundred (100) counts of Estafa thru Falsification of Public Documents before the Sandiganbayan. The said charges stemmed from his alleged involvement, as a

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government auditor of the Commission on Audit assigned to the Ministry of Education and Culture, together with some officers/employees of the said Ministry, the Bureau of Treasury and the Teacher’s Camp in Baguio City, in the preparation and encashment of fictitious TCAA checks for non-existent obligations of the Teacher’s Camp resulting in damage to the government of several million pesos. The first thirty-two (32) cases were filed on July 25, 1978. In the meantime, petitioner ran for the post of municipal mayor of Amadeo, Cavite in the local elections held in January 1980. He was elected. On May 30, 1980, the Sandiganbayan promulgated a decision convicting herein petitioner and some of his co-accused in all but one of the thirty-two (32) cases filed against them. Whereupon, appeals were taken to this Court and the cases are now pending review in G.R. Nos. L-54645-76. However, on March 16, 1982, Batas Pambansa Blg. 195 was passed amending, among others, Section 13 of Republic Act No. 3019. The said section, as amended, reads — "Sec. 13. Suspension of and Loss of Benefits. — Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment he shall lose all retirement or gratuity benefits under any law, but if acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings had been filed against him."cralaw virtua1aw library Thereafter, in other cases pending before the respondent court in which herein petitioner is one of the accused, the prosecution filed a motion to suspend all the accused-public officers pendente lite from their respective offices or any other public office which they may be occupying pending trial of their cases.chanrobles.com.ph : virtual law library On July 22, 1982, respondent court issued an order directing the suspension of all the accused including herein petitioner "from their public positions or from any other public office that they may be holding . . ." (p. 26, Rollo). Herein petitioner filed a motion for reconsideration alleging that "to apply the provision of Batas Pambansa Blg. 195 to the herein accused would be violative of the constitutional guarantee of protection against an ex post facto law" (p. 28, Rollo). The motion was denied by respondent court in a resolution dated September 6, 1982. Hence, this petition for certiorari. It is the submission of petitioner that respondent court acted without jurisdiction or in excess of jurisdiction amounting to lack of jurisdiction or with grave abuse of discretion in suspending petitioner from office as Mayor of Amadeo, Cavite,

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pendente lite because — 1. Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, as amended by Batas Pambansa Blg. 195, is a penal statute in which case the provision of said Act must be strictly construed in favor of the accused and against the State; 2. A close perusal of Batas Pambansa Blg. 195, as well as the proceedings therein of the Batas Pambansa is absent of the legislative intent to have said Batas Pambansa Blg. 195 applied retroactively; 3. In the supposition that Batas Pambansa Blg. 195 is to be applied retroactively, its application would violate the Constitutional provision against enactment of ex post facto law; and, 4. Petitioner cannot be suspended to the position of which he was duly elected by the people of Amadeo, Cavite, based on an act which has nothing to do with his present position. We find no merit in petitioner’s contention that Section 13 of Republic Act 3019, as amended by Batas Pambansa Blg. 195, which includes the crime of Estafa thru Falsification of Public Document as among the crimes subjecting the public officer charged therewith with suspension from office pending action in court, is a penal provision which violates the constitutional prohibition against the enactment of ex post facto law. Paragraph 3 of Article 24 of the Revised Penal Code clearly states that suspension from the employment or public office during the trial or in order to institute proceedings shall not be considered as penalty. It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension. Those mentioned in paragraph Nos. 1, 3 and 4 of said Article 24 are merely preventive measures before final judgment. Not being a penal provision, therefore, the suspension from office, pending trial, of the public officer charged with crimes mentioned in the amendatory provision committed before its effectivity does not violate the constitutional provision on ex post facto law. Further, the claim of petitioner that he cannot be suspended because he is presently occupying a position different from that under which he is charged is untenable. The amendatory provision clearly states that any incumbent public officer against whom any criminal prosecution under a valid information under Republic Act 3019 or for any offense involving fraud upon the government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Thus, by the use of the word "office" the same applies to any office which the officer charged may be holding, and not only the particular office under which he was charged. ACCORDINGLY, instant petition for certiorari is hereby DISMISSED for lack of merit. SO ORDERED.

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G.R. Nos. L-32613-14 December 27, 1972 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias "Taba," respondents. CASTRO, J.:p I. Statement of the Case Posed in issue in these two cases is the constitutionality of the Anti-Subversion Act,1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who "knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party or of any other similar "subversive" organization. On March 5, 1970 a criminal complaint for violation of section 4 of the AntiSubversion Act was filed against the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against Co, directed the Government prosecutors to file the corresponding information. The twiceamended information, docketed as Criminal Case No. 27, recites: That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, feloniously became an officer and/or ranking leader of the Communist Party of the Philippines, an outlawed and illegal organization aimed to overthrow the Government of the Philippines by means of force, violence, deceit, subversion, or any other illegal means for the purpose of establishing in the Philippines a totalitarian regime and placing the government under the control and domination of an alien power, by being an instructor in the Mao Tse Tung University, the training school of recruits of the New People's Army, the military arm of the said Communist Party of the Philippines. That in the commission of the above offense, the following aggravating circumstances are present, to wit: (a) That the crime has been committed in contempt of or with insult to public authorities;

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(b) That the crime was committed by a band; and afford impunity. (c) With the aid of armed men or persons who insure or afford impunity. Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder. Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an information was filed, which, as amended, reads: The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated by the Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac, pursuant to the Order dated June 5, above entitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER MELODY and several JOHN DOES, whose identities are still unknown, for violation of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law, committed as follows: That in or about March 1969 and for sometime prior thereto and thereafter, in the Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in the Philippines, the above-named accused knowingly, willfully and by overt acts organized, joined and/or remained as offices and/or ranking leaders, of the KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto, knowingly, willfully and by over acts joined and/or remained as a member and became an officer and/or ranking leader not only of the Communist Party of the Philippines but also of the New People's Army, the military arm of the Communist Party of the Philippines; and that all the above-named accused, as such officers and/or ranking leaders of the aforestated subversive organizations, conspiring, confederating and mutually helping one another, did then and there knowingly, willfully and feloniously commit subversive and/or seditious acts, by inciting, instigating and stirring the people to unite and rise publicly and tumultuously and take up arms against the government, and/or engage in rebellious conspiracies and riots to overthrow the government of the Republic of the Philippines by force, violence, deceit, subversion and/or other illegal means among which are the following: 1. On several occasions within the province of Tarlac, the accused conducted meetings and/or seminars wherein the said accused delivered speeches instigating and inciting the people to unite, rise in arms and overthrow the Government of the Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal means; and toward this end, the said accused organized, among others a chapter of

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the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed purpose of undertaking or promoting an armed revolution, subversive and/or seditious propaganda, conspiracies, and/or riots and/or other illegal means to discredit and overthrow the Government of the Republic of the Philippines and to established in the Philippines a Communist regime. 2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above subversive and/or seditious activities in San Pablo City by recruiting members for the New People's Army, and/or by instigating and inciting the people to organize and unite for the purpose of overthrowing the Government of the Republic of the Philippines through armed revolution, deceit, subversion and/or other illegal means, and establishing in the Philippines a Communist Government. That the following aggravating circumstances attended the commission of the offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft, fraud, or disguise was employed. On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denied him the equal protection of the laws. Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970, declared the statute void on the grounds that it is a bill of attainder and that it is vague and overboard, and dismissed the informations against the two accused. The Government appealed. We resolved to treat its appeal as a special civil action for certiorari. II. Is the Act a Bill of Attainder? Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall be enacted."2 A bill of attainder is a legislative act which inflicts punishment without trial.3 Its essence is the substitution of a legislative for a judicial determination of guilt.4 The constitutional ban against bills of attainder serves to implement the principle of separation of powers 5 by confining legislatures to rule-making 6 and thereby forestalling legislative usurpation of the judicial function.7 History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, 8 and it is against this evil that the constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute as a bill of attainder. 9 In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder because it "tars and feathers" the Communist Party of the

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Philippines as a "continuing menace to the freedom and security of the country; its existence, a 'clear, present and grave danger to the security of the Philippines.'" By means of the Act, the trial court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of attainder because it has expressly created a presumption of organizational guilt which the accused can never hope to overthrow." 1. When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the Philippines or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4, against membership in the outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other organization having the same purpose and their successors." Its focus is not on individuals but on conduct. 10 This feature of the Act distinguishes it from section 504 of the U.S. Federal LaborManagement Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and therefore unconstitutional. Section 504 provided in its pertinent parts as follows: (a) No person who is or has been a member of the Communist Party ... shall serve — (1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization. during or for five years after the termination of his membership in the Communist Party.... (b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than one year, or both. This statute specified the Communist Party, and imposes disability and penalties on its members. Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or a member of the governing body of any labor organization. As the Supreme Court of the United States pointed out: Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause to

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enact legislation designed to keep from positions affecting interstate commerce persons who may use of such positions to bring about political strikes. In section 504, however, Congress has exceeded the authority granted it by the Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes) shall not hold union office, and leaves to courts and juries the job of deciding what persons have committed the specified acts or possessed the specified characteristics. Instead, it designates in no uncertain terms the persons who possess the feared characteristics and therefore cannot hold union office without incurring criminal liability — members of the Communist Party. Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S CT 1357, lend a support to our conclusion. That case involved an appeal from an order by the Control Board ordering the Communist Party to register as a "Communist-action organization," under the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communist-action organization" which the Board is to apply is set forth in sec. 3 of the Act: [A]ny organization in the United States ... which (i)is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 of this title, and(ii) operates primarily to advance the objectives of such world Communist movement... 64 Stat 989, 50 USC sec. 782 (1958 ed.) A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that sec. 3 does not specify the persons or groups upon which the deprivations setforth in the Act are to be imposed, but instead sets forth a general definition. Although the Board has determined in 1953 that the Communist Party was a "Communist-action organization," the Court found the statutory definition not to be so narrow as to insure that the Party would always come within it: In this proceeding the Board had found, and the Court of Appeals has sustained its conclusion, that the Communist Party, by virtud of the activities in which it now engages, comes within the terms of the Act. If the Party should at anytime choose to abandon these activities, after it is once registered pursuant to sec. 7, the Act provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683) Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more, would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial

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that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing Government by force deceit, and other illegal means and place the country under the control and domination of a foreign power. As to the claim that under the statute organizationl guilt is nonetheless imputed despite the requirement of proof of knowing membership in the Party, suffice it to say that is precisely the nature of conspiracy, which has been referred to as a "dragneet device" whereby all who participate in the criminal covenant are liable. The contention would be correct if the statute were construed as punishing mere membership devoid of any specific intent to further the unlawful goals of the Party. 13 But the statute specifically required that membership must be knowing or active, with specific intent to further the illegal objectives of the Party. That is what section 4 means when it requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully and by overt acts." 14 The ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt acts." 15 This constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The former requires proof of direct participation in the organization's unlawful activities, while the latter requires proof of mere adherence to the organization's illegal objectives. 2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render it a bill of attainder. A statute prohibiting partners or employees of securities underwriting firms from serving as officers or employees of national banks on the basis of a legislative finding that the persons mentioned would be subject to the temptation to commit acts deemed inimical to the national economy, has been declared not to be a bill of attainder. 16 Similarly, a statute requiring every secret, oath-bound society having a membership of at least twenty to register, and punishing any person who becomes a member of such society which fails to register or remains a member thereof, was declared valid even if in its operation it was shown to apply only to the members of the Ku Klux Klan. 17 In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to file with the Department of Labor affidavits of union officers "to the effect that they are not members of the Communist Party and that they are not members of any organization which teaches the overthrow of the Government by force or by any illegal or unconstitutional method," was upheld by this Court. 19 Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. 20 It is upon this ground that statutes which disqualified those who had taken part in the rebellion against the Government of the United States during the Civil War from holding office, 21 or from exercising their profession, 22 or which prohibited the payment of further compensation to individuals named in the Act on the basis of a finding that they

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had engages in subversive activities, 23 or which made it a crime for a member of the Communist Party to serve as an officer or employee of a labor union, 24 have been invalidated as bills of attainder. But when the judgment expressed in legislation is so universally acknowledged to be certain as to be "judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed fairly to make such determination. 25 In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every secret, oath-bound society with a membership of at least twenty to register, and punishing any person who joined or remained a member of such a society failing to register. While the statute did not specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the statute against the claim that it discriminated against the Ku Klux Klan while exempting other secret, oath-bound organizations like masonic societies and the Knights of Columbus, the United States Supreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. The Court said: The courts below recognized the principle shown in the cases just cited and reached the conclusion that the classification was justified by a difference between the two classes of associations shown by experience, and that the difference consisted (a) in a manifest tendency on the part of one class to make the secrecy surrounding its purpose and membership a cloak for acts and conduct inimical to personal rights and public welfare, and (b) in the absence of such a tendency on the part of the other class. In pointing out this difference one of the courts said of the Ku Klux Klan, the principal association in the included class: "It is a matter of common knowledge that this organization functions largely at night, its members disguised by hoods and gowns and doing things calculated to strike terror into the minds of the people;" and later said of the other class: "These organizations and their purposes are well known, many of them having been in existence for many years. Many of them are oath-bound and secret. But we hear no complaint against them regarding violation of the peace or interfering with the rights of others." Another of the courts said: "It is a matter of common knowledge that the association or organization of which the relator is concededly a member exercises activities tending to the prejudice and intimidation of sundry classes of our citizens. But the legislation is not confined to this society;" and later said of the other class: "Labor unions have a recognized lawful purpose. The benevolent orders mentioned in the Benevolent Orders Law have already received legislative scrutiny and have been granted special privileges so that the legislature may well consider them beneficial rather than harmful agencies." The third court, after recognizing "the potentialities of evil in secret societies," and observing that "the danger of certain organizations has been judicially demonstrated," — meaning in that state, — said: "Benevolent orders, labor unions and college fraternities have existed for

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many years, and, while not immune from hostile criticism, have on the whole justified their existence." We assume that the legislature had before it such information as was readily available including the published report of a hearing, before a committee of the House of Representatives of the 57th Congress relating to the formation, purposes and activities of the Klu Klux Klan. If so it was advised — putting aside controverted evidence — that the order was a revival of the Ku Klux Klan of an earlier time with additional features borrowed from the Know Nothing and the A. P. A. orders of other periods; that its memberships was limited to native-born, gentile, protestant whites; that in part of its constitution and printed creed it proclaimed the widest freedom for all and full adherence to the Constitution of the United States; in another exacted of its member an oath to shield and preserve "white supremacy;" and in still another declared any person actively opposing its principles to be "a dangerous ingredient in the body politic of our country and an enemy to the weal of our national commonwealth;" that it was conducting a crusade against Catholics, Jews, and Negroes, and stimulating hurtful religious and race prejudices; that it was striving for political power and assuming a sort of guardianship over the administration of local, state and national affairs; and that at times it was taking into its own hands the punishment of what some of its members conceived to be crimes. 27 In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. 28 In 1969 we again found that the objective of the Party was the "overthrow of the Philippine Government by armed struggle and to establish in the Philippines a communist form of government similar to that of Soviet Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30 we noted the growth of the Communist Party of the Philippines and the organization of Communist fronts among youth organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines. 3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly objectionable because of its ex post facto features. This is the historic explanation for uniting the two mischiefs in one clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill of attainder it is also an ex post facto law. But if it is not an ex

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post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of attainder." 31 Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the Charter of the City of Los Angeles which provided: ... [N]o person shall hold or retain or be eligible for any public office or employment in the service of the City of Los Angeles, in any office or department thereof, either elective or appointive, who has within five (5) years prior to the effective date of this section advised, advocated, or taught, or who may, after this section becomes effective, become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches or has within said period of five (5) years advised, advocated, or taught the overthrow by force or violence of the Government of the United States of America or of the State of California. In upholding the statute, the Court stressed the prospective application of the Act to the petitioner therein, thus: ... Immaterial here is any opinion we might have as to the charter provision insofar as it purported to apply restrospectively for a five-year period to its effective date. We assume that under the Federal Constitution the Charter Amendment is valid to the extent that it bars from the city's public service persons who, subsequently to its adoption in 1941, advise, advocate, or reach the violent overthrow of the Government or who are or become affiliated with any group doing so. The provisions operating thus prospectively were a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty to the State and the United States. ... Unlike the provisions of the charter and ordinance under which petitioners were removed, the statute in the Lovett case did not declare general and prospectively operative standards of qualification and eligibility for public employment. Rather, by its terms it prohibited any further payment of compensationto named individuals or employees. Under these circumstances, viewed against the legislative background, the statutewas held to have imposed penalties without judicial trial. Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy, them it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct and that the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect to the U.S. Federal Subversive Activities ControlAct of 1950: Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct which it regulates is describedwith such particularity

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that, in probability, few organizationswill come within the statutory terms. Legislatures may act tocurb behaviour which they regard as harmful to the public welfare,whether that conduct is found to be engaged in by manypersons or by one. So long as the incidence of legislation issuch that the persons who engage in the regulated conduct, bethey many or few, can escape regulation merely by altering thecourse of their own present activities, there can be no complaintof an attainder. 33 This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof expressly statesthat the prohibition therein applies only to acts committed"After the approval of this Act." Only those who "knowingly,willfully and by overt acts affiliate themselves with,become or remain members of the Communist Party of thePhilippines and/or its successors or of any subversive association"after June 20, 1957, are punished. Those whowere members of the Party or of any other subversive associationat the time of the enactment of the law, weregiven the opportunity of purging themselves of liability byrenouncing in writing and under oath their membershipin the Party. The law expressly provides that such renunciationshall operate to exempt such persons from penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable. III. The Act and the Requirements of Due Process 1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of the Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to provide the basis for a legislativefinding of guilt of the members of the Party butrather to justify the proscription spelled out in section 4. Freedom of expression and freedom of association are sofundamental that they are thought by some to occupy a"preferred position" in the hierarchy of constitutional values. 35 Accordingly, any limitation on their exercise mustbe justified by the existence of a substantive evil. This isthe reason why before enacting the statute in question Congressconducted careful investigations and then stated itsfindings in the preamble, thus: ... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in fact an organized conspiracyto overthrow the Government of the Republic of the Philippinesnot only by force and violence but also by deceit, subversionand other illegal means, for the purpose of establishing in thePhilippines a totalitarian regime subject to alien dominationand control; ... [T]he continued existence and activities of the CommunistParty of the Philippines constitutes a clear, present andgrave danger to the security of the Philippines; ... [I]n the face of the organized, systematice and persistentsubversion, national in scope but international in direction,posed by the Communist Party of the Philippines and its activities,there is urgent need for special

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legislation to cope withthis continuing menace to the freedom and security of the country. In truth, the constitutionality of the Act would be opento question if, instead of making these findings in enactingthe statute, Congress omitted to do so. In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed to takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul Freund elucidatesthe crucial distinction, thus: ... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol would raise a question of legislativefact, i.e., whether this standard has a reasonable relationto public health, morals, and the enforcement problem. Alaw forbidding the sale of intoxicating beverages (assuming itis not so vague as to require supplementation by rule-making)would raise a question of adjudicative fact, i.e., whether thisor that beverage is intoxicating within the meaning of the statuteand the limits on governmental action imposed by the Constitution. Of course what we mean by fact in each case is itselfan ultimate conclusion founded on underlying facts and oncriteria of judgment for weighing them. A conventional formulation is that legislative facts — those facts which are relevant to the legislative judgment — will not be canvassed save to determine whether there is a rationalbasis for believing that they exist, while adjudicativefacts — those which tie the legislative enactment to the litigant — are to be demonstrated and found according to the ordinarystandards prevailing for judicial trials. 36 The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio." The recital of legislative findings implements this test. With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities Control Actof 1950 (that "Communist-action organizations" are controlledby the foreign government controlling the worldCommunist movement and that they operate primarily to"advance the objectives of such world Communist movement"),the U.S. Supreme Court said: It is not for the courts to reexamine the validity of theselegislative findings and reject them....They are the productof extensive investigation by Committes of Congress over morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We certainly cannot dismiss them as

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unfoundedirrational imaginings. ... And if we accept them, as we mustas a not unentertainable appraisal by Congress of the threatwhich Communist organizations pose not only to existing governmentin the United States, but to the United States as asovereign, independent Nation. ...we must recognize that thepower of Congress to regulate Communist organizations of thisnature is extensive. 39 This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-Subversion Act. That the Government has a right to protect itself againstsubversion is a proposition too plain to require elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes every other value, "forif a society cannot protect its very structure from armedinternal attack, ...no subordinate value can be protected" 40 As Chief Justice Vinson so aptly said in Dennis vs. United States: 41 Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion against dictatorial governmentsis without force where the existing structure of government provides for peaceful and orderly change. We rejectany principle of governmental helplessness in the face of preparationfor revolution, which principle, carried to its logical conclusion,must lead to anarchy. No one could conceive that it isnot within the power of Congress to prohibit acts intended tooverthrow the government by force and violence. 2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof), Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be legitimate and substantial,that purpose cannot be pursued by means that broadly stiflefundamental personal liberties when the end can be more narrowly achieved." 42 The requirement of knowing membership,as distinguished from nominal membership, hasbeen held as a sufficient basis for penalizing membershipin a subversive organization. 43 For, as has been stated: Membership in an organization renders aid and encouragement to the organization; and when membership is acceptedor retained with knowledge that the organization is engaged inan unlawful purpose, the one accepting or retaining membershipwith such knowledge makes himself a party to the unlawfulenterprise in which it is engaged. 44 3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of "overthrow"of the Government and overthrow may be achieved by peaceful means, misconceives the function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a legislative declaration; the definitionsof and the penalties prescribed for the different acts prescribedare stated in section 4 which requires that membershipin the Communist Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first "whereas" clause makes clear thatthe overthrow

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contemplated is "overthrow not only by forceand violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in section 2 appearsto be due more to an oversight rather than to deliberateomission. Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only in a metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law does not speak in metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow" in a metaphorical sense is hardlyconsistent with the clearly delineated objective of the "overthrow,"namely, "establishing in the Philippines a totalitarianregime and place [sic] the Government under thecontrol and domination of an alien power." What thisCourt once said in a prosecution for sedition is appropos: "The language used by the appellant clearly imported anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious sense in which it wasevidently intended to be understood. The word 'overthrow'could not have been intended as referring to an ordinarychange by the exercise of the elective franchise. The useof the whip [which the accused exhorted his audience to useagainst the Constabulary], an instrument designed toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which the appellant wouldhave us impute to the language." 45 IV. The Act and the Guaranty of Free Expression As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence orother illegal means. Whatever interest in freedom of speechand freedom of association is infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is so indirect and so insubstantial as to beclearly and heavily outweighed by the overriding considerationsof national security and the preservartion of democraticinstitutions in his country. The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership provision ofthe Anti-Subversion Act. The former provides: Whoever organizes or helps or attempts to organize anysociety, group, or assembly of persons who teach, advocate, orencourage the overthrow or destruction of any such governmentby force or violence; or becomes or is a member of, or affiliatedwith, any such society, group or assembly of persons, knowingthe purpose thereof — Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both, and shall be ineligible for emplymentby the United States or any department or agencythereof, for the five years next following his conviction.... 46 In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47

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It was settled in Dennis that advocacy with which we arehere concerned is not constitutionally protected speech, and itwas further established that a combination to promote suchadvocacy, albeit under the aegis of what purports to be a politicalparty, is not such association as is protected by the firstAmendment. We can discern no reason why membership, whenit constitutes a purposeful form of complicity in a group engagingin this same forbidden advocacy, should receive anygreater degree of protection from the guarantees of that Amendment. Moreover, as was held in another case, where the problemsof accommodating the exigencies of self-preservationand the values of liberty are as complex and intricate as inthe situation described in the legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the legislative judgment as to how that threat may best bemet consistently with the safeguards of personal freedomsis not to be set aside merely because the judgment of judgeswould, in the first instance, have chosen other methods. 48 For in truth, legislation, "whether it restrains freedom tohire or freedom to speak, is itself an effort at compromisebetween the claims of the social order and individual freedom,and when the legislative compromise in either case isbrought to the judicial test the court stands one step removedfrom the conflict and its resolution through law." 49 V. The Act and its Title The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill." 50 What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4 which reads: And provided, finally, That one who conspires with anyother person to overthrow the Government of the Republic ofthe Philippines, or the government of any of its political subdivisionsby force, violence, deceit, subversion or illegal means,for the purpose of placing such Government or political subdivisionunder the control and domination of any lien power, shallbe punished by prision correccional to prision mayor with allthe accessory penalties provided therefor in the same code. It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of the Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the national or any local governmentby illegal means, even if their intent is not to establisha totalitarian regime, burt a democratic regime, evenif their purpose is not to place the nation under an aliencommunist power, but under an alien democratic power likethe United States or England or Malaysia or even an anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia."

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The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title. Section 1 providesthat "This Act shall be known as the Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates that the subject matter is subversionin general which has for its fundamental purpose the substitutionof a foreign totalitarian regime in place of theexisting Government and not merely subversion by Communistconspiracies.. The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of the Act. 51 It is a valid title if it indicates in broad but clear termsthe nature, scope, and consequences of the proposed lawand its operation. 52 A narrow or technical construction isto be avoided, and the statute will be read fairly and reasonablyin order not to thwart the legislative intent. We holdthat the Anti-Subversion Act fully satisfies these requirements. VI. Conclusion and Guidelines In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize the needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive area of freedom of expressionand belief. Accordingly, we set the following basic guidelines to be observed in any prosecution under the Act.The Government, in addition to proving such circumstancesas may affect liability, must establish the following elementsof the crime of joining the Communist Party of the Philippinesor any other subversive association: (1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that thepurpose of the organization is to overthrow the presentGovernment of the Philippines and to establish in thiscountry a totalitarian regime under the domination of aforeign power; (b) that the accused joined such organization;and (c) that he did so knowingly, willfully and byovert acts; and (2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of the Government by illegalmeans for the purpose of placing the country under thecontrol of a foreign power; (b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovert acts. We refrain from making any pronouncement as to thecrime or remaining a member of the Communist Party ofthe Philippines or of any other subversive association: weleave this matter to future determination. ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases are herebyremanded to the court a quo for trial on the merits. Costs de oficio.

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Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur. Concepcion, C.J., concurs in the result. Makasiar and Antonio, JJ., took no part. Separate Opinions FERNANDO, J., dissenting: It is with regard that I find myself unable to join therest of my brethren in the decision reached upholding thevalidity of the Anti-Subversion Act.1 It is to be admittedthat the learned and scholarly opinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe constitutional issues raised. What is more, the stressin the concluding portion thereof on basic guidelines thatwill assure in the trial of those prosecuted under suchAct respect for their constitutional rights is to be commended.Nonetheless, my own reading of the decisionscited, interpreting the bill of attainder clause2 coupled withthe fears, perhaps induced by a too-latitudinarian constructionof the guarantees of freedom of belief and expression3 as well as freedom of association 4 as to impermissible inroadsto which they may be exposed, compels a differentconclusion. Hence this dissent. 1. There is to be sure no thought on my part that theequally pressing concern of state safety and security shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a justifiable indictment fornegligence had they been remiss in their obligation tosafeguard the nation against its sworn enemies. In a simplerera, where the overthrow of the government wasusually through the rising up in arms, with weapons farless sophisticated than those now in existence, there wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty and weakening the senseof allegiance have introduced complexities in coping withsuch problems. There must be then, and I am the firstto recognize it, a greater understanding for the governmentalresponde to situations of that character. It is inthat light that the validity of the Anti-Subversion Act isto be appraised. From ny standpoint, and I am not presumptuousenough to claim that it is the only perspectiveor that is the most realistic, I feel that there was an insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all that it would mean is that anew legislation, more in comformity to my way of thinkingto what is ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained thenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversive activities, in whateverform manifested. 2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning attachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As was explained by the then Delegate, later

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Justice, Jose P. Laurel in his address on November19, 1934 as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without hearing the witnesses againsthim and without regard to the rules of evidence. His bloodwas attainted or corrupted, rendering him devoid of allheritable quality — of acquiring and disposing property bydescent. (Ex parteGarland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was includedin a bill of attainder presented to Parliament becauseof his reform activities." 5 Two American SupremeCourt decision were thus in the minds of the framers.They are Cummings v. Missouri 6 and Ex parte Garland. 7 They speak unequivocally. Legislative acts, no matter whattheir form, that apply either to named individuals or easilyascertainable members of a group in such a way as to inflicton them punishment amounting to a deprivation ofany right, civil or political, without judicial trial are billsof attainder prohibited by the Constitution. 8 Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers, and otherprofessionals must disavow that they had ever, "by act orword," manifested a "desire" for the success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil War. If they swore falsely, they were guilty of perjury.If they engaged in their professions without theoath, they were criminally liable. The United States Supreme Court condemned the provision as a bill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The deprivation of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which inflicts punishment without a judicialtrial. If the punishment be less than death, the actis termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder include bills ofpains and penalties. In these cases the legislative body, inaddition to its legitimate functions, exercises the powersand office of judge; it assumes, in the language of thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any of the forms or safeguardsof trial; it determines the sufficiency of the proofs produced,whether conformable to the rules of evidence orotherwise; and it fixes the degree of punishment in accordancewith its own notions of the enormity of the offense. ... If the clauses of the 2d article of the Constitutionof Missouri, to which we have referred, had in termsdeclared that Mr. Cummings was guilty, or should be heldguilty, of having been in armed hostility to the UnitedStates, or of having entered that state to avoid beingenrolled or drafted into the military service of the UnitedStates, and, therefore, should be deprived of the right topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be no question thatthe clauses would constitute a bill of attainder within themeaning of the Federal Constitution. If these clauses, insteadof mentioning his name, had declared that all priestsand clergymen within the state of Missouri were guiltyof

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these acts, or should be held guilty of them, and hencebe subjected to the like deprivation, the clause would beequally open to objection. And further, it these clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no less within the inhibition of the Federal Constitution.In all these cases there would be the legislativeenactment creating the deprivation, without any of theordinary forms and guards provided for the security ofthe citizen in the administration of justice by the establishedtribunales." 10 On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also decided. Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court. Petitioner Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules of such Court, all that was necessarywas that the applicant have three years practice in the statecourts to which he belonged. In March 1865, the rule waschanged by the addition of a clause requiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that such candidate for admission to the barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland could not in conscience subscribeto such an oath, but he was able to show a presidentialpardon extended on July 15, 1865. With such actof clemency, he moved that he be allowed to continue inpractice contending that the test oath requirement wasunconstitutional as a bill of attainder and that at any rate,he was pardoned. The same ruling was announced by theCourt again through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it imposes a punishmentfor some of the acts specified which were not punishableat the time they were committedl; and for other of the actsit adds a new punishment to that before prescribed, andit is thus brought within the further inhibition of the Consitutionagainst the passage of an ex post facto law. Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length the meaning of abill of attainder and of an ex post facto law in the clauseof the Constitution forbidding their passage by the states,and it is unnecessary to repeat here what we there said.A like prohibition is contained in the Constitution againstenactments of this kind by Congress; and the argumentpresented in that case against certain clauses of the Constitutionof Missouri is equally applicable to the act ofCongress under consideration in this case." 12 There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided in 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had been for several yearsworking for the government. The government agencies,which had lawfully employed them, were fully satisfiedwith the quality of their work and wished to keep thememployed on their jobs. Over their protest, Congress providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943, by way of an amendment attached to theHouse Bill, that after November 15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafter appropriated except for services as jurorsor members of the armed forces, unless they wereprior to November 15, 1943, again appointed to jobs bythe President with the advide and consent of the Senate.Notwithstanding such Congressional enactment, and thefailure of the President to reappoint the respondents, theagencies, kept all the

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respondents at work on their jobs forvarying periods after November 15, 1943, but their compensationwas discontinued after that date. Respondentsbrought this action in the Court of Claims for the salariesto which they felt entitled. The Ameican Supreme Courtstated that its inquiry was thus confined to whether theaction in the light of proper construction of the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder insofar as the respondents wereconcerned. After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of Congressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post Law shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a legislative act which inflicts punishmentwithout a judicial trial. If the punishment be lessthan death, the act is termed a bill of pains and penalties.Within the meaning of the Constitution, bills of attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided, the Court, in Exparte Garland, also held invalid on the same grounds anAct of Congress which required attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has ever been overruled. They stand for the propositionthat legislative acts, no matter what their form,that apply either to named individuals or to easily ascertainablemembers of a group in such a way as to inflictpunishment on them without a judicial trial are billsof attainder prohibited by the Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it." 14 United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the Labor-ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the Communist Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of a labor union. Respondent Brown, a longshoremanon the San Francisco docks, and an open andavowed Communist, for more than a quarter of a centurywas elected to the Executive Board of Local 10 of theInternational Longshoremen's and Warehousemen's Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a one-countindictment returned in a district court of California withservicing as a member of an executive board of a labororganization while a member of the Communist Party, inwillful violation of the above provision. The question ofits validity under the bill of attainder clause was thusproperly raised for adjudication. While convicted in thelower court, the Court of Appeals for the Ninth Circuitreversed. It was sustained by the American SupremeCourt. As noted in the opinion by Chief Justice Warren,"the wide variation in form, purpose and effect of anteConstitutionbills of attainder indicates that the properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the evils it was desinged to eliminate.The best available evidence, the writings of the architectsof our constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a narrow, technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation of the separation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or more simply — trial

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by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief Justice Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under theCommerce Clause to enact legislation designed to keepfrom positions affecting interstate commerce persons whomay use such positions to bring about political strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it by the Constitution. The statute does not setforth a generally applicable rule decreeing that any personwho commits certain acts or possesses certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiate political strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what persons have committed the specifiedacts or possessed the specified characteristics. Instead,it designates in no uncertain terms the personswho possess the fearec characteristics and therefore cannothold union office without incurring criminal liability — members of the Communist Party." 17 Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-manmajority, did indicate adherence to the Cummingsprinciple. Had the American Communist Party been outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill of attainder. It attaches notto specified organizations but to described activities inwhich an organization may or may not engage. The singlingout of an individual for legislatively prescribed punishmentconstitutes an attainder whether the individualis called by name or described in terms of conduct which,because it is past conduct, operates only as a designationof particular persons. ... The Subversive Activities ControlAct is not of that king. It requires the registrationonly of organizations which, after the date of the Act,are found to be under the direction, domination, or controlof certain foreign powers and to operate primarily toadvance certain objectives. This finding must be madeafter full administrative hearing, subject to judicial reviewwhich opens the record for the reviewing court'sdetermination whether the administrative findings as tofact are supported by the preponderance of the evidence.Present activity constitutes an operative element to whichthe statute attaches legal consequences, not merely a pointof reference for the ascertainment of particularly personsineluctably designated by the legislature." 19 The teaching of the above cases, which I find highlypersuasive considering what appeared to be in the mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the Anti-SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three subsequent cases upholding theCummings and Garland doctrine were likewise cited in theopinion of the Court. The interpretation accorded to themby my brethren is, of course, different but I am unable togo along with them especially in the light of the categoricallanguage appearing in Lovett. This is not to lose sightof the qualification that for them could deprive such aholding of its explicit character as shown by this excerptfrom the opinion of the Court: "Indeed, were the AntiSubversionAct a bill of attainder it would be totally unnecessaryto charge

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communists in court, as the law alone,without more, would suffice to secure their conviction andpunishment. But the fact is that their guilt still has to bejudicially estblished. The Government has yet to proveat the trial that the accused joined the Party knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversive character and with specific intentto further its objective, i.e., to overthrow the existing Governmentby force, deceit, and other illegal means and placeit under the control and domination of a foreign power. 20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a criminal prosecution ofthe Catholic priest who refused to take the loyalty oath.Again in Brown, there was an indictment of the laborleader who, judging by his membership in the CommunistParty, did transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If the constructionI would place on theoff-repeated pronouncementof the American Supreme Court is correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute. It does seem clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw the Communist Party of the Philippines and similar associations,"not to mention other specific provisions, the taintof invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder. 3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the intellectual libertysafeguarded by the Constitution in terms of the free speechand free assocition guarantees. 21 It is to be admitted thatat the time of the enactment of Republic Act No. 1700,the threat that Communism, the Russian brand then, didpose was a painful reality for Congressional leaders andthe then President. Its shadow fell squarely across thelives of all. Subversion then could neither be denied notdisparaged. There was, in the expert opinion of those conversantwith such mattes, a danger to out national existenceof no mean character. Nonetheless, the remedies toward off such menace must not be repugnant to our Constitution.We are legally precluded from acting in anyother way. The apprehension justly felt is no warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to be, but not at the expense of constitutional ideals. One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ, evenobject; one can express dissatisfaction with things as theyare. There are timew when one not only can but must.Such dissent can take the form of the most critical andthe most disparaging remarks. They may give offense tothose in authority, to those who wield powe and influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content of such dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to such as are devoid of too much significance.It can reach the heart of things. Such dissentmay, for those not so adventurous in the realm of ideas,possess a subversive tinge. Even those who oppose a democraticform of government cannot be silenced. This is trueespecially in centers of learning where scholars competentin their line may, as a result of their studies, assert thata future is bleak for the system of government now favoredby Western democracies. There may be doubts entertainedby some as to the lawfulness of their exercisingthis right

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to dissent to the point of advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk of a penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If there be any among us who would wish todissolve this union or to change its republican form, letthem stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook: "Without holding the right to theexpression of heresy at any time and place to be absolute — for even the right to non-heretical speech cannot beabsolute — it still seems wise to tolerate the expression evenof Communist, fascist and other heresies, lest in outlawingthem we include other kings of heresies, and deprive ourselvesof the opportunity to acquite possibly sounder ideasthan our own." 23 The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of seditionor rebellion. The state has been reached, to follow theformulation of Cardozo, where thought merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the Constitution. It does not bar the expressionof views affecting the very life of the state, even ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter of fact, that unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty. Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly stifle fundamental personalliberties when the end can be more narrowly achieved.For precision of regulation is the touchstone in an areaso closely related to our most precious freedoms." 24 This is so for "a governmental purpose to control or prevent activities constitutionally subject to state regulation may notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of protected freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute be avoided. If such be the case, then theline dividing the valid from the constitutionally infirm hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the AntiSubversion Act. There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist Party casediscussed above. What is to be kept in view is that a legislativemeasure certainly less drastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of this noted jurist offensive to the FirstAmendment of the American Constitution safeguardingfree speech. Thus: "If there is one thing certain aboutthe First Amendment it is that this Amendment was designedto guarantee the freest interchange of ideas aboutall public matters and that, of course, means the interchangeof all ideas, however such ideas may be viewed inother countries and whatever change in the existing structureof government it may be hoped that these ideas willbring about. Now, when this country is trying to spreadthe high ideals of democracy all over the world — ideals that are revolutionary in many countries — seems to be aparticularly inappropriate time to stifle First Amendmentfreedoms in this country. The same arguments that areused to justify the outlawry of Communist ideas here couldbe used to justify an

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outlawry of the ideas of democracyin other countries." 26 Further he stated: "I believe with theFramers of the First Amendment that the internal securityof a nation like ours does not and cannot be made todepend upon the use of force by Government to make allthe beliefs and opinions of the people fit into a commonmold on any single subject. Such enforced conformity ofthought would tend only to deprive our people of the boldspirit of adventure and progress which has brought thisNation to its present greatness. The creation of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a necessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmerican Corresponding Societies, played a large part increating sentiment in this country that led the people ofthe Colonies to want a nation of their own. The Father ofthe Constitution — James Madison — said, in speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law been in effect during the period beforethe Revolution, the United States might well have continuedto be 'miserable colonies, groaning under a foreign yoke.'In my judgment, this country's internal security can betterbe served by depending upon the affection of the peoplethan by attempting to instill them with fear and dreadof the power of Government. The Communist Party hasnever been more than a small group in this country. Andits numbers had been dwindling even before the Governmentbegan its campaign to destroy the Party by force oflaw. This was because a vast majority of the Americanpeople were against the Party's policies and overwhelminglyrejected its candidates year after year. That is the trueAmerican way of securing this Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to follow. They gave the Government the fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power to punish people for nothing morethan advocacy of their views." 27 With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully meeting the test of validity onfree speech and freedom of association grounds. 4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of the challengedstatute which for me is susceptible of an interpretationthat it does represent a defeatist attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic state. That certainly could not havebeen the thought of its framers; nonetheless, such an assumptionis not devoid of plausibility for why resort tothis extreme measure susceptible as it is to what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in many directions? It can illuminate, and itcan win the hearts and minds of men. It if difficult forme to accept the view then that a resort to outlawry isindispensable, that suppression is the only answer to whatis an admitted evil. There could have been a greater exposureof the undesirability of the communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of course,is the propaganda of

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the deed. What the communists promise,this government can fulfill. It is up to it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in a condition of destitution andmisery. It may not be able to change matters radically.At least, it should take earnest steps in that direction.What is important for those at the bottom of the economicpyramid is that they are not denied the opportunity for abetter life. If they, or at least their children, cannot evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion. Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme would be more in accordance with the basic propositionof our polity. This is not therefore to preach a doctrine of object surrender to the forces apparently bent on the adoption of a way of life so totally opposed to the deeply felt traditions of our people. This is, for me at least, an affirmation of the vitality of the democratic creed, with an expression of regret that it could not have been more impressively set forth in language worthy of the subject. It is in the light of the views above expressed that I find myself unable to yield concurrence to the ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act. Separate Opinions FERNANDO, J., dissenting: It is with regard that I find myself unable to join therest of my brethren in the decision reached upholding thevalidity of the Anti-Subversion Act.1 It is to be admittedthat the learned and scholarly opinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe constitutional issues raised. What is more, the stressin the concluding portion thereof on basic guidelines thatwill assure in the trial of those prosecuted under suchAct respect for their constitutional rights is to be commended.Nonetheless, my own reading of the decisionscited, interpreting the bill of attainder clause2 coupled withthe fears, perhaps induced by a too-latitudinarian constructionof the guarantees of freedom of belief and expression3 as well as freedom of association 4 as to impermissible inroadsto which they may be exposed, compels a differentconclusion. Hence this dissent. 1. There is to be sure no thought on my part that theequally pressing concern of state safety and security shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a justifiable indictment fornegligence had they been remiss in their obligation tosafeguard the nation against its sworn enemies. In a simplerera, where the overthrow of the government wasusually through the rising up in arms, with weapons farless sophisticated than those now in existence, there wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty and weakening the senseof allegiance have introduced complexities in coping withsuch problems. There must be then, and I am the firstto recognize it, a greater understanding for the

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governmentalresponde to situations of that character. It is inthat light that the validity of the Anti-Subversion Act isto be appraised. From ny standpoint, and I am not presumptuousenough to claim that it is the only perspectiveor that is the most realistic, I feel that there was an insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all that it would mean is that anew legislation, more in comformity to my way of thinkingto what is ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained thenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversive activities, in whateverform manifested. 2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning attachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As was explained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934 as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without hearing the witnesses againsthim and without regard to the rules of evidence. His bloodwas attainted or corrupted, rendering him devoid of allheritable quality — of acquiring and disposing property bydescent. (Ex parteGarland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was includedin a bill of attainder presented to Parliament becauseof his reform activities." 5 Two American SupremeCourt decision were thus in the minds of the framers.They are Cummings v. Missouri 6 and Ex parte Garland. 7 They speak unequivocally. Legislative acts, no matter whattheir form, that apply either to named individuals or easilyascertainable members of a group in such a way as to inflicton them punishment amounting to a deprivation ofany right, civil or political, without judicial trial are billsof attainder prohibited by the Constitution. 8 Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers, and otherprofessionals must disavow that they had ever, "by act orword," manifested a "desire" for the success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil War. If they swore falsely, they were guilty of perjury.If they engaged in their professions without theoath, they were criminally liable. The United States Supreme Court condemned the provision as a bill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The deprivation of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which inflicts punishment without a judicialtrial. If the punishment be less than death, the actis termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder include bills ofpains and penalties. In these cases the legislative body, inaddition to its legitimate functions,

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exercises the powersand office of judge; it assumes, in the language of thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any of the forms or safeguardsof trial; it determines the sufficiency of the proofs produced,whether conformable to the rules of evidence orotherwise; and it fixes the degree of punishment in accordancewith its own notions of the enormity of the offense. ... If the clauses of the 2d article of the Constitutionof Missouri, to which we have referred, had in termsdeclared that Mr. Cummings was guilty, or should be heldguilty, of having been in armed hostility to the UnitedStates, or of having entered that state to avoid beingenrolled or drafted into the military service of the UnitedStates, and, therefore, should be deprived of the right topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be no question thatthe clauses would constitute a bill of attainder within themeaning of the Federal Constitution. If these clauses, insteadof mentioning his name, had declared that all priestsand clergymen within the state of Missouri were guiltyof these acts, or should be held guilty of them, and hencebe subjected to the like deprivation, the clause would beequally open to objection. And further, it these clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no less within the inhibition of the Federal Constitution.In all these cases there would be the legislativeenactment creating the deprivation, without any of theordinary forms and guards provided for the security ofthe citizen in the administration of justice by the establishedtribunales." 10 On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also decided. Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court. Petitioner Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules of such Court, all that was necessarywas that the applicant have three years practice in the statecourts to which he belonged. In March 1865, the rule waschanged by the addition of a clause requiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that such candidate for admission to the barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland could not in conscience subscribeto such an oath, but he was able to show a presidentialpardon extended on July 15, 1865. With such actof clemency, he moved that he be allowed to continue inpractice contending that the test oath requirement wasunconstitutional as a bill of attainder and that at any rate,he was pardoned. The same ruling was announced by theCourt again through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it imposes a punishmentfor some of the acts specified which were not punishableat the time they were committedl; and for other of the actsit adds a new punishment to that before prescribed, andit is thus brought within the further inhibition of the Consitutionagainst the passage of an ex post facto law. Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length the meaning of abill of attainder and of an ex post facto law in the clauseof the Constitution forbidding their passage by the states,and it is unnecessary to repeat here what we there said.A like prohibition is contained in the Constitution againstenactments of this kind by Congress; and the argumentpresented in that case against certain clauses of the Constitutionof Missouri is equally applicable to the act ofCongress under consideration in this case." 12

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There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided in 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had been for several yearsworking for the government. The government agencies,which had lawfully employed them, were fully satisfiedwith the quality of their work and wished to keep thememployed on their jobs. Over their protest, Congress providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943, by way of an amendment attached to theHouse Bill, that after November 15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafter appropriated except for services as jurorsor members of the armed forces, unless they wereprior to November 15, 1943, again appointed to jobs bythe President with the advide and consent of the Senate.Notwithstanding such Congressional enactment, and thefailure of the President to reappoint the respondents, theagencies, kept all the respondents at work on their jobs forvarying periods after November 15, 1943, but their compensationwas discontinued after that date. Respondentsbrought this action in the Court of Claims for the salariesto which they felt entitled. The Ameican Supreme Courtstated that its inquiry was thus confined to whether theaction in the light of proper construction of the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder insofar as the respondents wereconcerned. After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of Congressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post Law shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a legislative act which inflicts punishmentwithout a judicial trial. If the punishment be lessthan death, the act is termed a bill of pains and penalties.Within the meaning of the Constitution, bills of attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided, the Court, in Exparte Garland, also held invalid on the same grounds anAct of Congress which required attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has ever been overruled. They stand for the propositionthat legislative acts, no matter what their form,that apply either to named individuals or to easily ascertainablemembers of a group in such a way as to inflictpunishment on them without a judicial trial are billsof attainder prohibited by the Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it." 14 United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the Labor-ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the Communist Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of a labor union. Respondent Brown, a longshoremanon the San Francisco docks, and an open andavowed Communist, for more than a quarter of a centurywas elected to the Executive Board of Local 10 of theInternational Longshoremen's and Warehousemen's Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a one-countindictment returned in a district court of California withservicing as a member of an executive board of a labororganization while a member of the

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Communist Party, inwillful violation of the above provision. The question ofits validity under the bill of attainder clause was thusproperly raised for adjudication. While convicted in thelower court, the Court of Appeals for the Ninth Circuitreversed. It was sustained by the American SupremeCourt. As noted in the opinion by Chief Justice Warren,"the wide variation in form, purpose and effect of anteConstitutionbills of attainder indicates that the properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the evils it was desinged to eliminate.The best available evidence, the writings of the architectsof our constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a narrow, technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation of the separation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or more simply — trial by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief Justice Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under theCommerce Clause to enact legislation designed to keepfrom positions affecting interstate commerce persons whomay use such positions to bring about political strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it by the Constitution. The statute does not setforth a generally applicable rule decreeing that any personwho commits certain acts or possesses certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiate political strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what persons have committed the specifiedacts or possessed the specified characteristics. Instead,it designates in no uncertain terms the personswho possess the fearec characteristics and therefore cannothold union office without incurring criminal liability — members of the Communist Party." 17 Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-manmajority, did indicate adherence to the Cummingsprinciple. Had the American Communist Party been outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill of attainder. It attaches notto specified organizations but to described activities inwhich an organization may or may not engage. The singlingout of an individual for legislatively prescribed punishmentconstitutes an attainder whether the individualis called by name or described in terms of conduct which,because it is past conduct, operates only as a designationof particular persons. ... The Subversive Activities ControlAct is not of that king. It requires the registrationonly of organizations which, after the date of the Act,are found to be under the direction, domination, or controlof certain foreign powers and to operate primarily toadvance certain objectives. This finding must be madeafter full administrative hearing, subject to judicial reviewwhich opens the record for the reviewing court'sdetermination whether the administrative findings as tofact are supported by the preponderance of the evidence.Present activity constitutes an operative element to whichthe statute attaches legal consequences, not merely a pointof

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reference for the ascertainment of particularly personsineluctably designated by the legislature." 19 The teaching of the above cases, which I find highlypersuasive considering what appeared to be in the mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the Anti-SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three subsequent cases upholding theCummings and Garland doctrine were likewise cited in theopinion of the Court. The interpretation accorded to themby my brethren is, of course, different but I am unable togo along with them especially in the light of the categoricallanguage appearing in Lovett. This is not to lose sightof the qualification that for them could deprive such aholding of its explicit character as shown by this excerptfrom the opinion of the Court: "Indeed, were the AntiSubversionAct a bill of attainder it would be totally unnecessaryto charge communists in court, as the law alone,without more, would suffice to secure their conviction andpunishment. But the fact is that their guilt still has to bejudicially estblished. The Government has yet to proveat the trial that the accused joined the Party knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversive character and with specific intentto further its objective, i.e., to overthrow the existing Governmentby force, deceit, and other illegal means and placeit under the control and domination of a foreign power. 20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a criminal prosecution ofthe Catholic priest who refused to take the loyalty oath.Again in Brown, there was an indictment of the laborleader who, judging by his membership in the CommunistParty, did transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If the constructionI would place on theoff-repeated pronouncementof the American Supreme Court is correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute. It does seem clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw the Communist Party of the Philippines and similar associations,"not to mention other specific provisions, the taintof invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder. 3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the intellectual libertysafeguarded by the Constitution in terms of the free speechand free assocition guarantees. 21 It is to be admitted thatat the time of the enactment of Republic Act No. 1700,the threat that Communism, the Russian brand then, didpose was a painful reality for Congressional leaders andthe then President. Its shadow fell squarely across thelives of all. Subversion then could neither be denied notdisparaged. There was, in the expert opinion of those conversantwith such mattes, a danger to out national existenceof no mean character. Nonetheless, the remedies toward off such menace must not be repugnant to our Constitution.We are legally precluded from acting in anyother way. The apprehension justly felt is no warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to be, but not at the expense of constitutional ideals.

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One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ, evenobject; one can express dissatisfaction with things as theyare. There are timew when one not only can but must.Such dissent can take the form of the most critical andthe most disparaging remarks. They may give offense tothose in authority, to those who wield powe and influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content of such dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to such as are devoid of too much significance.It can reach the heart of things. Such dissentmay, for those not so adventurous in the realm of ideas,possess a subversive tinge. Even those who oppose a democraticform of government cannot be silenced. This is trueespecially in centers of learning where scholars competentin their line may, as a result of their studies, assert thata future is bleak for the system of government now favoredby Western democracies. There may be doubts entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk of a penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If there be any among us who would wish todissolve this union or to change its republican form, letthem stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook: "Without holding the right to theexpression of heresy at any time and place to be absolute — for even the right to non-heretical speech cannot beabsolute — it still seems wise to tolerate the expression evenof Communist, fascist and other heresies, lest in outlawingthem we include other kings of heresies, and deprive ourselvesof the opportunity to acquite possibly sounder ideasthan our own." 23 The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of seditionor rebellion. The state has been reached, to follow theformulation of Cardozo, where thought merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the Constitution. It does not bar the expressionof views affecting the very life of the state, even ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter of fact, that unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty. Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly stifle fundamental personalliberties when the end can be more narrowly achieved.For precision of regulation is the touchstone in an areaso closely related to our most precious freedoms." 24 This is so for "a governmental purpose to control or prevent activities constitutionally subject to state regulation may notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of protected freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute be avoided. If such be the case, then theline dividing the valid from the constitutionally infirm hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the AntiSubversion Act.

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There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist Party casediscussed above. What is to be kept in view is that a legislativemeasure certainly less drastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of this noted jurist offensive to the FirstAmendment of the American Constitution safeguardingfree speech. Thus: "If there is one thing certain aboutthe First Amendment it is that this Amendment was designedto guarantee the freest interchange of ideas aboutall public matters and that, of course, means the interchangeof all ideas, however such ideas may be viewed inother countries and whatever change in the existing structureof government it may be hoped that these ideas willbring about. Now, when this country is trying to spreadthe high ideals of democracy all over the world — ideals that are revolutionary in many countries — seems to be aparticularly inappropriate time to stifle First Amendmentfreedoms in this country. The same arguments that areused to justify the outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of democracyin other countries." 26 Further he stated: "I believe with theFramers of the First Amendment that the internal securityof a nation like ours does not and cannot be made todepend upon the use of force by Government to make allthe beliefs and opinions of the people fit into a commonmold on any single subject. Such enforced conformity ofthought would tend only to deprive our people of the boldspirit of adventure and progress which has brought thisNation to its present greatness. The creation of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a necessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmerican Corresponding Societies, played a large part increating sentiment in this country that led the people ofthe Colonies to want a nation of their own. The Father ofthe Constitution — James Madison — said, in speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law been in effect during the period beforethe Revolution, the United States might well have continuedto be 'miserable colonies, groaning under a foreign yoke.'In my judgment, this country's internal security can betterbe served by depending upon the affection of the peoplethan by attempting to instill them with fear and dreadof the power of Government. The Communist Party hasnever been more than a small group in this country. Andits numbers had been dwindling even before the Governmentbegan its campaign to destroy the Party by force oflaw. This was because a vast majority of the Americanpeople were against the Party's policies and overwhelminglyrejected its candidates year after year. That is the trueAmerican way of securing this Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to follow. They gave the Government the fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power to punish people for nothing morethan advocacy of their views." 27 With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully meeting the test of validity onfree speech and freedom of association grounds. 4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of the challengedstatute which for me is susceptible of an

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interpretationthat it does represent a defeatist attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic state. That certainly could not havebeen the thought of its framers; nonetheless, such an assumptionis not devoid of plausibility for why resort tothis extreme measure susceptible as it is to what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in many directions? It can illuminate, and itcan win the hearts and minds of men. It if difficult forme to accept the view then that a resort to outlawry isindispensable, that suppression is the only answer to whatis an admitted evil. There could have been a greater exposureof the undesirability of the communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of course,is the propaganda of the deed. What the communists promise,this government can fulfill. It is up to it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in a condition of destitution andmisery. It may not be able to change matters radically.At least, it should take earnest steps in that direction.What is important for those at the bottom of the economicpyramid is that they are not denied the opportunity for abetter life. If they, or at least their children, cannot evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion. Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme would be more in accordance with the basic propositionof our polity. This is not therefore to preach a doctrine of object surrender to the forces apparently bent on the adoption of a way of life so totally opposed to the deeply felt traditions of our people. This is, for me at least, an affirmation of the vitality of the democratic creed, with an expression of regret that it could not have been more impressively set forth in language worthy of the subject. It is in the light of the views above expressed that I find myself unable to yield concurrence to the ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act.

G.R. No. L-19328 December 22, 1989 ALEJANDRO KATIGBAK and MERCEDES K. KATIGBAK, plaintiffs-appellants, vs. THE SOLICITOR GENERAL, EPIFANIO VILLEGAS, ARTURO XAVIER, PONCIANO FERNANDO, ROSENDO DOMINGO and LEONARDO LUCENA, defendants-appellees. G.R. No. L-19329 December 22, 1989

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REPUBLIC OF THE PHILIPPINES, plaintiff-appellee, vs. ALEJANDRO KATIGBAK and MERCEDES K. KATIGBAK defendants-appellants. Augusto Kalaw for plaintiffs-appellants. NARVASA, J.: These cases were certified to this Court by the Court of Appeals for resolution on appeal, 1 since the central issue involved is the constitutionality of Republic Act No. 1379, "An Act Declaring Forfeiture in Favor of the State of Any Property Found To Have Been Unlawfully Acquired by Any Public Officer or Employee and Providing for the Proceedings Therefor. 2 As posed by the referral resolution, 3 the question is whether or not said statute. ...en cuanto autoriza la confiscacion en favor del Estado de las propiedades ilegalmente adquiridas por un funcionario o empleado del Gobierno antes de la aprobacion de la ley ... es nula y anti-constitutional porque: (a) es una Ley ex-post facto que autoriza la confiscacion de una propiedad privada adquirida antes de la aprobacion de la ley y obliga el funcionario o empleado publico a explicar como adquirio sus propiedades privadas, compeliendo de esta forma a incriminarse a si mismo, y en cierto modo autoriza la confiscacion de dicha propiedad sin debido proceso de la ley; y (b) porque autoriza la confiscacion de inmuebles previamente hipotecados de buena fe a una persona. The proceedings at bar originated from two (2) actions filed with the Court of First Instance of Manila. The first was Civil Case No. 30823, instituted by the Spouses Alejandro Katigbak and Mercedes Katigbak. In their complaint they prayed that: (1) the Solicitor General be enjoined from filing a complaint against them for forfeiture of property under the above mentioned R.A. No. 1379; (2) said statute be declared unconstitutional in so far as it authorizes forfeiture of properties acquired before its approval, or, alternatively, a new preliminary investigation of the complaint filed against Alejandro Katigbak by NBI officers be ordered; (3) properties acquired by Alejandro Katigbak when he was out of the government service be excluded from forfeiture proceedings; and (4) the NBI officers and the Investigating Prosecutor (Leonardo Lucena) be sentenced to pay damages.

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The second action was Civil Case No. 31080, commenced by petition 4 filed by the Republic of the Philippines against Alejandro Katigbak, his wife, Mercedes, and his son, Benedicto, seeking the forfeiture in favor of the State of the properties of Alejandro Katigbak allegedly gotten by him illegally, in accordance with R.A. No. 1379. Said properties were allegedly acquired while Katigbak was holding various positions in the government, the last being that of an examiner of the Bureau of Customs; and title to some of the properties were supposedly recorded in the names of his wife and/or son. The cases were jointly tried. The judgment thereafter rendered 5 (1) dismissed the complaint and the counterclaim in Civil Case No. 30823, the first action; and (2) as regards Civil Case No. 31080, ordered "that from the properties (of Katigbak) enumerated in this decision as acquired in 1953,1954 and 1955, shall be enforced a lien in favor of the Government in the sum of P100,000.00. 6 The judgment also declared that the "impatience of the Investigating Prosecutor" during the preliminary inquiry into the charges filed against Katigbak for violation of R.A. No. 1379 did not amount to such arbitrariness as would justify annulment of the proceedings since, after all, Katigbak was able to fully ventilate his side of the case in the trial court; 7 that R.A. No. 1379 is not penal in nature, its objective not being the enforcement of a penal liability but the recovery of property held under an implied trust; 8 that with respect to things acquired through delicts, prescription does not run in favor of the offender; 9 that Alejandro Katigbak may not be deemed to have been compelled to testify against his will since he took the witness stand voluntarily. 10 The Katigbaks moved for reconsideration and/or new trial. The Trial Court refused to grant a new trial but modified its decision by reducing the amount of "P 100,000.00 in the dispositive portion ... to P80,000.00." 11 Appeal was taken from this verdict of the Court of Appeals by the Katigbaks which appeal, as earlier stated, was certified to this Court. No less than 18 errors have been attributed by the Katigbaks to the Court a quo. 12 They concern mainly the character of R.A. No. 1379 as an ex-post facto law, principally because it imposes the penalty of forfeiture on a public officer or employee acquiring properties allegedly in violation of said R.A. No. 1379 at a time when that law had not yet been enacted. 13 Whatever persuasiveness might have been carried by the ruling on the issue of the learned Trial Judge in 1961, the fact is that the nature of R.A. No. 1379 as penal was in 1962 clearly and categorically pronounced by this Court in Cabal v. Kapunan, Jr. 14 Citing voluminous authorities, the Court in that case declared that "forfeiture to the State of property of a public officer or employee which is manifestly out of proportion to his salary as such ... and his other lawful income and the income from legitimately acquired property ... has been held ... to partake of the nature of a penalty"; and that "proceedings for forfeiture of property although technically civil in form are deemed criminal or penal, and, hence, the exemption of defendants in criminal cases from the obligation to be witnesses against, themselves is applicable thereto. 15 The doctrine was reaffirmed and reiterated in 1971 in republic v. Agoncillo. 16 And germane is the 1977 ruling of the Court in de la

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Cruz v. Better Living, Inc. 17 involving among others the issue of the validity and enforceability of a written agreement alleged to be in violation of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices-Act to the effect that "the provisions of said law cannot be given retro active effect." The forfeiture of property provided for in Republic Act No. 1379 being in the nature of a penalty; and it being axiomatic that a law is ex-post facto which inter alia "makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act," or, "assuming to regulate civil rights and remedies only, in effect imposes a penalty or deprivation of a right for something which when done was lawful," it follows that penalty of forfeiture prescribed by R.A. No. 1379 cannot be applied to acquisitions made prior to its passage without running afoul of the Constitutional provision condemning ex post facto laws or bills of attainder. 18 But this is precisely what has been done in the case of the Katigbaks. The Trial Court declared certain of their acquisitions in 1953, 1954 and 1955 to be illegal under R.A. No. 1379 although made prior to the enactment of the law, and imposed a lien thereon "in favor of the Government in the sum of P100,000.00." Such a disposition is, quite obviously, constitutionally impermissible. As to the issue of whether or not the Prosecuting Fiscal, Leonardo Lucena, should be made answerable for damages because the filing of the forfeiture proceedings, Civil Case No. 31080, resulted from a preliminary investigation which was allegedly conducted by Fiscal Lucena in an arbitrary and highhanded manner, suffice it to state that the trial court found no proof of any intention to persecute or other ill motive underlying the institution of Civil Case No. 31080. The trial court further found that during the preliminary investigation by Fiscal Lucena on September 13, 19, 24, 25 and 26, 1956, Alejandro Katigbak was assisted by reputable and competent counsel, Atty. Estanislao A. Fernandez and Atty. Antonio Carag. The mere fact that the preliminary investigation was terminated against the objection of Katigbak's counsel, does not necessarily signify that he was denied the right to such an investigation. What is more, the Trial Court's factual conclusion that no malice or bad faith attended the acts of public respondents complained of, and consequently no award of damages is proper, cannot under established rule be reviewed by this Court absent any showing of the existence of some recognized exception thereto. The foregoing pronouncements make unnecessary the determination of the other issues. WHEREFORE, the judgment of the Court a quo, in so far as it pronounces the acquisitions of property by the appellants illegal in accordance with Republic Act No. 1379 and imposes a lien thereon in favor of the Government in the sum of P80,000.00 is hereby REVERSED AND SET ASIDE, but is AFFIRMED in all other respects. No pronouncement as to costs. SO ORDERED.

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G.R. No. 113213 August 15, 1994 PAUL JOSEPH WRIGHT, petitioner, vs. HON. COURT OF APPEALS, HON. JUDGE JOSE DE LA RAMA, RTC, BRANCH 139, MAKATI, M.M. and HON. FRANK DRILON, SECRETARY OF JUSTICE, respondents. Rodrigo E. Mallari for petitioner. Aurora Salva Bautista collaborating for petitioner. KAPUNAN, J.: A paramount principle of the law of extradition provides that a State may not surrender any individual for any offense not included in a treaty of extradition. This principle arises from the reality of extradition as a derogation of sovereignty. Extradition is an intrusion into the territorial integrity of the host State and a delimitation of the sovereign power of the State within its own territory. 1 The act of extraditing amounts to a "delivery by the State of a person accused or convicted of a crime, to another State within whose territorial jurisdiction, actual or constructive, it was committed and which asks for his surrender with a view to execute justice." 2 As it is an act of "surrender" of an individual found in a sovereign State to another State which demands his surrender 3 , an act of extradition, even with a treaty rendered executory upon ratification by appropriate authorities, does not imposed an obligation to extradite on the requested State until the latter has made its own determination of the validity of the requesting State's demand, in accordance with the requested State's own interests. The principles of international law recognize no right of extradition apart from that arising from treaty. 4 Pursuant to these principles, States enter into treaties of extradition principally for the purpose of bringing fugitives of justice within the ambit of their laws, under conventions recognizing the right of nations to mutually agree to surrender individuals within their jurisdiction and control, and for the purpose of enforcing their respective municipal laws. Since punishment of fugitive criminals is dependent mainly on the willingness of host State to apprehend them and revert them to the State where their offenses were committed, 5 jurisdiction over such fugitives and subsequent enforcement of penal laws can be effectively accomplished only by agreement between States through treaties of extradition. Desiring to make more effective cooperation between Australia and the Government of the Philippines in the suppression of crime, 6 the two countries entered into a Treaty of Extradition on the 7th of March 1988. The said treaty was ratified in accordance with the provisions of Section 21, Article VII of the 1987 Constitution in a Resolution adopted by the Senate on September 10, 1990 and became effective thirty (30) days after both States notified each other in writing

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that the respective requirements for the entry into force of the Treaty have been complied with. 7 The Treaty adopts a "non-list, double criminality approach" which provides for broader coverage of extraditable offenses between the two countries and (which) embraces crimes punishable by imprisonment for at least one (1) year. Additionally, the Treaty allows extradition for crimes committed prior to the treaty's date of effectivity, provided that these crimes were in the statute books of the requesting State at the time of their commission. Under the Treaty, each contracting State agrees to extradite. . . "persons . . . wanted for prosecution of the imposition or enforcement of a sentence in the Requesting State for an extraditable offense." 8 A request for extradition requires, if the person is accused of an offense, the furnishing by the requesting State of either a warrant for the arrest or a copy of the warrant of arrest of the person, or, where appropriate, a copy of the relevant charge against the person sought to be extradited. 9 In defining the extraditable offenses, the Treaty includes all offenses "punishable under the Laws of both Contracting States by imprisonment for a period of at least one (1) year, or by a more severe penalty." 10 For the purpose of the definition, the Treaty states that: (a) an offense shall be an extraditable offense whether or not the laws of the Contracting States place the offense within the same category or denominate the offense by the same terminology; (b) the totality of the acts or omissions alleged against the person whose extradition is requested shall be taken into account in determining the constituent elements of the offense. 11 Petitioner, an Australian Citizen, was sought by Australian authorities for indictable crimes in his country. Extradition proceedings were filed before the Regional Trial Court of Makati, which rendered a decision ordering the deportation of petitioner. Said decision was sustained by the Court of Appeals; hence, petitioner came to this Court by way of review on certiorari, to set aside the order of deportation. Petitioner contends that the provision of the Treaty giving retroactive effect to the extradition treaty amounts to an ex post facto law which violates Section 21 of Article VI of the Constitution. He assails the trial court's decision ordering his extradition, arguing that the evidence adduced in the court below failed to show that he is wanted for prosecution in his country. Capsulized, all the principal issues raised by the petitioner before this Court strike at the validity of the extradition proceedings instituted by the government against him. The facts, as found by the Court of Appeals, 12 are undisputed:

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On March 17, 1993, Assistant Secretary Sime D. Hidalgo of the Department of Foreign Affairs indorsed to the Department of Justice Diplomatic Note No. 080/93 dated February 19, 1993 from the Government of Australia to the Department of Justice through Attorney General Michael Duffy. Said Diplomatic Note was a formal request for the extradition of Petitioner Paul Joseph Wright who is wanted for the following indictable crimes: 1. Wright/Orr Matter — one count of Obtaining Property by Deception contrary to Section 81(1) of the Victorian Crimes Act of 1958; and 2. Wright/Cracker Matter — Thirteen (13) counts of Obtaining Properties by Deception contrary to Section 81(1) of the Victorian Crimes Act of 1958; one count of attempting to Obtain Property by Deception contrary to Section 321(m) of Victorian Crimes Act of 1958; and one count of Perjury contrary to Section 314 of Victorian Crimes Act of 1958, which crimes were allegedly committed in the following manner: The one (1) count of Obtaining Property by Deception contrary to Section 81 (1) of the Victorian Crimes Act of 1958 constitutes in Mr. Wright's and co-offender, Herbert Lance Orr's, dishonesty in obtaining $315,250 from Mulcahy, Mendelson and Round Solicitors (MM7R), secured by a mortgage on the property in Bangholme, Victoria owned by Ruven Nominees Pty. Ltd., a company controlled by a Rodney and a Mitchell, by falsely representing that all the relevant legal documents relating to the mortgage had been signed by Rodney and Janine Mitchell. The thirteen (13) counts of Obtaining Property by Deception contrary to Section 81(1) of the Victorian Crimes Act of 1958 constitutes in Mr. Wright's and co-offender Mr. John Carson Craker's receiving a total of approximately 11.2 in commission (including $367,044 in bonus commission) via Amazon Bond Pty. Ltd., depending on the volume of business written, by submitting two hundred fifteen (215) life insurance proposals, and paying premiums thereon (to the acceptance of the policies and payment of commissions) to the Australian Mutual Provident (AMP) Society through the Office of Melbourne Mutual Insurance, of which respondent is an insurance agent, out of which life proposals none are in existence and approximately 200 of which are alleged to have been false, in one or more of the following ways: ( i ) some policy-holders signed up only because they were told the policies were free (usually for 2 years) and no payments were required.

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(ii) some policy-holders were offered cash inducements ($50 or $100) to sign and had to supply a bank account no longer used (at which a direct debit request for payment of premiums would apply). These policy-holders were also told no payments by them were required. (iii) some policy-holders were introduced through the "Daily Personnel Agency", and again were told the policies were free for 2 years as long as an unused bank account was applied. (iv) some policy-holders were found not to exist. The one count of Attempting to Obtain Property by Deception contrary to Section 321(m) of the Victorian Crimes Act of 1958 constitutes in Mr. Wright's and Mr. Craker's attempting to cause the payment of $2,870.68 commission to a bank account in the name of Amazon Bond Pty. Ltd. by submitting one proposal for Life Insurance to the AMP Society, the policy-holder of which does not exist with the end in view of paying the premiums thereon to insure acceptance of the policy and commission payments. The one count of Perjury contrary to Section 314 of Victorian Crimes Act of 1958 constitutes in Mr. Wright's and Mr. Craker's signing and swearing before a Solicitor holding a current practicing certificate pursuant to the Legal Profession Practice Act (1958), a Statutory Declaration attesting to the validity of 29 of the most recent Life Insurance proposals of AMP Society and containing three (3) false statements. Pursuant to Section 5 of PD No. 1069, in relation to the Extradition Treaty concluded between the Republic of the Philippines and Australia on September 10, 1990, extradition proceedings were initiated on April 6, 1993 by the State Counsels of the Department of Justice before the respondent court. In its Order dated April 13, 1993, the respondent court directed the petitioner to appear before it on April 30, 1993 and to file his answer within ten days. In the same order, the respondent Judge ordered the NBI to serve summons and cause the arrest of the petitioner. The respondent court received return of the warrant of arrest and summons signed by NBI Senior Agent Manuel Almendras with the information that the petitioner was arrested on April 26, 1993 at Taguig, Metro Manila and was subsequently detained at the NBI detention cell where petitioner, to date, continue to be held. Thereafter, the petitioner filed his answer.

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In the course of the trial, the petitioner testified that he was jobless, married to a Filipina, Judith David, with whom he begot a child; that he has no case in Australia; that he is not a fugitive from justice and is not aware of the offenses charged against him; that he arrived in the Philippines on February 25, 1990 returned to Australia on March 1, 1990, then back to the Philippines on April 11, 1990, left the Philippines again on April 24, 1990 for Australia and returned to the Philippines on May 24, 1990, again left for Australia on May 29, 1990 passing by Singapore and then returned to the Philippines on June 25, 1990 and from that time on, has not left the Philippines; and that his tourist visa has been extended but he could not produce the same in court as it was misplaced, has neither produced any certification thereof, nor any temporary working visa. The trial court, in its decision dated 14 June 1993, granting the petition for extradition requested by the Government of Australia, concluding that the documents submitted by the Australian Government meet the requirements of Article 7 of the Treaty of Extradition and that the offenses for which the petitioner were sought in his country are extraditable offenses under Article 2 of the said Treaty. The trial court, moreover, held that under the provisions of the same Article, extradition could be granted irrespective of when the offense — in relation to the extradition — was committed, provided that the offense happened to be an offense in the requesting State at the time the acts or omissions constituting the same were committed. 13 Petitioner challenged the decision of the Regional Trial Court before the Court of Appeals assigning the following errors: I. THAT THE HONORABLE RESPONDENT JUDGE GRAVELY ERRED IN GIVING RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY DESPITE THE FACT THAT THE EVIDENCE ADDUCED BY THE RESPONDENT SHOW THAT THE ALLEGED OFFENSES FOR WHICH PETITIONER IS SOUGHT TO BE EXTRADITED TOOK PLACE IN 1988-1989 AT THE TIME THERE WAS NO EXTRADITION TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA. II. THAT THE ACT OF THE HONORABLE RESPONDENT JUDGE IN GIVING RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA AMOUNTS TO AN "EX POST FACTO LAW" AND VIOLATES SECTION 21, ARTICLE VII OF THE 1987 CONSTITUTION. III. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING THE EXTRADITION OF PETITIONER DESPITE THE FACT THAT THE EVIDENCE ADDUCED DO NOT SHOW THAT PETITIONER IS WANTED FOR PROSECUTION IN AUSTRALIA. IV. THAT THE HON. RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN MISINTERPRETING THE

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EXTENDED STAY OF PETITIONER AS EVIDENCE OF PETITIONER'S DESIGN TO HIDE AND EVADE PROSECUTION IN AUSTRALIA. V. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING THE EXTRADITION OF PETITIONER WITHOUT SPECIFYING IN HIS ORDER OR DECISION THE SPECIFIC CHARGES FOR WHICH PETITIONER IS TO STAND TRIAL IN AUSTRALIA. The Court of Appeals affirmed the trial court's decision on September 14, 1993 and denied petitioner's Motion for Reconsideration on December 16, 1993. 14 Reiterating substantially the same assignments of error which he interposed in the Court of Appeals, petitioner challenges in this petition the validity of the extradition order issued by the trial court as affirmed by the Court of Appeals under the Treaty. Petitioner vigorously argues that the trial court order violates the Constitutional prohibition against ex post facto laws. He avers that for the extradition order to be valid, the Australian government should show that he "has a criminal case pending before a competent court" in that country "which can legally pass judgement or acquittal or conviction upon him." Clearly, a close reading of the provisions of the Treaty previously cited, which are relevant to our determination of the validity of the extradition order, reveals that the trial court committed no error in ordering the petitioner's extradition. Conformably with Article 2, Section 2 of the said Treaty, the crimes for which the petitioner was charged and for which warrants for his arrest were issued in Australia were undeniably offenses in the Requesting State at the time they were alleged to have been committed. From its examination of the charges against the petitioner, the trial court correctly determined that the corresponding offenses under our penal laws are Articles 315(2) and 183 of the Revised Penal Code on swindling/estafa and false testimony/perjury, respectively. 15 The provisions of Article 6 of the said Treaty pertaining to the documents required for extradition are sufficiently clear and require no interpretation. The warrant for the arrest of an individual or a copy thereof, a statement of each and every offense and a statement of the acts and omissions which were alleged against the person in respect of each offense are sufficient to show that a person is wanted for prosecution under the said article. All of these documentary requirements were dully submitted to the trial court in its proceedings a quo. For purposes of the compliance with the provisions of the Treaty, the signature and official seal of the Attorney-General of Australia were sufficient to authenticate all the documents annexed to the Statement of the Acts and Omissions, including the statement itself. 16 In conformity with the provisions of Article 7 of the Treaty, the appropriate documents and annexes were signed by "an officer in or of the Requesting State" 17 "sealed with . . . (a) public seal of the Requesting State or of a Minister of State, or of a Department or officer of the Government of the Requesting State," 18 and "certified by a diplomatic or consular officer of the Requesting State accredited to the Requested State." 19The last requirement was accomplished by the certification made by the Philippine Consular Officer in Canberra, Australia.

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The petitioner's contention that a person sought to be extradited should have a "criminal case pending before a competent court in the Requesting State which can legally pass judgement of acquittal or conviction" 20 stretches the meaning of the phrase "wanted for prosecution" beyond the intended by the treaty provisions because the relevant provisions merely require "a warrant for the arrest or a copy of the warrant for the arrest of the person sought to be extradited." 21 Furthermore, the 'Charge and Warrant of Arrest Sheets' attest to the fact that petitioner is not only wanted for prosecution but has, in fact, absconded to evade arrest and criminal prosecution. Since a charge or information under the Treaty is required only when appropriate, i.e., in cases where an individual charged before a competent court in the Requesting State thereafter absconds to the Requested State, a charge or a copy thereof is not required if the offender has in fact already absconded before a criminal complaint could be filed. As the Court of Appeals correctly noted, limiting the phrase "wanted for prosecution" to person charged with an information or a criminal complaint renders the Treaty ineffective over individuals who abscond for the purpose of evading arrest and prosecution. 22 This brings us to another point raised by the petitioner both in the trial court and in the Court of Appeals. May the extradition of the petitioner who is wanted for prosecution by the government of Australia be granted in spite of the fact that the offenses for which the petitioner is sought in his country were allegedly committed prior to the date of effectivity of the Treaty. Petitioner takes the position that under Article 18 of the Treaty its enforcement cannot be given retroactive effect. Article 18 states: ENTRY INTO FORCE AND TERMINATION This Treaty shall enter into force thirty (30) days after the date on which the Contracting States have notified each other in writing that their respective requirements for the entry into force of this Treaty have been complied with. Either contracting State may terminate this Treaty by notice in writing at any time and it shall cease to be in force on the one hundred and eightieth day after the day on which notice is given. We fail to see how the petitioner can infer a prohibition against retroactive enforcement from this provision. The first paragraph of Article 18 refers to the Treaty's date of effectivity; the second paragraph pertains to its termination. Absolutely nothing in the said provision relates to, much less, prohibits retroactive enforcement of the Treaty. On the other hand, Article 2(4) of the Treaty unequivocally provides that:

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4. Extradition may be granted pursuant to provisions of this Treaty irrespective of when the offense in relation to which extradition is requested was committed, provided that: (a) it was an offense in the Requesting State at the time of the acts or omissions constituting the offense; and (b) the acts or omissions alleged would, if they had taken place in the Territory of the Requested State at the time of the making of the request for extradition, have constituted an offense against the laws in force in that state. Thus, the offenses for which petitioner is sought by his government are clearly extraditable under Article 2 of the Treaty. They were offenses in the Requesting State at the time they were committed, and, irrespective of the time they were committed, they fall under the panoply of the Extradition Treaty's provisions, specifically, Article 2 paragraph 4, quoted above. Does the Treaty's retroactive application violate the Constitutional prohibition against ex post facto laws? Early commentators understood ex post facto laws to include all laws of retrospective application, whether civil or criminal. 23 However, Chief Justice Salmon P. Chase, citing Blackstone, The Federalist and other early U.S. state constitutions in Calder vs. Bull 24 concluded that the concept was limited only to penal and criminal statutes. As conceived under our Constitution, ex post facto laws are 1) statutes that make an act punishable as a crime when such act was not an offense when committed; 2) laws which, while not creating new offenses, aggravate the seriousness of a crime; 3) statutes which prescribes greater punishment for a crime already committed; or, 4) laws which alter the rules of evidence so as to make it substantially easier to convict a defendant. 25 "Applying the constitutional principle, the (Court) has held that the prohibition applies only to criminal legislation which affects the substantial rights of the accused." 26 This being so, there is no absolutely no merit in petitioner's contention that the ruling of the lower court sustaining the Treaty's retroactive application with respect to offenses committed prior to the Treaty's coming into force and effect, violates the Constitutional prohibition against ex post facto laws. As the Court of Appeals correctly concluded, the Treaty is neither a piece of criminal legislation nor a criminal procedural statute. "It merely provides for the extradition of persons wanted for prosecution of an offense or a crime which offense or crime was already committed or consummated at the time the treaty was ratified." 27 In signing the Treaty, the government of the Philippines has determined that it is within its interests to enter into agreement with the government of Australia regarding the repatriation of persons wanted for criminal offenses in either country. The said Treaty was concurred and ratified by the Senate in a Resolution dated September 10, 1990. Having been ratified in accordance with the provision of the 1987 Constitution, the Treaty took effect thirty days after the requirements for entry into force were complied with by both governments.

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WHEREFORE, finding no reversible error in the decision of respondent Court of Appeals, we hereby AFFIRM the same and DENY the instant petition for lack of merit. SO ORDERED.

G.R. No. 128096 January 20, 1999 PANFILO M. LACSON, petitioner, vs. THE EXECUTIVE SECRETARY, THE SANDIGANBAYAN, OFFICE OF THE SPECIAL PROSECUTOR, THE DEPARTMENT OF JUSTICE, MYRNA ABALORA, NENITA ALAP-AP, IMELDA PANCHO MONTERO, and THE PEOPLE OF THE PHILIPPINES, respondent. ROMEO M. ACOP AND FRANCISCO G. ZUBIA, JR., petitioner-intervenors.

MARTINEZ, J.: The constitutionality of Sections 4 and 7 of Republic Act No. 8249 — an act which further defines the jurisdiction of the Sandiganbayan — is being challenged in this petition for prohibition and mandamus. Petitioner Panfilo Lacson, joined by petitioners-intervenors Romeo Acop and Francisco Zubia, Jr., also seeks to prevent the Sandiganbayan from proceedings with the trial of Criminal Cases Nos. 2304723057 (for multiple murder) against them on the ground of lack of jurisdiction. The antecedents of this case, as gathered from the parties' pleadings and documentary proofs, are as follows: In the early morning of May 18, 1995, eleven (11) persons believed to be members of the Kuratong Baleleng gang, reportedly an organized crime syndicate which had been involved in a spate of bank robberies in Metro Manila, where slain along Commonwealth Avenue in Quezon City by elements of the Anti-Bank Robbery and Intelligence Task Group (ABRITG) headed by Chieff Superintendent Jewel Canson of the Philippine National Police (PNP). The ABRITG was composed of police officers from the Traffic Management Command (TMC) led by petitionerintervenor Senior Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime Commission — Task Force Habagat (PACC-TFH) headed by petitioner Chief Superintendent Panfilo M. Lacson; Central Police District Command (CPDC) led by Chief Superintendent Ricardo de Leon; and the Criminal Investigation Command (CIC) headed by petitioner-intervenor Chief Superintendent Romeo Acop.

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Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that what actually transpired at dawn of May 18, 1995 was a summary execution (or a rub out) and not a shoot-out between the Kuratong Baleleng gang members and the ABRITG, Ombudsman Aniano Desierto formed a panel of investigators headed by the Deputy Ombudsman for Military Affairs, Bienvenido Blancaflor, to investigate the incident. This panel later absolved from any criminal liability all the PNP officers and personal allegedly involved in May 18, 1995 incident, with a finding that the said incident was a legitimate police operation.1 However, a review board led by Overall Deputy Ombudsman Francisco Villa modified modified the Blancaflor panel's finding and recommended the indictment for multiple murder against twenty-six (26) respondents, including herein petitioner and intervenors. The recommendation was approved by the Ombudsman except for the withdrawal of the charges against Chief Supt. Ricardo de Leon. Thus, on November 2, 1995, petitioner Panfilo Lacson was among those charged as principal in eleven (11) information for murder 2 before the Sandiganbayan's Second Division, while intervenors Romeo Acop and Francisco Zubia, Jr. were among those charged in the same informations as accessories after-in-the-fact. Upon motion by all the accused in the 11 information,3 the Sandiganbayan allowed them to file a motion for reconsideration of the Ombudsman's action. 4 After conducting a reinvestigation, the Ombudsman filed on March 1, 1996 eleven (11) amended informations5before the Sandiganbayan, wherein petitioner was charged only as an accessory, together with Romeo Acop and Francisco Zubia, Jr. and other. One of the accused6 was dropped from the case. On March 5-6, 1996, all the accused filed separate motions questioning the jurisdiction of the Sandiganbayan, asserting that under the amended informations, the cases fall within the jurisdiction of the Regional Trial Court pursuant to Section 2 (paragraphs a and c) of Republic Act No. 7975.7 They contend that the said law limited the jurisdiction of the Sandiganbayan to cases where one or more of the "principal accused" are government officials with Salary Grade (SG) 27 or higher, or PNP officials with the rank of Chief Superintendent (Brigadier General) or higher. The highest ranking principal accused in the amended informations has the rank of only a Chief Inspector, and none has the equivalent of at least SG 27. Thereafter, in a Resolution 8 dated May 8, 1996 (promulgated on May 9, 1996), penned by Justice Demetriou, with Justices Lagman and de Leon concurring, and Justices Balajadia and Garchitorena dissenting,9 the Sandiganbayan admitted the amended information and ordered the cases transferred to the Quezon City Regional Trial Court which has original and exclusive jurisdiction under R.A. 7975, as none of the principal accused has the rank of Chief Superintendent or higher.

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On May 17, 1996, the Office of the Special Prosecutor moved for a reconsideration, insisting that the cases should remain with the Sandiganbayan. This was opposed by petitioner and some of the accused. While these motions for reconsideration were pending resolution, and even before the issue of jurisdiction cropped up with the filing of the amended informations on March 1, 1996, House Bill No. 229910 and No. 109411 (sponsored by Representatives Edcel C. Lagman and Lagman and Neptali M. Gonzales II, respectively), as well as Senate Bill No. 84412 (sponsored by Senator Neptali Gonzales), were introduced in Congress, defining expanding the jurisdiction of the Sandiganbayan. Specifically, the said bills sought, among others, to amend the jurisdiction of the Sandiganbayan by deleting the word "principal" from the phrase "principal accused" in Section 2 (paragraphs a and c) of R.A. No. 7975. These bills were consolidated and later approved into law as R.A. No. 8249 13 by the President of the Philippines on February 5, 1997. Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution14 denying the motion for reconsideration of the Special Prosecutor, ruling that it "stands pat in its resolution dated May 8, 1996." On the same day15 the Sandiganbayan issued and ADDENDUM to its March 5, 1997 Resolution, the pertinent portion of which reads: After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it, but before Justice de Leon. Jr. rendered his concurring and dissenting opinion, the legislature enacted Republic Act 8249 and the President of the Philippines approved it on February 5, 1997. Considering the pertinent provisions of the new law, Justices Lagman and Demetriou are now in favor of granting, as they are now granting, the Special Prosecutor's motion for reconsideration. Justice de Leon has already done so in his concurring and dissenting opinion. Considering that three of the accused in each of these cases are PNP Chief Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M. Lacson, and that trial has not yet begun in all these cases — in fact, no order of arrest has been issued — this court has competence to take cognizance of these cases. To recapitulate, the net result of all the foregoing is that by the vote of 3 of 2, the court admitted the Amended Informations in these cases by the unanimous vote of 4 with 1 neither concurring not dissenting, retained jurisdiction to try and decide the cases16 (Empahasis supplied) Petitioner now questions the constitutionality of Section 4 of R.A. No. 8249, including Section 7 thereof which provides that the said law "shall apply to all

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cases pending in any court over which trial has not begun as to the approval hereof." Petitioner argues that: a) The questioned provisions of the statute were introduced by the authors thereof in bad faith as it was made to precisely suit the situation in which petitioner's cases were in at the Sandiganbayan by restoring jurisdiction thereof to it, thereby violating his right to procedural due process and the equal protection clause of the Constitution. Further, from the way the Sandiganbayan has foot-dragged for nine (9) months the resolution of a pending incident involving the transfer of the cases to the Regional Trial Court, the passage of the law may have been timed to overtake such resolution to render the issue therein moot, and frustrate the exercise of petitioner's vested rights under the old Sandiganbayan law (RA 7975) b) Retroactive application of the law is plan from the fact that it was again made to suit the peculiar circumstances in which petitioner's cases were under, namely, that the trial had not yet commenced, as provided in Section 7, to make certain that those cases will no longer be remanded to the Quezon City Regional Trial Court, as the Sandiganbayan alone should try them, thus making it an ex post factolegislation and a denial of the right of petitioner as an accused in Criminal Case Nos. 23047-23057 to procedural due process. c) The title of the law is misleading in that it contains the aforesaid "innocuous" provisions in Sections 4 and 7 which actually expands rather than defines the old Sandiganbayan law (RA 7975), thereby violating the one-title one-subject requirement for the passage of statutes under Section 26 (1), Article VI of the Constitution.17 For their part, the intervenors, in their petition-in-intervention, add that "while Republic Act No. 8249 innocuously appears to have merely expanded the jurisdiction of the Sandiganbayan, the introduction of Section 4 and 7 in said statute impressed upon it the character of a class legislation and an ex-post facto statute intended to apply specifically to the accused in the Kuratong Baleleng case pending before the Sandiganbayan.18 They further argued that if their case is tried before the Sandiganbayan their right to procedural due process would be violated as they could no longer avail of the two-tiered appeal to the Sandiganbayan, which they acquired under R.A. 7975, before recourse to the Supreme Court. Both the Office of the Ombudsman and the Solicitor-General filed separate pleadings in support of the constitutionality of the challenged provisions of the law in question and praying that both the petition and the petition-in-intervention be dismissed. This Court then issued a Resolution19 requiring the parties to file simultaneously within a nonextendible period of ten (10) days from notice thereof additional

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memoranda on the question of whether the subject amended informations filed a Criminal Case Nos. 23047-23057 sufficiently allege the commission by the accused therein of the crime charged within the meaning Section 4 b of Republic Act No. 8249, so as to bring the said cases within the exclusive original jurisdiction of the Sandiganbayan. The parties, except for the Solicitor General who is representing the People of the Philippines, filed the required supplemental memorandum within the nonextendible reglementary period. The established rule is that every law has in its favor the presumption of constitutionality, and to justify its nullification there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative one. 20 The burden of proving the invalidity of the law lies with those who challenge it. That burden, we regret to say, was not convincingly discharged in the present case. The creation of the Sandiganbayn was mandated in Section 5, Article XIII of the 1973 Constitution, which provides: Sec. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees including those in government-owned or controlled corporations, in relation to their office as may be determined by law. The said special court is retained in the new (1987) Constitution under the following provisions in Article XI, Section 4: Sec. 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. Pursuant to the constitutional mandate, Presidential Decree No. 1486 21 created the Sandiganbayan. Thereafter, the following laws on the Sandiganbayan, in chronological order, were enacted: P.D. No. 1606,22 Section 20 of Batas Pambansa Blg. 123,23 P.D. No. 1860,24 P.D. No. 1861,25 R.A. No. 7975, 26 and R.A. No. 8249.27 Under the latest amendments introduced by Section 4 of R.A. No. 8249, the Sandiganbayan has jurisdiction over the following cases: Sec 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further amended to read as follows: Sec. 4. Jurisdiction — The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:

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a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Titile VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine Army and air force colonels, naval captains, and all officers of higher rank; (e) Officers of the Philippines National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher. (f) City of provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees or managers of governmentowned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress or officials thereof classified as-Grade "27" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution;

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(5) All other national and local officials classified as Grade "27" or higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in Subsection a of this section in relation to their office. c. Civil and criminal cases filed pursuant to and connection with Executive Orders Nos. 1,2, 14 and 14-A, issued in 1986. In cases where none of the accused are occupying positions corresponding to salary Grade "27" or higher, as prescribed in the said Republic Act 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their jurisdictions as privided in Batas Pambansa Blg. 129, as amended. The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. The Sandiganbayan shall have exclusive original jurisdiction over petitions of the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14, and 4-A, issued in 1986. In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employee, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.

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Sec. 7 of R.A. No. 8249 states: Sec. 7. Transitory provision — This act shall apply to all cases pending in any court over which trial has not begun as of the approval hereof. (Emphasis supplied) The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A. 7975 provides: Sec. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended) is hereby further amended to read as follows: Sec 4. Jurisdiction — The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the pricipal accused are afficials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineer, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine Army and air force colonels, naval captains, and all officers of higher rank; (e) PNP chief superintendent and PNP officers of higher rank;

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(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress or officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; (5) All other national and local officials classified as Grade "27" or higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies committed by the public officials and employees mentioned in Subsection a of this section in relation to their office. c. Civil and criminal cases files pursuant to and in connection with Executive Order Nos. 1, 2, 14, and 4-A. In cases where none of the principal accused are occupying positions corresponding to salary Grade "27" or higher, as presribed in the said Republic Act 6758, or PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129. The Sandiganbayan shall exercise exclusive appellate jurisdiction on appelas from the final judgment, resolutions or orders of regular court where all the accused are occupying positions lower than grade "27," or not otherwise covered by the preceding enumeration. In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees,

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including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall have exclusive jurisdiction over them. Sec. 7 of R.A. No. 7975 reads: Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial has not begun in the Sandiganbayan shall be referred to the proper courts. Under paragraphs a and c, Section 4 of R.A. 8249, the word "principal" before the word "accused" appearing in the above-quoted Section 2 (paragraphs a and c) of R.A. 7975, was deleted. It is due to this deletion of the word "principal" that the parties herein are at loggerheads over the jurisdiction of the Sandiganbayan. Petitioner and intervenors, relying on R.A. 7975, argue that the Regional Trial Court, not the Sandiganbayan, has jurisdiction over the subject criminal cases since none of the principal accused under the amended information has the rank of Superintendent28 or higher. On the other hand, the Office of the Ombudsman, through the Special Prosecutor who is tasked to represent the People before the Supreme Court except in certain cases,29 contends that the Sandiganbayan has jurisdiction pursuant to R.A. 8249. A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive original jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law on bribery),30 (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration cases),31 or (e) other offenses or felonies whether simple or complexed with other crimes; (2) the offender comitting the offenses in items (a), (b), (c) and (e) is a public official or employee32holding any of the positions enumerated in paragraph a of Section 4; and (3) the offense committed is in relation to the office. Considering that herein petitioner and intervenors are being charged with murder which is a felony punishable under Title VIII of the Revised Penal Code, the governing on the jurisdictional offense is not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of (Section 4, R.A. 8249) in relation to their office. "The phrase" other offenses or felonies" is too broad as to include the crime of murder, provided it was committed in relation to the accused's officials functions. Thus, under said paragraph b, what determines the Sandiganbayan's jurisdiction is the official position or rank of the offender — that is, whether he is one of those public officers or employees enumerated in paragraph a of Section 4. The offenses mentioned in pargraphs a, b and c of the same Section 4 do not make any reference to the criminal participation of the accused public officer as to whether he is charged as a principal, accomplice or accessory. In enacting R.A.

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8249, the Congress simply restored the original provisions of P.D. 1606 which does not mention the criminal participation of the public officer as a requisite to determine the jurisdiction of the Sandiganbayan. Petitioner and entervenors' posture that Section 4 and 7 of R.A. 8249 violate their right to equal protection of the law33 because its enactment was particularly directed only to the Kuratong Baleleng cases in the Sandiganbayan, is a contention too shallow to deserve merit. No concrete evidence and convincing argument were presented to warrant a declaration of an act of the entire Congress and signed into law by the highest officer of the co-equal executive department as unconstitutional. Every classification made by law is presumed reasonable. Thus, the party who challenges the law must present proof of arbitrariness.34 It is an established precept in constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on reasonable classification. The classification is reasonable and not arbitrary when there is concurrence of four elements, namely: (1) it must rest on substantial distinction; (2) it must be germane to the purpose of the law; (3) must not be limited to existing conditions only, and (4) must apply equaly to all members of the same class,35 all of which are present in this case. The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of constitutionality and reasonables of the questioned provisions. The classification between those pending cases involving the concerned public officials whose trial has not yet commence and whose cases could have been affected by the amendments of the Sandiganbayan jurisdiction under R.A. 8249, as against those cases where trial had already started as of the approval of the law, rests on substantial distinction that makes real differences.36 In the first instance, evidence against them were not yet presented, whereas in the latter the parties had already submitted their respective proofs, examined witnesses and presented documents. Since it is within the power of Congress to define the jurisdiction of courts subject to the constitutional limitations,37 it can be reasonably anticipated that an alteration of that jurisdiction would necessarily affect pending cases, which is why it has to privide for a remedy in the form of a transitory provision. Thus, petitioner and intervenors cannot now claim that Sections 4 and 7 placed them under a different category from those similarly situated as them. Precisely, paragraph a of Section 4 provides that it shall apply to "all case involving" certain public officials and, under the transitory provision in Section 7, to "all cases pending in any court." Contrary to petitioner and intervenors' argument, the law is not particularly directed only to the

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Kuratong Baleleng cases. The transitory provision does not only cover cases which are in the Sandiganbayan but also in "any court." It just happened that Kuratong Baleleng cases are one of those affected by the law. Moreover, those cases where trial had already begun are not affected by the transitory provision under Section 7 of the new law (R.A. 8249). In their futile attempt to have said sections nullified, heavy reliance is premised on what is perceived as bad faith on the part of a Senator and two Justices of the Sandiganbaya38 for their participation in the passage of the said provisions. In particular, it is stressed that the Senator had expressed strong sentiments against those officials involved in the Kuratong Baleleng cases during the hearings conducted on the matter by the committee headed by the Senator. Petitioner further contends that the legislature is biased against him as he claims to have been selected from among the 67 million other Filipinos as the object of the deletion of the word "principal" in paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory provision of R.A. 8249.39 R.A 8249, while still a bill, was acted, deliberated, considered by 23 other Senators and by about 250 Representatives, and was separately approved by the Senate and House of Representatives and, finally, by the President of the Philippines. On the perceived bias that the Sandiganbayan Justices allegedly had against petitioner during the committe hearings, the same would not constitute sufficient justification to nullify an otherwise valid law. Their presence and participation in the legislative hearings was deemed necessary by Congress since the matter before the committee involves the graft court of which one is the head of the Sandiganbayan and the other a member thereof. The Congress, in its plenary legislative powers, is particularly empowered by the Constitution to invite persons to appear before it whenever it decides to conduct inquiries in aid of legislation.40 Petitioner and entervenors further further argued that the retroactive application of R.A. 8249 to the Kuratong Baleleng cases constitutes an ex post facto law41 for they are deprived of their right to procedural due process as they can no longer avail of the two-tiered appeal which they had allegedly acquired under R.A. 7975. Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v. Bull,42 an ex post factolaw is one — (a) which makes an act done criminal before the passing of the law and which was innocent when committed, and punishes such action; or (b) which aggravates a crime or makes it greater than when it was committed; or (c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed.

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(d) which alters the legal rules of evidence and recieves less or different testimony that the law required at the time of the commission of the offense on order to convict the defendant.43 (e) Every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage.44 This Court added two more to the list, namely: (f) that which assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; (g) deprives a person accussed of crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of a amnesty.45 Ex post facto law, generally, prohibits retrospectivity of penal laws.46 R.A. 8249 is not penal law. It is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations;47 or those that define crimes, treat of their nature, and provide dor their punishment.48 R.A 7975, which amended P.D. 1606 as regards the Sandiganbayan's jurisdiction, its mode of appeal and other procedural matters, has been declared by the Court as not a penal law, but clearly a procedural statute, i.e. one which prescribes rules of procedure by which courts applying laws of all kinds can properly administer justice.49 Not being a penal law, the retroactive application of R.A. 8249 cannot be challenged as unconstitutional. Petitioner's and entervenors' contention that their right to a two-tiered appeal which they acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention has already been rejected by the court several times50 considering that the right to appeal is not a natural right but statutory in nature that can be regulated by law. The mode of procedure provided for in the statutory right of appeal is not included in the prohibition against ex post facto laws.51 R.A. 8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out a penalty and, therefore, does not come within the prohibition.52 Moreover, the law did not alter the rules of evidence or the mode of trial.53 It has been ruled that adjective statutes may be made applicable to actions pending and unresolved at the time of their passage.54 In any case; R.A. 8249 has preserved the accused's right to appeal to the Supreme Court to review questions of law.55 On the removal of the intermediate review of facts, the Supreme Court still has the power of review to determine if he presumption of innocence has been convincing overcome.56

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Another point. The challenged law does not violate the one-title-one-subject provision of the Constitution. Much emphasis is placed on the wording in the title of the law that it "defines" the Sandiganbayan jurisdiction when what it allegedly does is to "expand" its jurisdiction. The expantion in the jurisdiction of the Sandiganbayan, if it can be considered as such, does not have to be expressly stated in the title of the law because such is the necessary consequence of the amendments. The requirement that every bill must only have one subject expressed in the title57is satisfied if the title is comprehensive enough, as in this case, to include subjects related to the general purpose which the statute seeks to achieve.58 Such rule is liberally interpreted and should be given a practical rather than a technical construction. There is here sufficient compliance with such requirement, since the title of R.A. 8249 expresses the general subject (involving the jurisdiction of the Sandiganbayan and the amendment of P.D. 1606, as amended) and all the provisions of the law are germane to that general subject.59 The Congress, in employing the word "define" in the title of the law, acted within its power since Section 2, Article VIII of the Constitution itself empowers the legislative body to "define, prescribe, and apportion the jurisdiction of various courts. 60 There being no unconstitutional infirmity in both the subject amendatory provision of Section 4 and the retroactive procedural application of the law as provided in Section 7 of R.A. No. 8249, we shall now determine whether under the allegations in the Informations, it is the Sandiganbayan or Regional Trial Court which has jurisdictions over the multiple murder case against herein petitioner and entervenors. The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition must appear in the complaint or information so as to ascertain which court has jurisdiction over a case. Hence the elementary rule that the jurisdiction of a court is determined by the allegations in the complaint or informations,61 and not by the evidence presented by the parties at the trial.62 As stated earlier, the multiple murder charge against petitioner and intervenors falls under Section 4 [paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be committed by the offender in relation to his office in order for the Sandiganbayan to have jurisdiction over it.63 This jurisdictional requirement is in accordance with Section 5, Article XIII of the 1973 Constitution which mandated that the Sandiganbayan shall have jurisdiction over criminal cases committed by the public officers and employees, including those in goverment-owned or controlled corporations, "in relation to their office as may be determined by law." This constitutional mandate was reiterated in the new (1987) Constitution when it declared in Section 4 thereof that the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. The remaining question to be resolved then is whether the offense of multiple murder was committed in relation to the office of the accussed PNP officers. In People vs. Montejo,64 we held that an offense is said to have been committed in relation to the office if it (the offense) is "intimately connected" with the office of

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the offender and perpetrated while he was in the performance of his official functions.65 This intimate relation between the offense charged and the discharge of official duties "must be alleged in the informations."66 As to how the offense charged be stated in the informations, Section 9, Rule 110 of the Revised Rules of Court mandates: Sec. 9 Couse of accusation — The acts or omissions complied of as constituting the offense must be stated in ordinary and concise language without repetition not necessarily in the terms of the statute defining the offense, but in such from as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. (Emphasis supplied) As early as 1954 we pronounced that "the factor that characterizes the charge is the actual recital of the facts."67The real nature of the criminal charge is determined not from the caption or preamble of the informations nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information.68 The noble object or written accusations cannot be overemphasized. This was explained in U.S. v. Karelsen: 69 The object of this written accusations was — First; To furnish the accused with such a descretion of the charge against him as will enable him to make his defense and second to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause and third, to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be had. In order that the requirement may be satisfied, facts must be stated, not conclusions of law. Every crime is made up of certain acts and intent these must be set forth in the complaint with reasonable particularly of time, place, names (plaintiff and defendant) and circumstances. In short, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged. (Emphasis supplied) It is essential, therefore, that the accused be informed of the facts that are imputed to him as "he is presumed to have no indefendent knowledge of the facts that constitute the offense."70 Applying these legal principles and doctrines to the present case, we find the amended informations for murder against herein petitioner and intervenors wanting of specific factual averments to show the intimate relation/connection

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between the offense charged and the discharge of official function of the offenders. In the present case, one of the eleven (11) amended informations71 for murder reads: AMENDED INFORMATIONS The undersigned Special Prosecution Officer III. Office of the Ombudsman hereby accuses CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE P. ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, SPO1 OSMUNDO B. CARINO, CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMEO M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO III, CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, SPO2 NORBERTO LASAGA, PO2 LEONARDO GLORIA, and PO2 ALEJANDRO G. LIWANAG of the crime of Murder as defined and penalize under Article 248 of the Revised Penal Code committed as follows That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon City Philippines and within the jurisdiction of his Honorable Court, the accused CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, and SPO1 OSMUNDO B. CARINO, all taking advantage of their public and official positions as officers and members of the Philippine National Police and committing the acts herein alleged in relation to their public office, conspiring with intent to kill and using firearms with treachery evident premeditation and taking advantage of their superior strenghts did then and there willfully unlawfully and feloniously shoot JOEL AMORA, thereby inflicting upon the latter mortal wounds which caused his instantaneous death to the damage and prejudice of the heirs of the said victim. That accused CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMOE M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIAM JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO II, CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, PO2

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ALEJANDRO G. LIWANAG committing the acts in relation to office as officers and members of the Philippine National Police are charged herein as accessories after-the-fact for concealing the crime herein above alleged by among others falsely representing that there where no arrest made during the read conducted by the accused herein at Superville Subdivision, Paranaque, Metro Manila on or about the early dawn of May 18, 1995. CONTRARY LAW. While the above-quoted information states that the above-named principal accused committed the crime of murder "in relation to thier public office, there is, however, no specific allegation of facts that the shooting of the victim by the said principal accused was intimately related to the discharge of their official duties as police officers. Likewise, the amended information does not indicate that the said accused arrested and investigated the victim and then killed the latter while in their custody. Even the allegations concerning the criminal participation of herein petitioner and intevenors as among the accessories after-the-facts, the amended information is vague on this. It is alleged therein that the said accessories concelead "the crime herein-above alleged by, among others, falsely representing that there were no arrests made during the raid conducted by the accused herein at Superville Subdivision, Paranaque Metro Manila, on or about the early dawn of May 18, 1995." The sudden mention of the "arrests made during the raid conducted by the accused" surprises the reader. There is no indication in the amended information that the victim was one of those arrested by the accused during the "raid." Worse, the raid and arrests were allegedly conducted "at Superville Subdivision, Paranaque, Metro Manila" but, as alleged in the immediately preceding paragraph of the amended information, the shooting of the victim by the principal accused occurred in Mariano Marcos Avenue, Quezon City." How the raid, arrests and shooting happened in the two places far away from each other is puzzling. Again, while there is the allegation in the amended information that the said accessories committed the offense "in relation to office as officers and members of the (PNP)," we, however, do not see the intimate connection between the offense charged and the accused's official functions, which, as earlier discussed, is an essential element in determining the jurisdiction of the Sandiganbayan. The stringent requirement that the charge be set forth with such particularly as will reasonably indicate the exact offense which the accused is alleged to have committed in relation to his office was, sad to say, not satisfied. We believe that the mere allegation in the amended information that the offense was committed by the accused public officer in relation to his office is not sufficient. That phrase is merely a conclusion between of law, not a factual avernment that would show the close intimacy between the offense charged and the discharge of the accused's official duties.

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In People vs. Magallanes, 72 where the jurisdiction between the Regional Trial Court and the Sandiganbayan was at issue, we ruled: It is an elementary rule that jurisdiction is determined by the allegations in the complaint or information and not by the result of evidence after trial. In (People vs) Montejo (108 Phil 613 (1960), where the amended information alleged Leroy S. Brown City Mayor of Basilan City, as such, has organized groups of police patrol and civilian commandoes consisting of regular policeman and . . . special policemen appointed and provided by him with pistols and higher power guns and then established a camp . . . at Tipo-tipo which is under his command . . . supervision and control where his codefendants were stationed entertained criminal complaints and conducted the corresponding investigations as well as assumed the authority to arrest and detain person without due process of law and without bringing them to the proper court, and that in line with this set-up established by said Mayor of Basilan City as such, and acting upon his orders his codefendants arrested and maltreated Awalin Tebag who denied in consequence thereof. we held that the offense charged was committed in relation to the office of the accused because it was perpetreated while they were in the performance, though improper or irregular of their official functions and would not have been committed had they not held their office, besides, the accused had no personal motive in committing the crime thus, there was an intimate connection between the offense and the office of the accused. Unlike in Montejo the informations in Criminal Cases Nos. 15562 and 15563 in the court below do not indicate that the accused arrested and investigated the victims and then killed the latter in the course of the investigation. The informations merely allege that the accused for the purpose of extracting or extortin the sum of P353,000.00 abducted, kidnapped and detained the two victims, and failing in their common purpose they shot; and killed the said victims. For the purpose of determining jurisdiction, it is these allegations that shall control, and not the evidence presented by the prosecution at the trial. In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in relation to public office "does not appear in the information, which only signifies that the said phrase is not what determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factual allegations in the

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information that would indicate the close intimacy between the discharge of the accused's official duties and the commission of the offense charged, in order to qualify the crime as having been committed in relation to public office. Consequently, for failure to show in the amended informations that the charge of murder was intimately connected with the discharge of official functions of the accused PNP officers, the offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive original jurisdiction of the Regional Trial Court,73 not the Sandiganbayan. WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is hereby sustained. The Addendum to the March 5, 1997 Resolution of the Sandiganbayan is REVERSED. The Sandiganbayan is hereby directed to transfer Criminal Cases Nos. 23047 to 23057 (for multiple murder) to the Regional Trial Court of Quezon City which has exclusive original jurisdiction over the said cases.1âwphi1.nêt SO ORDERED.

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