Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 101837 February 11, 1992
ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court, NCJR
Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.
FELICIANO, J.:
According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon Maguan was driving
his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it
is a one-way street and started travelling in the opposite or "wrong" direction. At the corner of Wilson and J. Abad
Santos Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and
shot Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant
was able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting
and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber pistol. Verification at the Land
Transportation Office showed that the car was registered to one Elsa Ang Go.
The following day, the police returned to the scene of the shooting to find out where the suspect had come from; they
were informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police obtained a
facsimile or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard of the
bake shop was shown a picture of petitioner and he positively identified him as the same person who had shot Maguan.
Having established that the assailant was probably the petitioner, the police launched a manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was being
hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to the
shooting, who was at the police station at that time, positively identified petitioner as the gunman. That same day, the
police promptly filed a complaint for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor
of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of
his lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the
provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver.
On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, the
victim, Eldon Maguan, died of his gunshot wound(s).
Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an
information for murder 3 before the Regional Trial Court. No bail was recommended. At the bottom of the information,
the Prosecutor certified that no preliminary investigation had been conducted because the accused did not execute and
sign a waiver of the provisions of Article 125 of the Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an omnibus motion for
immediate release and proper preliminary investigation, 4 alleging that the warrantless arrest of petitioner was unlawful
and that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed that
he be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on
the last page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a
cash bond of P100,000.00.

On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite action on the
Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date,
approved the cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary
investigation 8 and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner had
filed before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and preliminary
investigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend
cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11
July 1991.
Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation and cancelling
the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the following: (1) the 12 July
1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender
himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary investigation was
recalled and cancelled; (3) petitioner's omnibus motion for immediate release and preliminary investigation dated 11
July 1991 was treated as a petition for bail and set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing
the 17 July 1991 Order, contending that the information was null and void because no preliminary investigation had
been previously conducted, in violation of his right to due process. Petitioner also moved for suspension of all
proceedings in the case pending resolution by the Supreme Court of his petition; this motion was, however, denied by
respondent Judge.
On 23 July 1991, petitioner surrendered to the police.
By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the
Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August
1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit
petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of
his refusal to enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set the criminal case
for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22
November 1991. 11
On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view of
public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a
month, thus prolonging his detention, he was entitled to be released on habeas corpus.
On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition for certiorari, prohibition
and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently consolidated
in the Court of Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his arraignment
on the ground that that motion had become moot and academic.

On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness.
On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing the two (2) petitions, on the
following grounds:
a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged
had been "freshly committed." His identity had been established through investigation. At the time he
showed up at the police station, there had been an existing manhunt for him. During the confrontation
at the San Juan Police Station, one witness positively identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived
his right to preliminary investigation by not invoking it properly and seasonably under the Rules.
c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial
court had the inherent power to amend and control its processes so as to make them conformable to
law and justice.
d. Since there was a valid information for murder against petitioner and a valid commitment order
(issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to
the custody of the Provincial Warden), the petition for habeas corpus could not be granted.
On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed a
"Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity.
On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the Court issued a
Resolution directing respondent Judge to hold in abeyance the hearing of the criminal case below until further orders
from this Court.
In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless arrest
had been effected by the San Juan Police in respect of petitioner Go; and second, whether petitioner had effectively
waived his right to preliminary investigation. We consider these issues seriatim.
In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validly
arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had
been sufficiently established by police work, petitioner was validly arrested six (6) days later at the San Juan Police
Station. The Solicitor General invokes Nazareno v. Station Commander, etc., et al., 16 one of the seven (7) cases
consolidated with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a
majority of the Court upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in
connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions of
Section 7, Rule 112 of the Rules of Court were applicable and because petitioner had declined to waive the provisions of
Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the information for murder even
without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police
station six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not
been "just committed" at the time that he was arrested. Moreover, none of the police officers who arrested him had
been an eyewitness to the shooting of Maguan and accordingly none had the "personal knowledge" required for the
lawfulness of a warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of
Court which establishes the only exception to the right to preliminary investigation, could not apply in respect of
petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this case,
misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests of

petitioners made from one (1) to fourteen days after the actual commission of the offenses, upon the ground that such
offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed organization like
the New People's Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offense
which was obviously commenced and completed at one definite location in time and space. No one had pretended that
the fatal shooting of Maguan was a "continuing crime."
Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case falls within the
terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows:
Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may, without 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 in fact just been committed, and he has personal knowledge of facts indicating
that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail, and he shall be proceed against in accordance
with Rule 112, Section 7.
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were not
present, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest"
effected six (6) days after the shooting be reasonably regarded as effected "when [the shooting had] in fact just been
committed" within the meaning of Section 5(b). Moreover, none of the "arresting" officers had any "personal
knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the
police acted had been derived from statements made by alleged eyewitnesses to the shooting one stated that
petitioner was the gunman; another was able to take down the alleged gunman's car's plate number which turned out
to be registered in petitioner's wife's name. That information did not, however, constitute "personal knowledge." 18
It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of
Rule 113. It is clear too that Section 7 of Rule 112, which provides:
Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully arrested without a
warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed
by the offended party, peace officer or fiscal without a preliminary investigation having been first
conducted, on the basis of the affidavit of the offended party or arresting office or person
However, before the filing of such complaint or information, the person arrested may ask for a
preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of
the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and
in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver,
he may apply for bail as provided in the corresponding rule and the investigation must be terminated
within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary investigation having been first conducted, the
accused may within five (5) days from the time he learns of the filing of the information, ask for a

preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed
in this Rule. (Emphasis supplied)
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police Station,
accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police authorities. He did not state that
he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon
Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the
Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was
probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor
proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the
provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was
substantive error, for petitioner was entitled to a preliminary investigation and that right should have been accorded
him without any conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he was also
entitled to be released forthwith subject only to his appearing at the preliminary investigation.
Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that
petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out,
on the same day that the information for murder was filed with the Regional Trial Court, petitioner filed with the
Prosecutor an omnibus motion for immediate release and preliminary investigation. The Solicitor General contends that
that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner
should accordingly be held to have waived his right to preliminary investigation. We do not believe that waiver of
petitioner's statutory right to preliminary investigation may be predicated on such a slim basis. The preliminary
investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of
petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial Court: it is not
clear from the record whether petitioner was aware of this fact at the time his omnibus motion was actually filed with
the Prosecutor. In Crespo v. Mogul, 19 this Court held:
The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima
facie case exists to warranting the prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of said information sets in motion the
criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation
of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the
finding and recommendations of the fiscal should be submitted to the Court for appropriate
action. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a
criminal case should be filed in court or not, once the case had already been brought to Court whatever
disposition the fiscal may feel should be proper in the case thereafter should be addressed for the
consideration of the Court. The only qualification is that the action of the Court must not impair the
substantial rights of the accused., or the right of the People to due process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in Court he cannot impose his opinion on the trial court.
The Court is the best and sole judge on what to do with the case before it. . . . 20 (Citations omitted;
emphasis supplied)
Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a reinvestigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself did file with the trial
court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary
investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's
omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a

preliminary investigation on the very day that the information was filed without such preliminary investigation,
and that the trial court was five (5) days later apprised of the desire of the petitioner for such preliminary
investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct preliminary
investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of
Rule 112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be held
to have been substantially complied with.
We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory
rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due
process in criminal justice. 21 The right to have a preliminary investigation conducted before being bound over to trial for
a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical
right; it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation,
humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to
hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him
the full measure of his right to due process.
The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case
considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary investigation is
waived when the accused fails to invoke it before or at the time of entering a plea at arraignment. 22 In the instant case,
petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment. At the time of his
arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus precisely
asking for a preliminary investigation before being forced to stand trial.
Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to
preliminary investigation. In People v. Selfaison, 23 we did hold that appellants there had waived their right to
preliminary investigation because immediately after their arrest, they filed bail and proceeded to trial "without
previously claiming that they did not have the benefit of a preliminary investigation." 24 In the instant case, petitioner Go
asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus
claimed his right to preliminary investigation before respondent Judge approved the cash bond posted by petitioner and
ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the
part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary
investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, while
constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the
validity of the information for murder nor affect the jurisdiction of the trial court. 25
It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent
to an acknowledgment on the part of the Prosecutor that the evidence of guilt then in his hands was not strong.
Accordingly, we consider that the 17 July 1991 order of respondent Judge recalling his own order granting bail and
requiring petitioner to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary considering that
no evidence at all and certainly no new or additional evidence had been submitted to respondent Judge that could
have justified the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be released
on bail as a matter of right.
The final question which the Court must face is this: how does the fact that, in the instant case, trial on the merits has
already commenced, the Prosecutor having already presented four (4) witnesses, impact upon, firstly, petitioner's right
to a preliminary investigation and, secondly, petitioner's right to be released on bail? Does he continue to be entitled to
have a preliminary investigation conducted in respect of the charge against him? Does petitioner remain entitled to be
released on bail?
Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary
investigation although trial on the merits has already began. Trial on the merits should be suspended or held in

abeyance and a preliminary investigation forthwith accorded to petitioner. 26 It is true that the Prosecutor might, in view
of the evidence that he may at this time have on hand, conclude that probable cause exists; upon the other hand, the
Prosecutor conceivably could reach the conclusion that the evidence on hand does not warrant a finding of probable
cause. In any event, the constitutional point is that petitioner was not accorded what he was entitled to by way of
procedural due process. 27 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary
investigation, with extraordinary haste, to the applause from the audience that filled the courtroom. If he submitted to
arraignment at trial, petitioner did so "kicking and screaming," in a manner of speaking . During the proceedings held
before the trial court on 23 August 1991, the date set for arraignment of petitioner, and just before arraignment,
counsel made very clear petitioner's vigorous protest and objection to the arraignment precisely because of the denial
of preliminary investigation. 28 So energetic and determined were petitioner's counsel's protests and objections that an
obviously angered court and prosecutor dared him to withdraw or walkout, promising to replace him with counsel de
oficio. During the trial, before the prosecution called its first witness, petitioner through counsel once again reiterated
his objection to going to trial without preliminary investigation: petitioner's counsel made of record his "continuing
objection." 29 Petitioner had promptly gone to the appellate court oncertiorari and prohibition to challenge the
lawfulness of the procedure he was being forced to undergo and the lawfulness of his detention. 30 If he did not walk out
on the trial, and if he cross-examined the prosecution's witnesses, it was because he was extremely loath to be
represented by counsel de oficio selected by the trial judge, and to run the risk of being held to have waived also his
right to use what is frequently the only test of truth in the judicial process.
In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail as
a matter of right. Should the evidence already of record concerning petitioner's guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then be up to
the trial court, after a careful and objective assessment of the evidence on record, to grant or deny the motion for
cancellation of bail.
To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary investigation and to bail
were effectively obliterated by evidence subsequently admitted into the record would be to legitimize the deprivation of
due process and to permit the Government to benefit from its own wrong or culpable omission and effectively to dilute
important rights of accused persons well-nigh to the vanishing point. It may be that to require the State to accord
petitioner his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a
ceremonial exercise. But the Court is not compelled to speculate. And, in any case, it would not be idle ceremony;
rather, it would be a celebration by the State of the rights and liberties of its own people and a re-affirmation of its
obligation and determination to respect those rights and liberties.
ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of the trial court dated 17
July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991 hereby
REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the charge
of murder against petitioner Go, and to complete such preliminary investigation within a period of fifteen (15) days from
commencement thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be SUSPENDED to
await the conclusion of the preliminary investigation.
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred Thousand
Pesos (P100,000.00). This release shall be without prejudice to any lawful order that the trial court may issue, should the
Office of the Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary investigation.
No pronouncement as to costs. This Decision is immediately executory.
SO ORDERED.

G.R.No. 74869 July 6, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Herminio T. Llariza counsel de-officio for defendant-appellant.

CRUZ, J.:
The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty
of illegally transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced
him to life imprisonment plus a fine of P20,000.00. 1
Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 in the
evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected his bag and
finding what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles of suspect
articles were confiscated from him and later taken to the NBI laboratory for examination. When they were verified as
marijuana leaves, an information for violation of the Dangerous Drugs Act was filed against him. 2 Later, the information
was amended to include Farida Ali y Hassen, who had also been arrested with him that same evening and likewise
investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge
against Ali on the basis of a sworn statement of the arresting officers absolving her after a 'thorough investigation." 5The
motion was granted, and trial proceeded only against the accused-appellant, who was eventually convicted . 6
According to the prosecution, the PC officers had earlier received a tip from one of their informers that the accusedappellant was on board a vessel bound for Iloilo City and was carrying marijuana. 7 He was Identified by name. 8 Acting
on this tip, they waited for him in the evening of June 25, 1984, and approached him as he descended from the
gangplank after the informer had pointed to him. 9 They detained him and inspected the bag he was carrying. It was
found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10 who
testified that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this finding, the
corresponding charge was then filed against Aminnudin.
In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing consisting of a
jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily arrested and immediately handcuffed. His
bag was confiscated without a search warrant. At the PC headquarters, he was manhandled to force him to admit he
was carrying the marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he parried
the blows while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and that his
business was selling watches and sometimes cigarettes. 13 He also argued that the marijuana he was alleged to have
been carrying was not properly Identified and could have been any of several bundles kept in the stock room of the PC
headquarters. 14
The trial court was unconvinced, noting from its own examination of the accused that he claimed to have come to Iloilo
City to sell watches but carried only two watches at the time, traveling from Jolo for that purpose and spending P107.00
for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two watches in a secret pocket
below his belt but, strangely, they were not discovered when he was bodily searched by the arresting officers nor were
they damaged as a result of his manhandling. 16 He also said he sold one of the watches for P400.00 and gave away the
other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he said did not even
know. 18 The trial court also rejected his allegations of maltreatment, observing that he had not sufficiently proved the
injuries sustained by him. 19

There is no justification to reverse these factual findings, considering that it was the trial judge who had immediate
access to the testimony of the witnesses and had the opportunity to weigh their credibility on the stand. Nuances of
tone or voice, meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal the truth or expose the
lie, are not described in the impersonal record. But the trial judge sees all of this, discovering for himself the truant fact
amidst the falsities.
The only exception we may make in this case is the trial court's conclusion that the accused-appellant was not really
beaten up because he did not complain about it later nor did he submit to a medical examination. That is hardly fair or
realistic. It is possible Aminnudin never had that opportunity as he was at that time under detention by the PC
authorities and in fact has never been set free since he was arrested in 1984 and up to the present. No bail has been
allowed for his release.
There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was arrested and
searched without warrant, making the marijuana allegedly found in his possession inadmissible in evidence against him
under the Bill of Rights. The decision did not even discuss this point. For his part, the Solicitor General dismissed this
after an all-too-short argument that the arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of
the Rules of Court on warrantless arrests. This made the search also valid as incidental to a lawful arrest.
It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had no warrant
when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip they had earlier
received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by boat with
marijuana. Their testimony varies as to the time they received the tip, one saying it was two days before the
arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this matter, we may prefer the declaration of
the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as follows:
Q You mentioned an intelligence report, you mean with respect to the coming of Idel
Aminnudin on June 25, 1984?
A Yes, sir.
Q When did you receive this intelligence report?
A Two days before June 25, 1984 and it was supported by reliable sources.
Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of
marijuana leaves on that date?
A Yes, sir, two days before June 25, 1984 when we received this information from that
particular informer, prior to June 25, 1984 we have already reports of the particular
operation which was being participated by Idel Aminnudin.
Q You said you received an intelligence report two days before June 25, 1984 with
respect to the coming of Wilcon 9?
A Yes, sir.
Q Did you receive any other report aside from this intelligence report?
A Well, I have received also other reports but not pertaining to the coming of Wilcon 9.
For instance, report of illegal gambling operation.
COURT:

Q Previous to that particular information which you said two days before June 25, 1984,
did you also receive daily report regarding the activities of Idel Aminnudin
A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin.
Q What were those activities?
A Purely marijuana trafficking.
Q From whom did you get that information?
A It came to my hand which was written in a required sheet of information, maybe for
security reason and we cannot Identify the person.
Q But you received it from your regular informer?
A Yes, sir.
ATTY. LLARIZA:
Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is coming
with drugs?
A Marijuana, sir.
Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was
received by you many days before you received the intelligence report in writing?
A Not a report of the particular coming of Aminnudin but his activities.
Q You only knew that he was coming on June 25,1984 two days before?
A Yes, sir.
Q You mean that before June 23, 1984 you did not know that minnudin was coming?
A Before June 23,1984, I, in my capacity, did not know that he was coming but on June
23, 1984 that was the time when I received the information that he was coming.
Regarding the reports on his activities, we have reports that he was already
consummated the act of selling and shipping marijuana stuff.
COURT:
Q And as a result of that report, you put him under surveillance?
A Yes, sir.
Q In the intelligence report, only the name of Idel Aminnudin was mentioned?
A Yes, sir.
Q Are you sure of that?

A On the 23rd he will be coming with the woman.

Q So that even before you received the official report on June 23, 1984, you had already
gathered information to the effect that Idel Aminnudin was coming to Iloilo on June 25,
1984?
A Only on the 23rd of June.
Q You did not try to secure a search warrant for the seizure or search of the subject
mentioned in your intelligence report?
A No, more.
Q Why not?
A Because we were very very sure that our operation will yield positive result.
Q Is that your procedure that whenever it will yield positive result you do not need a
search warrant anymore?
A Search warrant is not necessary. 23
That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC. The Supreme
Court cannot countenance such a statement. This is still a government of laws and not of men.
The mandate of the Bill of Rights is clear:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.
In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination by
him of the existence of probable cause. Contrary to the averments of the government, the accused-appellant was not
caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest
allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of
the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject to
warrantless searches and seizures for violation of the customs law because these vehicles may be quickly moved out of
the locality or jurisdiction before the warrant can be secured.
The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they
had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming
to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was Identified. The date of its arrival was certain. And
from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to
justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was
ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own
authority that a "search warrant was not necessary."
In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous Drugs Act, it has
always been shown that they were caught red-handed, as a result of what are popularly called "buy-bust" operations of
the narcotics agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the accused was in the act
of selling the prohibited drug.

In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that
he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon
9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other
passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his
arrest. The Identification by the informer was the probable cause as determined by the officers (and not a judge) that
authorized them to pounce upon Aminnudin and immediately arrest him.
Now that we have succeeded in restoring democracy in our country after fourteen years of the despised dictatorship,
when any one could be picked up at will, detained without charges and punished without trial, we will have only
ourselves to blame if that kind of arbitrariness is allowed to return, to once more flaunt its disdain of the Constitution
and the individual liberties its Bill of Rights guarantees.
While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest that he is lying,
that fact alone does not justify a finding that he is guilty. The constitutional presumption is that he is innocent, and he
will be so declared even if his defense is weak as long as the prosecution is not strong enough to convict him.
Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must fall. That
evidence cannot be admitted, and should never have been considered by the trial court for the simple fact is that the
marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The search
was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did not come
under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence
obtained thereby was inadmissible.
The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our
law-enforcement officers against those who would inflict this malediction upon our people, especially the susceptible
youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the
protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers with
the mantle of its protection the innocent and the guilty alike against any manner of high- handedness from the
authorities, however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of
order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less evil that some
criminals should escape than that the government should play an ignoble part." It is simply not allowed in the free
society to violate a law to enforce another, especially if the law violated is the Constitution itself.
We find that with the exclusion of the illegally seized marijuana as evidence against the accused-appellant, his guilt has
not been proved beyond reasonable doubt and he must therefore be discharged on the presumption that he is
innocent.
ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is ACQUITTED. It is so ordered.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 128222 June 17, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CHUA HO SAN @ TSAY HO SAN, accused-appellant.
Chua Ho San @ Tsay Ho San (hereafter CHUA) prays for his acquitttal and the reversal of the judgment of 10 February
1997 of the Regional Trial Court (RTC) of San Fernando, La Union, Branch 66, finding him guilty of transporting, without
appropriate legal authority, the regulated substance methamphetamine hydrochloride, in violation of Section
15, 1 Article III of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972 as further amended by
R.A. No. 7659, 2 and sentencing him to "die by lethal injection." In view thereof, the judgement was brought to this Court
for automatic review pursuant to Article 47 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659.
In response to reports of rampant smuggling of firearms and other contraband, Jim Lagasca Cid (hereafter CID), as Chief
of Police of the Bacnotan Police Station, of La Union began patrolling the Bacnotan coastline with his officers. While
monitoring the coastal area of Barangay Bulala on 29 March 1995, he intercepted a radio call at around 12:45 p.m. from
Barangay Captain Juan Almoite (hereafter ALMOITE) of Barangay Tammocalao requesting police assistance regarding an
unfamiliar speedboat the latter had spotted. According to ALMOITE, the vessel looked different from the boats
ordinarily used by fisherfolk of the area and was poised to dock at Tammocalao shores. CID and six of his men led by his
Chief Investigator, SPO1 Reynoso Badua (hereafter BADUA), proceeded forthwith to Tammocalao beach and there
conferred with ALMOITE. CID then observed that the speedboat ferried a lone male passenger. As it was routine for CID
to deploy his men in strategic places when dealing with similar situations, he ordered his men to take up positions thirty
meters from the coastline. When the speedboat landed, the male passenger alighted, and using both hands, carried
what appeared a multicolored strawbag. He then walked towards the road. By this time, ALMOITE, CID and BADUA, the
latter two conspicuous in their uniform and issued side-arms, became suspicious of the man as he suddenly changed
direction and broke into a run upon seeing the approaching officers. BADUA, however, prevented the man from fleeing
by holding on to his right arm. Although CID introduced themselves as police officers, the man appeared impassive.
Speaking in English, CID then requested the man to open his bag, but he seem not to understand. CID thus tried
speaking Tagalog, then Ilocano, but still to no avail. CID then resorted to what he termed "sign language;" he motioned
with his hands for the man to open the bag. This time, the man apparently understood and acceded to the request. A
search of the bag yielded several transparent plastic packets containing yellowish crystalline substances. CID then
gestured to the man to close the bag, which he did. As CID wished to proceed to the police station, he signaled the man
to follow, but the latter did not to comprehend. Hence, CID placed his arm around the shoulders of the man and
escorted the latter to the police headquarters.
At the police station, CID surmised, after having observed the facial features of the man, that he was probably
Taiwanese. CID then "recited and informed the man of his constitutional rights" to remain silent, to have the assistance
of a counsel, etc. Eliciting no response from the man, CID ordered his men to find a resident of the area who spoke
Chinese to act as an enterpreter. In the meantime, BADUA opened the bag and counted twenty-nine (29) plastic packets
containing yellowish crystalline substance which he and CID suspected was shabu. The interpreter, Mr. Go Ping Guan,
finally arrived, through whom the man was "apprised of his constitutional rights." The police authorities were satisfied
that the man and the interpreter perfectly understood each other despite their uncertainty as to what language was
spoken. But when the policemen asked the man several questions, he retreated to his obstinate reticence and merely
showed his I.D. with the name Chua Ho San printed thereon. CHUA's bag and its contents were sent to the PNP Crime

Laboratory at Camp Diego Silang, Carlatan, San Fernando, La Union for laboratory examination. In the meantime, CHUA
was detained at the Bacnotan Police Station.1wphi1.nt
Later that same day, Police Chief Inspector and Forensic Chemist Theresa Ann Bugayong Cid of the Philippine National
Police, Region I, received a letter request 3 from CID incidentally her husband to conduct a laboratory examination
of twenty-nine (29) plastic packets placed inside a multicolored strawbag. In her Chemistry Report No. D-025-95, 4 she
stated that her qualitative examination established the contents of the plastic packets, weighing 28.7 kilos, to be
positive of methamphetamine hydrochloride or shabu, a regulated drug.
CHUA was initially charged with illegal possession of methaphetamine hydrochloride before the RTC which docketed the
case as Criminal Case No. 4037. However, pursuant to the recommendation of the Office of the Provincial Prosecutor, La
Union, that the facts of the case could support an indictment for illegal transport of a regulated drug, the information
was subsequently amended to allege that CHUA "willfully, unlawfully and feloniously transpor(ted) 28.7 kilos of
[m]ethamphetamine [h]ydrochloride (shabu) without the necessary permit or authority to transport the same" in
violation of Section 15, Article III of R.A. 6425 as amended by R.A. 7659.
At his arraignment on 31 July 1995, CHUA entered a plea of not guilty. The RTC was satisfied that CHUA understood the
amended information read to him in Fukien by the Fukien-speaking interpreter, Thelma Sales Go.
Thereafter, the RTC exerted all efforts to obtain the services of a Taiwanese Interpreter through the auspices of the
Department of Foreign Affairs. However, it was only after directing the request to the Taipei Economic and Cultural
Office in the Philippines that interpreters were assigned to CHUA.
Trial finally ensued. The State presented evidence tending to establish the above narration of facts which were culled
chiefly from the testimony of CID, its first witness, and whose testimony, in turn, was substantially corroborated by
witnesses BADUA and ALMOITE.
Experts witness Theresa Ann Cid, confirmed the entries of her chemistry report in that the contents of the 29 plastic
packets weighing 28.7 kilos sent to her for chemical analysis were pure, unadulterated methamphetamine hydrochloride
or shabu. She also explained that they were unwashed, hence they appeared yellowish.
For the defense, CHUA testified in his own behalf through interpreter Steven Yu. He disclosed that he hails from Taiwan
and was employed in a shipbuilding and repairing company. On 21 March 1995, he was instructed by his employer Cho
Chu Rong (hereafter RONG) to board the latter's 35-tonner ship which would embark for Nan Au Port, Mainland China
where they would buy fish. Upon arrival at their destination, RONG left the ship, came back without the fish, but with
two bags, the contents of which he never divulged to CHUA. RONG then showed to CHUA a document purportedly
granting them authority to fish on Philippine waters. So they sailed towards the Philippines and reached Dagupan,
Pangasinan on 29 March 1995. At around 10:30 a.m., they disembarked on a small speedboat with the two bags RONG
brought with him from China. While, sailing, RONG made several phone calls using his mobile phone. CHUA heard RONG
asked the person on the other side of the line if he could see the speedboat they were riding. Apparently, the person on
shore could not see them so they cruised over the waters for about five hours more when finally, low on fuel and
telephone battery, they decided to dock. CHUA anchored the boat while RONG carried the bags to shore. The tasks
completed, RONG left to look for a telephone while CHUA rested and sat one and half (1 1/2) meters away from one
bag. A child thereafter pointed out to him that one bag was missing much to RONG's dismay when he learned of it.
When a crowd started to mill around them, the police arrived. CHUA then realized that RONG was nowhere to be found.
The police immediately approached CHUA, and with nary any spoken word, only gestures and hand movements, they
escorted him to the precinct where he was handcuffed and tied to a chair. Later, the police, led by an officer who CHUA
guessed as the Chief of Police arrived with the motor engine of the speedboat and a bag. They presented the bag to him,
opened it, inspected and weighed the contents, then proclaimed them as methaphetamine hydrochloride.
CHUA denounced the prosecution's story as a distortion of the truth. He denied he was ever favored with an interpreter
or informed of his "constitutional rights," particularly of his right to counsel. Consequently, his arrest was tainted with
illegality and the methamphetamine hydrochloride found in the bag should have been regarded inadmissible as

evidence. He also maintained that CID never graced the occasion of his setting foot for the first time at Tammocalao
beach. BADUA certainly never prevented him from running away, as such thought failed to make an impression in his
mind. Most significantly, he denied ownership and knowledge of the contents of the bag, emphasizing that RONG alone
exercised dominion over the same.
Elmer Parong, (hereafter PARONG) a Sangguniang Bayan member, recalled that on the date in question, he arrived at
the beach with the police. He saw CHUA standing with a bag beside him. He also remembered hearing from the people
congregating at the beach that CHUA arrived with a companion and a certain policeman Anneb had chased the latter's
car. He additionally claimed that when the crowd became unruly, the police decided to bring CHUA to police
headquarters. There, the mayor took charge of the situation he opened CHUA's bag with the assistance of the police,
he called for a forensic chemist surnamed CID to take a sample of the contents of the bag, and he ordered his officials to
find an interpreter. Throughout the proceedings, photographers were busy taking pictures to document the event.
Last to testify was Arsenio CRAIG, a farmer and resident of Tammocalao who narrated that he was standing with CHUA
on the beach when two men and a lady arrived. They were about to get a bag situated near CHUA when they detected
the arrival of the local police. They quickly disappeared. CRAIG then noticed ALMOITE and PARONG at the beach but not
CID.
In a decision promulgated on 10 February 1997, the RTC found that the prosecution successfully discharged its burden of
proving that CHUA transported 28.7 kilos of methamphetamine hydrochloride without legal authority to do so.
Invoking People v. Tagliben 5 as authority, the RTC characterized the search as incidental to a valid in flagrante
delicto arrest, hence it allowed the admission of the methamphetamine hydrochloride as corpus delicti. The RTC also
noted the futility of informing CHUA of his constitutional rights to remain silent, and to have competent and
independent counsel preferably of his own choice, considering the language barrier and the observation that such
irregularity was "rectified when accused was duly arraigned and . . . (afterwards) participated in the trial of this case."
The RTC then disregarded the inconsistencies and contradictions in the testimonies of the prosecution witnesses as
these referred to minor details which did not impair the credibility of the witnesses or tarnish the credence conferred on
the testimonies thus delivered.
The RTC also believed that CHUA conspired not only with his alleged employer RONG and the Captain of the 35-tonner
vessel in the illegal trade of prohibited drugs on Philippine shores, but with several other members of an organized
syndicate bent on perpetrating said illicit traffic. Such predilection was plainly evident in the dispositive portion, to wit:
WHEREFORE, and in view of all the foregoing, as proven and established by convincing and satisfactory
evidence that the accused had conspired and acted in concert with one Cho Chu Rong, not to mention
Chen Ho Fa, the Skipper of the 35-tonner ship they used in coming to the Country from China and
Taiwan, this Court finds the accused Chua Ho San @ Tsay Ho San guilty beyond reasonable doubt of the
offense of Violation of Sec. 15, Art. III of R.A. No. 6425, as amended by R.A. No. 7659 as charged in the
Information, and considering the provisions of Sec. 20 of R.A. No. 7659 that the maximum penalty shall
be imposed if the quantity sold/possessed/transported is "200 grams or more" in the case of Shabu, and
considering, further that the quantity involved in this case is 28.7 kilograms which is far beyond the
weight ceiling specified in said Act, coupled with the findings of conspiracy or that accused is a member
of an organized syndicated crime group, this Court, having no other recourse but to impose the
maximum penalty to accused, this Court hereby sentences the said accused Chua Ho San @ Tsay Ho San
to die by lethal injection; to pay a fine of Ten Million Pesos (P10,000,000.00); and to pay the costs.
The Court hereby orders Director Ricareido [sic] Sarmiento of the Philippine National Police to
immediately form an investigating Committee to be composed by [sic] men of unimpeachable integrity,
who will conduct an exhaustive investigation regarding this case to determine whether there was
negligence or conspiracy in the escape of Cho Chu Rong and the two (2) or three (3) persons who
approached the accused in the seashore of Tammocalao, Bacnotan, La Union, and attempted to take the
remaining bag from accused, as well as the whereabouts of the other bag; and to furnish this Court a

copy of the report/result of the said investigation in order to show compliance herewith sixty (60) days
from receipt hereof.
The confiscated 28.7 kilograms of Methaphetamine Hydrochloride or Shabu is ordered turned over
immediately to the Dangerous Drugs Board for destruction in accordance with the law.
The fiberglass boat with its motor engine is hereby ordered confiscated in favor of the government and
to be turned over to the Philippine National Police, La Union Command, for use in their Bantay-Dagat
operations against all illegal seaborne activities.
SO ORDERED. 6
Before this Court, CHUA posits that the RTC erred in (1) admitting as competent evidence the 29 plastic packets of
methamphetamine hydrochloride since they were indubitably "forbidden fruits;" (2) granting weight and credence to
the testimonies of prosecution witnesses despite glaring inconsistencies on material points; and in (3) appreciating
conspiracy between him and an organized syndicate in the illicit commerce of prohibited drugs since this was not alleged
in the information.
The Solicitor General traverses CHUA's contentions by asserting that: (1) the search was licitly conducted despite the
absence of search and seizure warrants as circumstances immediately preceding to and comtemporaneous with the
search necessitated and validated the police action; and (2) that there was an effective and valid waiver of CHUA's right
against unreasonable searches and seizures since he consented to the search.
We reverse the RTC.
Enshrined in the Constitution is the inviolable right to privacy home and person. It explicitly ordains that people have the
right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever
nature and for any purpose. 7 Inseparable, and not merely corollary or incidental to said right and equally hallowed in
and by the Constitution, is the exclusionary principle which decrees that any evidence obtained in violation of said right
is inadmissible for any purpose in any proceedings. 8
The Cosntitutional proscription against unreasonable searches and seizures does not, of course, forestall reasonable
searches and seizure. What constitutes a reasonable or even an unreasonable search in any particular case is purely a
judicial question, determinable from a consideration of the circumstances involved. 9Verily, the rule is, the Constitution
bars State intrusions to a person's body, personal effects or residence except if conducted by virtue of a valid of a valid
search warrant issued in compliance with the procedure outlined on the Constitution and reiterated in the Rules of
Court; "otherwise such search and seizure become "unreasonable" within the meaning of the aforementioned
constitutional provision." 10 This interdiction against warrantless searches and seizures, however, is not absolute and
such warrantless searches and seizures have long been deemed permissible by jurisprudence 11 in instances of (1) search
of moving vehicles, (2) seizure in plain view, (3) customs searches, (4) waiver or consent searches, (5) stop and frisk
situations (Terry search), 12 and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and
seizure pursuan to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected
with a valid wararnt of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante
delicto, (2) arrests effected in hot pursuit, and (3) arrests of escaped prisoners. 13
This Court is therefore tasked to determine whether the warrantless arrest, search and seizure conducted under the
facts of the case at bar constitute a valid exemption from the warrant requirement. Expectedly and quite
understandably, the prosecution and the defense painted extremely divergent versions of the incident. But this Court is
certain that CHUA was arrested and his bag searched without the benefit of a warrant.
In cases of in fragrante delicto, arrests, a peace officer or a private person may without a warrant, arrest a person, when,
in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense.
The arresting officer, therefore, must have personal knowledge of such facts 14 or as recent case law 15adverts to,

personal knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. The term
probable cause had been understood to mean a reasonable ground of suspicion supported by circumstances sufficiently
strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is
charged. 16 Specifically with respect to arrests, it is such facts and circumstances which would lead a reasonably discreet
and prudent man to believe that an offense has been committed by the person sought to be
arrested. 17 In People v. Montilla, 18 the Court acknowledged that "the evidentiary measure for the propriety of filing
criminal charges, and correlatively, for effecting warrantless arrest, has been reduced and liberalized." Noting that the
previous statutory and jurisprudential evidentiary standard was "prima facie evidence" and that it had been dubiously
equated with probable cause, the Court explained:
[F]elicitously, those problems and confusing concepts (referring to prima facie evidence and probable
cause) were clarified and set aright, at least on the issue under discussion, by the 1985 amendment of
the Rules of Court which provides in Rule 112 thereof that the quantum of evidence required in
preliminary investigation is such evidence as suffices to "engender as well founded belief" as to the fact
of the commission of the crime and the respondent's probable guilt thereof. It has the same meaning as
the related phraseology used in other parts of the same Rule, that is, that the investigating fiscal "finds
cause to hold the respondent for trial," or where "a probable cause exists." It should, therefore, be in
that sense, wherein the right to effect a warrantless arrest should be considered as legally authorized."
(emphasis supplied) 19
Guided by these principles, this Court finds that there are no facts on record reasonably suggestive or demonstrative of
CHUA's participation in on going criminal enterprise that could have spurred police officers from conducting the
obtrusive search. The RTC never took the pains of pointing to such facts, but predicated mainly its decision on the
finding that was "accused was caught red-handed carrying the bagful of [s]habu when apprehended." In short, there is
no probable cause. At least in People v. Tangliben, the Court agreed with the lower court's finding that compelling
reasons (e.g., accused was acting suspiciously, on the spot identification by an informant that accused was transporting
prohibitive drug, and the urgency of the situation) constitutive of probable cause impelled police officers from effecting
an in flagrante delicto arrest. In the case at bar, the Solicitor General proposes that the following details are suggestive
of probable cause persistent reports of rampant smuggling of firearm and other contraband articles, CHUA's
watercraft differing in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas, CHUA's
illegal entry into the Philippines (he lacked the necessary travel documents or visa), CHUA's suspicious behavior, i.e. he
attempted to flee when he saw the police authorities, and the apparent ease by which CHUA can return to and navigate
his speedboat with immediate dispatch towards the high seas, beyond the reach of Philippine laws.
This Court, however, finds that these do not constitute "probable cause." None of the telltale clues, e.g., bag or package
emanating the pungent odor of marijuana or other prohibited drug, 20 confidential report and/or positive identification
by informers of courier(s) of prohibited drug and/or the time and place where they will transport/deliver the
same, 21 suspicious demeanor or behavior 22 and suspicious bulge in the waist 23 accepted by this Court as sufficient to
justify a warrantless arrest exists in this case. There was no classified information that a foreigner would disembark at
Tammocalao beach bearing prohibited drug on the date in question. CHUA was not identified as a drug courier by a
police informer or agent. The fact that the vessel that ferried him to shore bore no resemblance to the fishing boats of
the area did not automatically mark him as in the process of perpetrating an offense. And despite claims by CID and
BADUA that CHUA attempted to flee, ALMOITE testified that the latter was merely walking and oblivious to any attempt
at conversation when the officers approached him. This cast serious doubt on the truthfulness of the claim, thus:
Q: How far were you when the accused put the bag on his sholder?
A: We were then very near him about three meters away from the male person carrying
the bag.
Q: To what direction was he facing when he put the bag on his shoulder?
A: To the east direction.

Q: In relation to you, where were you.

A: With the company of Sgt. Reynoso and Maj. Cid we approached the accused and
when Maj. Cid went near him, he spoke in Tagalong, English and Ilocano which accused
did not understand because he did not respond.
Q: When Maj. Cid was talking, what was the accused doing at that time?
A: He was walking.
Q: To what direction he was walking?
A: He was walking to the east direction. (sic)
Q: He was walking away from you or going near you?
A: He was going away from us. That is why Sgt. Reynoso held the right arm of the
accused.
Q: Was Sgt. Badua able to hold the right arm of the accused?
A: Yes sir and he stopped. 24
True, CHUA entered Philippine territory without a visa. This was not obvious to the police. But gossamer to the officers'
sense perception and view were CHUA disembarking from a speedboat, CHUA walking casually towards the road, and
CHUA carrying a multicolored strawbag. These acts did not convey any impression that he illegally entered Philippine
shores. Neither were these overt manifestations of an ongoing felonious activity nor of CHUA's criminal behevior as
clearly established in CID's testimony, thus:
Q Was the accused committing a crime when you introduced yourselves:
A No, sir.
Q No, so there was no reason for you to approach the accused because he was not
doing anything wrong?
A No, sir, that is our objective, to approach the person and if ever or whatever
assistance that we can give we will give. 25
The search cannot therefore be denominated as incidental to an arrest. While a contemporaneous search of a person
arrested may be effected to deliver dangerous weapons or proofs or implements used in the commission of the crime
and which search may extend to the area within his immediate control where he might gain possession of a weapon or
evidence he can destroy, 26 a valid arrest must precede the search. The process cannot be reversed.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental
search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest
was merely used as a pretext for conducting a search. In this instance, the law requires that there be
first a lawful arrest before a search can be made the process cannot be reversed. 27
To reiterate, the search was not incidental to an arrest. There was no warrant of arrest and the warrantless
arrest did not fall under the exemptions allowed by the Rules of Court 28 as already shown. Fom all indications,
the search was nothing but a fishing expedition. It is worth mentioning here that after introducing themselves,

the police officcers immediately inquired about the contents of the bag. What else could have impelled the
officers from displaying such inordinate interest in the bag but to ferret out evidence and discover if a felony had
indeed been committed by CHUA in effect to "retroactively establish probable cause and validate an illegal
search and seizure."
The State then attempted to persuade this Court that there was a consented search, a legitimate waiver of the
constitutional guarantee against obtrusive searches. It is fundamental, however, that to constitute a waiver, it must first
appear that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence
of such a right; and lastly, that said person had an actual intention to relinquish the right. 29 CHUA never exhibited that
he knew, actually or constructively of his right against unreasonable searches or that he intentionally conceded the
same. This can be inferred from the manner by which the search performed, thus:
Q Together with your Chief Investigator, what was the first thing that you did when you
approached him (CHUA)?
A We introduced ourselves as police officers, sir.
Q Okey, in the first place why did you introduce yourselves?
A That is normal practice in our part, sir.
xxx xxx xxx
Q If it is possible. Okey (sic) now, after introducing yourselves what did you do?
A He did not answer me and he did not utter any word,
Q When he did not utter any word. What else did he do?
A I asked again a question that if he can open his bag sir.
Q And did he understand your question when you requested him to open his bag?
A No, sir, there is no answer.
Q No answer?
A Yes, sir, no answer.
Q And when there was no answer what did you do next?
A I used sign language sir.
Q Will you demonstrate to this Honorable Court how you demonstrated that sign
language of opening the bag mr. (sic) witness?
A I pointed to the zipper of the bag and then made an action like this sir.
xxx xxx xxx
SHERIFF:

The witness demonstrating (sic) by pointing to the straw bag and then manifesting a sign
to open the zipper of the straw bag moving his right hand from left to right or from the
opening to the end of the zipper.
COURT: From the start of the zipper where you open it up to the end of the zipper.
Witness: Yes, sir, and then I made a motion like this.
(The witness repeating the motion described on record.)
COURT: Did you open that personally?
WITNESS:
A No, your honor.
Q Now, mr. (sic) witness, why did you request the accused to open the bag?
A Because it is our duty also to inspect his belongings sir.
Q Why, why was it no, I reform my question your honor. Is it normal procedure for
you to examine anybody or to request anybody to open his bag?
A The fact that he was a foreigner, sir, it is also our duty to inspect the baggage, it is our
routine duty of a police (sic), sir.
Q Is that the normal duty of a police officer to request a person to open his bag?
A yes, sir.
Q Okey, (sic) you did not ask the accused, mr. (sic) witness, to open his bag?
A No, sir.
Q But you simply requested him to open the nag?
A Yes, sir. 30
CHUA obviously failed to understand the events that overran and overwhelmed him. The police officers already
introduced themselves to CHUA in three languages, but he remained completely deadpan. The police hence concluded
that CHUA failed to comprehend the three languages. When CHUA failed to respond again to the police's request to
open the bag, they resorted to what they called "sign language." They claimed that CHUA finally understood their hand
motions and gestures. This Court disagrees. If CHUA could not understand what was orally articulated to him, how could
he understand the police's "sign language." More importantly, it cannot logically be inferred from his alleged cognizance
of the "sign language" that he deliberately, intelligently, and consciously waived his right against such an intrusive
search. This Court is not unmindful of cases upholding the validity of consented warrantless searches and seizure. But in
these cases, the police officers' request to search personnel effects was orally articulated to the accused and in such
language that left no room for doubt that the latter fully understood what was requested. In some instances, the
accused even verbally replied to the request demonstrating that he also understood the nature and consequences of
such request. 31

It was eventually discovered that the bag contained the regulated subtance. But this is a trifling matter. If evidence
obtained during an illegal search even if tending to confirm or actually confirming initial information or suspicion of
felonious activity is absolutely considered inadmissible for any purpose in any proceeding, the same being the fruit of a
poisonous trees 32 how much more of "forbidden fruits" which did not confirm any initial suspicion of criminal enterprise
as in this case because the police admitted that they never harbored any initial suspicion. Casting aside the regulated
substance as evidence, the remaining evidence on record are insufficient, feeble and ineffectual to sustain CHUA's
conviction.
Indeed, the likelihood of CHUA having actually transported methamphetamine hydrochloride cannot be quickly
dispelled. But the constitutional guarantee against unreasonable searches and seizures cannot be so carelessly
disregarded, as overzealous police officers are sometimes wont to do. Fealty to the Constitution and the rights it
guarantees should be paramount in their minds, otherwise their good intentions will remain as such simply because they
have blundered. "There are those who say that . . . 'the criminal is to go free because the constable has blundered.'. . . In
some cases this will undoubtedly be the result. But . . . 'there is another consideration the imperative of judicial
integrity . . . The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government
more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." 33
As to the averred glaring inconsistencies in the testimonies of the posecution witnesses, this Court considers them trivial
as they refer to insignificant details which will not affect the outcome of the case. On a passing note, this Court calls the
attention of the trial court regarding its erroneous appreciation of conspiracy. This aggravating circumstance is without
question unsupported by the records. Conspiracy was not included in the indictment nor raised in the pleadings or
proceedings of the trial court. It is also fundamental that conspiracy must be proven just like any other criminal
accusation, that is, independently and beyond reasonable doubt. 34
WHEREFORE, for all the foregoing, the decision of the Regional Trial Court, Branch 66, San Fernando, La Union in
Criminal Case No. 4037 is hereby REVERSED and SET ASIDE and accused-appellant CHUA HO SAN @ TSAY HO SAN is
hereby ACQUITTED of the crime charged, the evidence not being sufficient to establish his guilt beyond reasonable
doubt.
Costs de oficio. SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 72564 April 15, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANITA CLAUDIO Y BAGTANG, accused-appellant.
The Solicitor General for plaintiff-appellee.
Romeo C. Alinea for accused-appellant.
GUTIERREZ, JR., J.:
This is an appeal from the decision of the Regional Trial Court of Olongapo City, Branch 73 finding the accused Anita
Claudio y Bagtang guilty beyond reasonable doubt of violating Sec. 4, Rep. Act No. 6425 (Dangerous Drugs Act of 1972 as
amended) and sentencing her to serve the penalty of reclusion perpetua, to pay a fine of P 20,000.00, and to pay the
costs.
The information filed against the accused alleged:
That on or about the 21st day of July 1981, in the City of Olongapo, Philippines and within the
jurisdiction of this Honorable Court, the above-named ACCUSED without being lawfully authorized, did
then and there wilfully, unlawfully and knowingly transport 1.1 kilos of Marijuana dried leaves, which
are prohibited drugs for the purpose of selling the same from Baguio City to Olongapo City. (Rollo, p. 13)
The lower court established her guilt beyond reasonable doubt on the basis of the prosecution's evidence as follows:
To prove the guilt of the accused, the prosecution offered the following document and testimonial
evidence as follows: Exhibit "A" Letter request for Examination of suspected marijuana dried leaves
weighing approximately 1.1 kilos dated July 25, 1981; "B" plastic container; "B- 1"-marijuana contained
in the plastic container; "B-1-a"another plastic container; "C"Chemistry Report No. D-668-81;"C-1"
Findings: Positive for marijuana; "D,","D-1," "D-2"and "D-3; "E" and "E-1" photographs of accused with
Pat. Daniel Obia and Pauline Tiongco showing the marijuana, "F"Victory Liner Ticket No. 84977;"G"
Sworn Statement of Pat. Daniel Obia, "H" Request for Field Test on suspected marijuana from accused
by P/Lt. Antonio V. Galindo;"H-1"date of of the request; "L"Certificate of Field Test dated July 22,
1981; "B-2" and "B-2a" additional Wrapping paper; and the testimonies of witnesses of the prosecution,
Theresa Ann Bugayong; Pat. Daniel Obio, Cpl. Paulino Tiongco, Cpl. Ernesto Abello and Sgt. Leoncio
Bagang.
Theresa Ann Bugayong22 years old, single, Forensic Chemist and a resident of 1150 Sampaloc, Metro
Manila testified that she received a request from the Task Force Bagong Buhay, Olongapo City, dated
July 25, 1981, on specimen marijuana submitted for examination. The specimen consisted of 900 grams
of suspected dried marijuana flowering tops wrapped in a newspaper placed in a plastic bag with a
marking "MB Store" (Exh. "B").
The examination conducted by her proved to be positive for marijuana. After her examination, she
prepared Chemistry Report No. D-668-81 dated July 29,1981 (Exhs. "C" and "C-l"). She conducted three
eliminations; microscopic examination, the duguenoi levine test and thirdly, the confirmatory

examination of thin layer chromatographic test. The said specimen was submitted to them by OIC Danilo
Santiago, a representative of the CANU, Olongapo City.
The second witness for the prosecution was Daniel Obia, 37 years old, married, policeman and residing
at 34 Corpuz St., East Tapinac, Olongapo City. Obia testified that he has been a member of the INP,
since 1970 up to the present. He was assigned in June, 1972 at the Investigation Division as operative.
His job then was among other things to follow up reports in their office, recover stolen items and
apprehend suspects. On July 21,1981, he was on Detached Service with the ANTI-NARCOTICS Unit; and
that on that date, he came from Baguio City and arrived in Olongapo City at about 1:30 o'clock in the
afternoon having left Baguio at about 8:30 o'clock in the morning. He took the Victory Liner in going
back to Olongapo City. His family lives in Baguio City. On board the Victory Liner, he was seated on the
second seat at the back. While he was thus seated, suspect Anita Claudio boarded the same bus and
took the seat in front of him after putting a bag which she was carrying at the back of the seat of Obia.
The bag placed by suspect behind his seat was a wooven buri bag made of plastic containing some
vegetables. The act of the accused putting her bag behind Pat. Obia's seat aroused his suspicion and
made him felt (sic) nervous. With the feeling that there was some unusual, he had the urge to search
the woven plastic bag. But it was only at San Fernando, Pampanga when he was able to go to the bag.
He inserted one of his fingers in a plastic bag located at the bottom of the woven bag and smelt
marijuana. The plastic woven bag appearing to contain camote tops on the top has a big bundle of
plastic of marijuana at the bottom. He could recognize the smell of marijuana because he was assigned
at that time at the ANTI-NARCOTICS Unit. He did not, however, do anything after he discovered that
there was marijuana inside the plastic bag of the accused until they reached Olongapo City and the
accused alighted from the bus in front of the Caltex Gasoline Station in Sta. Rita. Right after the accused
alighted from the bus, policeman Obina intercepted her and showed her his Id Identifying himself as a
policeman and told her he will search her bag because of the suspicion that she was carrying marijuana
inside said bag. In reply, accused told him, "Please go with me, let us settle this at home." However, the
witness did not heed her plea and instead handcuffed her right hand and with her, boarded a tricycle
right away and brought the suspect to the police headquarters with her bag appearing to contain
vegetables.
At the police headquarters Investigation Section, the bag was searched in the presence of Investigator
Cpl. Tiongco; Pat. Obia, the accused and Sgt. Leoncio Bagang. Inside the plastic bag was found a big
bundle of plastic containing marijuana weighing about one kilo. Witness stated that he could detect
marijuana even before the application of chemicals because of one year and a half assignment with the
CANU. After the marijuana was taken from the bag of the accused, photographs were taken of the
accused and the marijuana confiscated from her possession with Pat. Obia and that of Investigator
Tiongco, accused and himself Identified photographs shown to him in open Court. (Exhs. "D," "D-l," "D2" and "D-3"). Witness was likewise shown a plastic bag of marijuana contained in a plastic container
(Exhs. "B," "B-1" and "B-1 -a") and Identified it as the one confiscated from the accused and pointed to
his initials on the newspaper wrapping which also shows the date and time, although the wrapper at the
time he testified appeared to be soiled already. The marijuana was allegedly still fresh when confiscated.
To prove further that the accused transported the confiscated marijuana from Baguio City to Olongapo
City, witness Identified Victory Liner Ticket No. 684977 which was confiscated from the accused and for
Identification purposes, the witness presented the body number of the bus he wrote at the back of the
ticket which is "309" (Exhs. "F" and "F-l"). Regarding himself, he did not pay his fare from Baguio City
because as a policeman, he used his badge and a free ride.
On cross-examination, witness stated that he went to Baguio City on July 15,1981 and underwent
treatment of his heart while he was there. He was given a furlough for medical treatment. He stayed in
Baguio City for about five days and returned to Olongapo City on July 21, 1981. Prior to July 21, 1981,
witness never knew the accused, and the first time he saw her was in Baguio when she boarded the
same Victory Liner he took. When the accused who was bringing with her a woven plastic bag placed the

bag right behind his seat instead of placing it in front of her or beside her seat. Witness Obia became
suspicious and his suspicion was confirmed when they reached San Fernando, Pampanga, after he
checked the buri bag. The bus stopped at said town to load some gasoline. Witness inserted one of his
fingers inside the buri bag and thereafter smelt marijuana. He confirmed his testimony on direct that
when witness confronted accused he was invited to go with her in order to settle the matter to which he
refused. Accused further testified that from the time the accused placed her bag behind his seat from
Baguio City, he felt so nervous and had to take his medicine at the Tarlac Station. It was only after
having taken his medicine that his apprehension was contained and thus was able to insert his right
hand inside the buri bag in San Fernando, Pampanga. His fingers reached the very bottom of the bag. He
Identified his sworn statement regarding this incident given on July 21, 1981 which is Exhibit "G."
Witness likewise Identified accused Anita Claudio in open court.
Paulino Tiongco, 52 years old, married and resident of 31 Canada St., East Bajac Bajac, Olongapo City,
testified that as a policeman on the afternoon of July 21, 1981, he was inside the Investigation Division
of the Police Station, Olongapo City. As Duty Investigator, between 1:45 and 2:00 o'clock in the
afternoon of the same day, Pat. Daniel Obia arrived at the Police Station with a woman and Identified
her in the courtroom as Anita Claudio. Pat. Obia reported to him that he apprehended Anita Claudio
inside the Victory Liner bus for possession of marijuana dried leaves. The marijuana leaves were
contained in a buri bag with some vegetables such as camote tops, bananas and some other vegetables.
The marijuana was placed in a plastic wrapper with the name National Book Store colored black and
white. Witness Identified the wrapper (Exh. "B-2"). The bag contained the markings of Pat. Obia which
are his initials, (Exhs. "B-2-a"), and numbers 210781 representing the date which was placed by Pat.
Obia after Cpl. Tiongco examined the suspected marijuana.
After examining and seeing the marijuana together with the vegetables, he interviewed apprehending
officer Obia and reduced his statements in writing. Cpl. Tiongco Identifled the sworn statement of
Obia (Exh. "G"). He also interviewed accused Anita Claudio who was all the while inside the
Investigation room seated on a chair. After appraising her of her constitutional rights, he asked the
accused whether she was willing to give her written statements to which the accused refused. Hence, no
statements were taken of her. However, pictures were taken inside the investigation room. Exhs. "D"
and "E," series which were already previously Identified by Pat. Obia, Witness Identified the persons
appearing in the pictures as that of Pat. Obia and the accused and also of himself. Thereafter, the
marijuana contained in the plastic bag were turned over to Lt. Galindo and Anita Claudio was detained.
Ernesto Abello, 41 years old, married and residing at No. 29 Alba Street, East Tapinac, Olongapo City,
testified he was since March 1972 a policeman and was stationed at Police Station 21, Olongapo City,
Metrodiscom. However, in 1981, he was already assigned to the CANU General Anti-NARCOTICS Unit.
On July 22, 1981, he reported for work at the CANU and received from Lt. Galindo more than a kilo of
suspected marijuana dried leaves. As requested by Lt. Galindo he conducted a field test on this
marijuana which he received from Lt. Galindo, as evidenced by a request signed by him dated July
22,1981 (Exh. "H").
In connection with the field test conducted by him on the specimen, he prepared a Certificate of Fleld
Test dated July 22,1981 (Exhs. "I"). The Certificate of Field Test indicated the presence of tetrahydrocannabinol (THC), an active substance that can be only be found in marijuana, a prohibited drug.
Cpl. Abello Identified a plastic bag of marijuana received from Lt. Galindo which he later give to CIC
Danilo Santiago, the Evidence Custodian, for the latter to bring the specimen to the PC Crime
Laboratory.
The last witness for the prosecution was Leoncio Bagang, 40 years old, married, residing at No. 27 Jones
St., East Tapinac, Olongapo City, a policeman of Olongapo City, assigned with Police Station "21." He has
been a policeman since 1966 up to the present. In July, 1981, he was then assigned at the Patrol Division
and his duty was to patrol the city proper from Magsaysay Drive up to east Bajac Bajac.

He narrated that on July 21,1981, between the hours of 1:00 and 2:00 o'clock in the afternoon, he was
at the Caltex Gasoline Station, East Bajac Bajac, Olongapo City along Rizal Avenue. He was then on duty
patrol using a motorcycle. While he was at the said place, he saw Pat. Obia alighted from the Victory
Liner bus ordering somebody to alight from the same bus. When he heard Pat. Obia he approached
him and asked him what was happening. Pat. Obia told him he apprehended a certain woman
possessing dried marijuana. The woman was still then inside the bus. Pat. Obia then brought the
woman to the police department who was bringing with her a buri bag. They boarded a tricycle, the
woman riding inside the tricycle while Pat. Obia sat behind the driver. He then followed in his
motorcycle the said tricycle to police station. He went inside the Investigation Section of the Police
Station and he was there when Pat. Obia reported to Cpl. Tiongco his apprehension of the woman
possessing marijuana. He saw the marijuana for the first time inside the Investigation Section placed in a
buri bag covered with newspaper. He witnessed the taking out of the marijuana from inside the bag by
Pat. Obia in the presence of Cpl. Tiongco and the woman or the accused in this case, and himself.
Policeman Bagang Identified the accused in open Court. When asked about the nature of the marijuana
when it was brought out from the bag, he said that the marijuana was dried but not well dried. Aside
from the marijuana inside the buri bag, there were vegetables and bananas, Witness Identified in open
Court, the marijuana he saw found in the buri bag of the accused. His means of Identification was the
signature of Pat. Obia, (Exh. "B-1"). He likewise Identified a newspaper wrapping which was already
torn.
While in the Investigation Division, witness Bagang heard the accused's answer to Cpl. Tiongco's
questions that she was going to deliver the marijuana to Sta. Rita. He, however, did not linger long at
the investigation Division. After he saw the marijuana and heard the answer of the accused to Cpl.
Tiongcos question the place of delivery of the marijuana, he left the police station. Witness likewise
Identified an initial DO-21-07-81 already marked as Exhibit "B-2." DO which is an initial, and not a
signature, stands for Daniel Obia. After the testimony of Leoncio Bagang, the prosecution rested its
case. (Rollo, pp. 42-47)
Accused Claudio raised the following assignments of errors in this appeal:
I
CONVICTION UNDER SECTION 4, ART. II OF R.A. 6425 IS IMPROPER IF ONE OR SOME OF THE ELEMENTS
OF THE OFFENSE IS OR ARE ABSENT.
II
CONVICTION CAN NOT BE HAD UNDER SECTION 4, ART. II OF R.A. 6425 IF THE ALLEGED BUYMAN WAS
NOT PRESENTED TO TESTIFY.
III
APPELLANTS CONVICTION FOR DELIVERY (SEC. 4, ART II, OF R.A. 6424) IS WRONG BECAUSE SOME
MATERIAL FACTS WERE OVERLOOKED AND NOT CONSIDERED IN FAVOR OF APPELLANT. (Rollo, p. 91)
The accused alleges that she is only liable, at the most, for possession under Sec. 8, Art. II of Rep. Act No. 6425 and not
for violating Sec. 4 of the same Act.
The latter section, Sec. 4 provides:
Sec. 4. Sale, Administration, Delivery Distribution and Transportation of Prohibited Drugs.The penalty
of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be
imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to

another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of
such transactions. If the victim of the offense is a minor, or should a prohibited drug involved in any
offense under this Section be the proximate cause of the death of a victim thereof, the maximum
penalty herein provided shall be imposed.
Claudio contends that there was no delivery as there was no recipient of the prohibited drugs. Therefore, she may not
be convicted under Sec. 4 of Rep. Act No. 6425.
The contention is without merit. A closer perusal of the subject provision shows that it is not only delivery which is
penalized but also the sale, administration, distribution and transportation of probihited drugs. Claudio was caught
transporting 1.1 kilos of marijuana, thus the lower court did not err in finding her guilty of violating Sec. 4.
The accused also alleges that before the completion of delivery, the intention of the possessor is unknown.
This allegation is also unavailing. It is undisputed that Claudio had in her possession 1.1 kilos of marijuana. This is a
considerable quantity. As held in the case of People v. Toledo, (140 SCRA 259, 267) "the possession of such considerable
quantity as three plastic bags of marijuana leaves and seeds coupled with the fact that he is not a user of prohibited
drugs cannot indicate anything except the intention of the accused to sell, distribute and deliver said marijuana.
The accused next contends the warrantless search, seizure and apprehension as unlawful.
The applicable provisions on this issue are found in the 1985 Rules on Criminal Procedure.
Rule 113, Sec. 5(a) of the said Rules provides:
.. 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.
xxx xxx xxx
Meanwhile, its Rule 126, Sec. 12 provides:
Section 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous
weapons or anything which may be used as proof of the commission of an offense, without a search
warrant. (12a)
Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel Obia did not need a warrant to arrest Claudio
as the latter was caught in flagrante delicto. The warrantless search being an incident to a lawful arrest is in itself lawful.
(Nolasco v. Pano, 147 SCRA 509). Therefore, there was no infirmity in the seizure of the 1.1 kilos of marijuana.
The accused takes inconsistent positions in her appellant's brief. At first, she does not deny having had with her
marijuana at the time of her arrest. Instead, she claims that she should just be guilty of possession. In a complete
turnabout, in the latter portion of said brief, she claims that the evidence against her were mere fabrications and the
marijuana allegedly found in her possession was only planted.
We have carefully examined the records of the case and we find no ground to alter the trial court's findings and
appreciation of the evidence presented.
Credence is accorded to the prosecution's evidence, more so as it consisted mainly of testimonies of policemen. Law
enforcers are presumed to have regularly performed their duty in the absence of proof to the contrary (People v. De

Jesus, 145 SCRA 521). We also find no reason from the records why the prosecution witnesses should fabricate their
testimonies and implicate appellant in such a serious crime (See People v. Bautista, 147 SCRA 500).
The accused testified that she was not on that bus that came from Baguio City but rather she was in Olongapo City all
that time. She alleged that she was arrested by Pat. Obia for no reason at all.
In the case at bar, alibi does not deserve much credit as it was established only by the accused herself (People v. De la
Cruz, 148 SCRA 582).
Moreover, it is a well-established rule that alibi cannot prevail over positive testimony (People v. De La Cruz,supra).
WHEREFORE, the judgment appealed from is AFFIRMED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 82544 June 28, 1988
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF: ANDREW HARVEY, JOHN SHERMAN and ADRIAAN VAN
DEL ELSHOUT, petitioners,
vs.
HONORABLE COMMISSIONER MIRIAM DEFENSOR SANTIAGO, COMMISSION ON IMMIGRATION AND
DEPORTATION, respondent.

MELENCIO-HERRERA, J.:
A petition for Habeas Corpus.
Petitioners Andrew Harvey and John Sherman, 52 and 72 years, respectively, are both American nationals residing at
Pagsanjan, Laguna, while Adriaan Van Elshout, 58 years old, is a Dutch citizen also residing at Pagsanjan, Laguna.
The case stems from the apprehension of petitioners on 27 February 1988 from their respective residences by agents of
the Commission on Immigration and Deportation (CID) by virtue of Mission Orders issued by respondent Commissioner
Miriam Defensor Santiago of the CID. Petitioners are presently detained at the CID Detention Center.
Petitioners were among the twenty-two (22) suspected alien pedophiles who were apprehended after three months of
close surveillance by CID agents in Pagsanjan, Laguna. Two (2) days after apprehension, or on 29 February 1988,
seventeen (17) of the twenty-two (22) arrested aliens opted for self-deportation and have left the country. One was
released for lack of evidence; another was charged not for being a pedophile but for working without a valid working
visa. Thus, of the original twenty two (22), only the three petitioners have chosen to face deportation.
Seized during petitioners apprehension were rolls of photo negatives and photos of the suspected child prostitutes
shown in salacious poses as well as boys and girls engaged in the sex act. There were also posters and other literature
advertising the child prostitutes.
The "Operation Report," on Andrew Harvey and Richard Sherman dated 29 February 1988 stated:
xxx xxx xxx
ANDREW MARK HARVEY was found together with two young boys.
RICHARD SHERMAN was found with two naked boys inside his room.
In respect of Van Den Elshout the "After Mission Report," dated 27 February 1988 read in part:
Noted:
There were two (2) children ages 14 & 16 which subject readily accepted having been in
his care and live-in for quite sometime.

On 4 March 1988, deportation proceedings were instituted against petitioners for being undesirable aliens under
Section 69 of the Revised Administrative Code (Deportation Case No. 88-13). The "Charge Sheet" read inter alia:
Wherefore, this Office charges the respondents for deportation, as undesirable aliens, in that: they,
being pedophiles, are inimical to public morals, public health and public safety as provided in Section 69
of the Revised Administrative Code.
On 7 March 1988, Warrants of Arrest were issued by respondent against petitioners for violation of Sections 37, 45 and
46 of the Immigration Act and Section 69 of the Revised Administrative Code On the same date, the Board of Special
Inquiry III commenced trial against petitioners.
On 14 March 1988, petitioners filed an Urgent Petition for Release Under Bond alleging that their health was being
seriously affected by their continuous detention. Upon recommendation of the Board of Commissioners for their
provisional release, respondent ordered the CID doctor to examine petitioners, who certified that petitioners were
healthy.
On 22 March 1988, petitioners filed a Petition for Bail which, however, respondent denied considering the certification
by the CID physician that petitioners were healthy. To avoid congestion, respondent ordered petitioners' transfer to the
CID detention cell at Fort Bonifacio, but the transfer was deferred pending trial due to the difficulty of transporting them
to and from the CID where trial was on-going.
On 4 April 1988 petitioner Andrew Harvey filed a Manifestation/Motion stating that he had "finally agreed to a selfdeportation" and praying that he be "provisionally released for at least 15 days and placed under the custody of Atty.
Asinas before he voluntarily departs the country." On 7 April 1988, the Board of Special Inquiry III allowed provisional
release of five (5) days only under certain conditions. However, it appears that on the same date that the aforesaid
Manifestation/ Motion was filed, Harvey and his co-petitioners had already filed the present petition.
On 4 April 1988, as heretofore stated, petitioners availed of this Petition for a Writ of Habeas Corpus. A Return of the
Writ was filed by the Solicitor General and the Court heard the case on oral argument on 20 April 1988. A Traverse to the
Writ was presented by petitioners to which a Reply was filed by the Solicitor General.
Petitioners question the validity of their detention on the following grounds:
1) There is no provision in the Philippine Immigration Act of 1940 nor under Section 69 of the Revised Administrative
Code, which legally clothes the Commissioner with any authority to arrest and detain petitioners pending determination
of the existence of a probable cause leading to an administrative investigation.
2) Respondent violated Section 2, Article III of the 1987 Constitution prohibiting unreasonable searches and seizures
since the CID agents were not clothed with valid Warrants of arrest, search and seizure as required by the said provision.
3) Mere confidential information made to the CID agents and their suspicion of the activities of petitioners that they are
pedophiles, coupled with their association with other suspected pedophiles, are not valid legal grounds for their arrest
and detention unless they are caught in the act. They further allege that being a pedophile is not punishable by any
Philippine Law nor is it a crime to be a pedophile.
We reject petitioners' contentions and uphold respondent's official acts ably defended by the Solicitor General.
There can be no question that the right against unreasonable searches and seizures guaranteed by Article III, Section 2
of the 1987 Constitution, is available to all persons, including aliens, whether accused of crime or not (Moncado vs.
People's Court, 80 Phil. 1 [1948]. One of the constitutional requirements of a valid search warrant or warrant of arrest is
that it must be based upon probable cause. Probable cause has been defined as referring to "such facts and
circumstances antecedent to the issuance of the warrant that in themselves are sufficient to induce a cautious man to
rely on them and act in pursuance thereof." (People vs. Syjuco 64 Phil. 667 [1937]; Alverez vs. CFI, 64 Phil. 33 [1937]).

The 1985 Rules on Criminal Procedure also provide that an arrest wit a warrant may be effected by a peace officer or
even a private person (1) when such person has committed, actually committing, or is attempting to commit an offense
in his presence; and (2) when an offense has, in fact, been committed and he has personal knowledge of facts indicating
that the person to be arrested has committed it (Rule 113, Section 5).
In this case, the arrest of petitioners was based on probable cause determined after close surveillance for three (3)
months during which period their activities were monitored. The existence of probable cause justified the arrest and the
seizure of the photo negatives, photographs and posters without warrant (See Papa vs. Mago, L-27360, February 28,
1968,22 SCRA 857; People vs. Court of First Instance of Rizal, L-41686, November 17, 1980, 101 SCRA 86, cited in CRUZ,
Constitutional Law, 1987 ed., p. 143). Those articles were seized as an incident to a lawful arrest and, are therefore,
admissible in evidence (Section 12, Rule 126,1985 Rules on criminal Procedure).
But even assuming arguendo that the arrest of petitioners was not valid at its inception, the records show that formal
deportation charges have been filed against them, as undesirable aliens, on 4 March 1988. Warrants of arrest were
issued against them on 7 March 1988 "for violation of Section 37, 45 and 46 of the Immigration Act and Section 69 of the
Administrative Code." A hearing is presently being conducted by a Board of Special Inquiry. The restraint against their
persons, therefore, has become legal. The Writ has served its purpose. The process of the law is being followed (Cruz vs.
Montoya, L-39823, February 25, 1975, 62 SCRA 543). "were a person's detention was later made by virtue of a judicial
order in relation to criminal cases subsequently filed against the detainee, his petition for hebeas corpus becomes moot
and academic" (Beltran vs. Garcia, L-49014, April 30, 1979, 89 SCRA 717). "It is a fumdamental rule that a writ of habeas
corpus will not be granted when the confinement is or has become legal, although such confinement was illegal at the
beginning" (Matsura vs. Director of Prisons, 77 Phil. 1050 [1947]).
That petitioners were not "caught in the act" does not make their arrest illegal. Petitioners were found with young boys
in their respective rooms, the ones with John Sherman being naked. Under those circumstances the CID agents had
reasonable grounds to believe that petitioners had committed "pedophilia" defined as "psychosexual perversion
involving children" (Kraft-Ebbing Psychopatia Sexualis p. 555; Paraphilia (or unusual sexual activity) in which children are
the preferred sexual object" (Webster's Third New International Dictionary, 1971 ed., p. 1665) [Solicitor General's
Return of the Writ, on p. 101. While not a crime under the Revised Penal Code, it is behavior offensive to public morals
and violative of the declared policy of the State to promote and protect the physical, moral, spiritual, and social wellbeing of our youth (Article II, Section 13, 1987 Constitution).
At any rate, the filing by petitioners of a petition to be released on bail should be considered as a waiver of any
irregularity attending their arrest and estops them from questioning its validity (Callanta v. Villanueva, L-24646 & L24674, June 20, 1977, 77 SCRA 377; Bagcal vs. Villaraza, L-61770, January 31, 1983, 120 SCRA 525).
The deportation charges instituted by respondent Commissioner are in accordance with Section 37(a) of the Philippine
Immigration Act of 1940, in relation to Section 69 of the Revised Administrative Code. Section 37(a) provides in part:
(a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration and
Deportation or any other officer designated by him for the purpose and deported upon the warrant of
the Commissioner of Immigration and Deportation after a determination by the Board of Commissioners
of the existence of the ground for deportation as charged against the alien;
xxx xxx xxx
The foregoing provision should be construed in its entirety in view of the summary and indivisible nature of a
deportation proceeding, otherwise, the very purpose of deportation proceeding would be defeated.
Section 37(a) is not constitutionally proscribed (Morano vs. Vivo, L-22196, June 30, 1967, 20 SCRA 562). The specific
constraints in both the 1935 1 and 1987 2 Constitutions, which are substantially Identical, contemplate prosecutions
essentially criminal in nature. Deportation proceedings, on the other hand, are administrative in character. An order of

deportation is never construed as a punishment. It is preventive, not a penal process. It need not be conducted strictly in
accordance with ordinary Court proceedings.
It is of course well-settled that deportation proceedings do not constitute a criminal action. The order of
deportation is not a punishment, (Maliler vs. Eby, 264 U.S., 32), it being merely the return to his country
of an alien who has broken the conditions upon which he could continue to reside within our borders
(U.S. vs. De los Santos, 33 Phil., 397). The deportation proceedings are administrative in character,
(Kessler vs. Stracker 307 U.S., 22) summary in nature, and need not be conducted strictly in accordance
with the ordinary court proceedings (Murdock vs. Clark, 53 F. [2d], 155). It is essential, however, that the
warrant of arrest shall give the alien sufficient information about the charges against him, relating the
facts relied upon. (U.S. vs. Uhl 211 F., 628.) It is also essential that he be given a fair hearing with the
assistance of counsel, if he so desires, before unprejudiced investigators (Strench vs. Pedaris, 55 F. [2d],
597; Ex parte Jew You On, 16 F. [2d], 153). However, all the strict rules of evidence governing judicial
controversies do not need to be observed; only such as are fumdamental and essential like the right of
cross-examination. (U.S. vs. Hughes, 104 F. [2d], 14; Murdock vs. Clark, 53 F. [2d], 155.) Hearsay
evidence may even be admitted, provided the alien is given the opportunity to explain or rebut it
(Morrell vs. Baker, 270 F., 577; Sercerchi vs. Ward, 27 F. Supp., 437). (Lao Tang Bun vs. Fabre 81 Phil. 682
[1948]).
The ruling in Vivo vs. Montesa (G. R. No. 24576, July 29, 1968, 24 SCRA 155) that "the issuance of warrants of arrest by
the Commissioner of Immigration, solely for purposes of investigation and before a final order of deportation is issued,
conflicts with paragraph 3, Section I of Article III of the Constitution" (referring to the 1935 Constitution) 3 is not
invocable herein. Respondent Commissioner's Warrant of Arrest issued on 7 March 1988 did not order petitioners to
appear and show cause why they should not be deported. They were issued specifically "for violation of Sections 37, 45
and 46 of the Immigration Act and Section 69 of the Revised Administrative Code." Before that, deportation proceedings
had been commenced against them as undesirable aliens on 4 March 1988 and the arrest was a step preliminary to their
possible deportation.
Section 37 of the Immigration Law, which empowers the Commissioner of Immigration to issue warrants
for the arrest of overstaying aliens is constitutional. The arrest is a stop preliminary to the deportation of
the aliens who had violated the condition of their stay in this country. (Morano vs. Vivo, L-22196, June
30, 1967, 20 SCRA 562).
To rule otherwise would be to render the authority given the Commissioner nugatory to the detriment of the State.
The pertinent provision of Commonwealth Act No. 613, as amended, which gives authority to the
Commissioner of Immigration to order the arrest of an alien temporary visitor preparatory to his
deportation for failure to put up new bonds required for the stay, is not unconstitutional.
xxx xxx xxx
... Such a step is necessary to enable the Commissioner to prepare the ground for his deportation under
Section 37[al of Commonwealth Act 613. A contrary interpretation would render such power nugatory
to the detriment of the State. (Ng Hua To vs. Galang, G. R. No. 10145, February 29, 1964, 10 SCRA 411).
"The requirement of probable cause, to be determined by a Judge, does not extend to deportation proceedings."
(Morano vs. Vivo, supra, citing Tiu Chun Hai vs. Commissioner, infra). There need be no "truncated" recourse to both
judicial and administrative warrants in a single deportation proceedings.
The foregoing does not deviate from the ruling in Qua Chee Gan vs. Deportation Board (G. R. No. 10280, September 30,
1963, 9 SCRA 27 [1963]) reiterated in Vivo vs. Montesa, supra, that "under the express terms of our Constitution (the
1935 Constitution), it is therefore even doubtful whether the arrest of an individual may be ordered by any authority
other than a judge if the purpose is merely to determine the existence of a probable cause, leading to an administrative

investigation." For, as heretofore stated, probable cause had already been shown to exist before the warrants of arrest
were issued.
What is essential is that there should be a specific charge against the alien intended to be arrested and deported, that a
fair hearing be conducted (Section 37[c]) with the assistance of counsel, if desired, and that the charge be substantiated
by competent evidence. Thus, Section 69 of the Revised Administrative Code explicitly provides:
Sec. 69. Deportation of subject of foreign power. A subject of a foreign power residing in the Philippines
shall not be deported, expelled, or excluded from said Islands or repatriated to his own country by the
President of the Philippines except upon prior investigation, conducted by said Executive or his
authorized agent, of the ground upon which such action is contemplated. In such a case the person
concerned shall be informed of the charge or charges against him and he shall be allowed not less than 3
days for the preparation of his defense. He shall also have the right to be heard by himself or counsel, to
produce witnesses in his own behalf, and to cross-examine the opposing witnesses.
The denial by respondent Commissioner of petitioners' release on bail, also challenged by them, was in order because in
deportation proceedings, the right to bail is not a matter of right but a matter of discretion on the part of the
Commissioner of Immigration and Deportation. Thus, Section 37(e) of the Philippine Immigration Act of 1940 provides
that "any alien under arrest in a deportation proceeding may be released under bond or under such other conditions as
may be imposed by the Commissioner of Immigration." The use of the word "may" in said provision indicates that the
grant of bail is merely permissive and not mandatory on the part of the Commissioner. The exercise of the power is
wholly discretionary (Ong Hee Sang vs. Commissioner of Immigration, L-9700, February 28,1962, 4 SCRA 442). "Neither
the Constitution nor Section 69 of the Revised Administrative Code guarantees the right of aliens facing deportation to
provisional liberty on bail." (Tiu Chun Hai et al vs. Deportation Board, 104 Phil. 949 [1958]). As deportation proceedings
do not partake of the nature of a criminal action, the constitutional guarantee to bail may not be invoked by aliens in
said proceedings (Ong Hee Sang vs. Commissioner of Immigration, supra).
Every sovereign power has the inherent power to exclude aliens from its territory upon such grounds as it may deem
proper for its self-preservation or public interest (Lao Tan Bun vs. Fabre 81 Phil. 682 [1948]). The power to deport aliens
is an act of State, an act done by or under the authority of the sovereign power (In re McCulloch Dick, 38 Phil. 41 [1918]).
It is a police measure against undesirable aliens whose continued presence in the country is found to be injurious to the
public good and the domestic tranquility of the people (Forbes vs. Chuoco Tiaco et al., 16 Phil. 534 [1910]). Particularly
so in this case where the State has expressly committed itself to defend the tight of children to assistance and special
protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development
(Article XV, Section 3[2]). Respondent Commissioner of Immigration and Deportation, in instituting deportation
proceedings against petitioners, acted in the interests of the State.
WHEREFORE, the Petition is dismissed and the Writ of Habeas Corpus is hereby denied.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. Nos. 99289-90 January 27, 1993

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

4. On the other hand, the accused Miriam Defensor Santiago seeks leave of this Honorable Court that
she be considered as having placed herself under the jurisdiction of this Honorable Court, for purposes
of the required trial and other proceedings and further seeks leave of this Honorable Court that the
recommended bail bond of P15,000.00 that she is posting in cash be accepted.
xxx xxx xxx
WHEREFORE, it is respectfully prayed of this Honorable Court that the bail bond she is posting in the
amount of P15,000.00 be duly accepted, and that by this motion, she be considered as having placed
herself under the custody of this Honorable Court and dispensing of her personal appearance for now
until such time she will (sic) have recovered sufficiently from her recent near fatal accident.
Further, on the above basis, it is also respectfully prayed that the warrant for her arrest be immediately
recalled.
xxx xxx xxx
4. Also on the same day, the Sandiganbayan issued a resolution 3 authorizing petitioner to post a cash bond for her
provisional liberty without need for her physical appearance until June 5, 1991 at the latest, unless by that time her
condition does not yet permit her physical appearance before said court. On May 15, 1991, petitioner filed a cash bond
in the amount of P15,000.00, aside from the other legal fees. 4
5. On May 21, 1991, respondent Ombudsman Conrado M. Vasquez filed with the Sandiganbayan a manifestation "that
accused Miriam Defensor-Santiago appeared in his office in the second floor of the Old NAWASA Building located in
Arroceros Street, Ermita, Manila at around 3:30 o'clock in the afternoon of May 20, 1991. She was accompanied by a
brother who represented himself to be Atty. Arthur Defensor and a lady who is said to be a physician. She came and left
unaided, after staying for about fifteen minutes. 5
6. Acting on said manifestation, the Sandiganbayan issued a resolution also on May 21, 1991, setting the arraignment of
the accused for May 27, 1991, and setting aside the court's resolution of May 14, 1991 which ordered her appearance
before the deputy clerk of the First Division of said court on or before June 5, 1991. 6
7. In a motion dated May 22, 1991, petitioner asked that her cash bond be cancelled and that she be allowed provisional
liberty upon a recognizance. She contended that for her to continue remaining under bail bond may imply to other
people that she has intentions of fleeing, an intention she would like to prove as baseless. 7
8. Likewise on May 24, 1991, petitioner filed with this Court a petition for certiorari and prohibition with preliminary
injunction, and a subsequent addendum thereto, seeking to enjoin the Sandiganbayan and the Regional Trial Court of
Manila from proceeding with Criminal Cases Nos. 12298 (for violation of Section 3[e] of Republic Act No. 3019), 9194555 (violation of Presidential Decree No. 46), and 91-94897 (for libel), respectively. Consequently, a temporary
restraining order was issued by this Court on May 24, 1991, enjoining the Sandiganbayan and the Regional Trial Court of
Manila, Branch 3, from proceeding with the criminal cases pending before them. This Court, in issuing said order, took
into consideration the fact that according to petitioner, her arraignment, originally set for June 5, 1991, was inexplicably
advanced to May 27, 1991, hence the advisability of conserving and affording her the opportunity to avail herself of any
remedial right to meet said contingency.
9. On May 27, 1991, the Sandiganbayan issued an order deferring: (a) the arraignment of petitioner until further advice
from the Supreme Court; and (b) the consideration of herein petitioner's motion to cancel her cash bond until further
initiative from her through counsel. 8
10. On January 18, 1992, this Court rendered a decision dismissing the petition for certiorari and lifting and setting aside
the temporary restraining order previously issued. 9 The motion for reconsideration filed by petitioner was eventually
denied with finality in this Court's resolution dated September 10, 1992.

11. Meanwhile, in a resolution adopted on July 6, 1992, the Sandiganbayan issued a hold departure order against
petitioner which reads as follows:
Considering the information in media to the effect that accused Santiago intends to leave the country
soon for an extended stay abroad for study purposes, considering the recent decision of the Supreme
Court dismissing her petition promulgated on January 13, 1992, although the same is still subject of a
Motion for Reconsideration from the accused, considering that the accused has not yet been arraigned,
nor that she has not (sic) even posted bail the same having been by reason of her earlier claim of being
seriously indisposed, all of which were overtaken by a restraining order issued by the Supreme Court in
G.R. No. 99289 and No. 99290 dated May 24, 1991, the accused is ordered not to leave the country and
the Commission on Immigration and Deportation is ordered not to allow the departure of the accused
unless authorized from (sic) this Court. 10
The hold departure order was issued by reason of the announcement made by petitioner, which was widely publicized in
both print and broadcast media, that she would be leaving for the United States to accept a fellowship supposedly
offered by the John F. Kennedy School of Government at Harvard University. Petitioner likewise disclosed that she would
be addressing Filipino communities in the United States in line with her crusade against election fraud and other aspects
of graft and corruption.
In the instant motion submitted for our resolution, petitioner argues that:
1. The Sandiganbayan acted without or in excess of jurisdiction and with grave abuse of discretion in
issuing the hold departure order considering that it had not acquired jurisdiction over the person of the
petitioner.
2. The Sandiganbayan blatantly disregarded basic principles of judicial comity and due deference owing
to a superior tribunal when it issued the hold departure order despite the pendency of petitioner's
motion for reconsideration with this Honorable Court.
3. The right to due process of law, the right to travel and the right to freedom of speech are preferred,
pre-eminent rights enshrined not only in the Constitution but also in the Universal Declaration of Human
Rights which can be validly impaired only under stringent criteria which do not obtain in the instant
case.
4. The hold departure order in the instant case was issued under disturbing circumstances which suggest
political harassment and persecution.
5. On the basis of petitioner's creditable career in the bench and bar and her characteristic transparency
and candor, there is no reasonable ground to fear that petitioner will surreptitiously flee the country to
evade judicial processes. 11
I. Petitioner initially postulates that respondent court never acquired jurisdiction over her person considering that she
has neither been arrested nor has she voluntarily surrendered, aside from the fact that she has not validly posted bail
since she never personally appeared before said court. We reject her thesis for being factually and legally untenable.
It has been held that where after the filing of the complaint or information a warrant for the arrest of the accused is
issued by the trial court and the accused either voluntarily submitted himself to the court or was duly arrested, the court
thereby acquires jurisdiction over the person of the accused. 12 The voluntary appearance of the accused, whereby the
court acquires jurisdiction over his person, is accomplished either by his pleading to the merits (such as by filing a
motion to quash or other pleadings requiring the exercise of the court's jurisdiction thereover, appearing for
arraignment, entering trial) or by filing bail. On the matter of bail, since the same is intended to obtain the provisional
liberty of the accused, as a rule the same cannot be posted before custody of the accused has been acquired by the
judicial authorities either by his arrest or voluntary surrender. 13

In the case at bar, it becomes essential, therefore, to determine whether respondent court acquired jurisdiction over the
person of herein petitioner and, correlatively, whether there was a valid posting of bail bond.
We find and so hold that petitioner is deemed to have voluntarily submitted herself to the jurisdiction of respondent
court upon the filing of her aforequoted "Urgent Ex-parte Motion for Acceptance of Cash Bail Bond for and in behalf of
Dr. Miriam Defensor-Santiago" wherein she expressly sought leave "that she be considered as having placed herself
under the jurisdiction of (the Sandiganbayan) for purposes of the required trial and other proceedings," and
categorically prayed "that the bail bond she is posting in the amount of P15,000.00 be duly accepted" and that by said
motion "she be considered as having placed herself under the custody" of said court. Petitioner cannot now be heard to
claim otherwise for, by her own representations, she is effectively estopped from asserting the contrary after she had
earlier recognized the jurisdiction of the court and caused it to exercise that jurisdiction over the aforestated pleadings
she filed therein.
It cannot be denied that petitioner has posted a cash bail bond of P15,000.00 for her provisional release as evidenced by
Official Receipt No. 4292925 dated May 15, 1991 and which is even attached as Annex C-2 to her own motion now
under consideration. This is further buttressed by the fact that petitioner thereafter also filed a motion for the
cancellation of said cash bond and for the court to allow her provisional liberty upon the security of a recognizance. With
the filing of the foregoing motions, petitioner should accordingly and necessarily admit her acquiescence to and
acknowledgment of the propriety of the cash bond she posted, instead of adopting a stance which ignores the injunction
for candor and sincerity in dealing with the courts of justice.
Petitioner would also like to make capital of the fact that she did not personally appear before respondent court to file
her cash bond, thereby rendering the same ineffectual. Suffice it to say that in this case, it was petitioner herself, in her
motion for the acceptance of the cash bond, who requested respondent court to dispense with her personal appearance
until she shall have recovered sufficiently from her vehicular accident. It is distressing that petitioner should now turn
around and fault respondent court for taking a compassionate stand on the matter and accommodating her own
request for acceptance of the cash bond posted in her absence.
II. Petitioner argues that the Sandiganbayan disregarded the rule of judicial comity when it issued the hold departure
order despite the pendency of her motion for reconsideration of the decision of this Court which dismissed her petition.
She claims that if the principle of judicial comity applies to prevent a court from interfering with the proceedings
undertaken by a coordinate court, with more reason should it operate to prevent an inferior court, such as the
Sandiganbayan, from interfering with the instant case where a motion for reconsideration was still pending before this
Court. She contends further that the hold departure order contravenes the temporary restraining order previously
issued by this court enjoining the Sandiganbayan from proceeding with the criminal case pending before it.
It will be remembered that the Court rendered a decision in the present case on January 18, 1992 dismissing the petition
for certiorari filed in this case and lifting and setting aside the temporary restraining order it previously issued. It is
petitioner's submission that the filing of her motion for reconsideration stayed the lifting of the temporary restraining
order, hence respondent court continued to be enjoined from acting on and proceeding with the case during the
pendency of the motion for reconsideration. We likewise reject this contention which is bereft of merit.
Section 4, Rule 39 of the Rules of Court provides that, unless otherwise ordered by the court, a judgment in an action for
injunction shall not be stayed after its rendition and before an appeal is taken or during the pendency of an appeal. And,
the rule is that the execution of a judgment decreeing the dissolution of a writ of preliminary injunction shall not be
stayed before an appeal is taken or during the pendency of an appeal, 14 and we see no reason why the foregoing
considerations should not apply to a temporary restraining order. The rationale therefor is that even in cases where an
appeal is taken from a judgment dismissing an action on the merits, the appeal does not suspend the judgment, hence
the general rule applies that a temporary injunction terminates automatically on the dismissal of the action. 15
It has similarly been held that an order of dissolution of an injunction may be immediately effective, even though it is
not final. 16 A dismissal, discontinuance, or non-suit of an action in which a restraining order or temporary injunction has
been granted operates as a dissolution of the restraining order or temporary injunction 17 and no formal order of

dissolution is necessary to effect such dissolution. 18 Consequently, a special order of the court is necessary for the
reinstatement of an injunction. 19 There must be a new exercise of .judicial power. 20
The reason advanced in support of the general rule has long since been duly explained, to wit:
. . . The court of this State, relying upon the last of the two clauses quoted, held that an appeal from an
order dissolving an injunction continued the injunction in force. The evils which would result from such a
holding are forcibly pointed out by Judge Mitchell in a dissenting opinion. He said: "Although a plaintiff's
papers are so insufficient on their face or so false in their allegations that if he should apply on notice for
an injunction, any court would, on a hearing, promptly refuse to grant one, yet, if he can find anywhere
in the State a judge or court commissioner who will improvidently grant one ex parte, which the court
on the first and only hearing ever had dissolves, he can, by appealing and filing a bond, make the ex
parte injunction impervious to all judicial interference until the appeal is determined in this court." . . .
Such a result is so unjust and so utterly inconsistent with all known rules of equity practice that no court
should adopt such a construction unless absolutely shut up to it by the clear and unequivocal language
of the statute. . . . . 21
This ruling has remained undisturbed over the decades and was reiterated in a case squarely in point and of more recent
vintage:
The SEC's orders dated June 27, 1989 and July 21, 1989 (directing the secretary of UDMC to call a
stockholders' meeting, etc.) are not premature, despite the petitioners then pending motion for
reconsideration of the decision of the Court of Appeals. The lifting by the Court of Appeals of its writ of
preliminary injunction in C.A.-G.R. SP No. 17435 cleared the way for the implementation by the SEC'sen
banc resolution in SEC EB Case No. 191. The SEC need not wait for the Court of Appeals to resolve the
petitioner's motion for reconsideration for a judgment decreeing the dissolution of a preliminary
injunction is immediately executory. It shall not be stayed after its rendition and before an appeal is
taken or during the pendency of an appeal. . . . . 22
On the bases of the foregoing pronouncements, there is no question that with the dismissal of the petition
forcertiorari and the lifting of the restraining order, nothing stood to hinder the Sandiganbayan from acting on and
proceeding with the criminal cases filed against herein petitioner. At any rate, as we have earlier mentioned, the motion
for reconsideration filed by petitioner was denied with finality in our resolution dated September 10, 1992.
Petitioner further posits, however, that the filing of the instant special civil action for certiorari divested the
Sandiganbayan of its jurisdiction over the case therein. Whether generated by misconception or design, we shall address
this proposition which, in the first place, had no reason for being and should not hereafter be advanced under like or
similar procedural scenarios.
The original and special civil action filed with this Court is, for all intents and purposes, an invocation for the exercise of
its supervisory powers over the lower courts. It does not have the effect of divesting the inferior courts of jurisdiction
validly acquired over the case pending before them. It is elementary that the mere pendency of a special civil action
for certiorari, commenced in relation to a case pending before a lower court, does not even interrupt the course of the
latter when there is no writ of injunction restraining it. 23 The inevitable conclusion is that for as long as no writ of
injunction or restraining order is issued in the special civil action for certiorari, no impediment exists and there is nothing
to prevent the lower court from exercising its jurisdiction and proceeding with the case pending before it. And, even if
such injunctive writ or order is issued, the lower court nevertheless continues to retain its jurisdiction over the principal
action.
III. It is further submitted by petitioner that the hold departure order violates her right to due process, right to travel and
freedom of speech.

First, it is averred that the hold departure order was issued without notice and hearing. Much is made by petitioner of
the fact that there was no showing that a motion to issue a hold departure order was filed by the prosecution and,
instead, the same was issued ex mero motu by the Sandiganbayan. Petitioner is in error.
Courts possess certain inherent powers which may be said to be implied from a general grant of jurisdiction, in addition
to those expressly conferred on them. 24 These inherent powers are such powers as are necessary for the ordinary and
efficient exercise of jurisdiction; 25 or essential to the existence, dignity and functions of the courts, 26 as well as to the
due administration of justice; 27 or are directly appropriate, convenient and suitable to the execution of their granted
powers; 28 and include the power to maintain the court's jurisdiction and render it effective in behalf of the litigants. 29
Therefore, while a court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant
of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to
effectuate it, and, subject to existing laws and constitutional provisions, every regularly constituted court has the power
to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction. Hence,
demands, matters, or questions ancillary or incidental to, or growing out of, the main action, and coming within the
above principles, may be taken cognizance of by the court and determined, since such jurisdiction is in aid of its
authority over the principal matter, even though the court may thus be called on to consider and decide matters which,
as original causes of action, would not be within its cognizance.
Furthermore, a court has the inherent power to make interlocutory orders necessary to protect its jurisdiction. 30Such
being the case, with more reason may a party litigant be subjected to proper coercive measures where he disobeys a
proper order, or commits a fraud on the court or the opposing party, the result of which is that the jurisdiction of the
court would be ineffectual. What ought to be done depends upon the particular circumstances. 31
Turning now to the case at bar, petitioner does not deny and, as a matter of fact, even made a public statement that she
had every intention of leaving the country allegedly to pursue higher studies abroad. We uphold the course of action
adopted by the Sandiganbayan in taking judicial notice of such fact of petitioner's plan to go abroad and in thereafter
issuing sua sponte the hold departure order, in justified consonance with our preceding disquisition. To reiterate, the
hold departure order is but an exercise of respondent court's inherent power to preserve and to maintain the
effectiveness of its jurisdiction over the case and the person of the accused.
Second, petitioner asseverates that considering that she is leaving for abroad to pursue further studies, there is no
sufficient justification for the impairment of her constitutional right to travel; and that under Section 6, Article III of the
1987 Constitution, the right to travel may be impaired only when so required in the interest of national security, public
safety or public health, as may be provided by law.
It will be recalled that petitioner has posted bail which we have declared legally valid and complete despite the absence
of petitioner at the time of filing thereof, by reason of the peculiar circumstances and grounds hereinbefore enunciated
and which warrant a relaxation of the aforecited doctrine in Feliciano. Perforce, since under the obligations assumed by
petitioner in her bail bond she holds herself amenable at all times to the orders and processes of the court, she may
legally be prohibited from leaving the country during the pendency of the case. This was the ruling we handed down
in Manotoc, Jr. vs. Court of Appeals, et al., 32 to the effect that:
A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a
necessary consequence of the nature and function of a bail bond.
Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of
a person who is in custody of the law, that he will appear before any court in which his appearance may
be required as stipulated in the bail bond or recognizance.
Its object is to relieve the accused of imprisonment and the state of the burden of keeping him, pending
the trial, and at the same time, to put the accused as much under the power of the court as if he were in

custody of the proper officer, and to secure the appearance of the accused so as to answer the call of
the court and do what the law may require of him.
The condition imposed upon petitioner to make himself available at all times whenever the court
requires his presence operates as a valid restriction on his right to travel. As we have held in People vs.
Uy Tuising, 61 Phil. 404 (1935):
. . . the result of the obligation assumed by appellee (surety) to hold the accused
amenable at all times to the orders and processes of the lower court, was to prohibit
said accused from leaving the jurisdiction of the Philippines, because, otherwise, said
orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts
from which they issued does not extend beyond that of the Philippines they would have
no binding force outside of said jurisdiction.
Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed
beyond the reach of the courts.
This was reiterated in a more recent case where we held:
Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel only on
the grounds of "national security, public safety, or public health."
The submission is not well taken.
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of
travel may be impaired even without Court Order, the appropriate executive officers or administrative
authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on
the basis of "national security, public safety, or public health" and "as may be provided by law," a
limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin, G., S.J., Vol. I,
First Edition, 197, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the
ban on international travel imposed under the previous regime when there was a Travel Processing
Center, which issued certificates of eligibility to travel upon application of an interested party (See
Salonga v. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121).
Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the
inherent power of the Courts to use all means necessary to carry their orders into effect in criminal
cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all
auxiliary writs, processes and other means necessary to carry it into effect may be employed by such
Court or officer (Rule 135, Section 6, Rules of Court).
xxx xxx xxx
. . . Holding an accused in a criminal case within the reach of the Courts by preventing his departure
from the Philippines must be considered as a valid restriction on his right to travel so that he may be
dealt with in accordance with law. The offended party in any criminal proceeding is the People of the
Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to
finality without undue delay, with an accused holding himself amenable at all times to Court Orders and
processes. 33
One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that
matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of
courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the
lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated bylaw to be sought therein.

This practice must be stopped, not only because of the imposition upon the precious time of this Court but also because
of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be
remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to
resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court will not
entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where
exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our
primary jurisdiction.
For the guidance of the bench and the bar, we elucidate that such policy includes the matter of petitions or motions
involving hold departure orders of the trial or lower courts. Parties with pending cases therein should apply for
permission to leave the country from the very same courts which, in the first instance, are in the best position to pass
upon such applications and to impose the appropriate conditions therefor since they are conversant with the facts of
the cases and the ramifications or implications thereof. Where, as in the present case, a hold departure order has been
issued ex parte or motu propio by said court, the party concerned must first exhaust the appropriate remedies therein,
through a motion for reconsideration or other proper submissions, or by the filing of the requisite application for travel
abroad. Only where all the conditions and requirements for the issuance of the extraordinary writs of certiorari,
prohibition or mandamus indubitably obtain against a disposition of the lower courts may our power of supervision over
said tribunals be invoked through the appropriate petition assailing on jurisdictional or clearly valid grounds their
actuations therein.
WHEREFORE, with respect to and acting on the motion now before us for resolution, the same is hereby DENIED for lack
of merit.
SO ORDERED.

THIRD DIVISION
JOSE ANTONIO LEVISTE, G.R. No. 189122
Petitioner,
Present:
CORONA, J., Chairperson,
VELASCO, JR.,
- v e r s u s - NACHURA,
PERALTA and
MENDOZA, JJ.
THE COURT OF APPEALS
and PEOPLE OF THE
PHILIPPINES,
Respondents. Promulgated:
March 17, 2010
x---------------------------------------------------x

DECISION

CORONA, J.:

Bail, the security given by an accused who is in the custody of the law for his release to guarantee his appearance before
any court as may be required,[1] is the answer of the criminal justice system to a vexing question: what is to be done with
the accused, whose guilt has not yet been proven, in the dubious interval, often years long, between arrest and final
adjudication?[2] Bail acts as a reconciling mechanism to accommodate both the accuseds interest in pretrial liberty and
societys interest in assuring the accusedspresence at trial.[3]
Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life
imprisonment, the accused who has been sentenced to prison must typically begin serving time immediately unless, on
application, he is admitted to bail.[4] An accused not released on bail is incarcerated before an appellate court confirms
that his conviction is legal and proper. An erroneously convicted accused who is denied bail loses his liberty to pay a
debt to society he has never owed.[5] Even if the conviction is subsequently affirmed, however, the accuseds interest in
bail pending appeal includes freedom pending judicial review, opportunity to efficiently prepare his case and avoidance
of potential hardships of prison.[6] On the other hand, society has a compelling interest in protecting itself by swiftly
incarcerating an individual who is found guiltybeyond reasonable doubt of a crime serious enough to warrant prison

time.[7] Other recognized societal interests in the denial of bail pending appeal include the prevention of
theaccuseds flight from court custody, the protection of the community from potential danger and the avoidance of
delay in punishment.[8] Under what circumstances an accused may obtain bail pending appeal, then, is a delicate balance
between the interests of society and those of the accused.[9]
Our rules authorize the proper courts to exercise discretion in the grant of bail pending appeal to those convicted by the
Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. In the exercise of
that discretion, the proper courts are to be guided by the fundamental principle that the allowance of bail pending
appeal should be exercised not with laxity but with grave caution and only for strong reasons, considering that the
accused has been in fact convicted by the trial court.[10]
THE FACTS
Charged with the murder of Rafael de las Alas, petitioner Jose Antonio Leviste was convicted by the Regional
Trial Court of Makati City for the lesser crime of homicide and sentenced to suffer an indeterminate penalty of six years
and one day of prision mayor as minimum to 12 years and one day of reclusion temporal as maximum.[11]
He appealed his conviction to the Court of Appeals.[12] Pending appeal, he filed an urgent application for admission to
bail pending appeal, citing his advanced age and health condition, and claiming the absence of any risk or possibility of
flight on his part.
The Court of Appeals denied petitioners application for bail. [13] It invoked the bedrock principle in the matter of bail
pending appeal, that the discretion to extend bail during the course of appeal should be exercised with grave caution
and only for strong reasons. Citing well-established jurisprudence, it ruled that bail is not a sick pass for an ailing or aged
detainee or a prisoner needing medical care outside the prison facility. It found that petitioner
failed to show that he suffers from ailment of such gravity that his continued confinement during trial
will permanently impair his health or put his life in danger. x x x Notably, the physical condition of
[petitioner] does not prevent him from seeking medical attention while confined in prison, though he
clearly preferred to be attended by his personal physician.[14]

For purposes of determining whether petitioners application for bail could be allowed pending appeal, the Court
of Appeals also considered the fact of petitioners conviction. It made a preliminary evaluation of petitioners case and
made a prima facie determination that there was no reason substantial enough to overturn the evidence of petitioners
guilt.
Petitioners motion for reconsideration was denied.[15]

Petitioner now questions as grave abuse of discretion the denial of his application for bail, considering that none of the
conditions justifying denial of bail under the third paragraph of Section 5, Rule 114 of the Rules of Court was present.
Petitioners theory is that, where the penalty imposed by the trial court is more than six years but not more than 20
years and the circumstances mentioned in the third paragraph of Section 5 are absent, bail must be granted to an
appellant pending appeal.
THE ISSUE

The question presented to the Court is this: in an application for bail pending appeal by an appellant sentenced
by the trial court to a penalty of imprisonment for more than six years, does the discretionary nature of the grant of bail
pending appeal mean that bail should automatically be granted absent any of the circumstances mentioned in the third
paragraph of Section 5, Rule 114 of the Rules of Court?
Section 5, Rule 114 of the Rules of Court provides:
Sec. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The
application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal,
provided it has not transmitted the original record to the appellate court. However, if the decision of the
trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the
application for bail can only be filed with and resolved by the appellate court.
Should the court grant the application, the accused may be allowed to continue on provisional
liberty during the pendency of the appeal under the same bail subject to the consent of thebondsman.
If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused
shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to
the accused, of the following or other similar circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime
aggravated by the circumstance of reiteration;
(b) That he has previously escaped from legal confinement, evaded sentence, or violated the
conditions of his bail without a valid justification;
(c) That he committed the offense while under probation, parole, or conditional pardon;
(d) That the circumstances of his case indicate the probability of flight if released on bail; or
(e) That there is undue risk that he may commit another crime during the pendency of the
appeal.
The appellate court may, motu proprio or on motion of any party, review the resolution of the
Regional Trial Court after notice to the adverse party in either case. (emphasis supplied)

Petitioner claims that, in the absence of any of the circumstances mentioned in the third paragraph of Section 5, Rule
114 of the Rules of Court, an application for bail by an appellant sentenced by the Regional Trial Court to a penalty of
more than six years imprisonment should automatically be granted.
Petitioners stance is contrary to fundamental considerations of procedural and substantive rules.
BASIC PROCEDURAL CONCERNS
FORBID GRANT OF PETITION

Petitioner filed this special civil action for certiorari under Rule 65 of the Rules of Court to assail the denial by the Court
of Appeals of his urgent application for admission to bail pending appeal. While the said remedy may be resorted to
challenge an interlocutory order, such remedy is proper only where the interlocutory order was rendered without or in
excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.[16]
Other than the sweeping averment that [t]he Court of Appeals committed grave abuse of discretion in denying
petitioners application for bail pending appeal despite the fact that none of the conditions to justify the denial thereof
under Rule 114, Section 5 [is] present, much less proven by the prosecution,[17] however, petitioner actually failed to
establish that the Court of Appeals indeed acted with grave abuse of discretion. He simply relies on his claim that the
Court of Appeals should have granted bail in view of the absence of any of the circumstances enumerated in the third
paragraph of Section 5, Rule 114 of the Rules of Court. Furthermore, petitioner asserts that the Court of Appeals
committed a grave error and prejudged the appeal by denying his application for bail on the ground that the evidence
that he committed a capital offense was strong.
We disagree.
It cannot be said that the Court of Appeals issued the assailed resolution without or in excess of its jurisdiction. One,
pending appeal of a conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or
life imprisonment, admission to bail is expressly declared to be discretionary. Two, the discretion to allow or disallow
bail pending appeal in a case such as this where the decision of the trial court convicting the accused changed the nature
of the offense from non-bailable to bailable is exclusively lodged by the rules with the appellate court. Thus, the Court of
Appeals had jurisdiction to hear and resolve petitioners urgent application for admission to bail pending appeal.
Neither can it be correctly claimed that the Court of Appeals committed grave abuse of discretion when it denied
petitioners application for bail pending appeal. Grave abuse of discretion is not simply an error in judgment but it is
such a capricious and whimsical exercise of judgment which is tantamount to lack of jurisdiction. [18] Ordinary abuse of
discretion is insufficient. The abuse of discretion must be grave, that is, the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility. [19]It must be so patent and gross as to amount to evasion of
positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of the law. In other

words, for a petition for certiorari to prosper, there must be a clear showing of caprice and arbitrariness in the exercise
of discretion.[20]
Petitioner never alleged that, in denying his application for bail pending appeal, the Court of Appeals exercised
its judgment capriciously and whimsically. No capriciousness or arbitrariness in the exercise of discretion was ever
imputed to the appellate court. Nor could any such implication or imputation be inferred. As observed earlier, the Court
of Appeals exercised grave caution in the exercise of its discretion. The denial of petitioners application for bail pending
appeal was not unreasonable but was the result of a thorough assessment of petitioners claim of ill health. By making a
preliminary appraisal of the merits of the case for the purpose of granting bail, the court also determined whether the
appeal was frivolous or not, or whether it raised a substantial question. The appellate court did not exercise its
discretion in a careless manner but followed doctrinal rulings of this Court.
At best, petitioner only points out the Court of Appeals erroneous application and interpretation of Section 5, Rule 114
of the Rules of Court. However, the extraordinary writ of certiorari will not be issued to cure errors in proceedings or
erroneous conclusions of law or fact.[21] In this connection, Lee v. People[22] is apropos:
Certiorari may not be availed of where it is not shown that the respondent court lacked or exceeded
its jurisdiction over the case, even if its findings are not correct. Its questioned acts would at most
constitute errors of law and not abuse of discretion correctible by certiorari.
In other words, certiorari will issue only to correct errors of jurisdiction and not to correct errors
of procedure or mistakes in the courts findings and conclusions. An interlocutory order may be assailed
by certiorari or prohibition only when it is shown that the court acted without or in excess of jurisdiction
or with grave abuse of discretion. However, this Court generally frowns upon this remedial measure as
regards interlocutory orders. To tolerate the practice of allowing interlocutory orders to be the subject
of review by certiorari will not only delay the administration of justice but will also unduly burden the
courts.[23] (emphasis supplied)

WORDING OF THIRD PARAGRAPH OF SECTION 5,

RULE 114 CONTRADICTS PETITIONERS
INTERPRETATION

The third paragraph of Section 5, Rule 114 applies to two scenarios where the penalty imposed on the appellant
applying for bail is imprisonment exceeding six years. The first scenario deals with the circumstances enumerated in the
said paragraph (namely, recidivism, quasi-recidivism, habitual delinquency or commission of the crime aggravated by the
circumstance of reiteration; previous escape from legal confinement, evasion of sentence or violation of the conditions
of his bail without a valid justification; commission of the offense while under probation, parole or conditional pardon;
circumstances indicating the probability of flight if released on bail; undue risk of committing another crime during the
pendency of the appeal; or other similar circumstances) not present. The second scenario contemplates the existence of
at least one of the said circumstances.

The implications of this distinction are discussed with erudition and clarity in the commentary of retired Supreme Court
Justice Florenz D. Regalado, an authority in remedial law:
Under the present revised Rule 114, the availability of bail to an accused may be summarized in
the following rules:
xxxxxxxxx
e. After conviction by the Regional Trial Court wherein a penalty of imprisonment exceeding 6
years but not more than 20 years is imposed, and not one of the circumstances stated in Sec. 5 or any
other similar circumstance is present and proved, bail is a matter of discretion (Sec. 5);
f. After conviction by the Regional Trial Court imposing a penalty of imprisonment exceeding 6
years but not more than 20 years, and any of the circumstances stated in Sec. 5 or any other similar
circumstance is present and proved, no bail shall be granted by said court (Sec. 5); x x x[24] (emphasis
supplied)

Retired Court of Appeals Justice Oscar M. Herrera, another authority in remedial law, is of the same thinking:
Bail is either a matter of right or of discretion. It is a matter of right when the offense charged is
not punishable by death, reclusion perpetua or life imprisonment. On the other hand, upon conviction
by the Regional Trial Court of an offense not punishable death, reclusion perpetua or life imprisonment,
bail becomes a matter of discretion.
Similarly, if the court imposed a penalty of imprisonment exceeding six (6) years then bail is a
matter of discretion, except when any of the enumerated circumstances under paragraph 3 of Section
5, Rule 114 is present then bail shall be denied.[25] (emphasis supplied)

In the first situation, bail is a matter of sound judicial discretion. This means that, if none of the circumstances
mentioned in the third paragraph of Section 5, Rule 114 is present, the appellate court has the discretion to grant or
deny bail. An application for bail pending appeal may be denied even if the bail-negating[26] circumstances in the third
paragraph of Section 5, Rule 114 are absent. In other words, the appellate courts denial of bail pending appeal where
none of the said circumstances exists does not, by and of itself, constitute abuse of discretion.
On the other hand, in the second situation, the appellate court exercises a more stringent discretion, that is, to carefully
ascertain whether any of the enumerated circumstances in fact exists. If it so determines, it has no other option except
to deny or revoke bail pending appeal. Conversely, if the appellate court grants bail pending appeal, grave abuse of
discretion will thereby be committed.
Given these two distinct scenarios, therefore, any application for bail pending appeal should be viewed from the
perspective of two stages: (1) the determination of discretion stage, where the appellate court must determine whether
any of the circumstances in the third paragraph of Section 5, Rule 114 is present; this will establish whether or not the
appellate court will exercise sound discretion or stringent discretion in resolving the application for bail pending appeal

and (2) the exercise of discretion stage where, assuming the appellants case falls within the first scenario allowing the
exercise of sound discretion, the appellate court may consider all relevant circumstances, other than those mentioned in
the third paragraph of Section 5, Rule 114, including the demands of equity and justice;[27] on the basis thereof, it may
either allow or disallow bail.
On the other hand, if the appellants case falls within the second scenario, the appellate courts stringent
discretion requires that the exercise thereof be primarily focused on the determination of the proof of the presence
of any of the circumstances that are prejudicial to the allowance of bail. This is so because the existence of any of those
circumstances is by itself sufficient to deny or revoke bail. Nonetheless, a finding that none of the said circumstances is
present will not automatically result in the grant of bail. Such finding will simply authorize the court to use the less
stringent sound discretion approach.
Petitioner disregards the fine yet substantial distinction between the two different situations that are governed by the
third paragraph of Section 5, Rule 114. Instead, petitioner insists on a simplistic treatment that unduly dilutes the import
of the said provision and trivializes the established policy governing the grant of bail pending appeal.
In particular, a careful reading of petitioners arguments reveals that it interprets the third paragraph of Section 5, Rule
114 to cover all situations where the penalty imposed by the trial court on the appellant is imprisonment exceeding six
years. For petitioner, in such a situation, the grant of bail pending appeal is always subject to limited discretion, that is,
one restricted to the determination of whether any of the five bail-negating circumstances exists. The implication of
this position is that, if any such circumstance is present, then bail will be denied. Otherwise, bail will be granted pending
appeal.
Petitioners theory therefore reduces the appellate court into a mere fact-finding body whose authority is limited
to determining whether any of the five circumstances mentioned in the third paragraph of Section 5, Rule 114 exists.
This unduly constricts its discretion into merely filling out the checklist of circumstances in the third paragraph of Section
5, Rule 114 in all instances where the penalty imposed by the Regional Trial Court on the appellant is imprisonment
exceeding six years. In short, petitioners interpretation severely curbs the discretion of the appellate court by requiring
it to determine a singular factual issue whether any of the five bail-negating circumstances is present.
However, judicial discretion has been defined as choice.[28] Choice occurs where, between two alternatives or
among a possibly infinite number (of options), there is more than one possible outcome, with the selection of the
outcome left to the decision maker.[29] On the other hand, the establishment of a clearly defined rule of action is the end
of discretion.[30] Thus, by severely clipping the appellate courts discretion and relegating that tribunal to a mere factfinding body in applications for bail pending appeal in all instances where the penalty imposed by the trial court on the
appellant is imprisonment exceeding six years, petitioners theory effectively renders nugatory the provision thatupon

conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is discretionary.
The judicial discretion granted to the proper court (the Court of Appeals in this case) to rule on applications for bail
pending appeal must necessarily involve the exercise of judgment on the part of the court. The court must be allowed
reasonable latitude to express its own view of the case, its appreciation of the facts and its understanding of the
applicable law on the matter.[31] In view of the grave caution required of it, the court should consider whether or not,
under all circumstances, the accused will be present to abide by his punishment if his conviction is affirmed. [32] It should
also give due regard to any other pertinent matters beyond the record of the particular case, such as the record,
character and reputation of the applicant,[33] among other things. More importantly, the discretion to determine
allowance or disallowance of bail pending appeal necessarily includes, at the very least, an initial determination that the
appeal is not frivolous but raises a substantial question of law or fact which must be determined by the appellate
court.[34] In other words, a threshold requirement for the grant of bail is a showing that the appeal is not pro forma and
merely intended for delay but presents a fairly debatable issue. [35] This must be so; otherwise, the appellate courts will
be deluged with frivolous and time-wasting appeals made for the purpose of taking advantage of a lenient attitude on
bail pending appeal. Even more significantly, this comports with the very strong presumption on appeal that the lower
courts exercise of discretionary power was sound,[36]specially since the rules on criminal procedure require that no
judgment shall be reversed or modified by the Court of Appeals except for substantial error. [37]
Moreover, to limit the bail-negating circumstances to the five situations mentioned in the third paragraph of Section 5,
Rule 114 is wrong. By restricting the bail-negating circumstances to those expressly mentioned, petitioner applies
the expressio unius est exclusio alterius[38] rule in statutory construction. However, the very language of the third
paragraph of Section 5, Rule 114 contradicts the idea that the enumeration of the five situations therein was meant to
be exclusive. The provision categorically refers to the following or other similar circumstances. Hence, under the rules,
similarly relevant situations other than those listed in the third paragraph of Section 5, Rule 114 may be considered in
the allowance, denial or revocation of bail pending appeal.
Finally, laws and rules should not be interpreted in such a way that leads to unreasonable or senseless consequences. An
absurd situation will result from adopting petitioners interpretation that, where the penalty imposed by the trial court is
imprisonment exceeding six years, bail ought to be granted if none of the listed bail-negating circumstances exists.
Allowance of bail pending appeal in cases where the penalty imposed is more than six years of imprisonment will be
more lenient than in cases where the penalty imposed does not exceed six years. While denial or revocation of bail in
cases where the penalty imposed is more than six years imprisonment must be made only if any of the five bail-negating
conditions is present, bail pending appeal in cases where the penalty imposed does not exceed six years imprisonment
may be denied even without those conditions.

Is it reasonable and in conformity with the dictates of justice that bail pending appeal be more accessible to
those convicted of serious offenses, compared to those convicted of less serious crimes?

PETITIONERS THEORY DEVIATES FROM HISTORY

AND EVOLUTION OF RULE ON BAIL PENDING APPEAL

Petitioners interpretation deviates from, even radically alters, the history and evolution of the provisions on bail pending
appeal.
The relevant original provisions on bail were provided under Sections 3 to 6, Rule 110 of the 1940 Rules of
Criminal Procedure:
Sec. 3. Offenses less than capital before conviction by the Court of First Instance. After judgment
by a municipal judge and before conviction by the Court of First Instance, the defendant shall be
admitted to bail as of right.
Sec. 4. Non-capital offenses after conviction by the Court of First Instance. After conviction by
the Court of First Instance, defendant may, upon application, be bailed at the discretion of the court.
Sec. 5. Capital offense defined. A capital offense, as the term is used in this rule, is an offense
which, under the law existing at the time of its commission, and at the time of the application to be
admitted to bail, may be punished by death.
Sec. 6. Capital offense not bailable. No person in custody for the commission of a capital offense
shall be admitted to bail if the evidence of his guilt is strong.

The aforementioned provisions were reproduced as Sections 3 to 6, Rule 114 of the 1964 Rules of Criminal
Procedure and then of the 1985 Rules of Criminal Procedure. They were modified in 1988 to read as follows:
Sec. 3. Bail, a matter of right; exception. All persons in custody, shall before final conviction be
entitled to bail as a matter of right, except those charged with a capital offense or an offense which,
under the law at the time of its commission and at the time of the application for bail, is punishable
by reclusion perpetua, when evidence of guilt is strong.
Sec. 4. Capital offense, defined. A capital offense, as the term is used in this Rules, is an offense
which, under the law existing at the time of its commission, and at the time of the application to be
admitted to bail, may be punished by death. (emphasis supplied)

The significance of the above changes was clarified in Administrative Circular No. 2-92 dated January 20, 1992 as
follows:
The basic governing principle on the right of the accused to bail is laid down in Section 3 of Rule
114 of the 1985 Rules on Criminal Procedure, as amended, which provides:
Sec. 3. Bail, a matter of right; exception. All persons in custody, shall before final
conviction, be entitled to bail as a matter of right, except those charged with a capital

offense or an offense which, under the law at the time of its commission and at the time
of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is
strong.
Pursuant to the aforecited provision, an accused who is charged with a capital offense or an
offense punishable by reclusion perpetua, shall no longer be entitled to bail as a matter of right even if
he appeals the case to this Court since his conviction clearly imports that the evidence of his guilt of the
offense charged is strong.
Hence, for the guidelines of the bench and bar with respect to future as well as pending cases
before the trial courts, this Court en banc lays down the following policies concerning theeffectivity of
the bail of the accused, to wit:
1) When an accused is charged with an offense which under the law existing at the time of its
commission and at the time of the application for bail is punishable by a penalty lower
thanreclusion perpetua and is out on bail, and after trial is convicted by the trial court of the offense
charged or of a lesser offense than that charged in the complaint or information, he may be allowed to
remain free on his original bail pending the resolution of his appeal, unless the proper court directs
otherwise pursuant to Rule 114, Sec. 2 (a) of the Rules of Court, as amended;
2) When an accused is charged with a capital offense or an offense which under the law at the
time of its commission and at the time of the application for bail is punishable
by reclusion perpetua and is out on bail, and after trial is convicted by the trial court of a lesser
offense than that charged in the complaint or information, the same rule set forth in the preceding
paragraph shall be applied;
3) When an accused is charged with a capital offense or an offense which under the law at the
time of its commission and at the time of the application for bail is punishable by reclusionperpetua and
is out on bail and after trial is convicted by the trial court of the offense charged, his bond shall be
cancelled and the accused shall be placed in confinement pending resolution of his appeal.
As to criminal cases covered under the third rule abovecited, which are now pending appeal
before his Court where the accused is still on provisional liberty, the following rules are laid down:
1) This Court shall order the bondsman to surrender the accused within ten (10) days from
notice to the court of origin. The bondsman thereupon, shall inform this Court of the fact of surrender,
after which, the cancellation of the bond shall be ordered by this Court;
2) The RTC shall order the transmittal of the accused to the National Bureau of Prisons thru the
Philippine National Police as the accused shall remain under confinement pending resolution of his
appeal;
3) If the accused-appellant is not surrendered within the aforesaid period of ten (10) days, his
bond shall be forfeited and an order of arrest shall be issued by this Court. The appeal taken by the
accused shall also be dismissed under Section 8, Rule 124 of the Revised Rules of Court as he shall be
deemed to have jumped his bail. (emphasis supplied)

Amendments were further introduced in Administrative Circular No. 12-94 dated August 16, 1994 which brought
about important changes in the said rules as follows:
SECTION 4. Bail, a matter of right. All persons in custody shall: (a) before or after conviction by
the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities and Municipal Circuit

Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by
death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right, with sufficient
sureties, or be released on recognizance as prescribed by law of this Rule. (3a)
SECTION 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense
not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may
admit the accused to bail.
The court, in its discretion, may allow the accused to continue on provisional liberty under the
same bail bond during the period of appeal subject to the consent of the bondsman.
If the court imposed a penalty of imprisonment exceeding six (6) years but not more than
twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be cancelled,
upon a showing by the prosecution, with notice to the accused, of the following or other similar
circumstances:
(a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed
the crime aggravated by the circumstance of reiteration;
(b) That the accused is found to have previously escaped from legal confinement, evaded
sentence or has violated the conditions of his bail without valid justification;
(c) That the accused committed the offense while on probation, parole, under conditional
pardon;
(d) That the circumstances of the accused or his case indicate the probability of flight if
released on bail; or
(e) That there is undue risk that during the pendency of the appeal, the accused may commit
another crime.
The appellate court may review the resolution of the Regional Trial Court, on motion and with
notice to the adverse party. (n)
SECTION 6. Capital offense, defined. A capital offense, as the term is used in these Rules, is an
offense which, under the law existing at the time of its commission and at the time of the application to
be admitted to bail, maybe punished with death. (4)
SECTION 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment,
not bailable. No person charged with a capital offense, or an offense punishable byreclusion perpetua or
life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of
the criminal prosecution. (emphasis supplied)

The above amendments of Administrative Circular No. 12-94 to Rule 114 were thereafter amended by A.M. No.
00-5-03-SC to read as they do now.
The development over time of these rules reveals an orientation towards a more restrictive approach to bail pending
appeal. It indicates a faithful adherence to the bedrock principle, that is, bail pending appeal should be allowed not with
leniency but with grave caution and only for strong reasons.

The earliest rules on the matter made all grants of bail after conviction for a non-capital offense by the Court of
First Instance (predecessor of the Regional Trial Court) discretionary. The 1988 amendments made applications for bail
pending appeal favorable to the appellant-applicant. Bail before final conviction in trial courts for non-capital offenses or
offenses not punishable by reclusion perpetua was a matter of right, meaning, admission to bail was a matter of right at
any stage of the action where the charge was not for a capital offense or was not punished by reclusion perpetua.[39]
The amendments introduced by Administrative Circular No. 12-94 made bail pending appeal (of a conviction by
the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment) discretionary.
Thus, Administrative Circular No. 12-94 laid down more stringent rules on the matter of post-conviction grant of bail.
A.M. No. 00-5-03-SC modified Administrative Circular No. 12-94 by clearly identifying which court has authority
to act on applications for bail pending appeal under certain conditions and in particular situations. More importantly, it
reiterated the tough on bail pending appeal configuration of Administrative Circular No. 12-94. In particular, it amended
Section 3 of the 1988 Rules on Criminal Procedure which entitled the accused to bail as a matter of right before final
conviction.[40] Under the present rule, bail is a matter of discretion upon conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua or life imprisonment. Indeed, pursuant to the tough on bail pending
appeal policy, the presence of bail-negating conditions mandates the denial or revocation of bail pending appeal such
that those circumstances are deemed to be as grave as conviction by the trial court for an offense punishable by
death, reclusion perpetua or life imprisonment where bail is prohibited.
Now, what is more in consonance with a stringent standards approach to bail pending appeal? What is more in
conformity with an ex abundante cautelam view of bail pending appeal? Is it a rule which favors the automatic grant
of bail in the absence of any of the circumstances under the third paragraph of Section 5, Rule 114? Or is it a rule that
authorizes the denial of bail after due consideration of all relevant circumstances, even if none of the circumstances
under the third paragraph of Section 5, Rule 114 is present?
The present inclination of the rules on criminal procedure to frown on bail pending appeal parallels the
approach adopted in the United States where our original constitutional and procedural provisions on bail
emanated.[41] While this is of course not to be followed blindly, it nonetheless shows that our treatment of bail pending
appeal is no different from that in other democratic societies.
In our jurisdiction, the trend towards a strict attitude towards the allowance of bail pending appeal is anchored
on the principle that judicial discretion particularly with respect to extending bail should be exercised not with laxity but
with caution and only for strong reasons.[42] In fact, it has even been pointed out that grave caution that must attend the
exercise of judicial discretion in granting bail to a convicted accused is best illustrated and exemplified in Administrative
Circular No. 12-94 amending Rule 114, Section 5.[43]
Furthermore, this Court has been guided by the following:

The importance attached to conviction is due to the underlying principle that bail should be
granted only where it is uncertain whether the accused is guilty or innocent, and therefore, where that
uncertainty is removed by conviction it would, generally speaking, be absurd to admit to bail. After a
person has been tried and convicted the presumption of innocence which may be relied upon in prior
applications is rebutted, and the burden is upon the accused to show error in the conviction. From
another point of view it may be properly argued that the probability of ultimate punishment is so
enhanced by the conviction that the accused is much more likely to attempt to escape if liberated on
bail than before conviction.[44] (emphasis supplied)

As a matter of fact, endorsing the reasoning quoted above and relying thereon, the Court declared in Yap v.
Court of Appeals[45] (promulgated in 2001 when the present rules were already effective), that denial of bail pending
appeal is a matter of wise discretion.

A FINAL WORD
Section 13, Article II of the Constitution provides:
SEC. 13. All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. x x x (emphasis supplied)

After conviction by the trial court, the presumption of innocence terminates and, accordingly, the constitutional
right to bail ends.[46] From then on, the grant of bail is subject to judicial discretion. At the risk of being repetitious, such
discretion must be exercised with grave caution and only for strong reasons. Considering that the accused was in fact
convicted by the trial court, allowance of bail pending appeal should be guided by a stringent-standards approach. This
judicial disposition finds strong support in the history and evolution of the rules on bail and the language of Section 5,
Rule 114 of the Rules of Court. It is likewise consistent with the trial courts initial determination that the accused should
be in prison. Furthermore, letting the accused out on bail despite his conviction may destroy the deterrent effect of our
criminal laws. This is especially germane to bail pending appeal because long delays often separate sentencing in the
trial court and appellate review. In addition, at the post-conviction stage, the accused faces a certain prison sentence
and thus may be more likely to flee regardless of bail bonds or other release conditions. Finally, permitting bail too freely
in spite of conviction invites frivolous and time-wasting appeals which will make a mockery of our criminal justice system
and court processes.
WHEREFORE, the petition is hereby DISMISSED.

The Court of Appeals is hereby directed to resolve and decide, on the merits, the appeal of petitioner Jose
Antonio Leviste docketed as CA-G.R. CR No. 32159, with dispatch.
Costs against petitioner. SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-65228 February 18, 1985
JOJO PASTOR BRAVO, JR., ETC., petitioner,
vs.
HON. MELECIO B. BORJA, ET AL., respondents.

PLANA, J.:
In the Regional Trial Court of Naga City, petitioner Jojo Pastor Bravo, Jr., is charged with murder for the killing of
one Ramon Abiog (Criminal Case No. 83-184).
Detained in the city jail of Naga after his arrest, petitioner filed a motion for bail based on two reasons: (a) that the
evidence against him is not strong in view of the retraction by Ferdinand del Rosario, one of the prosecution
witnesses, of his previous statement naming petitioner as the assailant; and (b) that he is a minor of 16 years,
entitled as such to a privileged mitigating circumstance under Article 68 of the Revised Penal Code which would
make the murder charge against him non-capital.
After a hearing during which the retracting witness (del Rosario) presented by petitioner made another turn-about
and declared against the latter, respondent Judge Melecio B. Borja denied the motion for bail on the finding that the
evidence of petitioner's guilt is strong and his minority was not proved. Petitioner then filed a motion for
reconsideration stating that his minority had been proved by his birth certificate which was attached to the
memorandum in support of his motion for bail, showing that he was born on February 26, 1967, that his minority had
never been challenged by the fiscal, and that the offense charged, as regards petitioner, is not capital because even
if convicted, he could not be sentenced to death because of his minority. Again, attached to the motion for
reconsideration was a duly certified copy of petitioner's birth certificate. The Fiscal opposed the motion on the
ground that the evidence of guilt is strong, but did not contest the minority of petitioner.
In his order of September 21, 1983, respondent Judge denied the motion for reconsideration.
Failing in his bid for bail, petitioner then filed a motion with the lower court praying that he be placed in the care and
custody of the Ministry of Social Services and Development (MSSD) pursuant to Article 191 of Presidential Decree
No. 603 (Child and Youth Welfare Code) which provides:
Care of Youthful Offender Held for Examination or Trial. A youthful offender held for physical and
mental examination or trial or pending appeal, if unable to furnish bail, shall from time to time (sic) of
his arrest be committed to the care of the Department of Social Welfare or the local rehabilitation
center or a detention home in the province or city which shall be responsible for his appearance in
court whenever required: Provided, That in the absence of any such center or agency within a
reasonable distance from the venue of the trial, the provincial, city and municipal jail shall provide
quarters for youthful offenders separate from other detainees. The court may, in its discretion upon
recommendation of the Department of Social Welfare or other agency or agencies authorized by the
Court, release a youthful offender on recognizance. to the custody of his parents or other suitable
person who shall be responsible for his appearance whenever required.
On September 22, 1983, respondent judge denied the motion for lack of merit. Explaining the denial later, he said
that the quoted Article 191 is not applicable since it could be invoked only where the minor is charged with a bailable
offense, as could be gleaned from the phrase "if unable to furnish bail."

On September 22, 1983, the NBI Regional Office at Naga City submitted its report, copy of which was sent to the
City Fiscal of Naga. It found that it was the prosecution witness, Ferdinand del Rosario, and not the petitioner, who
killed the deceased Ramon Abiog. When the murder case was next called for hearing on October 19, 1983, the
defense unilaterally moved orally that the trial of petitioner be reset in order to give the City Fiscal more time to study
the NBI report, but the motion was denied as dilatory. Again, on November 2, 1983, petitioner unilaterally filed with
the trial court a formal Motion for Reinvestigation praying "that the proceedings be suspended and that the City
Fiscal of Naga be ordered to reinvestigate this case." It does not appear what action, if any, the court has taken on
this motion. Neither does it appear that the City Fiscal of Naga has taken any move to reinvestigate the case.
Against this factual backdrop, petitioner has filed the instant petition for certiorari and mandamus, with two
supplementary petitions, seeking the release of petitioner on bail or his transfer to the custody of the MSSD pending
trial pursuant to Article 191 of PD No. 603. In view of the aforesaid NBI report, the petition also seeks the issuance
of a writ of mandamus commanding respondent Judge to remand the case to the City Fiscal of Naga for
reinvestigation.
The first question to be resolved is whether petitioner is entitled to bail as a matter of right.
Under the Constitution, "all persons, except those charged with capital offenses when evidence of guilt is strong,
shall, before conviction, be bailable by sufficient sureties." (Article IV, Section 18.) Generally, therefore, bail is a
matter of right before conviction, unless the accused is charged with a capital offense and the evidence of guilt is
strong.
The charge against petitioner is murder qualified by treachery and attended by two aggravating circumstances:
evident premeditation and nocturnity. Punishable by reclusion temporal in its maximum period to death, the crime is
therefore a capital offense.
The petitioner however submits that even assuming that the evidence of guilt against him is strong, the charge of
murder, as to him who is only 16 years old, cannot be capital because the death penalty cannot be imposed on
account of his minority which entitles him to a penalty reduction of one degree. In effect, under petitioner's
submission, the test to determine whether the offense charged is capital, is the penalty to be actually imposed on
him in view of the attendant circumstances.
Petitioner's posture hardly finds support in the law. Under Section 5 of Rule 114 of the Rules of Court, a capital
offense is "an offense which, under the law existing at the time of its commission, and at the time of the application
to be admitted to bail, may be punished by death." It is clear from this provision that the capital nature of an offense
is determined by the penalty prescribed by law, with reference to which it is relatively easy to ascertain whether the
evidence of guilt against the accused is strong. Moreover, when the Constitution or the law speaks of evidence
ofguilt, it evidently refers to a finding of innocence or culpability, regardless of the modifying circumstances.
To allow bail on the basis of the penalty to be actually imposed would require a consideration not only of the
evidence of the commission of the crime but also evidence of the aggravating and mitigating circumstances. There
would then be a need for a complete trial, after which the judge would be just about ready to render a decision in the
case. As perceptively observed by the Solicitor General, such procedure would defeat the purpose of bail, which is
to entitle the accused to provisional liberty pending trial.
Nevertheless, where it has been established without objection that the accused is only 16 years old, it follows that, if
convicted, he would be given "the penalty next lower than that prescribed by law," which effectively rules out the
death penalty.
The Constitution withholds the guaranty of bail from one who is accused of a capital offense where the evidence of
guilt is strong. The obvious reason is that one who faces a probable death sentence has a particularly strong
temptation to flee. This reason does not hold where the accused has been established without objection to be a
minor who by law cannot be sentenced to death.
But respondent judge claims that petitioner has not proved his minority. This is inaccurate. In his motion for bail,
petitioner alleged that he was a minor of 16 and this averment was never challenged by the prosecution.
Subsequently, in his memorandum in support of the motion for bail, petitioner attached a copy of his birth certificate.
And finally, after respondent Judge had denied the motion for bail, petitioner filed a motion for reconsideration,

attaching thereto a certified true copy of his birth certificate. Respondents Judge however refused to take
cognizance of petitioner's unchallenged minority allegedly because the certificate of birth was not offered in
evidence. This was error because evidence of petitioner's minority was already a part of the record of the case. It
was properly filed in support of a motion. It would be a needless formality to offer it in evidence. Respondent Judge
therefore acted with grave abuse of discretion in disregarding it.
Evidence on motion. When a motion is based on facts not appearing of record the court may hear
the matter on affidavits or depositions presented by the respective parties, but the court may direct
that the matter be heard wholly or partly on oral testimony or depositions. (Rules of Court, Rule 133,
Section 7.)
It results that petitioner is entitled to bail as a matter of right, which makes it unnecessary to decide whether he,
being a minor, is entitled to be placed pending trial in the care and custody of the MSSD pursuant to Article 191 of
P.D. No. 603.
Turning to the reinvestigation aspect of the petition, the plea therefor must be addressed to the City Fiscal of Naga,
who has direction and control of the criminal prosecution and who is the primary official called upon to evaluate the
evidence, ascertain the existence of a prima facie case and determine who should be criminally indicted. In case of
unjustified refusal by the City Fiscal to conduct a reinvestigation, the proper recourse is to appeal to the Minister of
Justice who exercises control and supervision over fiscals.
WHEREFORE, the orders of respondent Judge denying bail to petitioner are set aside. In the interest of dispatch,
bail for petitioner is fixed at P15,000.00 and his release is ordered upon the posting thereof and its approval by the
trial judge, unless petitioner is held for some other cause. The petition for mandamus to compel reinvestigation of
the case is denied. This decision is immediately executory.
SO ORDERED.