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Habeas corpus - cases 1. illusorio vs illusorio 332 scra 169 2. Serapio vs sandiganbayan 396 s 443 3.

lacson vs perez 357 s 756 4. pulido vs abu 526 s 483 5. sangca vs city prosecutor of cebu Change of name vs correction of entries (103 and 108) Ra 9048 1. Eleosida vs local civil registrar of qc and carlos villena borbon 2. republic vs kho 3. kilosbayan foundation vs ermita 4. republic vs capote 5. petition for change of name of julian lim carulason wang 6. cervila vs delantar + (the silverio case and kagandahan case)

SUPREME COURT Manila FIRST DIVISION G.R. No. 139789 July 19, 2001

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF POTENCIANO ILUSORIO, ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA K. ILUSORIO-BILDNER, SYLVIA K. ILUSORIO-YAP, JOHN DOES and JANE DOES, respondents. x---------------------------------------------------------x G.R. No. 139808 July 19, 2001 POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, petitioners, vs. HON. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents. RESOLUTION PARDO, J.: Once again we see the sad tale of a prominent family shattered by conflicts on expectancy in fabled fortune. On March 11, 1999, Erlinda K. Ilusorio, the matriarch who was so lovingly inseparable from her husband some years ago, filed a petition with the Court of Appeals1 for habeas corpus to have custody of her husband in consortium. On April 5, 1999, the Court of Appeals promulgated its decision dismissing the petition for lack of unlawful restraint or detention of the subject, Potenciano Ilusorio. Thus, on October 11, 1999, Erlinda K. Ilusorio filed with the Supreme Court an appeal via certiorari pursuing her desire to have custody of her husband Potenciano Ilusorio.2 This case was consolidated with another case3 filed by Potenciano Ilusorio and his children, Erlinda I. Bildner and Sylvia K. Ilusorio appealing from the order giving visitation rights to his wife, asserting that he never refused to see her. On May 12, 2000, we dismissed the petition for habeas corpus4 for lack of merit, and granted the petition5 to nullify the Court of Appeals' ruling6 giving visitation rights to Erlinda K. Ilusorio.7 What is now before the Court is Erlinda's motion to reconsider the decision. 8

On September 20, 2000, we set the case for preliminary conference on October 11, 2000, at 10:00 a. m., without requiring the mandatory presence of the parties. In that conference, the Court laid down the issues to be resolved, to wit: (a) To determine the propriety of a physical and medical examination of petitioner Potenciano Ilusorio; (b) Whether the same is relevant; and (c) If relevant, how the Court will conduct the same.9 The parties extensively discussed the issues. The Court, in its resolution, enjoined the parties and their lawyers to initiate steps towards an amicable settlement of the case through mediation and other means. On November 29, 2000, the Court noted the manifestation and compliance of the parties with the resolution of October 11, 2000.10 On January 31, 2001, the Court denied Erlinda Ilusorio's manifestation and motion praying that Potenciano Ilusorio be produced before the Court and be medically examined by a team of medical experts appointed by the Court. 11 On March 27, 2001, we denied with finality Erlinda's motion to reconsider the Court's order of January 31 , 2001.12 The issues raised by Erlinda K. Ilusorio in her motion for reconsideration are mere reiterations of her arguments that have been resolved in the decision. Nevertheless, for emphasis, we shall discuss the issues thus: First. Erlinda K. Ilusorio claimed that she was not compelling Potenciano to live with her in consortium and that Potenciano's mental state was not an issue. However, the very root cause of the entire petition is her desire to have her husband's custody.13 Clearly, Erlinda cannot now deny that she wanted Potenciano Ilusorio to live with her. Second. One reason why Erlinda K. Ilusorio sought custody of her husband was that respondents Lin and Sylvia were illegally restraining Potenciano Ilusorio to fraudulently deprive her of property rights out of pure greed. 14 She claimed that her two children were using their sick and frail father to sign away Potenciano and Erlinda's property to companies controlled by Lin and Sylvia. She also argued that since Potenciano retired as director and officer of Baguio Country Club and Philippine Oversees Telecommunications, she would logically assume his position and control. Yet, Lin and Sylvia were the ones controlling the corporations.15 The fact of illegal restraint has not been proved during the hearing at the Court of Appeals on March 23, 1999. 16Potenciano himself declared that he was not prevented by his children from seeing anybody and that he had no objection to seeing his wife and other children whom he loved. Erlinda highlighted that her husband suffered from various ailments. Thus, Potenciano Ilusorio did not have the mental capacity to decide for himself. Hence, Erlinda argued that Potenciano be brought before the Supreme Court so that we could determine his mental state. We were not convinced that Potenciano Ilusorio was mentally incapacitated to choose whether to see his wife or not. Again, this is a question of fact that has been decided in the Court of Appeals. As to whether the children were in fact taking control of the corporation, these are matters that may be threshed out in a separate proceeding, irrelevant in habeas corpus. Third. Petitioner failed to sufficiently convince the Court why we should not rely on the facts found by the Court of Appeals. Erlinda claimed that the facts mentioned in the decision were erroneous and incomplete. We see no reason why the High Court of the land need go to such length. The hornbook doctrine states that findings of fact of the lower courts are conclusive on the Supreme Court.17 We emphasize, it is not for the Court to weigh evidence all over again. 18 Although there are exceptions to the rule,19 Erlinda failed to show that this is an exceptional instance. Fourth. Erlinda states that Article XII of the 1987 Constitution and Articles 68 and 69 of the Family Code support her position that as spouses, they (Potenciano and Erlinda) are duty bound to live together and care for each other. We agree.

The law provides that the husband and the wife are obliged to live together, observe mutual love, respect and fidelity. 20 The sanction therefor is the "spontaneous, mutual affection between husband and wife and not any legal mandate or court order" to enforce consortium.21 Obviously, there was absence of empathy between spouses Erlinda and Potenciano, having separated from bed and board since 1972. We defined empathy as a shared feeling between husband and wife experienced not only by having spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way process. Marriage is definitely for two loving adults who view the relationship with "amor gignit amorem" respect, sacrifice and a continuing commitment to togetherness, conscious of its value as a sublime social institution.22 On June 28, 2001, Potenciano Ilusorio gave his soul to the Almighty, his Creator and Supreme Judge. Let his soul rest in peace and his survivors continue the much prolonged fracas ex aequo et bono. IN VIEW WHEREOF, we DENY Erlinda's motion for reconsideration. At any rate, the case has been rendered moot by the death of subject. SO ORDERED. Davide, Jr., C .J ., Puno, Kapunan and Ynares-Santiago, JJ ., concur.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 148468 January 28, 2003

ATTY. EDWARD SERAPIO, petitioner, vs.

SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES, and PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL LEANDRO MENDOZA, respondents. x---------------------------------------------------------x G.R. No. 148769 January 28, 2003

EDWARD SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. x---------------------------------------------------------x G.R. No. 149116 January 28, 2003

EDWARD SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN (THIRD DIVISION) and PEOPLE OF THE PHILIPPINES, respondents. CALLEJO, SR., J.: Before the Court are two petitions for certiorari filed by petitioner Edward Serapio, assailing the resolutions of the Third Division of the Sandiganbayan denying his petition for bail, motion for a reinvestigation and motion to quash, and a petition for habeas corpus, all in relation to Criminal Case No. 26558 for plunder wherein petitioner is one of the accused together with former President Joseph E. Estrada, Jose "Jinggoy" P. Estrada and several others. The records show that petitioner was a member of the Board of Trustees and the Legal Counsel of the Erap Muslim Youth Foundation, a non-stock, non-profit foundation established in February 2000 ostensibly for the purpose of providing educational opportunities for the poor and underprivileged but deserving Muslim youth and students, and support to research and advance studies of young Muslim educators and scientists. Sometime in April 2000, petitioner, as trustee of the Foundation, received on its behalf a donation in the amount of Two Hundred Million Pesos (P200 Million) from Ilocos Sur Governor Luis "Chavit" Singson through the latter's assistant Mrs. Yolanda Ricaforte. Petitioner received the donation and turned over the said amount to the Foundation's treasurer who later deposited it in the Foundation's account with the Equitable PCI Bank. In the latter part of the year 2000, Gov. Singson publicly accused then President Joseph E. Estrada and his cohorts of engaging in several illegal activities, including its operation on the illegal numbers game known asjueteng. This triggered the filing with the Office of the Ombudsman of several criminal complaints against Joseph Estrada, Jinggoy Estrada and petitioner, together with other persons. Among such complaints were: Volunteers Against Crime and Corruption, versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1754; Graft Free Philippines Foundation, Inc., versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1755; and Leonardo De Vera, Romeo T. Capulong and Dennis B. Funa, versus Joseph Estrada, Yolanda Ricaforte, Edward Serapio, Raul De Guzman, Danilo Reyes and Mila Reforma, docketed as OMB Crim. Case No. 0-00-1757. Subsequently, petitioner filed his Counter-Affidavit dated February 21, 2001. The other respondents likewise filed their respective counter-affidavits. The Office of the Ombudsman conducted a preliminary investigation of the complaints and on April 4, 2001, issued a joint resolution recommending, inter alia, that Joseph Estrada, petitioner and several others be charged with the criminal offense of plunder. On April 4, 2001, the Ombudsman filed with the Sandiganbayan several Informations against former President Estrada, who earlier had resigned from his post as President of the Republic of the Philippines. One of these Informations, docketed as Criminal Case No. 26558, charged Joseph Estrada with plunder. On April 18, 2001, the Ombudsman filed an amended Information in said case charging Estrada and several co-accused, including petitioner, with said crime. No bail was recommended for the provisional release of all the accused, including petitioner. The case was raffled to a special division which was subsequently created by the Supreme Court. The amended Information reads: "That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES MONEY IN THE AGGREGATE AMOUNT OF FIVE

HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit public fund in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS [P200,000,000.00]) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES; (c) by directing, ordering and compelling FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE, 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OR MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [189,700,000.00] MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME "JOSE VELARDE"; (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME "JOSE VELARDE" AT THE EQUITABLE-PCI BANK. CONTRARY TO LAW."1 On April 5, 2001, petitioner obtained a copy of the Ombudsman's Joint Resolution finding probable cause against him for plunder. The next day, April 6, 2001, he filed with the Office of the Ombudsman a Motion for Reconsideration and/or Reinvestigation.2 Petitioner likewise filed on said date, this time with the Sandiganbayan, an Urgent Omnibus Motion: (a) To Hold in Abeyance the Issuance of Warrant of Arrest and Further Proceedings; (b) To Conduct a Determination of Probable Cause; (c) For Leave to File Accused's Motion for Reconsideration and/or Reinvestigation; and (d) To Direct the Ombudsman to Conduct a Reinvestigation of the Charges against accused Edward Serapio.3 On April 10, 2001, the Ombudsman issued an order denying petitioner's motion for reconsideration and/or reinvestigation on the ground of lack of jurisdiction since the amended Information charging petitioner with plunder had already been filed with the Sandiganbayan. 4 In a parallel development, the Sandiganbayan issued a Resolution on April 25, 2001 in Criminal Case No. 26558 finding probable cause to justify the issuance of warrants of arrest for the accused, including petitioner. Accordingly, the Sandiganbayan issued an Order on the same date for the arrest of petitioner.5 When apprised of said order, petitioner voluntarily surrendered at 9:45 p.m. on the same day to Philippine National Police Chief Gen. Leandro Mendoza. Petitioner has since been detained at Camp Crame for said charge. The Sandiganbayan set the arraignment of the accused, including petitioner, in Criminal Case No. 26558 on June 27, 2001. In the meantime, on April 27, 2001, petitioner filed with the Sandiganbayan an Urgent Petition for Bail which was set for hearing on May 4, 2001. 6 For his part, petitioner's co-accused Jose "Jinggoy" Estrada filed on April 20, 2001 a Very Urgent Omnibus Motion alleging that he was entitled to bail as a matter of right. During the hearing on May 4, 2001 on petitioner's Urgent Petition for Bail, the prosecution moved for the resetting of the arraignment of the accused earlier than the June 27, 2001 schedule. However, the Sandiganbayan denied the motion of the prosecution and issued an order declaring that the petition for bail can and should be heardbefore petitioner's arraignment on June 27, 2001 and even before the other accused in Criminal Case No. 26558 filed their respective petitions for bail. Accordingly, the Sandiganbayan set the hearing for the reception of evidence on petitioner's petition for bail on May 21 to 25, 2001. On May 17, 2001, four days before the hearing on petitioner's petition for bail, the Ombudsman filed an urgent motion for early arraignment of Joseph Estrada, Jinggoy Estrada and petitioner and a motion for joint bail hearings of Joseph Estrada, Jinggoy Estrada and petitioner. The following day, petitioner filed a manifestation questioning the propriety of including Joseph Estrada and Jinggoy Estrada in the hearing on his (petitioner's) petition for bail. The Sandiganbayan issued a Resolution on May 18, 2001 resetting the hearings on petitioner's petition for bail to June 18 to 28, 2001 to enable the court to resolve the prosecution's pending motions as well as petitioner's motion that his petition for bail be heard as early as possible, which motion the prosecution opposed. On May 31, 2001, the Sandiganbayan issued a Resolution denying petitioner's April 6, 2001 Urgent Omnibus Motion. The court ruled that the issues posed by petitioner had already been resolved in its April 25, 2001 Resolution finding probable cause to hold petitioner and his co-accused for trial.7 Petitioner filed a motion for reconsideration of the said May 31, 2001 Resolution.

On June 1, 2001, the Sandiganbayan issued a resolution requiring the attendance of petitioner as well as all the other accused in Criminal Case No. 26558 during the hearings on the petitions for bail under pain of waiver of cross-examination. The Sandiganbayan, citing its inherent powers to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case, directed the other accused to participate in the said bail hearing considering that under Section 8, Rule 114 of the Revised Rules of Court, whatever evidence is adduced during the bail hearing shall be considered automatically reproduced at the trial.8 However, instead of proceeding with the bail hearing set by it on June 18, 2001, the Sandiganbayan issued an Order on June 15, 2001 canceling the said bail hearing due to pending incidents yet to be resolved and reset anew the hearing to June 26, 2001. 9 On the eve of said hearing, the Sandiganbayan issued a resolution denying petitioner's motion for reconsideration of its May 31, 2001 Resolution. The bail hearing on June 26, 2001 did not again proceed because on said date petitioner filed with the Sandiganbayan a motion to quash the amended Information on the grounds that as against him, the amended Information does not allege a combination or series of overt or criminal acts constitutive of plunder; as against him, the amended Information does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy; the money alleged in paragraph (a) of the amended Information to have been illegally received or collected does not constitute "ill-gotten wealth" as defined in Section 1(d) of Republic Act No. 7080; and the amended Information charges him of bribery and illegal gambling.10 By way of riposte, the prosecution objected to the holding of bail hearing until petitioner agreed to withdraw his motion to quash. The prosecution contended that petitioner's motion to quash the amended Information was antithetical to his petition for bail. The Sandiganbayan reset the arraignment of accused and the hearing on the petition for bail of petitioner in Criminal Case No. 26558 for July 10, 2001 to enable it to resolve the pending incidents and the motion to quash of petitioner. However, even before the Sandiganbayan could resolve the pending motions of petitioner and the prosecution, petitioner filed with this Court on June 29, 2001 a Petition for Habeas Corpus and Certiorari,docketed as G.R. No. 148468, praying that the Court declare void the questioned orders, resolutions and actions of the Sandiganbayan on his claim that he was thereby effectively denied of his right to due process. Petitioner likewise prayed for the issuance of a writ of habeas corpus; that the People be declared to have waived their right to present evidence in opposition to his petition for bail; and, premised on the failure of the People to adduce strong evidence of petitioner's guilt of plunder, that he be granted provisional liberty on bail after due proceedings.11 Meanwhile, on June 28, 2001, Jose "Jinggoy" Estrada filed with the Sandiganbayan a motion praying that said court resolve his motion to fix his bail. On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioner's motion to quash the amended Information. Petitioner, through counsel, received on said date a copy of said resolution.12 The motion to fix bail filed by Jose "Jinggoy" Estrada was also resolved by the Sandiganbayan. On July 10, 2001, just before his arraignment in Criminal Case No. 26558, petitioner manifested to the Sandiganbayan that he was going to file a motion for reconsideration of the July 9, 2001 Resolution denying his motion to quash and for the deferment of his arraignment. The Sandiganbayan, however, declared that there was no provision in the Rules of Court or in the Sandiganbayan's rules granting the right to petitioner to file a motion for the reconsideration of an interlocutory order issued by it and ordered petitioner to orally argue his motion for reconsideration. When petitioner refused, the Sandiganbayan proceeded with his arraignment. Petitioner refused to plead, impelling the court to enter a plea of not guilty for him. On July 20, 2001, petitioner filed with the Court a Petition for Certiorari, docketed as G.R. No. 148769, alleging that the Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its July 9, 2001 Resolution denying his motion to quash, notwithstanding the fact that material inculpatory allegations of the amended Information against him do not constitute the crime of plunder; and that he is charged, under the said amended Information, for more than one offense. Jose "Jinggoy" Estrada likewise filed petition for certiorari with the Court docketed as G.R. No. 148965 for the nullification of a resolution of the Sandiganbayan denying his motion to fix bail. On August 9, 2001, petitioner filed with the Court another Petition for Certiorari, docketed as G.R. No. 149116, assailing the Sandiganbayan's Resolution dated 31 May 2001 which denied his April 6, 2001 Urgent Omnibus Motion and its June 25, 2001 Resolution denying his motion for reconsideration of its May 31, 2001 Resolution. Re: G.R. No. 148769 Petitioner avers that: THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN DENYING PETITIONER SERAPIO'SMOTION TO QUASH NOTWITHSTANDING THAT I THE FACTS ALLEGED IN THE AMENDED INFORMATION AS AGAINST PETITIONER SERAPIO DO NOT CONSTITUTE THE CRIME OF PLUNDER. A The Amended Information, as against petitioner Serapio, does not allege a combination or series of overt or criminal acts constitutive of plunder. B The Amended Information, as against petitioner Serapio, does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy. C The money described in paragraph (a) of the Amended Information and alleged to have been illegally received or collected does not constitute 'illgotten wealth' as defined in Section 1(d), Republic Act No. 7080, as amended.

II THE AMENDED INFORMATION CHARGES MORE THAN ONE OFFENSE."13 Petitioner asserts that, on the face of the amended Information, he is charged with plunder only in paragraph (a) which reads: "(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;"14 Petitioner asserts that there is no allegation in paragraph (a) of the amended Information of a "combination or series of overt or criminal acts" constituting plunder as described in Section 1(d) of R.A. 7080 as amended. Neither does the amended Information allege "a pattern of criminal acts." He avers that his single act of toleration or protection of illegal gambling impelled by a single criminal resolution does not constitute the requisite "combination or series of acts" for plunder. He further claims that the consideration consisting of gifts, percentages or kickbacks in furtherance of said resolution turned over to and received by former President Joseph E. Estrada "on several occasions" does not cure the defect in the amended information. Petitioner insists that on the face of the amended Information he is charged only with bribery or illegal gambling and not of plunder. Petitioner argues that the P540 million which forms part of the P4,097,804,173.17 amassed by former President Joseph E. Estrada in confabulation with his co-accused is not ill-gotten wealth as defined in Section 1(d) of R.A. 7080. We do not agree with petitioner. Section 6, Rule 110 of the Revised Rules of Criminal Procedure provides that: "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 given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When the offense was committed by more than one person, all of them shall be included in the complaint or information." 15 The acts or omissions complained or must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged and enable the court to know the proper judgment. The Information must allege clearly and accurately the elements of the crime charged. What facts and circumstances are necessary to be included therein must be determined by reference to the definition and elements of the specific crimes. The purpose of the requirement of alleging all the elements of the crime in the Information is to inform an accused of the nature of the accusation against him so as to enable him to suitably prepare for his defense.16 Another purpose is to enable accused, if found guilty, to plead his conviction in a subsequent prosecution for the same offense.17 The use of derivatives or synonyms or allegations of basic facts constituting the offense charged is sufficient.18 In this case, the amended Information specifically alleges that all the accused, including petitioner, connived and conspired with former President Joseph E. Estrada to commit plunder "through any or a combination or a series of overt or criminal acts or similar schemes or means." And in paragraph (a) of the amended Information, petitioner and his co-accused are charged with receiving or collecting, directly or indirectly, on several instances money in the aggregate amount of P545,000,000.00. In Jose "Jinggoy" Estrada vs. Sandiganbayan (Third Division), et al.,19we held that the word "series" is synonymous with the clause "on several instances"; it refers to a repetition of the same predicate act in any of the items in Section 1(d) of the law. We further held that the word "combination" contemplates the commission of at least any two different predicate acts in any of the said items. We ruled that "plainly, subparagraph (a) of the amended information charges accused therein, including petitioner, with plunder committed by a series of the same predicate act under Section 1(d)(2) of the law" and that: "x x x Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in committing the offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1(d) of R.A. No. 7080. x x x."20 It is not necessary to allege in the amended Information a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy because as Section 3 of R.A. 7080 specifically provides, the same is evidentiary and the general rule is that matters of evidence need not be alleged in the Information. 21 The Court also ruled in Jose "Jinggoy" Estrada vs. Sandiganbayan22 that the aggregate amount of P4,097,804,173.17 inclusive of the P545 million alleged in paragraph (a) of the amended information is ill-gotten wealth as contemplated in Section 1, paragraph 1(d) of Republic Act 7080, as amended, and that all the accused in paragraph (a) to (d) of the amended information conspired and confederated with former President Estrada to enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17. Under the amended Information, all the accused, including petitioner, are charged of having conspired and confabulated together in committing plunder. When two or more persons conspire to commit a crime, each is responsible for all the acts of others. In contemplation of law, the act of the conspirator is the act of each of them.23 Conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that the acts, words and declarations of each, while in the pursuit of the common design, are the acts, words and declarations of all. 24

Petitioner asserts that he is charged under the amended information of bribery and illegal gambling and others. The Sandiganbayan, for its part, held that petitioner is not charged with the predicate acts of bribery and illegal gambling but is charged only with one crime that of plunder: "THE ISSUE OF WHETHER OR NOT THE INFORMATION CHARGES MORE THAN ONE OFFENSE According to the accused Estradas and Edward Serapio the information charges more than one offense, namely, bribery (Article 210 of the Revised Penal Code), malversation of public funds or property (Article 217, Revised Penal Code) and violations of Sec. 3(e) of Republic Act (RA No. 3019) and Section 7(d) of RA 6713. This contention is patently unmeritorious. The acts alleged in the information are not charged as separate offenses but as predicate acts of the crime of plunder. It should be stressed that the Anti-Plunder law specifically Section 1(d) thereof does not make any express reference to any specific provision of laws, other than R.A. No. 7080, as amended, which coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated therein. The said acts which form part of the combination or series of act are described in their generic sense. Thus, aside from 'malversation' of public funds, the law also uses the generic terms 'misappropriation', 'conversion' or 'misuse' of said fund. The fact that the acts involved may likewise be penalized under other laws is incidental. The said acts are mentioned only as predicate acts of the crime of plunder and the allegations relative thereto are not to be taken or to be understood as allegations charging separate criminal offenses punished under the Revised Penal Code, the AntiGraft and Corrupt Practices Act and Code of Conduct and Ethical Standards for Public Officials and Employees."25 This Court agrees with the Sandiganbayan. It is clear on the face of the amended Information that petitioner and his co-accused are charged only with one crime of plunder and not with the predicate acts or crimes of plunder. It bears stressing that the predicate acts merely constitute acts of plunder and are not crimes separate and independent of the crime of plunder. Resultantly then, the petition is dismissed. Re: G.R. No. 149116 Petitioner assails the May 31, 2001 Joint Resolution of the Sandiganbayan denying his April 4, 2001 Urgent Omnibus Motion contending that: "GROUNDS FOR THE PETITION THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUMMARILY DENYING PETITIONER SERAPIO'S URGENT OMNIBUS MOTION AND MOTION FOR RECONSIDERATION (RE: RESOLUTION DATED 31 MAY 2001), NOTWITHSTANDING THAT THE OMBUDSMAN HAD TOTALLY DISREGARDED EXCULPATORY EVIDENCE AND COMMITTED GRAVE AND MANIFEST ERRORS OF LAW SERIOUSLY PREJUDICIAL TO THE RIGHTS AND INTERESTS OF PETITIONER SERAPIO, AND THERE IS NO PROBABLE CAUSE TO SUPPORT AN INDICTMENT FOR PLUNDER AS AGAINST PETITIONER SERAPIO." 26 Petitioner claims that the Sandiganbayan committed grave abuse of discretion in denying his omnibus motion to hold in abeyance the issuance of a warrant for his arrest as well as the proceedings in Criminal Case No. 26558; to conduct a determination of probable cause; and to direct the Ombudsman to conduct a reinvestigation of the charges him. Petitioner asseverates that the Ombudsman had totally disregarded exculpatory evidence and committed grave abuse of discretion in charging him with plunder. He further argues that there exists no probable cause to support an indictment for plunder as against him.27 Petitioner points out that the joint resolution of the Ombudsman does not even mention him in relation to the collection and receipt of jueteng money which started in 199828 and that the Ombudsman inexplicably arrived at the conclusion that the Erap Muslim Youth Foundation was a money laundering front organization put up by Joseph Estrada, assisted by petitioner, even though the latter presented evidence that said Foundation is a bona fide and legitimate private foundation.29 More importantly, he claims, said joint resolution does not indicate that he knew that the P200 million he received for the Foundation came from jueteng.30 Petitioner insists that he cannot be charged with plunder since: (1) the P200 million he received does not constitute "ill-gotten wealth" as defined in Section 1(d) of R.A. No. 7080;31 (2) there is no evidence linking him to the collection and receipt of jueteng money;32 (3) there was no showing that petitioner participated in a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, or that his act of receiving the P200 million constitutes an overt criminal act of plunder.33 Petitioner argues further that his motion for reinvestigation is premised on the absolute lack of evidence to support a finding of probable cause for plunder as against him,34 and hence he should be spared from the inconvenience, burden and expense of a public trial. 35 Petitioner also avers that the discretion of government prosecutors is not beyond judicial scrutiny. He asserts that while this Court does not ordinarily look into the existence of probable cause to charge a person for an offense in a given case, it may do so in exceptional circumstances, which are present in this case: (1) to afford adequate protection to the constitutional rights of the accused; (2) for the orderly administration of justice or to avoid oppression; (3) when the acts of the officer are without or in excess of authority; and (4) where the charges are manifestly false and motivated by the lust for vengeance. 36 Petitioner claims that he raised proper grounds for a reinvestigation by asserting that in issuing the questioned joint resolution, the Ombudsman disregarded evidence exculpating petitioner from the charge of plunder and committed errors of law or irregularities which have been prejudicial to his interest. 37 He also states that during the joint preliminary investigations for the various charges against Joseph Estrada and his associates, of which the plunder charge was only one of the eight charges against Estrada et al., he was not furnished with copies of the other complaints nor given the opportunity to refute the evidence presented in relation to the other seven cases, even though the evidence presented therein were also used against him, although he was only charged in the plunder case. 38

The People maintain that the Sandiganbayan committed no grave abuse of discretion in denying petitioner's omnibus motion. They assert that since the Ombudsman found probable cause to charge petitioner with the crime of plunder, the Sandiganbayan is bound to assume jurisdiction over the case and to proceed to try the same. They further argue that "a finding of probable cause is merely preliminary and prefatory of the eventual determination of guilt or innocence of the accused," and that petitioner still has the chance to interpose his defenses in a full blown trial where his guilt or innocence may finally be determined.39 The People also point out that the Sandiganbayan did not commit grave abuse of discretion in denying petitioner's omnibus motion asking for, among others, a reinvestigation by the Ombudsman, because his motion for reconsideration of the Ombudsman's joint resolution did not raise the grounds of either newly discovered evidence, or errors of law or irregularities, which under Republic Act No. 6770 are the only grounds upon which a motion for reconsideration may be filed.40 The People likewise insist that there exists probable cause to charge petitioner with plunder as a co-conspirator of Joseph Estrada.41 This Court does not agree with petitioner. Case law has it that the Court does not interfere with the Ombudsman's discretion in the conduct of preliminary investigations. Thus, in Raro vs. Sandiganbayan42 , the Court ruled: "x x x. In the performance of his task to determine probable cause, the Ombudsman's discretion is paramount. Thus, in Camanag vs. Guerrero, this Court said: 'x x x. (S)uffice it to state that this Court has adopted a policy of non-interference in the conduct of preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish 'probable cause' for filing of information against the supposed offender." In Cruz, Jr. vs. People,43 the Court ruled thus: "Furthermore, the Ombudsman's findings are essentially factual in nature. Accordingly, in assailing said findings on the contention that the Ombudsman committed a grave abuse of discretion in holding that petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising questions of fact here. His arguments are anchored on the propriety or error in the Ombudsman's appreciation of facts. Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither question of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. Insofar as the third issue is concerned, we find that no grave abuse of discretion has been committed by respondents which would warrant the granting of the writ of certiorari." Petitioner is burdened to allege and establish that the Sandiganbayan and the Ombudsman for that matter committed grave abuse of discretion in issuing their resolution and joint resolution, respectively. Petitioner failed to discharge his burden. Indeed, the Court finds no grave abuse of discretion on the part of the Sandiganbayan and the Ombudsman in finding probable cause against petitioner for plunder. Neither did the Sandiganbayan abuse its discretion in denying petitioner's motion for reinvestigation of the charges against him in the amended Information. In its Resolution of April 25, 2001, the Sandiganbayan affirmed the finding of the Ombudsman that probable cause exists against petitioner and his co-accused for the crime of plunder, thus: "In the light of the foregoing and considering the allegations of the Amended Information dated 18 April 2001 charging the accused with the offense of PLUNDER and examining carefully the evidence submitted in support thereof consisting of the affidavits and sworn statements and testimonies of prosecution witnesses and several other pieces of documentary evidence, as well as the respective counter-affidavits of accused former President Joseph Estrada dated March 20, 2001, Jose "Jinggoy" Pimentel Estrada dated February 20, 2001, Yolanda T. Ricaforte dated January 21, 2001 and Edward S. Serapio dated February 21, 2001, the Court finds and so holds that probable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of accused former President Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas."44 Likewise, in its Resolution dated May 31, 2001 of petitioner's omnibus motion, the Sandiganbayan noted that a preliminary investigation was fully conducted in accordance with Rule II, Administrative Order No. 7 of the Office of the Ombudsman, pursuant to Sections 18, 23 and 27 of Republic Act No. 6770 (The Ombudsman Act of 1989); and that all the basic complaints and evidence in support thereof were served upon all the accused. 45 It was in light of such findings that the Sandiganbayan held that there was no basis for the allegation that accused therein (including petitioner) were deprived of the right to seek a reconsideration of the Ombudsman's Resolution dated April 4, 2001 finding probable cause to charge them with plunder after the conduct of preliminary investigation in connection therewith. In addition, the Sandiganbayan pointed out that petitioner filed a motion for reconsideration of the Ombudsman's resolution, but failed to show in his motion that there were newly discovered evidence, or that the preliminary investigation was tainted by errors of law or irregularities, which are the only grounds for which a reconsideration of the Ombudsman's resolution may be granted.46 It bears stressing that the right to a preliminary investigation is not a constitutional right, but is merely a right conferred by statute.47 The absence of a preliminary investigation does not impair the validity of the Information or otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the Information.48 If the lack of a preliminary investigation does not render the Information invalid nor affect the jurisdiction of the court over the case, with more reason can it be said that the denial of a motion for reinvestigation cannot invalidate the Information or oust the court of its jurisdiction over the case. Neither can it be said that petitioner had been deprived of due process. He was afforded the opportunity to refute the charges against him during the preliminary investigation.

The purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable cause to believe that the person accused of the crime is probably guilty thereof and should be held for trial. 49 As the Court held in Webb vs. De Leon, "[a] finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt.''50 Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, courts as a rule must defer to said officer's finding and determination of probable cause, since the determination of the existence of probable cause is the function of the prosecutor.51 The Court agrees with the Sandiganbayan that petitioner failed to establish that the preliminary investigation conducted by the Ombudsman was tainted with irregularity or that its findings stated in the joint resolution dated April 4, 2001 are not supported by the facts, and that a reinvestigation was necessary. Certiorari will not lie to invalidate the Sandiganbayan's resolution denying petitioner's motion for reinvestigation since there is nothing to substantiate petitioner's claim that it gravely abused its discretion in ruling that there was no need to conduct a reinvestigation of the case.52 The ruling in Rolito Go vs. Court of Appeals53 that an accused shall not be deemed to have waived his right to ask for a preliminary investigation after he had been arraigned over his objection and despite his insistence on the conduct of said investigation prior to trial on the merits does not apply in the instant case because petitioner merely prayed for a reinvestigation on the ground of a newly-discovered evidence. Irrefragably, a preliminary investigation had been conducted by the Ombudsman prior to the filing of the amended Information, and that petitioner had participated therein by filing his counter-affidavit. Furthermore, the Sandiganbayan had already denied his motion for reinvestigation as well as his motion for reconsideration thereon prior to his arraignment. 54In sum then, the petition is dismissed. Re: G.R. No. 148468 As synthesized by the Court from the petition and the pleadings of the parties, the issues for resolution are: (1) Whether or not petitioner should first be arraigned before hearings of his petition for bail may be conducted; (2) Whether petitioner may file a motion to quash the amended Information during the pendency of his petition for bail; (3) Whether a joint hearing of the petition for bail of petitioner and those of the other accused in Criminal Case No. 26558 is mandatory; (4) Whether the People waived their right to adduce evidence in opposition to the petition for bail of petitioner and failed to adduce strong evidence of guilt of petitioner for the crime charged; and (5) Whether petitioner was deprived of his right to due process in Criminal Case No. 26558 and should thus be released from detention via a writ of habeas corpus. On the first issue, petitioner contends that the Sandiganbayan committed a grave abuse of its discretion amounting to excess or lack of jurisdiction when it deferred the hearing of his petition for bail to July 10, 2001, arraigned him on said date and entered a plea of not guilty for him when he refused to be arraigned. He insists that the Rules on Criminal Procedure, as amended, does not require that he be arraigned first prior to the conduct of bail hearings since the latter can stand alone and must, of necessity, be heard immediately.55 Petitioner maintains that his arraignment before the bail hearings are set is not necessary since he would not plead guilty to the offense charged, as is evident in his earlier statements insisting on his innocence during the Senate investigation of the jueteng scandal and the preliminary investigation before the Ombudsman.56 Neither would the prosecution be prejudiced even if it would present all its evidence before his arraignment because, under the Revised Penal Code, a voluntary confession of guilt is mitigating only if made prior to the presentation of evidence for the prosecution,57 and petitioner admitted that he cannot repudiate the evidence or proceedings taken during the bail hearings because Rule 114, Section 8 of the Revised Rules of Court expressly provides that evidence present during bail hearings are automatically reproduced during the trial. 58 Petitioner likewise assures the prosecution that he is willing to be arraigned prior to the posting of a bail bond should he be granted bail.59 The People insist that arraignment is necessary before bail hearings may be commenced, because it is only upon arraignment that the issues are joined. The People stress that it is only when an accused pleads not guilty may he file a petition for bail and if he pleads guilty to the charge, there would be no more need for him to file said petition. Moreover, since it is during arraignment that the accused is first informed of the precise charge against him, he must be arraigned prior to the bail hearings to prevent him from later assailing the validity of the bail hearings on the ground that he was not properly informed of the charge against him, especially considering that, under Section 8, Rule 114 of the Revised Rules of Court, evidence presented during such proceedings are considered automatically reproduced at the trial.60 Likewise, the arraignment of accused prior to bail hearings diminishes the possibility of an accused's flight from the jurisdiction of the Sandiganbayan because trial in absentia may be had only if an accused escapes after he has been arraigned.61 The People also contend that the conduct of bail hearings prior to arraignment would extend to an accused the undeserved privilege of being appraised of the prosecution's evidence before he pleads guilty for purposes of penalty reduction.62 Although petitioner had already been arraigned on July 10, 2001 and a plea of not guilty had been entered by the Sandiganbayan on his behalf, thereby rendering the issue as to whether an arraignment is necessary before the conduct of bail hearings in petitioner's case moot, the Court takes this opportunity to discuss the controlling precepts thereon pursuant to its symbolic function of educating the bench and bar. 63 The contention of petitioner is well-taken. The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender. 64 An accused need not wait for his arraignment before filing a petition for bail. In Lavides vs. Court of Appeals,65 this Court ruled on the issue of whether an accused must first be arraigned before he may be granted bail. Lavides involved an accused charged with violation of Section 5(b) Republic Act No. 7610 (The Special Protection of Children Against Abuse, Exploitation and Discrimination Act), an offense punishable by reclusion temporal in its medium period to reclusion perpetua. The accused therein assailed, inter alia, the trial court's imposition of the condition that he should first be arraigned before he is allowed to post bail. We held therein that "in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash."66 However, the foregoing pronouncement should not be taken to mean that the hearing on a petition for bail should at all times precede arraignment, because the rule is that a person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or information is filed against him.67 The Court's pronouncement in Lavides should be understood in light of the fact that the accused in said case filed a petition for bail as

well as a motion to quash the informations filed against him. Hence, we explained therein that to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. This would undermine his constitutional right not to be put on trial except upon a valid complaint or Information sufficient to charge him with a crime and his right to bail.68 It is therefore not necessary that an accused be first arraigned before the conduct of hearings on his application for bail. For when bail is a matter of right, an accused may apply for and be granted bail even prior to arraignment. The ruling in Lavides also implies that an application for bail in a case involving an offense punishable by reclusion perpetua to death may also be heard even before an accused is arraigned. Further, if the court finds in such case that the accused is entitled to bail because the evidence against him is not strong, he may be granted provisional liberty even prior to arraignment; for in such a situation, bail would be "authorized" under the circumstances. In fine, the Sandiganbayan committed a grave abuse of its discretion amounting to excess of jurisdiction in ordering the arraignment of petitioner before proceeding with the hearing of his petition for bail. With respect to the second issue of whether petitioner may file a motion to quash during the pendency of his petition for bail, petitioner maintains that a motion to quash and a petition for bail are not inconsistent, and may proceed independently of each other. While he agrees with the prosecution that a motion to quash may in some instances result in the termination of the criminal proceedings and in the release of the accused therein, thus rendering the petition for bail moot and academic, he opines that such is not always the case; hence, an accused in detention cannot be forced to speculate on the outcome of a motion to quash and decide whether or not to file a petition for bail or to withdraw one that has been filed.69 He also insists that the grant of a motion to quash does not automatically result in the discharge of an accused from detention nor render moot an application for bail under Rule 117, Section 5 of the Revised Rules of Court. 70 The Court finds that no such inconsistency exists between an application of an accused for bail and his filing of a motion to quash. Bail is the security given for the release of a person in the custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions set forth under the Rules of Court.71 Its purpose is to obtain the provisional liberty of a person charged with an offense until his conviction while at the same time securing his appearance at the trial.72 As stated earlier, a person may apply for bail from the moment that he is deprived of his liberty by virtue of his arrest or voluntary surrender.73 On the other hand, a motion to quash an Information is the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information. 74 An accused may file a motion to quash the Information, as a general rule, before arraignment.75 These two reliefs have objectives which are not necessarily antithetical to each other. Certainly, the right of an accused right to seek provisional liberty when charged with an offense not punishable by death, reclusion perpetua or life imprisonment, or when charged with an offense punishable by such penalties but after due hearing, evidence of his guilt is found not to be strong, does not preclude his right to assail the validity of the Information charging him with such offense. It must be conceded, however, that if a motion to quash a criminal complaint or Information on the ground that the same does not charge any offense is granted and the case is dismissed and the accused is ordered released, the petition for bail of an accused may become moot and academic. We now resolve the issue of whether or not it is mandatory that the hearings on the petitions for bail of petitioner and accused Jose "Jinggoy" Estrada in Criminal Case No. 26558 and the trial of the said case as against former President Joseph E. Estrada be heard jointly. Petitioner argues that the conduct of joint bail hearings would negate his right to have his petition for bail resolved in a summary proceeding since said hearings might be converted into a full blown trial on the merits by the prosecution.76 For their part, the People claim that joint bail hearings will save the court from having to hear the same witnesses and the parties from presenting the same evidence where it would allow separate bail hearings for the accused who are charged as co-conspirators in the crime of plunder.77 In issuing its June 1, 2001 Order directing all accused in Criminal Case No. 26558 to participate in the bail hearings, the Sandiganbayan explained that the directive was made was in the interest of the speedy disposition of the case. It stated: " x x x The obvious fact is, if the rest of the accused other than the accused Serapio were to be excused from participating in the hearing on the motion for bail of accused Serapio, under the pretext that the same does not concern them and that they will participate in any hearing where evidence is presented by the prosecution only if and when they will already have filed their petitions for bail, or should they decide not to file any, that they will participate only during the trial proper itself, then everybody will be faced with the daunting prospects of having to go through the process of introducing the same witness and pieces of evidence two times, three times or four times, as many times as there are petitions for bail filed. Obviously, such procedure is not conducive to the speedy termination of a case. Neither can such procedure be characterized as an orderly proceeding."78 There is no provision in the Revised Rules of Criminal Procedure or the Rules of Procedure of the Sandiganbayan governing the hearings of two or more petitions for bail filed by different accused or that a petition for bail of an accused be heard simultaneously with the trial of the case against the other accused. The matter of whether or not to conduct a joint hearing of two or more petitions for bail filed by two different accused or to conduct a hearing of said petition jointly with the trial against another accused is addressed to the sound discretion of the trial court. Unless grave abuse of discretion amounting to excess or lack of jurisdiction is shown, the Court will not interfere with the exercise by the Sandiganbayan of its discretion. It may be underscored that in the exercise of its discretion, the Sandiganbayan must take into account not only the convenience of the State, including the prosecution, but also that of the accused and the witnesses of both the prosecution and the accused and the right of accused to a speedy trial. The Sandiganbayan must also consider the complexities of the cases and of the factual and legal issues involving petitioner and the other accused. After all, if this Court may echo the observation of the United States Supreme Court, the State has a stake, with every citizen, in his being afforded our historic individual protections, including those surrounding criminal

prosecutions. About them, this Court dares not become careless or complacent when that fashion has become rampant over the earth.79 It must be borne in mind that in Ocampo vs. Bernabe,80 this Court held that in a petition for bail hearing, the court is to conduct only a summary hearing, meaning such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of evidence for purposes of bail. The court does not try the merits or enter into any inquiry as to the weight that ought to be given to the evidence against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be offered therein. It may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross-examination of witnesses, and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing. A joint hearing of two separate petitions for bail by two accused will of course avoid duplication of time and effort of both the prosecution and the courts and minimizes the prejudice to the accused, especially so if both movants for bail are charged of having conspired in the commission of the same crime and the prosecution adduces essentially the same evident against them. However, in the cases at bar, the joinder of the hearings of the petition for bail of petitioner with the trial of the case against former President Joseph E. Estrada is an entirely different matter. For, with the participation of the former president in the hearing of petitioner's petition for bail, the proceeding assumes a completely different dimension. The proceedings will no longer be summary. As against former President Joseph E. Estrada, the proceedings will be a full-blown trial which is antithetical to the nature of a bail hearing. Moreover, following our ruling in Jose Estrada vs. Sandiganbayan, supra where we stated that Jose "Jinggoy" Estrada can only be charged with conspiracy to commit the acts alleged in sub-paragraph (a) of the amended Information since it is not clear from the latter if the accused in sub-paragraphs (a) to (d) thereof conspired with each other to assist Joseph Estrada to amass ill-gotten wealth, we hold that petitioner can only be charged with having conspired with the other co-accused named in sub-paragraph (a) by "receiving or collecting, directly or indirectly, on several instances, money x x x from illegal gambling, x x x in consideration of toleration or protection of illegal gambling. 81 Thus, with respect to petitioner, all that the prosecution needs to adduce to prove that the evidence against him for the charge of plunder is strong are those related to the alleged receipt or collection of money from illegal gambling as described in sub-paragraph (a) of the amended Information. With the joinder of the hearing of petitioner's petition for bail and the trial of the former President, the latter will have the right to cross-examine intensively and extensively the witnesses for the prosecution in opposition to the petition for bail of petitioner. If petitioner will adduce evidence in support of his petition after the prosecution shall have concluded its evidence, the former President may insist on cross-examining petitioner and his witnesses. The joinder of the hearing of petitioner's bail petition with the trial of former President Joseph E. Estrada will be prejudicial to petitioner as it will unduly delay the determination of the issue of the right of petitioner to obtain provisional liberty and seek relief from this Court if his petition is denied by the respondent court. The indispensability of the speedy resolution of an application for bail was succinctly explained by Cooley in his treatiseConstitutional Limitations, thus: "For, if there were any mode short of confinement which would with reasonable certainty insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him in a greater or lesser degree, to the punishment of a guilty person, while as yet it is not determined that he has not committed any crime." 82 While the Sandiganbayan, as the court trying Criminal Case No. 26558, is empowered "to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case,"83 the Court finds that it gravely abused its discretion in ordering that the petition for bail of petitioner and the trial of former President Joseph E. Estrada be held jointly. It bears stressing that the Sandiganbayan itself acknowledged in its May 4, 2001 Order the "pre-eminent position and superiority of the rights of [petitioner] to have the matter of his provisional liberty resolved . . . without unnecessary delay,"84 only to make a volte face and declare that after all the hearing of petition for bail of petitioner and Jose "Jinggoy" Estrada and the trial as against former President Joseph E. Estrada should be held simultaneously. In ordering that petitioner's petition for bail to be heard jointly with the trial of the case against his co-accused former President Joseph E. Estrada, the Sandiganbayan in effect allowed further and unnecessary delay in the resolution thereof to the prejudice of petitioner. In fine then, the Sandiganbayan committed a grave abuse of its discretion in ordering a simultaneous hearing of petitioner's petition for bail with the trial of the case against former President Joseph E. Estrada on its merits. With respect to petitioner's allegations that the prosecution tried to delay the bail hearings by filing dilatory motions, the People aver that it is petitioner and his coaccused who caused the delay in the trial of Criminal Case No. 26558 by their filing of numerous manifestations and pleadings with the Sandiganbayan.85 They assert that they filed the motion for joint bail hearing and motion for earlier arraignment around the original schedule for the bail hearings which was on May 2125, 2001.86 They argue further that bail is not a matter of right in capital offenses. 87 In support thereof, they cite Article III, Sec 13 of the Constitution, which states that "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 corpusis suspended. Excessive bail shall not be required."88 The People also cited Rule 114, Secs. 7 and 4 of the Revised Rules of Court which provide: "Sec. 7 Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. Sec. 4 Bail, a matter of right, exception. All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule x x x (b) and before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment."89 Irrefragably, a person charged with a capital offense is not absolutely denied the opportunity to obtain provisional liberty on bail pending the judgment of his case. However, as to such person, bail is not a matter of right but is discretionary upon the court. 90 Had the rule been otherwise, the Rules would not have provided for an application for bail by a person charged with a capital offense under Rule 114, Section 8 which states:

"Sec. 8 Burden of proof in bail application. At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that the evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify."91 Under the foregoing provision, there must be a showing that the evidence of guilt against a person charged with a capital offense is not strong for the court to grant him bail. Thus, upon an application for bail by the person charged with a capital offense, a hearing thereon must be conducted, where the prosecution must be accorded an opportunity to discharge its burden of proving that the evidence of guilt against an accused is strong. 92 The prosecution shall be accorded the opportunity to present all the evidence it may deem necessary for this purpose.93 When it is satisfactorily demonstrated that the evidence of guilt is strong, it is the court's duty to deny the application for bail. However, when the evidence of guilt is not strong, bail becomes a matter of right. 94 In this case, petitioner is not entitled to bail as a matter of right at this stage of the proceedings. Petitioner's claim that the prosecution had refused to present evidence to prove his guilt for purposes of his bail application and that the Sandiganbayan has refused to grant a hearing thereon is not borne by the records. The prosecution did not waive, expressly or even impliedly, its right to adduce evidence in opposition to the petition for bail of petitioner. It must be noted that the Sandiganbayan had already scheduled the hearing dates for petitioner's application for bail but the same were reset due to pending incidents raised in several motions filed by the parties, which incidents had to be resolved by the court prior to the bail hearings. The bail hearing was eventually scheduled by the Sandiganbayan on July 10, 2001 but the hearing did not push through due to the filing of this petition on June 29, 2001. The delay in the conduct of hearings on petitioner's application for bail is therefore not imputable solely to the Sandiganbayan or to the prosecution. Petitioner is also partly to blame therefor, as is evident from the following list of motions filed by him and by the prosecution: Motions filed by petitioner: Urgent Omnibus Motion, dated April 6, 2001, for (1) leave to file motion for reconsideration/reinvestigation and to direct ombudsman to conduct reinvestigation; (2) conduct a determination of probable cause as would suggest the issuance of house arrest; (3) hold in abeyance the issuance of warrant of arrest and other proceedings pending determination of probable cause; Motion for Early Resolution, dated May 24, 2001;

Urgent Motion to Hold in Abeyance Implementation or Service of Warrant of Arrest for Immediate Grant of bail or For Release on Recognizance, dated April 25, 2001; Urgent Motion to allow Accused Serapio to Vote at Obando, Bulacan, dated May 11, 2001;

Urgent Motion for Reconsideration, dated May 22, 2001, praying for Resolution of May 18, 2001 be set aside and bail hearings be set at the earliest possible time; Urgent Motion for Immediate Release on Bail or Recognizance, dated May 27, 2001;

Motion for Reconsideration of denial of Urgent Omnibus Motion, dated June 13, 2001, praying that he be allowed to file a Motion for Reinvestigation; and Motion to Quash, dated June 26, 2001.95

Motions filed by the prosecution: Motion for Earlier Arraignment, dated May 8, 2001;96 Motion for Joint Bail Hearings of Accused Joseph Estrada, Jose "Jinggoy" Estrada and Edward Serapio, dated May 8, 2001;97 Opposition to the Urgent Motion for Reconsideration and Omnibus Motion to Adjust Earlier Arraignment, dated May 25, 2001;98 and Omnibus Motion for Examination, Testimony and Transcription in Filipino, dated June 19, 2001.99

The other accused in Criminal Case No. 26558 also contributed to the aforesaid delay by their filing of the following motions: Motion to Quash or Suspend, dated April 24, 2001, filed by Jinggoy Estrada, assailing the constitutionality of R.A. No. 7080 and praying that the Amended Information be quashed; Very Urgent Omnibus Motion, dated April 30, 2001, filed by Jinggoy Estrada, praying that he be (1)excluded from the Amended Information for

lack of probable cause; (2) released from custody; or in the alternative, (3) be allowed to post bail; Urgent Ex-Parte Motion to Place on House Arrest, dated April 25, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest during the pendency of the case; Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada; Supplemental Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada;

Omnibus Motion, dated May 7, 2001, filed by Joseph Estrada, praying by reinvestigation of the case by the Ombudsman or the outright dismissal of the case; Urgent Ex-Parte Motion for Extension, dated May 2, 2001, filed by Jinggoy Estrada, requesting for five (5) days within which to respond to the Opposition to Motion to Quash in view of the holidays and election-related distractions; Opposition to Urgent Motion for Earlier Arraignment, dated May 10, 2001, filed by Joseph Estrada;

Omnibus Manifestation on voting and custodial arrangement, dated May 11, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest; Manifestation regarding house arrest, dated May 6, 2001, filed by Joseph and Jinggoy Estrada; Summation regarding house arrest, dated May 23, 2001, filed by Joseph and Jinggoy Estrada; Urgent Manifestation & Motion, dated May 6, 2001 filed by Jinggoy Estrada; Manifestation, dated May 28, 2001, filed by Joseph and Jinggoy Estrada, praying that they be allowed to be confined in Tanay; Motion to charge as Accused Luis "Chavit" Singson, filed by Joseph Estrada;

Omnibus Motion, dated June 11, 2001, filed by Joseph and Jinggoy Estrada, seeking reconsideration of denial of requests for house arrest, for detention in Tanay or Camp Crame; motion for inhibition of Justice Badoy; Urgent Motion to Allow Accused to Clear His Desk as Mayor of San Juan, Metro Manila, dated June 28, 2001, filed by Jinggoy Estrada;

Motion for Reconsideration, dated June 9, 2001, filed by Joseph and Jinggoy Estrada, praying that the resolution compelling them to be present at petitioner Serapio's hearing for bail be reconsidered; Motion to Quash, dated June 7, 2001, filed by Joseph Estrada;

Still Another Manifestation, dated June 14, 2001, filed by Joseph and Jinggoy Estrada stating that Bishop Teodoro Bacani favors their house arrest; Manifestation, dated June 15, 2001, filed by Joseph and Jinggoy Estrada, waiving their right to be present at the June 18 and 21, 2001 bail hearings and reserving their right to trial with assessors; Omnibus Motion for Instructions: 30-Day House Arrest; Production, Inspection and Copying of Documents; and Possible Trial with Assessors, dated June 19, 2001, filed by Joseph and Jinggoy Estrada; Urgent Motion for Additional Time to Wind Up Affairs, dated June 20, 2001, filed by Jinggoy Estrada;

Manifestation, dated June 22, 2001, filed by Jinggoy Estrada, asking for free dates for parties, claiming that denial of bail is cruel and inhuman, reiterating request for gag order of prosecution witnesses, availing of production, inspection and copying of documents, requesting for status of alias case; and Compliance, dated June 25, 2001, filed by Jinggoy Estrada, requesting for permission to attend some municipal affairs in San Juan, Metro Manila.100

Furthermore, the Court has previously ruled that even in cases where the prosecution refuses to adduce evidence in opposition to an application for bail by an accused charged with a capital offense, the trial court is still under duty to conduct a hearing on said application. 101 The rationale for such requirement was explained in Narciso vs. Sta. Romana-Cruz (supra), citing Basco vs. Rapatalo:102 "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 crossexamination and to introduce his own evidence in rebuttal."103 Accordingly, petitioner cannot be released from detention until the Sandiganbayan conducts a hearing of his application for bail and resolve the same in his favor. Even then, there must first be a finding that the evidence against petitioner is not strong before he may be granted bail. Anent the issue of the propriety of the issuance of a writ of habeas corpus for petitioner, he contends that he is entitled to the issuance of said writ because the State, through the prosecution's refusal to present evidence and by the Sandiganbayan's refusal to grant a bail hearing, has failed to discharge its burden of proving that as against him, evidence of guilt for the capital offense of plunder is strong. Petitioner contends that the prosecution launched "a seemingly endless barrage of obstructive and dilatory moves" to prevent the conduct of bail hearings. Specifically, the prosecution moved for petitioner's arraignment before the commencement of bail hearings and insisted on joint bail hearings for petitioner, Joseph Estrada and Jinggoy Estrada despite the fact that it was only petitioner who asked for a bail hearing; manifested that it would present its evidence as if it is the presentation of the evidence in chief, meaning that the bail hearings would be concluded only after the prosecution presented its entire case upon the accused; and argued that petitioner's motion to quash and his petition for bail are inconsistent, and therefore, petitioner should choose to pursue only one of these two remedies.104 He further claims that the Sandiganbayan, through its questioned orders and resolutions postponing the bail hearings effectively denied him of his right to bail and to due process of law. 105 Petitioner also maintains that the issuance by the Sandiganbayan of new orders canceling the bail hearings which it had earlier set did not render moot and academic the petition for issuance of a writ of habeas corpus, since said orders have resulted in a continuing deprivation of petitioner's right to bail. 106 He argues further that the fact that he was arrested and is detained pursuant to valid process does not by itself negate the efficacy of the remedy ofhabeas corpus. In support of his contention, petitioner cites Moncupa vs. Enrile,107 where the Court held thathabeas corpus extends to instances where the detention, while valid from its inception, has later become arbitrary.108 However, the People insist that habeas corpus is not proper because petitioner was arrested pursuant to the amended information which was earlier filed in court, 109 the warrant of arrest issuant pursuant thereto was valid, and petitioner voluntarily surrendered to the authorities.110 As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty in custody of an officer under a process issued by the court which jurisdiction to do so.111 In exceptional circumstances, habeas corpus may be granted by the courts even when the person concerned is detained pursuant to a valid arrest or his voluntary surrender, for this writ of liberty is recognized as "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action" due to "its ability to cut through barriers of form and procedural mazes." 112 Thus, in previous cases, we issued the writ where the deprivation of liberty, while initially valid under the law, had later become invalid,113 and even though the persons praying for its issuance were not completely deprived of their liberty. 114 The Court finds no basis for the issuance of a writ of habeas corpus in favor of petitioner. The general rule thathabeas corpus does not lie where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court which had jurisdiction to issue the same115 applies, because petitioner is under detention pursuant to the order of arrest issued by the Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the amended information for plunder against petitioner and his co-accused. Petitioner had in fact voluntarily surrendered himself to the authorities on April 25, 2001 upon learning that a warrant for his arrest had been issued. The ruling in Moncupa vs. Enrile116 that habeas corpus will lie where the deprivation of liberty which was initially valid has become arbitrary in view of subsequent developments finds no application in the present case because the hearing on petitioner's application for bail has yet to commence. As stated earlier, they delay in the hearing of petitioner's petition for bail cannot be pinned solely on the Sandiganbayan or on the prosecution for that matter. Petitioner himself is partly to be blamed. Moreover, a petition for habeas corpus is not the appropriate remedy for asserting one's right to bail. 117 It cannot be availed of where accused is entitled to bail not as a matter of right but on the discretion of the court and the latter has not abused such discretion in refusing to grant bail,118 or has not even exercised said discretion. The proper recourse is to file an application for bail with the court where the criminal case is pending and to allow hearings thereon to proceed. The issuance of a writ of habeas corpus would not only be unjustified but would also preempt the Sandiganbayan's resolution of the pending application for bail of petitioner. The recourse of petitioner is to forthwith proceed with the hearing on his application for bail. IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered as follows: 1 In G.R. No. 148769 and G.R. No. 149116, the petitions are DISMISSED. The resolutions of respondent Sandiganbayan subject of said petitions are AFFIRMED; and 2 In G.R. No. 148468, the petition is PARTIALLY GRANTED. The resolution of respondent Sandiganbayan, Annex "L" of the petition, ordering a joint hearing of petitioner's petition for bail and the trial of Criminal Case No. 26558 as against former President Joseph E. Estrada is SET ASIDE; the arraignment of petitioner on July 10, 2001 is also SET ASIDE.

No costs. SO ORDERED. Davide, Jr., C .J ., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Austria-Martinez, Corona, Carpio-Morales and Azcuna, JJ ., concur. Vitug, J ., see separate opinion. Ynares-Santiago, J ., joins the dissent of Justice Sandoval-Gutierrez. Sandoval-Gutierrez, J ., see dissenting opinion. Carpio, J ., no part, prior inhibition in plunder cases.

Separate Opinions VITUG, J.: I fully subscribe to the ponencia in G.R. No. 148468 that a) The arraignment of an accused is not a prerequisite to the conduct of hearings on a petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender. b) There is no inconsistency between an application of an accused for bail and his filing of a motion to quash, these two reliefs not being necessarily antithetical to each other. c) The joinder of hearing of herein petitioner's bail petition with the trial of former President Joseph Estrada indeed could unduly delay the determination of the issue of the right of petitioner to obtain provisional liberty. d) The claim of petitioner that the prosecution has refused to present evidence to prove his guilt for purposes of his bail application and that the Sandiganbayan has refused to grant a hearing thereon hardly finds substantiation. Neither has the prosecution waived, expressly or even impliedly, its right to adduce evidence in opposition to the petition for bail of petitioner. e) There is no basis for the issuance of a writ of habeas corpus in favor of petitioner. Habeas corpus does not lie where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court having jurisdiction thereover. In G.R. No. 148769 and G.R. No. 149116, the issues for resolution are analogous to those posed in G.R. No. 148965, entitled "Jose 'Jinggoy' Estrada vs. Sandiganbayan [Third Division], People of the Philippines and Office of the Ombudsman," decided by the Court on 26 February 2002. Petitioner Atty. Edward Serapio stands indicted with the former President, Mr. Joseph E. Estrada, for plunder. Petitioner is charged with exactly the same degree of culpability as that of Mr. Jose "Jinggoy" Estrada, thusly: "AMENDED INFORMATION "The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada a.k.a.'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE', TOGETHER WITH Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. 7080, as amended by Sec. 12 of R.A. 7659, committed as follows: "That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself, AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR a series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: "(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00) MORE OR LESS, FROM ILLEGAL GAMBLING, IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT BY HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND

JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;" Atty. Serapio, in G.R. No. 148769, questions the denial by the Sandiganbayan of his motion to quash the Amended Information on the ground that, among other things, it alleges, at least as to him, neither a combination or series of overt acts constitutive of plunder nor a pattern of criminal acts indicative of an overall unlawful scheme in conspiracy with others. In G.R. No. 149116, petitioner claims that the Sandiganbayan has committed grave abuse of discretion in denying his omnibus motion to hold in abeyance the issuance of a warrant for his arrest, as well as the proceedings in Criminal Case No. 26558), to conduct a determination of probable cause, and to direct the Ombudsman to conduct a reinvestigation of the charges against him. In my separate opinion in G.R. No. 148965, which I now reiterate, I have said: "Plunder may be committed by any public officer either by himself or "in connivance" with other persons; it may also be committed by a person who participates with a public officer in the commission of an offense contributing to the crime of plunder. A person may thus be held accountable under the law by conniving with the principal co-accused or by participating in the commission of "an offense" contributing to the crime of plunder. The term "in connivance" would suggest an agreement or consent to commit an unlawful act or deed with or by another, to connive being to cooperate secretly or privily with another.1 Upon the other hand, to participate is to have a part or a share in conjunction with another of the proceeds of the unlawful act or deed. "The amended Information alleged "connivance" and would assume that petitioner and his co-accused had a common design in perpetrating the violations complained of constitutive of "plunder." The Supreme Court in Estrada vs. Sandiganbayan2 has declared the anti-plunder law constitutional for being neither vague nor ambiguous on the thesis that the terms "series" and "combination" are not unsusceptible to firm understanding. "Series" refers to two or more acts falling under the same category of the enumerated acts provided in Section 1(d)3 of the statute; "combination" pertains to two or more acts falling under at least two separate categories mentioned in the same law. 4 "xxx xxx xxx

"The government argues that the illegal act ascribed to petitioner is a part of the chain that links the various acts of plunder by the principal accused. It seems to suggest that a mere allegation of conspiracy is quite enough to hold petitioner equally liable with the principal accused for the latter's other acts, even if unknown to him, in paragraph (a) of the indictment. This contention is a glaring bent. It is, to my mind, utterly unacceptable, neither right nor just, to cast criminal liability on one for the acts or deeds of plunder that may have been committed by another or others over which he has not consented or acceded to, participated in, or even in fact been aware of. Such vicarious criminal liability is never to be taken lightly but must always be made explicit not merely at the trial but likewise, and no less important, in the complaint or information itself in order to meet the fundamental right of an accused to be fully informed of the charge against him. It is a requirement that cannot be dispensed with if he were to be meaningfully assured that he truly has a right to defend himself. Indeed, an unwarranted generalization on the scope of the anti-plunder law would be a fatal blow to maintaining its constitutionality given the ratio decidendi in the pronouncement heretofore made by the Court upholding the validity of the statute. "Given the foregoing exegesis, the petitioner, although ineffectively charged in the Amended Information for plunder, could still be prosecuted and tried for a lesser offense, for it is a recognized rule that an accused shall not be discharged even when a mistake has been made in charging the proper offense if he may still be held accountable for any other offense necessarily included in the crime being charged. It is, however, the Sandiganbayan, not this Court, which must make this determination on the basis of its own findings." WHEREFORE, I accept the ponencia in G.R. No. 148468 but, as regards G.R. No. 148769 and G.R. No. 149116, I vote for the remand of the case to the Sandiganbayan for further proceedings on the bail application of petitioner and urge that the incident be resolved with dispatch.

Dissenting Opinion SANDOVAL-GUTIERREZ, J.,: Once again, the Amended Information dated April 18, 2001 in Criminal Case No. 265581 is subjected to judicial scrutiny, this time, via a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure (G.R. No. 148769) filed by petitioner Edward S. Serapio. For easy reference, let me quote the Amended Information, thus: "The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former President of the Republic of the Philippines, Joseph Ejercito Estrada a.k.a. 'Asiong Salonga'and a.k.a. 'Jose Velarde,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John Does & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows: 'That during the period from June 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, then a public officer, being then the President of the Republic of the Philippines, by himself and/or in

connivance/conspiracy with his co-accused, who are members of his family, relatives by affinity or consanguinity, business associates, subordinates and/or other persons, by taking undue advantage of his official position, authority, relationship, connection, or influence, did then and there willfully, unlawfully and criminally amass, accumulate and acquire by himself, directly or indirectly, ill-gotten wealth in the aggregate amount or total value of four billion ninety seven million eight hundred four thousand one hundred seventy three pesos and seventeen centavos [P4,097,804,173.17], more or less, thereby unjustly enriching himself or themselves at the expense and to the damage of the Filipino people and the Republic of the Philippines through any or a combination or a series of overt OR criminal acts, or similar schemes or means, described as follows: a) by receiving or collecting, directly or indirectly, an aggregate amount of Five Hundred Forty-Five Million Pesos (P545,000,000.00), more or less, from illegal gambling in the form of gift, share, percentage kickback or any form of pecuniary benefit, by himself and/or in connivance with co-accused Charlie "Atong" Ang, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; b) by diverting, receiving, misappropriating, converting or misusing directly or indirectly, for his or their personal gain and benefit, public funds in the amount of one hundred thirty million pesos (P130,000,000.00) more or less, representing a portion of the Two Hundred Million Pesos (P200,000,000.00) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, John Doe a.k.a. Eleuterio Tan Or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas, and other John Does and Jane Does; c) by directing, ordering and compelling, for his personal gain and benefit, the Government Service Insurance System (GSIS) to purchase, 351,878,000 shares of stock, more or less and the Social Security System (SSS), 329,855,000 shares of stock, more or less, of the Belle Corporation in the amount of more or less One Billion One Hundred Two Million Nine Hundred Sixty Five Thousand Six Hundred Seven Pesos and Fifty Centavos [P1,102,965,607.50] and more or less Seven Hundred Forty Four Million Six Hundred Twelve Thousand Four Hundred Fifty Pesos (P744,612,450.00], respectively, or a total of a more or less One Billion Eight Hundred Forty Seven Million Five Hundred Seventy Eight Thousand Fifty Seven Pesos and fifty centavos [P1,847,578,057.50]; and by collecting or receiving, directly or indirectly, by himself and/or in connivance with John Does and Jane Does, Commissions or percentages by reason of said purchases of shares of stock in the amount of One Hundred Eighty-Nine Million Seven Hundred Thousand Pesos [P189,700,000], more or less, from the Belle Corporation, which became part of the deposit in the Equitable-PCI Bank under the account of "Jose Velarde"; d) by unjustly enriching himself FROM COMMISSIONS, gifts, shares, percentages, kickbacks, or any form of pecuniary benefits, in connivance with John Does and Jane Does, in the amount of more or less Three Billion Two Hundred Thirty-Three Million One Hundred Four Thousand One Hundred Seventy Three Pesos and Seventeen Centavos [P3,233,104,173.17] and depositing the same under his account name "Jose Velarde" at the Equitable-PCI Bank. CONTRARY TO LAW.'"2 In G.R. No. 148965,3 I stood apart from the majority of my brethren in denying the Petition for Certiorari and Mandamus filed by Jose "Jinggoy," E. Estrada against the Sandiganbayan, People of the Philippines and Office of the Ombudsman. I articulated in my Dissent the various reasons why I could not join the majority in sustaining the afore-quoted Amended Information. Now, I am taking this second occasion to reiterate them, hoping that the majority will have a change of mind and resolve to reexamine its Decision. Consistent with my previous Dissent, it is my view that petitioner Edward S. Serapio, like Jose "Jinggoy" Estrada, may not be validly prosecuted for the crime of plunder under the Amended Information. To be forthright, the obvious error in the foregoing Information lies in the fact that it joined together four distinct conspiracies in a single continuing conspiracy of plunder and indiscriminately accused all the persons who participated therein of the said resulting crime. Simply put, the Amended Information is a mere fusion of separate conspiracies. It is akin to that of "separate spokes meeting at a common center, without the rim of the wheel to enclose the spokes." This is legally impermissible. Such kind of information places the accused's primary right to be informed of the nature and cause of the accusation against him in jeopardy. I must reiterate what I have pointed out in G.R. No. 148965. There exists a distinction between separate conspiracies, where certain parties are common to all the conspiracies, but with no overall goal or common purpose; and one overall continuing conspiracy with various parties joining and terminating their relationship at different times.4 Distinct and separate conspiracies do not, in contemplation of law, become a single conspiracy merely because one man is a participant and key figure in all the separate conspiracies. 5 The present case is a perfect example. The fact that former President Estrada is a common key figure in the criminal acts recited under paragraphs (a), (b), (c) and (d) of the Amended Information does not automatically give rise to a single continuing conspiracy of plunder, particularly, with respect to petitioner Serapio whose participation is limited to paragraph (a). To say otherwise is to impute to petitioner or to any of the accused the acts and statements of the others without reference to whether or not their acts are related to one scheme or overall plan. It could not have been the intention of the Legislature, in drafting R.A. No. 7080, to authorize the prosecution to chain together four separate and distinct crimes when the only nexus among them lies in the fact that one man participated in all. There lies a great danger for the transference of guilt from one to another across the line separating conspiracies. The principle laid down above is no longer novel in other jurisdictions. Various American decisions had expounded on the matter. In Battle vs. State,6 a judgment of conviction was reversed on the ground that the allegation of conspiracy in the indictment was insufficient, thus:

"Among the requirements for the allegations in an indictment to be sufficient are (1) the specificity test, i.e., does the indictment contain all the elements of the offense pleaded in terms sufficient enough to apprise the accused of what he must be prepared to meet, and (2) is the indictment pleaded in such a manner as to enable the defendant to plead prior jeopardy as a defense if additional charges are brought for the same offense. x x x Further, our Supreme Court has recently considered the criteria for sufficiency in conspiracy cases in Goldberg vs. State, 351 So. 2d 332 (Fla. 1977),7 as this court has likewise done in State vs. Giardino, 363 So. 2d 201 (Fla. 3d DCA 1978).8 Applying the principles developed in the above cases to the instant cause, we are of the opinion that Count I of the indictment was insufficient. It is impossible to ascertain whether the indictment charges that appellant conspired with Acuna and Hernandez jointly or severally, or whether appellant conspired entirely with persons unknown. Also, it is impossible to tell whether appellant met with Acuna and Hernandez jointly or severally, or whether appellant conspired entirely with persons unknown. Also, it is impossible to tell whether appellant met with Acuna and Hernandez jointly or severally, or whether appellant met with persons unknown to plan the murder of Torres. Because appellant was left to guess who these other conspirators might be and because the vagueness of the allegations did nothing to protect him from further prosecution, we are of the opinion that they were too vague and indefinite to meet the requirements set forth above. Accordingly, in our opinion the trial court erred in failing to dismiss Count I of the indictment for conspiracy against appellant." (Footnote supplied) In State vs. Harkness,9 a demurrer to the information was sustained on the ground that an information charging two separate conspiracies is bad for misjoinder of parties where the only connection between the two conspiracies was the fact that one defendant participated in both. The Supreme Court of Washington ruled: "[W]e see no ground upon which the counts against both the Harknesses can be included in the same information. While they are charged with crimes of the same class, the crimes are alleged to have been committed independently and at different times. The crimes are related to each other only by the fact that the prescriptions used were issued by the same physician. x x x We find ourselves unable to agree with the appellant that the misjoinder is cured by the conspiracy charge. It is doubtful if the count is sufficient in form to charge a conspiracy. x x x Reference is made in the count, to counts one to six, inclusive, for a specification of the acts constituting the conspiracy. When these counts are examined, it will be seen that they charge separate substantive offenses without alleging any concert of action between the Harknesses." Thus, when certain persons unite to perform certain acts, and some of them unite with others who are engaged in totally different acts, it is error to join them in an information.10 Otherwise stated, defendants charged with two separate conspiracies having one common participant are not, without more, properly joined, and similarity of acts alone is insufficient to indicate that series of acts exist.11 Joinder may be permitted when the connection between the alleged offenses and the parties is the accused's awareness of the identity and activity of the other alleged participants. 12 There must be a showing of one overall common goal to which the participants bind themselves. Apparently, the factual recitals of the Amended Information fail to sufficiently allege that petitioner Serapio deliberately agreed or banded with the rest of the accused for the purpose of committing Plunder. There is no averment that he conspired with them in committing the crimes specified in paragraphs (b), (c) and (d) of the Amended Information, such as misappropriation of the tobacco excise tax share of Ilocos Sur; receipt of commissions by reason of the purchase of shares of stock from the Belle Corporation; and acquisition of unexplained wealth. To my mind, the Amended Information only makes out a case of bribery "in toleration or protection of illegal gambling." While he is being charged for the "crime of Plunder, defined and penalized under R.A. No. 7080," his alleged participation therein is limited to what is specified under paragraph (a) of the Amended Information. The essence of the law on plunder lies in the phrase "combination or series of overt or criminal acts." The determining factor of R.A. No. 7080, as can be gleaned from the Record of the Senate, is the plurality of the overt acts or criminal acts under a grand scheme or conspiracy to amass ill-gotten wealth. Thus, even if the amassed wealth equals or exceeds fifty million pesos, a person cannot be prosecuted for the crime of plunder if he performs only a single criminal act.13 It is the majority's position that since there is an allegation of conspiracy at the inception of the Amended Information, the criminal acts recited in paragraphs (b), (c) and (d) pertain to petitioner as well, the act of one being the act of all. This is an obvious non sequitur. Even the Amended Information, on its face, cannot admit such a construction. First, it bears noting that the Amended Information named the co-conspirators of former President Estrada individually and separately in each of the four predicate offenses. Paragraph (a) named petitioner Jose "Jinggoy" Estrada, "Atong" Ang, Yolanda T. Ricaforte, Edward Serapio, John Does and Jane Does as co-conspirators in the crime of bribery. Paragraph (b) named Alma Alfaro, "Atong" Ang, Eleuterio Ramos Tan, Delia Rajas and other John Does and Jane Does as co-conspirators in the crime of malversation of public funds representing a portion of the tobacco excise tax share allocated to the Province of Ilocos Sur. Paragraph (c) and (d) named John Does and Jane Does as co-conspirators in the purchase of the Belle's shares and in the acquisition of ill-gotten wealth in the amount of P3,233,104,173.17 under the account name "Jose Velarde." Is it logical to infer from the Amended Information the existence of a single continuing conspiracy of plunder when the factual recital thereof individually and separately named the co-conspirators in each of the predicate offenses? I must reecho my answer in G.R. No. 148965, i.e., an outright no. A single agreement to commit several crimes constitutes one conspiracy. By the same reasoning, multiple agreements to commit separate crimes constitute multiple conspiracies. To individually and separately name the co-conspirators in each of the predicate offenses is to reveal the absence of a common design. The explicit clustering of co-conspirators for each predicate offense thwarts the majority's theory of a single continuing conspiracy of plunder. It reveals a clear line segregating each predicate offense from the other. Thus, the act of one cannot be considered as the act of all. Second, the allegation of conspiracy at the inception of the Amended Information basically pertains to former President Estrada as the common key figure in the four predicate offenses. Allow me to quote the pertinent portion, thus: "That during the period from June 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph

Ejercito Estrada, then a public officer, being then the President of the Republic of the Philippines, by himself and/or in connivance/conspiracy with his co-accused, who are members of his family, relatives by affinity or consanguinity, business associates, subordinates and/or other persons, by taking undue advantage of his official position, authority, relationship, connection, or influence, did then and there willfully, unlawfully and criminally amass, accumulate and acquire by himself, directly or indirectly, ill-gotten wealth in the aggregate amount or total value of four billion ninety seven million eight hundred four thousand one hundred seventy three pesos and seventeen centavos [P4,097,804,173.17], more or less, thereby unjustly enriching himself or themselves at the expense and to the damage of the Filipino people and the Republic of the Philippines through any or a combination or a series of overt OR criminal acts, or similar schemes or means, described as follows: x x x." From the foregoing allegation, it can be reasonably construed that former President Estrada conspired with all the accused in committing the four predicate offenses. However, whether his co-accused conspired with him jointly orindividually for the commission of all, or some or one of the predicate offenses is a question that may be answered only after a reading of the entire Amended Information. I note with particularity the phrase in the Amended Information stating, "by himself and/or14 in connivance/conspiracy with his co-accused." The phrase indicates that former President Estrada did not, in all instances, act in connivance with the other accused. At times, he acted alone. Consequently, as alleged in the succeeding paragraphs (a), (b), (c) and (d), his co-accused conspired with him individually and not jointly. Petitioner Serapio cannot therefore be associated with the former President in all the latter's alleged criminal activities. Of course, I cannot ignore the use of the phrase "on several instances" and "aggregate amount of P545,000,000.00" in paragraph (a) of the Amended Information. At first glance, this may be construed as attributing to petitioner Serapio a "combination or series of overt act." However, a reading of the Amended Information, in its entirety, readily reveals that the said phrases pertain to former President Estrada, the principal accused in the case. Allegedly, the former President, on several instances, received or collected an aggregate amount of P545,000,000.00, more or less from illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary benefit "by himself and/or in connivance with co-accused Charlie "Atong" Ang, Jose "Jinggoy" Estrada, Yolanda T. Ricaforte, petitioner Serapio and John Does and Jane Does. We have already explained the implication of the phrase "by himself and/or in connivance." Consequently, the acts committed by former President Estrada on the several instances referred to cannot automatically be attributed to petitioner. Third, petitioner's criminal intent to advance the unlawful object of the conspiracy (plunder) is not sufficiently alleged in the factual recitals of the Amended Information. Corollarily, the intent required is the intent to advance or further the unlawful object of the conspiracy. 15 This means that so far as the relevant circumstances are concerned, both parties to the agreement must have mens rea.16 There is no conspiracy to commit a particular crime unless the parties to the agreement intend that the consequences, which are ingredients of that crime, shall be caused. 17 In the present case, while there is an allegation that former President Estrada "willfully, unlawfully and criminally"18 amassed ill-gotten wealth in the aggregate amount of P4,097,804,173.17, none is mentioned with regard to petitioner. There is nothing in the Amended Information that suggests whether or not petitioner has the mens rea to engage in the commission of the serious crime of plunder. Indeed, there are no allegations that he "willfully, unlawfully or criminally" joined with the rest of the accused to amass ill-gotten wealth. This renders the Amended Information fatally defective with respect to petitioner. Every crime is made up of certain acts and intent: these must be set forth in the complaint with reasonable particularity.19 Imperatively, an information charging that a defendant conspired to commit an offense must allege that the defendant agreed with one or more persons to commit the offense.20 And fourth, the statement in the accusatory portion of the Amended Information cumulatively charging all the accused of the crime of Plunder cannot be given much weight in determining the nature of the offense charged. It is a jurisprudentially-embedded rule that what determines the "nature and cause of accusation" against an accused is the crime described by the facts stated in the information or complaint and not that designated by the fiscal in the preamble thereof.21 In the recent En Banc ruling in Lacson vs. Executive Secretary,22 citing the 1954 case of People vs. Cosare23 and People vs. Mendoza,24 this Court held: "The factor that characterizes the charge is the actual recital of the facts. The real nature of the criminal charge is determined not from the caption or preamble of the information 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."25 Thus, in the event that the appellation of the crime charged, as determined by the public prosecutor, does not exactly correspond to the actual crime constituted by the criminal acts described in the information to have been committed by the accused, what controls is the description of the said criminal acts and not the technical name of the crime supplied by the public prosecutor.26 There is a caveat that an information under the broad language of a general conspiracy statute must be scrutinized carefully as to each of the charged defendants because of the possibility, inherent in a criminal conspiracy charge, that its wide net may ensnare the innocent as well as the culpable.27 Let it be stressed that guilt should remain individual and personal, even as respect conspiracies. It is not a matter of mass application. There are times when of necessity, because of the nature and scope of a particular federation, large numbers of persons taking part must be tried by their conduct. The proceeding calls for the use of every safeguard to individualize each accused in relation to the mass. Criminal they may be, but it is not the criminality of mass conspiracy. They do not invite mass trial by their conduct. True, this may be inconvenient for the prosecution. But the government is not one of mere convenience or efficiency. It too has a stake with every citizen, in his being afforded the individual protections, including those surrounding criminal trials.28 The shot-gun approach of a conspiracy charge could amount to a prosecution for general criminality resulting in a finding of guilt by association. The courts should, at all times, guard against this possibility so that the constitutional rights of an individual are not curbed or clouded by the web of circumstances involved in a conspiracy charge. 29 Corollarily, petitioner prays in G.R. No. 148468 for this Court to issue a writ of habeas corpus. The Amended Information being fatally defective, it is imperative that petitioner be dropped from the Amended Information and proceeded against under a new one charging the proper offense. In the absence of a standing case against him, the issuance of a writ of habeas corpus is in order."30 WHEREFORE, I vote to GRANT the petitions in G.R. No. 148769 and G.R. No. 148468.

Footnotes
1

Rollo, G.R. No. 148468, pp. 4951. Rollo, G.R. No. 149116, p.16. Ibid., pp. 18, 249281. Ibid., pp. 1617. Rollo, G.R. No. 146468, p. 54. Ibid., pp. 6166. Rollo, G.R. No. 149116, p. 412. Rollo, G.R. No. 148468, p. 112. Ibid., p. 114. Ibid., pp. 147164. Ibid., pp. 4344. Rollo, G.R. No. 148769, pp. 165197. Rollo, pp. 1718. Rollo, p. 46. Supra. Jose "Jinggoy "Estrada vs. Sandiganbayan (Third Division), et al., G.R. No. 148965, February 26, 2002. Luz Balitaan vs. Court of First Instance, et al., 115 SC RA 729 (1982). People vs. Ronnie Quitlong, et al., 292 SCRA 360 (1998). G.R. No. 148965, February 26, 2002. Supra, p. 14. Luz Balitaan vs. Court of First Instance of Batangas, supra. See note 19. People vs. Rodolfo Hilario, et al., 354 SCRA 534 (2001). Territory vs. Goto, 27 Hawaii 65 (1923). Rollo, pp. 194195. Rollo, p. 21.

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Rollo, G.R. No. 149116, p. 21. Ibid., p. 25. Ibid., pp. 2627. Ibid., p. 30. Ibid., pp. 3033. Ibid., pp. 3336. Ibid., p. 36. Ibid., p. 39. Ibid., pp. 4344. Ibid., pp. 295298. Ibid., p. 298. Ibid., p. 301. Ibid., p. 472. Ibid., pp. 473480. Ibid., pp. 480492. 335 SCRA 581 (2000). 233 SCRA 439 (1994). Rollo, G.R. No. 148468, p. 59. Ibid., pp. 408409. Rollo, G.R. No. 149116, pp. 412413. Rolito Go vs. Court of Appeals, 206 SCRA 138 (1992). People vs. Madraga, 344 SCRA 628 (2000); Sanchez vs. Demetriou, 227 SCRA 627 (1993). Rule 112, Sec. 1, Revised Rules of Criminal Procedure; Webb vs. De Leon, 247 SCRA 652 (1995). Supra, pp. 675676. Metropolitan Bank & Trust Co. vs. Tonda, 338 SCRA 254 (2000); Raro vs. Sandiganbayan, 335 SCRA 581 (2000). Crespo vs. Mogul, 151 SCRA 462 (1987). 206 SCRA 138 (1992). Vide Note 4.

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Rollo, G.R. No. 148468, p. 366. Ibid., pp. 366367. Ibid., p. 367. Ibid., p. 368. Ibid., p. 369. Ibid., pp. 212215. Ibid., p. 215. Ibid., p. 216. Salonga vs. Cruz Pao, 134 SCRA 438, 463 (1985). Mendoza vs. CFI of Quezon, 51 SCRA 369 (1973). 324 SCRA 321 (2000). Id., p. 330. Herras Teehankee vs. Rovira, 75 Phil. 364 (1945). Lavides vs. Court of Appeals, supra. Rollo, G.R. No. 148468, pp. 3738. Ibid., p. 374. Rule 114, Sec. 1, Revised Rules of Criminal Procedure. Almeda vs. Villaluz, 66 SCRA 38 (1975). Mendoza vs. CFI of Quezon, 51 SCRA 369 ( 1973). Smith v. State, 78 S 530. Rule 117, Section 1, Revised Rules of Criminal Procedure. Rollo, G.R. No. 148468, p. 373. Ibid., pp. 220225. Ibid., pp. 112113. Kotteakos vs. United States, 90 L.Ed. 1564 (1946). 77 Phil. 55 (1946). Vide Note 16. Ibid., pp. 643644.

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Rollo, G.R. No. 148468, p. 112. Ibid., p. 68. Ibid., 233242. Ibid., p.188. Ibid., p. 210. Ibid., p. 211, [emphasis by respondents]. Ibid., p. 211, [emphasis by respondents]. People vs. Gako, Jr., 348 SCRA 334 (2000); Goodman vs. De La Victoria, 325 SCRA 658 (2000). Supra. Narciso vs. Sta. Romana-Cruz, 328 SCRA 505 (2000); Tolentino vs. Camano, 322 SCRA 559 (2000). People vs. Nano, 205 SCRA 155 (1992); Herras Teehankee v. Director of Prisons, 76 Phil. 756 (1946). Padilla vs. Court of Appeals, 260 SCRA 155 (1996). Rollo, G.R. No. 148468, pp. 240241. Ibid., pp. 7074. Ibid., pp. 75-82. Ibid., pp. 97100. Ibid., pp. 115116. Ibid., pp. 233239. Narciso vs. Sta. Romana-Cruz, supra; SCRA 284 (1995). 269 SCRA 220 (1997). Id., p. 513, (emphasis supplied). Rollo, G.R. No. 148468, pp. 3136. Ibid., pp. 3839. Ibid., pp. 392-393. 141 SCRA 233 (1986). Rollo, G.R. No. 148468, p. 396. Ibid., pp. 246247. Ibid., pp. 245251.

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1

Black's Law Dictionary. G.R. No. 148560. Section 1(d) "1) Through misappropriation, conversion, misuse or malversation of public funds or raids on the public treasury; "2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office of position of the public officer concerned; "3) By the illegal or fraudulent conveyance of disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries; "4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; "5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or "6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines."

Supra, p. 15.

Sandoval-Gutierrez, J.
1

Entitled "People of the Philippines, Plaintiff-versus-Joseph Ejercito Estrada a.k.a. "Asiong Salonga" and a.k.a. "Jose Velarde" Former President of the Philippines, Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, John Does and Jane Does, Accused"; For Plunder.
2

Annex "C," Petition, Rollo, pp. 4649.

Entitled "Jose "Jinggoy" E. Estrada, petitioner, -versus- Sandiganbayan (Third Division), People of the Philippines and Office of the Ombudsman, respondents."
4

16 Am Jur 2d 11, p. 209.

Id. 365 So. 2d 1035 (1979).

1) The indictment involved in the present case is clearly deficient under the criteria set forth by this Court in State vs. Smith, 240 So. 2d 807 (Fla. 1970): "An indictment or information for conspiracy must contain a statement of the facts relied on as constituting the offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in such a manner as to enable a person of common understanding to know what is intended, and with such precision that the accused may plead his acquittal or conviction to a separate indictment or information based on the same facts." Some of the more patent flaws found in the present indictment are as follows: 1) It is impossible to tell whether it charges that all four appellants jointly conspired with "Rothstein . . . or MacLean, or both," or whether there were two conspiracies, one between some of the appellants and Rothstein, and the other between the remaining appellants and MacLean; xxx xxx xxx

The prejudice to appellants resulting from the defective conspiracy count is itself sufficient to mandate a new trial on the remaining charges. However, the record before us is replete with errors, several of which individually and all of which cumulatively would warrant reversal. . . . ."
8

Indictment which charged defendant with conspiracy to commit a felony which failed to state with whom defendant had allegedly conspired, failed to state unlawful object of charged conspiracy, and failed to state nature of charged conspiracy under law since it did not sufficiently inform defendant of charges against him.
9

82 P. 2d 541. Wilson vs. United States, 190 Federal Reporter 427 (1911). United States vs. Welch, 656 F 2d 1039 (1981). 41 Am Jur 2d 202. "Senator Paterno Mr. President, not too clear yet on the reason for trying to define a crime of plunder. Could I get some further clarification? Senator Taada Yes, Mr. President. Because of our experience in the former regime, we feel that there is a need for Congress to pass the legislation which would cover a crime of this magnitude. While it is true, we already have the Anti-Graft Law. But that does not directly deal with plunder. That covers only the corrupt practices of public officials as well as their spouses and relatives within the civil degree, and the Anti-Graft law as presently worded would not adequately or sufficiently address the problems that we experienced during the past regime. Senator Paterno May I try to give the Gentleman, Mr. President, my understanding of the bill? Senator Taada Yes. Senator Paterno I envision that this bill or this kind of plunder would cover a discovered interconnection of certain acts, particularly, violations of Anti-Graft and Corrupt Practices Act when, after the different acts are looked at, a scheme of conspiracy can be detected, such scheme or conspiracy consummated by the different criminal acts or violations of Anti-Graft and Corrupt Practices Act, such that the scheme or conspiracy becomes a sin, as a large scheme to defraud the public or rob the public treasury. It is parang robo and banda. It is considered as that. And, the bill seeks to define or says that P100 million is that level at which ay talagang sobra na dapat nang parusahan ng husto. Would it be a correct interpretation or assessment of the intent of the bill? Senator Taada Yes, Mr. President. The fact that under existing law, there can be only one offense charged in the information, that makes it very cumbersome and difficult to go after these grafters if we would not come out with this bill. That is what is happening now; because of that rule that there can be only one offense charged per information, then we are having difficulty in charging all the public officials who would seem to have committed these corrupt practices. With this bill, we could come out with just one information, and that would cover all the series of criminal acts that may have been committed by him.

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Senator Romulo To follow up the interpolations of Senator Paterno and Maceda, this crime of plunder as envisioned here contemplates of a series or a scheme as responded by the distinguished Sponsor. Senator Taada That is correct, Mr. President. (Record of Senate, June 5, 1989, Vol. IV, No. I-40, p. 1315) xxx xxx xxx

Senator Romulo Mr. President, I was going to suggest prior to Senator Maceda that on line 24: "SHALL THROUGH ONE overt or criminal act OR. . . ." I was just thinking of one which is really not a "series." The President. If there is only one, then he has to be prosecuted under the particular crime. But when we say "acts of plunder" there should be, at least, two or more. (Record of the Senate, June 6, 1989, Vol. IV, No. 141, p. 1399). The use of "or" a function word to indicate an alternative between different or unlike things, state, or actions negates absolute commonality of design among the former President and all his co-accused. Webster Third New International Dictionary, 1993, p. 1585.
14 15

Establishing the intent necessary to sustain a conviction for conspiracy requires showing not only that the conspirators intended to agree but also that they intended to commit the elements of the underlying offense.
16

In Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001, Justice Josue N. Bellosillo quoting from the Concurring Opinion of Justice Vicente V. Mendoza, held that "[p]lunder is a malum in se, requiring criminal intent. Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime was committed "wilfully, unlawfully and criminally." It thus allege guilty knowledge on the part of petitioner (Joseph Ejercito Estrada).
17

Smith, Hogan, Criminal Law, Sixth Edition, 1988, p. 264. This signifies the allegation of mens rea. Pecho vs. People, 262 SCRA 518 (1996). 16 Am Jur 2d 33. United States vs. Lim San, 17 Phil. 273 (1910); United States vs. de Guzman, 19 Phil. 350 (1911). 301 SCRA 298 (1999). 95 Phil. 657, 660 (1954). 175 SCRA 743 (1989). Lacson vs. Executive Secretary, 301 SCRA 298 (1999). Buhat vs. Court of Appeals, 265 SCRA 701 (1996). 16 Am Jur 2d 32, p. 245. Dennis v. U.S., 384 U.S. 855, 86 Ct. 1840, 16 L Ed. 2d 973 (1966). Kotteakos vs. U.S., 328 U.S. 750 (1946). Goldberg vs. State, supra. Aleria, Jr. vs. Velez, 298 SCRA 611 (1998).

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 147780 May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147781 May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. ---------------------------------------G.R. No. 147799 May 10, 2001

RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO

BERROYA, respondents. ---------------------------------------G.R. No. 147810 May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents. RESOLUTION MELO, J.: On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons" assaulting and attempting to break into Malacaang, issued Proclamation No. 38 declaring that there was a state of rebellion in the National Capital Region. She likewise issued General Order No. 1 directing the Armed Forces of the Philippines and the Philippine National Police to suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and promoters of the "rebellion" were thereafter effected. Aggrieved by the warrantless arrests, and the declaration of a "state of rebellion," which allegedly gave a semblance of legality to the arrests, the following four related petitions were filed before the Court (1) G. R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an urgent application for the issuance of temporary restraining order and/or writ of preliminary injunction) filed by Panfilio M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao; (2) G. R. No. 147781 for mandamus and/or review of the factual basis for the suspension of the privilege of the writ of habeas corpus, with prayer for the suspension of the privilege of the writ of habeas corpus, with prayer for a temporary restraining order filed by Miriam Defensor-Santiago; (3) G. R. No. 147799 for prohibition and injunction with prayer for a writ of preliminary injunction and/or restraining order filed by Ronaldo A. Lumbao; and (4) G. R. No. 147810 for certiorari and prohibition filed by the political partyLaban ng Demokratikong Pilipino. All the foregoing petitions assail the declaration of a state of rebellion by President Gloria Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof, as having no basis both in fact and in law. Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declaration of a "state of rebellion" in Metro Manila. Accordingly, the instant petitions have been rendered moot and academic. As to petitioners' claim that the proclamation of a "state of rebellion" is being used by the authorities to justify warrantless arrests, the Secretary of Justice denies that it has issued a particular order to arrest specific persons in connection with the "rebellion." He states that what is extant are general instructions to law enforcement officers and military agencies to implement Proclamation No. 38. Indeed, as stated in respondents' Joint Comments: [I]t is already the declared intention of the Justice Department and police authorities to obtain regular warrants of arrests from the courts for all acts committed prior to and until May 1, 2001 which means that preliminary investigations will henceforth be conducted. (Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R. No. 147799, p. 16; G.R. No. 147810, p. 24) With this declaration, petitioners' apprehensions as to warrantless arrests should be laid to rest. In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a "state of rebellion." Moreover, petitioners' contention in G. R. No. 147780 (Lacson Petition), 147781 (Defensor-Santiago Petition), and 147799 (Lumbao Petition) that they are under imminent danger of being arrested without warrant do not justify their resort to the extraordinary remedies of mandamus and prohibition, since an individual subjected to warrantless arrest is not without adequate remedies in the ordinary course of law. Such an individual may ask for a preliminary investigation under Rule 112 of the Rules of Court, where he may adduce evidence in his defense, or he may submit himself to inquest proceedings to determine whether or not he should remain under custody and correspondingly be charged in court. Further, a person subject of a warrantless arrest must be delivered to the proper judicial authorities within the periods provided in Article 125 of the Revised Penal Code, otherwise the arresting officer could be held liable for delay in the delivery of detained persons. Should the detention be without legal ground, the person arrested can charge the arresting officer with arbitrary detention. All this is without prejudice to his filing an action for damages against the arresting officer under Article 32 of the Civil Code. Verily, petitioners have a surfeit of other remedies which they can avail themselves of, thereby making the prayer for prohibition and mandamus improper at this time (Section 2 and 3, Rule 65, Rules of Court).
1wphi 1.nt

Aside from the foregoing reasons, several considerations likewise inevitably call for the dismissal of the petitions at bar. G.R. No. 147780 In connection with their alleged impending warrantless arrest, petitioners Lacson, Aquino, and mancao pray that the "appropriate court before whom the informations

against petitioners are filed be directed to desist from arraigning and proceeding with the trial of the case, until the instant petition is finally resolved." This relief is clearly premature considering that as of this date, no complaints or charges have been filed against any of the petitioners for any crime. And in the event that the same are later filed, this Court cannot enjoin criminal prosecution conducted in accordance with the Rules of Court, for by that time any arrest would have been in pursuant of a duly issued warrant. As regards petitioners' prayer that the hold departure orders issued against them be declared null and void ab initio, it is to be noted that petitioners are not directly assailing the validity of the subject hold departure orders in their petition. They are not even expressing intention to leave the country in the near future. The prayer to set aside the same must be made in proper proceedings initiated for that purpose. Anent petitioners' allegations ex abundante ad cautelam in support of their application for the issuance of a writ of habeas corpus, it is manifest that the writ is not called for since its purpose is to relieve petitioners from unlawful restraint (Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which remains speculative up to this very day. G.R. No. 147781 The petition herein is denominated by petitioner Defensor-Santiago as one for mandamus. It is basic in matters relating to petitions for mandamus that the legal right of the petitioner to the performance of a particular act which is sought to be compelled must be clear and complete. Mandamus will not issue unless the right to relief is clear at the time of the award (Palileo v. Ruiz Castro, 85 Phil. 272). Up to the present time, petitioner Defensor Santiago has not shown that she is in imminent danger of being arrested without a warrant. In point of fact, the authorities have categorically stated that petitioner will not be arrested without a warrant. G.R. No. 147799 Petitioner Lumbao, leader of the People's Movement against Poverty (PMAP), for his part, argues that the declaration of a "state of rebellion" is violative of the doctrine of separation of powers, being an encroachment on the domain of the judiciary which has the constitutional prerogative to "determine or interpret" what took place on May 1, 2001, and that the declaration of a state of rebellion cannot be an exception to the general rule on the allocation of the governmental powers. We disagree. To be sure, Section 18, Article VII of the Constitution expressly provides that "[t]he President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion" Thus, we held inIntegrated Bar of the Philippines v. Hon. Zamora, (G.R. No. 141284, August 15, 2000): x x x The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof. On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. x x x (at pp.22-23) The Court, in a proper case, may look into the sufficiency of the factual basis of the exercise of this power. However, this is no longer feasible at this time, Proclamation No. 38 having been lifted. G.R. No. 147810 Petitioner Laban ng Demokratikong Pilipino is not a real party-in-interest. The rule requires that a party must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision so as to warrant an invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers in his behalf (KMU Labor Center v. Garcia, Jr., 239 SCRA 386 [1994]). Here, petitioner has not demonstrated any injury to itself which would justify resort to the Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its leaders, members, and supporters are being threatened with warrantless arrest and detention for the crime of rebellion. Every action must be brought in the name of the party whose legal right has been invaded or infringed, or whose legal right is under imminent threat of invasion or infringement. At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that its right to freedom of expression and freedom of assembly is affected by the declaration of a "state of rebellion" and that said proclamation is invalid for being contrary to the Constitution. However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court not having jurisdiction in the first instance over such a petition. Section 5[1], Article VIII of the Constitution limits the original jurisdiction of the Court to cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in G.R. No. 147780, 147781, and 147799, respondents, consistent and congruent with their undertaking earlier adverted to, together with their agents, representatives, and all persons acting for and in their behalf, are hereby enjoined from arresting

petitioners therein without the required judicial warrant for all acts committed in relation to or in connection with the may 1, 2001 siege of Malacaang. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Gonzaga-Reyes, JJ., concur. Vitug, separate opinion. Kapunan, dissenting opinion. Pardo, join the dissent of J. Kapunan. Sandoval-Gutierrez, dissenting opinion. Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., on leave.

G.R. No. 147780

May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147781 May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. SEPARATE OPINION VITUG, J.: I concur insofar as the resolution enjoins any continued warrantless arrests for acts related to, or connected with, the May 1st incident but respectfully dissent from the order of dismissal of the petitions for being said to be moot and academic. The petitions have raised important constitutional issues that, in my view, must likewise be fully addressed.

G.R. No. 147780

May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147781 May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. ---------------------------------------G.R. No. 147799 May 10, 2001

RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147810 May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents. DISSENTING OPINION KAPUNAN, J.: The right against unreasonable searches and seizure has been characterized as belonging "in the catalog of indispensable freedoms." Among deprivation of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police. 1 Invoking the right against unreasonable searches and seizures, petitioners Panfilo Lacson, Michael Ray Aquino and Cezar O. Mancao II now seek a temporary restraining order and/or injunction from the Court against their impending warrantless arrests upon order of the Secretary of Justice.2 Petitioner Laban ng Demokratikong Pilipino (LDP), likewise, seeks to enjoin the arrests of its senatorial candidates, namely, Senator Juan Ponce-Enrile, Senator Miriam Defensor-Santiago, Senator Gregorio B. Honasan and General Panfilo Lacson.3 Separate petitioners were also filed by Senator Juan Ponce Enrile.4 Former Ambassador Ernesto M. Maceda,5 Senator Miriam Defensor-Santiago,6 Senator Gregorio B. Honasan,7 and the Integrated Bar of the Philippines (IBP).8 Briefly, the order for the arrests of these political opposition leaders and police officers stems from the following facts: On April 25, 2001, former President Joseph Estrada was arrested upon the warrant issued by the Sandiganbayan in connection with the criminal case for plunder filed against him. Several hundreds of policemen were deployed to effect his arrest. At the time, a number of Mr. Estrada's supporters, who were then holding camp outside his residence in Greenhills Subdivision, sought to prevent his arrest. A skirmish ensued between them and the police. The police had to employ batons and water hoses to control the rock-throwing pro-Estrada rallyists and allow the sheriffs to serve the warrant. Mr. Estrada and his son and co-accused, Mayor Jinggoy Estrada, were then brought to Camp Crame where, with full media coverage, their fingerprints were obtained and their mug shots taken. Later that day, and on the succeeding days, a huge gathered at the EDSA Shrine to show its support for the deposed President. Senators Enrile, Santiago, Honasan, opposition senatorial candidates including petitioner Lacson, as well as other political personalities, spoke before the crowd during these rallies. In the meantime, on April 28, 2001, Mr. Estrada and his son were brought to the Veterans memorial Medical Center for a medical check-up. It was announced that from there, they would be transferred to Fort Sto. Domingo in Sta. Rosa, Laguna. In the early morning of May 1, 2001, the crowd at EDSA decided to march to Malacaang Palace. The Armed Forces of the Philippines (AFP) was called to reinforce the Philippine National Police (PNP) to guard the premises of the presidential residence. The marchers were able to penetrate the barricades put up by the police at various points leading to Mendiola and were able to reach Gate 7 of Malacaan. As they were being dispersed with warning shots, tear gas and water canons, the rallyists hurled stones at the police authorities. A melee erupted. Scores of people, including some policemen, were hurt. At noon of the same day, after the crowd in Mendiola had been dispersed, President Gloria Macapagal-Arroyo issued Proclamation No. 38 declaring a "state of rebellion" in Metro Manila:

Presidential Proclamation No. 38 DECLARING STATE OF REBELLION IN THE NATIONAL CAPITAL REGION WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons, in great part coming from the mass gathering at the EDSA Shrine, and other armed groups, having been agitated and incited and, acting upon the instigation and under the command and direction of known and unknown leaders, have and continue to assault and attempt to break into Malacaang with the avowed purpose of overthrowing the duly constituted Government and forcibly seize power, and have and continue to rise publicly, shown open hostility, and take up arms against the duly constituted Government for the purpose of removing from the allegiance to the Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and to deprive the President of the Republic of the Philippines, wholly and partially, of her powers and prerogatives which constitute the continuing crime of rebellion punishable under Article 134 of the Revised Penal Code; WHEREAS, armed groups recruited by known and unknown leaders, conspirators, and plotters have continue (sic) to rise publicly by the use of arms to overthrow the duly constituted Government and seize political power; WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the President as the Commander-in-Chief of all armed forces of the Philippines, may call out such armed forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law hereby recognize and confirm the existence of an actual and on-going rebellion compelling me to declare a state of rebellion; In view of the foregoing, I am issuing General Order NO. 1 in accordance with Section 18, Article VII of the Constitution calling upon the Armed Forces of the Philippines and the Philippine National police to suppress and quell the rebellion. City of Manila, May 1, 2001. The President likewise issued General Order No. 1 which reads: GENERAL ORDER NO. 1 DIRECTING THE ARMED FORCES OF THE PHILIPPIENS AND THE PHILIPPINE NATIONAL POLICE TO SUPPRESS THE REBELLION IN THE NATIONAL CAPITAL REGION WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons, in great part coming from the mass gathering at the EDSA Shrine, and other armed groups, having been agitated and incited and, acting upon the instigation and under the command and direction of known and unknown leaders, have and continue to assault and attempt to break into Malacaang with the avowed purpose of overthrowing the duly constituted Government and forcibly seize political power, and have and continue to rise publicly, show open hostility, and take up arms against the duly constituted Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and to deprive the President of the Republic of the Philippines, wholly and partially, of her powers and prerogatives which constitute the continuing crime of rebellion punishable under Article 134 of the Revised Penal Code; WHEREAS, armed groups recruited by known and unknown leaders, conspirators, and plotters have continue (sic) to rise publicly by the use of arms to overthrow the duly constituted Government and seize political power; WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the President as the Commander-in-Chief of all armed forces of the Philippines, may call out such armed forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines and Commander-in-Chief of all armed forces of the Philippines and pursuant to Proclamation No. 38, dated May 1, 2001, do hereby call upon the Armed Forces of the Philippines and the Philippine national police to suppress and quell the rebellion. I hereby direct the Chief of Staff of the Armed Forces of the Philippines and the Chief of the Philippine National Police and the officers and men of the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary and appropriate actions and measures to suppress and quell the rebellion with due regard to constitutional rights. City of Manila, May 1, 2001. Pursuant to the proclamation, several key leaders of the opposition were ordered arrested. Senator Enrile was arrested without warrant in his residence at around 4:00 in the afternoon. Likewise arrested without warrant the following day was former Ambassador Ernesto Maceda. Senator Honasan and Gen. Lacson were also ordered arrested but the authorities have so far failed to apprehend them. Ambassador Maceda was temporarily released upon recognizance while Senator Ponce Enrile was

ordered released by the Court on cash bond. The basic issue raised by the consolidated petitions is whether the arrest or impending arrest without warrant, pursuant to a declaration of "state of rebellion" by the President of the above-mentioned persons and unnamed other persons similarly situated suspected of having committed rebellion is illegal, being unquestionably a deprivation of liberty and violative of the Bill of Rights under the Constitution. The declaration of a "state of rebellion" is supposedly based on Section 18, Article VII of the Constitution which reads: The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may 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 or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. Section 18 grants the President, as Commander-in-Chief, the power to call out the armed forces in cases of (1) lawless violence, (2) rebellion and (3) invasion.9 In the latter two cases, i.e., rebellion or invasion, the President may, when public safety requires, also (a) suspend the privilege of the writ of habeas corpus, or (b) place the Philippines or any part thereof under martial law. However, in the exercise of this calling out power as Commander-in-Chief of the armed forces, the Constitution does not require the President to make a declaration of a "state of rebellion" (or, for that matter, of lawless violence or invasion). The term "state of rebellion" has no legal significance. It is vague and amorphous and does not give the President more power than what the Constitution says, i. e, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. As Justice Mendoza observed during the hearing of this case, such a declaration is "legal surplusage." But whatever the term means, it cannot diminish or violate constitutionally-protected rights, such as the right to due process,10 the rights to free speech and peaceful assembly to petition the government for redress of grievances, 11 and the right against unreasonable searches and seizures,12 among others. In Integrated Bar of the Philippines vs. Zamora, et al.,13 the Court held that: x x x [T]he distinction (between the calling out power, on one hand, and the power to suspend the privilege of the write of habeas corpus and to declare martial law, on the other hand) places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ ofhabeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification. Expressio unius est exclusio alterius. xxx The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the "calling out" power because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating affirmation by Congress and, in appropriate cases, review by this Court. On the other hand, if the motive behind the declaration of a "state of rebellion" is to arrest persons without warrant and detain them without bail and, thus, skirt the Constitutional safeguards for the citizens' civil liberties, the so-called "state of rebellion" partakes the nature of martial law without declaring on its face, yet, if it is applied and administered by public authority with an evil eye so as to practically make it unjust and oppressive, it is within the prohibition of the Constitution.14 In an ironic sense, a "state of rebellion" declared as a subterfuge to effect warrantless arrest and detention for an unbailable offense places a heavier burden on the people's civil liberties than the suspension of the privilege of the writ of habeas corpus the declaration of martial law because in the latter case, built-in safeguards are automatically set on motion: (1) The period for martial law or suspension is limited to a period not exceeding sixty day; (2) The President is mandated to submit a report to Congress within forty-eight hours from the proclamation or suspension; (3) The proclamation or suspension is subject to review by Congress, which may revoke such proclamation or

suspension. If Congress is not in session, it shall convene in 24 hours without need for call; and (4) The sufficiency of the factual basis thereof or its extension is subject to review by the Supreme Court in an appropriate proceeding.15 No right is more fundamental than the right to life and liberty. Without these rights, all other individual rights may not exist. Thus, the very first section in our Constitution's Bill of Rights, Article III, reads: SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. And to assure the fullest protection of the right, more especially against government impairment, Section 2 thereof 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. Indeed, there is nothing in Section 18 which authorizes the President or any person acting under her direction to make unwarranted arrests. The existence of "lawless violence, invasion or rebellion" only authorizes the President to call out the "armed forces to prevent or suppress lawless violence, invasion or rebellion." Not even the suspension of the privilege of the writ of habeas corpus or the declaration of martial law authorizes the President to order the arrest of any person. The only significant consequence of the suspension of the writ ofhabeas corpus is to divest the courts of the power to issue the writ whereby the detention of the person is put in issue. It does not by itself authorize the President to order the arrest of a person. And even then, the Constitution in Section 18, Article VII makes the following qualifications: The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. In the instant case, the President did not suspend the writ of habeas corpus. Nor did she declare martial law. A declaration of a "state of rebellion," at most, only gives notice to the nation that it exists, and that the armed forces may be called to prevent or suppress it, as in fact she did. Such declaration does not justify any deviation from the Constitutional proscription against unreasonable searches and seizures. As a general rule, an arrest may be made only upon a warrant issued by a court. In very circumscribed instances, however, the Rules of Court allow warrantless arrests. Section 5, Rule 113 provides: SEC. 5. Arrest without warrant; when lawful. A police 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; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and xxx In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. It must be noted that the above are exceptions to the constitutional norm enshrined in the Bill of Rights that a person may only be arrested on the strength of a warrant of arrest issued by a "judge" after determining "personally" the existence of "probable cause" after examination under oath or affirmation of the complainant and the witnesses he may produce. Its requirements should, therefore, be scrupulously met: The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrests is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection.16 A warrantless arrest may be justified only if the police officer had facts and circumstances before him which, had they been before a judge, would constitute adequate basis for a finding of probable cause of the commission of an offense and that the person arrested is probably guilty of committing the offense. That is why the Rules of

Criminal Procedure require that when arrested, the person "arrested has committed, is actually committing, or is attempting to commit an offense" in the presence of the arresting officer. Or if it be a case of an offense which had "just been committed," that the police officer making the arrest "has personal knowledge of facts or circumstances that the person to be arrested has committed it." Petitioners were arrested or sought to be arrested without warrant for acts of rebellion ostensibly under Section 5 of Rule 113. Respondents' theory is based on Umil vs. Ramos,17 where this Court held: The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assault against the State and are in the nature of continuing crimes.18 Following this theory, it is argued that under Section 5(a), a person who "has committed, is actually committing, or is attempting to commit" rebellion and may be arrested without a warrant at any time so long as the rebellion persists. Reliance on Umil is misplaced. The warrantless arrests therein, although effected a day or days after the commission of the violent acts of petitioners therein, were upheld by the Court because at the time of their respective arrests, they were members of organizations such as the Communist Party of the Philippines, the New Peoples Army and the National United Front Commission, then outlawed groups under the Anti-Subversion Act. Their mere membership in said illegal organizations amounted to committing the offense of subversion19 which justified their arrests without warrants. In contrast, it has not been alleged that the persons to be arrested for their alleged participation in the "rebellion" on May 1, 2001 are members of an outlawed organization intending to overthrow the government. Therefore, to justify a warrantless arrest under Section 5(a), there must be a showing that the persons arrested or to be arrested has committed, is actually committing or is attempting to commit the offense of rebellion. 20 In other words, there must be an overt act constitutive of rebellion taking place in the presence of the arresting officer. In United States vs. Samonte,21 the term" in his [the arresting officer's] presence" was defined thus: An offense is said to be committed in the presence or within the view of an arresting officer or private citizen when such officer or person sees the offense, even though at a distance, or hears the disturbance created thereby and proceeds at once to the scene thereof; or the offense is continuing, or has not been consummated, at the time the arrest is made.22 This requirement was not complied with particularly in the arrest of Senator Enrile. In the Court's Resolution of May 5, 2001 in the petition for habeas corpus filed by Senator Enrile, the Court noted that the sworn statements of the policemen who purportedly arrested him were hearsay.23 Senator Enrile was arrested two (2) days after he delivered allegedly seditious speeches. Consequently, his arrest without warrant cannot be justified under Section 5(b) which states that an arrest without a warrant is lawful when made after an offense has just been committed and the arresting officer or private person has probable cause to believe based on personal knowledge of facts and circumstances that the person arrested has committed the offense. At this point, it must be stressed that apart from being inapplicable to the cases at bar, Umil is not without any strong dissents. It merely re-affirmed Garcia-Padilla vs. Enrile,24 a case decided during the Marcos martial law regime.25 It cannot apply when the country is supposed to be under the regime of freedom and democracy. The separate opinions of the following Justices in the motion for reconsideration of said case 26 are apropos: FERNAN C.J., concurring and dissenting: Secondly, warrantless arrests may not be allowed if the arresting officers are not sure what particular provision of law had been violated by the person arrested. True it is that law enforcement agents and even prosecutors are not all adept at the law. However, erroneous perception, not to mention ineptitude among their ranks, especially if it would result in the violation of any right of a person, may not be tolerated. That the arrested person has the "right to insist during the pre-trial or trial on the merits" (Resolution, p. 18) that he was exercising a right which the arresting officer considered as contrary to law, is beside the point. No person should be subjected to the ordeal of a trial just because the law enforcers wrongly perceived his action.27 (Underscoring supplied) GUTIERREZ, JR., J., concurring and dissenting opinion Insofar as G.R. NO. 81567 is concerned, I joint the other dissenting Justices in their observations regarding "continuing offenses." To base warrantless arrests on the doctrine of continuing offense is to give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line between overt acts and simple advocacy or adherence to a belief is extremely thin. If a court has convicted an accused of rebellion and he is found roaming around, he may be arrested. But until a person is proved guilty, I fail to see how anybody can jump to a personal conclusion that the suspect is indeed a rebel and must be picked up on sight whenever seen. The grant of authority in the majorityopinion is too broad. If warrantless searches are to be validated, it should be Congress and not this Court which should draw strict and narrow standards. Otherwise, the non-rebels who are critical, noisy, or obnoxious will be indiscriminately lumped up with those actually taking up arms against the Government. The belief of law enforcement authorities, no matter how well-grounded on past events, that the petitioner would probably shoot other policemen whom he may meet does not validate warrantless arrests. I cannot understand why the authorities preferred to bide their time, await the petitioner's surfacing from underground, and ounce on him with no legal authority instead of securing warrants of arrest for his apprehension.28 (Underscoring supplied) CRUZ, J., concurring and dissenting:

I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal arrests made in the cases before us is a step back to that shameful past when individual rights were wantonly and systematically violated by the Marcos dictatorship. It seem some of us have short memories of that repressive regime, but I for one am not one to forget so soon. As the ultimate defender of the Constitution, this Court should not gloss over the abuses of those who, out of mistaken zeal, would violate individual liberty in the dubious name of national security. Whatever their ideology and even if it be hostile to ours, the petitioners are entitled to the protection of the Bill of Rights, no more and no less than any other person in this country. That is what democracy is all about.29 (Underscoring supplied) FELICIANO, J., concurring and dissenting: 12. My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some of the elements of the offense charged are shown to have been committed by the person arrested without warrant, the "continuing crime" doctrine should not be used to dress up the pretense that a crime, begun or committed elsewhere, continued to be committed by the person arrested in the presence of the arresting officer. The capacity for mischief of such a utilization of the "continuing crimes" doctrine, is infinitely increased where the crime charged does not consist of unambiguous criminal acts with a definite beginning and end in time and space (such as the killing or wounding of a person or kidnapping and illegal detention or arson) but rather or such problematic offenses as membership in or affiliation with or becoming a member of, a subversive association or organization. For in such cases, the overt constitutive acts may be morally neutral in themselves, and the unlawfulness of the acts a function of the aims or objectives of the organization involved. Note, for instance, the following acts which constitute prima facie evidence of "membership in any subversive association:" a) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or any other document of the organization; b) Subjecting himself to the discipline of such or association or organization in any form whatsoever; c) Giving financial contribution to such association or organization in dues, assessments, loans or in any other forms; xxx f) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof; xxx g) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the objectives and purposes of such association or organization; xxx k) Participating in any way in the activities, planning action, objectives, or purposes of such association or organization. It may well be, as the majority implies, that the constitutional rule against warrantless arrests and seizures makes the law enforcement work of police agencies more difficult to carry out. It is not our Court's function, however, and the Bill of Rights was not designed, to make life easy for police forces but rather to protect the liberties of private individuals. Our police forces must simply learn to live with the requirements of the Bill of Rights, to enforce the law by modalities which themselves comply with the fundamental law. Otherwise they are very likely to destroy, whether through sheer ineptness or excess of zeal, the very freedoms which make our policy worth protecting and saving. 30 (Underscoring supplied) It is observed that a sufficient period has lapsed between the fateful day of May 1, 2001 up to the present. If respondents have ample evidence against petitioners, then they should forthwith file the necessary criminal complaints in order that the regular procedure can be followed and the warrants of arrest issued by the courts in the normal course. When practicable, resort to the warrant process is always to be preferred because "it interposes an orderly procedure involving 'judicial impartiality' whereby a neutral and detached magistrate can make informed and deliberate determinations on the issue of probable cause." 31 The neutrality, detachment and independence that judges are supposed to possess is precisely the reason the framers of the 1987 Constitution have reposed upon them alone the power to issue warrants of arrest. To vest the same to a branch of government, which is also charged with prosecutorial powers, would make such branch the accused's adversary and accuser, his judge and jury.32 A declaration of a state of rebellion does not relieve the State of its burden of proving probable cause. The declaration does not constitute a substitute for proof. It does not in any way bind the courts, which must still judge for itself the existence of probable cause. Under Section 18, Article VII, the determination of the existence of a state of rebellion for purposes of proclaiming martial law or the suspension of the privilege of the writ of habeas corpus rests for which the President is granted ample, though not absolute, discretion. Under Section 2, Article III, the determination of probable cause is a purely legal question of which courts are the final arbiters. Justice Secretary Hernando Perez is reported to have announced that the lifting of the "state of rebellion" on May 7, 2001 does not stop the police from making warrantless arrests.33 If this is so, the pernicious effects of the declaration on the people's civil liberties have not abated despite the lifting thereof. No one exactly knows who are in the list or who prepared the list of those to be arrested for alleged complicity in the "continuing" crime of "rebellion" defined as such by executive fiat. The list of

the perceived leaders, financiers and supporters of the "rebellion" to be arrested and incarcerated could expand depending on the appreciation of the police. The coverage and duration of effectivity of the orders of arrest are thus so open-ended and limitless as to place in constant and continuing peril the people's Bill of Rights. It is of no small significance that four of he petitioners are opposition candidates for the Senate. Their campaign activities have been to a large extent immobilized. If the arrests and orders of arrest against them are illegal, then their Constitutional right to seek public office, as well as the right of he people to choose their officials, is violated. In view of the transcendental importance and urgency of the issues raised in these cases affecting as they do the basic liberties of the citizens enshrined in our Constitution, it behooves us to rule thereon now, instead of relegating the cases to trial courts which unavoidably may come up with conflicting dispositions, the same to reach this Court inevitably for final ruling. As we aptly pronounced in Salonga vs. Cruz Pao:34 The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees. Petitioners look up in urgent supplication to the Court, considered the last bulwark of democracy, for relief. If we do not act promptly, justly and fearlessly, to whom will they turn to? WHEREFORE, I vote as follows: (1) Give DUE COURSE to and GRANT the petitions; (2) Declare as NULL and VOID the orders of arrest issued against petitioners; (3) Issue a WRIT OF INJUNCTION enjoining respondents, their agents and all other persons acting for and in their behalf from effecting warrantless arrests against petitioners and all other persons similarly situated on the basis of Proclamation No. 38 and General Order No. 1 of the President. SO ORDERED.

Footnote
1

Dissention Opinion, J. Jackson, in Brinegar vs. United States, 338 U.S. 2084 (1949). G.R. No. 147780, for Prohibition, Injunction, Mandamus and Habeas Corpus. G.R. No. 147810, for Certiorari and Prohibition. G.R. No. 147785, for Habeas Corpus. G.R. No. 147787, for Habeas Corpus. G.R. No. 147781, for Mandamus. G.R. No. 147818, for Injunction. G.R. No. 147819, for Certiorari and Mandamus. Integrated Bar of the Philippines vs. Zamora, et al. G.R. No. 141284, August 15, 2000. Constitution, Article III, Section 1. Constitution, Article III, Section 4. Constitution, Article III, Section 2. G.R. No. 141284, supra.

10

11

12

13

14

See Yick Wo vs. Hopkins, 118 U.S. 356. Id., at Article VII, Section 18. People vs. Burgos, 144 SCRA 1, 14 (1986). 187 SCRA 311 (1990). Id., at 318. 187 SCRA 311, 318, 321, 323-24. (1990).

15

16

17

18

19

20

Under Article 134 of the Revised Penal Code, these acts would involve rising publicly and taking up arms against the Government: (1) to remove from the allegiance of the Government or its laws, the entire, or a portion of Philippine territory, or any body of land, naval or other armed forces, or (2) to deprive the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.
21

16 Phil 516 (1910). Id., at 519. G.R. No. 147785. 121 SCRA 472 (1983). See Note 396 in Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 180. Umil vs. Ramos, 202 SCRA 251 (1991). Id., at 274. Id., at 279. Id., at 284. Id., at 293-295. LAFAVE, I SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT (1987), pp. 548-549. Citations omitted. Presidential Anti-Dollar Salting Task Force vs. CA, 171 SCRA 348 (1989). Manila Bulletin issue of May 8, 2001 under the heading "Warrantless arrest continue" by Rey G. Panaligan:

22

23

24

25

26

27

28

29

30

31

32

33

Justice Secretary Hernando Perez said yesterday the lifting of the state of rebellion in Metro Manila does not ban the police from making warrantless arrest of suspected leaders of the failed May 1 Malacaang siege. In a press briefing, Perez said, "we can make warrantless arrest because that is provided for in the Rules of Court," citing Rule 113.
34

134 SCRA 438 (1985).

G.R. No. 147780

May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners,

vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147781 May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. ---------------------------------------G.R. No. 147799 May 10, 2001

RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147810 May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents. DISSENTING OPINION SANDOVAL-GUTIERREZ, J.: The exercise of certain powers by the President in an atmosphere of civil unrest may sometimes raise constitutional issues. If such powers are used arbitrarily and capriciously, they may degenerate into the worst form of despotism. It is on this premise that I express my dissent. The chain of events which led to the present constitutional crisis are as follows: On March 2, 2001, the Supreme Court rendered the landmark decision that would bar further questions on the legitimacy of Gloria Macapagal-Arroyo's presidency.1 In a unanimous decision, the Court declared that Joseph Ejercito Estrada had effectively resigned his post and that Macapagal-Arroyo is the legitimate President of the Philippines. Estrada was stripped of all his powers and presidential immunity from suit. Knowing that a warrant of arrest may at any time be issued against Estrada, his loyalists rushed to his residence in Polk Street, North Greenhills Subdivision, San Juan, Metro Manila. They conducted vigil in the vicinity swearing that no one can take away their "president." Then the dreadful day for the Estrada loyalists came. On April 25, 2001, the Third Division of the Sandiganbayan issued warrants of arrest against Estrada, his son Jinggoy, Charlie "Atong" Ang, Edward Serapio, Yolanda Ricaforte, Alma Alfaro, Eleuterio Tan and Delia Rajas. 2Emotions ran high as an estimated 10,000 Estrada loyalists, ranging from tattooed teenagers of Tondo to wellheeled Chinese, gathered in Estrada's neighborhood.3 Supporters turned hysterical. Newspapers captured pictures of raging men and wailing women. 4 When policemen came, riots erupted. Police had to use their batons as well as water hoses to control the rock-throwing Estrada loyalists.5 It took the authorities about four hours to implement the warrant of arrest. At about 3:30 o'clock in the afternoon of the same day, Philippine National Police (PNP) Chief, Director General Leandro R. Mendoza, with the aid of PNP's Special Action Force and reinforcements from the Philippine Army and Marines, implemented the warrant of arrest against Estrada.6 Like a common criminal, Estrada was fingerprinted and had his mug shots taken at the detention center of the former Presidential Anti-Organized Task Force at Camp Crame. The shabby treatment, caught on live TV cameras nationwide, had sparked off a wave of protest all over the country. Even international news agencies like CNN

and BBC were appalled over the manner of Estrada's arrest calling it "overkill." In a taped message aired over radio and television, Estrada defended himself and said, "I followed the rule of law to the letter. I asked our people now to tell the powers to respect our constitution and the rule of law." Being loyal to the end, the supporters of Estrada followed him to Camp Crame. About 3,000 of them massed up in front of the camp. They were shouting "Edsa Three! Edsa Three! They vowed not to leave the place until Estrada is released. When asked how long they planned to stay, the protesters said, "Kahit isang buwan, kahit isang taon.7 At about 6:00 o' clock in the afternoon, also of the same day, the PNP's anti-riot squads dispersed them. Thus, they proceeded to the Edsa Shrine in Mandaluyong City where they joined forces with hundreds more who came from North Greenhills. 8 Hordes of Estrada loyalists began gathering at the historic shrine. On April 27, 2001, the crowd at Edsa begun to swell in great magnitude. Estrada loyalists from various sectors, most of them obviously belonging to the "masses," brought with them placards and streamers denouncing the manner of arrest done to the former president. 9 In the afternoon, buses loaded with loyalists from the nearby provinces arrived at the Edsa Shrine. One of their leaders said that the Estrada supporters will stay at Edsa Shrine until the former president gets justice from the present administration.10 An estimated 1,500 PNP personnel from the different parts of the metropolis were deployed to secure the area. 11On April 28, 2001, the PNP and the Armed Forces declared a "nationwide red alert."12 Counter-intelligence agents checked on possible defectors from the military top officials. Several senators were linked to an alleged junta plot. During the rally, several Puwersa Ng Masa candidates delivered speeches before the crowd. Among those who showed up at the rally were Senators Miriam DefensorSantiago, Gregorio Honasan, Juan Ponce Enrile, Edgardo Angara, Vicente Sotto and former PNP Director General Panfilo Lacson and former Ambassador Ernesto Maceda.13 On April 30, 2001, the government started to prepare its forces. A 2,000-strong military force backed up by helicopter gunships, Scorpion tanks and armored combat vehicles stood ready to counter any attempt by Estrada loyalists to mount a coup. And to show that it meant business, the task force parked two MG-520 attack helicopters armed to the teeth with rockets on the parade ground at Camp Aguinaldo, Quezon City. Also deployed were two armored personnel carriers and troops in camouflage uniforms.14 Over 2,500 soldiers from the army, navy, and air force were formed into Task Force Libra to quell the indignant Estrada loyalists.15 On May 1, 2001, at about 1:30 o'clock in the morning, the huge crowd at Edsa started their march to Malacaang.16 Along the way, they overran the barricades set up by the members of the PNP Crowd Dispersal Control Management.17 Shortly past 5:00 o'clock in the morning of the same day, the marchers were at the gates of Malacaang chanting, dancing, singing and waving flags.18 At around 10:00 o'clock in the morning, the police, with the assistance of combat-ready soldiers, conducted dispersal operations. Some members of the dispersal team were unceasingly firing their high-powered firearms in the air, while the police, armed with truncheons and shields, were slowly pushing the protesters away from the gates of Malacaang. Television footages showed protesters hurling stones and rocks on the advancing policemen, shouting invectives against them and attacking them with clubs. They burned police cars, a motorcycle, three pick-ups owned by a television station, construction equipment and a traffic police outpost along Mendiola Street.19 They also attacked Red Cross vans, destroyed traffic lights, and vandalized standing structures. Policemen were seen clubbing protesters, hurling back stones, throwing teargas under the fierce midday sun, and firing guns towards the sky. National Security Adviser Roilo Golez said the Street had to be bleared of rioters at all costs because "this is like an arrow, a dagger going all the way to (Malacaang) Gate 7."20 Before noontime of that same day, the Estrada loyalists were driven away. The violent street clashes prompted President Macapagal-Arroyo to place Metro Manila under a "state of rebellion." Presidential Spokesperson Rigoberto Tiglao told reporters, "We are in a state of rebellion. This is not an ordinary demonstration."21 After the declaration, there were threats of arrests against those suspected of instigating the march to Malacaang. At about 3:30 o'clock in the afternoon, Senator Juan Ponce Enrile was arrested in his house in Dasmarias Village, Makati City by a group led by Reynaldo Berroya, Chief of the Philippine National Police Intelligence Group.22 Thereafter, Berroya and his men proceeded to hunt re-electionist Senator Gregorio Honasan, former PNP Chief Panfilo Lacson, former Ambassador Ernesto Maceda, Brig. Gen. Jake Malajakan, Senior Superintendents Michael Ray Aquino and Cesar Mancao II, Ronald Lumbao and Cesar Tanega of the People's Movement Against Poverty (PMAP).23 Justice Secretary Hernando Perez said that he was "studying" the possibility of placing Senator Miriam Defensor Santiago "under the Witness protection program." Director Victor Batac,24 former Chief of the PNP Directorate for Police Community Relations, and Senior Superintendent Diosdado Valeroso, of the Philippine Center for Transnational Crime, surrendered to Berroya. Both denied having plotted the siege. On May 2, 2001, former Ambassador Ernesto Maceda was arrested. The above scenario presents three crucial queries: First, is President Macapagal-Arroyo's declaration of a "state of rebellion" constitutional? Second, was the implementation of the warrantless arrests on the basis of the declaration of a "state of rebellion" constitutional? And third, did the rallyists commit rebellion at the vicinity of Malacaang Palace on May 1, 2001?

The first and second queries involve constitutional issues, hence, the basic yardstick is the 1987 Constitution of the Philippines. The third query requires a factual analysis of the events which culminated in the declaration of a state of rebellion, hence, an examination of Article 134 of the Revised Penal Code is in order. On May 7, 2001, President Macapagal-Arroyo issued Proclamation No. 39, "DECLARING THAT THE STATE OF REBELLION IN THE NATIONAL CAPITAL REGION HAS CEASED TO EXIST", which in effect, has lifted the previous Proclamation No. 38. I beg to disagree with the majority opinion in ruling that the instant petitions have been rendered moot and academic with the lifting by the President of the declaration of a "state of rebellion". I believe that such lifting should not render moot and academic the very serious and unprecedented constitutional issues at hand, considering their grave implications involving the basic human rights and civil liberties of our people. A resolution of these issues becomes all the more necessary since, as reported in the papers, there are saturation drives (sonas) being conducted by the police wherein individuals in Metro Manila are picked up without warrants of arrest. Moreover, the acts sought to be declared illegal and unconstitutional are capable of being repeated by the respondents. In Salva v. Makalintat (G.R. No. 132603, Sept. 18, 2000), this Court held that "courts will decide a question otherwise moot and academic if it is 'capable of repetition, yet evading review' " I & II President Macapagal-Arroyo's declaration of a "state of rebellion" and the implementation of the warrantless arrests premised on the said declaration are unconstitutional. Nowhere in the Constitution can be found a provision which grants upon the executive the power to declare a "state of rebellion," much more, to exercise on the basis of such declaration the prerogatives which a president may validly do under a state of martial law. President-Macapagal-Arroyo committed a constitutional short cut. She disregarded the clear provisions of the Constitution which provide: "Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released."25 Obviously, the power of the President in cases when she assumed the existence of rebellion is properly laid down by the Constitution. I see no reason or justification for the President's deviation from the concise and plain provisions. To accept the theory that the President could disregard the applicable statutes, particularly that which concerns arrests, searches and seizures, on the mere declaration of a "state of rebellion" is in effect to place the Philippines under martial law without a declaration of the executive to that effect and without observing the proper procedure. This should not be countenanced. In a society which adheres to the rule of law, resort to extra-constitutional measures is unnecessary where the law has provided everything for any emergency or contingency. For even if it may be proven beneficial for a time, the precedent it sets is pernicious as the law may, in a little while, be disregarded again on the same pretext but for evil purposes. Even in time of emergency, government action may vary in breath and intensity from more normal times, yet it need not be less constitutional.26 My fear is rooted in history. Our nation had seen the rise of a dictator into power. As a matter of fact, the changes made by the 1986 Constitutional Commission on the martial law text of the Constitution were to a large extent a reaction against the direction which the Supreme Court took during the regime of President Marcos. 27 Now, if this Court would take a liberal view, and consider that the declaration of a "state of rebellion" carries with it the prerogatives given to the President during a "state of martial law," then, I say, the Court is traversing a very dangerous path. It will open the way to those who, in the end, would turn our democracy into a totalitarian rule. History must not be allowed to repeat itself. Any act which gears towards possible dictatorship must be severed at its inception.

The implementation of warrantless arrests premised on the declaration of a "state of rebellion" is unconstitutional and contrary to existing laws. The Constitution provides that "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizure 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."28 If a state of martial law "does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians, where civil courts are able to function, nor automatically suspend the privilege of the writ,"28(a) then it is with more reason, that a mere declaration of a state of rebellion could not bring about the suspension of the operation of the Constitution or of the writ of habeas corpus. Neither can we find the implementation of the warrantless arrests justified under the Revised Rules on Criminal Procedure. Pertinent is Section 5, Rule 113, thus: "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. (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it; and x x x." Petitioners cannot be considered "to have committed, is actually committing, or is attempting to commit an offense" at the time they were hunted by Berroya for the implementation of the warrantless arrests. None of them participated in the riot which took place in the vicinity of the Malacaang Palace. Some of them were on their respective houses performing innocent acts such as watching television, resting etc. The sure fact however is that they were not in the presence of Berroya. Clearly, he did not see whether they had committed, were committing or were attempting to commit the crime of rebellion. But of course, I cannot lose sight of the legal implication of President Macapagal-Arroyo's declaration of a "state of rebellion." Rebellion is a continuing offense and a suspected insurgent or rebel may be arrested anytime as he is considered to be committing the crime. Nevertheless, assuming ex gratia argumenti that the declaration of a state of rebellion is constitutional, it is imperative that the said declaration be reconsidered. In view of the changing times, the dissenting opinion of the noted jurist, Justice Isagani Cruz, in Umil v. Ramos,29 quoted below must be given a second look. "I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla vs. Enrile that subversion is a continuing offense, to justify the arrest without warrant of any person at any time as long as the authorities say he has been placed under surveillance on suspicion of the offense. That is a dangerous doctrine. A person may be arrested when he is doing the most innocent acts, as when he is only washing his hands, or taking his supper, or even when he is sleeping, on the ground that he is committing the 'continuing' offense of subversion. Libertarians were appalled when that doctrine was imposed during the Marcos regime. I am alarmed that even now this new Court is willing to sustain it. I strongly urge my colleagues to discard it altogether as one of the disgraceful vestiges of the past dictatorship and uphold the rule guaranteeing the right of the people against unreasonable searches and seizures. We can do no less if we are really to reject the past oppression and commit ourselves to the true freedom. Even if it be argued that the military should be given every support in our fight against subversion, I maintain that fight must be waged honorably, in accordance with the Bill of Rights. I do not believe that in fighting the enemy we must adopt the ways of the enemy, which are precisely what we are fighting against. I submit that our more important motivation should be what are we fighting for." I need not belabor that at the time some of the suspected instigators were arrested, (the others are still at-large), a long interval of time already passed and hence, it cannot be legally said that they had just committed an offense. Neither can it be said that Berroya or any of his men had "personal knowledge of facts or circumstances that the persons to be arrested have committed a crime." That would be far from reality. III The acts of the rallyists at the vicinity of Malacaang Palace on May 1, 2001 do not constitute rebellion. Article 134 of the Revised Penal Code reads: "ART. 134. Rebellion or insurrection How committed. The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives." (As amended by RA No. 6968, O.G. 52, p. 9864, 1990) From the foregoing provisions, the elements o the crime of rebellion may be deduced, thus: first, that there be (a) public uprising and (b) taking arms against the government; second, that the purpose of the uprising or movement is either (a) to remove from the allegiance to said government or its laws (1) the territory of the Philippines or any part thereof; or (2) anybody of land, naval or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives.30 Looking at the events on a magnified scale, I am convinced that the two elements of the crime of rebellion are lacking. First, there was no "taking of arms" against the government. To my mind, "taking arms" connotes the multitude'sdeliberate and conscious resort to arms or weapons for the purpose of aiding them in accomplishing any of the purposes of rebellion. Admittedly, the Estrada loyalists pelted the policemen with rocks and stones and attacked them with sticks and clubs, but such was merely a result of the heightening tension between opposite camps during the period of dispersal. The stones, rocks, sticks,

clubs and other improvised weapons were not deliberately resorted to by the Estrada loyalists to further any of the purposes of rebellion. They availed of them, at the precise moment of dispersal (this explains why their weapons were those which could be easily gathered on the street) and only for the purpose of stopping the policemen from dispersing them. In this age of modernity, one who intends to overthrow the government will not only settle for stones, woods, rocks, sticks or clubs as means to disable the government. It will be extremely pathetic and the result will only be in vain. Unlike a true rebellion which is organized, what happened at the vicinity of Malacaang was merely a riot, a mob violence, or a tumultuous uprising. At this juncture, it bears stressing that the crime of rebellion is a vast movement of men and a complex net of intrigues and plots.31 It must be distinguished from riot and offenses connected with mob violence. In rebellion/insurrection, there is an organized and armed uprising against authority.32 Second, the purpose of the Estrada loyalists was neither (a) to remove from the allegiance to the government or its laws (1) the territory of the Philippines or any part thereof; or (2) any part of land, naval or other armed forces; nor (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives. I looked at the chronology of events, and one thing surfaced the Estrada loyalists mainly demanded that their beloved "president" should not be incarcerated. The crowd at Edsa swelled in great magnitude on April 25, 2001, the day Estrada was arrested. In fact, when they followed Erap at Camp Crame, they were shouting "Edsa! Edsa!And they vowed not to leave until Estrada is released."33 One must not be swayed by the theory of respondents that the purpose of those people who gathered in Edsa and marched to Malacaang was to commit rebellion. For sure, there were a thousand and one reasons why they proceeded to Edsa. In determining their purpose, one must trace the roots, - what prompted them to go to Edsa? They were the Estrada loyalists who wanted him to be freed. If indeed there were minorities who advocated another cause, the same should not be considered as the prevailing one in the determination of what crime was committed. Facts should not be stretched just to build a case of rebellion. This runs counter to the principle of due process. As a final word, I subscribe to the principle that the rule of law implies the precept that similar cases be treated similarly. Men can not regulate their actions by means of rule if this precept is not followed. Edsa I, Edsa II and Edsa III are all public uprisings. Statements urging people to overthrow the government were uttered in all these occasions. Injuries were sustained, policemen were attacked, standing structures were vandalized in all these scenarios, one cannot be said to be extremely away from the other. The only difference is that the first two succeeded, while the last failed. This should not result to an unbridled or unlimited exercise of power by the duly constituted authorities. It is during these trying times that fealty to the Constitution is strongly demanded from all, especially the authorities concerned.
1wphi 1.nt

WHEREFORE, I vote to give DUE COURSE to the petitions and GRANT the same and to enjoin the respondents from arresting the petitioners in G.R. Nos. 147780, 147781, and 147799 without the corresponding warrants. SO ORDERED.

1wphi1.n t

Footnote
1

G.R. Nos. 146710-15, G.R. No. 146738, Estrada v. Desierto et al. Manila Bulletin, April 26, 2001, p. 13. Inq7.net, April 26, 2001, p. 1. Manila Bulletin, April 26, 2001, p. 14. Inq7.net, April 25, 2001, p. 1. Manila Bulletin, April 26, 2001, p. 1. Philippine Daily Inquirer (PDI), April 26, 2001, p. A15. PDI, April 26, 2001, p. A15. Manila Bulletin, April 27, 2001, p. 8. Ibid. Ibid. Philippine Daily Inquirer, April 28, 2001, p. 1. Ibid., April 29, 2001, p. 1.

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14

Inq7.net, April 30, 2001, p. 1. philsar.com, May 1, 2001, p. 2. Inq7.net, May 2, 2001, p. 1. Ibid., pp. 1-2. Ibid., p. 3. Inq7.net, May 2, 2001, p. 1. Inq7.net, May 2, 2001, p. 1. Inq7.net, May 2, 2001, p. 1. Inq7.net, May 1, 2001. Inq7.net, May 01, 2001, p. 1. Section 18, Article VII of the 1987 Constitution. Smith/Cotter, Powers of the President During Crises, 1972, p. 13. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines, 1996 Edition, p. 789. Article III, Section 2, 1987 Constitution. Article VII, Section 18 (par. 4), Id.

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28(a)

29

187 SCRA 311 (1990). Reyes, The Revised Penal Code, Book II, Thirteenth Edition, 1993, p. 73. Ibid., p. 74. 46 CJS, section 1, p. 1058. Philippine Daily Inquirer, April 26, 2001, p. A15.

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Republic of the Philippines SUPREME COURT Manila

EN BANC G.R. No. 170924 July 4, 2007

In the matter of the Petition for Habeas Corpus of CEZARI GONZALES and JULIUS MESA ROBERTO RAFAEL PULIDO, petitioner, vs. Gen. EFREN ABU, as Chief of Staff of the Armed Forces of the Philippines and all persons acting in his stead and under his authority, and GEN. ERNESTO DE LEON, in his capacity as the Flag Officer in Command of the Philippine Navy, and all persons acting in his stead and under his authority,respondents. DECISION CHICO-NAZARIO, J.: Before Us is a Petition for Review under Rule 45 of the Rules of Court assailing the Decision1 of the Court of Appeals in CA-G.R. SP No. 90546 which dismissed the Petition for Habeas Corpus filed by petitioner Roberto Rafael Pulido (Pulido) in behalf of Cezari Gonzales and Julius Mesa, and imposed on petitioner the penalty of censure, and its Resolution2 dated 6 January 2006 denying his motion for reconsideration. The facts are not disputed. At around one oclock in the morning of 27 July 2003, three hundred twenty-one (321) junior officers and enlisted personnel of the Armed Forces of the Philippines (AFP) entered and took over the premises of the Oakwood Premiere Luxury Apartments (Oakwood) located at the Glorietta Complex, Ayala Avenue, Makati City. They disarmed the security guards of said establishment and planted explosives in its immediate surroundings. The soldiers publicly announced that they went to Oakwood to air their grievances against the administration of President Gloria Macapagal Arroyo (President Arroyo). They declared their withdrawal of support from the Commander-in-Chief of the AFP President Arroyo and demanded her resignation and that of the members of her cabinet and top officers of both the AFP and the Philippine National Police (PNP). At about one oclock in the afternoon, President Arroyo issued Proclamation No. 427 declaring the country to be under a "state of rebellion." Consequently, she issued General Order No. 4 directing the AFP and the PNP to carry out all reasonable measures, giving due regard to constitutional rights, to suppress and quell the "rebellion." After a series of negotiations between the soldiers and the government negotiators, the former agreed to return to barracks, thus ending the occupation of Oakwood. Among those involved in the occupation of Oakwood were Cezari Gonzales and Julius Mesa, both enlisted personnel of the Philippine Navy. It is in their behalf that the Petition for Habeas Corpus was filed before the Court of Appeals. On 2 August 2003, then AFP Chief of Staff Narciso L. Abaya issued a directive3 to all Major Service Commanders and to the Chief of the Intelligence Service of the Armed Forces of the Philippines (ISAFP) regarding the Custody of Military Personnel Involved in the 27 July 2003 Mutiny. On the strength thereof, Gonzales and Mesa were taken into custody by their Service Commander. Gonzales and Mesa were not charged before a court martial with violation of the Articles of War. They were, however, among the soldiers charged before Branch 61 of the Regional Trial Court (RTC) of Makati City, with the crime of Coup Detat as defined under Article 134-A of the Revised Penal Code. Said case entitled, "People v. Capt. Milo D. Maestrecampo, et al." was docketed as Criminal Case No. 03-2784. On 18 November 2003, a Commitment Order was issued by the RTC committing custody of the persons of Gonzales and Mesa to the Commanding Officer of Fort San Felipe Naval Base, Cavite City. 4 On 8 December 2003, Gonzales and Mesa were discharged5 from military service. On 16 December 2003, per order of the RTC, Criminal Case No. 03-2784 was consolidated with Criminal Case No. 03-2678 entitled, "People v. Ramon B. Cardenas" pending before Branch 148 of the RTC of Makati City, on the ground that the cases are founded on the same facts and/or formed part of a series of offenses of similar character.6 In a Manifestation and Motion dated 3 March 2004, Commodore Normando Naval, Commander of Naval Base Cavite, asked the Makati RTC, Branch 148, to relieve him of his duty as custodian of Gonzales and Mesa and that the latter be transferred to the Makati City Jail. 7 In an Order dated 29 April 2004, the RTC relieved him of his duty but ordered the transfer of Gonzales and Mesa from the Naval Base Cavite in Sangley Point, Cavite City, to the Philippine Marine Brigade Headquarters, Philippine Marine, Fort Bonifacio, Taguig, Metro Manila, under the custody of the Commander of the Marine Brigade of the Philippine Marines, Fort Bonifacio, Taguig, Metro Manila.8 In an Order dated 8 July 2004, the RTC resolved the petitions for bail filed by the accused-soldiers. It admitted Gonzales and Mesa, and twenty-five other co-accused to bail pegging the amount thereof at P100,000.00 each.9 On 19 July 2004, both Gonzales and Mesa posted bail.10 On 20 July 2004, the RTC issued orders directing the Commanding Officer of Philippine Marine Corps, Fort

Bonifacio, Makati City, to release Gonzales and Mesa from his custody. 11 Despite said orders and their service to the marines, Gonzales and Mesa were not released. On 21 July 2004, the People of the Philippines moved for partial reconsideration12 of the order granting bail. Prior to the resolution of said motion, Jovencito R. Zuo, Chief State Prosecutor, advised Brig. Gen. Manuel F. Llena, Judge Advocate General, to defer action on the provisional release of Gonzales and Mesa "until the Motion for Reconsideration shall have been resolved and attained finality."13 On 26 October 2004, the RTC denied the motion for partial reconsideration. With the denial of the Motion for Partial Reconsideration, the People filed with the Court of Appeals on 4 February 2005 a special civil action for certiorari under Rule 65 of the Rules of Court with urgent prayer for Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction, asking for the nullification and setting aside of the orders dated 8 July 2004 and 26 October 2004 of Judge Oscar B. Pimentel for having been issued without jurisdiction and/or grave abuse of discretion amounting to lack or excess of jurisdiction. The Petition for Certiorari was raffled to the Seventh Division and was docketed as CA-G.R. SP No. 88440 entitled, "People of the Philippines v. Hon. Oscar B. Pimentel, Presiding Judge of the Regional Trial Court of Makati City, Branch 148." The Court of Appeals (Seventh Division) did not issue a TRO and/or preliminary injunction. Since Gonzales and Mesa continued to be in detention, a Petition for Habeas Corpus14 was filed by petitioner Pulido on their behalf on 22 July 2005. The case was docketed as CA-G.R. SP No. 90546 and raffled to the Third Division. In support thereof, it was argued that since Gonzales and Mesa are no longer subject to Military Law as they had been discharged from the service on 8 December 2003, and since they are not charged before a court martial, the military authorities have no jurisdiction to detain them, and there is no legal ground to detain them further because a court order for their release had already been issued. On 10 August 2005, the Court of Appeals (3rd Division) issued a Writ of Habeas Corpus directing respondents Gen. Efren Abu, Chief of Staff of the Armed Forces of the Philippines, and all persons acting in his stead and under his authority, and Gen. Ernesto de Leon, Flag Officer in Command of the Philippine Navy, and all persons acting in his stead and under his authority, to produce the bodies of Gonzales and Mesa before the Court and to appear and show the cause and validity of their detention.15 On 18 August 2005, a return of the Writ of Habeas Corpus was made.16 Respondents prayed that the Petition forHabeas Corpus be dismissed primarily on two grounds: (1) the continued detention of Gonzales and Mesa is justified because of the pendency of the Petition for Certiorari questioning the order dated 8 July 2004 of the RTC granting bail to Gonzales and Mesa before the 7th Division of the Court of Appeals, docketed as CA-G.R. SP No. 88440; and (2) petitioner is guilty of forum shopping because of his failure to state in the petition that the order granting bail has been elevated to the Court of Appeals and pending before its 7th Division. On 9 September 2005, the Court of Appeals (7th Division) rendered its decision in CA-G.R. SP No. 88440 dismissing the petition that questioned the propriety of the granting of bail to Gonzales, Mesa, and twenty-five of their co-accused.17 On 12 September 2005, the Court of Appeals (3rd Division) dismissed the Petition for Habeas Corpus for violation of Section 5, Rule 7 of the Rules of Court. It ratiocinated: A reading of the parties submissions reveals a threshold issue the charge of forum shopping and the related falsity in the certification supporting the petition. We must initially resolve these issues because a finding that the petitioner violated Section 5, Rule 7 of the Rules of Court can lead to the outright dismissal of the present petition. x x x xxxx The records show that the present petition contained the following certificate of non-forum shopping: "I, ROBERTO RAFAEL PULIDO, with office address at Unit 1601, 16th Floor 139 Corporate Center Valero Street, Makati City, after having been duly sworn in accordance with law, do hereby state that: 1. I am the petitioner in the above-captioned case; 2. I have read the Petition and caused it to be prepared. All the contents thereof are true to my own personal knowledge and the record; 3. I have not heretofore commenced any action or proceeding involving the same issues, in the Supreme Court, the Court of Appeals, or any other tribunal or agency and to the best of my knowledge, no action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; except for the related cases of "Eugene Gonzales et al. vs. Gen. Narciso Abaya, et al., G.R. No. 164007 and "Humabono Adaza et al., vs. Gen. Pedro Cabuay et al., G.R. No. 160792, both awaiting the resolution of the Supreme Court. 5. (sic, should be 4) If I should learn of any similar action or proceeding filed or is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency, I undertake to report such fact within five (5) days therefrom to this Court. The present petition and its accompanying certification likewise show that the petitioner never mentioned the pendency before the Seventh Division of this Court of the certiorari case, SP 88440, for the annulment of the lower courts order granting the soldiers-accuseds petition for bail, when this same lower court order is cited as basis for the immediate release of Gonzales and Mesa in the present petition. All that the certification mentioned were the related cases pending before the Honorable Supreme Court. Neither did the petitioner comply with his undertaking under his certification to inform this Court within five (5) days of the pendency of any similar action or proceeding filed or is pending in the Supreme Court, the Court of

Appeals, or any other tribunal or agency, as in fact the certiorari case was already pending with this Court when the present petition was filed. The certiorari case was only brought to our attention after the respondents filed their Return of the Writ. To be sure, the petitioner, who is also the counsel for the accused Gonzales and Mesa in the criminal case before Branch 148 RTC Makati City and who represents Gonzales and Mesa as private respondents in CA-G.R. SP No. 88440, cannot feign ignorance of the pendency of the certiorari case. Why he deliberately kept the pendency of the certiorari case hidden from us, has not been sufficiently explained. We have no doubt, however, that his deliberate act of withholding information on a material fact directly required to be disclosed by the Rules of Court cannot but have legal consequences. The primary basis of the present petition is the bail granted to and posted by Gonzales and Mesa. This is very clear from the petitioners argument that "The continued detention of the enlisted personnel constitutes violation of the lawful orders of the civilian court." He cited in support of this argument the grant and the posting of the bail, and the issuance of the release orders by the lower court. He did not disclose, however, what subsequently happened to the order granting bail. He deliberately omitted in his narration the fact that the People moved to reconsider this order. Thus, he gave the impression that the order granting bail immediately became enforceable and that Gonzales and Mesas continued detention is illegal because their constitutional rights to bail, which have received judicial imprimatur, were continuously being violated by the respondents. The petitioner next omitted the fact that after the denial of its motion for reconsideration of the order granting bail, the People filed the certiorari case before this Court, seeking to annul the lower courts order. While we are aware of the rule that the mere pendency of a petition for certiorari will not prevent the implementation of the assailed order unless the court where the petition was filed issues either a temporary restraining order or a writ or preliminary injunction the filing of a petition for habeas corpus while the order granting bail is being questioned on a petition for certiorari raises issues beyond the immediate execution of the lower courts bail and release orders. They raise questions on the propriety of filing the habeas corpus petition to seek the release of persons under detention, at the same time that a petition regarding their continued detention and release are pending. Apparently, the petitioner wanted to avoid these questions, prompting him to actively conceal the subsequent motion for reconsideration of the bail order and the petition for certiorari directly questioning this same order. In short, the petitioner conveniently omitted in his narration of facts the material factual antecedents detrimental to his cause; he chose to narrate only the factual antecedents favorable to his cause. That the present petition has direct and intimate links with the certiorari case is beyond doubt as they involve two sides of the same coin. The certiorari case filed by the People seeks to prevent the release of Gonzales and Mesa by annulling the lower courts grant of bail. The present petition, on the other hand, was filed in behalf of Gonzales and Mesa to secure their immediate release because the order granting bail is already executory. In effect, the petitioner seeks to implement through a petition for habeas corpus the provisional release from detention that the lower court has ordered. The question this immediately raises is: can this be done through a petition for habeas corpus when the validity of the grant of bail and the release under bail are live questions before another Division of this Court? We believe and so hold that his cannot and should not be done as this is precisely the reason why the rule against forum shopping has been put in place. The remedies sought being two sides of the same coin (i.e., the release of Gonzales and Mesa), they cannot be secured through separatelyfiled cases where issues of jurisdiction may arise and whose rulings may conflict with one another. To be sure, we clearly heard the petitioner say that there can be no conflict because the effectiveness of our ruling in this petition will depend on the nature and tenor of the ruling in the certiorari case; there is no basis for a release on habeas corpus if this same Court will rule in the certiorari case that the grant of bail is improper. For this very same reason, we should not entertain the present petition as the matter before us is already before another co-equal body whose ruling will be finally determinative of the issue of Gonzales and Mesas release. The Decision of the Seventh Division of this Court, heretofore footnoted, ordering the release on bail of Gonzales and Mesa drives home this point. To be strictly accurate, the issues of detention and immediate release that are now before the two Divisions of this Court are likewise properly within the jurisdiction of the lower court who has original jurisdiction over the criminal case and who has issued the order granting bail in the exercise of this jurisdiction. If indeed there is a question relating to the immediate release of Gonzales and Mesa pursuant to the lower courts order pending the determination of the certiorari issues, such question should be brought before the lower court as the tribunal that has ordered the release, or before the Seventh Division of this Court in the exercise of its supervisory powers over the lower court. The Decision recently promulgated by the Seventh Division of this Court ordering the release on bail of the soldiers-accused effectively demonstrates this point. The inter-relationships among the criminal case below, the certiorari case and the present petition, as well as among the courts where these cases are pending, show beyond doubt that the petitioner committed forum shopping in the strict sense of that term i.e., the attempt by a party, after an adverse opinion in one forum, to seek a favorable opinion in another forum other that through an appeal or certiorari. The "adverse" aspect for the petitioner, while not an opinion, is no less adverse as he has failed to secure the release of Gonzales and Mesa before the lower court and before this Court in the certiorari case (as of the time of the filing of the present petition); thus, he came to us in the present petition. That the Seventh Division of this Court has ordered the release on bail of the soldiers-accused, thus rendering the present petition moot and academic after the finality of the 7th Division Decision, plainly demonstrates this legal reality.18 The Court further imposed on petitioner the penalty of censure for the aforesaid violation. The dispositive portion of the decision reads: WHEREFORE, premises considered, we hereby DISMISS the petition for violation of and pursuant to Section 5 Rule 7 of the Rules of Court. The petitioner, Atty. Roberto Rafael Pulido, is hereby CENSUREDfor these violations. Let a copy of this Decision be furnished the Honorable Supreme Court, to be attached to the petitioners record as a member of the Bar, as a RECORD OF CENSURE that may be referred to and considered in any future similar act.19 On 5 September 2005, petitioner filed a Motion for Reconsideration20 which the Court of Appeals (Special Former Third Division) denied in its resolution21 dated 6 January

2006. Petitioner is now before us raising the following issues: WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE PETITION FOR HABEAS CORPUS ON THE GROUND OF FORUM SHOPPING. A. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THE NATURE OF THE ACTION AND LIMITED ITSELF TO THE ISSUE OF FORUM SHOPPING. B. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN IMPOSING UPON PETITIONER THE PENALTY OF CENSURE. C. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT PASSING UPON THE EXISTENCE OR ABSENCE OF VALID GROUNDS TO DETAIN JULIUS MESA AND CEZARI GONZALES. Petitioner prays that the assailed decision and resolution of the Court of Appeals be reversed and set aside, and an order be issued ordering respondents to immediately release Gonzales and Mesa. He further prays that the censure against him be also reversed and set aside. Before respondents could comment on the petition, petitioner filed, with leave of court, a Motion to Withdraw the Prayer for the Immediate Release of Julius Mesa and Cezari Gonzales.22 Petitioner informed the Court that the Commanding General of the Philippine Marines had ordered the release of Gonzales and Mesa and surrendered their persons to the RTC of Makati City, Branch 148. Thus, Mesa and Gonzales are now enjoying temporary liberty by virtue of the release orders dated 20 July 2004 issued by the RTC. Petitioner asks that the prayer for the immediate release of Gonzales and Mesa be dismissed but asks that the other prayers in the petition be granted. In its comment, the Solicitor General stressed that the habeas corpus petition has been rendered moot and academic by reason of the release of Mesa and Gonzales from detention and, in the absence of an actual case or controversy, it is impractical to consider and resolve issues involving the validity or legality of their detention, including the alleged refusal of the Court of Appeals to resolve said issues. When the release of the persons in whose behalf the application for a Writ of Habeas Corpus was filed is effected, the Petition for the issuance of the writ becomes moot and academic.23 With the release of both Mesa and Gonzales, the Petition for Habeas Corpus has, indeed, been rendered moot. Courts of justice constituted to pass upon substantial rights will not consider questions where no actual interests are involved. Thus, the well-settled rule that courts will not determine a moot question. Where the issues have become moot and academic, there ceases to be any justiciable controversy, thus rendering the resolution of the same of no practical value.24 This Court will therefore abstain from expressing its opinion in a case where no legal relief is needed or called for. 25 The only remaining issues to be resolved are: (1) Is petitioner guilty of forum shopping? (2) Should petitioner be penalized when he failed to inform the 3 rd Division of the Court of Appeals of the pendency of the Petition forCertiorari filed by respondents before the 7th Division of the same court which asked for the annulment of the RTCs order granting Gonzales and Mesas petition for bail? To support his contention that there was no forum shopping, petitioner asserts that the issues in the petitions forcertiorari and habeas corpus are not similar/identical. As to his non-disclosure of respondents filing of the motion for reconsideration and the Petition for Certiorari, petitioner claims that the same has no legal relevance to the Petition for Habeas Corpus because at the time he filed said petition, the order granting bail subsisted and has not been reversed or modified; and no TRO or injunction has been issued that would affect the efficacy or validity of the order granting the bail and the order directing the release of Mesa and Gonzales. For filing a Petition for Habeas Corpus despite the pendency of the Petition for Certiorari that questioned the validity of the order granting bail, which order is precisely the very basis of the Petition for Habeas Corpus, petitioner is guilty of forum shopping. It has been held that forum shopping is the act of a party against whom an adverse judgment has been rendered in one forum, of seeking another (and possibly favorable) opinion in another forum (other than by appeal or the special civil action of certiorari), or the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. Thus, it has been held that there is forum shopping (1) when, as a result of an adverse decision in one forum, a party seeks a favorable decision (other than by appeal or certiorari) in another; OR (2) if, after he has filed a petition before the Supreme Court, a party files a motion before the Court of Appeals, since in such a case, he deliberately splits appeals in the hope that even in one case in which a particular allowable remedy sought for is dismissed, another case (offering a similar remedy) would still be open; OR (3) where a party attempts to obtain a preliminary injunction in another court after failing to obtain the same from the original court. 26 The Court has laid down the yardstick to determine whether a party violated the rule against forum shopping, as where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicatain the other. Stated differently, there must be between the two cases: (a) identity of parties; (b) identity of rights asserted and reliefs prayed for, the relief being founded on the same facts; and (c) the identity of the two preceding particulars is such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.27 As lucidly explained by the Court of Appeals, the ultimate relief sought by petitioner in both the certiorari andhabeas corpus cases is the release of Gonzales and Mesa. Petitioner should not have filed the Petition forHabeas Corpus because the relief he is seeking therein is the same relief he is asking for in the certiorari case. Moreover,

the main issue in both cases boils down to whether Gonzales and Mesa should be released on bail. Because of the presence of the elements of litis pendentia -- parties, reliefs and issue are substantially the same/similar in the two cases; and any decision in the certiorari case will be binding on the habeas corpus case petitioner is thus guilty of forum shopping. For his failure to inform the Court of Appeals of the pendency of the certiorari case, petitioner clearly violated his obligation to disclose within five days the pendency of the same or a similar action or claim as mandated in Section 5(c), Rule 728 of the Rules of Court. WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. SP No. 90546 dated 12 September 2005 is AFFIRMED. Costs against the petitioner. SO ORDERED. Puno, Chief Justice, Ynares-Santiago, Carpio, Austria_Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Garcia, Velasco, Jr., Nachura, JJ., concur. Quisumbing, J., on official leave. Sandoval-Gutierrez, J., on leave.

Footnotes
1

Penned by Associate Justice Arturo D. Brion with Associate Justices Eugenio S. Labitoria and Eliezer R. de Los Santos, concurring; CA rollo, pp. 201-220.
2

Id. at 145-147. Rollo, p. 109. CA rollo, pp. 127-128. CA rollo, pp. 66-67. Id. at 133. Id. at 61-63. Id. at 129-132. Id. at 15-50. Rollo, pp. 111 and 114. Id. at 110 and 113. CA rollo, pp. 135-145. Id. at 146. CA rollo, pp. 2-67. Id. at 82-87. Id. at 88-108. Rollo, pp. 122-130. Rollo, pp. 51-57.

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Id. at 59. CA rollo, pp. 235-258.

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Penned by Associate Justice Arturo D. Brion with Associate Justices Eliezer R. de Los Santos and Monina Arevalo Zenarosa, concurring; CA, rollo, pp. 275-286.
22

Rollo, pp. 137-142. Olaguer v. Military Commission No. 34, The Trial Counsel of Military Commission No. 34, G.R. No. L-54558, 22 May 1987, 150 SCRA 144, 153. Korea Exchange Bank v. Gonzales, G.R. No. 139460, 31 March 2006, 486 SCRA 166, 176. Huibonhoa v. Concepcion, G.R. No. 153785, 3 August 2006, 497 SCRA 562, 572. Philippine Radiant Products, Inc. v. Metropolitan Bank and Trust Co., Inc., G.R. No. 163569, 9 December 2005, 477 SCRA 299, 313-314. Velasquez v. Hernandez, G.R. No. 150732, 31 August 2004, 437 SCRA 357, 367.

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SEC. 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 175864 June 8, 2007

ANISAH IMPAL SANGCA, petitioner, vs. THE CITY PROSECUTOR OF CEBU CITY and THE PRESIDING JUDGE, Regional Trial Court, Branch 58, Cebu City, respondents. DECISION YNARES-SANTIAGO, J.:

On January 4, 2007, petitioner Anisah Impal Sangca filed the instant petition praying for the issuance of a writ of habeas corpus and the release of Lovely Impal Adam who was detained in the Cebu City Jail for alleged violation of Section 5, Article 2 of Republic Act (R.A.) No. 9165, otherwise known as the Dangerous Drugs Act of 2002. The facts are as follows: In the first week of July 2006, the Philippine Drug Enforcement Agency (PDEA), Regional Office VII, received information that Adam was engaged in illegal drug trafficking activities in Cebu City and neighboring cities and municipalities. After evaluating the information, Police Chief Inspector Josefino Ligan, PDEA VII Asst. Regional Director for Administration/Operation, together with FO1 Rayford A. Yap and PO2 Dindo M. Tuliao, planned an entrapment operation. The events leading to the arrest of Adam, as summarized in the Resolution of the Department of Justice dated November 10, 2006, are as follows: On July 7, 2006, at about 2:00 P.M., Yap and Tuliao were able to contact the informant and inquired from him if he was really sincere with his words and the latter replied affirmatively. Ligan immediately composed a team and planned for an entrapment operation against respondent and her cohorts. A short briefing was conducted where Yap was tasked to receive the shabu while Tuliao would be the back up and at the same time the arresting officer. They prepared a Pre-Operation Report and the same was coordinated with the Tactical Operation Center of Cebu City Police Office. The pre-arranged signal in the operation was that Yap would miscall them once the transaction is consummated. x x x On or about 9:30 P.M. of the same day, the team, including Yap, Tuliao and the informant, proceeded to Fuente Osmea, Cebu City for the said purpose. Upon arrival thereat, Yap and the informant proceeded to Pizza Hut while Tuliao stayed behind near the parking area and so with the members of the team closely watching them. When Yap and the informant entered Pizza Hut, respondent was already there waiting for them. They immediately approached her and the informant introduced Yap to respondent as his former customer. They had a short conversation and Yap asked respondent if she has with her the item. Respondent told him that it is in her car at the parking area. Respondent asked where the money is. Yap told her no problem as long as she has the item, he will give her the money. Respondent instructed Yap to go with her at the parking area so that she could give it to him and there, she got inside her car. She took the shabu inside the compartment of her Toyota Fortuner with plate number YCX 965 and handed to him one (1) packed medium size of heat sealed transparent plastic sachet filled with white crystalline substance believed to be shabu. Upon receiving the said item, Yap pressed it to determine if it was really shabu or not and when he noticed that it was shabu, he immediately miscalled the members of the team informing them that the transaction was consummated and subsequently held respondent. He then introduced himself as PDEA 7 operative. Tuliao, who was just at the side of the car, assisted Yap in apprehending the suspect. They also seized her cellular phone and the Toyota Fortuner which she used in delivering and transporting illegal drugs. Thereafter, they informed her that she is under arrest for violation of Section 5, Article II, RA 9165 and likewise apprised her of the Miranda Doctrine in the language she knew and understood but she opted to remain silent. After which, they asked her name and she introduced herself as Lovely Adam y Impal, 29 years old, married, businesswoman and a resident of Celiron, Iligan City. They brought her along with the confiscated items to their office for proper disposition. Later on, they found out that the item that Yap bought from respondent, marked "LA" dated 07-07-06 with Yaps signature, weighing 50.27 grams which was submitted before the PNP Crime Laboratory for chemical analysis, yielded positive results for the presence of Methamphetamine Hydrochloride or Shabu, a dangerous drug. Respondent denies the charge against her. She claims that she is a trader of ready to wear clothing. As such, she frequently travels to different Asian countries to buy goods for sale in Cebu and in Mindanao. She supplies various boutiques in Cebu City, including Salad Dressing at SM, D. Blaz., Beauty Land and Lovelys Closet. She also operates a beauty parlor in Talamban. Respondent claims that on July 7, 2006, at around 10:00 in the evening, she was at Pizza Hut, Fuente Osmea Boulevard, together with her four children and their "yayas". A friend of hers, Ana, had called her earlier in the day saying that she would pay off her loan to her (respondent) at Pizza Hut that evening. Ana arrived a short time later. They were eating when Ana received a call over her cellphone. From the gist of it, Ana was talking to a certain Rose. Respondent did not mind them because the conversation was only between Ana and Rose. A short time later, a woman, who was introduced to her by Ana as a certain Rose, arrived. Ana and Rose then proceeded to talk with each other, and respondent did not mind them. A while after, respondent saw Ana hand over a parcel to Rose, and the latter, on the other hand, hand a green bag to Ana. Rose then left. As respondent was about to leave, Ana requested that she be allowed to hitch a ride and respondent agreed. When they were outside, respondent noticed a vehicle blocking her car, making it impossible for her to back out into the road, without hitting the car. She then beeped her car. Instead of moving their car, one of the men went down and thereafter, entered her vehicle and demanded for the bag that was allegedly given to Ana by Rose. Respondent told them to ask Ana since they claimed that it was given to Ana. However, the men pointed their guns at respondent, including her children, claiming that they were elements of PDEA and they were placing her under arrest for illegal drug trafficking. They then grabbed respondents green bag and from then on, she was never able to recover the contents thereof, including the bag itself. Thereafter, respondent was brought to the PDEA office where a certain Ryan Rubi was also booked for alleged drug trafficking. During her conversation with Ryan Rubi, she found out that he was arrested a few hours earlier likewise by the PDEA, and during his alleged arrest, he was required to produce a drug trafficker in exchange for his release. Having been unable to produce any, he was charged. The name of Rose cropped up, and he said that during his arrest, the police officers informed him that they were after Rose. His wife was out to raise money for his release, or to produce a drug trafficker so that he can be released. It was further ascertained by Ryan Rubi that this Rose was actually arrested by the police officers but was conditionally released on condition that she would produce someone who would take her place. Thereafter, he claimed that he overheard them refer to a certain Ana, who said that she would also produce respondent to take her place. The circumstances of respondents arrest and that of the said Ryan Rubi are closely intertwined. In the police blotter, the vehicle pertaining to respondent, which is the Toyota Fortuner was ascribed to Ryan Rubi, while the latters vehicle was ascribed to her. x x x1 The inquest prosecutor recommended the dismissal of the case but was disapproved by the City Prosecutor. Consequently, an information charging Adam with violation of Section 5, Article 2 of R.A. No. 9165 was filed and docketed as Criminal Case No. CBU-77562 before the Regional Trial Court of Cebu City, Branch 58.

On petition for review before the Department of Justice, Secretary Raul M. Gonzalez found no probable cause to hold Adam liable for the offense charged, to wit: A very thorough and careful scrutiny of the records, particularly the affidavit of arrest, reveals that no payment was ever made by the police officers for the supposed object of the buy-bust operations. The police officers have not even alleged in their affidavits that payment was made to respondent in exchange for the shabu. No buy-bust money was ever presented. The certificate of inventory does not show any buy-bust money. These stick out like a sore thumb in the case at bar. Suffice it to say that one of the essential elements to be established in the prosecution of the drug "buy-bust" cases, that is, "the delivery of the thing sold and the payment therefore" is wanting. It was aptly said in the case of People v. Alilin, 206 SCRA 773, that: "To sustain a conviction for selling prohibited drugs, the same must be clearly and unmistakably established."2 The Justice Secretary directed the City Prosecutor of Cebu City to withdraw the information. 3 PDEA filed a motion for reconsideration but was denied by the Justice Secretary on December 8, 2006.4 In his Comment, Judge Gabriel T. Ingles, Presiding Judge of the Regional Trial Court of Cebu City, Branch 58, stated that at the hearing of the motion to withdraw information on January 5, 2007, it was found that: In the affidavit of FO1 Rayford A. Yap and PO2 Dindo M. Tuliao, there is indeed no mention of their preparation of a buy bust money before, during or after their briefing prior to the alleged buy bust operation, nor is there any mention of the price or consideration of the sale. What is merely stated is that they had enough money. xxxx Further convincing this court that there was no buy bust money prepared are the following: a) In the "Pre-Operation Report" dated July 7, 2006, bearing Control Number 07-07-2006-03, there is no mention of the buy-bust money in the operational requirements; b) In the "Excerpt From the Records of the PDEA 7 Blotter/Logbook bearing the same date and entry number 02422; c) In another "Excerpt From the Records of the PDEA 7 Blotter/Logbook bearing the same date and entry number 02422 there is a mention in "Facts of the Case" the recovery of "3 bundles of boodle money with two (2) pieces of genuine five hundred peso bills wrapped with newspaper and packed with packaging tape." However, while the name of the suspect is indicated in this excerpt is Lovely Adam y Impal and the evidence enumerated are as follows: 1) one (1) medium size of heat sealed transparent plastic sachet filled with crystalline substance believed to be shabu; 2) one (1) unit Nokia cellphone; 3) one (1) unit Toyota Fortuner with plate number XCX 956 registered under the name of Lovely Adam;" the narration of the facts of the case in said excerpt also included the following statement: "Likewise, the apprehending officers seized one (1) unit cellular phone (Sony Erickson) and the Mitsubishi Lancer with plate number GHC color black registered under the name of Roberto Rubi, which was used by the aforementioned suspects in transporting illegal drugs." This Roberto Rubi could not have been arrested together with accused herein because there is no mention of such fact in the Affidavit of Officers Yap and Tuliao. In fact, the head of the arresting team of herein accused Josefino D. Liga[n] filed a Motion to Withdraw Said Excerpt because there was an inadvertent interchange of facts in another case obviously against Mr. Rubi. The problem, however, is that from the Excerpts presented, it is not clear to this court to which case the mention of boodle money applies. This court cannot merely assume or conclude that the boodle money has reference to the case of herein accused because as stated, nowhere in the separate affidavits of office[r]s Tuliao and Yap can one find any mention of such. It is not even mentioned in the other "Excerpt" also dated July 10, 2006 also submitted by the PDEA.5 Finding that Adam could not be held liable for the crime charged, Judge Ingles issued an Order on January 26, 2007 granting the Motion to Withdraw Information and ordering the release of the accused, unless otherwise held for another valid ground. The dispositive portion of the Order reads: Accordingly, the "Motion to Withdraw Information" is hereby GRANTED and the accused is ordered immediately released unless another valid

ground exists for her continued detention. The prosecution and/or PDEA are/is ordered to turn over to this court within three (3) days from receipt hereof the dangerous drug described in the information which shall in turn be confiscated in favor of the state for proper disposition unless the prosecution intends to refile or file another case against the accused which it deems appropriate as double jeopardy has not attached. SO ORDERED.6 A writ of habeas corpus extends to all cases of illegal confinement or detention in which any person is deprived of his liberty, or in which the rightful custody of any person is withheld from the person entitled to it. Its essential object and purpose is to inquire into all manner of involuntary restraint and to relieve a person from it if such restraint is illegal. The singular function of a petition for habeas corpus is to protect and secure the basic freedom of physical liberty.7 In the instant case, records show that Adam has been released upon order of the trial judge on January 26, 2007. Therefore, the petition has become moot.8 WHEREFORE, the petition is DISMISSED. SO ORDERED. Austria-Martinez, Chico-Nazario, Nachura, JJ., concur. Footnotes
1

Rollo, pp. 8-11. Id. at 12. Id. at 14. Id. at 10. Id. at 21-24. Id. at 25. In Re: Arguelles, Jr. v. Balajadia, Jr., G.R. No. 167211, March 14, 2006, 484 SCRA 653, 657. Id.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 130277 May 9, 2002

MA. LOURDES BARRIENTOS ELEOSIDA, for and in behalf of her minor child, CHARLES CHRISTIAN ELEOSIDA, petitioner, vs. LOCAL CIVIL REGISTRAR OF QUEZON CITY, and CARLOS VILLENA BORBON, respondents. PUNO, J.: This is a petition for review on certiorari of the Order1 of the Regional Trial Court of Quezon City, Branch 89, which dismissed motu proprio the petition of Ma. Lourdes Eleosida to correct some entries in the birth certificate of her son, Charles Christian. The birth certificate shows, among others, that the child's full name is Charles Christian Eleosida Borbon. He was born on May 24, 1992 to Ma. Lourdes Barrientos Eleosida and Carlos Villena Borbon. The birth certificate also indicates that the child's parents were married on January 10, 1985 in Batangas City. 2 On January 30, 1997, petitioner Ma. Lourdes Eleosida filed a petition before the Regional Trial Court of Quezon City seeking to correct the following entries in the birth certificate of her son, Charles Christian: first, the surname "Borbon" should be changed to "Eleosida;" second, the date of the parents' wedding should be left blank; and third, the informant's name should be "Ma. Lourdes B. Eleosida," instead of "Ma. Lourdes E. Borbon." In support of her petition, petitioner alleged that she gave birth to her son out of wedlock on May 24, 1992; that she and the boy's father, Carlos Borbon, were never married; and that the child is therefore illegitimate and should follow the mother's surname. The petition impleaded the Local Registrar of Quezon City and Carlos Villena Borbon as respondents. 3 On April 23, 1997, the trial court issued a notice of hearing stating: "Verified petition having been filed by petitioner Ma. Lourdes Barrientos Eleosida, praying that the entries in the Certificate of Live Birth of her minor child, Charles Christian Eleosida Borbon, be changed and/or corrected, such that, his last name BORBON be deleted and instead place therein the name ELEOSIDA, which is the surname of his mother-petitioner; the entry "January 10, 1985 Batangas City", be likewise deleted, since the petitioner and respondent Carlos Villena Borbon, at the time of the minor's birth were not legally married; and the surname BORBON of petitioner Ma. Lourdes E. Borbon under the column Informant, be also deleted; NOTICE IS HEREBY GIVEN, that this petition is set for hearing on June 26, 1997 at 8:30 o'clock in the morning, in the Session Hall of this Court sitting at the Ground Floor, Room 118, Hall of Justice, Quezon City, which is ordered published once a week for three (3) consecutive weeks, in a newspaper of general circulation and published in Metro Manila, to be selected by raffle, at the expense of the petitioner, at which date, time and place, the petitioner shall appear and prove her petition, in that all other persons having or claiming any interest thereon shall also appear and show cause why, if any, they have, the petition shall not be granted.
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Let copies of this notice be furnished the petitioner, and together with copies of the petition, respondent Carlos Villena Borbon; the Offices of the Local Civil Registrar of Quezon City and the Solicitor General, who are given fifteen (15) days from notice of the petition, or from the last date of publication of such notice, within which to file their opposition thereto, if any. In the event that the Solicitor General may not be able to appear on the scheduled hearing, to designate the City Prosecutor of Quezon City to appear for and in behalf of the State. SO ORDERED."4 On June 26, 1997, the trial court issued another order setting the date for the presentation of evidence on July 23, 1997. It stated:

"Considering that there is no opposition filed despite notice to the Solicitor General as contained in the notice of hearing dated April 23, 1997 requiring that office to file their opposition, if any, to the petition for correction of entries in the birth certificate of minor child Charles Christian Eleosida, the petitioner will be allowed to present compliance with the jurisdictional requirements and at the same time initially present evidence on July 23, 1997, at 8:30 o'clock in the morning."5 On August 25, 1997, the trial court motu proprio dismissed the petition for lack of merit. It ruled: "It is an established jurisprudence that, only CLERICAL ERRORS OF A HARMLESS AND INNOCUOUS NATURE like: misspelled name, occupation of the parents, etc., may be the subject of a judicial order (contemplated under Article 412 of the New Civil Code), authorizing changes or corrections and: NOT as may affect the CIVIL STATUS, NATIONALITY OR CITIZENSHIP OF THE PERSONS INVOLVED. In the present case, it is very clear that the changes desired by the petitioner will ultimately affect the CIVIL STATUS OF CHARLES CHRISTIAN, as she wants the Court to Direct the Civil Registrar of Quezon City to substitute her maiden name, ELEOSIDA, with that of BORBON; to delete the information supplied in ITEM 12, respecting the date and place of marriage of parents, on the ground that she was never married to respondent CARLOS VILLENA BORBON and amend the information in ITEM 14, respecting the name of the informant, from MA. LOURDES E. BORBON to MA. LOURDES B. ELEOSIDA, and is indicative of petitioner's intention and device to establish that CHARLES CHRISTIAN's civil status as ILLEGITIMATE. With the petition's ultimate purpose on the part of petitioner to secure judicial order, which would authorize a change in the civil status of CHARLES CHRISTIAN, this Court, finds the action improper. The matters desired to be cancelled and/or changed by petitioner cannot be considered falling under the ambit of the words 'clerical errors of a harmless and innocuous nature.' WHEREFORE, for LACK OF MERIT, the petition is now MOTU PROPIO (sic) dismissed."6 Petitioner fled the instant petition for review raising the issue of whether corrections of entries in the certificate of live birth pursuant to Article 412 of the Civil Code, in relation to Rule 108 of the Rules of Court may be allowed even if the errors to be corrected are substantial and not merely clerical errors of a harmless and innocuous nature.7 The Court required the respondents to comment on the petition. The Office of the Solicitor General (OSG) filed a Manifestation in Lieu of Comment. The OSG submitted that even substantial errors in the civil registry may be corrected provided that the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. Thus it argued that even if the petition seeks the correction and eventual change in the civil status of Charles Christian, the same can be ordered by the court as long as all the parties who may be affected by the entries are notified and represented. 8 Respondent Carlos Borbon, on the other hand, failed to submit his comment on the petition despite several notices from this Court. Hence, on January 24, 2001, the Court dispensed with the filing of respondent Borbon's comment and gave due course to the petition.9 We find merit in the petition. Rule 108 of the Revised Rules of Court provides the procedure for cancellation or correction of entries in the civil registry. The proceedings under said rule may either be summary or adversary in nature. If the correction sought to be made in the civil register is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial, and the procedure to be adopted is adversary.10 This is our ruling in Republic vs. Valencia11 where we held that even substantial errors in a civil registry may be corrected and the true facts established under Rule 108 provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. An appropriate adversary suit or proceeding is one where the trial court has conducted proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party's case, and where the evidence has been thoroughly weighed and considered. The Court further laid down the procedural requirements to make the proceedings under Rule 108 adversary, thus: "The pertinent sections of Rule 108 provide: SEC. 3. Parties.When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding.
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SEC. 4. Notice and publication.Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once in a week for three 93) consecutive weeks in a newspaper of general circulation in the province. SEC. 5. Opposition.The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice, file his opposition thereto. Thus, the persons who must be made parties to a proceeding concerning the cancellation or correction of an entry in the civil register are(1) the civil registrar, and (2) all persons who have or claim any interest which would be affected thereby. Upon the filing of the petition, it becomes the duty of the court to(1) issue an order fixing the time and place for the hearing of the petition, and (2) cause the order for hearing to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. The following are likewise entitled to oppose the petition:-(1) the civil registrar, and (2) any person having or claiming any interest under the entry whose cancellation or correction is sought. If all these procedural requirements have been followed, a petition for correction and/or cancellation of entries in the record of birth even if filed and

conducted under Rule 108 of the Revised Rules of Court can no longer be described as 'summary'. xxx" 12 It is true in the case at bar that the changes sought to be made by petitioner are not merely clerical or harmless errors but substantial ones as they would affect the status of the marriage between petitioner and Carlos Borbon, as well as the legitimacy of their son, Charles Christian. Changes of such nature, however, are now allowed under Rule 108 in accordance with our ruling in Republic vs. Valencia provided that the appropriate procedural requirements are complied with. The records show that upon receipt of the petition, the trial court issued a notice of hearing setting the hearing on June 26, 1997 at 8:30 in the morning at Room 118, Hall of Justice, Quezon City. The trial court likewise ordered the publication of said notice once a week for three (3) consecutive weeks in a newspaper of general circulation and its posting in selected places in Metro Manila. The notice stated that the petitioner shall prove her petition during said hearing and all other persons having or claiming any interest thereon shall also appear and show if there is any reason why the petition should not be granted. Respondents Carlos Villena Borbon, the Local Civil Registrar of Quezon City and the Solicitor General were all furnished with a copy of the notice of hearing together with a copy of the petition. On June 26, 1997, the trial court issued a second order giving the petitioner an opportunity to show compliance with the jurisdictional requirements and to present evidence during the hearing set on July 23, 1997. The foregoing satisfy all the requirements of Rule 108 to make it an adversary proceeding. It was therefore an error for the trial court to dismiss the petition motu proprio without allowing the petitioner to present evidence to support her petition and all the other persons who have an interest over the matter to oppose the same.
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IN VIEW WHEREOF, the petition is GRANTED and the Order dated August 25, 1997 of the RTC of Quezon City, Branch 89, subject of the petition at bar is set aside. The case is REMANDED to the court a quo for further proceedings. SO ORDERED. Davide, Jr., Kapunan, Ynares-Santiago, and Austria-Martinez, JJ., concur.

Footnote
1

Rollo, pp. 19-20. Rollo, p. 24. Rollo, pp. 21-22. Rollo, p. 25. Rollo, p. 26. Rollo, pp. 19-20. Rollo, p. 5, Rollo, p. 13. Rollo, pp. 70-73. Rollo, pp. 134-135. Republic vs. Bautista, 155 SCRA 1 (1987).

10

11

141 SCRA 462 (1986). See also Zapanta vs. Local Civil Registrar, 237 SCRA 25 (1994); Republic vs. Court of Appeals, 211 SCRA 657 (1992); Republic vs. Sayo, 188 SCRA 634 (1990); Republic vs. Court of First Instance of Camarines Sur, 161 SCRA 681 (1988); Republic vs. Carriaga, Jr., 159 SCRA 12 (1988); Republic vs. Bautista, 155 SCRA 1 (1987); Republic vs. Flojo, 152 SCRA 550 (1987); Chiao Ben Lim vs. Zosa, 146 SCRA 366 (1986).
12

At pp. 473-474.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 177721 July 3, 2007

KILOSBAYAN FOUNDATION AND BANTAY KATARUNGAN FOUNDATION, petitioners, vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA; SANDIGANBAYAN JUSTICE GREGORY S. ONG,respondents. DECISION AZCUNA, J.: Filed on May 23, 2007 was this petition for certiorari under Rule 65 of the Rules of Court. Petitioners are peoples and/or non-governmental organizations engaged in public and civic causes aimed at protecting the peoples rights to self-governance and justice. Respondent Executive Secretary is the head of the Office of the President and is in charge of releasing presidential appointments including those of Supreme Court Justices. Respondent Gregory S. Ong is allegedly the party whose appointment would fill up the vacancy in this Court. Petitioners allege that: On May 16, 2007, respondent Executive Secretary, in representation of the Office of the President, announced an appointment in favor of respondent Gregory S. Ong as Associate Justice of the Supreme Court to fill up the vacancy created by the retirement on April 28, 2007 of Associate Justice Romeo J. Callejo, Sr. The appointment was reported the following day, May 17, 2007, by the major daily publications. On May 18, 2007, the major daily publications reported that the appointment was "recalled" or "held in abeyance" by Malacaang in view of the question relating to the citizenship of respondent Gregory S. Ong. There is no indication whatever that the appointment has been cancelled by the Office of the President. On May 19, 2007, the major daily publications reported that respondent Executive Secretary stated that the appointment is "still there except that the validation of the issue is being done by the Judicial and Bar Council (JBC)." Petitioners contend that the appointment extended to respondent Ong through respondent Executive Secretary is patently unconstitutional, arbitrary, whimsical and issued with grave abuse of discretion amounting to lack of jurisdiction. Petitioners claim that respondent Ong is a Chinese citizen, that this fact is plain and incontestable, and that his own birth certificate indicates his Chinese citizenship. Petitioners attached a copy of said birth certificate as Annex "H" to the petition. The birth certificate, petitioners add, reveals that at the time of respondent Ongs birth on May 25, 1953, his father was Chinese and his mother was also Chinese. Petitioners invoke the Constitution: Section 7 (1) of Article VIII of the 1987 Constitution provides that "No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines." Sec. 2 of Art. IV defines "natural-born citizens as those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine Citizenship." 1 Petitioners maintain that even if it were granted that eleven years after respondent Ongs birth his father was finally granted Filipino citizenship by naturalization, that, by itself, would not make respondent Ong a natural-born Filipino citizen.

Petitioners further argue that respondent Ongs birth certificate speaks for itself and it states his nationality as "Chinese" at birth. They invoke the Civil Code: Article 410 of the Civil Code provides that "[t]he books making up the civil register and all documents relating thereto x x x shall be prima facie evidence of the facts therein contained." Therefore, the entry in Ongs birth certificate indicating his nationality as Chinese is prima facie evidence of the fact that Ongs citizenship at birth is Chinese. Article 412 of the Civil Code also provides that "[N]o entry in a civil register shall be changed or corrected without a judicial order." Thus, as long as Ongs birth certificate is not changed by a judicial order, the Judicial & Bar Council, as well as the whole world, is bound by what is stated in his birth certificate.2 This birth certificate, petitioners assert, prevails over respondent Ongs new Identification Certificate issued by the Bureau of Immigration dated October 16, 1996, stating that he is a natural-born Filipino and over the opinion of then Secretary of Justice Teofisto Guingona that he is a naturalborn Filipino. They maintain that the Department of Justice (DOJ) does not have the power or authority to alter entries in a birth certificate; that respondent Ongs old Identification Certificate did not declare that he is a natural-born Filipino; and that respondent Ongs remedy is an action to correct his citizenship as it appears in his birth certificate. Petitioners thereupon pray that a writ of certiorari be issued annulling the appointment issued to respondent Ong as Associate Justice of this Court. Subsequently, on May 24, 2007, petitioners filed an Urgent Motion for the Issuance of a Temporary Restraining Order (TRO), praying that a TRO be issued, in accordance with the Rules of Court, to prevent and restrain respondent Executive Secretary from releasing the appointment of respondent Ong, and to prevent and restrain respondent Ong from assuming the office and discharging the functions of Associate Justice of this Court. The Court required respondents to Comment on the petition. Respondent Executive Secretary accordingly filed his Comment, essentially stating that the appointment of respondent Ong as Associate Justice of this Court on May 16, 2007 was made by the President pursuant to the powers vested in her by Article VIII, Section 9 of the Constitution, thus: SEC. 9. The Members of the Supreme Court and Judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. Respondent Executive Secretary added that the President appointed respondent Ong from among the list of nominees who were duly screened by and bore the imprimatur of the JBC created under Article VIII, Section 8 of the Constitution. Said respondent further stated: "The appointment, however, was not released, but instead, referred to the JBC for validation of respondent Ongs citizenship." 3 To date, however, the JBC has not received the referral. Supporting the Presidents action and respondent Ongs qualifications, respondent Executive Secretary submits that: 1. The President did not gravely abuse her discretion as she appointed a person, duly nominated by the JBC, which passed upon the appointees qualifications. 2. Justice Gregory S. Ong is a natural-born citizen as determined by the Bureau of Immigration and affirmed by the Department of Justice, which have the authority and jurisdiction to make determination on matters of citizenship. 3. Undisputed evidence disclosed that respondent Ong is a natural-born citizen. 4. Petitioners are not entitled to a temporary restraining order.4 Respondent Ong submitted his Comment with Opposition, maintaining that he is a natural-born Filipino citizen; that petitioners have no standing to file the present suit; and that the issue raised ought to be addressed to the JBC as the Constitutional body mandated to review the qualifications of those it recommends to judicial posts. Furthermore, the petitioners in his view failed to include the President who is an indispensable party as the one who extended the appointment. As to his citizenship, respondent Ong traces his ancestral lines to one Maria Santos of Malolos, Bulacan, born on November 25, 1881, who was allegedly a Filipino citizen5 who married Chan Kin, a Chinese citizen; that these two had a son, Juan Santos; that in 1906 Chan Kin died in China, as a result of which Maria Santos reverted to her Filipino citizenship; that at that time Juan Santos was a minor; that Juan Santos thereby also became a Filipino citizen;6 that respondent Ongs mother, Dy Guiok Santos, is the daughter of the spouses Juan Santos and Sy Siok Hian, a Chinese citizen, who were married in 1927; that, therefore, respondents mother was a Filipino citizen at birth; that Dy Guiok Santos later married a Chinese citizen, Eugenio Ong Han Seng, thereby becoming a Chinese citizen; that when respondent Ong was eleven years old his father, Eugenio Ong Han Seng, was naturalized, and as a result he, his brothers and sisters, and his mother were included in the naturalization. Respondent Ong subsequently obtained from the Bureau of Immigration and the DOJ a certification and an identification that he is a natural-born Filipino citizen under Article IV, Sections 1 and 2 of the Constitution, since his mother was a Filipino citizen when he was born. Summarizing, his arguments are as follows:

I. PETITIONERS LACK OF STANDING AND INABILITY TO IMPLEAD AN INDISPENSABLE PARTY WHOSE OFFICIAL ACTION IS THE VERY ACT SOUGHT TO BE ANNULLED CONSTITUTE INSUPERABLE LEGAL OBSTACLES TO THE EXERCISE OF JUDICIAL POWER AND SHOULD PREVENT THIS CASE FROM PROCEEDING FURTHER FOR DETERMINATION ON THE MERITS BY THIS HONORABLE COURT. II. RESPONDENT ONG IS, IN TRUTH AND IN FACT, A NATURAL-BORN CITIZEN OF THE PHILIPPINES, CONSIDERING THAT: A. DY GUIOK SANTOS WAS A FILIPINO CITIZEN AT THE TIME OF HER MARRIAGE TO EUGENIO; and B. HAVING BEEN BORN BEFORE JANUARY 17, 1973 OF A FILIPINO MOTHER AND WHO ELECTED FILIPINO CITIZENSHIP UPON REACHING THE AGE OF MAJORITY, RESPONDENT ONG MEETS THE REQUIREMENTS UNDER ARTICLE IV, SECTIONS 1 AND 2 OF THE 1987 CONSTITUTION. III. THE BIRTH CERTIFICATE OF RESPONDENT ONG AS PRESENTED BY PETITIONERS CAN, IN NO WAY, WITHOUT MORE, ESTABLISH WITH FINALITY THAT HE IS A CHINESE NATIONAL, OR DISPROVE CONCLUSIVELY THAT HE IS, IN FACT, A NATURAL-BORN FILIPINO, DESCENDED FROM "INDIOS." IV. IT IS NOT NECESSARY FOR RESPONDENT ONG TO RESORT TO JUDICIAL ACTION UNDER RULE 108 OF THE RULES OF COURT FOR HIM TO BE ABLE TO CLAIM AND ENJOY HIS RIGHTFUL STATUS AS A NATURAL-BORN FILIPINO. V. THE BUREAU OF IMMIGRATION HAS PREEMPTIVE LEGAL AUTHORITY OR PRIMARY ADMINISTRATIVE JURIDICTION TO MAKE A DETERMINATION AS REGARDS THE CITIZENSHIP OF RESPONDENT ONG, AND UPON SUBSEQUENT CONFIRMATION BY THE SECRETARY OF JUSTICE AS REQUIRED BY THE RULES, ISSUE A DECLARATION (I.E., IDENTIFICATION CERTIFICATE NO. 113878) RECOGNIZING THAT RESPONDENT ONG IS A NATURAL-BORN FILIPINO, THEREBY RENDERING NONEXISTENT ANY CONTITUTIONAL IMPEDIMENT FOR HIM TO ASSUME THE POSITION OF ASSOCIATE JUSTICE OF THE SUPREME COURT.7 Petitioners, in turn, filed a Consolidated Reply, in which they asserted their standing to file this suit on the strength of previous decisions of this Court, e.g., Kilosbayan, Incorporated v. Guingona8 and Kilosbayan, Incorporated v. Morato,9 on the ground that the case is one of transcendental importance. They claim that the Presidents appointment of respondent Ong as Supreme Court Justice violates the Constitution and is, therefore, attended with grave abuse of discretion amounting to lack or excess of jurisdiction. Finally, they reiterate that respondent Ongs birth certificate, unless corrected by judicial order in non-summary proceedings for the purpose, is binding on all and is prima facie evidence of what it states, namely, that respondent Ong is a Chinese citizen. The alleged naturalization of his father when he was a minor would not make him a natural-born Filipino citizen. The petition has merit. First, as to standing. Petitioners have standing to file the suit simply as peoples organizations and taxpayers since the matter involves an issue of utmost and farreaching Constitutional importance, namely, the qualification nay, the citizenship of a person to be appointed a member of this Court. Standing has been accorded and recognized in similar instances.10 Second, as to having to implead the President as an alleged necessary party. This is not necessary since the suit impleads the Executive Secretary who is the alter ego of the President and he has in fact spoken for her in his Comment. Furthermore, the suit does not seek to stop the President from extending the appointment but only the Executive Secretary from releasing it and respondent Ong from accepting the same. Third, as to the proper forum for litigating the issue of respondent Ongs qualification for memberhip of this Court. This case is a matter of primordial importance involving compliance with a Constitutional mandate. As the body tasked with the determination of the merits of conflicting claims under the Constitution,11 the Court is the proper forum for resolving the issue, even as the JBC has the initial competence to do so. Fourth, as to the principal issue of the case is respondent Ong a natural-born Filipino citizen? On this point, the Court takes judicial notice of the records of respondent Ongs petition to be admitted to the Philippine bar. In his petition to be admitted to the Philippine bar, docketed as B.E. No. 1398-N filed on September 14, 1979, under O.R. No. 8131205 of that date, respondent Ong alleged that he is qualified to be admitted to the Philippine bar because, among others, he is a Filipino citizen; and that he is a Filipino citizen because his father, Eugenio Ong Han Seng, a Chinese citizen, was naturalized in 1964 when he, respondent Ong, was a minor of eleven years and thus he, too, thereby became a Filipino citizen. As part of his evidence, in support of his petition, be submitted his birth certificate and the naturalization papers of his father. His birth certificate12 states that he was a Chinese citizen at birth and that his mother, Dy Guiok Santos, was a Chinese citizen and his father, Eugenio Ong Han Seng, was also a Chinese citizen. Specifically, the following appears in the records: PETITION COMES now the undersigned petitioner and to this Honorable Court respectfully states:

1. That he is single/married/widower/widow, Filipino citizen and 26 years of age, having been born on May 25, 1953, at SAN JUAN RIZAL, to spouses Eugenio Ong Han Seng and Dy Guiok Santos who are citizens of the Philippines, as evidenced by the attached copy of his birth certificate marked as Annex A (if born outside of wedlock, state so; or if Filipino citizen other than natural born, state how and when citizenship was acquired and attach the necessary proofs: By Nat. Case #584 of Eugenio Ong Han Seng (Father) See Attached documents Annex B, B-1, B-2, B-3, B-4. xxx VERIFICATION Republic of the Philippines ) City of Manila ) S.S. I, GREGORY SANTOS ONG, after being sworn, depose and state: that I am the petitioner in the foregoing petition; that the same was prepared by me and/or at my instance and that the allegations contained therein are true to my knowledge. (Sgd.) GREGORY SANTOS ONG Affiant SUBSCRIBED AND SWORN to before me this 28th day of August, 1979, City of Manila, Philippines, affiant exhibiting his/her Residence Certificate No. A-___________, issued at ________________, on __________________, 19__.

(Sgd.) Notary Public Until December 31, 1979 PTR No. 3114917 January 19, 1979, Pasig, MM

Doc. No. 98; Page No. 10; Book No. VIII; Series of 1979.13 In fact, Emilio R. Rebueno, Deputy Clerk of Court and Bar Confidant, wrote respondent Ong a letter dated October 3, 1979 stating that in connection with his Petition for Admission to the 1979 Bar Examinations, he has to submit: 1) A certified clear copy of his Birth Certificate; and 2) A certification of non-appeal re his citizenship from the Office of the Solicitor General. Respondent Ong complied with these requirements. It was on the basis of these allegations under oath and the submitted evidence of naturalization that this Court allowed respondent Ong to take the oath as a lawyer. It is clear, therefore, that from the records of this Court, respondent Ong is a naturalized Filipino citizen. The alleged subsequent recognition of his natural-born status by the Bureau of Immigration and the DOJ cannot amend the final decision of the trial court stating that respondent Ong and his mother were naturalized along with his father. Furthermore, as petitioners correctly submit, no substantial change or correction in an entry in a civil register can be made without a judicial order, and, under the law, a change in citizenship status is a substantial change. In Labayo-Rowe v. Republic,14 this Court held that: Changes which affect the civil status or citizenship of a party are substantial in character and should be threshed out in a proper action depending upon the nature of the issues in controversy, and wherein all the parties who may be affected by the entries are notified or represented and evidence is submitted to prove the allegations of the complaint, and proof to the contrary admitted.15 Republic Act No. 9048 provides in Section 2 (3) that a summary administrative proceeding to correct clerical or typographical errors in a birth certificate cannot apply to a change in nationality. Substantial corrections to the nationality or citizenship of persons recorded in the civil registry should, therefore, be effected through a petition filed in court under Rule 108 of the Rules of Court.16

The series of events and long string of alleged changes in the nationalities of respondent Ongs ancestors, by various births, marriages and deaths, all entail factual assertions that need to be threshed out in proper judicial proceedings so as to correct the existing records on his birth and citizenship. The chain of evidence would have to show that Dy Guiok Santos, respondent Ongs mother, was a Filipino citizen, contrary to what still appears in the records of this Court. Respondent Ong has the burden of proving in court his alleged ancestral tree as well as his citizenship under the time-line of three Constitutions.17 Until this is done, respondent Ong cannot accept an appointment to this Court as that would be a violation of the Constitution. For this reason, he can be prevented by injunction from doing so. WHEREFORE, the petition is GRANTED as one of injunction directed against respondent Gregory S. Ong, who is hereby ENJOINED from accepting an appointment to the position of Associate Justice of the Supreme Court or assuming the position and discharging the functions of that office, until he shall have successfully completed all necessary steps, through the appropriate adversarial proceedings in court, to show that he is a natural-born Filipino citizen and correct the records of his birth and citizenship. This Decision is FINAL and IMMEDIATELY EXECUTORY. No costs. SO ORDERED. Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Tinga, Chico-Nazario, Garcia, Velasco, Jr,, JJ., concur. Sandoval-Gutierrez,J., on leave.

Footnotes
1

Petition, p. 7; Rollo, p. 9. Id. at 10-11. Respondent Executive Secretarys Comment, p. 6. Id. at 8, 12-13, 19 & 25.

Being the child of the marriage of Jose Santos and Agata Cruz, "indios" of Barrio Santiago therein, per parochial record of baptism in Malolos, Bulacan.
6

Laureto A. Talaroc v. Alejandro D. Uy, G.R. No. L-5397, 92 Phil. 52 (1952). Comment with Opposition, pp. 18-19. G.R. No. 113375, May 5, 1994, 232 SCRA 110. G.R. No. 118910, July 17, 1995, July 17, 1995, 246 SCRA 540.

10

Francisco, Jr. v. The House of Representatives, G.R. No. 160261, November 10, 2003, 460 SCRA 830;Tatad v. Secretary of the Department of Energy, G.R. No. 124360, November 5, 1997, 281 SCRA 330.
11

See, Angara v. Electoral Commission, 63 Phil. 139 (1936). This is the same birth certificate that petitioners attach as Annex "H" to their Petition. Emphasis supplied. G.R. No. 53417, December 8, 1988, 168 SCRA 294. Id. at 299.

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Barco v. Court of Appeals, 465 Phil. 39 (2004); Lee v. Court of Appeals, 419 Phil. 392 (2001); Republic v. Valencia, 225 Phil. 408 (1986).

See, Appendix "A" which is an Outline of respondent Ongs Alleged Ancestral Tree and the Status of his Citizenship under Three Constitutions, culled from his allegations herein.
17

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 157043 February 2, 2007

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. TRINIDAD R.A. CAPOTE, Respondent. DECISION CORONA, J.: This petition for review on certiorari1 seeks to set aside the Court of Appeals (CA) decision2 dated January 13, 2003 in CA-G.R. CV No. 66128, which affirmed the decision of the Regional Trial Court (RTC), Branch 23 of San Juan, Southern Leyte dated September 14, 1999 granting a petition for change of name. Respondent Trinidad R. A. Capote filed a petition for change of name of her ward from Giovanni N. Gallamaso toGiovanni Nadores on September 9, 1998. In Special Proceeding No. R-481,3 Capote as Giovannis guardian ad litem averred: xxx xxx xxx 1. [Respondent] is a Filipino citizen, of legal age, married, while minor GIOVANNI N. GALLAMASO, is also a Filipino citizen, sixteen (16) years old and both are residents of San Juan, Southern Leyte where they can be served with summons and other court processes; 2. [Respondent] was appointed guardian [ad litem] of minor Giovanni N. Gallamaso by virtue of a court order in Special [Proc.] No. R-459, dated [August 18, 1998] xxx xxx authorizing her to file in court a petition for change of name of said minor in accordance with the desire of his mother [who is residing and working abroad]; 3. Both [respondent] and minor have permanently resided in San Juan, Southern Leyte, Philippines for more than fifteen (15) years prior to the filing of this instant petition, the former since 1970 while the latter since his birth [in 1982]; 4. The minor was left under the care of [respondent] since he was yet nine (9) years old up to the present; 5. Minor GIOVANNI N. GALLAMASO is the illegitimate natural child of Corazon P. Nadores and Diosdado Gallamaso. [He] was born on July 9, 1982 [,] prior to the effectivity of the New Family Code and as such, his mother used the surname of the natural father despite the absence of marriage between them; and [Giovanni] has been known by that name since birth [as per his birth certificate registered at the Local Civil Register of San Juan, Southern Leyte]; 6. The father, Diosdado Gallamaso, from the time [Giovanni] was born and up to the present, failed to take up his responsibilities [to him] on matters

of financial, physical, emotional and spiritual concerns. [Giovannis pleas] for attention along that line [fell] on deaf ears xxx xxx xxx; 7. [Giovanni] is now fully aware of how he stands with his father and he desires to have his surname changed to that of his mothers surname; 8. [Giovannis] mother might eventually petition [him] to join her in the United States and [his] continued use of the surname Gallamaso, the surname of his natural father, may complicate [his] status as natural child; and 9. The change of name [from] GIOVANNI N. GALLAMASO to GIOVANNI NADORES will be for the benefit of the minor. xxx xxx xxx4 Respondent prayed for an order directing the local civil registrar to effect the change of name on Giovannis birth certificate. Having found respondents petition sufficient in form and substance, the trial court gave due course to the petition.5 Publication of the petition in a newspaper of general circulation in the province of Southern Leyte once a week for three consecutive weeks was likewise ordered.6 The trial court also directed that the local civil registrar be notified and that the Office of the Solicitor General (OSG) be sent a copy of the petition and order.7 Since there was no opposition to the petition, respondent moved for leave of court to present her evidence ex parte before a court-appointed commissioner. The OSG, acting through the Provincial Prosecutor, did not object; hence, the lower court granted the motion. After the reception of evidence, the trial court rendered a decision ordering the change of name from Giovanni N. Gallamaso to Giovanni Nadores.8 From this decision, petitioner Republic of the Philippines, through the OSG, filed an appeal with a lone assignment of error: the court a quo erred in granting the petition in a summary proceeding. Ruling that the proceedings were sufficiently adversarial in nature as required, the CA affirmed the RTC decision ordering the change of name.9 In this petition, the Republic contends that the CA erred in affirming the trial courts decision which granted the petition for change of name despite the non-joinder of indispensable parties.10 Petitioner cites Republic of the Philippines v. Labrador11 and claims that the purported parents and all other persons who may be adversely affected by the childs change of name should have been made respondents to make the proceeding adversarial. 12 We deny the petition. "The subject of rights must have a fixed symbol for individualization which serves to distinguish him from all others; this symbol is his name."13 Understandably, therefore, no person can change his name or surname without judicial authority. 14 This is a reasonable requirement for those seeking such change because a persons name necessarily affects his identity, interests and interactions. The State must be involved in the process and decision to change the name of any of its citizens. The Rules of Court provides the requirements and procedure for change of name. Here, the appropriate remedy is covered by Rule 103,15 a separate and distinct proceeding from Rule 108 on mere cancellation and correction of entries in the civil registry (usually dealing only with innocuous or clerical errors thereon).16 The issue of non-joinder of alleged indispensable parties in the action before the court a quo is intertwined with the nature of the proceedings there. The point is whether the proceedings were sufficiently adversarial. Summary proceedings do not extensively address the issues of a case since the reason for their conduct is expediency. This, according to petitioner, is not sufficient to deal with substantial or contentious issues allegedly resulting from a change of name, meaning, legitimacy as well as successional rights.17 Such issues are ventilated only in adversarial proceedings wherein all interested parties are impleaded and due process is observed. 18 When Giovanni was born in 1982 (prior to the enactment and effectivity of the Family Code of the Philippines), 19the pertinent provision of the Civil Code then as regards his use of a surname, read: Art. 366. A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent. (emphasis ours) Based on this provision, Giovanni should have carried his mothers surname from birth. The records do not reveal any act or intention on the part of Giovannis putative father to actually recognize him. Meanwhile, according to the Family Code which repealed, among others, Article 366 of the Civil Code: Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. xxx xxx xxx (emphasis ours) Our ruling in the recent case of In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang20 is enlightening:

Our laws on the use of surnames state that legitimate and legitimated children shall principally use the surname of the father. The Family Code gives legitimate children the right to bear the surnames of the father and the mother, while illegitimate children shall use the surname of their mother, unless their father recognizes their filiation, in which case they may bear the fathers surname. Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his mother surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mothers surname as his middle name and his fathers surname as his surname, reflecting his status as a legitimated child or an acknowledged child. 21
1awphi1.net

The foregoing discussion establishes the significant connection of a persons name to his identity, his status in relation to his parents and his successional rights as a legitimate or illegitimate child. For sure, these matters should not be taken lightly as to deprive those who may, in any way, be affected by the right to present evidence in favor of or against such change. The law and facts obtaining here favor Giovannis petition. Giovanni availed of the proper remedy, a petition for change of name under Rule 103 of the Rules of Court, and complied with all the procedural requirements. After hearing, the trial court found (and the appellate court affirmed) that the evidence presented during the hearing of Giovannis petition sufficiently established that, under Art. 176 of the Civil Code, Giovanni is entitled to change his name as he was never recognized by his father while his mother has always recognized him as her child. A change of name will erase the impression that he was ever recognized by his father. It is also to his best interest as it will facilitate his mothers intended petition to have him join her in the United States. This Court will not stand in the way of the reunification of mother and son. Moreover, it is noteworthy that the cases cited by petitioner22 in support of its position deal with cancellation or correction of entries in the civil registry, a proceeding separate and distinct from the special proceedings for change of name. Those cases deal with the application and interpretation of Rule 108 of the Rules of Court while this case was correctly filed under Rule 103. Thus, the cases cited by petitioner are irrelevant and have no bearing on respondents case. While the OSG is correct in its stance that the proceedings for change of name should be adversarial, the OSG cannot void the proceedings in the trial court on account of its own failure to participate therein. As the CA correctly ruled: The OSG is correct in stating that a petition for change of name must be heard in an adversarial proceeding. Unlike petitions for the cancellation or correction of clerical errors in entries in the civil registry under Rule 108 of the Rules of Court, a petition for change of name under Rule 103 cannot be decided through a summary proceeding. There is no doubt that this petition does not fall under Rule 108 for it is not alleged that the entry in the civil registry suffers from clerical or typographical errors. The relief sought clearly goes beyond correcting erroneous entries in the civil registry, although by granting the petition, the result is the same in that a corresponding change in the entry is also required to reflect the change in name. In this regard, [appellee] Capote complied with the requirement for an adversarial proceeding by posting in a newspaper of general circulation notice of the filing of the petition. The lower court also furnished the OSG a copy thereof. Despite the notice, no one came forward to oppose the petition including the OSG. The fact that no one opposed the petition did not deprive the court of its jurisdiction to hear the same nor does it make the proceeding less adversarial in nature. The lower court is still expected to exercise its judgment to determine whether the petition is meritorious or not and not merely accept as true the arguments propounded. Considering that the OSG neither opposed the petition nor the motion to present its evidence ex parte when it had the opportunity to do so, it cannot now complain that the proceedings in the lower court were not adversarial enough.23 (emphasis supplied) A proceeding is adversarial where the party seeking relief has given legal warning to the other party and afforded the latter an opportunity to contest it. 24 Respondent gave notice of the petition through publication as required by the rules.25 With this, all interested parties were deemed notified and the whole world considered bound by the judgment therein. In addition, the trial court gave due notice to the OSG by serving a copy of the petition on it. Thus, all the requirements to make a proceeding adversarial were satisfied when all interested parties, including petitioner as represented by the OSG, were afforded the opportunity to contest the petition. WHEREFORE, the petition is hereby DENIED and the January 13, 2003 decision of the Court of Appeals in CA-G.R. CV No. 66128 AFFIRMED. SO ORDERED. RENATO C. CORONA Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice Chairperson ANGELINA SANDOVAL-GUTIERREZ Associate Justice CANCIO C. GARCIA Associate Justice CERTIFICATION ADOLFO S. AZCUNA Asscociate Justice

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

Footnotes
1

This is a petition filed under Rule 45 of the 1997 Rules of Civil Procedure.

Penned by Associate Justice Remedios A. Salazar-Fernando and concurred in by Associate Justices Ruben T. Reyes and Edgardo F. Sundiam of the Seventh Division of the Court of Appeals; rollo, pp. 18-23.
3

In the matter of the petition for change of name from Giovanni N. Gallamaso to Giovanni Nadores, Trinidad R.A. Capote v. The Local Civil Registrar of San Juan, Southern Leyte.
4

Annex "B," rollo, pp. 24-26. Annex "C," rollo, p. 28. Id. Id. Annex "D," rollo, pp. 30-32. Annex "A," rollo, pp. 18-23. Petition, rollo, p. 9. 364 Phil. 934 (1999). Id.

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13

Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines 1 (1990), Central Professional Books, Inc., Quezon City, Philippines, p. 672.
14

Civil Code, Art. 376. There is now a new law allowing change of name through administrative proceedings. Please see RA 9048 and AO No. 1 S. 2001. With the amendment by RA 9048, a person desiring to change his first name does not need to file the petition with the RTC. The petition shall now be filed with the local civil registry office of the city or municipality where the record sought to be corrected or charged is kept.
15

Regalado, Remedial Law Compendium 2 (2001), National Book Store, Manila, Philippines, p. 167. Id., at 189 citing Ansaldo v. Republic, 102 Phil. 1046 (1958). Petition, rollo, p. 10. Republic of the Philippines v. Labrador, 364 Phil. 934 (1999): What is meant by "appropriate adversary proceeding?" "[A]dversary proceedings" [may be defined] as follows: "One having opposing parties, contested, as distinguished from an ex parte application, one [in] which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it. xxx xxx."(citations omitted)

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19

Executive Order No. 209, known as the Family Code of the Philippines, took effect on August 3, 1988.

20

G.R. No. 159966, 30 March 2005, 454 SCRA 155.

21

Id., at 163 citing Civil Code, Arts. 174, 176 and 364; and Republic Act No. 9255, "An Act Allowing Illegitimate Children to Use the Surname of Their Father, Amending for the Purpose Art. 176 of the Family Code." See Leonardo v. Court of Appeals, et al., G.R. No. 125329, 10 September 2003, 410 SCRA 446 andMossesgeld v. Court of Appeals, 360 Phil. 646 (1998). Article 176 of the Family Code, as amended by RA 9255, reads: Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (emphasis ours)
22

Leonor v. Court of Appeals, 326 Phil. 74 (1996) and Republic v. Labrador, supra. Supra note 2. Cf. Republic v. Labrador, supra. Cf. Sec. 3, Rule 103, Rules of Court.

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