Crim Law II Asisignment

xxx xxx xxx
SECOND DIVISION
which wound or injuries caused the instantaneous death of Governor Gregorio P.

Murillo, . . . . 1
G.R. No. 84612 March 11, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DIOSDADO AVILA, AGAPITO AGRABIO and AURELIO SILVOZA, accused,
DIOSDADO AVILA and AGAPITO AGRABIO, accused-appellants.
PADILLA, J.:
This is an appeal from the decision * of the Regional Trial Court, Tandag, Surigao del
Sur, Branch 27, dated 12 July 1988, rendered in Criminal Case No. 1326, finding the
accused Diosdado Avila and Agapito Agrabio, herein appellants, guilty of the crime of
murder, but acquitting accused Aurelio Silvoza. However, after the trial court had
forwarded to this Court the records of the case, by reason of the appeal interposed by
the appellants, said court, on 1 August 1988, amended its decision of 12 July 1988 and
submitted to this Court said amended decision which found accused Avila and Agrabio
guilty of rebellion, not murder. The people interposed objection to the rendition of the
amended decision at a time when the trial court had lost jurisdiction over the case.
The records show on 23 October 1985, the victim Gregorio P. Murillo, then governor
of the province of Surigao del Sur, was shot dead allegedly by Diosdado Avila, Agapito
Agrabio and Aurelio Silvoza. An information for murder was filed against the abovenamed accused, which reads as follows:
That on or about 5:30 o'clock in the morning on October 23, 1985 at the National
Highway, municipality of Tandag, province of Surigao del Sur, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, Diosdado Avila,
Agapito Agrabio and Aurelio Silvoza, conspiring, confederating and mutually helping
one another, without provocation, with treachery, evident premeditation and with
deliberate intent to kill, armed with an unlicensed .45 Caliber Pistol and with the use
thereof, did, then and there, wilfully, unlawfully and feloniously shoot Governor
Gregorio P. Murillo, Provincial Governor of Surigao del Sur, thereby hitting and
inflicting upon the latter a gunshot wound on his head, . . .
Upon arraignment, the three (3) accused pleaded not guilty to the crime charged. The
only issue which the trial court found necessary to resolve was whether or into the
shooting and resultant killing of the victim by the accused, were done in furtherance of
rebellion or of their intention to overthrow or help overthrow the duly constituted
government. 2
On 12 July 1988, after hearing the evidence of the prosecution and the defense, the trial
court rendered its decision finding, as already adverted to the two (2) accused,
Diosdado Avila and Agapito Agrabio, guilty of the crime charged (murder) and
sentencing them to life imprisonment, while the third accused, Aurelio Silvoza, was
absolved from any criminal liability. The dispositive portion of the decision reads:
WHEREFORE, finding accused Diosdado Avila and Agapito Agrabio guilty beyond
reasonable doubt of the crime of murder as principals, the court sentences both of them
to life imprisonment, to be served by them at the National Penitentiary, Muntinlupa,
Metro Manila, with costs against them.
They are hereby ordered to pay the heirs of the late Governor Gregorio P. Murillo the
sum of P6,000.00 for the marble tomb of the deceased; P10,000.00 for the expenses in
the solution of this crime; P30,000.00 for life indemnity; P50,000.00 for actual
damages; P25,000.00 for moral damages and P10,000.00 for exemplary damages,
without subsidiary imprisonment in case of insolvency.
Accused Aurelio Silvoza is hereby absolved from any criminal liability. 3
Accused Avila and Agapito timely filed their appeal from said decision. On 3 August
1988, the trial court forwarded (posted) to this Court the records of the case including
its decision of 12 July 1988 which were received by the Supreme Court on 26 August
1988. However, the records also show that the trial court issued another decision which
is dated 1 August 1988 but forwarded (posted) to the Supreme Court on 15 August
1988 and received by the Supreme Court on 15 September 1988. Its second
decision amended its earlier decision of 12 July 1988, ruling this time that Avila and
CRIM LAW II (2nd Assign) | 1
Agrabio are guilty of rebellion, not murder. The dispositive portion of the amended
decision reads:
WHEREFORE, finding the accused Diosdado Avila and Agapito Agrabio guilty
beyond reasonable doubt of rebellion, the court sentences them to suffer the penalty
of reclusion temporal in its medium period and a fine of not to exceed P20,000.00 or
an imprisonment of twelve (12) years and one (1) day to twenty (20) years and an
additional imprisonment in case of insolvency to be served by them in the National
Penitentiary, Muntinlupa, Metro Manila.
xxx xxx xxx
The undisputed facts 6 of the case show that:

At about 5:30 in the morning of 23 October 1985 along the national highway of
Tandag, Surigao del Sur, while the victim was inside his car seated beside the driver,
whereas Mrs. Murillo, (wife of the Governor) was seated behind, appellant Avila shot
Governor Murillo at the head, using a .45 caliber pistol, resulting to the Governor's
death. His only companion then was appellant Agrabio. Aurelio Silvoza (the other coaccused) was not present at the time the crime was committed as he was at the
hinterland resting because he was then sick. 7 After the shooting, the two appellants
Avila and Agrabio ran away. On 17 February 1987 Agrabio was apprehended whereas
Avila and Silvoza were captured on 18 February 1987 by the members of the
Philippine Constabulary.
Accused Aurelio Silvoza is hereby absolved from any criminal liability. 4

It will be observed that the "amended decision", although dated 1 August 1988, was
promulgated only after the appellants had timely appealed from the earlier decision of
12 July 1988 and after the trial court had forwarded to the Supreme Court the records
of the case.
Section 7, Rule 120 of the Rules of Court provides that a "judgment of conviction may,
upon motion of the accused, be modified or set aside by the court rendering it before
the judgment has become final or appeal has been perfected." It is thus clear that at the
trial court rendered the "amended decision," said court had already lost its jurisdiction
over the case, the appeal having been earlier perfected. Hence, the "amended decision"
has no legal force and effect.
There is no question then that it is the decision of 12 July 1988 convicting the
appellants of the crime of murder and sentencing them to the penalty of life
imprisonment, which is the subject of the present review.
The main if not the sole question in the appeal at bar is whether the trial court correctly
convicted appellants of the crime of murder.
Upon careful consideration of the facts and circumstances surrounding the case, as well
as the evidence presented by the prosecution and the defense, the Court, in the exercise
of its power to review, revise, reverse, modify or affirm 5 the appealed decision dated
12 July 1988, holds that appellants Avila and Agrabio are guilty of the crime of
rebellion, not murder. Hence, we find merit in their appeal.
During the trial of the case, it was the contention of the defense that appellants
committed rebellion, not murder, the shooting and killing of the late Governor Murillo
being a means to or in furtherance of rebellion or in pursuance of the objectives of the
rebels. 8
However, notwithstanding the aforesaid claim of the defense, the trial court in its
decision, dated 12 July 1988, found appellants Avila and Agrabio guilty of the crime of
murder (accused Silvoza was acquitted). It ruled that the crime committed could not be
rebellion because there was no evidence presented showing that at the time Governor
Murillo was fatally shot, an uprising or rebellion was on-going where the rebels and the
armed forces of the government were actually fighting or locked in combat.
But the evidence show that appellants Avila and Agrabio were on a mission to kill and,
in fact, they killed Governor Murillo on that fateful day of 23 October 1985. The
evidence also disclose that at the time they killed the Governor, they were members of
the liquidating squad of the New People's Army (NPA), and that they killed the
Governor upon the orders of their senior officer in the NPA, one Commander Celo.
According to them, they were ordered to "liquidate" the Governor because of the
latter's "corruption" in not giving on time the salaries of the employees in the provincial
government, and that, instead, he gave the salaries first to the military whom he
maintained as his personal bodyguards.
The killing of Governor Murillo by the appellants Avila (alias Commander Efren); and
Agrabio
(alias Commander
Raymund)
who
were
at
the time admittedly and undisputably members of the liquidating squad of the
NPA, 9 upon the orders of NPA Commander Celo, appears therefore to be politically
motivated and tainted. Hence, this Court is of the view that the appellants committed
the crime of simple rebellion, not murder, punishable under Article 134 and 135 of the
Revised Penal code ("RPC" for brevity) consistent with the ruling in People vs.
Manglallan, 10 which held that:
The appellant admits that he was a member of the NPA then operating in the Cagayan
Area with Ka Daniel as their leader. He asserts that the NPA is the military arm of the
Communist Party of the Philippines. There is no question likewise that the killing of
Apolonio Ragual by the appellant and his companions who were also members of the
NPA upon the orders of Ka Daniel was politically motivated. They suspected Ragual as
an informer of the PC. In fact, after he was killed, they left a letter and a drawing on
the body of Ragual as a warning to others not follow his example. . . . The Court,
therefore, sustains the contention of the appellant that the crime he committed is not
murder but the crime of rebellion punishable under Articles 134 and 135 of the Revised
Penal Code.
As regards the crime of rebellion and the penalty imposable therefor, Articles 134 and
135 of the Revised Penal Code have been amended several times by a number of
presidential decrees and Executive Order No. 187 11 and Republic Act No. 6968. 12
At the time the crime was committed in the case at bar (i.e., 23 October 1985), the
presidential decree in force and effect was P.D. 1834 which amended Article 135 of the
RPC, by imposing a penalty of reclusion perpetua to death for those found guilty of
rebellion. Felonies being generally punishable under the laws in force at the time of
their commission, 13 the impossible penalty, therefore, in the present case is
that provided by P.D. 1834. Said Article 135, as amended by P.D. 1834, refers to two
(2) groups of persons who may commit rebellion the first group (referred to in
paragraph one of Article 135) are those who promote, maintain, or head a rebellion, or
who, while holding any public office or employment, take part therein, engaging in war
against the forces of the government, destroying property or committing serious
violence, exacting contributions or diverting public funds from the lawful purpose for
which they have been appropriated; the second group (referred to in paragraph two
thereof) are those who merely participate in or execute the commands of others in a
rebellion.
In the instant appeal, while we find the appellants guilty of rebellion, we also find that
their case falls under the "second group" referred to in paragraph two (2) of Article
135, the evidence having shown that they belonged to the liquidating squad of the
NPA, tasked to operate in Tandag, and that they killed the victim, Governor Murillo, in
compliance with the orders of their senior officer, one Commander Celo of the NPA.
However, as far as the penalty imposed is concerned, it would seem immaterial
whether the offender falls under the first or second group, for under Article 135, RPC
as amended by P.D. 1834, a uniform penalty of reclusion perpetua to death is imposed
for the "first group" or "second group" of rebellion.
But we take note that pending the present appeal, R.A. 6968 was enacted and is now in
full force, which provides for the penalty of reclusion perpetua for offenders belonging
to the "first group", and reclusion temporal only for those falling under the "second
group" of rebellion.
Pursuant to Article 22 of the Revised Penal Code 14 penal laws are given retroactive
effect insofar as they are favorable to the offender. Considering that a retroactive effect
of RA 6968 to the present appeal would be more favorable to the appellants as said Act
imposes a penalty of reclusion temporal, not reclusion perpetua as in P.D. 1834, for
offenders belonging to the "second group" of rebels, the Court shall therefore impose
the penalty provided for in Article 135 of the RPC, as amended by RA 6968, which
is reclusion temporal. There being neither an aggravating nor mitigating circumstance
attending the commission of the offense, the proper penalty is reclusion temporal in its
medium period, applying rule No. 1 set forth in Article 64 of the RPC. 15 The range of
the penalty of reclusion temporal in its medium period is from fourteen (14) years,
eight (8) months and one (1) day to seventeen (17) years and four (4) months. 16
As to the award of damages adjudged by the trial court, this Court grants to the heirs of
the late Governor an indemnity in the amount of P50,000.00, but the other items for
damages granted in the appealed decision are set aside for they are not proper in
rebellion cases.
Finally, the Court notes with deep concern the trial judge's attempt to amend his earlier
decision of 12 July 1988, after the lapse of 20 days (the amended decision being dated
1 August 1988), totally disregarding the basic doctrine that courts lose jurisdiction over
cases after an appeal shall have been perfected therein. This doctrine is too elementary
as to have been ignored by the trial judge. Whatever may be the reasons behind the
intriguing change in the respondent judge in rendering his amended decision, the Court
strictly admonishes him to be more cautious, circumspect and be decisive in the
exercise of his judicial functions.
WHEREFORE, the appealed decision of the Regional Trial Court of Tandag, Surigao
del Sur, Branch 27 dated 12 July 1988 rendered in Criminal Case No. 1326 is hereby
MODIFIED, by convicting the accused-appellants, Diosdado Avila and Agapito
Agrabio of the crime of rebellion punishable under Article 135, paragraph No. 2 of the
Revised Penal Code as amended by Republic Act No. 6968, ( and not murder), and
hereby sentencing them to suffer imprisonment of fourteen (14) years, eight (8) months
and one (1) day to seventeen (17) years and four (4) months of reclusion temporal, and
to indemnify, solidarily, the heirs of the deceased former Governor Gregorio P. Murillo
in the amount of P50,000.00.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ELIAS LOVEDIORO y CASTRO, defendant-appellant.
KAPUNAN, J.:
Off-duty policeman SPO3 Jesus Lucilo was walking along Burgos St., away from the
Daraga, Albay Public Market when a man suddenly walked beside him, pulled a .45
caliber gun from his waist, aimed the gun at the policeman's right ear and fired. The
man who shot Lucilo had three other companions with him, one of whom shot the
fallen policeman four times as he lay on the ground. After taking the latter's gun, the
man and his companions boarded a tricycle and fled. 1
The incident was witnessed from a distance of about nine meters by Nestor Armenta, a
25 year old welder from Pilar, Sorsogon, who claimed that he knew both the victim and
the man who fired the fatal shot. Armenta identified the man who fired at the deceased
as Elias Lovedioro y Castro, his nephew (appellant's father was his first cousin) and
alleged that he knew the victim from the fact that the latter was a resident of
Bagumbayan.
Lucilo died on the same day of massive blood loss from multiple gunshot wounds on
the face, the chest, and other parts of the body. 2 On autopsy, the municipal health
officer established the cause of death as hypovolemic shock. 3
As a result of the killing, the office of the provincial prosecutor of Albay, on November
6, 1992 filed an Information charging accused-appellant Elias Lovedioro y Castro of
the crime of Murder under Article 248 of the Revised Penal Code. The Information
reads:
FIRST DIVISION
That on or about the 27th day of July, 1992, at more or less 5:30 o'clock in the
afternoon, at Burgos Street, Municipality of Daraga, Province of Albay, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, together
with Gilberto Longasa, who is already charged in Crim. Case No. 5931 before RTC,
Branch I, and three (3) others whose true identities are at present unknown and remain
at large, conniving, conspiring, confederating and helping one another for a common
purpose, armed with firearms, with intent to kill and with treachery and evident
premeditation, did then and there wilfully, unlawfully and feloniously fire and shoot
one SPO3 JESUS LUCILO, a member of the Daraga Police Station, inflicting upon the
G.R. No. 112235 November 29, 1995

latter multiple gunshot wounds causing his death, to the damage and prejudice of his
legal heirs.
After trial, the court a quo found accused-appellant guilty beyond reasonable doubt of
the crime of Murder. The dispositive portion of said decision, dated September 24,
1993 states:
WHEREFORE, in view of all the foregoing considerations, this Court finds the
accused ELIAS LOVEDIORO guilty beyond reasonable doubt as principal, acting in
conspiracy with his co-accused who are still at large, of the crime of murder, defined
and penalized under Article 248 of the Revised Penal Code, and hereby sentences him
to suffer the penalty of Reclusion Perpetua with all the accessories provided by law; to
pay the heirs of the deceased SPO3 Jesus Lucilo through the widow, Mrs. Remeline
Lucilo, the amount of Fifty Thousand (P50,000.00) Pesos representing the civil
indemnity for death; to pay the said widow the sum of Thirty Thousand (P30,000.00)
Pesos representing reasonable moral damages; and to pay the said widow the sum of
Eighteen Thousand Five Hundred Eighty-Eight (P18,588.00) Pesos, representing actual
damages, without subsidiary imprisonment however, in case of insolvency on the part
of the said accused.
With costs against the accused.
Asserting that the trial court correctly convicted appellant of the crime of murder, the
Solicitor General avers that the crime committed by appellant may be considered as
rebellion only if the defense itself had conclusively proven that the motive or intent for
the killing of the policeman was for "political and subversive ends." 5 Moreover, the
Solicitor General contends that even if appellant were to be convicted of rebellion, and
even if the trial court had found appellant guilty merely of being a participant in a
rebellion, the proper imposable penalty is not prision mayor as appellant contends,
but reclusion temporal, because Executive Order No. 187 as amended by Republic Act
No. 6968, the Coup D'etat Law, prescribes reclusion temporal as the penalty imposable
for individuals found guilty as participants in a rebellion.
We agree with the Solicitor General that the crime committed was murder and not
rebellion.
Under Art. 134 of the Revised Penal Code, as amended by Republic Act No. 6968,
rebellion is committed in the following manner:
[B]y 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. 6
SO ORDERED.
Hence, the instant appeal, in which the sole issue interposed is that portion of trial court
decision finding him guilty of the crime of murder and not rebellion.
Appellant cites the testimony of the prosecution's principal witness, Nestor Armenta, as
supporting his claim that he should have been charged with the crime of rebellion, not
murder. In his Brief, he asseverates that Armenta, a police informer, identified him as a
member of the New People's Army. Additionally, he contends that because the killing
of Lucilo was "a means to or in furtherance of subversive ends," 4 (said killing) should
have been deemed absorbed in the crime of rebellion under Arts. 134 and 135 of the
Revised Penal Code. Finally, claiming that he did not fire the fatal shot but merely
acted as a look-out in the liquidation of Lucilo, he avers that he should have been
charged merely as a participant in the commission of the crime of rebellion under
paragraph 2 of Article 135 of the Revised Penal Code and should therefore have been
meted only the penalty of prison mayor by the lower court.
The gravamen of the crime of rebellion is an armed public uprising against the
government. 7 By its very nature, rebellion is essentially a crime of masses or
multitudes involving crowd action, which cannot be confined a priori within
predetermined bounds. 8 One aspect noteworthy in the commission of rebellion is that
other acts committed in its pursuance are, by law, absorbed in the crime itself because
they acquire a political character. This peculiarity was underscored in the case
of People v. Hernandez, 9 thus:
In short, political crimes are those directly aimed against the political order, as well as
such common crimes as may be committed to achieve a political purpose. The decisive
factor is the intent or motive. If a crime usually regarded as common, like homicide, is
perpetrated for the purpose of removing from the allegiance "to the Government the
territory of the Philippine Islands or any part thereof," then it becomes stripped of its
"common" complexion, inasmuch as, being part and parcel of the crime of rebellion,
the former acquires the political character of the latter.
Divested of its common complexion therefore, any ordinary act, however grave,
assumes a different color by being absorbed in the crime of rebellion, which carries a
lighter penalty than the crime of murder. In deciding if the crime committed is
rebellion, not murder, it becomes imperative for our courts to ascertain whether or not
the act was done in furtherance of a political end. The political motive of the act should
be conclusively demonstrated.
In such cases, the burden of demonstrating political motive falls on the defense,
motive, being a state of mind which the accused, better than any individual, knows.
Thus, in People v. Gempes, 10 this court stressed that:
Since this is a matter that lies peculiarly with (the accused's) knowledge and since
moreover this is an affirmative defense, the burden is on them to prove, or at least to
state, which they could easily do personally or through witnesses, that they killed the
deceased in furtherance of the resistance movement.
From the foregoing, it is plainly obvious that it is not enough that the overt acts of
rebellion are duly proven. Both purpose and overt acts are essential components of the
crime. With either of these elements wanting, the crime of rebellion legally does not
exist. In fact, even in cases where the act complained of were committed
simultaneously with or in the course of the rebellion, if the killing, robbing, or etc.,
were accomplished for private purposes or profit, without any political motivation, it
has been held that the crime would be separately punishable as a common crime and
would not be absorbed by the crime rebellion. 11
Clearly, political motive should be established before a person charged with a common
crime alleging rebellion in order to lessen the possible imposable penalty could
benefit from the law's relatively benign attitude towards political crimes. Instructive in
this regard is the case of Enrile v. Amin, 12 where the prosecution sought to charge
Senator Juan Ponce Enrile with violation of P.D. No. 1829, 13 for allegedly harboring or
concealing in his home Col. Gregorio Honasan in spite of the senator's knowledge that
Honasan might have committed a crime. This Court held, against the prosecution's
contention, that rebellion and violation of P.D 1829 could be tried separately 14 (on the
principle that rebellion is based on the Revised Penal Code while P.D. 1829 is a special
law), that the act for which the senator was being charged, though punishable under a
special law, was absorbed in the crime of rebellion being motivated by, and related to
the acts for which he was charged in Enrile vs. Salazar (G.R. Nos. 92163 and 92164) a
case decided on June 5, 1990. Ruling in favor of Senator Enrile and holding that the
prosecution for violation of P.D. No. 1829 cannot prosper because a separate
prosecution for rebellion had already been filed and in fact decided, the Court said:
The attendant circumstances in the instant case, however constrain us to rule that the
theory of absorption in rebellion cases must not confine itself to common crimes but
also to offenses under special laws which are perpetrated in furtherance of the political
offense. 15
Noting the importance of purpose in cases of rebellion the court in Enrile
vs. Amin further underscored that:
[I]ntent or motive is a decisive factor. If Senator Ponce Enrile is not charged with
rebellion and he harbored or concealed Colonel Honasan simply because the latter is a
friend and former associate, the motive for the act is completely different. But if the act
is committed with political or social motives, that is in furtherance of rebellion, then it
should be deemed to form part of the crime of rebellion instead of being punished
separately.
It follows, therefore, that if no political motive is established and proved, the accused
should be convicted of the common crime and not of rebellion. In cases of rebellion,
motive relates to the act, and mere membership in an organization dedicated to the
furtherance of rebellion would not, by and of itself, suffice.
The similarity of some of the factual circumstances of People v. Ompad, Jr., 16 to the
instant case is striking. Two witnesses, both former NPA recruits identified the accused
Ompad, alias "Commander Brando," a known hitman of the NPA, as having led three
other members of the NPA in the liquidation of Dionilo Barlaan, a military informer,
also in a rebel infested area. In spite of his notoriety as an NPA hitman, Ompad was
merely charged with and convicted of murder, not rebellion because political motive
was neither alleged nor proved.
As stated hereinabove, the burden of proof that the act committed was impelled by a
political motive lies on the accused. Political motive must be alleged in the
information. 17 It must be established by clear and satisfactory evidence. In People
v. Paz and Tica we held:
That the killing was in pursuance of the Huk rebellion is a matter of mitigation or
defense that the accused has the burden of proving clearly and satisfactorily. The lone
uncorroborated assertion of appellant that his superiors told him of Dayrit being an
informer, and his suspicion that he was one such, is neither sufficient or adequate to
establish that the motivation for the killing was political, considering appellant's
obvious interest in testifying to that effect. 18
where the evidence for the appellant merely contains self-serving assertions and denials
not substantial enough as an indicia of political motivation in the killing of victim
SPO3 Jesus Lucilo. 24
Similarly, in People v. Buco, 19 the Court stressed that accused in that case failed to
establish that the reason for the killing of their victim was to further or carry out
rebellion. The evidence adduced by the defense therein simply showed that appellant
Francisco Buco was ordered by Tomas Calma, alias "Commander Sol" to kill
municipal mayor Conrado G. Dizon. However, the evidence likewise showed that
Calma was induced by an acquaintance, a civilian, to order the killing on account of
private differences over a ninety (90) hectare piece of land. The court attributed no
political motive for the killing, though committed by known members of the
Hukbalahap movement. 20
In the case at bench, the appellant, assisted by counsel, admitted in his extrajudicial
confession to having participated in the killing of Lucilo as follows:
People v. Dasig 21 has a factual milieu almost similar to the instant case. There, the
Court held that "the act of killing a police officer, knowing too well that the victim is a
person in authority is a mere component or ingredient of rebellion or an act done in
furtherance of a rebellion." In Dasig the Court however noted that the accused, who
was charged with murder, not only admitted his membership with the NPA but also
executed an extrajudicial confession to the effect that he was a member of an NPA
"sparrow unit," a fact to which even the Solicitor General, in his brief therein was in
agreement. The Solicitor General's brief in Dasig which this Court favorably quoted,
noted that:
Q Please continue.
[T]he sparrow unit is the liquidation squad of the New People's Army with the
objective of overthrowing the duly constituted government. It is therefore not hard to
comprehend that the killing of Pfc. Manatad was committed as a means to or in
furtherance of the subversive ends of the NPA. 22
By contrast, the Solicitor General vigorously argues for a different result in the case at
bench. He states that accused-appellant's belated claims to membership in the NPA
were not only insubstantial but also self serving 23an averment to which, given a
thorough review of the circumstances of the case, we fully agree. He states:
[In the case cited] the appellants, admittedly members of the NPA, clearly overcame
the burden of proving motive or intent. It was shown that the political motivation for
the killing of the victim was the fact that Ragaul was suspected as an informer for the
PC. The perpetrators even left a letter card, a drawing on the body of Ragaul as a
warning to others not to follow his example. It is entirely different in the case at bar
Q What was that incident if any, please narrate?

A July 27, 1992 at more or less 12:00 noon. I am at home, three male person a
certainalias ALWIN, ALIAS SAMUEL and the other one unknown to me, fetched me
and told me to go with them, so I asked them where, Alwin handed me a hand gun and
same he stopped/call a passenger jeepney and told me board on said jeepney. (sic)
A Upon reaching Daraga, Albay fronting Petron Gasoline Station, we alighted on said
jeep, so we walk towards Daraga Bakery we stopped walking due to it is raining, when
the rain stopped we continue walking by using the road near the bakery. (sic)
Q When you reached Daraga bakery, as you have said in Q. 7 you used the road near
the bakery where did you proceed?
A I am not familiar with that place, but I and my companion continue walking, at more
less 4:30 P.M. July 27, 1992 one of my companion told us as to quote in Bicol dialect,
to wit: "AMO NA YADI AN TINAMPO PALUWAS" (This is the place towards the
poblacion), so, I placed myself just ahead of a small store, my three (3) companions
continue walking towards poblacion, later on a policeman sporting white T-shirt and a
khaki pant was walking towards me, while the said policeman is nearly approaching
me, ALWIN shot the said policeman in front of the small store, when the said
policeman fell on the asphalted road, ALWIN took the service firearm of the said
policeman, then we ran towards the subdivision, then my two (2) companions
commanded a tricycle then we fled until we reached a hill wherein there is a small
bridge, thereafter Ka Samuel took the handgun that was handed to me by them at Pilar,
Sorsogon. (sic)
Q Do you know the policeman that was killed by your companion?
A I just came to know his name when I reached home and heard it radio, that he is
JESUS LUCILO. (sic)
organization," 32 without, however, specifying what the "offense" was. Appellant

claimed that he had been a member of the NPA for five months before the shooting
incident. 33
Q What is your participation in the group?

A Look-out sir.
Q I have nothing more to asked you what else, if there is any? (sic)
A No more sir. 25
It bears emphasis that nowhere in his entire extrajudicial confession did appellant ever
mention that he was a member of the New People's Army. A thorough reading of the
same reveals nothing which would suggest that the killing in which he was a
participant was motivated by a political purpose. Moreover, the information filed
against appellant, based on sworn statements, did not contain any mention or allusion
as to the involvement of the NPA in the death of SPO3 Lucilo. 26 Even prosecution
eyewitness Nestor Armenta did not mention the NPA in his sworn statement of October
19, 1992. 27
As the record would show, allegations relating to appellant's membership in the NPA
surfaced almost merely as an afterthought, something which the defense merely picked
up and followed through upon prosecution eyewitness Armenta's testimony on crossexamination that he knew appellant to be a member of the NPA. Interestingly, however,
in the same testimony, Armenta admitted that he was "forced" to pinpoint appellant as
an NPA member.28 The logical result, of course, was that the trial court did not give any
weight and credence to said testimony. The trial court, after all, had the prerogative of
rejecting only a part of a witness' testimony while upholding the rest of it. 29 While
disbelieving the portion of Armenta's testimony on appellant's alleged membership in
the NPA, the trial court correctly gave credence to his unflawed narration about how
the crime was committed. 30 Such narration is even corroborated in its pertinent
portions, except as to the identity of the gun wielder, by the testimony of the appellant
himself.
In any case, appellant's claim regarding the political color attending the commission of
the crime being a matter of defense, its viability depends on his sole and unsupported
testimony. He testified that, upon the prodding of aliasAlwin and alias Samuel, he
joined
the
NPA
because
of
the
organization's
31
goals. He claimed that his two companions shot Lucilo because he "had offended our
As correctly observed by the Solicitor General, appellant's contentions are couched in

terms so general and non-specific 34 that they offer no explanation as to what
contribution the killing would have made towards the achievement of the NPA's
subversive aims. SPO3 Jesus Lucilo, a mere policeman, was never alleged to be an
informer. No acts of his were specifically shown to have offended the NPA. Against
appellant's attempts to shade his participation in the killing with a political color, the
evidence on record leaves the impression that appellant's bare allegations of
membership in the NPA was conveniently infused to mitigate the penalty imposable
upon him. It is of judicial notice that in many NPA infested areas, crimes have been alltoo-quickly attributed to the furtherance of an ideology or under the cloak of political
color for the purpose of mitigating the imposable penalty when in fact they are no more
than ordinary crimes perpetrated by common criminals. In Baylosis v. Chavez, Jr.,
Chief Justice Narvasa aptly observed:
The existence of rebellious groups in our society today, and of numerous bandits, or
irresponsible or deranged individuals, is a reality that cannot be ignored or belittled.
Their activities, the killings and acts of destruction and terrorism that they perpetrate,
unfortunately continue unabated despite the best efforts that the Government
authorities are exerting, although it may be true that the insurrectionist groups of the
right or the left no longer pose a genuine threat to the security of the state. The need for
more stringent laws and more rigorous law-enforcement, cannot be gainsaid. 35
In the absence of clear and satisfactory evidence pointing to a political motive for the
killing of SPO3 Jesus Lucilo, we are satisfied that the trial court correctly convicted
appellant of the crime of murder. 36 It is of no moment that a single eyewitness, Nestor
Armenta, sealed his fate, for it is settled that the testimony of one witness, if credible
and positive, is sufficient to convict. 37 Against appellant's claims that he acted merely
as a look-out, the testimony of one witness, his blood relative, free from any signs of
impropriety or falsehood, was sufficient to convict the accused. 38 Moreover, neither
may lack of motive be availing to exculpate the appellant. Lack or absence of motive
for committing a crime does not preclude conviction, there being a reliable eyewitness
who fully and satisfactorily identified appellant as the perpetrator of the felony. 39 In the
case at bench, the strength of the prosecution's case was furthermore bolstered by
accused-appellant's admission in open court that he and the eyewitness, his own uncle,
bore no grudges against each other. 40
Finally, treachery was adequately proved in the court below. The attack delivered by
appellant was sudden, and without warning of any kind. 41 The killing having been
qualified by treachery, the crime committed is murder under Art. 248 of the Revised
Penal Code. In the absence of any mitigating and aggravating circumstances, the trial
court was correct in imposing the penalty of reclusion perpetua together with all the
accessories provided by law.
WHEREFORE, PREMISES CONSIDERED, the trial court's decision dated September
14, 1993, sentencing the accused of Murder is hereby AFFIRMED, in toto.
SO ORDERED.
_________
EN BANC
G.R. No. 17748
March 4, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GRACIANO L. CABRERA, ET AL., defendants-appellants.
MALCOLM, J.:
As one outcome of the tumultous uprising of certain members of the Philippine
Constabulary to inflict revenge upon the police of the city of Manila, charges of
sedition were filed in the Court of First Instance of the city of Manila against the
participants in the public disturbance. Convicted in the trial court of a violation of Act
No. 292 of the Philippine Commission, and sentenced either to the maximum penalty
or a near approach to the maximum penalty provided by the punitive provisions of that
law, all of the defendants have perfected an appeal to this court. A statement of the case
and of the facts, an opinion on the pertinent issues, and a judgement, if no reversible
error be found, regarding the appropriate penalty, will be taken up in the order named.
STATEMENT OF THE CASE AND OF THE FACTS
On December 13, 1920, policemen of the city of Manila arrested a woman who was a
member of the household of a Constabulary soldier stationed at the Santa Lucia
Barracks in this city. The arrest of the woman was considered by some of the
Constabulary soldiers as an outrage committed by the policemen, and it instantly gave
rise to friction between members of Manila police department and member of the
Philippine Constabulary.
The next day, December 14, at about sunset, a policemen named Artemio Mojica,
posted on Calle Real, in the District of Intramuros, city of Manila, had an encounter
with various Constabulary soldiers which resulted in the shooting of private Macasinag
of the Constabulary. Private Macasinag was seriously, and as afterwards appeared,
mortally wounded.
The encounter between policemen Mojica and other companions of the Manila force
and private Macasinag and other companions of the Constabulary, with its grave
consequences for a Constabulary soldier endangered a deep feeling of resentment on
the part of the soldiers at Santa Lucia Barracks. This resentment was soon converted
into a desire for revenge against the police force of the city of Manila. The officers of
the Constabulary appear to have been aware of the state of excitement among the
soldiers the shooting of private Macasinag, Captain Page, the commanding officer of
the Barracks, increased the number of guards, and confined all the soldiers in the
Barracks.
During the afternoon of the next day, December 15, 1920, a rumor spread among the
soldiers in Santa Lucia Barracks to the effect that policeman Mojica was allowed to
continue on duty on the streets of Intramuros and that private Macasinag had died as a
consequence of the shot he received the night before. This rumor contributed in no
small degree in precipitating a movement for reprisal by the Constabulary soldiers
against the policemen.
At about 7 o'clock in the evening of the same day, December 15, 1920, corporal Ingles
of the Fourth Company approached private Nicolas Torio who was then the man in
charge of quarters, and asked him to let the soldiers out through the window of the
quarters of the Fourth Company. Private Torio was easily persuaded to permit private
Francisco Garcia of the Second Company to saw out the window bars of the quarters,
in his charge, and to allow soldiers to escape through the window with rifles and
ammunition under the command of their sergeants and corporals. When outside of the
quarters, these soldiers divided into groups for attack upon the city police force.
One platoon of Constabulary soldiers apparently numbering about ten or twelve, on
Calle Real, Intramuros, fired in the direction of the intersection of Calles Real and
Cabildo where an American policeman named Driskill was stationed, and was taking
with a friend named Jacumin, a field clerk in the United States Army. These two men
were shot and died soon afterwards. To the credit of policeman Driskill be it said, that
although in a dying condition and in the face of overwhelming odds, her valiantly
returned the fire with his revolver. Jacumin was killed notwithstanding that in response
to the command of Constabulary, "Hands up!," he elevated both arms.
A street car happened to stop at this time at the corner of Calles Real and Cabildo.
Without considering that the passengers in the car were innocent passersby, the
Constabulary squad fired a volley into the car, killing instantly the passenger named
Victor de Torres and gravely wounding three other civilian passengers, Gregorio
Cailes, Vicente Antonio, and Mariano Cortes. Father Jose Tahon, a priest of the
Cathedral of Manila, proved himself a hero on this occasion for, against the command
of the Constabulary, he persisted in persuading them to cease firing and advanced in
order that he might administer spiritual aid to those who had been wounded.
The firing on Calle Real did not end at that time. Some minutes later, Captain William
E. Wichman, assistant chief of police of the city of Manila, riding in a motorcycle
driven by policeman Saplala, arrived at the corner of Calles Real and Magallanes in
Intramuros, and a volley of shorts by Constabulary soldiers resulted in the
instantaneous death of Captain Wichman and the death shortly afterwards of patrolman
Saplala.
About the same time, a police patrol came from the Meisic police station. When it was
on Calle Real near Cabildo, in Intramuros, it was fired upon by Constabulary soldiers
who had stationed themselves in the courtyard of the San Agustin Church. This attack
resulted in the death of patrolmen Trogue and Sison.
Another platoon of the Constabulary, between thirty and forty in number, had in the
meantime, arranged themselves in a firing line on the Sunken Gradens on the east side
of Calle General Luna opposite the Aquarium. From this advantageous position the
Constabulary fired upon the motorcycle occupied by Sergeant Armada and driven by
policeman Policarpio who with companions were passing along Calle General Luna in
front of the Aquarium going in the direction, of Calle Real, Intramuros. As a result of
the shooting, the driver of the motorcycle, policeman Policarpio, was mortally
wounded. This same platoon of Constabulary soldiers fired several volleys
indiscriminately into the Luneta police station, and the office of the secret service of
the city of Manila across Calles General Luna and Padre Burgos, but fortunately no one
was injured.
General Rafael Crame, Chief of the Constabulary, and Captain Page, commanding
officer of the Santa Lucia Barracks, and other soldiers in the streets of Manila, and
other soldiers one after another returned to the Barracks where they were disarmed. No
list of the names of these soldiers was, however, made.
In the morning of the next day, December 16, 1920, Colonel, Lucien R. Sweet of the
Constabulary officers, and later by the fiscals of the city of Manila, commenced an
investigation of the events of the night before. He first ordered that all the soldiers in
Santa Lucia Barracks at that time, numbering some one hundred and eighty, be
assembled on the parade ground and when this was done, the soldiers were separated
into their respective companies. Then Colonel Sweet, speaking in English with the
assistance of Captain Silvino Gallardo, who interpreted his remarks into Tagalog, made
to all of the soldiers two statements.
What occurred on the occasion above described can best be told in the exact language
of Colonel Sweet: "I assembled all four companies in Santa Lucia Barracks and asked
them to tell me which ones had been out the night before and which ones had
participated in the shooting, which they did, and to tell me the names of those who
were with them and who were not then present, which they did. I think there were
seventy-two (seventy-three) present and they named five (four) others." Again the
witness said: "At first I asked all those who went out on the previous night for any
purpose whatever to signify the fact by stepping forward and gave them five minutes to
think it over before doing so. To those who stepped forward that had gone out for any
purpose whatever I asked those who took part in the shooting the night before that in
justice to themselves and to the other men who had not taken part in it, and for the
good of all concerned, that they step forward and they did." The names of the four who
took part (not five as stated by Colonel Sweet), but ho were taken to present, were
noted by Captain Gallardo.
The statements of the seventy-seven soldiers were taken in writing during the afternoon
of the same day, December 16. The questionnaire prepared by the fiscal of the city of
Manila was in English or Spanish. The questions and answers were, however, when
requested by the soldiers, translated not their dialects. Each statement was signed by
the soldier making it in the presence of either two or three witnesses.
Although the answers to the questions contained these statements vary in phraseology,
in substance they are the same. One of them, the first in numerical order, that of
Sergeant Graciano L. Cabrera, taken in Spanish and interpreted into Tagalog, may be
selected into Tagalog, may be selected as typical of the rest, and is here literally
transcribed:
1. Give your name, age, status, occupation, and residence. Graciano I. Cabrera, 254
years of age, single, sergeant of the first company of the General Service of the
Constabulary, residing in Santa Lucia Barracks.
2. To what company of the Philippine Constabulary do you belong? First Company,
General Service of the Constabulary.]
3. Where were you garrisoned
1920? In the Santa Lucia Barracks.
yesterday
afternoon
December
15,
4. Did you leave the barracks at about 7 o'clock yesterday evening? Yes, sir.
5. For what reason, and where did you go? We went in search of the policemen and
secret service men of Manila. It has been sometime now since we have been having
standing grudge against now since we have been having a standing grudge against the
police of Manila. The wife of one of our comrades was first arrested by the policemen
and then abused by the same; and not content with having abused her, they gave this
woman to an American; after this incident, they arrested two soldiers of the
Constabulary, falsely accusing them of keeping women of bad reputation; after this
incident, came the shooting of Macasinag, a shooting not justified, because we have
come to know that Macasinag did nothing and the policemen could have arrested him
if they desired. Moreover, the rumor spread among us that the police department of
Manila had given orders to the policemen to fire upon any Constabulary soldier they
found in the streets, and we believe that the rumor was not without foundation since we
noticed that after the Macasinag affair, the policemen of Manila, Contrary to the usual
practice, were armed with carbines or shotguns. For this reason we believe that if we
did not put an end to these abuses of the policemen and secret service men, they would
continue abusing the constabulary. And as an act of vengeance we did what we had
done last night.
6. How did you come to join your companions who rioted last night? I saw that
almost all the soldiers were jumping through the window and I was to be left alone in
the barracks and so I followed.
used; however, I placed in my pocket the twenty cartridges belonging to me and I must
have lost.
14. How did you manage to leave the barracks? By the window of the quarter of the
Fourth Company, through the grating which I found cut off.
15. Are the above statements made by you, voluntarily, freely, and spontaneously
given? Yes, sir.
16. Do you swear to said statements although no promise of immunity is made to you?
Yes, sir; I confirm them, being true.
(Sgd.) G. L. CABRERA.
7. Who asked you to join it? Nobody.
Witnesses:
8. Do you know private Crispin Macasinag, the one who was shot by the Manila police
the night before last on Calle Real? Yes, Sir, I know him because he was our
comrade.
S.
LAURO C. MARQUEZ.
9. Were you offended at the aggression made on the person of said soldier? Indeed,
yes, not only was I offended, but my companions also were.
The defendants were charged in one information filed in the Court of First Instance of
the City of Manila with the crime of sedition, and in another information filed in the
same, court, with the crimes of murder and serious physical injuries. The two cases
were tried separately before different judges of first instance.
10. State how many shots you fired, if nay, during the riot last night. I cannot tell
precisely the number of shots I fired because I was somewhat obfuscated; all I can
assure you is that I fired more than once.
11. Do you know if you hit any policeman or any other person?-If so state whether the
victim was a policeman or a civilian. I cannot tell whether I hit any policeman or
any civilian.
12. State the streets of the city where you fired shots. I cannot given an exact
account of the streets where I fired my gun. I had full possession of my faculties until I
reached Calle Victoria; afterwards, I became aware that I was bathed with perspiration
only upon reaching the barracks.
13. What arms were you carrying and how much ammunition or how many cartidge
did you use? I Carried a carbine; I cannot tell precisely the number of cartridges I
GALLARDO.
All of the accused, with the exception of eight, namely, Francisco Ingles, Juan
Noromor, P. E. Vallado., Dionisio Verdadero, and Paciano Caa, first pleased guilty to
the charge of sedition, but later, after the first witness for the prosecution had testified,
the accused who had pleaded guilty were permitted, with the consent of the court, to
substitute therefor the plea of not guilty. the prosecution, in making out it case,
presented the seventy-seven confession of the defendants, introduced in evidence as
Exhibits C to C-76, conclusive, and with the exception of those made by Daniel
Coralde, Nemesio Gamus, and Venancio Mira, all were identified by the respective
Constabulary officers, interpreters, and typists who intervened in taking them. The
prosecution further relied on oral testimony, including eyewitness to the uprising.
The attorneys for the accused presented two defenses. The first defense was in favor of
all the defendants and was based on the contention that the written statements Exhibits
C to C-76 were not freely and voluntarily made by them. The second defense was in
favor of the defendants Vicente Casimiro, Salvador Gregorio, Roberto Palabay,
Cipriano Lizardo, Ildefonso de la Cruz, Roque Ebol, Francisco Garcia, Benigno

Tagavilla, Paciano Caa, Juan Abarques, Genaro Elayda, Hilario Hibabar, P. E.
Vallado, Patricio Bello, Felix Liron, Bonifacio Eugenio, Nemesio Decea, Venancio
Mira, Baldomero Rodriguez, Juan Noromor, Maximo Perlas, and Victor Atuel, and was
to the effect these men did not take part in the riot.
Maximo Perlas, and Benigno Tagavilla, did not leave the Santa Lucia Barracks in the
night of the tragedy, is predicated on the special defense raised in the lower court for
these defendants and three other and which was found untenable by the trial court. Any
further discussion of this question falls more appropriately under consideration of
assignment of error No. 4, relating to the conspiracy between the accused.
The court overruled the special defenses and found that the guilt of the accused had
been proved beyond a reasonable doubt. All of the defendants were sentenced to serve
the maximum imprisonment of ten years provided by section 6 of Act No. 292. The
court, however, distinguished fines from that of a defendants Francisco Garcia, a
private and the eight corporals E. E. Agbulos, Francisco Ingles, Clemente Manigdeg,
Juan Abarques, Pedro V. Matero, Juan Regalado, Hilario Hibalar and Genaro Elayda,
upon each of whom a fine of P5,000 was imposed, and of the three sergeants Graciano
L. Cabrera, Pascual Magno, and Bonifacio Eugenio, upon each of whom a fine of
P10,000 was imposed. The costs were divided proportionately among the defendants.
Assignment of error No. 3, relating to the finding of the trial court that it had not been
shown that the policemen were not aware of the armed attack of the Constabulary,
However, we find that the evidence supports this conclusion of the trial court.
For the statement of the cases and the facts which has just been made, we are indebted
in large measure to the conspicuously fair and thoughtful decisions of the Honorable
George R. Harvey who presided in the sedition case and of the Honorable Carlos
Imperial who presided in the murder case. As stipulated by the Attorney-General and
counsel for the defendants, the proof is substantially the same in both cases.
1. The admission of exhibits C to C-76
In all material respects we agree with the findings of fact as made by the trial court in
this case. The rule is again applied that the Supreme Court will not interfere with the
judgement of the trial court in passing upon the credibility of the opposing witnesses,
unless there appears in the record some fact or circumstances of weight and influence
which has been overlooked or the significance of which has been misinterpreted. (U. S.
vs. Ambrosio and Falsario [1910], 17 Phil., 295; U. S. vs. Remegio [1918], 37 Phil.,
599.) In the record of the case at bar, no such fact or circumstance appears.
OPINION
An assignment of five errors is made by counsel for the defendants and appellants. Two
the assignment of error merit little or no consideration. Assignment of error No. 2
(finding its counterpart in assignments of error 5 and 6 in the murder case), in which it
is attempted to establish that Vicente Casimiro, Salvador Gregorio, Paciano Caa, Juan
Abarquez, Mariano Garcia, Felix Liron, Bonifacio Eugenio, Patricio Bello, Baldomero
Rodriguez, Roberto Palabay, Juan Noromor, Roque Ebol, Ildefonso de la Cruz,
Cipriano Lizardo, Francisco Garcia, Genaro Elayda, Hilario Hibalar, P. M. Vallado,
The three pertinent issues in this case relate to: (1) the Admission of Exhibits C to C-76
of the prosecution (assignment of error No. 2, murder case); (2) the conspiracy between
the accused (assignment of error No. 4, sedition case; assignment of error No. 3,
murder case); and (3) the conviction of the accused of a violation of the Treason and
Sedition Law (assignment of error No. 5, sedition case).
Appellants claim that fraud and deceit marked the preparation of the seventy seven
confessions. It is alleged that some of the defendants signed the confessions under the
impression that those who had taken part in the affray would be transferred to
Mindanao, and that although they did not in fact so participate, affirmed that they
because of a desire to leave Manila; that other stepped forward "for the good of the
service" in response to appeals from Colonel Sweet and other officers; while still others
simply didn't understand what they were doing, for the remarks of Colonel Sweet were
made in English and only translated into Tagalog, and their declarations were sometime
taken in al language which was unintelligible to them. Counsel for the accused entered
timely objection to the admission in evidence of Exhibits C to C-76, and the AttorneyGeneral is worn in stating otherwise.
Section 4 of Act No. 619, entitle "An Act to promote good order and discipline in the
Philippines Constabulary," and reading: "No confession of any person charged with
crime shall be received as evidence against him by any court of justice unless be first
shown to the satisfaction of the court that it was freely and voluntarily made and not
the result of violence, intimidation, threat, menace or of promises or offers of reward or
leniency," was repealed by the first Administrative Code. But the same rule of
jurisprudence continues without the law. As he been repeatedly announced by this and
other courts, "the true test of admissibility is that the confession is made freely,
voluntarily, and without compulsion or inducement of any sort". If the confession is
freely and voluntarily made, it constitutes one of the most effectual proofs in the law
against the party making it. (Wilson vs. U. S.[1896], 162 U. S. 613.)The burden of
proof that he confession was not voluntarily made or was obtained by undue pressure is
on the accused. (U. S. vs Zara [1912, 42 Phil., 308.)
What actually occurred when the confessions were prepared is clearly explained in the
records. The source of the rumor that the defendant would be transferred to Mindanao
if they signed the confession is not established. One the contrary it is established that
before the declaration were taken, Lieutenant Gatuslao in response to a query had
shown the improbability of such a transfer. With military orders given in English and
living in the city of Manila where the dialect is tagalog, all of the defendants must have
understood the substantial part of Colonel Sweet's remarks. What is more important,
there could be no misunderstanding as to the contents of the confessions as written
down. In open court, sixty-nine of the defendants reiterated their guilt. The officers
who assisted in the investigation were of the same service as the defendants in their
own men.
It must also be remembered that each and everyone of the defendants was a member of
the Insular Police force. Because of the very nature of their duties and because of their
practical experience, these Constabulary soldiers must have been aware of the penalties
meted out for criminal offenses. Every man on such a momentous occasion would be
more careful of his actions than ordinarily and whatever of credulity there is in him,
would for the moment be laid aside. Over and above all desire for a more exciting life,
over and above the so called esprit de corps, is the instinct of self preservation which
could not but be fully aroused by such stirring incidents too recent to be forgotten as
had occurred in this case, and which would counsel prudence rather than rashness;
secretiveness rather than garrulity.
These confessions contain the statements that they were made freely and voluntarily
without any promise of immunity. That such was the case was corroborated by the
attesting witnesses whose credibility has not been successfully impeached.
We rule that the trial court did not err in admitting Exhibits C to C-76 of the
prosecution.
2. The conspiracy between the accused
confession, "who asked you to join the riot," each of the accused answered, "Nobody."
The argument is then advanced that the appellants cannot be held criminally
responsible because of the so called psychology of crowds theory. In other words, it is
claimed that at the time of the commission of the crime the accused were mere
automatons obeying the insistent call of their companions and of their uniform. From
both the negative failure of evidence and the positive evidence, counsel could deduce
the absence of conspiracy between the accused.
The attorney-General answers the argument of counsel by saying that conspiracy under
section 5 of Act No. 292 is not an essential element of the crime of sedition. In this law
officer for the people may be on solid ground. However, this may be, there is a broader
conception of the case which reaches the same result.
It is a primary rule that if two or more persons combine to perform a criminal act, each
is responsible for all the acts of the other done in furtherance of the common design;
and " the result is the same if the act is divided into parts and each person proceed with
his part unaided." (U. S. vs Maza [1905], 5 Phils., 346; U. S. vs. Remegio [1918] 37
Phil., 599; decision of supreme court of Spain of September 29, 1883; People vs.
Mather [1830], 4 Wendell, 229.)
Conspiracies are generally proved by a number of indefinite acts, conditions, and
circumstances which vary according to the purposes to be accomplished. It be proved
that the defendants pursued by their acts the same object, one performing one part and
another part of the same, so as to complete it, with a view to the attainment of that
same object, one will be justified in the conclusion that they were engaged in a
conspiracy to effect that object. (5 R. C. L., 1088.) Applied to the facts before us, it is
incontestable that all of the defendants were imbued with the same purpose, which was
to avenge themselves on the police force of the city of Manila. A common feeling of
resentment animated all. A common plan evolved from their military training was
followed.
The effort to lead the court into the realm of psychology and metaphysics is unavailing
in the face of actualities. The existence of a joint assent may be reasonably inferred
from the facts proved. Not along are the men who fired the fatal shots responsible, not
along are the men who admit firing their carbines responsible, but all, having united to
further a common design of hate and vengeance, are responsible for the legal
consequences therefor.
The contention of the appellants is that evidence is lacking of any supposed connivance
between the accused. Counsel emphasizes that in answer to the question in the
We rule that the trail court did not err in declaring that there a c conspiracy between the
accused.
3. The conviction of the accused of a violation of the Treason and Sediton Law
Sedition, in its more general sense, is the raising of commotions or disturbances in the
State. The Philippine law on the subject (Act No. 292) makes all persons guilty of
sedition who rise publicly and tumultuously in order to obtain by force or outside of
legal methods any one of vie objects, including that of inflicting any act of hate or
revenge upon the person or property of any official or agent of the Insular Government
or of Provincial or Municipal Government. The trial court found that the crime of
sedition, as defined and punished by the law, had been committed, and we believe that
such finding is correct.
Counsel's contention that in order for there to be a violation of subdivision 3 of section
5 of Act No. 292 it is and necessary that the offender should be a private citizen and the
offended party a public functionary, and that what really happened in this instance was
a fight between two armed bodies of the Philippine Government, is absolutely without
foundation. Subdivison 3 of section 5 of the Treason and Sedition Law makes no
distinction between the persons to which it applies. In one scene there was a fights
between two armed bodies of the Philippine Government, but it was an unequal fight
brought on by the actions of the accused.
We rule that the trial court did not err in convicting the accused of the violation of
section 5, paragraph 3, of Act No. 292 of the Philippine Commission.
JUDGEMENT
The Treason and Sedition Law provides as a penalty for any person guilty of sedition
as defined in section 5 of the law, punishment by fine of not exceeding P10,000 or by
imprisonment not exceeding ten years, or both. In this connection, it will be recalled
that the court sentenced each of the private soldiers Salvador Gregorio, Juan Noromor,
Patricio Bello, Nemesio Decea, Baldomero Rodriguez, P. E. Vallado, Pedro Layola,
Felix Liron (Cenon), Dionisio Verdadero, Lorenzo Tumboc, Casiano Guinto, Victor
Atuel, Venancio Mira, Benigno Tagavilla, Masaway, Quintin Desierto, Teofilo Llana,
Timoteo Opermaria, Maximo Perlas, Cornelio Elizaga, Roberto Palabay, Roque Ebol,
Benito Garcia, Honorio Bautista, Crisanto Salgo, Francisco Lusano, Marcelino Silos,
Nicanor Perlas, Patricio Rubio, Mariano Aragon, Silvino Ayngco, Guillermo Inis,
Julian Andaya, Crispin Mesalucha, Prudencio Tasis, Silvino Bacani, Petronilo Antonio,
Domingo Peroche, Florentino Jacob, Paciano Caa, Domingo Canapi, Arcadio San
Pedro, Daniel Coralde, Nemesio Camas, Luis Borja, Severino Elefane, Vicente Tabien,
Marcos Marquez, Victorino Merto, Bernabe Sison, Eusebio Cerrudo, Julian Acantilado,
Ignacio Lechoncito, Pascual Dionio, Marcial Pelicia, Rafael Nafrada, Zacarias Bayle,
Cipriano Lizardo, Ildefonso de la Cruz, Juan Miranda, Graciano Zapata, Felisardo
Favinal, Gaspar Andrade, Felix Lamsing, and Vicente Casimiro, to suffer imprisonment
for ten years, and to pay one seventy-seventh part of the costs; the private Francisco
Garcia, who sawed the bars of the window through which the defendants passed from
Santa Lucia Barracks and each of the corporals E. E. Agbulos, Francisco Ingles,
Clemente Manigdeg, Juan Abarquez, Pedro V. Mateo, Juan Regalado, Hilario Hibalar
and Genaro Elayda, to suffer imprisonment for ten years and to pay a fine of P5,000
and one seventy-seventy of the costs; and each of the sergeants Graciano L. Cabrera,
Pascual Magno, and Bonifacio Eugenio, to suffer imprisonment for ten years and to
pay a fine of P10,000 and one seventy-seventy of the costs. The trial judge appears to
have made a reasonable exercise of the discretion which the law reposes in him.
We cannot bring to a close this disagreeable duty without making our own the pertinent
observations found in the decision of the trial court in this case. Therein, along toward
the closed of his learned opinion, Judge Harvey said:
Rarely in the history of criminality in this country has there been registered a crime so
villainous as that committed by these defendants. The court is only concerned in this
case with crime of sedition. The maximum penalty prescribed by Act No. 292,
imprisonment for ten year and a fine P10,000, is not really commensurate with the
enormity of the offense. Impelled by hatred, employing their knowledge of military
sciences which is worthy of a better cause, and in disregard of the consequences to
themselves and their innocent loved ones, and using the means furnished to them by
the Government for the protection of life and property, they sought by force and
violence and outside of legal methods to avenge a fancied wrong by an armed and
tumultuous attack upon officials and agents of the government of the city of Manila.
Although in view of the sentence which is being handed down in the murder case,
affecting these same defendants and appellants, it would seem to be a useless formality
to impose penalties in this case, yet it is obviously our duty to render judgement
appealed from, with one seventy-seventh of the costs of this instance against each
appellant. So ordered.
________
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NARCISO UMALI, ET AL., defendants.
NARCISO UMALI, EPIFANIO PASUMBAL and ISIDRO CAPINO, defendantsappellants.
MONTEMAYOR, J.:
Narciso Umali, Epifanio Pasumbal, and Isidro Capino are appealing directly to this
Tribunal from a decision of the Court of First Instance of Quezon province finding
them guilty of the complex crime of rebellion with multiple murder, frustrated murder,
arson and robbery, and sentencing each of them to "life imprisonment, other
accessories of the law, to indemnify jointly and severally Marcial Punsalan in the
amount of P24,023; Valentin Robles in the amount of P10,000; Yao Cabon in the
amount of P700; Claro Robles in the amount of P12,800; Pocho Guan in the amount of
P600; the heirs of Domingo Pisigan in the amount of P6,000; the heirs of Locadio
Untalan in the amount of P6,000; Patrolman Pedro Lacorte in the amount of P500;
Lazaro Ortega in the amount of P300; Hilarion Aselo in the amount of P300; Calixto
Rivano in the amount P50; Melecio Garcia in the amount of P60; and Juanito Lector in
the amount of P90, each to pay one fifteenth of the costs, without subsidiary
imprisonment in case of insolvency due to the nature of the principal penalty that is
imposed upon them."
The complex crime of which appellants were found guilty was said to have been
committed during the raid staged in the town of Tiaong, Quezon, between 8:00 and
9:00 in the evening of November 14, 1951, by armed men. It is not denied that such a
raid took place resulting in the burning down and complete destruction of the house of
Mayor Marcial Punzalan including its content valued at P24,023; the house of Valentin
Robles valued at P10,000, and the house of one Mortega, the death of Patrolman
Domingo Pisigan and civilians Vicente Soriano and Leocadio Untalan, and the
wounding of Patrolman Pedro Lacorte and five civilians; that during and after the
burning of the houses, some of the raiders engaged in looting, robbing one house and
two Chinese stories; and that the raiders were finally dispersed and driven from the
town by the Philippine Army soldiers stationed in the town led by Captain Alzate.
EN BANC
G.R. No. L-5803
November 29, 1954
To understand the reason for and object of the raid we have to go into the political
situation in Tiaong not only shortly before that raid but one year or two years before it.
Narciso Umali and Marcial Punzalan were old time friends and belonged to the same
political faction. In the general elections of 1947 Umali campaigned for Punzalan who
later was elected Mayor of Tiaong. In the elections of 1949 Punzalan in his turn
campaigned and worked for Narciso Umali resulting in the latter's election as
Congressman. However, these friendly relations between the two did not endure. In the
words of Punzalan, Narciso Umali who as Congressman regarded himself as the
political head and leader in that region including Tiaong, became jealous because of his
(Punzalan's) fast growing popularity among the people of Tiaong who looked to him
instead of Umali for political guidance, leadership, and favors. In time the strain in
their relations became such that they ceased to have any dealings with each other and
they even filed mutual accusations. According to Punzalan, in May 1950, Umali
induced about twenty-six special policemen of his (Punzalan's) to flee to the mountains
with their arms and join the Huks, this is in order to discredit Punzalan's
administration; that he was later able to contact two of his twenty-six policemen and
tried to persuade them to return to the town and to the service, but they told him that
they and their companions would not surrender except and with through the
intervention of Congressman Umali, and so Punzalan had to seek Umali's intervention
which resulted in the surrender of the 26 men with their firearms; that thereafter Umali
wanted to have their firearms, claiming that they all belonged to him from his guerrilla
days when he was a colonel, and that after liberation he had merely loaned them to the
municipal authorities of Tiaong to help keep peace and order; and that the refusal of
Punzalan to grant Umali's request further strained their relations, and thereafter Umali
would not speak to him even when they happened to meet at parties.
bitterly attacking Punzalan, accusing him of dishonesty, corruption in office, abuse of

power, etc. At one of those meetings he told the audience not to vote for Punzalan
because he would not be elected and that even if he won the election, he would not sit
for blood will flow, and that he (Umali) had already prepared a golden coffin for him
(Punzalan). After denying the charges, in retort, Punzalan would say that Umali as a
Congressman was useless, and that he did not even attend the sessions and that his
chair in Congress had gathered dust, even cobwebs.
To help in the Umali-Pasumbal campaign, Amado Mendoza who later was to play the
role of star witness for the prosecution, was drafted. He was a compadre of Pasumbal
and had some experience in political campaigns, and although he was not exactly a
model citizen, being sometimes given to drunkenness, still, he had the gift of speech
and persuasion. In various political meetings he delivered speeches for Pasumbal. He
was ever at the back and call of Umali and Pasumbal, and naturally he frequented the
latter's houses or headquarters. The result of the elections plainly showed that Punzalan
was the political master and leader in Tiaong. He beat Pasumbal by an overwhelming
majority of 2,221 votes. Naturally, Umali and Pasumbal were keenly disappointed, and
according to the evidence, adopted measures calculated to frustrate Punzalan's victory,
even as prophesied by Umali himself in one of his pre-election speeches about blood
flowing and gold coffin.
Then the elections of 1951 (November 13) approached and Punzalan ran for reelection.
To oppose him, and to clip his political wings and definitely blast his ambition for
continued power and influence in Tiaong, Umali picked Epifanio Pasumbal, his trusted
leader.
Going back to the raid staged in Tiaong on November 14, 1951, it is well to make a
short narration of the happenings shortly before it, established by the evidence, so as to
ascertain and be informed of the reason or purpose of said raid, the persons, behind it,
and those who took part in it. According to the testimony of Amado Mendoza, in the
morning of November 12th, that is, on the eve of the election, at the house of
Pasumbal's father, then being used as his electoral headquarters, he heard Umali
instruct Pasumbal to contact the Huks through Commander Abeng so that Punzalan
will be killed, Pasumbal complying with the order of his Chief (Umali) went to the
mountains which were quite near the town and held a conference with Commander
Abeng. It would seem that Umali and Pasumbal had a feeling that Punzalan was going
to win in the elections the next day, and that his death was the surest way to eliminate
him from the electoral fight.
The pre-election campaign and fight waged by both factions Punzalan and
Pasumbal, was intense and bitter, even ruthless. The election was to be a test of
political strength and would determine who was who in Tiaong, Umali or Punzalan.
Umali spoke at political meetings, extolling the virtues of Pasumbal and the benefits
and advantages that would accrue to the town if he was elected, at the same time
The conference between Pasumbal and Commander Abeng on November 12th was
witnessed and testified to by Nazario Anonuevo, a Huk who was under Commander
Abeng, and who later took an active part in the raid. In the evening of the same day,
Mendoza heard Pasumbal report to Umali about his conference with Commander
Abeng, saying that the latter was agreeable to the proposition and had even outlined the
On September 19, 1951, the Chief of Police of Punzalan disarmed four of Umali's men,
including his bodyguard Isidro Capino who were then charged with illegal possession
of firearms. Umali interceded for his men and Col. Gelveson, Provincial Commander,
sent a telegram stating that the firearms taken away from the men were licensed. As a
result the complaint was dismissed. This incident was naturally resented by Umali and
spurred him to have a showdown with Punzalan.
manner of attack, that the Huks would enter the town (Tiaong) under Commander
Lucio and Aladin, the latter to lead the sector towards the East; but that Commander
Abeng had suggested that the raid be postponed because Pasumbal may yet win the
election the following day, thereby rendering unnecessary the raid and the killing of
Punzalan.
Continuing with the testimony of Amado Mendoza, he told the court that as per
instructions of Umali he went to the house of the latter, in the evening of November
14th, the day following the election, with the result of the election already known,
namely, the decisive victory of Punzalan over Pasumbal. He was told by Umali to come
with him, and Pasumbal and the three boarded a jeep with Pasumbal at the wheel. They
drove toward the Tiaong Elementary School and once there he (Mendoza) was left at
the school premises with instructions by Umali to wait for Commander Abeng and the
Huks and point to them the house of Punzalan. After waiting for sometime, Abeng and
his troops numbering about fifty, armed with garands and carbines, arrived and after
explaining his identity and his mission to Abeng, he had led the dissidents or part of the
contingent in the direction of Punzalan's house and on arriving in front of the bodega of
Robles, he pointed out Punzalan's house and then walked toward his home, leaving the
Huks who proceeded to lie flat in a canal. Before reaching his house, he already heard
shots, so, he evacuated his family to their dugout in his yard. While doing so he and his
wife Catalina Tinapunan saw armed men in the lanzones grove just across the street
from their house, belonging to the father of Umali, and among those men they saw
Congressman Umali holding a revolver, in the company of Huk Commander Torio and
about 20 armed men. Afterwards they saw Umali and his companions leave in the
direction of Taguan, by way of the railroad tracks.
It would appear from the evidence that the raid was well-planned. As a diversionary
measure, part of the attacking force was deployed toward the camp or station of the
Army (part of 8th B.C.T.) in the suburbs and the camp was fired upon, not exactly to
destroy or drive out that Army unit but to keep it from going to the rescue and aid of
the main objective of the raid. The rest of the raiding party went toward Punzalan's
house and attacked it with automatic weapons, hand grenades, and even with bottles
filled with gasoline (popularly known as Molotov's cocktail). It was evident that the
purpose of the attack on Punzalan's house was to kill him. Fortunately, however, and
apparently unknown to the attackers and those who designed the raid, at six o'clock that
morning of November 14th Punzalan and his Chief of Police had left Tiaong to go to
Lucena, the capital, to report the results of the election to the Governor.
The attack on the house of Punzalan was witnessed and described by several persons,
including policemen who happened to be near the house. Policeman Tomas Maguare
who was in front of the house saw Epifanio Pasumbal, Isidro Umali (brother of
Congressman Umali) and Moises Escueta enter the gate of Punzalan's house and take
part in the firing. Policeman Pedro Lacorte who was stationed as guard at the gate of
Mayor Punzalan's house recognized defendant Isidro Capino as one of those firing at
the house. Lacorte said that he was guarding the house of Punzalan when he suddenly
heard shots coming from the sides of the house and going over to the place to
investigate, he saw armed men in fatigue and shouting "burn the house of Mayor
Punzalan"; that he was hit on the left check and later Isidro Capino threw at him a hand
grenade and he was hit in the right forearm and in the right eye and became
permanently blind in said eye. Mateo Galit, laundryman who was sitting inside a jeep
parked in front of the house of Punzalan recognized defendant Pasumbal as one of the
attackers who, once in the yard said ina loud voice as though addressing somebody in
the house "Pare, come down." Mrs. Punzalan who was then inside the house related to
the court that at about eight in the evening while she was resting she heard shots and
rapid firing. As a precaution she took her children to the bathroom. Then she noticed
that her house was being fired at because the glass window panes were being shattered
and she heard the explosion of a hand grenade inside the house, followed by flares in
the sala and burning of blankets and mosquito nets in the bedrooms and she noticed the
smell of smoke of gasoline. Realizing the great danger, she and the children ran out of
the house and went to hide in the house of a neighbor.
Nazario Aonuevo declared in court that he was a farmer and was picked up and seized
by Huk Commander Tommy sometime in August 1951, and was taken to Mt. Banahaw
in Laguna and mustered in the ranks of the Huks; that just before the elections of
November 13, 1951, he saw Pasumbal come to the mountains near Tiaong and talk to
Commander Abeng; that on November 14th by order of Commander Abeng he with
other Huks left Mt. Banahaw for Tiaong; that when they crossed the Osiw River
already near Tiaong, they were met by Pasumbal and Capino; that when they were at
the outskirts of the town, he and the party were told by Commander Tommy to attack
the 8th BCT camp in Tiaong to prevent the sending of army help to the town proper;
that he took part in firing on the camp which returned the fire in the course of which he
was wounded; and that because of his wound he could not escape with his companions
to the mountains when the Army soldiers dispersed and drove them out of the town and
so he was finally captured by said soldiers.
As to defendants Pasumbal and Capino, their participation in and responsibility for the
raid was duly established not only by the going of Pasumbal on November 12th to the
mountains following instructions of Umali, and conferring with Commander Abeng
asking him to raid Tiaong and kill Punzalan, but also by the fact that Pasumbal and
Capino in the afternoon or evening of November 14th met the Huks at the Osiw River
as the dissidents were on their way to Tiaong and later Pasumbal and Capino were seen
in the yard of Punzalan firing at the house with automatic weapons and hand grenades.
What about Umali? His criminal responsibility was also established, tho indirectly. We
have the testimony of Amado Mendoza who heard him instructing Pasumbal to contact
Commander Abeng and ask him to raid Tiaong and kill Punzalan. The rest of the
evidence is more or less circumstantial, but nonetheless strong and convincing. No one
saw him take part in the firing and attack on the house of Punzalan; nor was he seen
near or around said house. Because of his important position as Congressman,
perchance he did not wish to figure too prominently in the actual raid. Besides, he
would seem to have already given out all the instructions necessary and he could well
stay in the background. However, during the raid, not very far from Punzalan's house
he was seen in the lanzonesan of his father, holding a revolver and in the company of
about 20 armed men with Huk Commander Torio, evidently observing and waiting for
developments. Then he and his companions left in the direction of Taguan.
Umali and Pasumbal, however, claim that during the raid, they were in the home of
Pasumbal in Taguan, about seven kilometers away from Tiaong where a consolation
party was being held. There is ample evidence however to the effect that they arrived in
Pasumbal's home only around midnight. An Army soldier named Cabalona who
happened to be in Pasumbal's home arriving there earlier in the evening and who was
invited to take some refreshments said that he did not see the two men until they
arrived about midnight when the Army reinforcements from Lucena passed by on their
way to Tiaong. Thus, we have this chain of circumstances that does not speak in favor
of Umali, or Pasumbal for that matter. But this is not all. There is the rather strange and
unexplained, at least not satisfactorily, behaviour of Umali and Pasumbal that evening
of November 14th. Assuming for a moment as they claim, that the two were not in
Tiaong at the commencement of the raid between 8:00 and 9:00 p.m., and during the
whole time the raid lasted, and that they were all that time in the home of Pasumbal in
Taguan, still, according to their own evidence, they were informed by persons coming
or fleeing from Tiaong that there was a raid going on there, and that some houses were
burning. As a matter of fact, considering the promixity of Taguan to Tiaong, a distance
of about seven kilometers and the stillness and darkness of the night, the fire and the
glow produced by the burning of three houses and the noise produced by the firing of
automatic weapons and the explosion of the hand grenades and bottles of gasoline,
could and must have been seen and heard from Taguan. The natural and logical
reaction on the part of Umali and Pasumbal would have been to rush to Tiaong, see
what had really happened and then render help and give succor to the stricken
residents, including their own relatives. It will be remembered that the houses of the
fathers of Umali and Pasumbal were in Tiaong and their parents and relatives were
residing there. And yet, instead of following a natural impulse and urge to go to Tiaong,
they fled in the opposite direction towards Candelaria. And Umali instead of taking the
road, purposely avoided the same and preferred to hike through coconut groves so that
upon arriving in Candelaria, he was wet, and spattered and very tired. Had they wanted
to render any help to Tiaong they could have asked the police authorities of Candelaria
to send a rescue party to that town. Or better still, when the army reinforcements from
Lucena sent at the instance of Punzalan, who at about eight or nine that evening was
returning to Tiaong from Lucena, found at the barrio or sitio of Lusakan near Tiaong
that there was fighting in the town, he immediately returned to Lucena to get army
reinforcements to relieve his town, was passing by Taguan, where they were, Umali
and Pasumbal could have joined said reinforcements and gone to Tiaong. Instead the
two continued on their way to the capital (Lucena) where before dawn, they went and
contacted Provincial Fiscal Mayo, a first cousin of Umali, and Assistant Fiscal Reyes
and later had these two officials accompany them to the Army camp to see Col.
Gelveson, not for the purpose of asking for the sending of aid or reinforcement to
Tiaong but presumably to show to the prosecution officials, specially the Army
Commander that they (Umali and Pasumbal) had nothing to do whatsoever with the
raid. Umali said he was trying to avoid and keep clear of Tiaong because he might be
suspected of having had some connection with the raid and might be the object of
reprisal. As a matter of fact, according to Umali himself, while still in Taguan that
evening and before he went to Candelaria, somebody had informed him that Col.
Legaspi of the Army was looking for him. Instead of seeking Col. Legaspi and find out
what was wanted of him, he left in the opposite direction and fled to Candelaria and
later to Lucena, and the next day he took the train for Manila. This strange act and
behaviour of the two men, particularly Umali, all contrary to impulse and natural
reaction, and what other people would ordinarily have done under the circumstances,
prompted the trial court in its decision to repeat the old saying "The guilty man flees
even if no one pursues, but the innocent stands bold as a lion." We might just as well
reproduce that portion of the decision of the trial court, to wit:
. . . Considering the fact that Taguan is very near Tiaong so that even taking it for
granted as true, for the sake of argument, that the said accused were really at the party
of Pasumbal on the night in question, that would not prevent them from being in
Tiaong between 8 and 9. Besides, why was it that night the hasaglamp was replaced
with candles when the reinforcements passed through Taguan about midnight of
November 14, 1951. Why did Congressman Umali and company instead of going to
Tiaong which was the scene of the attack hurried towards Candelaria, after the
reinforcement has passed and went to the house of Felix Ona walking through a muddy
path under the coconut groves? Why was Umali afraid to pass through the provincial
road and preferred a muddy road instead? Was he trying to conceal himself? Why did
Pasumbal and company also go to the house of Ona? Why did they go to the house of
Felix Ona instead of going to the house of Manalo who could have given them better
protection? And again why did Congressman Umali and the other co-accused repaired
and sought the company of Fiscal Reyes in going at such an early hour to the Army
authorities, did they fear any reprisal? From whom? Why did Umali go to Manila from
Lucena on November 16, 1951? "The guilty man flees even if no one pursues, but the
innocent stands bold as a lion."
At first blush it would appear rather unbelievable that Umali and Pasumbal,
particularly the former should seek the aids of the Huks in order to put down and
eliminate their political enemy Punzalan. It would seem rather strange and anomalous
that a member of Congress should have friendly relations with this dissidents whom the
Government had been fighting all these years. But if we study the evidence, it will be
found that the reason and the explanation are there. As already stated, during the
Japanese occupation, to further the resistance movement, guerillas were organized in
different parts of the Philippines. One of these was the guerilla unit known as President
Quezon's Own Guerillas (PQOG) operating in the provinces of Tayabas (now Quezon)
and Laguna. Umali, Pasumbal, Commander Abeng and even Punzalan himself were
officers in this guerilla unit, Umali attaining the rank of colonel, and Pasumbal and
Punzalan that of Lieutenant-colonel, Pasumbal then being known as "Panzer". After
Liberation, Abeng joined the dissidents, and became a Huk Commander. It was not
unnatural that Umali and Pasumbal should continue their friendship and association
with Commander Abeng and seek his aid when convenient and necessary. Umali
admitted that he knew Huk Commander Kasilag. Graciano Ramos, one of the
witnesses of the prosecution told the court that way back in May 1950, in a barrio of
San Pablo City he saw Umali confer with Commander Kasilag, which Commander
after the conference told his soldiers including Ramos that Umali wanted the Huks to
raid Tiaong, burn the presidencia and kidnap Punzalan. Of course, the last part of the
testimony may be regarded as hearsay, but the fact is that Umali conferred with a Huk
commander as early as 1950. Then we have the fact that on November 18 of the same
year Punzalan wrote to President Quirino denouncing the congressman Umali for
fraternizing with the Huks and conducting a campaign among them in preparation for
the elections the following year. And we may also consider the fact that the town of
Tiaong stands at the foothills of Mt. Banahaw where the dissidents under Commander
Abeng, Tommy, Lucio, Aladin, and others had their hideout, so that it was not difficult
for residents of Tiaong like Umali and Pasumbal to communicate and even associate
with dissidents in that region.
After carefully considering all the evidence in the case, we are constrained to agree
with the trial court that the three appellants are guilty. Besides, the determination of this
case, in great measure, hinges on the credibility of witnesses. The learned trial court
which had the opportunity of observing the demeanor of witnesses on the stand and
gauging their sincerity and evaluating their testimony, decided the Government
witnesses, including Amado Mendoza, to be more credible and reliable. And we find
nothing in the record to warrant correction or reversal of the stand and finding of the
trial court on the matter. We have not overlooked the rather belated retraction of Amado
Mendoza made on October 31, 1952, about a year and 9 months after he testified in
court. Considering the circumstances surrounding the making of this affidavit or
retraction, the late date at which it was made, the reasons given by him for making it
and the fact that when he testified in court under the observation and scrutiny of the
trial court bearing in mind that he was the star witness for the prosecution and his
testimony naturally extremely important, and the trial court after the opportunity given
to it of observing his demeanor while on the witness stand had regarded him as a
witness, sincere, and his testimony truthful, and considering further the case with
which affidavits of retraction of this nature are obtained, we confess that we are not
impressed with such retraction of Mendoza.
The last point to be determined is the nature of the offense of offenses committed.
Appellants were charged with and convicted of the complex crime of rebellion with
multiple murder, frustrated murder, arson and robbery. Is there such a complex crime of
rebellion with multiple murder, etc? While the Solicitor General in his brief claims that
appellants are guilty of said complex crime and in support of his stand "asks for leave
to incorporate by reference" his previous arguments in opposing Umali's petition for
bail, counsel for appellants considered it unnecessary to discuss the existence or nonexistence of such complex crime, saying that the nature of the crime committed "is of
no moment to herein appellants because they had absolutely no part in it whatsoever".
For that present, and with respect to this particular case, we deem it unnecessary to
decide this important and controversial question, its consideration and determination to
another case or occasion more opportune, when it is more directly and squarely raised
and both parties given an opportunity to discuss and argue the question more
adequately and exhaustively. Considering that, assuming for the moment that there is
no such complex crime of rebellion with murder, etc., and that consequently appellants
could not have been legally charged with, much less convicted of said complex crime,
and the information should therefore, be regarded as having charged more than one
offense, contrary to Rule 106, section 12 and Rule 113, section 2 (e), of the Rules of
Court, but that appellants having interposed no objection thereto, they were properly
tried for and lawfully convicted if guilty of the several, separate crimes charged
therein, we have decided and we rule that the appellants may properly be convicted of
said several and separate crimes, as hereinafter specified. We feel particularly

supported and justified in this stand that we take, by the result of the case, namely, that
the prison sentence we impose does not exceed, except perhaps in actual duration, that
meted out by the Court below, which is life imprisonment.
We are convinced that the principal and main, tho not necessarily the most serious,
crime committed here was not rebellion but rather that of sedition. The purpose of the
raid and the act of the raiders in rising publicly and taking up arms was not exactly
against the Government and for the purpose of doing the things defined in Article 134
of the Revised Penal code under rebellion. The raiders did not even attack the
Presidencia, the seat of local Government. Rather, the object was to attain by means of
force, intimidation, etc. one object, to wit, to inflict an act of hate or revenge upon the
person or property of a public official, namely, Punzalan was then Mayor of Tiaong.
Under Article 139 of the same Code this was sufficient to constitute sedition. As
regards the crime of robbery with which appellants were charged and of which they
were convicted, we are also of the opinion that it was not one of the purposes of the
raid, which was mainly to kidnap or kill Punzalan and destroy his house. The robberies
were actually committed by only some of the raiders, presumably dissidents, as an
afterthought, because of the opportunity offered by the confusion and disorder resulting
from the shooting and the burning of the three houses, the articles being intended
presumably to replenish the supplies of the dissidents in the mountains. For these
robberies, only those who actually took part therein are responsible, and not the three
appellants herein. With respect to the crime of multiple frustrated murder, while the
assault upon policeman Pedro Lacorte with a hand grenade causing him injuries
resulting in his blindness in one eye, may be regarded as frustrated murder; the
wounding of Ortega, Anselo, Rivano, Garcia and Lector should be considered as mere
physical injuries. The crimes committed are, therefore, those of sedition, multiple
murder, arson, frustrated murder and physical injuries. The murders may not be
qualified by evident premeditation because the premedition was for the killing of
Punzalan. The result was the killing of three others intended by the raiders (People vs.
Guillen, 47 Off). The killing may, however, be qualified by treachery, the raiders using
firearms against which the victims were defenseless, with the aggravating circumstance
of abuse of superior strength. The three murders may be punished with the penalty of
death. However, because of lack of the necessary votes, the penalty should be life
imprisonment.
In conclusion, we find appellants guilty of sedition, multiple murder, arson, frustrated

murder and physical injuries. For the crime of sedition each of the appellants is
sentenced to 5 years of prision correctional and to pay a fine of P4,000; for each of the
three murders, each of the appellants is sentenced to life imprisonment and to
indemnify the heirs of each victim in the sum of P6,000; and for the arson, for which
we impose the maximum penalty provided in Article 321, paragraph 1, of the Revised
Penal Code, for the reason that the raiders in setting fire to the buildings, particularly
the house of Punzalan they knew that it was then occupied by one or more persons,
because they even and actually saw an old lady, the mother of Punzalan, at the window,
and in view of the aggravating circumstances of nighttime, each of the appellants is
sentenced to reclusion perpetua and to pay the indemnities mentioned in the decision
of the lower court. It shall be understood, however, the pursuant to the provisions of
Article 70 of the Revised Penal Code the duration of all penalties shall not exceed 40
years. In view of the heavy penalties already imposed and their long duration, we find
it unnecessary to fix and impose the prison sentences corresponding to frustrated
murder and physical injuries; however, the sums awarded the victims (Lacorte, Ortega,
Anselo, Rivano, Garcia and Lector), by the court below will stand. With these
modifications, the decision appealed from is hereby affirmed, with costs.
We deem it unnecessary to discuss the other points raised by the appellants in their
brief.
G.R. No. 171396
May 3, 2006
PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD LLAMAS, H.

HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S.
MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C.
BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-INCHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO
CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO
SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE
NATIONAL POLICE, Respondents.
x-------------------------------------x
G.R. No. 171409
May 3, 2006
NIEZ
CACHO-OLIVARES
AND
TRIBUNE
PUBLISHING
CO.,
INC., Petitioners,
vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE
DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485
May 3, 2006
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A.

CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO,
MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL.
GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA,
IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO,

ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA ANN P.
ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C.
REMULLA, FLORENCIO G. NOEL, ANA THERESIA HONTIVEROSBARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI
JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR
CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG, GENEROSO
SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF
PNP,Respondents.
x-------------------------------------x
G.R. No. 171483
May 3, 2006
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER

C. LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL
FEDERATION OF LABOR UNIONS KILUSANG MAYO UNO (NAFLUKMU), REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V.
USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN,Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE
HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF
OF STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA,
AND THE PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171400
May 3, 2006
ALTERNATIVE
LAW
GROUPS,
INC.
(ALG), Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO
SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO, Respondents.
G.R. No. 171489
May 3, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.

RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON
C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD
L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR OF THE
PHILIPPINES
(IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND
DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF,Respondents.
x-------------------------------------x
G.R. No. 171424
May 3, 2006
LOREN
B.
LEGARDA, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP);
GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA,
IN HIS CAPACITY AS EXECUTIVE SECRETARY, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula are
necessary.1 Superior strength the use of force cannot make wrongs into rights. In
this regard, the courts should be vigilant in safeguarding the constitutional rights of the
citizens, specifically their liberty.
Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant. He
said: "In cases involving liberty, the scales of justice should weigh heavily against
government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak." Laws and actions that restrict fundamental rights come to
the courts "with a heavy presumption against their constitutional validity."2
These seven (7) consolidated petitions for certiorari and prohibition allege that in
issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O.
No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion.
Petitioners contend that respondent officials of the Government, in their professed
efforts to defend and preserve democratic institutions, are actually trampling upon the
very freedom guaranteed and protected by the Constitution. Hence, such issuances are
void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How
does the Constitution of a free people combine the degree of liberty, without which, law
becomes tyranny, with the degree of law, without which, liberty becomes license?3
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa
People Power I, President Arroyo issued PP 1017 declaring a state of national
emergency, thus:
WHEREAS, the activities above-described, their consequences, ramifications and

collateral effects constitute aclear and present danger to the safety and the integrity of
the Philippine State and of the Filipino people;
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the

Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue
of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution
which states that: "The President. . . whenever it becomes necessary, . . . may call out
(the) armed forces to prevent or suppress. . .rebellion. . .," and in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms
of lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction; and as provided in Section 17, Article 12
of the Constitution do hereby declare a State of National Emergency.
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left represented by the NDF-CPPNPA and the extreme Right, represented by military adventurists the historical
enemies of the democratic Philippine State who are now in a tactical alliance and
engaged in a concerted and systematic conspiracy, over a broad front, to bring down
the duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by
certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State by obstructing
governance including hindering the growth of the economy and sabotaging the
peoples confidence in government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the
democratic Philippine State;
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left, represented by the NDF-CPP-NPA
and the extreme Right, represented by military adventurists - the historical enemies of
the democratic Philippine State and who are now in a tactical alliance and engaged in
a concerted and systematic conspiracy, over a broad front, to bring down the dulyconstituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican
government;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing
governance, including hindering the growth of the economy and sabotaging the
peoples confidence in the government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the democratic
Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications and
collateral effects constitute a clear and present danger to the safety and the integrity of
the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a
State of National Emergency;
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 the Republic of the Philippines, and pursuant

to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent
and suppress acts of terrorism and lawless violence in the country;
the armed forces. He emphasized that none of the petitioners has shown that PP 1017
was without factual bases. While he explained that it is not respondents task to state
the facts behind the questioned Proclamation, however, they are presenting the same,
narrated hereunder, for the elucidation of the issues.
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the
officers and men of the AFP and PNP, to immediately carry out the necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny
Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo
Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio,
Taguig City. In a public statement, they vowed to remain defiant and to elude arrest at
all costs. They called upon the people to "show and proclaim our displeasure at the
sham regime. Let us demonstrate our disgust, not only by going to the streets in protest,
but also by wearing red bands on our left arms." 5
On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP 1017. She
issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the
Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring a
state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006,
which were issued on the basis of Proclamation No. 1017, the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP), were directed to maintain
law and order throughout the Philippines, prevent and suppress all form of lawless
violence as well as any act of rebellion and to undertake such action as may be
necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the
acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines, by virtue of the powers vested in me by law,
hereby declare that the state of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated
that the proximate cause behind the executive issuances was the conspiracy among
some military officers, leftist insurgents of the New Peoples Army (NPA), and some
members of the political opposition in a plot to unseat or assassinate President
Arroyo.4 They considered the aim to oust or assassinate the President and take-over the
reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the
facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no
refutation from petitioners counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of calling out
On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle
I " which detailed plans for bombings and attacks during the Philippine Military
Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected
targets including some cabinet members and President Arroyo herself. 6 Upon the
advice of her security, President Arroyo decided not to attend the Alumni
Homecoming. The next day, at the height of the celebration, a bomb was found and
detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in
Batangas province. Found in his possession were two (2) flash disks containing
minutes of the meetings between members of the Magdalo Group and the National
Peoples Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies
of subversive documents.7 Prior to his arrest, Lt. San Juan announced through DZRH
that the "Magdalos D-Day would be on February 24, 2006, the 20th Anniversary of
Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
members of the PNP- Special Action Force were planning to defect. Thus, he
immediately ordered SAF Commanding General Marcelino Franco, Jr.
to "disavow" any defection. The latter promptly obeyed and issued a public statement:
"All SAF units are under the effective control of responsible and trustworthy officers
with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco, President
Cory Aquinos brother, businessmen and mid-level government officials plotted moves
to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported
that Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his
groups plans if President Arroyo is ousted. Saycon also phoned a man code-named
Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Armys elite
Scout Ranger. Lim said "it was all systems go for the planned movement against
Arroyo."8
students from any possible trouble that might break loose on the streets, the President
suspended classes in all levels in the entire National Capital Region.
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen.
Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a
huge number of soldiers would join the rallies to provide a critical mass and armed
component to the Anti-Arroyo protests to be held on February 24, 2005. According to
these two (2) officers, there was no way they could possibly stop the soldiers because
they too, were breaking the chain of command to join the forces foist to unseat the
President. However, Gen. Senga has remained faithful to his Commander-in-Chief and
to the chain of command. He immediately took custody of B/Gen. Lim and directed
Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.
For their part, petitioners cited the events that followed after the issuance of PP
1017 and G.O. No. 5.
Earlier, the CPP-NPA called for intensification of political and revolutionary work
within the military and the police establishments in order to forge alliances with its
members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: "The
Communist Party and revolutionary movement and the entire people look forward to
the possibility in the coming year of accomplishing its immediate task of bringing
down the Arroyo regime; of rendering it to weaken and unable to rule that it will not
take much longer to end it."9
On the other hand, Cesar Renerio, spokesman for the National Democratic Front
(NDF) at North Central Mindanao, publicly announced: "Anti-Arroyo groups within
the military and police are growing rapidly, hastened by the economic difficulties
suffered by the families of AFP officers and enlisted personnel who undertake counterinsurgency operations in the field." He claimed that with the forces of the national
democratic movement, the anti-Arroyo conservative political parties, coalitions, plus
the groups that have been reinforcing since June 2005, it is probable that the
Presidents ouster is nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and cell
sites in Bulacan and Bataan was also considered as additional factual basis for the
issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet
resulting in the death of three (3) soldiers. And also the directive of the Communist
Party of the Philippines ordering its front organizations to join 5,000 Metro Manila
radicals and 25,000 more from the provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security advisers and
several cabinet members to assess the gravity of the fermenting peace and order
situation. She directed both the AFP and the PNP to account for all their men and
ensure that the chain of command remains solid and undivided. To protect the young
Immediately, the Office of the President announced the cancellation of all programs
and activities related to the 20th anniversary celebration of Edsa People Power I; and
revoked the permits to hold rallies issued earlier by the local governments. Justice
Secretary Raul Gonzales stated that political rallies, which to the Presidents mind were
organized for purposes of destabilization, are cancelled.Presidential Chief of Staff
Michael Defensor announced that "warrantless arrests and take-over of facilities,
including media, can already be implemented."11
Undeterred by the announcements that rallies and public assemblies would not be
allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National
Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from
various parts of Metro Manila with the intention of converging at the EDSA shrine.
Those who were already near the EDSA site were violently dispersed by huge clusters
of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields,
water cannons, and tear gas to stop and break up the marching groups, and scatter the
massed participants. The same police action was used against the protesters marching
forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That
same evening, hundreds of riot policemen broke up an EDSA celebration rally held
along Ayala Avenue and Paseo de Roxas Street in Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for
the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant)
petitioner Randolf S. David, a professor at the University of the Philippines and
newspaper columnist. Also arrested was his companion, Ronald Llamas, president of
party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and
G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated
news stories by reporters, documents, pictures, and mock-ups of the Saturday issue.
Policemen from Camp Crame in Quezon City were stationed inside the editorial and
business offices of the newspaper; while policemen from the Manila Police District
were stationed outside the building.13
A few minutes after the search and seizure at the Daily Tribune offices, the police
surrounded the premises of another pro-opposition paper, Malaya, and its sister
publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show
a strong presence, to tell media outlets not to connive or do anything that would help
the rebels in bringing down this government." The PNP warned that it would take over
any media organization that would not follow "standards set by the government during
the state of national emergency." Director General Lomibao stated that "if they do not
follow the standards and the standards are - if they would contribute to instability in
the government, or if they do not subscribe to what is in General Order No. 5 and
Proc. No. 1017 we will recommend a takeover." National Telecommunications
Commissioner Ronald Solis urged television and radio networks to "cooperate" with
the government for the duration of the state of national emergency. He asked
for "balanced reporting" from broadcasters when covering the events surrounding the
coup attempt foiled by the government. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for media
coverage when the national security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while
leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated
1985. Beltrans lawyer explained that the warrant, which stemmed from a case of
inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran,
however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were
told they could not be admitted because of PP 1017 and G.O. No. 5. Two members
were arrested and detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after
him during a public forum at the Sulo Hotel in Quezon City. But his two drivers,
identified as Roel and Art, were taken into custody.
Retired Major General Ramon Montao, former head of the Philippine Constabulary,
was arrested while with his wife and golfmates at the Orchard Golf and Country Club
in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative
Rafael Mariano, Bayan Muna Representative Teodoro Casio and Gabriela
Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at
the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the
House of Representatives where the "Batasan 5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives
Beltran, Satur Ocampo,et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national
emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017
and G.O. No. 5 were filed with this Court against the above-named respondents. Three
(3) of these petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the
grounds that (1) it encroaches on the emergency powers of Congress; (2) itis a
subterfuge to avoid the constitutional requirements for the imposition of martial law;
and (3) it violates the constitutional guarantees of freedom of the press, of speech and
of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co.,
Inc. challenged the CIDGs act of raiding the Daily Tribune offices as a clear case of
"censorship" or "prior restraint." They also claimed that the term "emergency" refers
only to tsunami, typhoon, hurricane and similar occurrences, hence, there is
"absolutely no emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero,
and twenty one (21) other members of the House of Representatives, including
Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel
Virador. They asserted that PP 1017 and G.O. No. 5 constitute "usurpation of
legislative powers"; "violation of freedom of expression" and "a declaration of martial
law." They alleged that President Arroyo "gravely abused her discretion in calling out
the armed forces without clear and verifiable factual basis of the possibility of lawless
violence and a showing that there is necessity to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that
PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President
Arroyo the power to enact laws and decrees; (2) their issuance was without factual
basis; and (3) they violate freedom of expression and the right of the people to
peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP
1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 415 of Article
II, (b) Sections 1,16 2,17 and 418 of Article III, (c)Section 2319 of Article VI,
and (d) Section 1720 of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an
"arbitrary and unlawful exercise by the President of her Martial Law powers." And
assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued
that "it amounts to an exercise by the President of emergency powers without
congressional approval." In addition, petitioners asserted that PP 1017 "goes beyond
the nature and function of a proclamation as defined under the Revised Administrative
Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017
and G.O. No. 5 are "unconstitutional for being violative of the freedom of expression,
including its cognate rights such as freedom of the press and the right to access to
information on matters of public concern, all guaranteed under Article III, Section 4 of
the 1987 Constitution." In this regard, she stated that these issuances prevented her
from fully prosecuting her election protest pending before the Presidential Electoral
Tribunal.
In respondents Consolidated Comment, the Solicitor General countered that: first, the
petitions should be dismissed for being moot; second,petitioners in G.R. Nos. 171400
(ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489
(Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead
President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis;
and fifth, PP 1017 does not violate the peoples right to free expression and redress of
grievances.
First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the concept
of judicial review enunciated in Marbury v. Madison.21 This concept rests on the
extraordinary simple foundation -The Constitution is the supreme law. It was ordained by the people, the ultimate source
of all political authority. It confers limited powers on the national government. x x x If
the government consciously or unconsciously oversteps these limitations there
must be some authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve inviolate the will of
the people as expressed in the Constitution. This power the courts exercise. This is
the beginning and the end of the theory of judicial review.22
But the power of judicial review does not repose upon the courts a "self-starting
capacity."23 Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy;second, petitioners have to
raise a question of constitutionality; third, the constitutional question must be raised at
the earliest opportunity; and fourth, the decision of the constitutional question must be
necessary to the determination of the case itself.24
On March 7, 2006, the Court conducted oral arguments and heard the parties on the
above interlocking issues which may be summarized as follows:
Respondents maintain that the first and second requisites are absent, hence, we shall
limit our discussion thereon.
A. PROCEDURAL:
2) Whether
petitioners
in 171485 (Escudero et
al.), G.R.
Nos.
171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.), and 171424 (Legarda)
have legal standing.
An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is "definite and concrete, touching the legal
relations of parties having adverse legal interest;" a real and substantial controversy
admitting of specific relief.25 The Solicitor General refutes the existence of such actual
case or controversy, contending that the present petitions were rendered "moot and
academic" by President Arroyos issuance of PP 1021.
B. SUBSTANTIVE:
Such contention lacks merit.
1) Whetherthe Supreme Court can review the factual bases of PP 1017.
A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events,26 so that a declaration thereon would be of no practical
use or value.27 Generally, courts decline jurisdiction over such case 28 or dismiss it on
ground of mootness.29
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
The Court holds that President Arroyos issuance of PP 1021 did not render the present
petitions moot and academic. During the eight (8) days that PP 1017 was operative, the
police officers, according to petitioners, committed illegal acts in implementing it. Are
PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged
illegal acts? These are the vital issues that must be resolved in the present petitions. It
must be stressed that "an unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal contemplation,
inoperative."30
The "moot and academic" principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution; 31 second, the
exceptional character of the situation and the paramount public interest is
involved;32third, when constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; 33 and fourth, the case is capable
of repetition yet evading review.34
All the foregoing exceptions are present here and justify this Courts assumption of
jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017
and G.O. No. 5 violates the Constitution. There is no question that the issues being
raised affect the publics interest, involving as they do the peoples basic rights to
freedom of expression, of assembly and of the press. Moreover, the Court has the duty
to formulate guiding and controlling constitutional precepts, doctrines or rules. It has
the symbolic function of educating the bench and the bar, and in the present
petitions, the military and the police, on the extent of the protection given by
constitutional guarantees.35 And lastly, respondents contested actions are capable of
repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief
Justice Artemio V. Panganibans Separate Opinion in Sanlakas v. Executive
Secretary.36 However, they failed to take into account the Chief Justices very statement
that an otherwise "moot" case may still be decided "provided the party raising it in a
proper case has been and/or continues to be prejudiced or damaged as a direct result
of its issuance." The present case falls right within this exception to the mootness rule
pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it
imperative to have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a given
question."37 In private suits, standing is governed by the "real-parties-in interest" rule as
contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It
provides that "every action must be prosecuted or defended in the name of the real
party in interest." Accordingly, the "real-party-in interest" is "the party who stands
to be benefited or injured by the judgment in the suit or the party entitled to the
avails of the suit."38 Succinctly put, the plaintiffs standing is based on his own right to
the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who
asserts a "public right" in assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person who is affected no differently
from any other person. He could be suing as a "stranger," or in the category of a
"citizen," or taxpayer." In either case, he has to adequately show that he is entitled to
seek judicial protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in
public actions. The distinction was first laid down in Beauchamp v. Silk,39 where it was
held that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a
citizens suit. In the former, the plaintiff is affected by the expenditure of public
funds, while in the latter, he is but the mere instrument of the public concern. As
held by the New York Supreme Court in People ex rel Case v. Collins:40 "In matter of
mere public right, howeverthe people are the real partiesIt is at least the
right, if not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied." With
respect to taxpayers suits, Terr v. Jordan41 held that "the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of public
funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any
official policy or act with which he disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the United State Supreme Court laid
down the more stringent "direct injury" test in Ex Parte Levitt,42 later reaffirmed
inTileston v. Ullman.43 The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative action, he must
show that he has sustained a direct injury as a result of that action, and it is not
sufficient that he has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it
held that the person who impugns the validity of a statute must have " a personal and
substantial interest in the case such that he has sustained, or will sustain direct
injury as a result." The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate,45 Manila Race Horse Trainers Association v.
De la Fuente,46Pascual v. Secretary of Public Works 47 and Anti-Chinese League of the
Philippines v. Felix.48
However, being a mere procedural technicality, the requirement of locus standi may be
waived by the Court in the exercise of its discretion. This was done in the 1949
Emergency Powers Cases, Araneta v. Dinglasan,49 where the "transcendental
importance" of the cases prompted the Court to act liberally. Such liberality was
neither a rarity nor accidental. In Aquino v. Comelec,50 this Court resolved to pass upon
the issues raised due to the "far-reaching implications" of the petition notwithstanding
its categorical statement that petitioner therein had no personality to file the suit.
Indeed, there is a chain of cases where this liberal policy has been observed, allowing
ordinary citizens, members of Congress, and civic organizations to prosecute actions
involving the constitutionality or validity of laws, regulations and rulings. 51
Thus, the Court has adopted a rule that even where the petitioners have failed to show
direct injury, they have been allowed to sue under the principle of "transcendental
importance." Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of
the constitutional right to information and the equitable diffusion of natural
resources are matters of transcendental importance which clothe the petitioner
with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given the
transcendental importance of the issues involved, the Court may relax the
standing requirements and allow the suit to prosper despite the lack of direct
injury to the parties seeking judicial review" of the Visiting Forces Agreement;
(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of infringes
upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Courts attitude toward
legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a
peoples organization does not give it the requisite personality to question the validity
of the on-line lottery contract, more so where it does not raise any issue of
constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public
funds are being misused. Nor can it sue as a concerned citizen as it does not allege any
specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Comelec,57 the Court reiterated the "direct injury" test with respect to concerned
citizens cases involving constitutional issues. It held that "there must be a showing that
the citizen personally suffered some actual or threatened injury arising from the alleged
illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated
any injury to itself or to its leaders, members or supporters.
(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file
suit in their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the
exercise of Congress taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,55that in cases of transcendental importance, the
cases must be settled promptly and definitely and standing requirements may be
relaxed.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are
members of Congress have standing to sue, as they claim that the Presidents
declaration of a state of rebellion is a usurpation of the emergency powers of
Congress, thus impairing their legislative powers. As to petitioners Sanlakas,
Partido Manggagawa, and Social Justice Society, the Court declared them to be devoid
of standing, equating them with the LDP in Lacson.
By way of summary, the following rules may be culled from the cases decided by this
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing
to sue, provided that the following requirements are met:
Now, the application of the above principles to the present petitions.
(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that
the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the
election law in question;
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is
beyond doubt. The same holds true with petitioners in G.R. No. 171409, CachoOlivares and Tribune Publishing Co. Inc. They alleged "direct injury" resulting from
"illegal arrest" and "unlawful search" committed by police operatives pursuant to PP
1017. Rightly so, the Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of
legislative powers. They also raised the issue of whether or not the concurrence of
Congress is necessary whenever the alarming powers incident to Martial Law are used.
Moreover, it is in the interest of justice that those affected by PP 1017 can be
represented by their Congressmen in bringing to the attention of the Court the alleged
violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of
Agrarian
Reform,62 Basco
v.
Philippine
Amusement
and
Gaming
63
Corporation, and Taada v. Tuvera,64 that when the issue concerns a public right, it is
sufficient that the petitioner is a citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its right to
peaceful assembly may be deemed sufficient to give it legal standing. Organizations
may be granted standing to assert the rights of their members.65 We take judicial
notice of the announcement by the Office of the President banning all rallies and
canceling all permits for public assemblies following the issuance of PP 1017 and G.O.
No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed to allege
any direct or potential injury which the IBP as an institution or its members may suffer
as a consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of
the Philippines v. Zamora,66 the Court held that the mere invocation by the IBP of its
duty to preserve the rule of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. However, in view of the transcendental
importance of the issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant
petition as there are no allegations of illegal disbursement of public funds. The fact that
she is a former Senator is of no consequence. She can no longer sue as a legislator on
the allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and
G.O. No. 5. Her claim that she is a media personality will not likewise aid her because
there was no showing that the enforcement of these issuances prevented her from
pursuing her occupation. Her submission that she has pending electoral protest before
the Presidential Electoral Tribunal is likewise of no relevance. She has not sufficiently
shown that PP 1017 will affect the proceedings or result of her case. But considering
once more the transcendental importance of the issue involved, this Court may relax
the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to the
bigger question of proper exercise of judicial power. This is the underlying legal tenet
of the "liberality doctrine" on legal standing. It cannot be doubted that the validity of
PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to
the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now
waits with bated breath the ruling of this Court on this very critical matter. The
petitions thus call for the application of the "transcendental importance" doctrine, a
relaxation of the standing requirements for the petitioners in the "PP 1017
cases."1avvphil.net
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the
doctrine that the President, during his tenure of office or actual incumbency, 67 may not
be sued in any civil or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of the President, the
Head of State, if he can be dragged into court litigations while serving as such.
Furthermore, it is important that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of his official duties and
functions. Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the many great
and important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the
people68 but he may be removed from office only in the mode provided by law and that
is by impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary"
for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the Presidents exercise
of his Commander-in-Chief power has reached its distilled point - from the indulgent
days of Barcelon v. Baker70 and Montenegro v. Castaneda71 to the volatile era
of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tugof-war always cuts across the line defining "political questions," particularly those
questions "in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government." 75Barcelon and Montenegro were in
unison in declaring that the authority to decide whether an exigency has arisen
belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were
unanimous in the conviction that the Court has the authority to inquire into the
existence of factual bases in order to determine their constitutional sufficiency. From
the principle of separation of powers, it shifted the focus to the system of checks
and balances, "under which the President is supreme, x x x only if and when he
acts within the sphere allotted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial
Department, which in this respect, is, in turn, constitutionally supreme."76 In 1973,
the unanimous Court ofLansang was divided in Aquino v. Enrile.77 There, the Court
was almost evenly divided on the issue of whether the validity of the imposition of
Martial Law is a political or justiciable question. 78 Then came Garcia-Padilla v.
Enrilewhich greatly diluted Lansang. It declared that there is a need to re-examine the
latter case, ratiocinating that "in times of war or national emergency, the President
must be given absolute control for the very life of the nation and the government
is in great peril. The President, it intoned, is answerable only to his conscience, the
People, and God."79
The Integrated Bar of the Philippines v. Zamora 80 -- a recent case most pertinent to
these cases at bar -- echoed a principle similar to Lansang. While the Court considered
the Presidents "calling-out" power as a discretionary power solely vested in his
wisdom, it stressed that "this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it was
exercised in a manner constituting grave abuse of discretion."This ruling is mainly
a result of the Courts reliance on Section 1, Article VIII of 1987 Constitution which
fortifies the authority of the courts to determine in an appropriate action the validity of
the acts of the political departments. Under the new definition of judicial power, the
courts are authorized not only "to settle actual controversies involving rights which are
legally demandable and enforceable," but also "to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the government." The latter part of the
authority represents a broadening of judicial power to enable the courts of justice to
review what was before a forbidden territory, to wit, the discretion of the political
departments of the government.81 It speaks of judicial prerogative not only in terms
of power but also of duty.82
As to how the Court may inquire into the Presidents exercise of
power, Lansang adopted the test that "judicial inquiry can go no further than to satisfy
the Court not that the Presidents decision is correct," but that "the President did not
act arbitrarily." Thus, the standard laid down is not correctness, but
arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that "it is
incumbent upon the petitioner to show that the Presidents decision is totally
bereft of factual basis" and that if he fails, by way of proof, to support his assertion,
then "this Court cannot undertake an independent investigation beyond the
pleadings."
Petitioners failed to show that President Arroyos exercise of the calling-out power, by
issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor Generals
Consolidated Comment and Memorandum shows a detailed narration of the events
leading to the issuance of PP 1017, with supporting reports forming part of the records.
Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo
D-Day, the defections in the military, particularly in the Philippine Marines, and the
reproving statements from the communist leaders. There was also the Minutes of the
Intelligence Report and Security Group of the Philippine Army showing the growing
alliance between the NPA and the military. Petitioners presented nothing to refute such
events. Thus, absent any contrary allegations, the Court is convinced that the President
was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to
simply fold her arms and do nothing to prevent or suppress what she believed was
lawless violence, invasion or rebellion. However, the exercise of such power or duty
must not stifle liberty.
II.
Constitutionality
of
PP
1017
and
G.O.
Doctrines
of
Several
Political
on the Power of the President in Times of Emergency
No.
5
Theorists
This case brings to fore a contentious subject -- the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides
an adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English
doctrine of prerogative to cope with the problem of emergency. In times of danger to
the nation, positive law enacted by the legislature might be inadequate or even a fatal
obstacle to the promptness of action necessary to avert catastrophe. In these situations,
the Crown retained a prerogative "power to act according to discretion for the public
good, without the proscription of the law and sometimes even against it."84 But
Locke recognized that this moral restraint might not suffice to avoid abuse of
prerogative powers. Who shall judge the need for resorting to the prerogative and
how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting
that"the people have no other remedy in this, as in all other cases where they have
no judge on earth, but to appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic
processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them bring
about, at a time of crisis, the ruin of the State
It is wrong therefore to wish to make political institutions as strong as to render it

impossible to suspend their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the
laws and suspend for a moment the sovereign authority. In such a case, there is no
doubt about the general will, and it clear that the peoples first intention is that the State
shall not perish.86
Rosseau did not fear the abuse of the emergency dictatorship or "supreme
magistracy" as he termed it. For him, it would more likely be cheapened by "indiscreet
use." He was unwilling to rely upon an "appeal to heaven." Instead, he relied upon a
tenure of office of prescribed duration to avoid perpetuation of the dictatorship.87
John Stuart Mill concluded his ardent defense of representative government: "I am far
from condemning, in cases of extreme necessity, the assumption of absolute power
in the form of a temporary dictatorship."88
Nicollo Machiavellis view of emergency powers, as one element in the whole scheme
of limited government, furnished an ironic contrast to the Lockean theory of
prerogative. He recognized and attempted to bridge this chasm in democratic political
theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra
constitutional measures; for although they may for a time be beneficial, yet the
precedent is pernicious, for if the practice is once established for good objects, they
will in a little while be disregarded under that pretext but for evil purposes. Thus, no
republic will ever be perfect if she has not by law provided for everything, having a
remedy for every emergency and fixed rules for applying it.89
Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the
constitution a regularized system of standby emergency powers to be invoked with
suitable checks and controls in time of national danger. He attempted forthrightly to
meet the problem of combining a capacious reserve of power and speed and vigor in its
application in time of emergency, with effective constitutional restraints.90
Contemporary political theorists, addressing themselves to the problem of response to
emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship.91 Frederick M. Watkins saw "no reason why absolutism should not be
used as a means for the defense of liberal institutions," provided it "serves to
protect established institutions from the danger of permanent injury in a period of
temporary emergency and is followed by a prompt return to the previous forms of
political life."92 He recognized the two (2) key elements of the problem of emergency
governance, as well as all constitutional governance: increasing administrative

powers of the executive, while at the same time "imposing limitation upon that
power."93 Watkins placed his real faith in a scheme of constitutional dictatorship.
These are the conditions of success of such a dictatorship: "The period of
dictatorship must be relatively shortDictatorship should always be strictly
legitimate in characterFinal authority to determine the need for dictatorship in
any given case must never rest with the dictator himself"94 and the objective of
such an emergency dictatorship should be "strict political conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is a problem
of concentrating power in a government where power has consciously been divided
to cope with situations of unprecedented magnitude and gravity. There must be a
broad grant of powers, subject to equally strong limitations as to who shall exercise
such powers, when, for how long, and to what end."96 Friedrich, too, offered criteria for
judging the adequacy of any of scheme of emergency powers, to wit: "The emergency
executive must be appointed by constitutional means i.e., he must be legitimate;
he should not enjoy power to determine the existence of an emergency; emergency
powers should be exercised under a strict time limitation; and last, the objective of
emergency action must be the defense of the constitutional order."97
Clinton L. Rossiter, after surveying the history of the employment of emergency
powers in Great Britain, France, Weimar, Germany and the United States, reverted to a
description of a scheme of "constitutional dictatorship" as solution to the vexing
problems presented by emergency.98 Like Watkins and Friedrich, he stated a priori the
conditions of success of the "constitutional dictatorship," thus:
1) No general regime or particular institution of constitutional dictatorship should be
initiated unless it is necessary or even indispensable to the preservation of the State and
its constitutional order
2) the decision to institute a constitutional dictatorship should never be in the hands
of the man or men who will constitute the dictator
3) No government should initiate a constitutional dictatorship without making specific
provisions for its termination
4) all uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirements
5) no dictatorial institution should be adopted, no right invaded, no regular
procedure altered any more than is absolutely necessary for the conquest of the
particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship should

never be permanent in character or effect
7) The dictatorship should be carried on by persons representative of every part of the
citizenry interested in the defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken under a
constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to institute
one should never be in the hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the crisis
for which it was instituted
11) the termination of the crisis must be followed by a complete return as possible to
the political and governmental conditions existing prior to the initiation of the
constitutional dictatorship99
Rossiter accorded to legislature a far greater role in the oversight exercise of
emergency powers than did Watkins. He would secure to Congress final responsibility
for declaring the existence or termination of an emergency, and he places great faith in
the effectiveness of congressional investigating committees.100
Scott and Cotter, in analyzing the above contemporary theories in light of recent
experience, were one in saying that, "the suggestion that democracies surrender the
control of government to an authoritarian ruler in time of grave danger to the
nation is not based upon sound constitutional theory." To appraise emergency
power in terms of constitutional dictatorship serves merely to distort the problem and
hinder realistic analysis. It matters not whether the term "dictator" is used in its normal
sense (as applied to authoritarian rulers) or is employed to embrace all chief executives
administering emergency powers. However used, "constitutional dictatorship" cannot
be divorced from the implication of suspension of the processes of constitutionalism.
Thus, they favored instead the "concept of constitutionalism" articulated by Charles H.
McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of
emergency powers, and which is consistent with the findings of this study, is that
formulated by Charles H. McIlwain. While it does not by any means necessarily
exclude some indeterminate limitations upon the substantive powers of government,
full emphasis is placed upon procedural limitations, and political responsibility.
McIlwain clearly recognized the need to repose adequate power in government. And in
discussing the meaning of constitutionalism, he insisted that the historical and proper
test of constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the enfeebling

of government by an exaggerated emphasis upon separation of powers and substantive
limitations on governmental power. He found that the really effective checks on
despotism have consisted not in the weakening of government but, but rather in
the limiting of it; between which there is a great and very significant difference. In
associating constitutionalism with "limited" as distinguished from "weak"
government, McIlwain meant government limited to the orderly procedure of law
as opposed to the processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the legal limits
to arbitrary power and a complete political responsibility of government to the
governed.101
In the final analysis, the various approaches to emergency of the above political
theorists - from Locks "theory of prerogative," to Watkins doctrine of "constitutional
dictatorship" and, eventually, to McIlwains "principle of constitutionalism" --ultimately aim to solve one real problem in emergency governance, i.e., that of
allotting increasing areas of discretionary power to the Chief Executive, while
insuring that such powers will be exercised with a sense of political responsibility
and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a
repressive regime, the 1986 Constitutional Commission, in drafting the 1987
Constitution, endeavored to create a government in the concept of Justice Jacksons
"balanced power structure."102 Executive, legislative, and judicial powers are dispersed
to the President, the Congress, and the Supreme Court, respectively. Each is supreme
within its own sphere. But none has the monopoly of power in times of emergency.
Each branch is given a role to serve as limitation or check upon the other. This
system does not weaken the President, it just limits his power, using the language of
McIlwain. In other words, in times of emergency, our Constitution reasonably demands
that we repose a certain amount of faith in the basic integrity and wisdom of the Chief
Executive but, at the same time, it obliges him to operate within carefully prescribed
procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They
claim that its enforcement encroached on both unprotected and protected rights under
Section 4, Article III of the Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing
"on their faces" statutes infree speech cases, also known under the American Law as
First Amendment cases.103
A plain reading of PP 1017 shows that it is not primarily directed to speech or even
speech-related conduct. It is actually a call upon the AFP to prevent or suppress all
forms of lawless violence. In United States v. Salerno,104the US Supreme Court held
that "we have not recognized an overbreadth doctrine outside the limited context
of the First Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that
"reflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct." Undoubtedly, lawless violence, insurrection and
rebellion are considered "harmful" and "constitutionally unprotected conduct."
InBroadrick v. Oklahoma,105 it was held:
It remains a matter of no little difficulty to determine when a law may properly be
held void on its face and when such summary action is inappropriate. But the plain
import of our cases is, at the very least, that facial overbreadth adjudication is an
exception to our traditional rules of practice and that its function, a limited one at
the outset, attenuates as the otherwise unprotected behavior that it forbids the
State to sanction moves from pure speech toward conduct and that conduct
even if expressive falls within the scope of otherwise valid criminal laws that
reflect legitimate state interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by
their terms, seek to regulate only "spoken words" and again, that "overbreadth
claims, if entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct."106 Here, the
incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free
speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly strong medicine," to
be used "sparingly and only as a last resort," and is "generally disfavored;"107 The
reason for this is obvious. Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be applied will not be
heard to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the Court. 108 A writer
and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an
exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or

her; if the litigant prevails, the courts carve away the unconstitutional aspects of
the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third
parties and can only assert their own interests. In overbreadth analysis, those
rules give way; challenges are permitted to raise the rights of third parties; and the
court invalidates the entire statute "on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third
parties not courageous enough to bring suit. The Court assumes that an overbroad laws
"very existence may cause others not before the court to refrain from constitutionally
protected speech or expression." An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court
to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual
operation to petitioners, but on the assumption or prediction that its very existence may
cause others not before the Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris,109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above
all the speculative and amorphous nature of the required line-by-line analysis of
detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish that there can be
no instance when the assailed law may be valid. Here, petitioners did not even
attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This,
too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds
that "a law is facially invalid if men of common intelligence must necessarily guess
at its meaning and differ as to its application."110 It is subject to the same principles
governing overbreadth doctrine. For one, it is also an analytical tool for testing "on
their faces" statutes in free speech cases. And like overbreadth, it is said that a litigant
may challenge a statute on its face only if it is vague in all its possible applications.
Again, petitioners did not even attempt to show that PP 1017 is vague in all its
application. They also failed to establish that men of common intelligence cannot
understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
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.
First provision:
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.
"by virtue of the power vested upon me by Section 18, Artilce VII do hereby
command the Armed Forces of the Philippines, to maintain law and order throughout
the Philippines, prevent or suppress all forms of lawless violence as well any act of
insurrection or rebellion"
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.
Second provision:
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.
The operative portion of PP 1017 may be divided into three important provisions, thus:
"and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a State of
National Emergency."
First Provision: Calling-out Power
The first provision pertains to the Presidents calling-out power. In Sanlakas v.
Executive Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that Section
18, Article VII of the Constitution reproduced as follows:
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
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.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From
the most to the least benign, these are: the calling-out power, the power to suspend the
privilege of the writ of habeas corpus, and the power to declare Martial Law.
Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled that the only
criterion for the exercise of the calling-out power is that "whenever it becomes
necessary," the President may call the armed forces "to prevent or suppress lawless
violence, invasion or rebellion." Are these conditions present in the instant cases? As
stated earlier, considering the circumstances then prevailing, President Arroyo found it
necessary to issue PP 1017. Owing to her Offices vast intelligence network, she is in
the best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police
action. But every act that goes beyond the Presidents calling-out power is considered
illegal or ultra vires. For this reason, a President must be careful in the exercise of his
powers. He cannot invoke a greater power when he wishes to act under a lesser power.
There lies the wisdom of our Constitution, the greater the power, the greater are the
limitations.
It is pertinent to state, however, that there is a distinction between the Presidents
authority to declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a
state of national emergency. While President Arroyos authority to declare a "state of

rebellion" emanates from her powers as Chief Executive, the statutory authority cited
in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of
1987, which provides:
SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order.
President Arroyos declaration of a "state of rebellion" was merely an act declaring a
status or condition of public moment or interest, a declaration allowed under Section 4
cited above. Such declaration, in the words ofSanlakas, is harmless, without legal
significance, and deemed not written. In these cases, PP 1017 is more than that. In
declaring a state of national emergency, President Arroyo did not only rely on Section
18, Article VII of the Constitution, a provision calling on the AFP to prevent or
suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article
XII, a provision on the States extraordinary power to take over privately-owned public
utility and business affected with public interest. Indeed, PP 1017 calls for the exercise
of an awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of
Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is
plain therein that what the President invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military power has
been called upon by the executive to assist in the maintenance of law and order, and
that, while the emergency lasts, they must, upon pain of arrest and punishment, not
commit any acts which will in any way render more difficult the restoration of order
and the enforcement of law."113
In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr.
Justice Vicente V. Mendoza,114an authority in constitutional law, said that of the three
powers of the President as Commander-in-Chief, the power to declare Martial Law
poses the most severe threat to civil liberties. It is a strong medicine which should not
be resorted to lightly. It cannot be used to stifle or persecute critics of the government.
It is placed in the keeping of the President for the purpose of enabling him to secure the
people from harm and to restore order so that they can enjoy their individual freedoms.
In fact, Section 18, Art. VII, provides:
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.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no
more than a call by the President to the armed forces to prevent or suppress lawless
violence. As such, it cannot be used to justify acts that only under a valid declaration of
Martial Law can be done. Its use for any other purpose is a perversion of its nature and
scope, and any act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and
press censorship; and (d) issuance of Presidential Decrees, are powers which can be
exercised by the President as Commander-in-Chief only where there is a valid
declaration of Martial Law or suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial
Law. It is merely an exercise of President Arroyos calling-out power for the armed
forces to assist her in preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that the laws be
faithfully executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested, 115 the primary function of the
President is to enforce the laws as well as to formulate policies to be embodied in
existing laws. He sees to it that all laws are enforced by the officials and employees of
his department. Before assuming office, he is required to take an oath or affirmation to
the effect that as President of the Philippines, he will, among others, "execute its
laws."116 In the exercise of such function, the President, if needed, may employ the
powers attached to his office as the Commander-in-Chief of all the armed forces of the
country,117 including the Philippine National Police118 under the Department of Interior
and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo,
Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue that PP 1017 is
unconstitutional as it arrogated upon President Arroyo the power to enact laws and
decrees in violation of Section 1, Article VI of the Constitution, which vests the power
to enact laws in Congress. They assail the clause "to enforce obedience to all the laws
and to all decrees, orders and regulations promulgated by me personally or upon
my direction."
\
Petitioners contention is understandable. A reading of PP 1017 operative clause shows
that it was lifted120 from Former President Marcos Proclamation No. 1081, which
partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines
by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1 of
the Constitution under martial law and, in my capacity as their Commander-inChief, do hereby command the Armed Forces of the Philippines, to maintain law
and order throughout the Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion and to enforce obedience to
all the laws and decrees, orders and regulations promulgated by me personally or
upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its
enabling clause states: "to enforce obedience to all the laws and decrees, orders and
regulations promulgated by me personally or upon my direction." Upon the other
hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees x x
x promulgated by me personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of Executive
Order No. 292 (Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to particular aspect
of governmental operations in pursuance of his duties as administrative head shall be
promulgated in administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters of administrative

detail or of subordinate or temporary interest which only concern a particular officer or
office of the Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters relating to internal
administration, which the President desires to bring to the attention of all or some of
the departments, agencies, bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be issued
as general or special orders.
President Arroyos ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081.
Presidential Decrees are laws which are of the same category and binding force as
statutes because they were issued by the President in the exercise of his legislative
power during the period of Martial Law under the 1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants
President Arroyo the authority to promulgate "decrees." Legislative power is
peculiarly within the province of the Legislature. Section 1, Article VI categorically
states that "[t]he legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives." To be sure, neither
Martial Law nor a state of rebellion nor a state of emergency can justify President
Arroyos exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It
follows that these decrees are void and, therefore, cannot be enforced. With respect to
"laws," she cannot call the military to enforce or implement certain laws, such as
customs laws, laws governing family and property relations, laws on obligations and
contracts and the like. She can only order the military, under PP 1017, to enforce laws
pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17,
Article XII of the Constitution do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of national
emergency under PP 1017, can call the military not only to enforce obedience "to all
the laws and to all decrees x x x" but also to act pursuant to the provision of Section 17,
Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the State
may, during the emergency and under reasonable terms prescribed by it, temporarily
take over or direct the operation of any privately-owned public utility or business
affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when
she issued PP 1017?
The answer is simple. During the existence of the state of national emergency, PP 1017
purports to grant the President, without any authority or delegation from Congress, to
take over or direct the operation of any privately-owned public utility or business
affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the
"martial law" thinking of the 1971 Constitutional Convention. 122 In effect at the time of
its approval was President Marcos Letter of Instruction No. 2 dated September 22,
1972 instructing the Secretary of National Defense to take over "the management,
control and operation of the Manila Electric Company, the Philippine Long Distance
Telephone Company, the National Waterworks and Sewerage Authority, the Philippine
National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient
Airways . . . for the successful prosecution by the Government of its effort to contain,
solve and end the present national emergency."
Petitioners, particularly the members of the House of Representatives, claim that
President Arroyos inclusion of Section 17, Article XII in PP 1017 is an encroachment
on the legislatures emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the Presidents authority to declare "a state of
national emergency" and toexercise emergency powers. To the first, as elucidated by
the Court, Section 18, Article VII grants the President such power, hence, no legitimate
constitutional objection can be raised. But to the second, manifold constitutional issues
arise.
(2) In times of war or other national emergency, the Congress may, by law, authorize
the President, for a limited period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such powers shall cease upon the next
adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only
to war but also to "other national emergency." If the intention of the Framers of our
Constitution was to withhold from the President the authority to declare a "state of
national emergency" pursuant to Section 18, Article VII (calling-out power) and grant
it to Congress (like the declaration of the existence of a state of war), then the Framers
could have provided so. Clearly, they did not intend that Congress should first
authorize the President before he can declare a "state of national emergency." The
logical conclusion then is that President Arroyo could validly declare the existence of a
state of national emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned
public utility or business affected with public interest, is a different matter. This
requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be construed
together. Otherwise stated, different clauses, sections, and provisions of a constitution
which relate to the same subject matter will be construed together and considered in the
light of each other.123 Considering that Section 17 of Article XII and Section 23 of
Article VI, previously quoted, relate to national emergencies, they must be read
together to determine the limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the
tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the
President. Certainly, a body cannot delegate a power not reposed upon it. However,
knowing that during grave emergencies, it may not be possible or practicable for
Congress to meet and exercise its powers, the Framers of our Constitution deemed it
wise to allow Congress to grant emergency powers to the President, subject to certain
conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
Section 23, Article VI of the Constitution reads:
(3) The delegation must be subject to such restrictions as the Congress may
prescribe.
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the existence of a
state of war.
(4) The emergency powers must be exercised to carry out a national policy declared
by Congress.124
Section 17, Article XII must be understood as an aspect of the emergency powers
clause. The taking over of private business affected with public interest is just another
facet of the emergency powers generally reposed upon Congress. Thus, when Section
17 states that the "the State may, during the emergency and under reasonable
terms prescribed by it, temporarily take over or direct the operation of any
privately owned public utility or business affected with public interest," it refers to
Congress, not the President. Now, whether or not the President may exercise such
power is dependent on whether Congress may delegate it to him pursuant to a law
prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v.
Sawyer,125held:
It is clear that if the President had authority to issue the order he did, it must be found
in some provision of the Constitution. And it is not claimed that express constitutional
language grants this power to the President. The contention is that presidential power
should be implied from the aggregate of his powers under the Constitution. Particular
reliance is placed on provisions in Article II which say that "The executive Power shall
be vested in a President . . . .;" that "he shall take Care that the Laws be faithfully
executed;" and that he "shall be Commander-in-Chief of the Army and Navy of the
United States.
The order cannot properly be sustained as an exercise of the Presidents military power
as Commander-in-Chief of the Armed Forces. The Government attempts to do so by
citing a number of cases upholding broad powers in military commanders engaged in
day-to-day fighting in a theater of war. Such cases need not concern us here.Even
though "theater of war" be an expanding concept, we cannot with faithfulness to
our constitutional system hold that the Commander-in-Chief of the Armed Forces
has the ultimate power as such to take possession of private property in order to
keep labor disputes from stopping production. This is a job for the nations
lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional
provisions that grant executive power to the President. In the framework of our
Constitution, the Presidents power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker. The Constitution limits his functions
in the lawmaking process to the recommending of laws he thinks wise and the
vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal
about who shall make laws which the President is to execute. The first section of
the first article says that "All legislative Powers herein granted shall be vested in a
Congress of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17,
Article XII refers to "tsunami," "typhoon," "hurricane"and"similar
occurrences." This is a limited view of "emergency."
Emergency, as a generic term, connotes the existence of conditions suddenly
intensifying the degree of existing danger to life or well-being beyond that which is
accepted as normal. Implicit in this definitions are the elements of intensity, variety,
and perception.127 Emergencies, as perceived by legislature or executive in the United
Sates since 1933, have been occasioned by a wide range of situations, classifiable
under three (3) principal heads: a)economic,128 b) natural disaster,129 and c) national
security.130
"Emergency," as contemplated in our Constitution, is of the same breadth. It may
include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other
similar catastrophe of nationwide proportions or effect. 131This is evident in the Records
of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committees definition of "national emergency"
which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the
operation of any privately owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat
example, calamities or natural disasters.
from external
aggression, for
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes
and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national
emergency."
MR. BENGZON. Unless they are of such proportions such that they would paralyze
government service.132
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency" refers to military
national emergency or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress may not be able to
convene and, therefore, unable to delegate to the President the power to take over
privately-owned public utility or business affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which
extraordinary measures are exercised, remains in Congress even in times of crisis.
"x x x
After all the criticisms that have been made against the efficiency of the system of the
separation of powers, the fact remains that the Constitution has set up this form of
government, with all its defects and shortcomings, in preference to the commingling of
powers in one man or group of men. The Filipino people by adopting parliamentary
government have given notice that they share the faith of other democracy-loving
peoples in this system, with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for Congress all the time, not
excepting periods of crisis no matter how serious. Never in the history of the United
States, the basic features of whose Constitution have been copied in ours, have specific
functions of the legislative branch of enacting laws been surrendered to another
department unless we regard as legislating the carrying out of a legislative policy
according to prescribed standards; no, not even when that Republic was fighting a total
war, or when it was engaged in a life-and-death struggle to preserve the Union. The
truth is that under our concept of constitutional government, in times of extreme perils
more than in normal circumstances the various branches, executive, legislative, and
judicial, given the ability to act, are called upon to perform the duties and discharge
the responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in
issuing PP 1017, this Court rules that such Proclamation does not authorize her during
the emergency to temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national
emergency, however, without legislation, he has no power to take over privately-owned
public utility or business affected with public interest. The President cannot decide
whether exceptional circumstances exist warranting the take over of privately-owned
public utility or business affected with public interest. Nor can he determine when such
exceptional circumstances have ceased. Likewise, without legislation, the President
has no power to point out the types of businesses affected with public interest that
should be taken over. In short, the President has no absolute authority to exercise all the
powers of the State under Section 17, Article VII in the absence of an emergency
powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to security, is
that military necessity and the guaranteed rights of the individual are often not
compatible. Our history reveals that in the crucible of conflict, many rights are
curtailed and trampled upon. Here, the right against unreasonable search and
seizure; the right against warrantless arrest; and the freedom of speech, of
expression, of the press, and of assembly under the Bill of Rights suffered the
greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006,
they were arrested without warrants on their way to EDSA to celebrate the 20th
Anniversary of People Power I. The arresting officers cited PP 1017 as basis of the
arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc.
claimed that on February 25, 2006, the CIDG operatives "raided and ransacked without
warrant" their office. Three policemen were assigned to guard their office as a possible
"source of destabilization." Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their
members were "turned away and dispersed" when they went to EDSA and later, to
Ayala Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that
they resulted from theimplementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of
these illegal acts? In general,does the illegal implementation of a law render it
unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they
may be abused and misabused135 and may afford an opportunity for abuse in the
manner of application.136 The validity of a statute or ordinance is to be determined
from its general purpose and its efficiency to accomplish the end desired,not from its
effects in a particular case.137 PP 1017 is merely an invocation of the Presidents
calling-out power. Its general purpose is to command the AFP to suppress all forms of
lawless violence, invasion or rebellion. It had accomplished the end desired which
prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing
the police, expressly or impliedly, to conduct illegal arrest, search or violate the
citizens constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the
validity of the statute or ordinance is to be measured is the essential basis for the
exercise of power, and not a mere incidental result arising from its exertion.138This
is logical. Just imagine the absurdity of situations when laws maybe declared
unconstitutional just because the officers implementing them have acted arbitrarily. If
this were so, judging from the blunders committed by policemen in the cases passed
upon by the Court, majority of the provisions of the Revised Penal Code would have
been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017.
General orders are "acts and commands of the President in his capacity as Commanderin-Chief of the Armed Forces of the Philippines." They are internal rules issued by the
executive
officer
to
his
subordinates
precisely
for
the proper and efficientadministration of law. Such rules and regulations create no
relation except between the official who issues them and the official who receives
them.139 They are based on and are the product of, a relationship in which power is their
source, and obedience, their object.140 For these reasons, one requirement for these
rules to be valid is that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary
and appropriate actions and measures to suppress and prevent acts of terrorism
and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with "invasion, insurrection or
rebellion," the phrase "acts of terrorism" is still an amorphous and vague concept.
Congress has yet to enact a law defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of
terrorism" confronts not only our country, but the international community as well. The
following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against terrorism" has
become one of the basic slogans when it comes to the justification of the use of force
against certain states and against groups operating internationally. Lists of states
"sponsoring terrorism" and of terrorist organizations are set up and constantly being
updated according to criteria that are not always known to the public, but are clearly
determined by strategic interests.
The basic problem underlying all these military actions or threats of the use of force
as the most recent by the United States against Iraq consists in the absence of an
agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence
either by states, by armed groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying "One countrys terrorist is another
countrys freedom fighter." The apparent contradiction or lack of consistency in the use
of the term "terrorism" may further be demonstrated by the historical fact that leaders
of national liberation movements such as Nelson Mandela in South Africa, Habib
Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were
originally labeled as terrorists by those who controlled the territory at the time, but later
became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts the differentia
specifica distinguishing those acts from eventually legitimate acts of national resistance
or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in
vain to reach a consensus on the basic issue of definition. The organization has
intensified its efforts recently, but has been unable to bridge the gap between those who
associate "terrorism" with any violent act by non-state groups against civilians, state
functionaries or infrastructure or military installations, and those who believe in the
concept of the legitimate use of force when resistance against foreign occupation or
against systematic oppression of ethnic and/or religious groups within a state is
concerned.
The dilemma facing the international community can best be illustrated by reference to
the contradicting categorization of organizations and movements such as Palestine
Liberation Organization (PLO) which is a terrorist group for Israel and a liberation
movement for Arabs and Muslims the Kashmiri resistance groups who are terrorists
in the perception of India, liberation fighters in that of Pakistan the earlier Contras in
Nicaragua freedom fighters for the United States, terrorists for the Socialist camp
or, most drastically, the Afghani Mujahedeen (later to become the Taliban movement):
during the Cold War period they were a group of freedom fighters for the West,
nurtured by the United States, and a terrorist gang for the Soviet Union. One could go
on and on in enumerating examples of conflicting categorizations that cannot be
reconciled in any way because of opposing political interests that are at the roots of
those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our analysis, the
basic reason for these striking inconsistencies lies in the divergent interest of states.
Depending on whether a state is in the position of an occupying power or in that of a
rival, or adversary, of an occupying power in a given territory, the definition of
terrorism will "fluctuate" accordingly. A state may eventually see itself as protector of
the rights of a certain ethnic group outside its territory and will therefore speak of a
"liberation struggle," not of "terrorism" when acts of violence by this group are
concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the definition
of terrorism exactly because of these conflicting interests of sovereign states that
determine in each and every instance how a particular armed movement (i.e. a nonstate actor) is labeled in regard to the terrorists-freedom fighter dichotomy. A "policy of
double standards" on this vital issue of international affairs has been the unavoidable
consequence.
This "definitional predicament" of an organization consisting of sovereign states and
not of peoples, in spite of the emphasis in the Preamble to the United Nations Charter!
has become even more serious in the present global power constellation: one
superpower exercises the decisive role in the Security Council, former great powers of
the Cold War era as well as medium powers are increasingly being marginalized; and
the problem has become even more acute since the terrorist attacks of 11 September
2001 I the United States.141
The absence of a law defining "acts of terrorism" may result in abuse and oppression
on the part of the police or military. An illustration is when a group of persons are
merely engaged in a drinking spree. Yet the military or the police may consider the act
as an act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously,
this is abuse and oppression on their part. It must be remembered that an act can only
be considered a crime if there is a law defining the same as such and imposing the
corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No.
1835 dated January 16, 1981 enacted by President Marcos during the Martial Law
regime. This decree is entitled "Codifying The Various Laws on Anti-Subversion and
Increasing The Penalties for Membership in Subversive Organizations." The word
"terrorism" is mentioned in the following provision: "That one who conspires with any
other person for the purpose of overthrowing the Government of the Philippines x x x
by force, violence, terrorism, x x x shall be punished byreclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of
the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2)
laws, however, do not define "acts of terrorism." Since there is no law defining "acts of
terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion to
determine what acts constitute terrorism. Her judgment on this aspect is absolute,
without restrictions. Consequently, there can be indiscriminate arrest without warrants,
breaking into offices and residences, taking over the media enterprises, prohibition and
dispersal of all assemblies and gatherings unfriendly to the administration. All these
can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out
power of the President. Certainly, they violate the due process clause of the
Constitution. Thus, this Court declares that the "acts of terrorism" portion of G.O. No.
5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to
commit acts beyond what arenecessary and appropriate to suppress and prevent
lawless violence, the limitation of their authority in pursuing the Order. Otherwise,
such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in their persons,
houses, papers and effects against unreasonable search 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."142 The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless authorized by a validly
issued search warrant or warrant of arrest. Thus, the fundamental protection given by
this provision is that between person and police must stand the protective authority of a
magistrate clothed with power to issue or refuse to issue search warrants or warrants of
arrest.143
In the Brief Account144 submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP operatives arrested
him on the basis of PP 1017; third, he was brought at Camp Karingal, Quezon City
where he was fingerprinted, photographed and booked like a criminal
suspect; fourth,he was treated brusquely by policemen who "held his head and tried to
push him" inside an unmarked car; fifth, he was charged with Violation of Batas
Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was detained for
seven (7) hours; and seventh,he was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
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 or circumstances that the person to be arrested
has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner Davids
warrantless arrest. During the inquest for the charges of inciting to
sedition and violation of BP 880, all that the arresting officers could invoke was their
observation that some rallyists were wearing t-shirts with the invective "Oust Gloria
Now" and their erroneous assumption that petitioner David was the leader of the
rally.146 Consequently, the Inquest Prosecutor ordered his immediate release on the
ground of insufficiency of evidence. He noted that petitioner David was not wearing
the subject t-shirt and even if he was wearing it, such fact is insufficient to charge him
with inciting to sedition. Further, he also stated that there is insufficient evidence for
the charge of violation of BP 880 as it was not even known whether petitioner David
was the leader of the rally.147
But what made it doubly worse for petitioners David et al. is that not only was their
right against warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble and petition the government for
redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for consultation
in respect to public affairs. It is a necessary consequence of our republican institution
and complements the right of speech. As in the case of freedom of expression, this right
is not to be limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that Congress has a right to prevent. In other words, like
other rights embraced in the freedom of expression, the right to assemble is not subject
to previous restraint or censorship. It may not be conditioned upon the prior issuance of
a permit or authorization from the government authorities except, of course, if the
assembly is intended to be held in a public place, a permit for the use of such place,
and not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were
exercising their right to peaceful assembly. They were not committing any crime,
neither was there a showing of a clear and present danger that warranted the limitation
of that right. As can be gleaned from circumstances, the charges of inciting to
seditionand violation of BP 880 were mere afterthought. Even the Solicitor General,
during the oral argument, failed to justify the arresting officers conduct. In De Jonge v.
Oregon,148 it was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of
meetings for peaceable political action cannot be proscribed. Those who assist in the
conduct of such meetings cannot be branded as criminals on that score. The question, if
the rights of free speech and peaceful assembly are not to be preserved, is not as to the
auspices under which the meeting was held but as to its purpose; not as to the relations
of the speakers, but whether their utterances transcend the bounds of the freedom of
speech which the Constitution protects. If the persons assembling have committed
crimes elsewhere, if they have formed or are engaged in a conspiracy against the public
peace and order, they may be prosecuted for their conspiracy or other violations of
valid laws.But it is a different matter when the State, instead of prosecuting them
for such offenses, seizes upon mere participation in a peaceable assembly and a
lawful public discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and
arrest of the members of KMUet al. (G.R. No. 171483) unwarranted. Apparently, their
dispersal was done merely on the basis of Malacaangs directive canceling all permits
previously issued by local government units. This is arbitrary. The wholesale
cancellation of all permits to rally is a blatant disregard of the principle that "freedom
of assembly is not to be limited, much less denied, except on a showing of a clear
and present danger of a substantive evil that the State has a right to
prevent."149 Tolerance is the rule and limitation is the exception. Only upon a showing
that an assembly presents a clear and present danger that the State may deny the
citizens right to exercise it. Indeed, respondents failed to show or convince the Court
that the rallyists committed acts amounting to lawless violence, invasion or rebellion.
With the blanket revocation of permits, the distinction between protected and
unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with
the local government units. They have the power to issue permits and to revoke such
permits after due notice and hearing on the determination of the presence of clear and
present danger. Here, petitioners were not even notified and heard on the revocation of
their permits.150 The first time they learned of it was at the time of the dispersal. Such
absence of notice is a fatal defect. When a persons right is restricted by government
action, it behooves a democratic government to see to it that the restriction is fair,
reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech
i.e., the freedom of the press. Petitioners narration of facts, which the Solicitor General
failed to refute, established the following: first, theDaily Tribunes offices were
searched without warrant;second, the police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o clock in the morning of
February 25, 2006; fourth,the search was conducted in the absence of any official of
the Daily Tribune except the security guard of the building; and fifth, policemen
stationed themselves at the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of
Staff Michael Defensor was quoted as saying that such raid was "meant to show a
strong presence, to tell media outlets not to connive or do anything that would
help the rebels in bringing down this government." Director General Lomibao
further stated that "if they do not follow the standards and the standards are if
they would contribute to instability in the government, or if they do not subscribe
to what is in General Order No. 5 and Proc. No. 1017 we will recommend
a takeover." National Telecommunications Commissioner Ronald Solis urged
television and radio networks to "cooperate" with the government for the duration of
the state of national emergency. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for media
coverage during times when the national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down
the steps in the conduct of search and seizure. Section 4 requires that a search
warrant be issued upon probable cause in connection with one specific offence to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section 8 mandates that the search of a
house, room, or any other premise be made in the presence of the lawful
occupant thereof or any member of his family or in the absence of the latter, in the
presence of two (2) witnesses of sufficient age and discretion residing in the same
locality. And Section 9 states that the warrant must direct that it be served in
the daytime, unless the property is on the person or in the place ordered to be searched,
in which case a direction may be inserted that it be served at any time of the day or
night. All these rules were violated by the CIDG operatives.
Not only that, the search violated petitioners freedom of the press. The best gauge of a
free and democratic society rests in the degree of freedom enjoyed by its media. In
the Burgos v. Chief of Staff152 this Court held that -As heretofore stated, the premises searched were the business and printing offices of
the "Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the
search and seizure, these premises were padlocked and sealed, with the further
result that the printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the

freedom of the press guaranteed under the fundamental law, and constitutes a
virtual denial of petitioners' freedom to express themselves in print. This state of
being is patently anathematic to a democratic framework where a free, alert and
even militant press is essential for the political enlightenment and growth of the
citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the
"Metropolitan Mail" and "We Forum" newspapers in the above case, yet it cannot be
denied that the CIDG operatives exceeded their enforcement duties. The search and
seizure of materials for publication, the stationing of policemen in the vicinity of
the The Daily Tribune offices, and the arrogant warning of government officials to
media, are plain censorship. It is that officious functionary of the repressive
government who tells the citizen that he may speak only if allowed to do so, and no
more and no less than what he is permitted to say on pain of punishment should he be
so rash as to disobey.153 Undoubtedly, the The Daily Tribune was subjected to these
arbitrary intrusions because of its anti-government sentiments. This Court cannot
tolerate the blatant disregard of a constitutional right even if it involves the most
defiant of our citizens. Freedom to comment on public affairs is essential to the vitality
of a representative democracy. It is the duty of the courts to be watchful for the
constitutional rights of the citizen, and against any stealthy encroachments thereon. The
motto should always be obsta principiis.154
Incidentally, during the oral arguments, the Solicitor General admitted that the search
of the Tribunes offices and the seizure of its materials for publication and other papers
are illegal; and that the same are inadmissible "for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when
inspected the Tribune for the purpose of gathering evidence and you admitted that the
policemen were able to get the clippings. Is that not in admission of the admissibility of
these clippings that were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I know,
Your Honor, and these are inadmissible for any purpose.155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have to do is
to get those past issues. So why do you have to go there at 1 oclock in the morning
and without any search warrant? Did they become suddenly part of the evidence of
rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
Are you saying that the act of the policeman is illegal, it is not based on any law, and it
is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017
which says that the police could go and inspect and gather clippings from Daily
Tribune or any other newspaper.
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is premature to
say this, we do not condone this. If the people who have been injured by this would
want to sue them, they can sue and there are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police were, according
to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I dont know whether this will clarify. The acts, the supposed illegal or unlawful acts
committed on the occasion of 1017, as I said, it cannot be condoned. You cannot
blame the President for, as you said, a misapplication of the law. These are acts of the
police officers, that is their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every
aspect and "should result in no constitutional or statutory breaches if applied according
to their letter."
The Court has passed upon the constitutionality of these issuances. Its ratiocination has
been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited
to the calling out by the President of the military to prevent or suppress lawless
violence, invasion or rebellion. When in implementing its provisions, pursuant to G.O.
No. 5, the military and the police committed acts which violate the citizens rights
under the Constitution, this Court has to declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganibans concurring opinion, attached
hereto, is considered an integral part of this ponencia.
S U M M AT I O N
In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening event
would have normally rendered this case moot and academic. However, while PP 1017
was still operative, illegal acts were committed allegedly in pursuance thereof. Besides,
there is no guarantee that PP 1017, or one similar to it, may not again be issued.
Already, there have been media reports on April 30, 2006 that allegedly PP 1017 would
be reimposed "if the May 1 rallies" become "unruly and violent." Consequently, the
transcendental issues raised by the parties should not be "evaded;" they must now be
resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a
call by the President for the AFP to prevent or suppress lawless violence. The
proclamation is sustained by Section 18, Article VII of the Constitution and the
relevant jurisprudence discussed earlier. However, PP 1017s extraneous provisions
giving the President express or implied power (1) to issue decrees; (2) to direct the AFP
to enforce obedience to all lawseven those not related to lawless violence as well as
decrees promulgated by the President; and (3) to impose standards on media or any
form of prior restraint on the press, are ultra vires and unconstitutional. The Court
also rules that under Section 17, Article XII of the Constitution, the President, in the
absence of a legislation, cannot take over privately-owned public utility and private
business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the
President acting as Commander-in-Chief addressed to subalterns in the AFP to
carry out the provisions of PP 1017. Significantly, it also provides a valid standard
that the military and the police should take only the "necessary and appropriate
actions and measures to suppress and prevent acts of lawless violence."But the
words "acts of terrorism" found in G.O. No. 5 have not been legally defined and made
punishable by Congress and should thus be deemed deleted from the said G.O. While
"terrorism" has been denounced generally in media, no law has been enacted to guide
the military, and eventually the courts, to determine the limits of the AFPs authority in
carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine
clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas;
(2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU
members; (3) the imposition of standards on media or any prior restraint on the press;
and (4) the warrantless search of the Tribune offices and the whimsical seizures of
some articles for publication and other materials, are not authorized by the
Constitution, the law and jurisprudence. Not even by the valid provisions of PP 1017
and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not
been individually identified and given their day in court. The civil complaints or causes
of action and/or relevant criminal Informations have not been presented before this
Court. Elementary due process bars this Court from making any specific
pronouncement of civil, criminal or administrative liabilities.
It is well to remember that military power is a means to an end and substantive
civil rights are ends in themselves. How to give the military the power it needs to
protect the Republic without unnecessarily trampling individual rights is one of
the eternal balancing tasks of a democratic state.During emergency, governmental
action may vary in breadth and intensity from normal times, yet they should not be
arbitrary as to unduly restrain our peoples liberty.
authorize the President to take over privately-owned public utility or business affected
with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and
the PNP should implement PP 1017, i.e. whatever is "necessary and appropriate
actions and measures to suppress and prevent acts of lawless
violence." Considering that "acts of terrorism" have not yet been defined and made
punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the
absence of proof that these petitioners were committing acts constituting lawless
violence, invasion or rebellion and violating BP 880; the imposition of standards on
media or any form of prior restraint on the press, as well as the warrantless search of
the Tribune offices and whimsical seizure of its articles for publication and other
materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
______________
Perhaps, the vital lesson that we must learn from the theorists who studied the various
competing political philosophies is that, it is possible to grant government the authority
to cope with crises without surrendering the two vital principles of
constitutionalism: the maintenance of legal limits to arbitrary power, and political
responsibility of the government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria MacapagalArroyo on the AFP to prevent or suppress lawless violence. However, the provisions
of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as
well as decrees promulgated by the President, are declared UNCONSTITUTIONAL.
In addition, the provision in PP 1017 declaring national emergency under Section 17,
Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not
SECOND DIVISON
G.R. No. 125796, Promulgated: December 27, 2000
OFFICE OF THE PROVINCIAL PROSECUTOR OF ZAMBOANGA DEL
NORTE, Petitioners,
vs.
COURT OF APPEALS, ATICO ABORDO, JUDY CATUBIG, PETER MOLATO,
and FLORENCIO CANDIA,Respondents.
MENDOZA, J.:
The issue in this case is whether, even before the start of trial, the prosecution can be
ordered to change the information which it had filed on the ground that the evidence
presented at the preliminary investigation shows that the crime committed is not
murder with multiple frustrated murder, but rebellion. The trial court ruled that the
power to determine what crime to charge on the basis of the evidence gathered is the
prerogative of the public prosecutor. The Court of Appeals, however, while agreeing
with the trial court, nevertheless found the prosecutor to have gravely abused his
discretion in charging murder with frustrated murder on the ground that the evidence
adduced at the preliminary investigation shows that the crime committed was rebellion.
Accordingly, it ordered the prosecutor to substitute the information filed by him.
Hence, this petition brought by the provincial prosecutor of Zamboanga del Norte for a
review of the decision of the Court of Appeals.
The facts are not in dispute. On August 3, 1993, the provincial prosecutor of
Zamboanga del Norte1 filed with the Regional Trial Court, Branch 8, Dipolog City, an
information (docketed as Criminal Case No, 6427) charging private respondents and 10
other individuals with murder and multiple frustrated murder. The Information reads:
The undersigned, Provincial Prosecutor, accuses ATICO OBODO alias "Dondoy,"
NACENCIANO PACA-LIUGA, JR., ELEAZAR FLORENDO, NESTOR BASES
alias Beses/Belly, FLORENCIO CANDIA alias "Bimbo," JUDY CATUBIG alias
Elboy/Al," PETER MOLATO alias, Joker, ALBERTO CATUBIG alias "Blacky",
ALMARIO CATUBIG alias Nixon, JIMMY BENGAL alias "Macoboy," ENRICO

SIMBULAN alias Monstop, JIMMY GARIG alias "Gino" and BERNIDO
QUENCAS alias "Digoy of the crime of MURDER WITH MULTIPLE
FRUSTRATED MURDER, committed as follows:
Capacity .. 10,000.00
That, in the morning, on or about the 1 st day of May, 1988, in the Municipality of
Katipunan, Zamboanga del Norte, within the jurisdiction of this Honorable Court, the e.
above-named accused armed with the high caliber firearms, conspiring, confederating
together and mutually helping one another and with intent to kill by means of treachery
and evident premeditation did then and there willfully, unlawfully, unlawfully and
feloniously attack, assault and fire several shots to one Cpl. ALFREDO DELA CRUZ
PA, which accused his instantaneous death and causing injuries to the following
victims namely: SGT. RODRIGO ALVIAR PA, SGT. RODRIGO BARADI, SGT.
LINOGAMAN PIATOS and SGT. BELLIZAR PA, which injuries would ordinarily
cause their death; thus performing all the acts of execution which would have produced f.
the crime of MURDER, as a consequence, but which nevertheless did not produce it
for reason of causes independent of the will of the herein accused, that is the timely and
able medical attendance rendered to the said victims which prevented their death; that
as a result of the commission of the said crime the heirs of Cpl. Alfredo de la Cruz and
the herein victims suffered the following damages, vis:
a) Hospitalization P10,000.00
On victim CPL ALFREDO DELA CRUZ:

a.
Indemnity for
Victims death .. P50, 000.00
b.
Loss of earning
Capacity 30,000.00
P80, 000.00
SGT. RODRIGO ALVIAR:
a) Hospitalization P10, 000.00
c.
Loss of earning
Capacity .. 10,000.00
P20, 000.00
SGT. LINOGAMAN PIATOS:
a) Hospitalization P10, 000.00
d.
P20,000.00
SGT. RODRIGO BARADI;
Loss of earning
Capacity .. 10,000.00
P20,000.00
SGT. BELLIZAR:
a) Hospitalization P10,000.00
Loss of earning
Capacity .. 10,000.00
P20,000.00
CONTR ARY TO LAW (Viol. Of Art. 248, in relation or Art. 48 of the Revised Penal
Code), with the aggravating circumstance of superior strength and with the qualifying
circumstances of treachery and evident premeditation.2
The foregoing information is based on a joint affidavit executed on June 1, 1993 by
five individuals, who claim to be former members of the New Peoples Army (NPA),
before the Municipal Trial Court of Katipunan, Zamboanga del Norte. The affiants
stated that on May 1, 1988, their group, which included private respondents, figured in
an armed encounter with elements of the Philippine Army in Campo Uno, Femagas,
Katipunan, Zamboanga del Norte, as a result of which one solider, Cpl. Alfredo de la
Cruz, was killed while four others, Sgts. Rodrigo Alviar, Linomagan Piatos, Rodrigo
Baradi, and a certain Bellizar, were seriously wounded. Although private respondents
did not appear nor submit affidavits in the preliminary investigation, they appealed the
resolution of the provincial prosecutor to the Secretary of Justice on the ground that, in
accusing them of murder and multiple frustrated murder, the provincial prosecutor
disregarded the political motivation which made the crime committed rebellion. When
the case was filed in court, private respondents reiterated their contention and prayed
that the provincial prosecutor be ordered to change the charge from murder with
multiple frustrated murder to rebellion.
On September 29, 1995, the trial court issued an order denying private respondents
motion for the correction or amendment of the information. The trial court said.3
Loss of earning
Be it recalled, that as pointed out by the Asst. Provincial Prosecutor, the same moving
counsel sometime on July 22, 1993 filed a notice of appeal assailing the resolution of
the provincial prosecutor dated July 16, 1993 finding probable cause against all the
above-named accused for the crime of Murder and Multiple frustrated Murder, to the
Honorable Secretary of Justice, by raising the same issue that "instead of
recommending the filing of a political crime such as subversion or rebellion, the
investigating prosecutor is recommending the filing of the common crime of murder to
cover-up the apparent political color of the alleged crime committed. Until the
Secretary of Justice therefore resolves the appeal by the movant, this court will have no
basis to order the public prosecutor to amend or change the crime charged in the
information. Besides, this Court recognizes and respects the prerogative of the fiscal to
determine whether or not a prima facie case exists in a given case against the accused.
This power vested in the fiscal cannot be interfered with even by the courts.
But since the case has already been filed with this Court, jurisdiction therefor now lies
with the court. It may not even be bound by the ruling of the Secretary of Justice
Private respondents twice moved for reconsideration and twice were rebuffed. They
then filed a petition for certiorari with this Court to set aside the orders dated
September 29, October 24, and November 3, 1995 of the trial court. They impleaded
the provincial prosecutor of Zamboanga del Norte as co-respondent of Judge Pacifico
Garcia of the Regional Trial Court, Branch 8, Dipolog City.
Without ruling on the petition, this Court referred the case to the Court of Appeals,
which, in decision4 dated July 24, 1996, the subject of this review, found the provincial
prosecutor guilty of grave abuse of discretion in charging private respondents with
murder with multiple frustrated murder. The Court of Appeals held:
The New Peoples Army (NPA) is the armed component of the Communist Party in this
country called the national Democratic Front (NDF). The ultimate objective of the
NPA/NDF is to overthrow the constitutional democratic plant it with a government
anchored on the communist ideology.
It is common practice of the military and police to charge captured or arrested members
f the NPA with capital offenses like murder, robbery with homicide, illegal possession
of firearms used in the commission of homicide or murder, arson resulting in death
rather than on simple rebellion.
If an NPA fighter (terrorist, according to the military lexicon) commits homicide,
murder, arson, robbery, illegal possession of firearms and ammunition in furtherance or
on the occasion of his revolutionary pursuit, the only crime he has committed is
rebellion because all those common crimes are absorbed in the latter one pursuant to
the ruling in People v. Hernandez, 99 Phil. 515 and several subsequent cases.
The reason why instead of charging the NPA fighter with capital offenses mentioned
supra and not the proper offense of rebellion is obvious. Rebellion is a bailable offense
and given the resources of the NPA, it is the easiest thing for it to bail out its members
facing rebellion charges in court. Once out, the NPA fighter goes back to his mountain
lair and continues the fight against the government. If he is accused of a capital offense
where the granting of bail is a matter of discretion, his chances of securing provisional
liberty during the pendency of the trial are very much lessened.
Since, the military and the police carry the brunt of fighting the NPAs and in so doing
they put their limbs and lives on the line, it is easy for Us to understand why they
usually charge the captured or arrested NPAs with capital offenses instead of the proper
offense which is rebellion. The police or military practice is of course wrong, but it is
not much of a problem because it is at most recommendatory in nature. It is the
prosecutory service that ultimately decides the offense to be charged.
No one disputes the well-entrenched principle in criminal procedure that the public
prosecutor has the discretion to determine the crime to be charged in a criminal action.
But like all discretions, his must be exercised soundly, meaning, reasonably,
responsibly, and fairly. As stated by the Supreme Court in Misola v. Panga cited in
respondents Comment (p. 61, Rollo); "The question of instituting a criminal charge is
one addressed to the sound discretion of the investigating Fiscal. The information must
be supported by the facts brought about by an inquiry made by him." (Underscoring
supplied).
If then, a public prosecutor deliberately ignores or suppresses an evidence in his hands
which palpably indicates the chargeable offense and files an information charging a
more serious one, he departs from the precinct of discretion and treads on the forbidden
field or arbitrary action.
This was what happened in the case at bench. The evidentiary bases of the criminal
action against petitioners are the Joint Affidavit and the recorded testimony earlier
adverted to. It is not at all disputed that based upon these two documents, the proper
offense to charge petitioners with is rebellion. No amount of legalistic sophistry can
make those documents support murder for these offenses in the factual milieu in this
case were all absorbed by rebellion.
We vehemently reject respondents contention that the petitioners do not suffer any
prejudice because they can use their theory that the chargeable offense is only rebellion
as a defense in the trial on the merits and if the trial court finds that the evidence
establishes only rebellion, then, it can convict them under the Information for just that
lesser crime. This argument is not only wrong but betrays insensitivity to violation of
human rights. If prosecutory discretion is twisted to charge a person of an unbailable
offense and, therefore, keeps him under detention when the truly chargeable offense is
a bailable one, the prosecutor transgresses upon the human rights of the accused.5
The appeals court was more kindly disposed toward the trial court. It said:
Respecting the respondent court, the situation is different
The Joint Affidavit and the recorded testimony mentioned earlier are not part of the
records. The trial has not yet been started and, therefore, no evidence has yet been
adduced. There is no basis then for the trial court even to call the attention of the
prosecutor to a mistake in the crime charged.
We hold that respondent court did not commit an error in issuing the assailed orders,
much less gravely abused its discretion in issuing them.6
Accordingly, the Court of Appeals ordered:
WHEREFORE, with the foregoing premises, We a) dismiss the petition as against
respondent court for lack of merit; and b) order the respondent office of Provincial
Prosecutor to file a substitute Information in Criminal Case No. 6472 charging the
petitioners with rebellion only.7
Petitioner contends that the Court of Appeals erred
I.
IN MAKING DISPARATE AND IRRECONCILABLE RULINGS

CONCERNING THE CORRECTNESS OF THE ACTION OF PETITIONER AND
THE LOWER COURT.
II.
IN HOLDING THAT PETITIONER GRAVELY ABUSED ITS

DISCRETION IN CHARGING PRIVATE RESPONDENTS WITH MURDER AND
MULTIPLE FRUSTRATED MURDER.8
We find the contentions to be well taken.

First. It was improper for the Court of Appeals to consider the record of the
preliminary investigation as basis for finding petitioner provincial prosecutor guilty of
grave abuse of discretion when such record was not presented before the trial court
and, therefore, was not part of the record of the case. Rule 112, 8 of the Revised Rules
of Criminal procedure provide;
SEC. 8. Record of preliminary investigation. The record of the preliminary

investigation whether conducted by a judge or a fiscal, shall not form part of the record
of the case in the Regional Trial Court. However, the said court, on its own initiative or
that of any party, may order the production of the record of any part thereof whenever
the same shall be necessary in the resolution of the case or any incident therein, or shall
be introduced as evidence by the party requesting for its production.
The certiorari proceedings in the Court of Appeals was limited to the record of the trial
court and indeed the Court of Appeals recognized this by absolving the trial court of
any liability for abuse of its discretion. It is petitioner provincial prosecutor, which it
found guilty of grave abuse of discretion in filing a case for murder with multiple
frustrated murder against private respondents because, in its view, the crime committed
is rebellion. The Court of Appeals based its ruling on the joint affidavit of five
prosecution witnesses and their testimonies relating to such affidavit before the
Municipal Trial Court of Katipunan, Zamboanga del Norte, which had conducted the
preliminary investigation. But this could not be done because the petition before it was
a petition for certiorari to set aside orders of the Regional Trial Court denying private
respondents motion to compel petitioner to change the charge against them from
murder with frustrated murder to rebellion.
To sustain the procedure followed by the Court of Appeals of considering evidence
dehors the record of the trial court would be to set a bad precedent whereby the
accused in any case can demand, upon the filing of the information, a review of the
evidence presented during the preliminary investigation for the purpose of compelling
the trial court to change the charge to a lesser offense. Such a ruling would undermine
the authority of the prosecutor and impose and intolerable burden on the trial court. As
held in Depamaylo v. Brotario.9
The Court in a number of cases has declared that a municipal judge has no legal
authority to determine the character of the crime but only to determine whether or not
the evidence presented supported prima facie the allegation of facts contained in the
complaint. He has no legal authority to determine the character of the crime and his
declaration upon that point can only be regarded as an expression of opinion in no wise
binding on the court (People vs. Gorospe, 53 Phil. 960; de Guzman vs. Escalona, 97
SCRA 619). This power belongs to the fiscal Bais vs. Tugaoen, 89 SCRA 101).
It is to be noted that private respondents did not even attend the preliminary
investigation during which they could have shown that the crime committed was
rebellion because the killing and wounding of the government troopers was made in
furtherance of rebellion and not for some private motive.
Second. Indeed, it is not at all clear that the crime as made out by the facts alleged in
the Joint Affidavit of witnesses is rebellion and not murder with multiple murder. The
affidavit reads:
REPUBLIC OF THE PHILIPPINES
PROVINCE OF ZAMBOANGA DEL NORTE) S.S
assembled again at the aforesaid place, firefight occurred between us and the
government troops of 321B which resulted to inflict casualties to the 321B troopers,
KIA one (1) Cpl. Alfredo Dela Cruz and wounding four (4) others, Sgt. Rodrigo Alviar,
Sgt. Linogaman Piatos, Sgt. Rodrigo Baradi and Sgt. Bellizar while on our side with
one wounded @ TOY.
Municipality of Jose Dalman)

X---------------------------------------------------------------------------------------------------------------------------------------------x
JOINT AFFIDAVIT
I..Teofilo D. Sarigan, 31 years old, Manuel A. Cuenca, 28 yrs. Old, Romulo A.
Pacaldo, 25 years old, Carmelito Carpe, 36 yrs. Old, all married and Pablo D. Maladia,
20 yrs. old and with postal address of Brgy. Lopero, Brgy. Lumaping, of Jose Dalman,
Brgy. Villahermosa, Roxas, all of ZDN, Brgy. Sigamok, Dumingag, ZDS and Brgy.
Lipay. Jose Dalman, ZDN after having been duly sworn to an oath in accordance to law
do hereby depose and answer questions propounded:
QUESTIONS AND ANSWERS:
1.
Q Why are you here now in this office?

A To render statement regarding the alleged incident wherein we were previously
involved when we were still with the underground movement of CPP/NPA that
transpired on or about 011000H May 1988 at vicinity Campo Uno, Femagas,
Katipunan, ZDN against the government troops of 321B.
2.
Q Since when the five (5) of you entered the underground

movement of CPP.NPA?
A Since May 16, 1980, August 12, 1980, March 12, 1981, May 7, 1983 and August
27, 2987, sir.
3.
Q What is your previous position?

A CO, FCOM (Front Command) and second deputy secretary of FC-1 "BBC, the
Vice CO, FCOM, the CO, FCOM after @ Bebeth surrender, a Unit Militia (YM)
member, GYP element under squad Lion all of FC-1 "BBC" in which we are operating
within the Province of ZDN.
4.
Q Will you narrate to me what and how the incident you are
referring to all about?
A Actually sir, last 30 April 1988 our main force of FGU, FC-1 "BBC" had a meeting
at vicinity basketball court of vicinity Campo Uno, Femagas, Katipunan ZDN. While
on that status our security group left at the high ground portion of the place and
engaged the advancing government troops of 321B after which we then decided to
postpone the meeting hence, the government troops presence. However, on the
following day of 01 May 1988 at about 10:00 oclock in the morning when we
5.
Q Can you still recall the names of those other NPAs that
participated in that encounter against the government troops?
A Yes, sir. ATICO OBORDO @ DONDOY, NACENCIANO PACALIUGA JR., @
ALFIE/IGI, ELEAZAT FLOREDO, NESTOR BASES @ BELOY/BELLY.
FLORENCIO CANDIA @ BIMBO, JUDY CATUBIG @ ELBOY/AL, PETER
MOLATO @ JOKER, BIENVENIDO CATUBIG @ RASTY, ALBERTO CATUBIG
@ BLACKY/RENATO, ALMARIO CATUBIG @ NOEL, ROGER CATUBIG @
JAMSE, JOEL CATUBIG @ NIXON, JIMMY DINGAL @ MACBOY, ENRICO
SIMBULAN @ NONSTOP, @ DANDY, @ WAWAY, @ ALBA/JONAS, JIMMY
GARIG @ NONOY, NILO CATUNGAN @ GINO, BERNIDO QUENECAS @
DIGOY, @ CRISTINE/LFA @ MARILOU @ ELNA, @ BENIGNO PAULINO
CORPUZ @ JR/PAWA, BENJAMIN SANTANDER @ JAKE, @NESTOR, @ JAY, @
ISAGANI, @ RONIE, ESMAEL OBORDO @ ANICIO, @ FREDO, @ RUEL, @
DODONG, JULITA ADJANAN @ GENIE, @ TONY, @ RJ, @ LANNIE @ DEMET,
@ RENDON, @JESS, @ SAMSON AND many others, sir.
Q Then what transpired next?
A Right after the encounter, we withdraw our troops towards vicinity SVR, complex,
Sergio Osmea, Sr., ZDN.
Q Do you have something more to say?
A Nothing more, sir.
Q Are you willing to sign you statement without being forced, coerced or
intimidated?
A Yes, sir.
IN WITNESS WHEREOF, WE hereunto affix our signature this 1st day of June 1993 at
Katipunan, ZN Philippines.
(SGD.) TEOFILO D. SARIGAN
Affiant
(SGD,) MANUEL A. CUENCA
Affiant
(SGD,) ROMULO A. PACALDO

Affiant
(SGD.) CARMELITO L. CARPE
Affiant
(SGD.) PABLO G. MALADIA
or caprice, which gives the choice. The Code allows, for example, separate
prosecutions for either murder or rebellion, although not for both where the indictment
alleges that the former has been committed in furtherance of or in connection with the
latter.13
The burden of proving that the motivation for the crime is political and not private is
on the defense. This is the teaching of another case.14 in which it was held;
Affiant
SUBSCRIBED and SWORN to before me this 1 st day of June 1993 at Katipunan, ZN,
Philippines.
(SGD.) ADELA S. GANDOLA
Municipal Trial Judge
Nowhere is the political motivation for the commission of the crime indicated in
foregoing affidavit. Merely because it is alleged that private respondents were members
of the CCP/NPA who engaged government troops in a firefight resulting in the death of
a government trooper and the wounding of four others does not necessarily mean that
the killing and wounding of the victims was made in furtherance of a rebellion. The
political motivation for the crime must be shown in order to justify finding the crime
committed to be rebellion. Otherwise, as in People v. Ompad,10although it was shown
that the accused was an NPA commander, he was nonetheless convicted of murder for
the killing of a person suspected of being a government informer. At all events, as this
Court said in Balosis v. Chanvez:11
Certainly, the public prosecutors should have the option to ascertain which
prosecutions should be initiated on the basis of the evidence at hand. That a criminal
act may have elements common to more than one offense does not rob the prosecutor
of that option (or discretion) and mandatory require him to charge the lesser offense
although the evidence before him may warrant prosecution of the more serious one.12
In deciding if the crime is rebellion, not murder, it becomes imperative for our courts to
ascertain whether or not the act was done in furtherance of a political end. The political
motive of the act should be conclusively demonstrated.
In such cases the burden of demonstrating political motive falls on the defense, motive,
being a state of mind which the accused better than any individual knows.
Its not enough that the overt acts of rebellion are duly proven. Both purpose and overt
acts are essential components of the crime. With either of these elements wanting, the
crime of rebellion legally does not exist.
The proceedings in the case at bar is still in the pre-arraignment stage. The parties have
yet to present their respective evidence. If during the trial, private respondents are able
to show proof which would support their present contention, then they can avail of the
remedy provided under the second paragraph of Rule 110, 1415which provides:
If it appears at any time before judgement that a mistake has been made in charging the
proper offense, the court shall dismiss the original complaint or information upon the
filing of a new one charging the proper offense in accordance with Rule 119, Section
11, provided the accused would not be placed thereby in double jeopardy
Until then, however, petitioner provincial prosecutor is under no obligation to change
against private respondents.
In Baylosis v. Chavez, the accused, who were NPA members, assailed the
constitutionality of P.D. No. 1866 under which they were charged with illegal
possession of firearm and ammunition on the ground that it gave prosecutors the
discretion to charge an accused either with rebellion or with other crimes committed in
furtherance thereof. In rejecting their contention, this Court said:
Third. The Court of Appeals says it is a common practice of the military and the police
to charge captured members of the NPA with capital offenses like murder, robbery with
homicide, or illegal possession of firearms rather than rebellion. The alleged purpose is
to deny them bail only if it can be shown that the evidence against them is not strong,
whereas if the charge is rebellion, private respondents would have an absolute right to
bail.
The argument is not tenable. The fact is that the Revised Penal Code trets rebellion or
insurrection as a crime distinct from murder, homicide, arson, or other felonies that
might conceivably be committed in the course of rebellion. It is the Code, therefore, in
relation to the evidence in the hands of the public prosecutor, and not the latters whim
As already stated, however, given the Joint affidavit of the prosecution witnesses alone,
it is not possible to determine at this stage of the criminal proceeding that in engaging
the government troops in a "firefight," private respondents were acting in pursuance of
rebellion. It could be that the "firefight" was more of an ambush staged by the NPA, as
shown by the fact that while the government troop suffered one dead and four
wounded, the CPP/NPA suffered only one wounded.
The charge that it is "common practice for the military and the police to charge
suspected rebels with murder in order to prevent them from going on bail can be laid
equally at the door of the accused. As noted in Enrile v. Salazar:16
It may be that in the light of contemporary events, the act of rebellion has lost that
quintessentially quixotic quality that justifies the relative leniency with which it is
regarded and punished by law, that present-day rebels are less impelled by love of
country than by lust for power and have become no better than mere terrorists to whom
nothing, not even the sancity of human life, is allowed to stand in the way of their
ambitions. Nothing so c this aberration as the rash of seemingly senseless killings,
bombings, kidnappings and assorted mayhem so much in the news these days, as often
perpetrated against innocent civilians as against the military, but by and large
attributable to, or even claimed by so called rebels to be part of, an ongoing rebellion.17
What the real crime is must await the presentation of evidence at the trial or at the
hearing on the application for bail. Those accused of common crimes can then show
proof that the crime with which they were charged is really rebellion. They are thus not
without any remedy.
WHEREFORE, the decision of the Court of Appeals, dated July 24, 1996,
is REVERSED insofar as it orders petitioner to file a substitute information for
rebellion in Criminal Case No. 6427. In other respects, it isAFFIRMED.1wphi1.nt
SO ORDERED.
EN BANC
G.R. No. L-6025
May 30, 1964

vs.
AMADO V. HERNANDEZ, ET AL., accused,
AMADO V. HERNANDEZ, ET AL., defendants-appellants.
----------------------------G.R. No. L-6026
May 30, 1964

vs.
BAYANI ESPIRITU, ET AL., accused,
BAYANI ESPIRITU and TEOPISTA VALERIO, defendants-appellants.
LABRADOR, J.:
This is the appeal prosecuted by the defendants from the judgment rendered by the
Court of First Instance of Manila, Hon. Agustin P. Montesa, presiding, in its Criminal
Case No. 15841, People vs. Amado V. Hernandez, et al., and Criminal Case No.
15479, People vs. Bayani Espiritu, et al. In Criminal Case No. 15841 (G.R. No. L6026) the charge is for Rebellion with Multiple Murder, Arsons and Robberies; the
appellants are Amado V. Hernandez, Juan J. Cruz, Genaro de la Cruz, Amado
Racanday, Fermin Rodillas and Julian Lumanog; Aquilino Bunsol, Adriano Samson
and Andres Baisa, Jr. were among those sentenced in the judgment appealed from, but
they have withdrawn their appeal. In Criminal Case No. 15479 (G.R. No. L-6026) the
charge is for rebellion with murders, arsons and kidnappings; the accused are Bayani
Espiritu Teopista Valerio and Andres Balsa, Jr.; they all appealed but Andres Balsa, Jr.
withdrew his appeal.
The information filed against defendants Hernandez and others in Criminal Case No.
15481 alleged:
I. That on or about March 15, 1945, and for some time before the said date and
continuously thereafter, until the present time, in the City of Manila, Philippines, and
the place which they had chosen as the nerve center of all their rebellious activities in
the different parts of the Philippines, the said accused, conspiring, confederating and
cooperating with each other, as well as with the thirty-one (31) defendants charged in
Criminal Cases Nos. 19071, 14082, 14270, 14315 and 14344 of the Court of First
Instance of Manila (decided May 11, 1951) and also with others whose whereabouts
and identities are still unknown, the said accused and their other co-conspirators, being
then high ranking officers and/or members of, or otherwise affiliated with the
Communist Party of the Philippines (P.K.P.), which is now actively engaged in an
armed rebellion against the Government of the Philippines thru act theretofore
committed and planned to be further committed in Manila and other places in the
Philippines, and of which party the "Hukbong Mapagpalaya Ng Bayan"(H.M.B.)
otherwise or formerly known as the "Hukbalahaps" (Huks), unlawfully and did then
and there willfully, unlawfully and feloniously help, support, promote, maintain, cause,
direct and/or command the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) or the
"Hukbalahaps" (Huks) to rise publicly and take arms against the Republic of the
Philippines, or otherwise participate in such armed public uprising, for the purpose of
removing the territory of the Philippines from the allegiance to the government and
laws thereof as in fact the said "Hukbong Mapagpalaya Ng Bayan" or "Hukbalahaps"
have risen publicly and taken arms to attain the said purpose by then and there making
armed raids, sorties and ambushes, attacks against police, constabulary and army
detachments as well as innocent civilians, and as a necessary means to commit the
crime of rebellion, in connection therewith and in furtherance thereof, have then and
there committed acts of murder, pillage, looting, plunder, arson, and planned
destruction of private and public property to create and spread chaos, disorder, terror,
and fear so as to facilitate the accomplishment of the aforesaid purpose, as. follows, to
wit: (Enumeration of thirteen attacks on government forces or civilians by Huks on
May 6, 1946, August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June,
1946, April 28, 1949, August 25, 1950, August 26, 1950, August 25, 1950, September
12, 1950, March 28, 1950 and March 29, 1950.)
II. That during the period of time and under the same circumstances herein-above
indicated the said accused in the above-entitled case, conspiring among themselves and
with several others as aforesaid, willfully, unlawfully and feloniously organized,
established, led and/or maintained the Congress of Labor Organizations (CLO),
formerly known as the Committee on Labor Organizations (CLO), with central offices
in Manila and chapters and affiliated or associated labor unions and other "mass
organizations" in different places in the Philippines, as an active agency, organ, and
instrumentality of the Communist Party of the Philippines (P.K.P.) and as such agency,
organ, and instrumentality, to fully cooperate in, and synchronize its activities as the
CLO thus organized, established, led and/or maintained by the herein accused and their
co-conspirators, has in fact fully cooperated in and synchronized its activities with the
activities of the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) and other organs,
agencies, and instrumentalities of the Communist Party of the Philippines (P.K.P.), to
thereby assure, facilitate, and effect the complete and permanent success of the abovementioned armed rebellion against the Government of the Philippines.
The information filed against the defendants in Criminal Case No. 15479, Bayani
Espiritu Andres Baisa, Jr. and Teopista Valerio, alleges:
That on or about the 6th day of May, 1946, and for sometime prior and subsequent
thereto and continuously up to the present time, in the City of Manila, the seat of the
government of the Republic of the Philippines, which the herein accused have intended
to overthrow, and the place chosen for that purpose as the nerve center of all their
rebellious atrocities in the different parts of the country, the said accused being then
high ranking officials and/or members of the Communist Party of the Philippines
(P.K.P.) and/or of the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) otherwise or
formerly known as the "Hukbalahaps" (HUKS), the latter being the armed forces of
said Communist Party of the Philippines; having come to an agreement with the 29 of
the 31 accused in Criminal Cases Nos. 14071, 14082, 14270, 14315, 14344 of the
Court of First Instance of Manila and decided to commit the crime of rebellion, and
therefore, conspiring and confederating with all of the 29 accused in said criminal
cases, acting in accordance with their conspiracy and in furtherance thereof, together
with many others whose whereabouts and identities are still unknown up to the filing
of this information, and helping one another, did then and there willfully, unlawfully
and feloniously promote maintain, cause, direct and/or command the "Hukbong
Mapagpalaya Ng Bayan", (HMB) or the Hukbalahaps (HUKS) to rise publicly and take
Arms against the Government or otherwise participate therein for the purpose of
overthrowing the same, as in fact, the said "Hukbong Mapagpalaya Ng Bayan" or
Hukbalahap (HUKS) have risen publicly and taken arms against the Government, by
then and there making armed raids, sorties and ambushes, attacks against police,
constabulary and army detachment, and as a necessary means to commit the crime of
rebellion, in connection therewith and in furtherance thereof, by then and there
committing wanton acts of murder, spoilage, looting, arson, kidnappings, planned
destruction of private and public buildings, to create and spread terrorism in order to
facilitate the accomplishment of the aforesaid purpose, as follows to wit: (Enumeration
of thirteen attacks on Government forces or civilians by Huks on May 6, 1946. August
6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June 1946, April 28, 1949,
August 25, 1950, August 26, 1950, August 25, 1950, September 12, 1950, March 28,
1950 and March 29, 1950).
A joint trial of both cases was held, after which the court rendered the decision subject
of the present appeals.
APPEAL OF AMADO V. HERNANDEZ
After trial the Court of First Instance found, as against appellant Amado V. Hernandez,
the following: (1) that he is a member of the Communist Party of the Philippines and as
such had aliases, namely, Victor or Soliman; (2) that he was furnished copies of "Titis",
a Communist publication, as well as other publications of the Party; (3) that he held the
position of President of the Congress of Labor Organizations; (4) that he had close
connections with the Secretariat of the Communist Party and held continuous
communications with its leaders and its members; (5) that he furnished a
mimeographing machine used by the Communist Party, as well as clothes and supplies
for the military operations of the Huks; (6) that he had contacted well-known
Communists coming to the Philippines and had gone abroad to the WFTU conference
Brussels, Belgium as a delegate of the CLO, etc. Evidence was also received by the
court that Hernandez made various speeches encouraging the people to join in the Huk
movement in the provinces.
Amado V. Hernandez took the oath as member of the Communist Party in the month of
October, 1947, at the offices of the Congress of Labor Organizations at 2070 Azcarraga
in the presence of Guillermo Capadocia, Ramon Espiritu, Pedro Castro, Andres Balsa,
etc. As a Communist he was given the pseudonyms of Victor and Soliman, and
received copies of the Communist paper "Titis". He made various speeches on the
following dates and occasions:
(1) On August 29, 1948 before the Democratic Peace Rally of the CLO at Plaza
Miranda, in which he announced that the people will soon meet their dear comrade in
the person of Comrade Luis Taruc.
(2) On September 4, 1948 he conferred with Hindu Khomal Goufar at the Escolta, at
which occasion Balgos told Goufar that the PKM, CLO and the Huks are in one effort
that the PKM are the peasants in the field and the Huks are the armed forces of the
Communist Party; and the CLO falls under the TUD of the Communist
Party. 1wph1.t
(3) On October 2, 1948 he went abroad to attend the Second Annual Convention of the
World Federation of Trade Unions and after arrival from abroad a dinner was given to
him by the people of Gagalangin, at which Hernandez delivered a speech and he said
that he preferred to go with the Huks because he felt safer with them than with the
authorities of the Government.
(4) In April, 1949, he made a speech before a group of tenants in Malabon attacking the
frauds in the 1947 elections, graft and corruption in the elections and that if
improvement cannot be made by the ballots, they could be made by bullets; and
enjoined the people to go to the hills and join Luis Taruc the head of the dissidents in
the Philippines.
The court also found that there was a close tie-up between the Communist Party and
the Congress of Labor Organizations, of which Hernandez was the President, and that
this Congress was organized by Hernandez in conjunction with other Huks, namely:
Alfredo Saulo, Mariano Balgos, Guillermo Capadocia, etc.
(5) On October 2, 1949 he delivered a speech on the occasion of the commemoration

of the World Peace at the CLO headquarters at 330 P. Campa. He attacked the city
mayor and incited the people to go to Balintawak and see Bonifacio there and
thereafter join four comrades under the leadership of Luis Taruc.
We will now consider the nature and character of both the testimonial as well as the
documentary evidence, independently of each other, to find out if the said evidence
supports the findings of the court.
(6) On October 16, 1949 he delivered a speech before a convention of the unemployed
at 330 P. Campa. He asked the unemployed to approve a resolution urging the
Government to give them jobs. In conclusion he said that if the Government fails to
give them jobs the only way out was to join the revolutionary forces fighting in the
hills. He further said that Mao Tse Tung, leader of the People's Army in China, drove
Testimonial Evidence
Chiang Kai Shek from his country, and that Luis Taruc was also being chased by
Government forces run by puppets like Quirino, etc.
(7) On January 13, 1950 there was another meeting at 330 P. Campa. In his talk
Hernandez expressed regret that two foremost leaders of the CLO, Balgos and
Capadocia, had gone to the field to join the liberation army of the HMB, justifying
their going out and becoming heroes by fighting in the fields against Government
forces until the ultimate goal is achieved.
The above evidence was testified to by Florentino Diolata who was the official
photographer of the CLO since August, 1948.
On the tie-up between the Communist Party and the CLO Guillermo Calayag, a
Communist and a Huk from 1942 to 1950, explained:
(1) The ultimate goal of the Communist Party is to overthrow the president government
by force of aims and violence; thru armed revolution and replace it with the so-called
dictatorship of the proletariat the Communist Party carries its program of armed
overthrow of the present government by organizing the HMB and other forms of
organization's such as the CLO, PKM, union organizations, and the professional and
intellectual group; the CLO was organized by the Trade Union Division TUD of the
Communist Party.
(2) A good majority of the members of the Executive Committee and the Central
Committee of the CLO were also top ranking officials of the Communist Party;
activities undertaken by the TUD - the vital undertaking of the TUD is to see that the
directives coming from the organizational bureau of the Communist Party can be
discussed within the CLO especially the Executive Committee. And it is a fact that
since a good majority of the members of the Executive Committee are party members,
there is no time, there is no single time that those directives and decisions of the
organizational department, thru the TUD are being objected to by the Executive
Committee of the CLO. These directives refer to how the CLO will conduct its
functions. The executive committee is under the chairmanship of accused Amado V.
Hernandez.
(3) The CLO played its role in the overall Communist program of armed overthrow of
the present government and its replacement by the dictatorship of the proletariat by
means of propaganda - by propagating the principles of Communism, by giving
monetary aid, clothing, medicine and other forms of material help to the HMB. This
role is manifested in the very constitution of the CLO itself which expounded the
theory of classless society and the eradication of social classes (par. 5, Sec. 1, Art. 2,
page 18 of the CLO Constitution contained in the Fourth Annual Convention Souvenir
Program of the CLO Exh. "V-1579"). Thru propaganda, the CLO promoted the aims of
Communist Party and disseminated Communist ideas by:
(a) The conspicuous display of the portrait or, pictures of Crisanto Evangelista (Exh. V1662), founder of Communism in the Philippines, in the session hall of the CLO
headquarters at 2070 Azcarraga and then at 330 P. Campa;
(b) The distribution of foreign communist reading materials such as the World
Federation of Trade Union Magazine, International Union of Students magazine, Voice
magazine of the marine cooks of the CLO, World Committee of the Defenders of the
Peace magazine, Free Bulgaria magazine, Soviet Russia Today magazine and World
Federation of Democratic Youth magazine (Exhs. V-911, V-907, V-910, V-899, V-912,
V-853, W-996 and V-967);
(c) The publication and distribution of some local subversive publications such as the
"Titis", "Bisig", Kidlat", which are Communist Party organs; "The Philippine Labor
Demands Justice" and "Hands Off Korea" authored by accused Amado V. Hernandez;
(d) Principles of Communism were also propagated thru lectures, meetings, and by
means of organization of committees in the educational department as well as
researches in the Worker's Institute of the CLO.
(4) The CLO also helped carry out the program of the Communist Party thru
infiltration of party members and selected leaders of the HMB within the trade unions
under the control of the CLO. The Communist Party thru the CLO assigned
Communist Party leaders and organizers to different factories in order to organize
unions. After the organization of the union, it will affiliate itself with the CLO thru the
Communist leaders and the CLO in turn, will register said union with the Department
of Labor; and the orientation and indoctrination of the workers is continued in the line
of class struggle. After this orientation and infiltration of the Communist Party
members and selected leaders of the HMB with the trade unions under the control of
the CLO is already achieved and the group made strong enough to carry out its aims,
they will begin the sporadic strikes and the liquidation of anti-labor elements and antiCommunist elements and will create a so-called revolutionary crisis. That
revolutionary crisis will be done for the party to give directives to the HMB who are
fighting in the countrysides and made them come to the city gates. The entry of the
HMB is being paved by the simultaneous and sporadic strikes, by ultimate general
strikes thru the management of the CLO.
(i) Letter of SEC to Politburo reporting that Saulo be sent out and Soliman has
"tendencies of careerism and tendency to want to deal with leaders of the party"; that
he should be asked to choose to go underground or fight legally. (Exh. F-562)
Important Documents Submitted at Trial

1. Documents which proved that Amado V. Hernandez used the aliases "Victor", or was
referred to as "Victor" or "Soliman".
(a) Letter dated April 23, 1950 (signed) by Victor addressed to Julie telling the latter of
his sympathies for other communists, describing his experiences with Communists
abroad, telling Julie to dispose of materials that may be sent by Victor. (Exh. D-20012004)
(b) "Paano Maisasagawa, etc." mentions different groups of labor unions of which
Victor heads one group, consisting of the MRRCO, PTLD, PGWU, EMWU and IRWU
(Exh. C-2001-2008) Cadres assigned to different industries. (Exh. V-40-41)
(c) Handwritten certificate of Honofre Mangila states that he knew Amado Hernandez
as Victor from co-party members Hugo and Ely. (Exh. LL)
(d) Letter of Elias to Ka Eto requesting the latter to deliver attached letter to Victor.
(Exh. 1103)
(j) Explanation given by Hernandez why he did not join Saulo in going underground.
(Exh. V-87) (1) His election as councilor until December, 1951. (Exhs. V-42, W-9) (2)
His election as President of CLO until August of following year. (Exhs. V-42, W-9)
2. Letters and Messages of Hernandez.
(a) To Lyden Henry and Harry Reich, tells Huks still fighting. (Exh. V-80)
(b) To SOBSI Jakarta that Filipinos are joining other communist countries of the
East. (Exh. V-82)
(c) Press release on Saulo's disappearance published by Amado Hernandez. (Exh. W116-120)
(d) To Hugh and Eddie, July 8, 1949 Extends greetings to National Union of Marine
Cooks and Stewards, states that labor has one common struggle "the liberation of all
the peoples from the chains of tyranny, fascism and imperialism". (Exh. V-259)
(e) To Kas. Pablo and Estrada - talks of the fight - fight of labor. (Exh. V-85-89)
(e) Saulo's letter about his escape, asks Victor why his press statement was not
published in the newspapers. (Exh. C-362) Letter was however published by
Hernandez in the Daily Mirror.
(f) Appeal to the Women and Asia. (Exh. V-5-10)

(g) Letter to Julie (Exh. V-2001-2004)
(f) Letter of Taruc to Maclang directing the latter to give copy of Huk Story to Victor.
(Exh. D-463-64)
(h) Letter to Chan Lieu - states that leaders during the war are being persecuted, like
Taruc. Tells of reward of P100,000.00 on Taruc's head. (Exh. X-85-88)
(g) Notes of Salome Cruz, Huk courier, stating that she went to Soliman at Pampanga
St. to bring to the latter communications from the Communist Party. (Exh. D-1203)
That Soliman was given copies of "Titis". (Exh. D-1209)
(i) Letter to John Gates of the Daily Worker condemns Wall Street maneuvers;
corruption and graft in Quirino administration, etc. (Exh. V-83)
(h) SEC directions to Politburo members, Soliman not to be involved with Nacionalista
Rebels. (Exh. F-92-93. SEC)
(j) Cablegram: CLO join ILWU commends Harry Bridges, US Communist. (Exh. V79)
(k) Communication of Hernandez to CLO at MRRCO Praises Balgos and
Capadocia for joining the Huks. (Exhs. V-12-22, V-289)
(l) "Philippine labor Demands Justice" Attacks czars of Wall Street and U.S. Army
and Government. (Exh. V-94) .
(h) Taruc's letter to Maclang shows that Soliman had sent 7 lessons to Taruc. (Exh. D451-451-A)
(m) Letter to Taruc June 28, 1948.-States solidarity among the CLO Huks and
PKM. Attacks North Atlantic Pact. Praises Mao Tse Tung (contained in Exh. V-94)
(i) Associated with fellow ranking Communist leaders.
(n) "Philippines Is Not A Paradise" States of a delegation to Roxas attacking

unemployment. (Exh. V-90-93)
(o) Article "Progressive Philippines" (Exh. V-287)
(p) Article "Hands Off Korea" (Exhs. V-488-494, 495-501, 509-515, W-25-26)
(q) "Limang Buwang Balak Sa Pagpapalakas Ng Organisasyon". (Exh. X-35-38)
(r) Press statement of Hernandez opposes acceptance of decorations from Greece by
Romulo. (Exh. V-72)
3. Other Activities of Hernandez.
(a) Hernandez received clothes from Pres. Lines thru P. Campa, which clothes he sent
to the field. Letters show of sending of supplies to Huks. (Exh. S-383)
(b) Hernandez was asked to furnish portable typewriter, which he did furnish to Huks.
(Exh. C-364)
(c) Hernandez brought Taruc's letter about facts and incidents about Huks to Bulosan
for inclusion in Bulosan's book. (Exh. FF-1)
(d) Had conference with Kumar Goshal a Hindu, about the Huks and their armed
forces. (Photographs, Exhs. X-6 RR-54-55A)
(e) Supervised taking of pictures of sons of Capadocia and Joven. (Photographs, Exhs.
T-1, RR-136-138A)
(f) Had knowledge of the going underground of Capadocia and Balgos and issued press
release about their going underground. (Exh. F-91)
The Court upon consideration of the evidence submitted, found (1) that the Communist
Party was fully organized as a party and in order to carry out its aims and policies a
established a National Congress, a Central Committee (CC), Politburo PB, Secretariat
(SEC), Organization Bureau (OB), and National Courier or Communication Division
(NCD), each body performing functions indicated in their respective names; (2) that in
a meeting held on August 11, 1950 the SEC discussed the creation of a Military
Committee of the Party and a new GHQ, under which on September 29, 1950 the SEC
organized a special warfare division, with a technological division; (3) that on May 5,
1950 a body known as the National Intelligence Division was created, to gather
essential military intelligence and, in general, all information useful for the conduct of
the armed struggle (4) that a National Finance Committee was also organized as a part
of the Politburo and answerable to it; (5) that the country was divided into 10 Recos,
the 10th Reco comprising the Manila and suburbs command; (6) that since November,
1949 the CPP had declared the existence of a revolutionary situation and since then the
Party had gone underground and the CPP is leading the armed struggle for national
liberation, and called on the people to organize guerrillas and coordinate with the HMB
on the decisive struggle and final overthrow of the imperialist government; (7) that in
accordance with such plan the CPP prepared plans for expansion and development not
only of the Party but also of the HMB; the expansion of the cadres from 3,600 in July
1950 to 56,000 in September 1951, the HMB from 10,800 in July 1950 to 172,000 in
September 1951, et seq.
Around the month of January, 1950 it was decided by the CPP to intensify HMB
military operations for political purposes. The Politburo sanctioned the attacks made by
the Huks on the anniversary of the HMB on March 25, 1950. The HMB attacks that
were reported to the PB were those made in May, 1946; June, 1946; April 10, 1947;
May 9, 1947; August 19, 1947; August 25, 1950; August 26, 1950; October 15 and 17,
1950; May 6, 1946; August 6, 1946; April 10, 1947; May 9, 1947; August 19, 1947;
April 29, 1949; August 25, 1950; August 26, 1950; September 12, 1950; March 26,
1950; March 29, 1950.
The theory of the prosecution, as stated in the lower court's decision, is as follows:
(g) Victor mentioned to continue as contact for Chino. (Exh. C-362)

The evidence does not show that the defendants in these cases now before this Court
had taken a direct part in those raids and in the commission of the crimes that had been
committed. It is not, however, the theory of the prosecution that they in fact had direct
participation in the commission of the same but rather that the defendants in these
cases have cooperated, conspired and confederated with the Communist Party in the
prosecution and successful accomplishment of the aims and purposes of the said Party
thru the organization called the CLO (Congress of Labor Organizations).
The Court found that the CLO is independent and separate from the CPP, organized
under the same pattern as the CPP, having its own National Congress, a Central
Committee (which acts in the absence of and in representation of the National
Congress), an Executive Committee (which acts when the National Congress and the
Executive Committee are not in session), and seven permanent Committees, namely, of
Organization, Unemployment and Public Relations, Different Strikes and Pickets,
Finance, Auditing, Legislation and Political Action. Members of the Communist Party
dominate the committees of the CLO. The supposed tie-up between CPP and the CLO
of which Hernandez was the President, is described by the court below in finding, thus:
Just how the CLO coordinates its functions with the Communist Party organ under
which it operates was explained by witness Guillermo S. Calayag, one-time ranking
member of the Communist Party and the CLO who typewrites the "Patnubay sa
Education" from a handwritten draft of Capadocia, which is one of the texts used in the
Worker's institute of the CLO. According to him, the CLO plays its role by means of
propaganda, giving monetary aid, clothing, medicine and other material forms of help
to the HMB, which constitutes the armed forces of the Communist Party. Propaganda is
done by lectures, meetings, and the organization of committees of the educational
department as well as researches at the CLO Worker's Institute.
Another way of helping the Communist Party of the Philippines is by allowing the
Communist Party leaders to act as organizers in the different factories in forming a
union. These Party Members help workers in the factories to agitate for the eradication
of social classes and ultimately effect the total emancipation of the working classes
thru the establishment of the so-called dictatorship of the proletariat. It is the duty of
these Communist Party members to indoctrinate uninitiated workers in the union to
become proselytes of the Communist Party ideology. After the right number is secured
and a union is formed under a communist leader, this union is affiliated with the CLO
and this in turn registers the same with the Department of Labor. The orientation and
indoctrination of the masses is continued with the help of the CLO. The primary
objective of the CLO is to create what is called a revolutionary crisis. It seeks to attain
this objective by first making demands from the employers for concessions which
become more and more unreasonable until the employers would find it difficult to
grant the same. Then a strike is declared. But the strikes are only preparation for the
ultimate attainment of the Communist goal of armed overthrow of the government.
After the workers in the factories have already struck in general at the behest of the
Communist Party thru the CLO a critical point is reached when a signal is given for the
armed forces of the Communist Party, the HMB, to intervene and carry the revolution
now being conducted outside to within the city.
On the basis of the above findings, the court below found Hernandez guilty as principal
of the crime charged against him and sentenced him to suffer the penalty of reclusion
perpetua with the accessories provided by law, and to pay the proportionate amount of
the costs.
Our study of the testimonial and documentary evidence, especially those cited by the
Court in its decision and by the Solicitor General in his brief, discloses that defendantappellant Amado V. Hernandez, as a Communist, was an active advocate of the
principles of Communism, frequently exhorting his hearers to follow the footsteps of
Taruc and join the uprising of the laboring classes against capitalism and more
specifically against America and the Quirino administration, which he dubbed as a
regime of puppets of American imperialism. But beyond the open advocacy of
Communistic Theory there appears no evidence that he actually participated in the
actual conspiracy to overthrow by force the constituted authority.
Hernandez is the founder and head of the CLO. As such, what was his relation to the
rebellion? If, as testified to by Guillermo S. Calayag, the CLO plays merely the role of
propagation by lectures, meetings and organization of committees of education by
Communists; if, as stated, the CLO merely allowed Communist Party leaders to act as
organizers in the different factories, to indoctrinate the CLO members into the
Communist Party and proselytize them to the Communist ideology; if, as also indicated
by Calayag, the CLO purports to attain the ultimate overthrow of the Government first
by making demands from employers for concessions until the employers find it
difficult to grant the same, at which time a strike is declared; if it is only after the
various strikes have been carried out and a crisis is thereby developed among the
laboring class, that the Communist forces would intervene and carry the revolution
it is apparent that the CLO was merely a stepping stone in the preparation of the
laborers for the Communist' ultimate revolution. In other words, the CLO had no
function but that of indoctrination and preparation of the members for the uprising that
would come. It was only a preparatory organization prior to revolution, not the
revolution itself. The leader of the CLO therefore, namely Hernandez, cannot be
considered as a leader in actual rebellion or of the actual uprising subject of the
accusation. Hernandez, as President of the CLO therefore, by his presidency and
leadership of the CLO cannot be considered as having actually risen up in arms in
rebellion against the Government of the Philippines, or taken part in the conspiracy to
commit the rebellion as charged against him in the present case; he was merely a
propagandist and indoctrinator of Communism, he was not a Communist conspiring to
commit the actual rebellion by the mere fact of his presidency of the CLO.
The court below declares that since November 1949 the Communist Party of the
Philippines had declared the existence of the revolutionary situation and since then the
Party had gone underground, with the CPP leading the struggle for national integration
and that in the month of January 1950, it was decided by the said Party to intensify the
HMB military operations for political purposes. The court implicates the appellant
Hernandez as a co-conspirator in this resolution or acts of the Communist Party by his
mere membership thereto. We find this conclusion unwarranted. The seditious speeches
of Hernandez took place before November, 1949 when the CPP went underground. The
court below has not been able to point out, nor have We been able to find among all
acts attributed to Hernandez, any single fact or act of his from which it may be inferred
that he took part in the deliberations declaring the existence of a revolutionary
situation, or that he had gone underground. As a matter of fact the prosecution's
evidence is to the effect that Hernandez refused to go underground preferring to engage
in what they consider the legal battle for the cause.
The document, Exhibit F-562, which is quoted in the decision, contains the directive of
the SEC of September 1, 1950, to Saulo and Hernandez, which reads:
11. In view of the new developments in the city, send out Elias who prefers to work
outside. Present problem of fighting legally to Com. Soliman. If Soliman is prepared
for martyrdom, retain him to fight legally. If not, send him out with Elias. Same goes
with Com. Mino and other relatively exposed mass leaders.
And the lower court itself found that whereas Saulo went underground and joined the
underground forces outside the City, Hernandez remained in the City, engaged in the
work of propaganda, making speeches and causing the publication of such matters as
the Communist Party leaders directed him to publish.
That Hernandez refused to go underground is a fact which is further corroborated by
the following reasons (excuses) given by him for not going underground, namely (1)
that his term of councilor of the City of Manila was to extend to December, 1951; and
(2) that he was elected President of the CLO for a term which was to end the year
1951.
As a matter of fact the SEC gave instructions to Hernandez not to be involved with
Nacionalista Rebels, and reported to the Politburo that Hernandez "has tendencies of
careerism, and tending to want to deal with leaders of the Nacionalista Party instead of
following CPP organizational procedures."
We have also looked into the different documents which have been presented at the
time of the trial and which were confiscated from the office of the Politburo of the
Communist Party. The speeches of Hernandez were delivered before the declaration by
the Communist Party of a state of revolutionary situation in 1949. Neither was it shown
that Hernandez was a member of the Executive Committee, or of the SEC, or of the
Politburo of the Communist Party; so NO presumption can arise that he had taken part
in the accord or conspiracy declaring a revolution. In short, there has been no evidence,
direct or indirect, to relate or connect the appellant Hernandez with the uprising or the
resolution to continue or maintain said uprising, his participation in the deliberations
leading to the uprising being inferred only from the fact that he was a communist.
The court below further found that Hernandez had been furnishing supplies for the
Huks in the field. But the very document dated December 3, 1949, Exhibit D-420422,
cited in the decision (printed, p. 49), is to the effect that clothes and shoes that
Hernandez was supposed to have sent have not been received. It is true that some
clothes had been sent thru him to the field, but these clothes had come from a crew
member of a ship of the American President Lines. He also, upon request, sent a
portable typewriter to the SEC or Politburo. Furthermore, a certain Niagara Duplicating
machine received by Hernandez from one Rolland Scott Bullard a crew member of the
SS President Cleveland, appease later to have been forwarded by him to the officers of
the SEC or the Politburo.
The practice among the top Communists, as declared by the trial court appears to have
been for important members, if they intend actually to join the rebellion, to go
underground, which meant leaving the city, disappearing from sight and/or secretly
joining the forces in the field.
Lastly, it further appears that Taruc and other CPP leaders used to send notes to
appellant Hernandez, who in turn issued press releases for which he found space in the
local papers. His acts in this respect belong to the category of propaganda, to which he
appears to have limited his actions as a Communist.
The acts of the appellant as thus explained and analyzed fall under the category of acts
of propaganda, but do not prove that he actually and in fact conspired with the leaders
of the Communist Party in the uprising or in the actual rebellion, for which acts he is
charged in the information. And his refusal to go underground because of his political
commitments occasioned by his term of election as president of the CLO and the
impressions caused by his acts on the Communist leaders, to the effect that he was in
direct communication or understanding with the Nacionalista Party to which he was
affiliated, creates in Us the reasonable doubt that it was not his Communistic leanings
but his political ambitions, that motivated his speeches sympathizing with the Huks.
For which reason We hold that the evidence submitted fails to prove beyond reasonable
doubt that he has conspired in the instigation of the rebellion for which he is held to
account in this criminal case.
The question that next comes up for resolution is: Does his or anyone's membership in
the Communist Party per se render Hernandez or any Communist guilty of conspiracy
to commit rebellion under the provisions of Article 136 of the Revised Penal Code?
The pertinent provision reads:
ART. 136. Conspiracy and proposal to commit rebellion or insurrection. The
conspiracy and proposal to commit rebellion or insurrection shall be punished,
respectively, by prision correccional in its maximum period and a fine which shall not
exceed 5,000 pesos, and by prision correccional in its medium period and a fine not
exceeding 2,000 pesos.
The advocacy of Communism or Communistic theory and principle is not to be
considered as a criminal act of conspiracy unless transformed or converted into an
advocacy of action. In the very nature of things, mere advocacy of a theory or principle
is insufficient unless the communist advocates action, immediate and positive, the
actual agreement to start an uprising or rebellion or an agreement forged to use force
and violence in an uprising of the working class to overthrow constituted authority and
seize the reins of Government itself. Unless action is actually advocated or intended or
contemplated, the Communist is a mere theorist, merely holding belief in the
supremacy of the proletariat a Communist does not yet advocate the seizing of the reins
of Government by it. As a theorist the Communist is not yet actually considered as
engaging in the criminal field subject to punishment. Only when the Communist
advocates action and actual uprising, war or otherwise, does he become guilty of
conspiracy to commit rebellion. Borrowing the language of the Supreme Court of the
United States:
In our jurisprudence guilt is personal, and when the imposition of punishment on a

status or on conduct can only be justified by reference to the relationship of that status
or conduct to other concededly criminal activity (here advocacy of violent overthrow),
that relationship must be sufficiently substantial to satisfy the concept of personal guilt
in order to withstand attack under the Due Process Clause of the Fifth Amendment.
Membership, without more, in an organization engaged in illegal advocacy, it is now
said, has not heretofore been recognized by this Court to be such a relationship. ... .
What must be met, then, is the argument that membership, even when accompanied by
the elements of knowledge and specific intent, affords an insufficient quantum of
participation in the organization's alleged criminal activity, that is, an insufficiently
significant form of aid and encouragement to permit the imposition of criminal
sanctions on that basis. It must indeed be recognized that a person who merely
becomes a member of an illegal organization, by that "act" alone need be doing nothing
more than signifying his assent to its purposes and activities on one hand, and
providing, on the other, only the sort of moral encouragement which comes from the
knowledge that others believe in what the organization is doing. It may indeed be
argued that such assent and encouragement do fall short of the concrete, practical
impetus given to a criminal enterprise which is lent for instance by a commitment on
the part of the conspirator to act in furtherance of that enterprise. A member, as
distinguished from a conspirator, may indicate his approval of a criminal enterprise by
the very fact of his membership without thereby necessarily committing himself to
further it by any act or course of conduct whatever. (Scales v. United States, 367 U.S.
203, 6 L. ed. 782)
The most important activity of appellant Hernandez appears to be the propagation of
improvement of conditions of labor through his organization, the CLO. While the CLO
of which he is the founder and active president, has communistic tendencies, its
activity refers to the strengthening of the unity and cooperation between labor elements
and preparing them for struggle; they are not yet indoctrinated in the need of an actual
war with or against Capitalism. The appellant was a politician and a labor leader and it
is not unreasonable to suspect that his labor activities especially in connection with the
CLO and other trade unions, were impelled and fostered by the desire to secure the
labor vote to support his political ambitions. It is doubtful whether his desire to foster
the labor union of which he was the head was impelled by an actual desire to advance
the cause of Communism, not merely to advance his political aspirations.
Insofar as the appellant's alleged activities as a Communist are concerned, We have not
found, nor has any particular act on his part been pointed to Us, which would indicate
that he had advocated action or the use of force in securing the ends of Communism.
True it is, he had friends among the leaders of the Communist Party, and especially the
heads of the rebellion, but this notwithstanding, evidence is wanting to show that he
ever attended their meetings, or collaborated and conspired with said leaders in
planning and encouraging the acts of rebellion, or advancing the cause thereof. Insofar
as the furnishing of the mimeograph machine and clothes is concerned, it appears that
he acted merely as an intermediary, who passed said machine and clothes on to others.
It does not appear that he himself furnished funds or material help of his own to the
members of the rebellion or to the forces of the rebellion in the field.
But the very act or conduct of his in refusing to go underground, in spite of the
apparent desire of the chief of the rebellion, is clear proof of his non-participation in
the conspiracy to engage in or to foster the rebellion or the uprising.
We next consider the question as to whether the fact that Hernandez delivered speeches
of propaganda in favor of Communism and in favor of rebellion can be considered as a
criminal act of conspiracy to commit rebellion as defined in the law. In this respect, the
mere fact of his giving and rendering speeches favoring Communism would not make
him guilty of conspiracy, because there was no evidence that the hearers of his
speeches of propaganda then and there agreed to rise up in arms for the purpose of
obtaining the overthrow of the democratic government as envisaged by the principles
of Communism. To this effect is the following comment of Viada:
CUESTION 10. El que hace propaganda entre sus convecinos, induciendoles a que el
dia que se anunciara la subasta de consumes se echaran a la calle para conseguir
aunque fuera preciso acudir a la fuerza el reparto entre los vecinos ricos solamente,
sera responsable de un delito de conspiracion para la sedicion? El Tribunal Supreme
ha resuelto la negative al casar cierta sentencia de la Audiencia de Valencia, que
entendio lo contrario: "Considerando que, con areglo a lo que dispone el art. 4. del
Codigo Penal, hay conspiracion cuando dos o mas personas se conciertan para la
execution de un delito y resuelven cmeterlo; y no constando que existiera ese concierto
en cuanto a los hechos que se refieren en la tercera pregunta del veredicto, pues en ella
solo se habla de los actos de induccion que el procesado realizo, sin expresar el efecto
que la mismo produjo en el animo de las personas a quienes se dirigian, ni si estas
aceptaron o no lo que se las propuso, resulta evidence que faltan los clementos
integrantes de la conspiracion, etc." (Se. de 5 de Julio de 1907, Gaceta de 7 de Enero de
1909.) (Viada, Tomo I, Codigo Penal, p. 152)
In view of all the above circumstances We find that there is no concrete evidence
proving beyond reasonable doubt that the appellant (Hernandez) actually participated
in the rebellion or in any act of conspiracy to commit or foster the cause of the
rebellion. We are constrained, in view of these circumstances, to absolve, as We hereby
absolve, the appellant Amado V. Hernandez from the crime charged, with a
proportionate share of the costs de oficio.
APPEAL OF OTHER DEFENDANTS-APPELLANTS
All the other defendants were found guilty as accomplices in the crime of rebellion as
charged in the information and were each sentenced to suffer the penalty of 10 years
and 1 day of prision mayor, with the accessories provided by law, and to pay their
proportionate share of the costs.
Legal Considerations. Before proceeding to consider the appeals of the other
defendants, it is believed useful if not necessary to lay dawn the circumstances or facts
that may be determinative of their criminal responsibility or the existence or nature
thereof. To begin with, as We have exhaustively discussed in relation to the appeal of
Hernandez, we do not believe that mere membership in the Communist Party or in the
CLO renders the member liable, either of rebellion or of conspiracy to commit
rebellion, because mere membership and nothing more merely implies advocacy of
abstract theory or principle without any action being induced thereby; and that such
advocacy becomes criminal only if it is coupled with action or advocacy of action,
namely, actual rebellion or conspiracy to commit rebellion, or acts conducive thereto or
evincing the same.
On the other hand, membership in the HMB (Hukbalahap) implies participation in an
actual uprising or rebellion to secure, as the Huks pretend, the liberation of the peasants
and laboring class from thraldom. By membership in the HMB, one already advocates
uprising and the use of force, and by such membership he agrees or conspires that force
be used to secure the ends of the party. Such membership, therefore, even if there is
nothing more, renders the member guilty of conspiracy to commit rebellion punishable
by law.
And when a Huk member, not content with his membership, does anything to promote
the ends of the rebellion like soliciting contributions, or acting as courier, he thereby
becomes guilty of conspiracy, unless he takes to the field and joins in the rebellion or
uprising, in which latter case he commits rebellion.
In U.S. v. Vergara, infra, the defendants organized a secret society commonly known as
the "Katipunan", the purpose of which was to overthrow the government by force.
Each of the defendants on various times solicited funds from the people of Mexico,
Pampanga. The Court held that the defendants were guilty of conspiracy and proposal
to commit rebellion or insurrection and not of rebellion or insurrection itself. Thus, the
Court ruled that:
The letters found in his possession are dated February 14, 1950, before the Communist
Party went underground. We have been unable to find the evidence upon which the
court bases its conclusion that he received contributions for the Huks. With these
circumstances in mind, We are not convinced beyond reasonable doubt that as a
Communist he took part in the conspiracy among the officials of the Communist Party
to take part and support the rebellion of the Huks.
From the evidence adduced in this case we are of the opinion that the said defendants
are guilty, not of inciting, setting or foot, or assisting or engaging in rebellion, but
rather of the crime of conspiring to overthrow, put down, and destroy by force the
Government of the United States in the Philippine Islands, and therefore we find that
said defendants, and each of them, did, together with others, in the months of February
and March, 1903, in the Province of Pampanga, Philippine Islands, conspire to
overthrow, put down, and to destroy by force the Government of the United States in
the Philippine Islands. (U.S. v. Vergara, et al., 3 Phil. 432, 434.)
We are, therefore, constrained to absolve him of the charges filed against him.
GENARO DE LA CRUZ
The court found him to be a Communist since 1945, an officer of an organized
Communist branch in Pasay City, a member of the Central Committee and Treasurer of
the CLO. He admitted his membership and his position as member of the executive
committee and treasurer of the CLO these facts being corroborated by the witness
Guillermo Calayag.
JUAN J. CRUZ
The court found him to be a Communist with various aliases, a member of the Central
Committee of the CLO member of the Central Committee of the CPP and as such
committed to the establishment of the dictatorship of the proletariat To the same effect
is the testimony of Guillermo Calayag.
There is no evidence to connect him with the rebellion or to the conspiracy to commit
rebellion. He should therefore be absolved of the charges contained in the information.
AMADO RACANDAY
The trial court found him guilty as a Communist, a Secretary and Executive Committee
member of the CLO a communications center of the Communist Party, having been
found in possession of letters from Federico Maclang to Salome Cruz, and solicitor of
contributions for the Huks.
Racanday admits being a member of the Executive Committee of the CLO Editor of
the Kidlat of the Government Workers Union, receiving copies of the Titis. Calayag
testified that he was a member of the Central Committee of the Communist Party
entrusted with the duty of receiving directives of the Regional Committee of the
Communist Party.
His membership in the Communist Party dates as far back as the year 1945. As a
communist, Genaro de la Cruz received quotas and monetary contributions coming
from the areas under his jurisdiction, and one time he made a receipt from a member
from Caloocan at the CLO headquarters at Azcarraga signing the receipt as "Gonzalo"
which is one of his aliases. He also distributed copies of the "Titis" magazine. `
While his membership in the Communist Party plus his having received contributions
for the party indicate that he is an active member, it was not shown that the
contributions that he received from Communist Party members were received around
the year 1950 when the Central Committee of the Communist Party had already agreed
to conspire and go underground and support the Huk rebellion. Under these
circumstances We cannot find him guilty of conspiracy to commit rebellion because of
the lack of evidence to prove his guilt beyond reasonable doubt.
JULIAN LUMANOG
The court found him to be an organizer of HMB among the mill workers, solicited
contributions for the HMB and Central Committee member of the CLO as per
Testimony of Guillermo Calayag.
He admitted that he joined the Communist Party because he was made to believe that
the Party is for the welfare of the laborers. He also admitted being a member of the
Central Committee of the CLO Calayag testified that Lumanog organized the HMB
units of the Communist Party in the Lumber Unions and attended a Communist
meeting held by Maclang.
Domingo Clarin testified that he (Julian Lumanog) used to give the money collected by
him to one Nicasio Pamintuan, one of the members of the HMB Special Unit Trigger
Squad) in Manila for the use of the said unit.
Considering that the HMB was engaged in a rebellion to overthrow the government, it
is evident that by giving his contributions he actually participated in the conspiracy to
overthrow the government and should, therefore, be held liable for such conspiracy,
and should be sentenced accordingly.
The facts found by the court are sufficiently supported by the communications and
evidence submitted by the prosecution. The exhibits show that he was in constant
communication with the communists; serving them as courier. His oath as a member of
the Communist Party was submitted in court and in it he admits obedience to all orders
of the Party and to propagate the stability of the PKP.
Considering that the PKP was engaged in an actual uprising against the constituted
Government and that Bayani Espiritu was in constant communication with the
Communist Party and served it as courier, We believe that the court was fully justified
in finding him guilty. However, We believe that not having actually taken up arms in
the uprising he may only be declared guilty of conspiracy to commit rebellion.
TEOPISTA VALERIO
FERMIN RODILLAS
The trial court found that Fermin Rodillas was a member of the CPP and the CLO that
his activities consisted in soliciting contributions, in cash and in kind, from city
residents for the use of the HMB, turning over said collections to the Party; that he has
given asylum to a wanted Hukbalahap at his house at Juan Luna St., Gagalangin, which
house was used as Military post. The above findings of the court are fully supported by
the testimony of Domingo Clarin.
Considering that while he has not actually taken part in the rebellion, he has shown
sympathy with the cause by soliciting contributions for it and had given shelter to the
Huks. We feel that the court was fully justified in finding him guilty, but We hold that
he should be declared liable merely as a co-conspirator in the crime of conspiracy to
commit rebellion, and should be sentenced accordingly.
BAYANI ESPIRITU
This appellant was found by the court to be a Communist, he having admitted
membership in the Communist Party since 1945; that his duties as a Communist was to
help in the office of the National Finance Committee, assorting papers and written
documents; that sometimes he accompanied the purchaser of medicines, shoes, papers,
foodstuffs and clothing to be given to the Huks; that he is a member of the
Communication Division of the CPP in Manila, in charge of distribution of letters or
communications; that he admits having written to Salome Cruz, courier of the
Communist Party, when he asked for his necessities, such as money and shoes, etc.
The court below found that this appellant joined the Communists in 1938 in San Luis,
Pampanga, under Casto Alejandrino, who later became her common-law husband; that
her aliases are "Estrella" and "Star"; that she was found in possession of various
documents written to top Communists like Alejandrino, Lava and Romy, as well as a
letter from Taruc congratulating her for the delivers, of a son.
Jose Taguiang testified that she was a member of the Provincial Committee of the CPP
in Nueva Ecija, later Chairman of the Finance Department, and then promoted to
Finance Officer of the Central Luzon Committee. Alicia Vergara, a Huk courier,
testified that she delivered letter from the mountains to Teopista Valerie, who was in
turn also a courier.
Without considering the close relationship that she had with top Communist Casto
Alejandrino, We are satisfied that she herself was, aside from being a Huk courier, also
a Huk, a member of the HMB from 1942 to 1951. As she was a Communist and at the
same time a member of the HMB, and considering that the HMB was engaged in an
uprising to uproot the legitimate government, there cannot be any question that she was
in conspiracy with the other members of her Party against the constituted government.
We hold, therefore, that the evidence proves beyond reasonable doubt that she is guilty
of conspiracy to commit rebellion.
DEFENDANTS NOT INCLUDED IN DECISION
In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo Capadocia,
Mariano P. Balgos, Alfredo B. Saulo and Jacobo Espino was dismissed because they
have not been apprehended at the time of the trial.
PEOPLE
VS.
EVANGELISTA,
57
REPUBLIC ACT NO. 1700, DISTINGUISHED
PHIL.
354
AND
In the case at bar the prosecution is for actual rebellion which consists in rising
publicly and taking aims against the Government for the purpose of removing from the
allegiance to said Government or its laws, the territory of the Philippines, or any part
thereof, etc., a crime defined in Article 134 of the Revised Penal Code; whereas
Evangelista was charged and convicted for inciting to rebellion under Art. 138, Revised
Penal Code (formerly Sec. 2, Act No. 292). As the specific charge against appellants is
that of rising up in arms in actual rebellion against the Government, they cannot be
held guilty of inciting the people to arms under Article 138, which is a different
offense.
WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025) defendants-appellants

Amado V. Hernandez, Juan J. Cruz, Amado Racanday and Genaro de la Cruz are
absolved from the charges contained in the information, with their proportionate share
of the costs de oficio. The defendants-appellants Julian Lumanog and Fermin Rodillas
in Criminal Case No. 15841 (G.R. No. L-6025) and the defendants-appellants Bayani
Espiritu and Teopista Valerio in Criminal Case No. 15479 (G.R. No. L-6026) are
hereby found guilty of the crime of conspiracy to commit rebellion, as defined and
punished in Article 136 of the Revised Penal Code, and each and everyone of them is
hereby sentenced to suffer imprisonment for five years, four months and twenty-one
days of prision correccional, and to pay a fine of P5,000.00, with subsidiary
imprisonment in case of insolvency and to pay their proportional share of the costs. So
ordered.
On the other hand, Rep. Act 1700, known as the Anti-subversion Act, which penalizes
membership in any organization or association committed to subvert the Government,
cannot be applied to the appellants because said Act was approved on June 20, 1957
and was not in force at the time of the commission of the acts charged against
appellants (committed 1945-1950) ; the Anti-Subversion Act punishes participation or
membership in an organization committed to overthrow the duly constituted
Government, a crime district from that of actual rebellion with which appellants are
charged.
CONCLUSION
EN BANC
G.R. No. 92163 June 5, 1990
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN

PONCE
ENRILE, petitioner
vs.
JUDGE JAIME SALAZAR (Presiding Judge of the Regional Trial Court of
Quezon City [Br. 103], SENIOR STATE PROSECUTOR AURELIO TRAMPE,
PROSECUTOR FERDINAND R. ABESAMIS, AND CITY ASSISTANT CITY
PROSECUTOR EULOGIO MANANQUIL, NATIONAL BUREAU OF
INVESTIGATION DIRECTOR ALFREDO LIM, BRIG. GEN. EDGAR DULA
TORRES (Superintendent of the Northern Police District) AND/ OR ANY AND
ALL PERSONS WHO MAY HAVE ACTUAL CUSTODY OVER THE PERSON
OF JUAN PONCE ENRILE,respondents.
signed and earlier that day filed by a panel of prosecutors composed of Senior State
Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis and Assistant
City Prosecutor Eulogio Mananquil, Jr., charging Senator Enrile, the spouses Rebecco
and Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion with murder
and multiple frustrated murder allegedly committed during the period of the failed
coup attempt from November 29 to December 10, 1990. Senator Enrile was taken to
and held overnight at the NBI headquarters on Taft Avenue, Manila, without bail, none
having been recommended in the information and none fixed in the arrest warrant. The
following morning, February 28, 1990, he was brought to Camp Tomas Karingal in
Quezon City where he was given over to the custody of the Superintendent of the
Northern Police District, Brig. Gen. Edgardo Dula Torres. 3
G.R. No. 92164 June 5, 1990
On the same date of February 28, 1990, Senator Enrile, through counsel, filed the
petition for habeas corpusherein (which was followed by a supplemental petition filed
on March 2, 1990), alleging that he was deprived of his constitutional rights in being,
or having been:
SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, petitioners,

vs.
PROSECUTORS FERNANDO DE LEON, AURELIO C. TRAMPE,
FFRDINAND R. ABESAMIS, AND EULOGIO C. MANANQUIL, and HON.
JAIME W. SALAZAR, JR., in his capacity as Presiding Judge, Regional Trial
Court, Quezon City, Branch 103, respondents.
(a) held to answer for criminal offense which does not exist in the statute books;
(b) charged with a criminal offense in an information for which no complaint was
initially filed or preliminary investigation was conducted, hence was denied due
process;
NARVASA, J.:
(c) denied his right to bail; and
Thirty-four years after it wrote history into our criminal jurisprudence, People vs.
Hernandez 1 once more takes center stage as the focus of a confrontation at law that
would re-examine, if not the validity of its doctrine, the limits of its applicability. To be
sure, the intervening period saw a number of similar cases 2 that took issue with the
ruling-all with a marked lack of success-but none, it would Beem, where season and
circumstance had more effectively conspired to attract wide public attention and excite
impassioned debate, even among laymen; none, certainly, which has seen quite the
kind and range of arguments that are now brought to bear on the same question.
(d) arrested and detained on the strength of a warrant issued without the judge who
issued it first having personally determined the existence of probable cause. 4
The facts are not in dispute. In the afternoon of February 27, 1990, Senate Minority
Floor Leader Juan Ponce Enrile was arrested by law enforcement officers led by
Director Alfredo Lim of the National Bureau of Investigation on the strength of a
warrant issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon City
Branch 103, in Criminal Case No. 9010941. The warrant had issued on an information
The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for
hearing on March 6, 1990. 5On March 5, 1990, the Solicitor General filed a
consolidated return 6 for the respondents in this case and in G.R. No. 92164 7 Which had
been contemporaneously but separately filed by two of Senator Enrile's co-accused, the
spouses Rebecco and Erlinda Panlilio, and raised similar questions. Said return urged
that the petitioners' case does not fall within the Hernandezruling because-and this is
putting it very simply-the information in Hernandez charged murders and other
common crimes committed as a necessary means for the commission of
rebellion, whereas the information against Sen. Enrile et al.charged murder and
frustrated murder committed on the occasion, but not in furtherance, of
rebellion. Stated otherwise, the Solicitor General would distinguish between the
complex crime ("delito complejo") arising from an offense being a necessary means for
committing another, which is referred to in the second clause of Article 48, Revised
Penal Code, and is the subject of the Hernandez ruling, and the compound crime
("delito compuesto") arising from a single act constituting two or more grave or less
grave offenses referred to in the first clause of the same paragraph, with
which Hernandez was not concerned and to which, therefore, it should not apply.
The parties were heard in oral argument, as scheduled, on March 6, 1990, after which
the Court issued its Resolution of the same date 8 granting Senator Enrile and the
Panlilio spouses provisional liberty conditioned upon their filing, within 24 hours from
notice, cash or surety bonds of P100,000.00 (for Senator Enrile) and P200,000.00 (for
the Panlilios), respectively. The Resolution stated that it was issued without prejudice
to a more extended resolution on the matter of the provisional liberty of the petitioners
and stressed that it was not passing upon the legal issues raised in both cases. Four
Members of the Court 9 voted against granting bail to Senator Enrile, and two 10 against
granting bail to the Panlilios.
The Court now addresses those issues insofar as they are raised and litigated in Senator
Enrile's petition, G.R. No. 92163.
The parties' oral and written pleas presented the Court with the following options:
(a) abandon Hernandez and adopt the minority view expressed in the main dissent of
Justice Montemayor in said case that rebellion cannot absorb more serious crimes, and
that under Article 48 of the Revised Penal Code rebellion may properly be complexed
with common offenses, so-called; this option was suggested by the Solicitor General in
oral argument although it is not offered in his written pleadings;
(b) hold Hernandez applicable only to offenses committed in furtherance, or as a
necessary means for the commission, of rebellion, but not to acts committed in the
course of a rebellion which also constitute "common" crimes of grave or less grave
character;
(c) maintain Hernandez as applying to make rebellion absorb all other offenses
committed in its course, whether or not necessary to its commission or in furtherance
thereof.
On the first option, eleven (11) Members of the Court voted against abandoning
Hernandez. Two (2) Members felt that the doctrine should be re-examined. 10-A In the
view of the majority, the ruling remains good law, its substantive and logical bases
have withstood all subsequent challenges and no new ones are presented here
persuasive enough to warrant a complete reversal. This view is reinforced by the fact
that not too long ago, the incumbent President, exercising her powers under the 1986
Freedom Constitution, saw fit to repeal, among others, Presidential Decree No. 942 of
the former regime which precisely sought to nullify or neutralize Hernandez by
enacting a new provision (Art. 142-A) into the Revised Penal Code to the effect that
"(w)hen by reason, or on the occasion, of any of the crimes penalized in this Chapter
(Chapter I of Title 3, which includes rebellion), acts which constitute offenses upon
which graver penalties are imposed by law are committed, the penalty for the most
serious offense in its maximum period shall be imposed upon the offender."' 11 In thus
acting, the President in effect by legislative flat reinstated Hernandez as binding
doctrine with the effect of law. The Court can do no less than accord it the same
recognition, absent any sufficiently powerful reason against so doing.
On the second option, the Court unanimously voted to reject the theory
that Hernandez is, or should be, limited in its application to offenses committed as a
necessary means for the commission of rebellion and that the ruling should not be
interpreted as prohibiting the complexing of rebellion with other common crimes
committed on the occasion, but not in furtherance, thereof. While four Members of the
Court felt that the proponents' arguments were not entirely devoid of merit, the
consensus was that they were not sufficient to overcome what appears to be the real
thrust of Hernandez to rule out the complexing of rebellion with any other offense
committed in its course under either of the aforecited clauses of Article 48, as is made
clear by the following excerpt from the majority opinion in that case:
There is one other reason-and a fundamental one at that-why Article 48 of our Penal
Code cannot be applied in the case at bar. If murder were not complexed with rebellion,
and the two crimes were punished separately (assuming that this could be done), the
following penalties would be imposable upon the movant, namely: (1) for the crime of
rebellion, a fine not exceeding P20,000 and prision mayor, in the corresponding period,
depending upon the modifying circumstances present, but never exceeding 12 years
of prision mayor, and (2) for the crime of murder, reclusion temporal in its maximum
period to death, depending upon the modifying circumstances present. in other words,
in the absence of aggravating circumstances, the extreme penalty could not be
imposed upon him. However, under Article 48 said penalty would have to be meted
out to him, even in the absence of a single aggravating circumstance. Thus, said
provision, if construed in conformity with the theory of the prosecution, would
be unfavorable to the movant.
Upon the other hand, said Article 48 was enacted for the purpose of favoring the
culprit, not of sentencing him to a penalty more severe than that which would be proper
if the several acts performed by him were punished separately. In the words of
Rodriguez Navarro:
La unificacion de penas en los casos de concurso de delitos a que hace referencia este
articulo (75 del Codigo de 1932), esta basado francamente en el principio pro reo.' (II
Doctrina Penal del Tribunal Supremo de Espana, p. 2168.)
We are aware of the fact that this observation refers to Article 71 (later 75) of the
Spanish Penal Code (the counterpart of our Article 48), as amended in 1908 and then in
1932, reading:
Las disposiciones del articulo anterior no son aplicables en el caso de que un solo
hecho constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario para
cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito mas grave en su
grado maximo, hasta el limite que represents la suma de las que pudieran imponerse,
penando separadamente los delitos.
Cuando la pena asi computada exceda de este limite, se sancionaran los delitos por
separado. (Rodriguez Navarro, Doctrina Penal del Tribunal Supremo, Vol. II, p. 2163)
and that our Article 48 does not contain the qualification inserted in said amendment,
restricting the imposition of the penalty for the graver offense in its maximum period to
the case when it does not exceed the sum total of the penalties imposable if the acts
charged were dealt with separately. The absence of said limitation in our Penal Code
does not, to our mind, affect substantially the spirit of said Article 48. Indeed, if one act
constitutes two or more offenses, there can be no reason to inflict a punishment graver
than that prescribed for each one of said offenses put together. In directing that the
penalty for the graver offense be, in such case, imposed in its maximum period, Article
48 could have had no other purpose than to prescribe a penalty lower than the
aggregate of the penalties for each offense, if imposed separately. The reason for this
benevolent spirit of article 48 is readily discernible. When two or more crimes are the
result of a single act, the offender is deemed less perverse than when he commits said
crimes thru separate and distinct acts. Instead of sentencing him for each crime
independently from the other, he must suffer the maximum of the penalty for the more
serious one, on the assumption that it is less grave than the sum total of the separate
penalties for each offense. 12
The rejection of both options shapes and determines the primary ruling of the Court,
which is that Hernandezremains binding doctrine operating to prohibit the complexing
of rebellion with any other offense committed on the occasion thereof, either as a
means necessary to its commission or as an unintended effect of an activity that
constitutes rebellion.
This, however, does not write finis to the case. Petitioner's guilt or innocence is not
here inquired into, much less adjudged. That is for the trial court to do at the proper
time. The Court's ruling merely provides a take-off point for the disposition of other
questions relevant to the petitioner's complaints about the denial of his rights and to the
propriety of the recourse he has taken.
The Court rules further (by a vote of 11 to 3) that the information filed against the
petitioner does in fact charge an offense. Disregarding the objectionable phrasing that
would complex rebellion with murder and multiple frustrated murder, that indictment is
to be read as charging simple rebellion. Thus, in Hernandez, the Court said:
In conclusion, we hold that, under the allegations of the amended information against
defendant-appellant Amado V. Hernandez, the murders, arsons and robberies described
therein are mere ingredients of the crime of rebellion allegedly committed by said
defendants, as means "necessary" (4) for the perpetration of said offense of rebellion;
that the crime charged in the aforementioned amended information is, therefore, simple
rebellion, not the complex crime of rebellion with multiple murder, arsons and
robberies; that the maximum penalty imposable under such charge cannot exceed
twelve (12) years of prision mayor and a fine of P2H,HHH; and that, in conformity
with the policy of this court in dealing with accused persons amenable to a similar
punishment, said defendant may be allowed bail. 13
The plaint of petitioner's counsel that he is charged with a crime that does not exist in
the statute books, while technically correct so far as the Court has ruled that rebellion
may not be complexed with other offenses committed on the occasion thereof, must
therefore be dismissed as a mere flight of rhetoric. Read in the context ofHernandez,
the information does indeed charge the petitioner with a crime defined and punished by
the Revised Penal Code: simple rebellion.
Was the petitioner charged without a complaint having been initially filed and/or
preliminary investigation conducted? The record shows otherwise, that a complaint
against petitioner for simple rebellion was filed by the Director of the National Bureau
of Investigation, and that on the strength of said complaint a preliminary investigation
was conducted by the respondent prosecutors, culminating in the filing of the
questioned information.14 There is nothing inherently irregular or contrary to law in
filing against a respondent an indictment for an offense different from what is charged
in the initiatory complaint, if warranted by the evidence developed during the
preliminary investigation.
It is also contended that the respondent Judge issued the warrant for petitioner's arrest
without first personallydetermining the existence of probable cause by examining
under oath or affirmation the complainant and his witnesses, in violation of Art. III,
sec. 2, of the Constitution. 15 This Court has already ruled, however, that it is not the
unavoidable duty of the judge to make such a personal examination, it being sufficient
that he follows established procedure by personally evaluating the report and the
supporting documents submitted by the prosecutor. 16 Petitioner claims that the warrant
of arrest issued barely one hour and twenty minutes after the case was raffled off to the
respondent Judge, which hardly gave the latter sufficient time to personally go over the
voluminous records of the preliminary investigation. 17 Merely because said respondent
had what some might consider only a relatively brief period within which to comply
with that duty, gives no reason to assume that he had not, or could not have, so
complied; nor does that single circumstance suffice to overcome the legal presumption
that official duty has been regularly performed.
Petitioner finally claims that he was denied the right to bail. In the light of the Court's
reaffirmation of Hernandez as applicable to petitioner's case, and of the logical and
necessary corollary that the information against him should be considered as charging
only the crime of simple rebellion, which is bailable before conviction, that must now
be accepted as a correct proposition. But the question remains: Given the facts from
which this case arose, was a petition for habeas corpus in this Court the appropriate
vehicle for asserting a right to bail or vindicating its denial?
The criminal case before the respondent Judge was the normal venue for invoking the
petitioner's right to have provisional liberty pending trial and judgment. The original
jurisdiction to grant or deny bail rested with said respondent. The correct course was
for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail,
claiming a right to bail per se by reason of the weakness of the evidence against him.
Only after that remedy was denied by the trial court should the review jurisdiction of
this Court have been invoked, and even then, not without first applying to the Court of
Appeals if appropriate relief was also available there.
Even acceptance of petitioner's premise that going by the Hernandez ruling, the
information charges a non-existent crime or, contrarily, theorizing on the same basis
that it charges more than one offense, would not excuse or justify his improper choice
of remedies. Under either hypothesis, the obvious recourse would have been a motion
to quash brought in the criminal action before the respondent Judge. 18
There thus seems to be no question that All the grounds upon which petitioner has
founded the present petition, whether these went into the substance of what is charged
in the information or imputed error or omission on the part of the prosecuting panel or
of the respondent Judge in dealing with the charges against him, were originally
justiciable in the criminal case before said Judge and should have been brought up
there instead of directly to this Court.
There was and is no reason to assume that the resolution of any of these questions was
beyond the ability or competence of the respondent Judge-indeed such an assumption
would be demeaning and less than fair to our trial courts; none whatever to hold them
to be of such complexity or transcendental importance as to disqualify every court,
except this Court, from deciding them; none, in short that would justify by passing
established judicial processes designed to orderly move litigation through the hierarchy
of our courts. Parenthentically, this is the reason behind the vote of four Members of
the Court against the grant of bail to petitioner: the view that the trial court should not
thus be precipitately ousted of its original jurisdiction to grant or deny bail, and if it
erred in that matter, denied an opportunity to correct its error. It makes no difference
that the respondent Judge here issued a warrant of arrest fixing no bail. Immemorial
practice sanctions simply following the prosecutor's recommendation regarding bail,
though it may be perceived as the better course for the judge motu proprio to set a bail
hearing where a capital offense is charged. 19 It is, in any event, incumbent on the
accused as to whom no bail has been recommended or fixed to claim the right to a bail
hearing and thereby put to proof the strength or weakness of the evidence against him.
It is apropos to point out that the present petition has triggered a rush to this Court of
other parties in a similar situation, all apparently taking their cue from it, distrustful or
contemptuous of the efficacy of seeking recourse in the regular manner just outlined.
The proliferation of such pleas has only contributed to the delay that the petitioner may
have hoped to avoid by coming directly to this Court.
Not only because popular interest seems focused on the outcome of the present
petition, but also because to wash the Court's hand off it on jurisdictional grounds
would only compound the delay that it has already gone through, the Court now
decides the same on the merits. But in so doing, the Court cannot express too strongly
the view that said petition interdicted the ordered and orderly progression of
proceedings that should have started with the trial court and reached this Court only if
the relief appealed for was denied by the former and, in a proper case, by the Court of
Appeals on review.
Let it be made very clear that hereafter the Court will no longer countenance, but will
give short shrift to, pleas like the present, that clearly short-circuit the judicial process
and burden it with the resolution of issues properly within the original competence of
the lower courts. What has thus far been stated is equally applicable to and decisive of
the petition of the Panlilio spouses (G.R. No. 92164) which is virtually Identical to that
of petitioner Enrile in factualmilieu and is therefore determinable on the same
principles already set forth. Said spouses have uncontestedly pleaded 20 that warrants of
arrest issued against them as co-accused of petitioner Enrile in Criminal Case No. 9010941, that when they appeared before NBI Director Alfredo Lim in the afternoon of
March 1, 1990, they were taken into custody and detained without bail on the strength
of said warrants in violation-they claim-of their constitutional rights.
It may be that in the light of contemporary events, the act of rebellion has lost that
quitessentiany quixotic quality that justifies the relative leniency with which it is
regarded and punished by law, that present-day rebels are less impelled by love of
country than by lust for power and have become no better than mere terrorists to whom
nothing, not even the sanctity of human life, is allowed to stand in the way of their
ambitions. Nothing so underscores this aberration as the rash of seemingly senseless
killings, bombings, kidnappings and assorted mayhem so much in the news these days,
as often perpetrated against innocent civilians as against the military, but by and large
attributable to, or even claimed by so-called rebels to be part of, an ongoing rebellion.
It is enough to give anyone pause-and the Court is no exception-that not even the
crowded streets of our capital City seem safe from such unsettling violence that is
disruptive of the public peace and stymies every effort at national economic recovery.
There is an apparent need to restructure the law on rebellion, either to raise the penalty
therefor or to clearly define and delimit the other offenses to be considered as absorbed
thereby, so that it cannot be conveniently utilized as the umbrella for every sort of
illegal activity undertaken in its name. The Court has no power to effect such change,
for it can only interpret the law as it stands at any given time, and what is needed lies
beyond interpretation. Hopefully, Congress will perceive the need for promptly seizing
the initiative in this matter, which is properly within its province.
WHEREFORE, the Court reiterates that based on the doctrine enunciated in People vs.
Hernandez, the questioned information filed against petitioners Juan Ponce Enrile and
the spouses Rebecco and Erlinda Panlilio must be read as charging simple rebellion
only, hence said petitioners are entitled to bail, before final conviction, as a matter of
right. The Court's earlier grant of bail to petitioners being merely provisional in
character, the proceedings in both cases are ordered REMANDED to the respondent
Judge to fix the amount of bail to be posted by the petitioners. Once bail is fixed by
said respondent for any of the petitioners, the corresponding bail bond flied with this
Court shall become functus oficio. No pronouncement as to costs.
SO ORDERED.

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xxx xxx xxx

which wound or injuries caused the instantaneous death of Governor Gregorio P.

G.R. No. 84612 March 11, 1992

The undisputed facts 6 of the case show that:

Accused Aurelio Silvoza is hereby absolved from any criminal liability. 4

CRIM LAW II (2nd Assign) | 3

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

G.R. No. 112235 November 29, 1995

CRIM LAW II (2nd Assign) | 5

Q What was that incident if any, please narrate?

CRIM LAW II (2nd Assign) | 7

organization," 32 without, however, specifying what the "offense" was. Appellant

Q What is your participation in the group?

As correctly observed by the Solicitor General, appellant's contentions are couched in

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

CRIM LAW II (2nd Assign) | 10

7. Who asked you to join it? Nobody.

Cipriano Lizardo, Ildefonso de la Cruz, Roque Ebol, Francisco Garcia, Benigno

1. The admission of exhibits C to C-76

CRIM LAW II (2nd Assign) | 15

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

November 29, 1954

bitterly attacking Punzalan, accusing him of dishonesty, corruption in office, abuse of

CRIM LAW II (2nd Assign) | 17

said several and separate crimes, as hereinafter specified. We feel particularly

In conclusion, we find appellants guilty of sedition, multiple murder, arson, frustrated

CRIM LAW II (2nd Assign) | 21

G.R. No. 171396

PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD LLAMAS, H.

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A.

IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO,

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.

CRIM LAW II (2nd Assign) | 23

WHEREAS, the activities above-described, their consequences, ramifications and

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the

She cited the following facts as bases:

Philippines, and Commander-in-Chief of the Republic of the Philippines, and pursuant

CRIM LAW II (2nd Assign) | 26

First, we must resolve the procedural roadblocks.

Such contention lacks merit.

1) Whetherthe Supreme Court can review the factual bases of PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

CRIM LAW II (2nd Assign) | 29

Now, the application of the above principles to the present petitions.

(1) the cases involve constitutional issues;

It is wrong therefore to wish to make political institutions as strong as to render it

governance, as well as all constitutional governance: increasing administrative

CRIM LAW II (2nd Assign) | 33

6) The measures adopted in the prosecution of the a constitutional dictatorship should

government responsible. He refused to equate constitutionalism with the enfeebling

CRIM LAW II (2nd Assign) | 34

particular litigant claims that a statute is unconstitutional as applied to him or

same manner, extend such proclamation or suspension for a period to be determined by

state of national emergency. While President Arroyos authority to declare a "state of

Sec. 5. Memorandum Orders. Acts of the President on matters of administrative

CRIM LAW II (2nd Assign) | 38

Section 23, Article VI of the Constitution reads:

CRIM LAW II (2nd Assign) | 43

Such closure is in the nature of previous restraint or censorship abhorrent to the

CRIM LAW II (2nd Assign) | 47

ALMARIO CATUBIG alias Nixon, JIMMY BENGAL alias "Macoboy," ENRICO

On victim CPL ALFREDO DELA CRUZ: