X-X-X-XX-X-X-X-X-X-X-X-X-X-X-X-X-X-X-X-X-X-X-X-X-X-X-X-X-X
Erred in ruling that due process was not violated;
G.R. Nos. 177857-58 September 4, 2012
PHILIPPINE COCONUT PRODUCERS FEDERATION, INC.
(COCOFED), MANUEL V. DEL ROSARIO, DOMINGO P. ESPINA,
SALVADOR P. BALLARES, JOSELITO A. MORALEDA, PAZ M.
YASON, VICENTE A. CADIZ, CESARIA DE LUNA TITULAR, and
RAYMUNDO C. DE VILLA, Petitioners,
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
WIGBERTO E. TAÑADA, OSCAR F. SANTOS, SURIGAO DEL
SUR FEDERATION OF AGRICULTURAL COOPERATIVES
(SUFAC) and MORO FARMERS ASSOCIATION OF
ZAMBOANGA DEL SUR (MOFAZS), represented by ROMEO C.
ROYANDOYAN, Intervenors.
x-----------------------x
G.R. No. 178193
DANILO B. URSUA, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
RESOLUTION
VELASCO, JR., J.:
For consideration is a Motion for Reconsideration of the
Decision of the Court dated January 24, 2012 interposed by
petitioners in G.R. Nos. 177857-58, namely: Philippine Coconut
Producers Federation, Inc. (COCOFED), Manuel V. del Rosario,
Domingo P. Espina, Salvador P. Ballares, Joselito A. Moraleda,
Paz M. Yason, Vicente A. Cadiz, Cesaria De Luna Titular, and
Raymundo C. De Villa.
On March 14, 2012, petitioner-movants filed a Manifestation
and Motion stating that they failed to include the Office of the
Solicitor General (OSG) in the list of persons to be furnished
with a copy of the Motion for Reconsideration. They
accordingly moved that their belated service of a copy of the
Motion for Reconsideration on the OSG be considered
compliance with the rules on service of motions for
reconsideration. This Court noted and accepted the
Manifestation and Motion. On March 15, 2012, petitioner-
movants filed a Memorandum in support of the instant motion
for reconsideration.
To the said motion, intervenors Wigberto E. Tañada, et al. filed
on June 10, 2012 their Comment and Opposition. The OSG, on
the other hand, after filing two motions for extension on May
22, 2012 and June 21, 2012, respectively, filed its Motion to
Admit Comment, with Comment attached, on July 13, 2012.
This Court noted and admitted the Comment.
As will be recalled, the Court, in its January 24, 2012 Decision,
affirmed, with modification, the Partial Summary Judgments
(PSJs) rendered by the Sandiganbayan (1) on July 11, 2003 in
Civil Case No. 0033-A (PSJ-A), as amended by a Resolution
issued on June 5, 2007; and (2) on
May 7, 2004 in Civil Case No. 0033-F (PSJ-F), as amended by a
Resolution issued on May 11, 2007.
In this recourse, petitioner-movants urge the Court to
reconsider its Decision of January 24, 2012 on the ground that
it:
1. Made erroneous findings of fact;
2. Erred in affirming the Sandiganbayan’s jurisdiction of the
subject matter of the subdivided amended complaints;
3.
4. Erred in ruling on the constitutionality of the coconut levy
laws;
5. Erred in ruling that the Operative Fact Doctrine does not
apply; and
6. Erred in ruling that the right to speedy disposition of cases
was not violated.
The instant motion is but a mere reiteration or rehash of the
arguments that have already been previously pleaded,
discussed and resolved by this Court in its January 24, 2012
Decision. And considering that the motion’s arguments are
unsubstantial to warrant a reconsideration or at least a
modification, this Court finds no reason to modify or let alone
reverse the challenged Decision.
As of 1983,1 the Class A and B San Miguel Corporation (SMC)
common shares in the names of the 14 CIIF Holding Companies
are 33,133,266 shares. From 1983 to November 19, 2009 when
the Republic of the Philippines representing the Presidential
Commission on Good Government (PCGG) filed the "Motion To
Approve Sale of CIIF SMC Series I Preferred Shares," the
common shares of the CIIF Holding companies increased to
753,848,312 Class A and B SMC common shares.2
Owing, however, to a certain development that altered the
factual situation then obtaining in G.R. Nos. 177857-58, there
is, therefore, a compelling need to clarify the fallo of the
January 24, 2012 Decision to reconcile it, vis-a-vis the shares
of stocks in SMC which were declared owned by the
Government, with this development. We refer to the
Resolution3 issued by the Court on September 17, 2009 in the
then consolidated cases docketed as G.R. Nos. 177857-58, G.R.
No. 178193 and G.R. No. 180705. In that Resolution which has
long become final and executory, the Court, upon motion of
COCOFED and with the approval of the Presidential
Commission on Good Government, granted the conversion of
753,848,312 Class "A" and Class "B" SMC common shares
registered in the name of the CIIF companies to SMC Series 1
Preferred Shares of 753,848,312, subject to certain terms and
conditions. The dispositive portion of the aforementioned
Resolution states:
WHEREFORE, the Court APPROVES the conversion of the
753,848,312 SMC Common Shares registered in the name of
CIIF companies to SMC SERIES 1 PREFERRED SHARES of
753,848,312, the converted shares to be registered in the
names of CIIF companies in accordance with the terms and
conditions specified in the conversion offer set forth in SMC’s
Information Statement and appended as Annex "A" of
COCOFED’s Urgent Motion to Approve the Conversion of the
CIIF SMC Common Shares into SMC Series 1 Preferred Shares.
The preferred shares shall remain in custodia legis and their
ownership shall be subject to the final ownership
determination of the Court. Until the ownership issue has been
resolved, the preferred shares in the name of the CIIF
companies shall be placed under sequestration and PCGG
management. (Emphasis added.)
The net dividend earnings and/or redemption proceeds from
the Series 1 Preferred Shares shall be deposited in an escrow
account with the Land Bank of the Philippines or the
Development Bank of the Philippines.
Respondent Republic, thru the PCGG, is hereby directed to
cause the CIIF companies, including their respective directors,
officers, employees, agents, and all other persons acting in
their behalf, to perform such acts and execute such documents
as required to effectuate the conversion of the common shares
into SMC Series 1 Preferred Shares, within ten (10) days from
receipt of this Resolution.
Once the conversion is accomplished, the SMC Common
Shares previously registered in the names of the CIIF
companies shall be released from sequestration.
SO ORDERED.4
1
The CIIF block of SMC shares, as converted, is the same shares
of stocks that are subject matter of, and declared as owned by
the Government in, the January 24, 2012 Decision. Hence, the
need to clarify.
WHEREFORE, the Court resolves to DENY with FINALITY the
instant Motion for Reconsideration dated February 14, 2012 for
lack of merit.
The Court further resolves to CLARIFY that the 753,848,312
SMC Series 1 preferred shares of the CIIF companies converted
from the CIIF block of SMC shares, with all the dividend
earnings as well as all increments arising from, but not limited
to, the exercise of preemptive rights subject of the September
17, 2009 Resolution, shall now be the subject matter of the
January 24, 2012 Decision and shall be declared owned by the
Government and be used only for the benefit of all coconut
farmers and for the development of the coconut industry.
As modified, the fallo of the January 24, 2012 Decision shall
read, as follows:
WHEREFORE, the petitions in G.R. Nos. 177857-58 and 178793
are hereby DENIED. The Partial Summary Judgment dated July
11, 2003 in Civil Case No. 0033-A as reiterated with modification
in Resolution dated June 5, 2007, as well as the Partial
Summary Judgment dated May 7, 2004 in Civil Case No. 0033-
F, which was effectively amended in Resolution dated May 11,
2007, are AFFIRMED with MODIFICATION, only with respect to
those issues subject of the petitions in G.R. Nos. 177857-58 and
178193. However, the issues raised in G.R. No. 180705 in
relation to Partial Summary Judgment dated July 11, 2003 and
Resolution dated June 5, 2007 in Civil Case No. 0033-A, shall
be decided by this Court in a separate decision.
The Partial Summary Judgment in Civil Case No. 0033-A dated
July 11, 2003, is hereby MODIFIED, and shall read as follows:
WHEREFORE, in view of the foregoing, We rule as follows:
SUMMARY OF THE COURT’S RULING.
A. Re: CLASS ACTION MOTION FOR A SEPARATE SUMMARY
JUDGMENT dated April 11, 2001 filed by Defendant Maria Clara
L. Lobregat, COCOFED, et al., and Ballares, et al.
The Class Action Motion for Separate Summary Judgment
dated April 11, 2001 filed by defendant Maria Clara L. Lobregat,
COCOFED, et al. and Ballares, et al., is hereby DENIED for lack
of merit.
B. Re: MOTION FOR PARTIAL SUMMARY JUDGMENT (RE:
COCOFED, ET AL. AND BALLARES, ET AL.) dated April 22,
2002 filed by Plaintiff.
1. a. The portion of Section 1 of P.D. No. 755, which reads:
…and that the Philippine Coconut Authority is hereby
authorized to distribute, for free, the shares of stock of the bank
it acquired to the coconut farmers under such rules and
regulations it may promulgate.
taken in relation to Section 2 of the same P.D., is
unconstitutional: (i) for having allowed the use of the CCSF to
benefit directly private interest by the outright and
unconditional grant of absolute ownership of the FUB/UCPB
shares paid for by PCA entirely with the CCSF to the undefined
"coconut farmers", which negated or circumvented the
national policy or public purpose declared by P.D. No. 755 to
accelerate the growth and development of the coconut industry
and achieve its vertical integration; and (ii) for having unduly
delegated legislative power to the PCA.
b. The implementing regulations issued by PCA, namely,
Administrative Order No. 1, Series of 1975 and Resolution No.
074-78 are likewise invalid for their failure to see to it that the
distribution of shares serve exclusively or at least primarily or
directly the aforementioned public purpose or national policy
declared by P.D. No. 755.
2. Section 2 of P.D. No. 755 which mandated that the coconut
levy funds shall not be considered special and/or fiduciary
funds nor part of the general funds of the national government
and similar provisions of Sec. 5, Art. III, P.D. No. 961 and Sec.
5, Art. III, P.D. No. 1468 contravene the provisions of the
Constitution, particularly, Art. IX (D), Sec. 2; and Article VI, Sec.
29 (3).
3. Lobregat, COCOFED, et al. and Ballares, et al. have not
legally and validly obtained title of ownership over the subject
UCPB shares by virtue of P.D. No. 755, the Agreement dated
May 25, 1975 between the PCA and defendant Cojuangco, and
PCA implementing rules, namely, Adm. Order No. 1, s. 1975 and
Resolution No. 074-78.
4. The so-called "Farmers’ UCPB shares" covered by 64.98% of
the UCPB shares of stock, which formed part of the 72.2% of
the shares of stock of the former FUB and now of the UCPB,
the entire consideration of which was charged by PCA to the
CCSF, are hereby declared conclusively owned by, the Plaintiff
Republic of the Philippines.
xxx xxx xxx
SO ORDERED.
The Partial Summary Judgment in Civil Case No. 0033-F dated
May 7, 2004, is hereby MODIFIED, and shall read as follows:
WHEREFORE, the MOTION FOR EXECUTION OF PARTIAL
SUMMARY JUDGMENT (RE: CIIF BLOCK OF SMC SHARES OF
STOCK) dated August 8, 2005 of the plaintiff is hereby denied
for lack of merit. However, this Court orders the severance of
this particular claim of Plaintiff. The Partial Summary Judgment
dated May 7, 2004 is now considered a separate final and
appealable judgment with respect to the said CIIF Block of SMC
shares of stock.1âwphi1
The Partial Summary Judgment rendered on May 7, 2004 is
modified by deleting the last paragraph of the dispositive
portion, which will now read, as follows:
WHEREFORE, in view of the foregoing, we hold that:
The Motion for Partial Summary Judgment (Re: Defendants
CIIF Companies, 14 Holding Companies and Cocofed, et al)
filed by Plaintiff is hereby GRANTED. ACCORDINGLY, THE CIIF
COMPANIES, NAMELY:
1. Southern Luzon Coconut Oil Mills (SOLCOM);
2. Cagayan de Oro Oil Co., Inc. (CAGOIL);
3. Iligan Coconut Industries, Inc. (ILICOCO);
4. San Pablo Manufacturing Corp. (SPMC);
5. Granexport Manufacturing Corp. (GRANEX); and
6. Legaspi Oil Co., Inc. (LEGOIL),
AS WELL AS THE 14 HOLDING COMPANIES, NAMELY:
1. Soriano Shares, Inc.;
2. ACS Investors, Inc.;
3. Roxas Shares, Inc.;
4. Arc Investors; Inc.;
5. Toda Holdings, Inc.;
6. AP Holdings, Inc.;
7. Fernandez Holdings, Inc.;
2
8. SMC Officers Corps, Inc.;
9. Te Deum Resources, Inc.;
10. Anglo Ventures, Inc.;
11. Randy Allied Ventures, Inc.;
12. Rock Steel Resources, Inc.;
13. Valhalla Properties Ltd., Inc.; and
14. First Meridian Development, Inc.
AND THE CONVERTED SMC SERIES 1 PREFERRED SHARES
TOTALING 753,848,312 SHARES SUBJECT OF THE
RESOLUTION OF THE COURT DATED SEPTEMBER 17, 2009
TOGETHER "WITH ALL DIVIDENDS DECLARED, PAID OR
ISSUEDTHEREON AFTER THAT DATE, AS WELL AS ANY
INCREMENTS THERETO ARISING FROM, BUT NOT LIMITED
TO, EXERCISE OF PRE-EMPTIVE RIGHTS ARE DECLARED
OWNED BY THE GOVERNMENT TO RE USED ONLY FOH THE
BENEFIT OF ALL COCONUT FARMERS AND FOR THE
DEVELOPMENT OF THE COCONUT INDUSTRY. AND
ORDERED HECONVEYED TO THE GOVERNMENT.
THE COURT AFFIRMIS THE RESOLUTIONS ISSUED BY THE
SANDIGANBAYAN ON JUNE 5, 2007 IN CIVIL CASE NO. 0033-
A AND ON MAY 11, 2007 IN CIVIL CASE NO. 0033-F, THAT
THERE IS NO MORE NECESSITY OF FURTHER TRIAL WITH
RESPECT TO THE ISSUE OF OWNERSHIP OF (1) THE
SEQUESTERED UCPB SHARES, (2) THE CHF BLOCK OF SMC
SHARES AND (3) THE CIIF COMPANIES, AS THEY HAVE
FINALLY BEEN ADJUDICATED IN THE AFOREMIENTIONED
PARTIAL SUMMARY JUDGMENTS DATED JULY 11, 2003 AND
MAY 7, 2004.
SO ORDERED.
Costs against petitioners COCOFED, et al., in G.R. Nos. 177857-
58 and Danilo S. Ursua in G.R. No. 178193.
No further pleadings shall be entertained. Let Entry of
Judgment be made in due course.
SO ORDERED.
G.R. No. 198554 July 30, 2012
MAJOR GENERAL CARLOS F. GARCIA, AFP (RET.), Petitioner,
vs.
THE EXECUTIVE SECRETARY, representing the OFFICE OF
THE PRESIDENT; THE SECRETARY OF NATIONAL DEFENSE
VOLTAIRE T. GAZMIN; THE CHIEF OF STAFF, ARMED FORCES
OF THE PHILIPPINES, GEN. EDUARDO SL. OBAN, JR., and LT.
GEN. GAUDENCIO S. PANGILINAN, AFP (RET.), DIRECTOR,
BUREAU OF CORRECTIONS, Respondents.
DECISION
PERALTA, J.:
For resolution of this Court is the Petition for Certiorari dated
September 29, 2011 under Rule 65, Section 1 of the Revised
Rules of Civil Procedure which seeks to annul and set aside
the Confirmation of Sentence dated September 9, 2011,
promulgated by the Office of the President.
The facts, as culled from the records, are the following:
On October 13, 2004, the Provost Martial General of the Armed
Forces of the Philippines (AFP), Col. Henry A. Galarpe, by
command of Vice-Admiral De Los Reyes, issued a Restriction
to Quarters1 containing the following:
1. Pursuant to Article of War 70 and the directive of the Acting
Chief of Staff, AFP to the undersigned dtd 12 October 2004, you
are hereby placed under Restriction to Quarters under guard
pending investigation of your case.
2. You are further advised that you are not allowed to leave your
quarters without the expressed permission from the Acting
Chief of Staff, AFP.
3. In case you need immediate medical attention or required by
the circumstance to be confined in a hospital, you shall
likewise be under guard.
Thereafter, a Charge Sheet dated October 27, 2004 was filed
with the Special General Court Martial NR 2 presided by Maj.
Gen. Emmanuel R. Teodosio, AFP, (Ret.), enumerating the
following violations allegedly committed by petitioner:
CHARGE 1: VIOLATION OF THE 96TH ARTICLE OF WAR
(CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN).
SPECIFICATION 1: In that MAJOR GENERAL CARLOS FLORES
GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person
subject to military law, did, on or about 16 March 2004,
knowingly, wrongfully and unlawfully fail to disclose/declare all
his existing assets in his Sworn Statement of Assets and
Liabilities and Net Worth for the year 2003 as required by
Republic Act No. 3019, as amended in relation to Republic Act
6713, such as the following: cash holdings with the Armed
Forces Police Savings and Loans Association, Inc. (AFPSLAI)
in the amount of six million five hundred [thousand] pesos
(P6,500,000.00); cash dividend received from AFPSLAI from
June 2003 to December 2003 in the amount of one million three
hundred sixty-five thousand pesos (P1,365,000.00); dollar peso
deposits with Land Bank of the Philippines, Allied Banking
Corporation, Banco de Oro Universal Bank, Bank of Philippine
Islands, United Coconut Planter's Bank and Planter's
Development Bank; motor vehicles registered under his and
his wife’s names such as 1998 Toyota Hilux Utility Vehicle with
Plate Nr. WRY-843, Toyota Car with Plate Nr. PEV-665, Toyota
Previa with Plate Nr. UDS-195, 1997 Honda Civic Car with Plate
Nr. FEC 134, 1997 Mitsubishi L-300 Van with Plate Nr. FDZ 582
and 2001 Toyota RAV 4 Utility Vehicle with Plate Nr. FEV-498,
conduct unbecoming an officer and gentleman.
SPECIFICATION 2: In that MAJOR GENERAL CARLOS FLORES
GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person
subject to military law, did, on or about 11 March 2003,
knowingly, wrongfully and unlawfully fail to disclose/declare all
his existing assets in his Sworn Statement of Assets and
Liabilities and Net worth for the year 2002 as required by
Republic Act No. 3019, as amended in relation to Republic Act
6713, such as the following: his cash holdings with the Armed
Forces Police Savings and Loans Association, Inc. (AFPSLAI)
in the amount of six million five hundred [thousand] pesos
(P6,500,000.00); cash dividend received form AFPSLAI in June
2002 and December 2002 in the total amount of one million four
hundred thirty-five thousand pesos (1,435,000.00), dollar and
peso deposits with Land Bank of the Philippines, Allied
Banking Corporation, Banco de Oro Universal Bank, Bank of
the Philippine Islands, United Coconut Planter's Bank and
Planter's Development Bank; motor vehicles registered under
his and his wife’s names such as 1998 Toyota Hilux Utility
Vehicle with Plate Nr. WRY-843, Toyota Car with Plate Nr. PEV-
665, Toyota Previa with Plate Nr. UDS-195, 1997 Honda Civic
Car with Plate Nr. FEC-134, 1997 Mitsubishi L-300 Van with
Plate Nr. FDZ-582, and 2001 Toyota RAV 4
Utility Vehicle with Plate Nr. FEV-498, conduct unbecoming an
officer and gentleman.
SPECIFICATION 3: In that MAJOR GENERAL CARLOS FLORES
GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person
subject to military law, did, while in the active military service
of the Armed Forces of the Philippines, knowingly, wrongfully
and unlawfully violate his solemn oath as a military officer to
uphold the Constitution and serve the people with utmost
loyalty by acquiring and holding the status of an
immigrant/permanent residence of the United
3
States of America in violation of the State policy governing
public officers, thereby causing dishonor and disrespect to the
military professional and seriously compromises his position
as an officer and exhibits him as morally unworthy to remain in
the honorable profession of arms.
CHARGE II: VIOLATION OF THE 97TH ARTICLE OF WAR
(CONDUCT PREJUDICIAL TO GOOD ORDER AND MILITARY
DISCIPLINE).
SPECIFICATION 1: In that MAJOR GENERAL CARLOS FLORES
GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person
subject to military law, did, on or about 16 March 2004,
knowingly, wrongfully and unlawfully make untruthful
statements under oath of his true assets in his Statement of
Assets and Liabilities and Net worth for the year 2003 as
required by Republic Act No. 3019, as amended in relation to
Republic Act 6713, conduct prejudicial to good order and
military discipline.
SPECIFICATION NO. 2: In that MAJOR GENERAL CARLOS
FLORES GARCIA 0-5820 ARMED FORCES OF THE
PHILIPPINES, person subject to military law, did, on or about
11 March 2003, knowingly, wrongfully and unlawfully make
untruthful statements under oath of his true assts in his
Statement of Assets and Liabilities and Net worth for the year
2002 as required by Republic Act No. 3019, as amended in
relation to Republic Act 6713, conduct prejudicial to good order
and military discipline.
Petitioner, upon arraignment on November 16, 2004, pleaded
not guilty on all the charges.
The Office of the Chief of Staff, through a Memorandum2 dated
November 18, 2004, directed the transfer of confinement of
petitioner from his quarters at Camp General Emilio Aguinaldo
to the ISAFP Detention Center. On the same day, petitioner,
having reached the age of fifty-six (56), compulsorily retired
from military service after availing of the provisions of
Presidential Decree (P.D.) No. 1650,3 amending Sections 3 and
5 of P.D. 1638, which establishes a system of retirement for
military personnel of the Armed Forces of the Philippines.
Pursuant to a Resolution4 dated June 1, 2005 of the Second
Division of the Sandiganbayan, petitioner was transferred from
the ISAFP Detention Center to the Camp Crame Custodial
Detention Center.
After trial, at the Special General Court Martial No. 2, on
December 2, 2005, the findings or the After-Trial Report5of the
same court was read to the petitioner. The report contains the
following verdict and sentence:
MGEN CARLOS FLORES GARCIA 0-5820 AFP the court in
closed session upon secret written ballot 2/3 of all the
members present at the time the voting was taken concurring
the following findings. Finds you:
On Specification 1 of Charge 1 – Guilty except the words dollar
deposits with Land Bank of the Phils, dollar peso deposits with
Allied Bank, Banco de Oro, Universal Bank, Bank of the
Philippine Island, United Coconut Planters Bank and Planters
Development Bank.
On Specification 2 of Charge 1 – Guilty except the words dollar
deposits with Land Bank of the Phils, dollar peso deposits with
Allied Bank, Banco de Oro, Universal Bank, Bank of the
Philippine Island, United Coconut Planters Bank and Planters
Development Bank.
On Specification 3 of Charge 1 – Guilty
On Specification 1 of Charge 2 – Guilty
On Specification 2 of Charge 2 – Guilty
And again in closed session upon secret written ballot 2/3 all
the members are present at the time the votes was taken
concurrently sentences you to be dishonorably [discharged]
from the service, to forfeit all pay and allowances due and to
become due and to be confined at hard labor at such place the
reviewing authority may direct for a period of two (2) years. So
ordered. (Emphases supplied)
Afterwards, in a document6 dated March 27, 2006, the Staff
Judge Advocate stated the following recommended action:
IV. RECOMMENDED ACTION:
The court, after evaluating the evidence, found accused:
GUILTY on Charge 1, GUILTY on Specification 1 on Charge 1 –
except the words dollar deposits with Land Bank of the
Philippines, dollar and peso deposits with Allied Banking
Corporation, Banco de Oro Universal Bank, Bank of the
Philippine Islands, United Coconut Planter's Bank and
Planter's Development Bank; GUILTY on Charge 1,
Specification 2 except the words dollar deposits with Land
Bank of the Philippines, dollar and peso deposits with Allied
Banking Corporation, Banco de Oro Universal Bank, Bank of
the Philippine Islands, United Coconut Planters Bank and
Planter's Development Bank; GUILTY on Specification 3 of
Charge 1; GUILTY on Charge 2 and all its specifications. The
sentence imposed by the Special GCM is to be dishonorably
discharged from the service, to forfeit all pay and allowances
due and to become due; and to be confined at hard labor at
such place the reviewing authority may direct for a period of
two (2) years. As it is, the sentence is proper and legal.
Recommend that the sentence be approved. The PNP custodial
facility in Camp Crame, Quezon City, is the appropriate place
of confinement. The period of confinement from 18 October
2004 shall be credited in his favor and deducted from the two
(2) years to which the accused was sentenced. Thus,
confinement will expire on 18 October 2006. Considering that
the period left not served is less than one (1) year, confinement
at the National Penitentiary is no longer appropriate.
4. To carry this recommendation into effect, a draft "ACTION
OF THE REVIEWING AUTHORITY" is hereto attached.
In an undated document,7 the AFP Board of Military Review
recommended the following action:
8. RECOMMENDED ACTION:
A. Only so much of the sentence as provides for the mandatory
penalty of dismissal from the military service and forfeiture of
pay and allowances due and to become due for the offenses of
violation of AW 96 (Conduct Unbecoming an Officer and a
Gentleman) and for violation of AW 97 (Conduct Prejudicial to
Good Order and Military Discipline) be imposed upon the
Accused.
B. The records of the instant case should be forwarded to the
President thru the Chief of Staff and the Secretary of National
Defense, for final review pursuant to AW 47, the Accused
herein being a General Officer whose case needs confirmation
by the President.
C. To effectuate the foregoing, attached for CSAFP's
signature/approval is a proposed 1st
Indorsement to the President, thru the Secretary of National
Defense, recommending approval of the attached prepared
"ACTION OF THE PRESIDENT."
After six (6) years and two (2) months of preventive
confinement, on December 16, 2010, petitioner was released
from the Camp Crame Detention Center.8
The Office of the President, or the President as Commander-in-
Chief of the AFP and acting as the Confirming Authority under
the Articles of War, confirmed the sentence imposed by the
Court Martial against petitioner. The Confirmation of
Sentence,9 reads in part:
NOW, THEREFORE, I, BENIGNO S. AQUINO III, the President as
Commander-in-Chief of the Armed Forces of the Philippines,
do hereby confirm the sentence imposed by the Court Martial
in the case of People of the Philippines versus Major General
Carlos Flores Garcia AFP:
4
a) To be dishonorable discharged from the service;
b) To forfeit all pay and allowances due and to become due;
and
c) To be confined for a period of two (2) years in a penitentiary.
FURTHER, pursuant to the 48th and 49th Articles of War, the
sentence on Major General Carlos Flores Garcia AFP shall not
be remitted/mitigated by any previous confinement. Major
General Carlos Flores Garcia AFP shall serve the foregoing
sentence effective on this date.
DONE, in the City of Manila, this 9th day of September, in the
year of our Lord, Two Thousand and Eleven.
Consequently, on September 15, 2011, respondent Secretary of
National Defense Voltaire T. Gazmin, issued a Memorandum10
to the Chief of Staff, AFP for strict implementation, the
Confirmation of Sentence in the Court Martial Case of People
of the Philippines Versus Major General Carlos Flores Garcia
AFP.
On September 16, 2011, petitioner was arrested and detained,
and continues to be detained at the National Penitentiary,
Maximum Security, Bureau of Corrections, Muntinlupa City.11
Aggrieved, petitioner filed with this Court the present petition
for certiorari and petition for habeas corpus, alternatively.
However, this Court, in its Resolution12 dated October 10,
2011, denied the petition for habeas corpus. Petitioner filed a
motion for reconsideration13 dated November 15, 2011, but
was denied14 by this Court on December 12, 2011.
Petitioner enumerates the following grounds to support his
petition:
GROUNDS
A.
THE JURISDICTION OF THE GENERAL COURT MARTIAL
CEASED IPSO FACTO UPON THE RETIREMENT OF
PETITIONER, FOR WHICH REASON THE OFFICE OF THE
PRESIDENT ACTED WITHOUT JURISDICTION IN ISSUING THE
CONFIRMATION OF SENTENCE, AND PETITIONER'S ARREST
AND CONFINEMENT PURSUANT THERETO IS ILLEGAL, THUS
WARRANTING THE WRIT OF HABEAS CORPUS.
B.
EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT
PETITIONER REMAINED AMENABLE TO COURT MARTIAL
JURISDICTION AFTER HIS RETIREMENT, THE OFFICE OF THE
PRESIDENT ACTED WITH GRAVE ABUSE OF DISCRETION IN
IMPOSING THE SENTENCE OF TWO (2) YEARS CONFINEMENT
WITHOUT ANY LEGAL BASIS, FOR WHICH REASON
PETITIONER'S ARREST AND CONFINEMENT IS ILLEGAL,
THUS WARRANTING THE WRIT OF HABEAS CORPUS.
C.
EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT THE
PENALTY OF TWO (2) YEARS CONFINEMENT MAY BE
IMPOSED IN ADDITION TO THE PENALTIES OF DISMISSAL
AND FORFEITURE, THE SENTENCE HAD BEEN FULLY
SERVED IN VIEW OF PETITIONER'S PREVENTIVE
CONFINEMENT WHICH EXCEEDED THE 2-YEAR SENTENCE,
AND THE OFFICE OF THE PRESIDENT HAS NO AUTHORITY
TO REPUDIATE SAID SERVICE OF SENTENCE, FOR WHICH
REASON PETITIONER'S ARREST AND CONFINEMENT
DESPITE FULL SERVICE OF SENTENCE IS ILLEGAL, THUS
WARRANTING THE WRIT OF HABEAS CORPUS.15
In view of the earlier resolution of this Court denying
petitioner's petition for habeas corpus, the above grounds are
rendered moot and academic. Thus, the only issue in this
petition for certiorari under Rule 65 of the Revised Rules of
Civil Procedure, which was properly filed with this
Court, is whether the Office of the President acted with grave
abuse of discretion, amounting to lack or excess of
jurisdiction, in issuing the Confirmation of Sentence dated
September 9, 2011.
In its Comment16 dated October 27, 2011, the Office of the
Solicitor General (OSG) lists the following counter-arguments:
I.
PETITIONER'S DIRECT RECOURSE TO THE HONORABLE
COURT VIOLATES THE DOCTRINE OF HIERARCHY OF
COURTS; HENCE, THE PETITION SHOULD BE OUTRIGHTLY
DISMISSED.
II.
THE GENERAL COURT MARTIAL RETAINED JURISDICTION
OVER PETITIONER DESPITE HIS RETIREMENT DURING THE
PENDENCY OF THE PROCEEDINGS AGAINST HIM SINCE THE
SAID TRIBUNAL'S JURISDICTION HAD ALREADY FULLY
ATTACHED PRIOR TO PETITIONER'S RETIREMENT.
III.
THE CONFIRMATION ISSUED BY THE OFFICE OF THE
PRESIDENT DIRECTING PETITIONER TO BE CONFINED FOR
TWO (2) YEARS IN A PENITENTIARY IS SANCTIONED BY C. A.
NO. 408 AND EXECUTIVE ORDER NO. 178, PURSUANT TO THE
PRESIDENT'S CONSTITUTIONAL AUTHORITY AS THE
COMMANDER-IN-CHIEF OF THE AFP.
IV.
PETITIONER'S RIGHT TO A SPEEDY DISPOSITION OF HIS
CASE WAS NOT VIOLATED IN THIS CASE.
V.
THE IMPOSITION OF THE PENALTY OF TWO (2) YEARS
CONFINEMENT ON PETITIONER BY THE GCM, AND AS
CONFIRMED BY THE PRESIDENT OF THE PHILIPPINES, IS
VALID.
VI.
ACCORDINGLY, PUBLIC RESPONDENTS DID NOT ACT WITH
GRAVE ABUSE OF DISCRETION IN ISSUING AND
IMPLEMENTING THE CONFIRMATION OF SENTENCE.17
Petitioner, in his Reply18 dated January 20, 2012, disagreed
with the arguments raised by the OSG due to the following:
(A)
THE CONFIRMATION OF THE COURT MARTIAL SENTENCE IS
AN ACT BY THE PRESIDENT, AS THE COMMANDER-IN-CHIEF,
AND NOT MERELY AS THE HEAD OF THE EXECUTIVE
BRANCH. THEREFORE, THE HONORABLE COURT IS THE
ONLY APPROPRIATE COURT WHERE HIS ACT MAY BE
IMPUGNED, AND NOT IN THE LOWER COURTS, I.E.,
REGIONAL TRIAL COURT ("RTC") OR THE COURT OF
APPEALS ("CA"), AS THE OSG ERRONEOUSLY POSTULATES.
(B)
ALTHOUGH THE GENERAL COURT MARTIAL ("GCM")
RETAINED JURISDICTION "OVER THE PERSON" OF
PETITIONER EVEN AFTER HE RETIRED FROM THE ARMED
FORCES OF THE PHILIPPINES ('AFP"), HOWEVER, HIS
RETIREMENT, CONTRARY TO THE STAND OF THE OSG,
SEVERED HIS "JURAL RELATIONSHIP" WITH THE MILITARY,
THEREBY PLACING HIM BEYOND THE SUBSTANTIVE REACH
OF THE AFP'S COURT MARTIAL JURISDICTION.
(C)
5
UNDER ART. 29, REVISED PENAL CODE ("RPC"),
PETITIONER'S COURT MARTIAL SENTENCE OF TWO (2)
YEARS IN CARCERATION HAD ALREADY BEEN SERVED IN
FULL SINCE HE HAD ALREADY SUFFERED PREVENTIVE
IMPRISONMENT OF AT LEAST SIX (6) YEARS BEFORE THE
SENTENCE COULD BE CONFIRMED, WHICH MEANS THAT
THE PRESIDENT HAD NO MORE JURISDICTION WHEN HE
CONFIRMED IT, THEREBY RENDERING THE "CONFIRMATION
OF SENTENCE" A PATENT NULLITY, AND, CONSEQUENTLY,
INVALIDATING THE OSG'S POSITION THAT THE PRESIDENT
STILL HAD JURISDICTION WHEN HE CONFIRMED THE
SENTENCE.19
Petitioner raises the issue of the jurisdiction of the General
Court Martial to try his case. According to him, the said
jurisdiction ceased ipso facto upon his compulsory retirement.
Thus, he insists that the Office of the President had acted
without jurisdiction in issuing the confirmation of his sentence.
This Court finds the above argument bereft of merit.
Article 2 of the Articles of War20 circumscribes the jurisdiction
of military law over persons subject thereto, to wit:
Art. 2. Persons Subject to Military Law. - The following persons
are subject to these articles and shall be understood as
included in the term "any person subject to military law" or
"persons subject to military law," whenever used in these
articles:
(a) All officers and soldiers in the active service of the Armed
Forces of the Philippines or of the Philippine Constabulary; all
members of the reserve force, from the dates of their call to
active duty and while on such active duty; all trainees
undergoing military instructions; and all other persons lawfully
called, drafted, or ordered into, or to duty or for training in, the
said service, from the dates they are required by the terms of
the call, draft, or order to obey the same;
(b) Cadets, flying cadets, and probationary second lieutenants;
(c) All retainers to the camp and all persons accompanying or
serving with the Armed Forces of the Philippines in the field in
time of war or when martial law is declared though not
otherwise subject to these articles;
(d) All persons under sentence adjudged by courts-martial.
(As amended by Republic Acts 242 and 516).
It is indisputable that petitioner was an officer in the active
service of the AFP in March 2003 and 2004, when the alleged
violations were committed. The charges were filed on October
27, 2004 and he was arraigned on November 16, 2004. Clearly,
from the time the violations were committed until the time
petitioner was arraigned, the General Court Martial had
jurisdiction over the case. Well-settled is the rule that
jurisdiction once acquired is not lost upon the instance of the
parties but continues until the case is terminated.21 Therefore,
petitioner's retirement on November 18, 2004 did not divest the
General Court Martial of its jurisdiction. In B/Gen. (Ret.)
Francisco V. Gudani, et al. v. Lt./Gen. Generoso Senga, et al.,22
this Court ruled that:
This point was settled against Gen. Gudani's position in
Abadilla v. Ramos, where the Court declared that an officer
whose name was dropped from the roll of officers cannot be
considered to be outside the jurisdiction of military authorities
when military justice proceedings were initiated against him
before the termination of his service. Once jurisdiction has
been acquired over the officer, it continues until his case is
terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of
Colonel Abadilla at the time of the alleged offenses. This
jurisdiction having been vested in the military authorities, it is
retained up to the end of the proceedings against Colonel
Abadilla. Well-settled is the rule that jurisdiction once acquired
is not lost upon the instance of the parties but continues until
the case is terminated.
Citing Colonel Winthrop's treatise on Military Law, the Court
further stated:
We have gone through the treatise of Colonel Winthrop and We
find the following passage which goes against the contention
of the petitioners, viz. —
3. Offenders in general — Attaching of jurisdiction. It has
further been held, and is now settled law, in regard to military
offenders in general, that if the military jurisdiction has once
duly attached to them previous to the date of the termination of
their legal period of service, they may be brought to trial by
court-martial after that date, their discharge being meanwhile
withheld. This principle has mostly been applied to cases
where the offense was committed just prior to the end of the
term. In such cases the interests of discipline clearly forbid that
the offender should go unpunished. It is held therefore that if
before the day on which his service legally terminates and his
right to a discharge is complete, proceedings with a view to
trial are commenced against him — as by arrest or the service
of charges, — the military jurisdiction will fully attach and once
attached may be continued by a trial by court-martial ordered
and held after the end of the term of the enlistment of the
accused x x x
Thus, military jurisdiction has fully attached to Gen. Gudani
inasmuch as both the acts complained of and the initiation of
the proceedings against him occurred before he compulsorily
retired on 4 October 2005. We see no reason to unsettle the
Abadilla doctrine. The OSG also points out that under Section
28 of Presidential Decree No. 1638, as amended, "an officer or
enlisted man carried in the retired list of the Armed Forces of
the Philippines shall be subject to the Articles of War x x x" To
this citation, petitioners do not offer any response, and in fact
have excluded the matter of Gen. Gudani's retirement as an
issue in their subsequent memorandum.23
It is also apt to mention that under Executive Order No. 178, or
the Manual for Courts-Martial, AFP, the jurisdiction of courts-
martial over officers, cadets, soldiers, and other military
personnel in the event of discharge or other separation from
the service, and the exceptions thereto, is defined thus:
10. COURT-MARTIAL – Jurisdiction in general – Termination –
General Rules – The general rule is that court-martial
jurisdiction over officers, cadets, soldiers and others in the
military service of the Philippines ceases on discharge or other
separation from such service, and that jurisdiction as to any
offense committed during a period of service thus terminated
is not revived by a reentry into the military service.
Exceptions – To this general rule there are, however, some
exceptions, among them the following:
xxxx
In certain case, where the person's discharge or other
separation does not interrupt his status as a person belonging
to the general category of persons subject to military law,
court-martial jurisdiction does not terminate. Thus, where an
officer holding a reserve commission is discharged from said
commission by reason of acceptance of a commission in the
Regular Force, there being no interval between services under
the respective commissions, there is no terminating of the
officer's military status, but merely the accomplishment of a
change in his status from that of a reserve to that of a regular
officer, and that court-martial jurisdiction to try him for an
offense (striking enlisted men for example) committed prior to
the discharge is not terminated by the discharge. So also,
where a dishonorable discharged general prisoner is tried for
an offense committed while a soldier and prior to his
dishonorable discharge, such discharge does not terminate his
amenability to trial for the offense. (Emphases supplied.)
Petitioner also asserts that the General Court Martial's
continuing jurisdiction over him despite his retirement holds
true only if the charge against him involves fraud,
embezzlement or misappropriation of public funds citing this
Court's ruling in De la Paz v. Alcaraz,et al.24 and Martin v. Ve
r.25 However, this is not true. The OSG is correct in stating that
in De la Paz,26 military jurisdiction over the officer who
reverted to inactive status was sustained by this Court because
the violation involved misappropriation of public funds
6
committed while he was still in the active military service, while
in Martin,27 military jurisdiction was affirmed because the
violation pertained to illegal disposal of military property. Both
cited cases centered on the nature of the offenses committed
by the military personnel involved, justifying the exercise of
jurisdiction by the courts-martial. On the other hand, in the
present case, the continuing military jurisdiction is based on
prior attachment of jurisdiction on the military court before
petitioner's compulsory retirement. This continuing
jurisdiction is provided under Section 1 of P.D. 1850,28 as
amended, thus:
Section 1. Court Martial Jurisdiction over Integrated National
Police and Members of the Armed Forces. - Any provision of
law to the contrary notwithstanding – (a) uniformed members
of the Integrated National Police who commit any crime or
offense cognizable by the civil courts shall henceforth be
exclusively tried by courts-martial pursuant to and in
accordance with Commonwealth Act No. 408, as amended,
otherwise known as the Articles of War; (b) all persons subject
to military law under article 2 of the aforecited Articles of War
who commit any crime or offense shall be exclusively tried by
courts-martial or their case disposed of under the said Articles
of War; Provided, that, in either of the aforementioned
situations, the case shall be disposed of or tried by the proper
civil or judicial authorities when court-martial jurisdiction over
the offense has prescribed under Article 38 of Commonwealth
Act Numbered 408, as amended, or court-martial jurisdiction
over the person of the accused military or Integrated National
Police personnel can no longer be exercised by virtue of their
separation from the active service without jurisdiction having
duly attached beforehand unless otherwise provided by law:
Provided further, that the President may, in the interest of
justice, order or direct, at any time before arraignment, that a
particular case be tried by the appropriate civil court.
(Emphasis supplied.)
Having established the jurisdiction of the General Court Martial
over the case and the person of the petitioner, the President,
as Commander-in-Chief, therefore acquired the jurisdiction to
confirm petitioner's sentence as mandated under Article 47 of
the Articles of War, which states:
Article 47. Confirmation – When Required. - In addition to the
approval required by article forty-five, confirmation by the
President is required in the following cases before the
sentence of a court-martial is carried into execution, namely:
(a) Any sentence respecting a general officer;
(b) Any sentence extending to the dismissal of an officer except
that in time of war a sentence extending to the dismissal of an
officer below the grade of brigadier general may be carried into
execution upon confirmation by the commanding general of
the Army in the field;
(c) Any sentence extending to the suspension or dismissal of
a cadet, probationary second lieutenant; and
(d) Any sentence of death, except in the case of persons
convicted in time of war, of murder, mutiny, desertion, or as
spies, and in such excepted cases of sentence of death may be
carried into execution, subject to the provisions of Article 50,
upon confirmation by the commanding general of the Army in
the said field.
When the authority competent to confirm the sentence has
already acted as the approving authority no additional
confirmation by him is necessary. (As amended by Republic
Act No. 242). (Emphasis supplied.)
In connection therewith, petitioner argues that the confirmation
issued by the Office of the President directing him to be
confined for two (2) years in the penitentiary had already been
fully served in view of his preventive confinement which had
exceeded two (2) years. Therefore, according to him, the Office
of the President no longer has the authority to order his
confinement in a penitentiary. On the other hand, the OSG
opines that petitioner cannot legally demand the deduction of
his preventive confinement in the service of his imposed two-
year confinement in a penitentiary, because unlike our Revised
Penal Code29 which specifically mandates that the period of
preventive imprisonment of the accused shall be deducted
from the term of his imprisonment, the Articles of War and/or
the Manual for Courts-Martial do not provide for the same
deduction in the execution of the sentence imposed by the
General Court Martial as confirmed by the President in
appropriate cases.
On the above matter, this Court finds the argument raised by
the OSG unmeritorious and finds logic in the assertion of
petitioner that Article 29 of the Revised Penal Code can be
made applicable in the present case.
The OSG maintains that military commissions or tribunals are
not courts within the Philippine judicial system, citing Olaguer,
et al. v. Military Commission No. 4,30 hence, they are not
expected to apply criminal law concepts in their
implementation and execution of decisions involving the
discipline of military personnel. This is misleading. In Olaguer,
the courts referred to were military commissions created under
martial law during the term of former President Ferdinand
Marcos and was declared unconstitutional by this Court, while
in the present case, the General Court Martial which tried it,
was created under Commonwealth Act No. 408, as amended,
and remains a valid entity.
In Marcos v. Chief of Staff, Armed Forces of the Philippines,31
this Court ruled that a court-martial case is a criminal case and
the General Court Martial is a "court" akin to any other courts.
In the same case, this Court clarified as to what constitutes the
words "any court" used in Section 1732 of the 1935
Constitution prohibiting members of Congress to appear as
counsel in any criminal case in which an officer or employee of
the Government is accused of an offense committed in relation
to his office. This Court held:
We are of the opinion and therefore hold that it is applicable,
because the words "any court" includes the General Court-
Martial, and a court-martial case is a criminal case within the
meaning of the above quoted provisions of our Constitution.
It is obvious that the words "any court," used in prohibiting
members of Congress to appear as counsel "in any criminal
case in which an officer or employee of the Government is
accused of an offense committed in relation to his office,"
refers, not only to a civil, but also to a military court or a Court-
Martial. Because, in construing a Constitution, "it must be
taken as established that where words are used which have
both a restricted and a general meaning, the general must
prevail over the restricted unless the nature of the subject
matter of the context clearly indicates that the limited sense is
intended." (11 American Jurisprudence, pp. 680-682).
In the case of Ramon Ruffy vs. Chief of Staff of the Philippine
Army,* 43 Off. Gaz., 855, we did not hold that the word "court"
in general used in our Constitution does not include a Court-
Martial; what we held is that the words "inferior courts" used
in connection with the appellate jurisdiction of the Supreme
Court to "review on appeal certiorari or writ of error, as the law
or rules of court may provide, final judgments of inferior courts
in all criminal cases in which the penalty imposed is death or
life imprisonment," as provided for in section 2, Article VIII, of
the Constitution, do not refer to Courts-Martial or Military
Courts.
Winthrop's Military Law and Precedents, quoted by the
petitioners and by this Court in the case of Ramon Ruffy et al
vs. Chief of Staff of the Philippine Army, supra, has to say in
this connection the following:
Notwithstanding that the court-martial is only an
instrumentality of the executive power having no relation or
connection, in law, with the judicial establishments of the
country, it is yet, so far as it is a court at all, and within its field
of action, as fully a court of law and justice as is any civil
tribunal. As a court of law, it is bound, like any court, by the
fundamental principles of law, and, in the absence of special
provision of the subject in the military code, it observes in
general the rules of evidence as adopted in the common-law
courts. As a court of justice, it is required by the terms of its
statutory oath, (art. 84.) to adjudicate between the U.S. and the
accused "without partiality, favor, or affection," and according,
not only to the laws and customs of the service, but to its
"conscience," i.e. its sense of substantial right and justice
unaffected by technicalities. In the words of the Attorney
7
General, court-martial are thus, "in the strictest sense courts
of justice. (Winthrop's Military Law and Precedents, Vol. 1 and
2, 2nd Ed., p. 54.)
In re Bogart, 3 Fed. Cas., 796, 801, citing 6 Op. Attys. Gen. 425,
with approval, the court said:
In the language of Attorney General Cushing, a court-martial is
a lawful tribunal existing by the same authority that any other
exists by, and the law military is a branch of law as valid as any
other, and it differs from the general law of the land in authority
only in this: that it applies to officers and soldiers of the army
but not to other members of the body politic, and that it is
limited to breaches of military duty.
And in re Davison, 21 F. 618, 620, it was held:
That court-martial are lawful tribunals existing by the same
authority as civil courts of the United States, have the same
plenary jurisdiction in offenses by the law military as the latter
courts have in controversies within their cognizance, and in
their special and more limited sphere are entitled to as
untrammelled an exercise of their powers.
And lastly, American Jurisprudence says:
SEC. 99. Representation by Counsel. — It is the general rule
that one accused of the crime has the right to be represented
before the court by counsel, and this is expressly so declared
by the statues controlling the procedure in court-martial. It has
been held that a constitutional provision extending that right to
one accused in any trial in any court whatever applies to a
court-martial and gives the accused the undeniable right to
defend by counsel, and that a court-martial has no power to
refuse an attorney the right to appear before it if he is properly
licensed to practice in the courts of the state. (Citing the case
of State ex rel Huffaker vs. Crosby, 24 Nev. 115, 50 Pac. 127; 36
American Jurisprudence 253)
The fact that a judgment of conviction, not of acquittal,
rendered by a court-martial must be approved by the reviewing
authority before it can be executed (Article of War 46), does not
change or affect the character of a court-martial as a court. A
judgment of the Court of First Instance imposing death penalty
must also be approved by the Supreme Court before it can be
executed.
That court-martial cases are criminal cases within the meaning
of Section 17, Article VI, of the Constitution is also evident,
because the crimes and misdemeanors forbidden or punished
by the Articles of War are offenses against the Republic of the
Philippines. According to section 1,
Rule 106, of the Rules of Court, a criminal action or case is one
which involves a wrong or injury done to the Republic, for the
punishment of which the offender is prosecuted in the name of
the People of the Philippines; and pursuant to Article of War
17, "the trial advocate of a general or special court-martial shall
prosecute (the accused) in the name of the People of the
Philippines."
Winthtrop, in his well known work "Military Law and
Precedents' says the following:
In regard to the class of courts to which it belongs, it is lastly
to be noted that the court-martial is strictly a criminal court. It
has no civil jurisdiction whatever; cannot enforce a contract,
collect a debt, or award damages in favor of an individual. . . .
Its judgment is a criminal sentence not a civil verdict; its proper
function is to award punishment upon the ascertainment of
guilt. (Winthrop's Military Law and Precedents, Vols. 1 & 2, 2nd
Ed., p. 55.)
In N. Y. it was held that the term "criminal case," used in the
clause, must be allowed some meaning, and none can be
conceived, other than a prosecution for a criminal offense. Ex
parte Carter. 66 S. W. 540, 544, 166 No. 604, 57 L.R.A. 654,
quoting People vs. Kelly, 24 N.Y. 74; Counselman vs.
Hitchcock, 12 S. Ct. 195; 142 U.S. 547, L. Ed. 111o. (Words and
Phrases, Vol. 10, p. 485.)
Besides, that a court-martial is a court, and the prosecution of
an accused before it is a criminal and not an administrative
case, and therefore it would be, under certain conditions, a bar
to another prosecution of the defendant for the same offense,
because the latter would place the accused in jeopardy, is
shown by the decision of the Supreme Court of the United
States in the case of Grafton vs. United States, 206 U. S. 333;
51 Law. Ed., 1088, 1092, in which the following was held:
If a court-martial has jurisdiction to try an officer or soldier for
a crime, its judgment will be accorded the finality and
conclusiveness as to the issues involved which attend the
judgments of a civil court in a case of which it may legally take
cognizance; x x x and restricting our decision to the above
question of double jeopardy, we judge that, consistently with
the above act of 1902, and for the reasons stated, the plaintiff
in error, a soldier in the Army, having been acquitted of the
crime of homicide, alleged to have been committed by him in
the Philippines, by a military court of competent jurisdiction,
proceeding under the authority of the United States, could not
be subsequently tried for the same offense in a civil court
exercising authority in that territory.33 (Emphasis supplied.)
Hence, as extensively discussed above, the General Court
Martial is a court within the strictest sense of the word and acts
as a criminal court. On that premise, certain provisions of the
Revised Penal Code, insofar as those that are not provided in
the Articles of War and the Manual for Courts-Martial, can be
supplementary. Under Article 10 of the Revised Penal Code:
Art. 10. Offenses not subject to the provisions of this Code. -
Offenses which are or in the future may be punishable under
special laws are not subject to the provisions of this Code. This
Code shall be supplementary to such laws, unless the latter
should specially provide the contrary.
A special law is defined as a penal law which punishes acts not
defined and penalized by the Revised Penal Code.34 In the
present case, petitioner was charged with and convicted of
Conduct Unbecoming an Officer and Gentleman (96th Article
of War) and Violation of the 97th Article of War, or Conduct
Prejudicial to Good Order and Military Discipline, both of which
are not defined and penalized under the Revised Penal Code.
The corresponding penalty imposed by the General Court
Martial, which is two (2) years of confinement at hard labor is
penal in nature. Therefore, absent any provision as to the
application of a criminal concept in the implementation and
execution of the General Court Martial's decision, the
provisions of the Revised Penal Code, specifically Article 29
should be applied. In fact, the deduction of petitioner's period
of confinement to his sentence has been recommended in the
Staff Judge Advocate Review, thus:
x x x Recommend that the sentence be approved. The PNP
custodial facility in Camp Crame, Quezon City, is the
appropriate place of confinement. The period of confinement
from 18 October 2004 shall be credited in his favor and
deducted from the two (2) years to which the accused was
sentenced. Thus, confinement will expire on 18 October 2006.
Considering that the period left not served is less than one (1)
year, confinement at the National Penitentiary is no longer
appropriate.35 (Emphasis supplied.)
The above was reiterated in the Action of the Reviewing
Authority, thus:
In the foregoing General Court-Martial case of People of the
Philippines versus MGEN. CARLOS F. GARCIA 0-5820 AFP
(now Retired), the verdict of GUILTY is hereby approved.
The sentence to be dishonorably discharged from the service;
to forfeit all pay and allowances due and to become due; and
to be confined at hard labor at such place as the reviewing
authority may direct for a period of two (2) years is also
approved.
Considering that the Accused has been in confinement since
18 October 2004, the entire period of his confinement since 18
October 2004 will be credited in his favor. Consequently, his
two (2) year sentence of confinement will expire on 18 October
2006.
8
The proper place of confinement during the remaining
unserved portion of his sentence is an official military
detention facility.1âwphi1 However, the Accused is presently
undergoing trial before the Sandiganbayan which has directed
that custody over him be turned over to the civilian authority
and that he be confined in a civilian jail or detention facility
pending the disposition of the case(s) before said Court. For
this reason, the Accused shall remain confined at the PNP's
detention facility in Camp Crame, Quezon City. The Armed
Forces of the Philippines defers to the civilian authority on this
matter.
Should the Accused be released from confinement upon lawful
orders by the Sandiganbayan before the expiration of his
sentence adjudged by the military court, the Provost Marshal
General shall immediately take custody over the Accused, who
shall be transferred to and serve the remaining unserved
portion thereof at the ISAFP detention facility in Camp General
Emilio Aguinaldo, Quezon City.36 (Emphasis supplied.)
Nevertheless, the application of Article 29 of the Revised Penal
Code in the Articles of War is in accordance with the Equal
Protection Clause of the 1987 Constitution. According to a long
line of decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed.37 It
requires public bodies and institutions to treat similarly
situated individuals in a similar manner.38 The purpose of the
equal protection clause is to secure every person within a
state's jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a
statute or by its improper execution through the state's duly-
constituted authorities.39 In other words, the concept of equal
justice under the law requires the state to govern impartially,
and it may not draw distinctions between individuals solely on
differences that are irrelevant to a legitimate governmental
objective.40 It, however, does not require the universal
application of the laws to all persons or things without
distinction. What it simply requires is equality among equals
as determined according to a valid classification. Indeed, the
equal protection clause permits classification. Such
classification, however, to be valid must pass the test of
reasonableness. The test has four requisites: (1) the
classification rests on substantial distinctions; (2) it is
germane to the purpose of the law; (3) it is not limited to
existing conditions only; and (4) it applies equally to all
members of the same class.41 "Superficial differences do not
make for a valid classification."42 In the present case,
petitioner belongs to the class of those who have been
convicted by any court, thus, he is entitled to the rights
accorded to them. Clearly, there is no substantial distinction
between those who are convicted of offenses which are
criminal in nature under military courts and the civil courts.
Furthermore, following the same reasoning, petitioner is also
entitled to the basic and time-honored principle that penal
statutes are construed strictly against the State and liberally in
favor of the accused.43 It must be remembered that the
provisions of the Articles of War which the petitioner violated
are penal in nature.
The OSG is correct when it argued that the power to confirm a
sentence of the President, as Commander-in-Chief, includes
the power to approve or disapprove the entire or any part of the
sentence given by the court martial. As provided in Article 48
of the Articles of War:
Article 48. Power Incident to Power to Confirm. - The power to
confirm the sentence of a court-martial shall be held to include:
(a) The power to confirm or disapprove a finding, and to
confirm so much only of a finding of guilty of a particular
offense as involves a finding of guilty of a lesser included
offense when, in the opinion of the authority having power to
confirm, the evidence of record requires a finding of only the
lesser degree of guilt;
(b) The power to confirm or disapprove the whole or any part
of the sentence; and
(c) The power to remand a case for rehearing, under the
provisions of Article 50. (Emphasis supplied.)
In addition, the President also has the power to mitigate or
remit a sentence. Under Article 49 of the Articles of War:
Article 49. Mitigation or Remission of Sentence. - The power to
order the execution of the sentence adjudged by a court-
martial shall be held to include, inter alia, the power to mitigate
or remit the whole or any part of the sentence.
Any unexpected portion of a sentence adjudged by a court-
martial may be mitigated or remitted by the military authority
competent to appoint, for the command, exclusive of
penitentiaries and Disciplinary Barracks of the Armed Forces
of the Philippines or Philippine Constabulary, in which the
person under sentence is held, a court of the kind that imposed
the sentence, and the same power may be exercised by
superior military authority; but no sentence approved or
confirmed by the President shall be remitted or mitigated by
any other authority, and no approved sentence of loss of files
by an officer shall be remitted or mitigated by any authority
inferior to the President, except as provided in Article 52.
When empowered by the President to do so, the commanding
general of the Army in the field or the area commander may
approve or confirm and commute (but not approve or confirm
without commuting), mitigate, or remit and then order executed
as commuted, mitigated, or remitted any sentence which under
those Articles requires the confirmation of the President before
the same may be executed. (As amended by Republic Act No.
242).
Thus, the power of the President to confirm, mitigate and remit
a sentence of erring military personnel is a clear recognition of
the superiority of civilian authority over the military. However,
although the law (Articles of War) which conferred those
powers to the President is silent as to the deduction of the
period of preventive confinement to the penalty imposed, as
discussed earlier, such is also the right of an accused provided
for by Article 29 of the RPC.
As to petitioner's contention that his right to a speedy
disposition of his case was violated, this Court finds the same
to be without merit.
No less than our Constitution guarantees the right not just to a
speedy trial but to the speedy disposition of cases.44 However,
it needs to be underscored that speedy disposition is a relative
and flexible concept. A mere mathematical reckoning of the
time involved is not sufficient. Particular regard must be taken
of the facts and circumstances peculiar to each case.45 In
determining whether or not the right to the speedy disposition
of cases has been violated, this Court has laid down the
following guidelines: (1) the length of the delay; (2) the reasons
for such delay; (3) the assertion or failure to assert such right
by the accused; and (4) the prejudice caused by the delay.46
In this case, there was no allegation, whatsoever of any delay
during the trial. What is being questioned by petitioner is the
delay in the confirmation of sentence by the President.
Basically, the case has already been decided by the General
Court Martial and has also been reviewed by the proper
reviewing authorities without any delay. The only thing missing
then was the confirmation of sentence by the President. The
records do not show that, in those six (6) years from the time
the decision of the General Court Martial was promulgated until
the sentence was finally confirmed by the President, petitioner
took any positive action to assert his right to a speedy
disposition of his case. This is akin to what happened in
Guerrero v. Court of Appeals,47 where, in spite of the lapse of
more than ten years of delay, the Court still held that the
petitioner could not rightfully complain of delay violative of his
right to speedy trial or disposition of his case, since he was
part of the reason for the failure of his case to move on towards
its ultimate resolution. The Court held, inter alia:
In the case before us, the petitioner merely sat and waited after
the case was submitted for resolution in 1979. It was only in
1989 when the case below was reraffled from the RTC of
Caloocan City to the RTC of Navotas-Malabon and only after
respondent trial judge of the latter court ordered on March 14,
1990 the parties to follow-up and complete the transcript of
stenographic notes that matters started to get moving towards
a resolution of the case. More importantly, it was only after the
new trial judge reset the retaking of the testimonies to
9
November 9, 1990 because of petitioner's absence during the
original setting on October 24, 1990 that the accused suddenly
became zealous of safeguarding his right to speedy trial and
disposition.
xxxx
In the present case, there is no question that petitioner raised
the violation against his own right to speedy disposition only
when the respondent trial judge reset the case for rehearing. It
is fair to assume that he would have just continued to sleep on
his right − a situation amounting to laches − had the
respondent judge not taken the initiative of determining the
non-completion of the records and of ordering the remedy
precisely so he could dispose of the case. The matter could
have taken a different dimension if during all those ten years
between 1979 when accused filed his memorandum and 1989
when the case was reraffled, the accused showed signs of
asserting his right which was granted him in 1987 when the
new constitution took effect, or at least made some overt act
(like a motion for early disposition or a motion to compel the
stenographer to transcribe stenographic notes) that he was not
waiving it. As it is, his silence would have to be interpreted as
a waiver of such right.
While this Court recognizes the right to speedy disposition
quite distinctly from the right to a speedy trial, and although
this Court has always zealously espoused protection from
oppressive and vexatious delays not attributable to the party
involved, at the same time, we hold that a party's individual
rights should not work against and preclude the people's
equally important right to public justice. In the instant case,
three people died as a result of the crash of the airplane that
the accused was flying. It appears to us that the delay in the
disposition of the case prejudiced not just the accused but the
people as well. Since the accused has completely failed to
assert his right seasonably and inasmuch as the respondent
judge was not in a position to dispose of the case on the merits
due to the absence of factual basis, we hold it proper and
equitable to give the parties fair opportunity to obtain (and the
court to dispense) substantial justice in the premises.48
Time runs against the slothful and those who neglect their
rights.49 In fact, the delay in the confirmation of his sentence
was to his own advantage, because without the confirmation
from the President, his sentence cannot be served.
Anent petitioner's other arguments, the same are already
rendered moot and academic due to the above
discussions.1âwphi1
Grave abuse of discretion means such capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction. Mere abuse of discretion is not enough. It must be
grave abuse of discretion, as when the power is exercised in
an arbitrary or despotic manner by reason of passion or
personal hostility, and must be so patent and so gross as to
amount to an evasion of a positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of
law.50 Thus, applying, the earlier disquisitions, this Court finds
that the Office of the President did not commit any grave abuse
of discretion in issuing the Confirmation of Sentence in
question.
WHEREFORE, the Petition for Certiorari dated September 29,
2011 of Major General Carlos F. Garcia, AFP (Ret.) is hereby
DISMISSED. However, applying the provisions of Article 29 of
the Revised Penal Code, the time within which the petitioner
was under preventive confinement should be credited to the
sentence confirmed by the Office of the President, subject to
the conditions set forth by the same law.
SO ORDERED.
MARCELINO A. MAGDADARO, Complainant,
vs.
JUDGE BIENVENIDO R. SANIEL, JR., Regional Trial Court,
Branch 20, Cebu City, Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
This is an administrative complaint filed by complainant
Marcelino A. Magdadaro against respondent Judge Bienvenido
R. Saniel, Jr. of the Regional Trial Court (RTC), Branch 20, Cebu
City, for unreasonable delay, gross ignorance of the law, and
bias and partiality, in violation of the Code of Judicial Conduct,
relative to Civil Case No. CEB-27778, entitled Marcelino
Magdadaro v. Bathala Marketing Industries Inc., Throva Dore
Toboso, Bing Borlasa, Vincent Visara, Antonio Bayato and
Vismin Hilacan.
The antecedent facts of the case are as follows:
Civil Case No. CEB-27778 was an action for breach of contract
with damages1 instituted on May 30, 2002 by complainant
against Bathala Marketing Industries, Inc. (BMII), Throva Dore
Toboso, Bing Borlasa, Vincent Visara, Antonio Bayato, and
Vismin Hilacan (collectively referred to herein as BMII, et al.),
which was raffled to the RTC-Branch 20 of Cebu City, presided
over by respondent. Complainant alleged that he was the
owner of a Nissan car with Plate No. FDX, covered by Philippine
National Bank (PNB)-General Insurers Company, Inc. (GICI)
Comprehensive Insurance Policy No. PC-351003 for the period
May 31, 2001 to May 31, 2002. On September 27, 2001,
complainant’s car figured in an accident at SM Megamall. As
required by PNB-GICI, complainant submitted at least two
repair estimates of the damage that his car sustained. On
September 28, 2001, complainant had his car inspected by the
Nissan Distributors, Inc. (NDI) to determine the extent of the
damage, the parts needed to be replaced, and the repairs to be
undertaken. NDI issued Repair Estimate No. 23811
enumerating specifically the damaged parts, which did not
include the radiator tank. Complainant also obtained a repair
estimate from BMII, which similarly did not mention any
damage to the radiator tank. Pending approval of
complainant’s insurance claim, he continued using his car.
However, on several occasions, the car overheated because
the radiator had no more water. After repeated follow-ups on
his request for repair, the manager of PNB-GICI finally
instructed complainant to deliver his car to BMII. Complainant
informed BMII that on several occasions, he encountered
problems with his car’s radiator. Complainant was told that the
radiator was not included in the repair estimate and would
require a supplemental request and approval before it could be
considered for repair. The repair of complainant’s car lasted for
a month. Complainant was able to get his car on December 26,
2001 after he was required to pay the amount of P9,120.50 as
his share in the repair cost. Immediately after recovery,
complainant drove his car around, but after just 20 to 30
minutes, the car’s engine started to overheat again. This time,
complainant brought his car to Global Motors Cebu
Distributors Corp. (Global Motors) and had the radiator tank
installed by BMII removed in the presence of a BMMI
representative. Global Motors issued a certification stating that
the replacement radiator tank that BMII installed in
complainant’s car was not brand new but a reconditioned old
radiator tank. Complainant had to spend P500.00 for the
services performed by Global Motors, plus he had to buy a
brand new replacement radiator tank from Gemini Parts Center
for P9,500.00. Complainant prayed for judgment awarding in
his favor P29,182.50 as actual damages,P300,000.00 as
unearned profits, P700,000.00 as moral damages, P700,000.00
as exemplary damages, andP250,000.00 as attorney’s fees.
At the end of the trial, respondent directed the parties to submit
their respective memoranda, after which, the case would be
submitted for decision. Complainant submitted his
Memorandum on November 9, 2008, which was received by
RTC-Branch 20 of Cebu City on November 11, 2008.2
Respondent rendered a Decision3 on December 28, 2009
dismissing the complaint in Civil Case No. CEB-27778 for lack
of cause of action against the defendants therein.
Complainant filed a Notice of Appeal4 with RTC-Branch 20 of
Cebu City on February 22, 2010 which was acted upon by said
court only on December 2, 2010.
In the meantime, frustrated with how RTC-Branch 20 of Cebu
City was handling Civil Case No. CEB-27778, complainant filed
10
the present administrative complaint5 against respondent on
October 17, 2011, alleging unreasonable delay by the
respondent in the disposition of Civil Case No. CEB-27778, to
the damage and prejudice of complainant. Complainant alleged
that there was delay in resolving Civil Case No. CEB-27778,
because it took respondent more than one year to decide the
case from the time it was submitted for decision. To make
matters worse, it took the court almost another year to act on
his Notice of Appeal and transmit the records of the case to the
appellate court.
Complainant also asserted that respondent was ignorant of the
law considering that the latter did not know the respective
liabilities and obligations of the parties in a comprehensive car
insurance contract. Complainant further claimed that
respondent was partial or biased in favor of BMII because
respondent, in his Decision dated December 28, 2009 in Civil
Case No. CEB-27778, cited certain statements purportedly
made by complainant when he testified before the trial court,
but which complainant did not actually say; and there were
questions and answers which were incorrectly translated or
transcribed in the Transcript of Stenographic Notes (TSN)
which respondent used against complainant.
In an undated Supplemental Discussion,6 complainant
additionally pointed out that on the first page of the Decision
dated December 28, 2009 in Civil Case No. CEB-27778, there
was a stamp mark "RECEIVED" by the RTC of Cebu City with
the date "12/29/09" and time "8:16." Complainant questioned
why the RTC needed to receive its own Decision. Complainant
suspected that respondent was not the one who actually wrote
the said Decision, but it was written by one of the defendants
and then submitted to, and thus, received by the RTC for
respondent’s signature.
In his Comment7 dated January 17, 2012, respondent alleged
that complainant instituted the instant administrative
complaint because the latter felt resentful towards the former
for rendering the Decision dated December 28, 2009 dismissing
Civil Case No. CEB-27778.
Respondent further argued that the filing of the instant
complaint was premature given that complainant’s appeal of
the Decision dated December 28, 2009 in Civil Case No. CEB-
27778 was still pending before the Court of Appeals.
Respondent cannot be held liable for gross ignorance of the
law for the appellate court may still affirm respondent’s ruling
in the appealed judgment
With respect to the delay in acting upon complainant’s Notice
of Appeal and the transmittal of the records of Civil Case No.
CEB-27778 to the Court of Appeals, respondent explained that
his office was undermanned. There was only one clerk in
charge of the civil and special proceedings cases, both current
and appealed. When a party appeals, machine copies of the
records have to be made. Also, the records must be prepared
for transmission. All these take time especially when appeals
in two or more cases are made at about the same time, as what
had happened in this case.
Notably, respondent did not address at all in his Comment the
more than one year delay in the resolution of Civil Case No.
CEB-27778.
In its Report8 dated March 7, 2012, the Office of the Court
Administrator (OCA) made the following recommendations:
1. The instant complaint against respondent Judge Bienvenido
R. Saniel, Jr., Regional Trial Court, Branch 20, Cebu City, Cebu,
be REDOCKETED as a regular administrative matter; and
2. Respondent Judge Bienvenido R. Saniel, Jr., be HELD
LIABLE for Undue Delay in Rendering a Decision and Undue
Delay in the Proceeding and be FINED in the amount of Twenty
Thousand Pesos (P20,000.00) with a STERN WARNING that a
repetition of the same or any similar act in the future shall merit
a more severe penalty.
The Court then issued a Resolution9 dated July 4, 2012 re-
docketing the administrative complaint against respondent as
a regular administrative matter and requiring the parties to
manifest within 10 days from notice if they were willing to
submit the matter for resolution based on the pleadings filed.
Complainant submitted his Manifestation10 dated September
24, 2012 on October 2, 2021, while respondent filed his
Manifestation11 dated October 8, 2012 on October 11, 2012.
Complainant is allegedly challenging respondent’s Decision
dated December 28, 2009 in Civil Case No. CEB-27778, for
being illegal, rendered with no basis in fact and law. In truth,
however, complainant is already asking this Court, through the
present administrative complaint, to review the merits of
respondent’s Decision – something the Court cannot and will
not do.
In Salvador v. Limsiaco, Jr., 12 the Court described the
instances when a judge may be held administratively liable for
a judicial error, to wit:
It is settled that a judge’s failure to interpret the law or to
properly appreciate the evidence presented does not
necessarily render him administratively liable. Only judicial
errors tainted with fraud, dishonesty, gross ignorance, bad
faith, or deliberate intent to do an injustice will be
administratively sanctioned. To hold otherwise would be to
render judicial office untenable, for no one called upon to try
the facts or interpret the law in the process of administering
justice can be infallible in his judgment. As we held in Balsamo
v. Suan:
It should be emphasized, however, that as a matter of policy, in
the absence of fraud, dishonesty or corruption, the acts of a
judge in his judicial capacity are not subject to disciplinary
action even though such acts are erroneous. He cannot be
subjected to liability – civil, criminal or administrative – for any
of his official acts, no matter how erroneous, as long as he acts
in good faith. In such a case, the remedy of the aggrieved party
is not to file an administrative complaint against the judge but
to elevate the error to the higher court for review and
correction. The Court has to be shown acts or conduct of the
judge clearly indicative of arbitrariness or prejudice before the
latter can be branded the stigma of being biased and partial.
Thus, not every error or mistake that a judge commits in the
performance of his duties renders him liable, unless he is
shown to have acted in bad faith or with deliberate intent to do
an injustice. Good faith and absence of malice, corrupt motives
or improper considerations are sufficient defenses in which a
judge charged with ignorance of the law can find refuge.
(Emphases supplied, citations omitted.)
In this case, there is absolutely no showing that respondent
was motivated by bad faith or ill motive in rendering the
Decision dated December 28, 2009 in Civil Case No. CEB-
27778. Thus, any error respondent may have committed in
dismissing Civil Case No. CEB-27778 may be corrected by
filing an appeal of respondent’s Decision before the Court of
Appeals, not by instituting an administrative case against the
respondent before this Court.
Moreover, records show that complainant did file an appeal of
the Decision dated December 28, 2009 in Civil Case No. CEB-
27778 before the Court of Appeals. Said appeal, docketed as
SP Civil Case No. R-1105, is still pending before the appellate
court. An administrative complaint against a judge cannot be
pursued simultaneously with the judicial remedies accorded to
parties aggrieved by his erroneous order or judgment.
Administrative remedies are neither alternative nor cumulative
to judicial review where such review is available to aggrieved
parties and the same has not yet been resolved with finality.
For until there is a final declaration by the appellate court that
the challenged order or judgment is manifestly erroneous,
there will be no basis to conclude whether respondent judge is
administratively liable.13 The Court more extensively
explained in Flores v. Abesamis14 that:
As everyone knows, the law provides ample judicial remedies
against errors or irregularities being committed by a Trial Court
in the exercise of its jurisdiction. The ordinary remedies
against errors or irregularities which may be regarded as
normal in nature (i.e., error in appreciation or admission of
evidence, or in construction or application of procedural or
substantive law or legal principle) include a motion for
reconsideration (or after rendition of a judgment or final order,
a motion for new trial), and appeal. The extraordinary remedies
against error or irregularities which may be deemed
11
extraordinary in character (i.e., whimsical, capricious, despotic
exercise of power or neglect of duty, etc.) are inter alia the
special civil actions of certiorari, prohibition or mandamus, or
a motion for inhibition, a petition for change of venue, as the
case may be.
Now, the established doctrine and policy is that disciplinary
proceedings and criminal actions against Judges are not
complementary or suppletory of, nor a substitute for, these
judicial remedies, whether ordinary or extraordinary. Resort to
and exhaustion of these judicial remedies, as well as the entry
of judgment in the corresponding action or proceeding, are
pre-requisites for the taking of other measures against the
persons of the judges concerned, whether of civil,
administrative, or criminal [in] nature. It is only after the
available judicial remedies have been exhausted and the
appellate tribunals have spoken with finality, that the door to
an inquiry into his criminal, civil or administrative liability may
be said to have opened, or closed.
Clearly, at this point, there is no basis for complainant’s
administrative charges against respondent for gross ignorance
of the law and knowingly rendering unjust judgment, and said
charges are accordingly dismissed.
However, evidence on record satisfactorily establish
respondent’s guilt for undue delay in resolving Civil Case No.
CEB-27778 and in acting upon complainant’s Notice of Appeal
Section 15(1), Article VIII of the Constitution, mandates that
cases or matters filed with the lower courts must be decided or
resolved within three months from the date they are submitted
for decision or resolution.
As a general principle, rules prescribing the time within which
certain acts must be done, or certain proceedings taken, are
considered absolutely indispensable to the prevention of
needless delays and the orderly and speedy discharge of
judicial business. By their very nature, these rules are regarded
as mandatory.15
Judges are oft-reminded of their duty to promptly act upon
cases and matters pending before their courts. Canon 6,
Section 5 of the New Code of Judicial Conduct for the
Philippine Judiciary dictates that "Judges shall perform all
duties, including the delivery of reserved decisions, efficiently,
fairly and with reasonable promptness." Administrative
Circular No. 1 dated January 28, 1988 once more enjoins all
magistrates to observe scrupulously the periods prescribed in
Section 15, Article VIII of the Constitution, and to act promptly
on all motions and interlocutory matters pending before their
courts.
That judges must decide cases promptly and expeditiously
cannot be overemphasized, for justice delayed is justice
denied. Delay in the disposition of cases undermines the
people's faith and confidence in the judiciary. If they cannot
decide cases within the period allowed by the law, they should
seek extensions from this Court to avoid administrative
liability.16
Unfortunately, respondent failed to live up to the exacting
standards of duty and responsibility that his position requires.
Complainant had already submitted his Memorandum in Civil
Case No. CEB-27778 on November 11, 2008, yet, respondent
rendered a decision in the case only on December 28, 2009.
Indeed, respondent failed to decide Civil Case No. CEB-27778
within the three-month period mandated by the Constitution for
lower courts to decide or resolve cases. Records do not show
that respondent made any previous attempt to report and
request for extension of time to resolve Civil Case No. CEB-
27778. Respondent, without providing a reasonable
explanation for the delay, is deemed to have admitted the
same.
As if to rub salt into complainant’s wound, it took RTC-Branch
20 of Cebu City, presided over by respondent, 10 months to
approve and act upon complainant’s Notice of Appeal. The
Court is not convinced by respondent’s excuse that his court
was understaffed. Even with just one clerk of record in charge
of both civil and special proceedings cases, 10 months is an
unreasonable length of time for photocopying and preparing
records for transmittal to the Court of Appeals. Judges, clerks
of court, and all other court employees share the same duty
and obligation to dispense justice promptly. They should strive
to work together and mutually assist each other to achieve this
goal. But judges have the primary responsibility of maintaining
the professional competence of their staff. Judges should
organize and supervise their court personnel to ensure the
prompt and efficient dispatch of business, and require at all
times the observance of high standards of public service and
fidelity.17
Section 9, Rule 140 of the Rules of Court, as amended by A.M.
No. 01-8-10-SC, classifies undue delay in rendering a decision
or order, or in transmitting the records of a case, as a less
serious charge for which the penalty is suspension from office
without salary and other benefits for one month to three
months, or a fine ofP10,000.00 to P20,000.00.
However, in A.M. No. RTJ-11-2277,18 respondent was already
found guilty of incompetence and undue delay in resolving a
motion and was fined Ten Thousand Pesos (P10,000.00) with a
stern warning that a repetition of the same offense in the future
shall be dealt with more severely.1âwphi1 Since this is
respondent’s second infraction of a similar nature in his 10
years in the judiciary, a penalty of a fine in the amount of
Fifteen Thousand Pesos (P15,000.00) is appropriate under the
circumstances.
WHEREFORE, respondent Judge Bienvenido R. Saniel, Jr. is
found GUILTY of undue delay in rendering a decision and in
transmitting the records of a case and IS FINED m the amount
of Fifteen Thousand (P15,000.00) Pesos.
SO ORDERED.
SPOUSES AUGUSTO G. DACUDAO AND OFELIA R.
DACUDAO, Petitioners,
vs.
SECRETARY OF JUSTICE RAUL M. GONZALES OF THE
DEPARTMENT OF JUSTICE, Respondent.
DECISION
BERSAMIN, J.:
Petitioners - residents of Bacaca Road, Davao City - were
among the investors whom Celso G. Delos Angeles, Jr. and his
associates in the Legacy Group of Companies (Legacy Group)
allegedly defrauded through the Legacy Group's "buy back
agreement" that earned them check payments that were
dishonored. After their written demands for the return of their
investments went unheeded, they initiated a number of
charges for syndicated estafa against Delos Angeles, Jr., et al.
in the Office of the City Prosecutor of Davao City on February
6, 2009. Three of the cases were docketed as NPS Docket No.
XI-02-INV.-09-A-00356, Docket No. XI-02-INV.-09-C-00752, and
Docket No. XI-02-INV.-09-C-00753.1
On March 18, 2009, the Secretary of Justice issued Department
of Justice (DOJ) Order No. 182 (DO No. 182), directing all
Regional State Prosecutors, Provincial Prosecutors, and City
Prosecutors to forward all cases already filed against Delos
Angeles, Jr., et al. to the Secretariat of the DOJ Special Panel
in Manila for appropriate action.
DO No. 182 reads:2
All cases against Celso G. delos Angeles, Jr., et al. under
Legacy Group of Companies, may be filed with the docket
section of the National Prosecution Service, Department of
Justice, Padre Faura, Manila and shall be forwarded to the
Secretariat of the Special Panel for assignment and distribution
to panel members, per Department Order No. 84 dated
February 13, 2009.
However, cases already filed against Celso G. delos Angeles,
Jr. et al. of Legacy group of Companies in your respective
12
offices with the exemption of the cases filed in Cagayan de Oro
City which is covered by Memorandum dated March 2, 2009,
should be forwarded to the Secretariat of the Special Panel at
Room 149, Department of Justice, Padre Faura, Manila, for
proper disposition.
For information and guidance.
Pursuant to DO No. 182, the complaints of petitioners were
forwarded by the Office of the City Prosecutor of Davao City to
the Secretariat of the Special Panel of the DOJ.3
Aggrieved by such turn of events, petitioners have directly
come to the Court via petition for certiorari, prohibition and
mandamus, ascribing to respondent Secretary of Justice grave
abuse of discretion in issuing DO No. 182. They claim that DO
No. 182 violated their right to due process, their right to the
equal protection of the laws, and their right to the speedy
disposition of cases. They insist that DO No. 182 was an
obstruction of justice and a violation of the rule against
enactment of laws with retroactive effect.
Petitioners also challenge as unconstitutional the issuance of
DOJ Memorandum dated March 2, 2009 exempting from the
coverage of DO No. No. 182 all the cases for syndicated estafa
already filed and pending in the Office of the City Prosecutor of
Cagayan de Oro City. They aver that DOJ Memorandum dated
March 2, 2009 violated their right to equal protection under the
Constitution.
The Office of the Solicitor General (OSG), representing
respondent Secretary of Justice, maintains the validity of DO
No. 182 and DOJ Memorandum dated March 2, 2009, and prays
that the petition be dismissed for its utter lack of merit.
Issues
The following issues are now to be resolved, to wit:
1. Did petitioners properly bring their petition for certiorari,
prohibition and mandamus directly to the Court?
2. Did respondent Secretary of Justice commit grave abuse of
discretion in issuing DO No. 182?
3. Did DO No. 182 and DOJ Memorandum dated March 2, 2009
violate petitioners’ constitutionally guaranteed rights?
Ruling
The petition for certiorari, prohibition and mandamus, being
bereft of substance and merit, is dismissed.
Firstly, petitioners have unduly disregarded the hierarchy of
courts by coming directly to the Court with their petition for
certiorari, prohibition and mandamus without tendering therein
any special, important or compelling reason to justify the direct
filing of the petition.
We emphasize that the concurrence of jurisdiction among the
Supreme Court, Court of Appeals and the Regional Trial Courts
to issue the writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction did not give
petitioners the unrestricted freedom of choice of court forum.4
An undue disregard of this policy against direct resort to the
Court will cause the dismissal of the recourse. In Bañez, Jr. v.
Concepcion,5 we explained why, to wit:
The Court must enjoin the observance of the policy on the
hierarchy of courts, and now affirms that the policy is not to be
ignored without serious consequences. The strictness of the
policy is designed to shield the Court from having to deal with
causes that are also well within the competence of the lower
courts, and thus leave time to the Court to deal with the more
fundamental and more essential tasks that the Constitution has
assigned to it. The Court may act on petitions for the
extraordinary writs of certiorari, prohibition and mandamus
only when absolutely necessary or when serious and important
reasons exist to justify an exception to the policy. This was why
the Court stressed in Vergara, Sr. v. Suelto:
x x x. The Supreme Court is a court of last resort, and must so
remain if it is to satisfactorily perform the functions assigned
to it by the fundamental charter and immemorial tradition. It
cannot and should not be burdened with the task of dealing
with causes in the first instance. Its original jurisdiction to
issue the so-called extraordinary writs should be exercised
only where absolutely necessary or where serious and
important reasons exist therefor. Hence, that jurisdiction
should generally be exercised relative to actions or
proceedings before the Court of Appeals, or before
constitutional or other tribunals, bodies or agencies whose
acts for some reason or another are not controllable by the
Court of Appeals. Where the issuance of an extraordinary writ
is also within the competence of the Court of Appeals or a
Regional Trial Court, it is in either of these courts that the
specific action for the writ’s procurement must be presented.
This is and should continue to be the policy in this regard, a
policy that courts and lawyers must strictly observe.
(Emphasis supplied)
In People v. Cuaresma, the Court has also amplified the need
for strict adherence to the policy of hierarchy of courts. There,
noting "a growing tendency on the part of litigants and lawyers
to have their applications for the so-called extraordinary writs,
and sometimes even their appeals, passed upon and
adjudicated directly and immediately by the highest tribunal of
the land," the Court has cautioned lawyers and litigants against
taking a direct resort to the highest tribunal, viz:
x x x. This Court’s original jurisdiction to issue writs of
certiorari (as well as prohibition, mandamus, quo warranto,
habeas corpus and injunction) is not exclusive. It is shared by
this Court with Regional Trial Courts x x x, which may issue the
writ, enforceable in any part of their respective regions. It is
also shared by this Court, and by the Regional Trial Court, with
the Court of Appeals x x x, although prior to the effectivity of
Batas Pambansa Bilang 129 on August 14, 1981, the latter's
competence to issue the extraordinary writs was restricted to
those "in aid of its appellate jurisdiction." This concurrence of
jurisdiction is not, however, to be taken as according to parties
seeking any of the writs an absolute, unrestrained freedom of
choice of the court to which application therefor will be
directed. There is after all a hierarchy of courts. That hierarchy
is determinative of the venue of appeals, and should also serve
as a general determinant of the appropriate forum for petitions
for the extraordinary writs. A becoming regard for that judicial
hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against first level ("inferior")
courts should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals. A direct invocation
of the Supreme Court's original jurisdiction to issue these writs
should be allowed only when there are special and important
reasons therefor, clearly and specifically set out in the petition.
This is established policy. It is a policy that is necessary to
prevent inordinate demands upon the Court’s time and
attention which are better devoted to those matters within its
exclusive jurisdiction, and to prevent further over-crowding of
the Court's docket. Indeed, the removal of the restriction on the
jurisdiction of the Court of Appeals in this regard, supra—
resulting from the deletion of the qualifying phrase, "in aid of
its appellate jurisdiction" — was evidently intended precisely
to relieve this Court pro tanto of the burden of dealing with
applications for the extraordinary writs which, but for the
expansion of the Appellate Court corresponding jurisdiction,
would have had to be filed with it.1âwphi1
xxxx
The Court therefore closes this decision with the declaration
for the information and evidence of all concerned, that it will
not only continue to enforce the policy, but will require a more
strict observance thereof. (Emphasis supplied)
Accordingly, every litigant must remember that the Court is not
the only judicial forum from which to seek and obtain effective
redress of their grievances. As a rule, the Court is a court of
last resort, not a court of the first instance. Hence, every litigant
who brings the petitions for the extraordinary writs of
certiorari, prohibition and mandamus should ever be mindful
of the policy on the hierarchy of courts, the observance of
which is explicitly defined and enjoined in Section 4 of Rule 65,
Rules of Court, viz:
13
Section 4. When and where petition filed. - The petition shall be
filed not later than sixty (60) days from notice of the judgment,
order or resolution. In case a motion for reconsideration or new
trial is timely filed, whether such motion is required or not, the
sixty (60) day period shall be counted from notice of the denial
of the said motion.
The petition shall be filed in the Supreme Court or, if it relates
to the acts or omissions of a lower court or of a corporation,
board, officer or person, in the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the Supreme
Court. It may also be filed in the Court of Appeals whether or
not the same is in the aid of its appellate jurisdiction, or in the
Sandiganbayan if it is in aid of its appellate jurisdiction. If it
involves the acts or omissions of a quasi-judicial agency,
unless otherwise provided by law or these rules, the petition
shall be filed in and cognizable only by the Court of Appeals.
In election cases involving an act or an omission of a municipal
or a regional trial court, the petition shall be filed exclusively
with the Commission on Elections, in aid of its appellate
jurisdiction.6
Secondly, even assuming arguendo that petitioners’ direct
resort to the Court was permissible, the petition must still be
dismissed.
The writ of certiorari is available only when any tribunal, board
or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and
adequate remedy in the ordinary course of law.7 "The sole
office of the writ of certiorari," according to Delos Santos v.
Metropolitan Bank and Trust Company:8
x x x is the correction of errors of jurisdiction, which includes
the commission of grave abuse of discretion amounting to lack
of jurisdiction. In this regard, mere abuse of discretion is not
enough to warrant the issuance of the writ. The abuse of
discretion must be grave, which means either that the judicial
or quasi-judicial power was exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, or
that the respondent judge, tribunal or board evaded a positive
duty, or virtually refused to perform the duty enjoined or to act
in contemplation of law, such as when such judge, tribunal or
board exercising judicial or quasi-judicial powers acted in a
capricious or whimsical manner as to be equivalent to lack of
jurisdiction.
For a special civil action for certiorari to prosper, therefore, the
following requisites must concur, namely: (a) it must be
directed against a tribunal, board or officer exercising judicial
or quasi-judicial functions; (b) the tribunal, board, or officer
must have acted without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack or excess of
jurisdiction; and (c) there is no appeal nor any plain, speedy,
and adequate remedy in the ordinary course of law.9 The
burden of proof lies on petitioners to demonstrate that the
assailed order was issued without or in excess of jurisdiction
or with grave abuse of discretion amounting to lack or excess
of jurisdiction.
Yet, petitioners have not shown a compliance with the
requisites. To start with, they merely alleged that the Secretary
of Justice had acted without or in excess of his jurisdiction.
Also, the petition did not show that the Secretary of Justice was
an officer exercising judicial or quasi-judicial functions.
Instead, the Secretary of Justice would appear to be not
exercising any judicial or quasi-judicial functions because his
questioned issuances were ostensibly intended to ensure his
subordinates’ efficiency and economy in the conduct of the
preliminary investigation of all the cases involving the Legacy
Group. The function involved was purely executive or
administrative.
The fact that the DOJ is the primary prosecution arm of the
Government does not make it a quasi-judicial office or agency.
Its preliminary investigation of cases is not a quasi-judicial
proceeding. Nor does the DOJ exercise a quasi-judicial
function when it reviews the findings of a public prosecutor on
the finding of probable cause in any case. Indeed, in Bautista
v. Court of Appeals,10 the Supreme Court has held that a
preliminary investigation is not a quasi-judicial proceeding,
stating:
x x x the prosecutor in a preliminary investigation does not
determine the guilt or innocence of the accused. He does not
exercise adjudication nor rule-making functions. Preliminary
investigation is merely inquisitorial, and is often the only
means of discovering the persons who may be reasonably
charged with a crime and to enable the fiscal to prepare his
complaint or information. It is not a trial of the case on the
merits and has no purpose except that of determining whether
a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof. While the
fiscal makes that determination, he cannot be said to be acting
as a quasi-court, for it is the courts, ultimately, that pass
judgment on the accused, not the fiscal.11
There may be some decisions of the Court that have
characterized the public prosecutor’s power to conduct a
preliminary investigation as quasi-judicial in nature. Still, this
characterization is true only to the extent that the public
prosecutor, like a quasi-judicial body, is an officer of the
executive department exercising powers akin to those of a
court of law.
But the limited similarity between the public prosecutor and a
quasi-judicial body quickly endsthere. For sure, a quasi-
judicial body is an organ of government other than a court of
law or a legislative office that affects the rights of private
parties through either adjudication or rule-making; it performs
adjudicatory functions, and its awards and adjudications
determine the rights of the parties coming before it; its
decisions have the same effect as the judgments of a court of
law. In contrast, that is not the effect whenever a public
prosecutor conducts a preliminary investigation to determine
probable cause in order to file a criminal information against a
person properly charged with the offense, or whenever the
Secretary of Justice reviews the public prosecutor’s orders or
resolutions.
Petitioners have self-styled their petition to be also for
prohibition. However, we do not see how that can be. They have
not shown in their petition in what manner and at what point
the Secretary of Justice, in handing out the assailed issuances,
acted without or in excess of his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction.
On the other hand, we already indicated why the issuances
were not infirmed by any defect of jurisdiction. Hence, the
blatant omissions of the petition transgressed Section 2, Rule
65 of the Rules of Court, to wit:
Section 2. Petition for prohibition. — When the proceedings of
any tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions, are
without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging
the facts with certainty and praying that judgment be rendered
commanding the respondent to desist from further
proceedings in the action or matter specified therein, or
otherwise granting such incidental reliefs as law and justice
may require.
The petition shall likewise be accompanied by a certified true
copy of the judgment, order or resolution subject thereof,
copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as
provided in the third paragraph of section 3, Rule 46. (2a)
Similarly, the petition could not be one for mandamus, which
is a remedy available only when "any tribunal, corporation,
board, officer or person unlawfully neglects the performance
of an act which the law specifically enjoins as a duty resulting
from an office, trust, or station, or unlawfully excludes another
from the use and enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper
court."12 The main objective of mandamus is to compel the
performance of a ministerial duty on the part of the respondent.
Plainly enough, the writ of mandamus does not issue to control
or review the exercise of discretion or to compel a course of
conduct,13 which, it quickly seems to us, was what petitioners
14
would have the Secretary of Justice do in their favor.
Consequently, their petition has not indicated how and where
the Secretary of Justice’s assailed issuances excluded them
from the use and enjoyment of a right or office to which they
were unquestionably entitled.
Thirdly, there is no question that DO No. 182 enjoyed a strong
presumption of its validity. In ABAKADA Guro Party List v.
Purisima,14 the Court has extended the presumption of validity
to legislative issuances as well as to rules and regulations
issued by administrative agencies, saying:
Administrative regulations enacted by administrative agencies
to implement and interpret the law which they are entrusted to
enforce have the force of law and are entitled to respect. Such
rules and regulations partake of the nature of a statute and are
just as binding as if they have been written in the statute itself.
As such, they have the force and effect of law and enjoy the
presumption of constitutionality and legality until they are set
aside with finality in an appropriate case by a competent
court.15
DO No. 182 was issued pursuant to Department Order No. 84
that the Secretary of Justice had promulgated to govern the
performance of the mandate of the DOJ to "administer the
criminal justice system in accordance with the accepted
processes thereof"16 as expressed in Republic Act No. 10071
(Prosecution Service Act of 2010) and Section 3, Chapter I, Title
III and Section 1, Chapter I, Title III of Book IV of Executive
Order 292 (Administrative Code of 1987).
To overcome this strong presumption of validity of the
questioned issuances, it became incumbent upon petitioners
to prove their unconstitutionality and invalidity, either by
showing that the Administrative Code of 1987 did not authorize
the Secretary of Justice to issue DO No. 182, or by
demonstrating that DO No. 182 exceeded the bounds of the
Administrative Code of 1987 and other pertinent laws. They did
not do so. They must further show that the performance of the
DOJ’s functions under the Administrative Code of 1987 and
other pertinent laws did not call for the impositions laid down
by the assailed issuances. That was not true here, for DO No
182 did not deprive petitioners in any degree of their right to
seek redress for the alleged wrong done against them by the
Legacy Group. Instead, the issuances were designed to assist
petitioners and others like them expedite the prosecution, if
warranted under the law, of all those responsible for the wrong
through the creation of the special panel of state prosecutors
and prosecution attorneys in order to conduct a nationwide
and comprehensive preliminary investigation and prosecution
of the cases. Thereby, the Secretary of Justice did not act
arbitrarily or oppressively against petitioners.
Fourthly, petitioners attack the exemption from the
consolidation decreed in DO No. 182 of the cases filed or
pending in the Office of the City Prosecutor of Cagayan de Oro
City, claiming that the exemption traversed the constitutional
guaranty in their favor of the equal protection of law.17
The exemption is covered by the assailed DOJ Memorandum
dated March 2, 2009, to wit:
It has come to the attention of the undersigned that cases for
syndicated estafa were filed with your office against officers of
the Legacy Group of Companies. Considering the distance of
the place of complainants therein to Manila, your Office is
hereby exempted from the directive previously issued by the
undersigned requiring prosecution offices to forward the
records of all cases involving Legacy Group of Companies to
the Task Force.
Anent the foregoing, you are hereby directed to conduct
preliminary investigation of all cases involving the Legacy
Group of Companies filed in your office with dispatch and to
file the corresponding informations if evidence warrants and to
prosecute the same in court.
Petitioners’ attack deserves no consideration. The equal
protection clause of the Constitution does not require the
universal application of the laws to all persons or things
without distinction; what it requires is simply equality among
equals as determined according to a valid classification.18
Hence, the Court has affirmed that if a law neither burdens a
fundamental right nor targets a suspect class, the
classification stands as long as it bears a rational relationship
to some legitimate government end.19
That is the situation here. In issuing the assailed DOJ
Memorandum dated March 2, 2009, the Secretary of Justice
took into account the relative distance between Cagayan de
Oro, where many complainants against the Legacy Group
resided, and Manila, where the preliminary investigations
would be conducted by the special panel. He also took into
account that the cases had already been filed in the City
Prosecutor’s Office of Cagayan de Oro at the time he issued
DO No. 182. Given the considerable number of complainants
residing in Cagayan de Oro City, the Secretary of Justice was
fully justified in excluding the cases commenced in Cagayan
de Oro from the ambit of DO No. 182. The classification taken
into consideration by the Secretary of Justice was really valid.
Resultantly, petitioners could not inquire into the wisdom
behind the exemption upon the ground that the non-application
of the exemption to them would cause them some
inconvenience.
Fifthly, petitioners contend that DO No. 182 violated their right
to the speedy disposition of cases guaranteed by the
Constitution. They posit that there would be considerable delay
in the resolution of their cases that would definitely be "a
flagrant transgression of petitioners’ constitutional rights to
speedy disposition of their cases."20
We cannot favor their contention.
In The Ombudsman v. Jurado,21 the Court has clarified that
although the Constitution guarantees the right to the speedy
disposition of cases, such speedy disposition is a flexible
concept. To properly define that concept, the facts and
circumstances surrounding each case must be evaluated and
taken into account. There occurs a violation of the right to a
speedy disposition of a case only when the proceedings are
attended by vexatious, capricious, and oppressive delays, or
when unjustified postponements of the trial are sought and
secured, or when, without cause or justifiable motive, a long
period of time is allowed to elapse without the party having his
case tried.22 It is cogent to mention that a mere mathematical
reckoning of the time involved is not determinant of the
concept.23
The consolidation of the cases against Delos Angeles, Jr., et
al. was ordered obviously to obtain expeditious justice for the
parties with the least cost and vexation to them. Inasmuch as
the cases filed involved similar or related questions to be dealt
with during the preliminary investigation, the Secretary of
Justice rightly found the consolidation of the cases to be the
most feasible means of promoting the efficient use of public
resources and of having a comprehensive investigation of the
cases.
On the other hand, we do not ignore the possibility that there
would be more cases reaching the DOJ in addition to those
already brought by petitioners and other parties. Yet, any
delays in petitioners’ cases occasioned by such other and
subsequent cases should not warrant the invalidation of DO
No. 182. The Constitution prohibits only the delays that are
unreasonable, arbitrary and oppressive, and tend to render
rights nugatory.24 In fine, we see neither undue delays, nor any
violation of the right of petitioners to the speedy disposition of
their cases.
Sixthly, petitioners assert that the assailed issuances should
cover only future cases against Delos Angeles, Jr., et al., not
those already being investigated. They maintain that DO No.
182 was issued in violation of the prohibition against passing
laws with retroactive effect.
Petitioners’ assertion is baseless.
As a general rule, laws shall have no retroactive effect.
However, exceptions exist, and one such exception concerns
a law that is procedural in nature. The reason is that a remedial
statute or a statute relating to remedies or modes of procedure
does not create new rights or take away vested rights but only
operates in furtherance of the remedy or the confirmation of
already existing rights.25 A statute or rule regulating the
procedure of the courts will be construed as applicable to
15
actions pending and undetermined at the time of its passage.
All procedural laws are retroactive in that sense and to that
extent. The retroactive application is not violative of any right
of a person who may feel adversely affected, for, verily, no
vested right generally attaches to or arises from procedural
laws.
Finally, petitioners have averred but failed to establish that DO
No. 182 constituted obstruction of justice. This ground of the
petition, being unsubstantiated, was unfounded.
Nonetheless, it is not amiss to reiterate that the authority of the
Secretary of Justice to assume jurisdiction over matters
involving the investigation of crimes and the prosecution of
offenders is fully sanctioned by law. Towards that end, the
Secretary of Justice exercises control and supervision over all
the regional, provincial, and city prosecutors of the country;
has broad discretion in the discharge of the DOJ’s functions;
and administers the DOJ and its adjunct offices and agencies
by promulgating rules and regulations to carry out their
objectives, policies and functions.
Consequently, unless and until the Secretary of Justice acts
beyond the bounds of his authority, or arbitrarily, or
whimsically, or oppressively, any person or entity who may feel
to be thereby aggrieved or adversely affected should have no
right to call for the invalidation or nullification of the rules and
regulations issued by, as well as other actions taken by the
Secretary of Justice.
WHEREFORE, the Court DISMISSES the omnibus petition for
certiorari, prohibition, and mandamus for lack of merit.
Petitioners shall pay the costs of suit.
SO ORDERED.
ISABELO A. BRAZA, Petitioner,
vs.
THE HONORABLE SANDIGANBA Y AN (1st Division),
Respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari filed by petitioner Isabelo Braza
(Braza) seeking to reverse and set aside the October 12, 2009
Resolution 1 of the Sandiganbayan in Criminal Case No. SB-08-
CRM-0275, entitled People v. Robert G. Lala, et al., as well as
its October 22, 2010 Resolution,2 denying his motion for
reconsideration.
The Philippines was assigned the hosting rights for the 12th
Association of Southeast Asian Nations (ASEAN)Leaders
Summit scheduled in December 2006. In preparation for this
international diplomatic event with the province of Cebu as the
designated venue, the Department of Public Works and
Highways (DPWH) identified projects relative to the
improvement and rehabilitation of roads and installation of
traffic safety devices and lighting facilities. The then Acting
Secretary of the DPWH, Hermogenes E. Ebdane, approved the
resort to alternative modes of procurement for the
implementation of these projects due to the proximity of the
ASEAN Summit.
One of the ASEAN Summit-related projects to be undertaken
was the installation of street lighting systems along the
perimeters of the Cebu International Convention Center in
Mandaue City and the ceremonial routes of the Summit to
upgrade the appearance of the convention areas and to
improve night-time visibility for security purposes. Four (4) out
of eleven (11) street lighting projects were awarded to FABMIK
Construction and Equipment Supply Company, Inc. (FABMIK)
and these were covered by Contract I.D. Nos. 06H0021,
06H00049, 06H00050, and 06H00052. Contract I.D. No.
06H00050, the subject transaction of this case, involved the
supply and installation of street lighting facilities along the
stretch of Mandaue-Mactan Bridge 1 to Punta Engaño Section
in Lapu-Lapu City, with an estimated project cost of
P83,950,000.00.
With the exception of the street lighting project covered by
Contract I.D. No. 06H0021, the three other projects were bidded
out only on November 28, 2006 or less than two (2) weeks
before the scheduled start of the Summit. Thereafter, the
DPWH and FABMIK executed a Memorandum of Agreement
(MOA) whereby FABMIK obliged itself to implement the
projects at its own expense and the DPWH to guarantee the
payment of the work accomplished. FABMIK was able to
complete the projects within the deadline of ten (10) days
utilizing its own resources and credit facilities. The schedule of
the international event, however, was moved by the national
organizers to January 9-15, 2007 due to typhoon Seniang which
struck Cebu for several days.
After the summit, a letter-complaint was filed before the Public
Assistance and Corruption Prevention Office(PACPO),
Ombudsman –Visayas, alleging that the ASEAN Summit street
lighting projects were overpriced. A panel composing of three
investigators conducted a fact-finding investigation to
determine the veracity of the accusation. Braza, being the
president of FABMIK, was impleaded as one of the
respondents. On March 16, 2007, the Ombudsman directed the
Department of Budget and Management (DBM) and the DPWH
to cease and desist from releasing or disbursing funds for the
projects in question.3
On March 23, 2007, the fact-finding body issued its Evaluation
Report4 recommending the filing of charges for violation of
Section 3(e) of Republic Act (R.A.) No. 3019, otherwise known
as the Anti-Graft and Corrupt Practice Act, against the DPWH
officials and employees in Region VII and the cities of Mandaue
and Lapu-lapu, and private contractors FABMIK and GAMPIK
Construction and Development, Inc. (GAMPIK). This report was
filed before the Office of the Ombudsman-Visayas
(OMBVisayas) for the conduct of a preliminary investigation
and was docketed therein as OMB-V-C-07-124-C, entitled
PACPO-OMB-Visayas v. Lala, et. al.
After the preliminary investigation, the OMB-Visayas issued its
Resolution,5 dated January 24, 2008, finding probable cause to
indict the concerned respondents for violation of Section 3(g)
of R.A. No. 3019. It was found that the lampposts and other
lighting facilities installed were indeed highly overpriced after
a comparison of the costs of the materials indicated in the
Program of Works and Estimates (POWE) with those in the
Bureau of Customs (BOC) documents; and that the contracts
entered into between the government officials and the private
contractors were manifestly and grossly disadvantageous to
the government.
Subsequently, the OMB-Visayas filed several informations
before the Sandiganbayan for violation of Sec. 3(g) of R.A. 3019
against the officials of DPWH Region VII, the officials of the
cities of Mandaue and Lapu-lapu and private contractors,
FABMIK President Braza and GAMPIK Board Chairman
Gerardo S. Surla (Surla). The Information docketed as SB-08-
CRM-02756 (first information) which involved the street lighting
project covered by Contract I.D. No. 06H00050 with FABMIK,
was raffled to the First Division of the Sandiganbayan. It was
alleged therein that Braza acted in conspiracy with the public
officials and employees in the commission of the crime
charged.
On June 6, 2008, Braza was arraigned as a precondition to his
authorization to travel abroad. He entered a plea of "not guilty."
On August 14, 2008, the motions for reinvestigation filed by
Arturo Radaza (Radaza), the Mayor of Lapu-lapu City, and the
DPWH officials were denied by the Sandiganbayan for lack of
merit. Consequently, they moved for the reconsideration of
said resolution.7 On August 27, 2008, Braza filed a motion for
reinvestigation8 anchored on the following grounds: (1) the
import documents relied upon by the OMB-Visayas were
spurious and falsified; (2) constituted new evidence, if
considered, would overturn the finding of probable cause; and
(3) the finding of overpricing was bereft of factual and legal
basis as the same was not substantiated by any independent
16
canvass of prevailing market prices of the subject lampposts.
He prayed for the suspension of the proceedings of the case
pending such reinvestigation. The Sandiganbayan treated
Braza's motion as his motion for reconsideration of its August
14, 2008 Resolution.
On November 13, 2008, Braza filed a manifestation9 to make of
record that he was maintaining his previous plea of "not guilty"
without any condition.
During the proceedings held on November 3, 2008, the
Sandiganbayan reconsidered its August 14, 2008 resolution
and directed a reinvestigation of the case.10 According to the
anti-graft court, the allegations to the effect that no
independent canvass was conducted and that the charge of
overpricing was based on falsified documents were serious
reasons enough to merit a reinvestigation of the case. The
Sandiganbayan said that it could be reasonably inferred from
the July 30, 2008 Order of the Ombudsman in OMB-V-C-07-
0124-C that the latter would not object to the conduct of a
reinvestigation of all the cases against the accused.
Braza filed his Manifestation,11 dated February 2, 2009,
informing the Sandiganbayan of his intention to abandon his
previous motion for reinvestigation. He opined that the
prosecution would merely use the reinvestigation proceedings
as a means to engage in a second unbridled fishing expedition
to cure the lack of probable cause.
On March 23, 2009, Braza filed a motion12 in support of the
abandonment of reinvestigation with a plea to vacate
Information, insisting that the further reinvestigation of the
case would only afford the prosecution a second round of
preliminary investigation which would be vexatious,
oppressive and violative of his constitutional right to a speedy
disposition of his case, warranting its dismissal with prejudice.
After concluding its reinvestigation of the case, the OMB-
Visayas issued its Resolution,13 dated May 4,
2009,(Supplemental Resolution) which upheld the finding of
probable cause but modified the charge from violation of Sec.
3(g) of R.A. No. 301914 to violation of Sec. 3(e)15 of the same
law. Accordingly, the prosecution filed its Manifestation and
Motion to Admit Amended Information16 on May 8, 2009.
On July 1, 2009, Braza filed his Comment (to the motion to
admit amended information) with Plea for Discharge and/or
Dismissal of the Case.17 He claimed that the first information
had been rendered ineffective or had been deemed vacated by
the issuance of the Supplemental Resolution and, hence, his
discharge from the first information was in order. By way of an
alternative prayer, Braza sought the dismissal of the case with
prejudice claiming that his right to a speedy disposition of the
case had been violated and that the Supplemental Resolution
failed to cure the fatal infirmities of the January 24, 2008
Resolution since proof to support the allegation of overpricing
remained wanting. Braza averred that he could not be
arraigned under the second information without violating the
constitutional proscription against double jeopardy.
On October 12, 2009, the Sandiganbayan issued the first
assailed resolution admitting the Amended Information,18
dated May 4, 2009, (second Information) and denying Braza's
plea for dismissal of the criminal case. The Sandiganbayan
ruled that Braza would not be placed in double jeopardy should
he be arraigned anew under the second information because
his previous arraignment was conditional. It continued that
even if he was regularly arraigned, double jeopardy would still
not set in because the second information charged an offense
different from, and which did not include or was necessarily
included in, the original offense charged. Lastly, it found that
the delay in the reinvestigation proceedings could not be
characterized as vexatious, capricious or oppressive and that
it could not be attributed to the prosecution. The dispositive
portion of the said resolution reads:
WHEREFORE, premises considered, the Motion to Admit
Attached Amended Information filed by the prosecution is
hereby GRANTED. The Amended Information charging all the
accused therein with violation of Sec. 3 (e) of R.A. 3019, being
the proper offense, is hereby ADMITTED.
Consequently, accused Braza's Alternative Relief for Dismissal
of the Case is hereby DENIED.
Let the arraignment of all the accused in the Amended
Information be set on November 18, 2009, at 8:30 in the
morning.
SO ORDERED.19
On November 6, 2009, Braza moved for reconsideration with
alternative motion to quash the information20reiterating his
arguments that his right against double jeopardy and his right
to a speedy disposition of the case were violated warranting
the dismissal of the criminal case with prejudice. In the
alternative, Braza moved for the quashal of the second
information vigorously asserting that the same was fatally
defective for failure to allege any actual, specified and
quantifiable injury sustained by the government as required by
law for indictment under Sec. 3(e) of R.A. 3019, and that the
charge of overpricing was unfounded.
On October 22, 2010, the Sandiganbayan issued the second
assailed resolution stating, among others, the denial of Braza's
Motion to Quash the information. The anti-graft court ruled that
the Amended Information was sufficient in substance as to
inform the accused of the nature and causes of accusations
against them. Further, it held that the specifics sought to be
alleged in the Amended Information were evidentiary in nature
which could be properly presented during the trial on the
merits. The Sandiganbayan also stated that it was possible to
establish the fact of overpricing if it would be proven that the
contract price was excessive compared to the price for which
FABMIK purchased the street lighting facilities from its
supplier. Braza was effectively discharged from the first
Information upon the filing of the second Information but said
discharge was without prejudice to, and would not preclude,
his prosecution for violation of Sec. 3(e) of R.A. No. 3019. It
added that his right to speedy disposition of the case was not
violated inasmuch as the length of time spent for the
proceedings was in compliance with the procedural
requirements of due process. The Sandiganbayan, however,
deemed it proper that a new preliminary investigation be
conducted under the new charge. Accordingly, the
Sandiganbayan disposed:
WHEREFORE, in the light of all the foregoing, the separate
omnibus motions of accused-movant Radaza and accused-
movants Bernido, Manggis and Ojeda, insofar as the sought
preliminary investigation is concerned isGRANTED.
Accordingly, this case is hereby remanded to the Office of the
Ombudsman/Special Prosecutor for preliminary investigation
of violation of Section 3(e) of RA 3019. The said office/s are
hereby ordered to complete the said preliminary investigation
and to submit to the Court the result of the said investigation
within sixty (60) days from notice.
However, the Motion for Bill of Particulars of accusedmovants
Lala, Dindin Alvizo, Fernandez, Bagolor, Galang and Diano, the
Motion for Quashal of Information of accused-movants
Bernido, Manggis and Ojeda, and accused-movant Braza's
Motion to Quash, are hereby DENIED for lack of merit.
SO ORDERED.21
ISSUES
Undaunted, Braza filed this petition for certiorari ascribing
grave abuse of discretion on the Sandiganbayan for issuing the
Resolutions, dated October 12, 2009 and October 22, 2010,
respectively. Braza raised the following issues:
A) The Sandiganbayan committed grave abuse of discretion in
sustaining the withdrawal of the Information in violation of the
constitutional guarantee against double jeopardy, the
petitioner having entered a valid plea and vigorously objected
to any further conduct of reinvestigation and amendment of
Information.
B) The Sandiganbayan acted with grave abuse of discretion in
allowing the withdrawal and amendment of the Information
17
without prejudice, the proceedings being fraught with flip-
flopping, prolonged and vexatious determination of probable
cause, thereby violating petitioner's constitutional right to
speedy disposition of his case, warranting his discharge with
prejudice regardless of the nature of his previous arraignment.
C) The Sandiganbayan acted with grave abuse of discretion in
denying the motion to quash Amended Information, there
being no allegation of actual, specified, or quantifiable injury
sustained by the government as required by law (in cases
involving Sec. 3 (e) of RA 3019) with the Reinvestigation Report
itself admitting on record that the government has not paid a
single centavo for the fully-implemented project.
D) The Sandiganbayan acted with grave abuse of discretion in
sustaining the new indictment under Sec. 3(e) of R.A. 3019
without threshing out the fatal infirmities that hounded the
previous finding of overpricing – the erroneous reliance on
spurious import documents and lack of price canvass to
establish prevailing market price – thereby rendering the new
Resolution fatally defective.22
Essentially, Braza posits that double jeopardy has already set
in on the basis of his "not guilty" plea in the first Information
and, thus, he can no longer be prosecuted under the second
Information. He claims that his arraignment was unconditional
because the conditions in the plea were ineffective for not
being unmistakable and categorical. He theorizes that the
waiver of his constitutional guarantee against double jeopardy
was not absolute as the same was qualified by the phrase "as
a result of the pending incidents." He argues that even granting
that his arraignment was indeed conditional, the same had
become simple and regular when he validated and confirmed
his plea of "not guilty" by means of a written manifestation
which removed any further condition attached to his previous
plea.
Braza submits that the prolonged, vexatious and flip-flopping
determination of probable cause violated his right to a speedy
disposition of the case which would justify the dismissal of the
case with prejudice. Further, he assails the sufficiency of the
allegation of facts in the second Information for failure to assert
any actual and quantifiable injury suffered by the government
in relation to the subject transaction. He points out that the
admission in the Reinvestigation Report to the effect that the
government had not paid a single centavo to FABMIK for the
fully implemented project, had rendered as invalid, baseless
and frivolous any indictment or prosecution for violation of
Sec. 3(e) of R.A. 3019. Braza insists that the Supplemental
Resolution of the OMB-Visayas was fatally defective
considering that the Ombudsman did not conduct an
independent price canvass of the prevailing market price of the
subject lampposts and merely relied on the spurious and false
BOC documents to support its conclusion of overpricing.
By way of comment,23 the Office of the Special Prosecutor
(OSP) retorts that the withdrawal of the first information and
the subsequent filing of the second information did not place
Braza in double jeopardy or violate his right to speedy
disposition of the case. The OSP reasons that Braza waived his
right to invoke double jeopardy when he agreed to be
conditionally arraigned. It further argues that even granting
that the arraignment was unconditional, still double jeopardy
would not lie because the charge of violation of Section 3(e) of
R.A. 3019 in the second information is a different offense with
different elements from that of the charge of violation of Sec.
3(g) in the first Information. The OSP posits that his right to a
speedy disposition of the case was not violated as the delay in
the proceedings cannot be considered as oppressive,
vexatious or capricious. According to the OSP, such delay was
precipitated by the many pleadings filed by the accused,
including Braza, and was in fact incurred to give all the accused
the opportunities to dispute the accusation against them in the
interest of fairness and due process.
The OSP also submits that proof of the actual injury suffered
by the government and that of overpricing, are superfluous and
immaterial for the determination of probable cause because the
alleged mode for committing the offense charged in the second
Information was by giving any private party unwarranted
benefit, advantage or preference. The second Information
sufficiently alleges all the elements of the offense for which the
accused were indicted.
The Court’s Ruling
Simply put, the pivotal issue in this case is whether the
Sandiganbayan acted with grave abuse of discretion in
denying Braza's plea for the dismissal of Case No. SB-08-CRM-
0275 and his subsequent motion to quash the second
Information, particularly on the grounds of double jeopardy,
violation of his right to a speedy disposition of the case, and
failure of the Information to state every single fact to constitute
all the elements of the offense charged.
The petition is devoid of merit.
It is Braza’s stance that his constitutional right under the
double jeopardy clause bars further proceedings in Case No.
SB-08-CRM-0275. He asserts that his arraignment under the
first information was simple and unconditional and, thus, an
arraignment under the second information would put him in
double jeopardy.
The Court is not persuaded. His argument cannot stand
scrutiny.
The June 6, 2008 Order24 of the Sandiganbayan reads:
This morning, accused Isabelo A. Braza was summoned to
arraignment as a precondition in authorizing his travel. The
arraignment of the accused was conditional in the sense that if
the present Information will be amended as a result of the
pending incidents herein, he cannot invoke his right against
double jeopardy and he shall submit himself to arraignment
anew under such Amended Information. On the other hand, his
conditional arraignment shall not prejudice his right to
question such Amended Information, if one shall be filed.
These conditions were thoroughly explained to the accused
and his counsel. After consultation with his counsel, the
accused willingly submitted himself to such conditional
arraignment.
Thereafter, the accused, with the assistance of counsel, was
arraigned by reading the Information to him in English, a
language understood by him. Thereafter, he pleaded Not Guilty
to the charge against him. [Emphases supplied]
While it is true that the practice of the Sandiganbayan of
conducting "provisional" or "conditional" arraignment of the
accused is not specifically sanctioned by the Revised Internal
Rules of the Procedure of the Sandiganbayan or by the regular
Rules of Procedure, this Court had tangentially recognized
such practice in People v. Espinosa,25provided that the
alleged conditions attached to the arraignment should be
"unmistakable, express, informed and enlightened." The Court
further required that the conditions must be expressly stated
in the order disposing of arraignment, otherwise, it should be
deemed simple and unconditional.26
A careful perusal of the record in the case at bench would
reveal that the arraignment of Braza under the first information
was conditional in nature as it was a mere accommodation in
his favor to enable him to travel abroad without the
Sandiganbayan losing its ability to conduct trial in absentia in
case he would abscond. The Sandiganbayan's June 6, 2008
Order clearly and unequivocally states that the conditions for
Braza's arraignment as well as his travel abroad, that is, that if
the Information would be amended, he shall waive his
constitutional right to be protected against double jeopardy
and shall allow himself to be arraigned on the amended
information without losing his right to question the same. It
appeared that these conditions were duly explained to Braza
and his lawyer by the anti-graft court. He was afforded time to
confer and consult his lawyer. Thereafter, he voluntarily
submitted himself to such conditional arraignment and entered
a plea of "not guilty" to the offense of violation of Sec. 3(g) of
R.A. No. 3019.
Verily, the relinquishment of his right to invoke double
jeopardy had been convincingly laid out. Such waiver was
clear, categorical and intelligent. It may not be amiss to state
that on the day of said arraignment, one of the incidents
pending for the consideration of the Sandiganbayan was an
omnibus motion for determination of probable cause and for
quashal of information or for reinvestigation filed by accused
18
Radaza. Accordingly, there was a real possibility that the first
information would be amended if said motion was granted.
Although the omnibus motion was initially denied, it was
subsequently granted upon motion for reconsideration, and a
reinvestigation was ordered to be conducted in the criminal
case.
Having given his conformity and accepted the conditional
arraignment and its legal consequences, Braza is now
estopped from assailing its conditional nature just to
conveniently avoid being arraigned and prosecuted of the new
charge under the second information. Besides, in consonance
with the ruling in Cabo v. Sandiganbayan,27this Court cannot
now allow Braza to renege and turn his back on the above
conditions on the mere pretext that he affirmed his conditional
arraignment through a pleading denominated as Manifestation
filed before the Sandiganbayan on November 13, 2008. After all,
there is no showing that the anti-graft court had acted on, much
less noted, his written manifestation.
Assuming, in gratia argumenti, that there was a valid and
unconditional plea, Braza cannot plausibly rely on the principle
of double jeopardy to avoid arraignment under the second
information because the offense charged therein is different
and not included in the offense charged under the first
information. The right against double jeopardy is enshrined in
Section 21 of Article III of the Constitution, which reads:
No person shall be twice put in jeopardy of punishment for the
same offense. If an act is punished by a law and an ordinance
conviction or acquittal under either shall constitute a bar to
another prosecution for the same act.
This constitutionally mandated right is procedurally buttressed
by Section 17 of Rule 11728 of the Revised Rules of Criminal
Procedure. To substantiate a claim for double jeopardy, the
accused has the burden of demonstrating the following
requisites: (1) a first jeopardy must have attached prior to the
second; (2) the first jeopardy must have been validly
terminated; and (3) the second jeopardy must be for the same
offense as in the first.29 As to the first requisite, the first
jeopardy attaches only (a) after a valid indictment; (b) before a
competent court; (c) after arraignment, (d) when a valid plea
has been entered; and (e) when the accused was acquitted or
convicted, or the case was dismissed or otherwise terminated
without his express consent.30 The test for the third element is
whether one offense is identical with the other or is an attempt
to commit it or a frustration thereof; or whether the second
offense includes or is necessarily included in the offense
charged in the first information.
Braza, however, contends that double jeopardy would still
attach even if the first information charged an offense different
from that charged in the second information since both
charges arose from the same transaction or set of facts.
Relying on the antiquated ruling of People v. Del Carmen,31
Braza claims that an accused should be shielded against being
prosecuted for several offenses made out from a single act.
It appears that Braza has obviously lost sight, if he is not
altogether aware, of the ruling in Suero v. People32where it was
held that the same criminal act may give rise to two or more
separate and distinct offenses; and that no double jeopardy
attaches as long as there is variance between the elements of
the two offenses charged. The doctrine of double jeopardy is a
revered constitutional safeguard against exposing the accused
from the risk of being prosecuted twice for the same offense,
and not a different one.
There is simply no double jeopardy when the subsequent
information charges another and different offense, although
arising from the same act or set of acts.33 Prosecution for the
same act is not prohibited. What is forbidden is the prosecution
for the same offense.
In the case at bench, there is no dispute that the two charges
stemmed from the same transaction. A comparison of the
elements of violation of Sec. 3(g) of R.A. No. 3019 and those of
violation of Sec. 3(e) of the same law, however, will disclose
that there is neither identity nor exclusive inclusion between
the two offenses. For conviction of violation of Sec. 3(g), the
prosecution must establish the following elements:
1. The offender is a public officer;
2. He entered into a contract or transaction in behalf of the
government; and
3. The contract or transaction is manifestly and grossly
disadvantageous to the government.34
On the other hand, an accused may be held criminally liable of
violation of Section 3(e) of R.A. No. 3019, provided that the
following elements are present:
1. The accused must be a public officer discharging
administrative, judicial or official functions;
2. The accused must have acted with manifest partiality,
evident bad faith or gross inexcusable negligence; and
3. His action caused undue injury to any party, including the
government or gave any private party unwarranted benefits,
advantage or preference in the discharge of his functions.35
Although violation of Sec. 3(g) of R.A. No. 3019 and violation of
Sec. 3(e) of the same law share a common element, the
accused being a public officer, the latter is not inclusive of the
former. The essential elements of each are not included among
or do not form part of those enumerated in the other. For
double jeopardy to exist, the elements of one offense should
ideally encompass or include those of the other. What the rule
on double jeopardy prohibits refers to identity of elements in
the two offenses.36
Next, Braza contends that the long delay that characterized the
proceedings for the determination of probable cause has
resulted in the transgression of his constitutional right to a
speedy disposition of the case. According to him, the
proceedings have unquestionably been marred with vexatious,
capricious and oppressive delay meriting the dismissal of Case
No. SB-08-CRM-0275. Braza claims that it took the OMB more
than two (2) years to charge him and his co-accused with
violation of Section 3(e) in the second information.
The petitioner's contention is untenable.
Section 16, Article III of the Constitution declares in no
uncertain terms that "[A]ll persons shall have the right to a
speedy disposition of their cases before all judicial, quasi-
judicial, or administrative bodies." The right to a speedy
disposition of a case is deemed violated only when the
proceedings are attended by vexatious, capricious, and
oppressive delays, or when unjustified postponements of the
trial are asked for and secured, or when without cause or
justifiable motive, a long period of time is allowed to elapse
without the party having his case tried.37 The constitutional
guarantee to a speedy disposition of cases is a relative or
flexible concept.38 It is consistent with delays and depends
upon the circumstances. What the Constitution prohibits are
unreasonable, arbitrary and oppressive delays which render
rights nugatory.39
In Dela Peña v. Sandiganbayan,40 the Court laid down certain
guidelines to determine whether the right to a speedy
disposition has been violated, as follows:
The concept of speedy disposition is relative or flexible. A mere
mathematical reckoning of the time involved is not sufficient.
Particular regard must be taken of the facts and circumstances
peculiar to each case. Hence, the doctrinal rule is that in the
determination of whether that right has been violated, the
factors that may be considered and balanced are as follows: (1)
the length of the delay; (2) the reasons for the delay; (3) the
assertion or failure to assert such right by the accused; and (4)
the prejudice caused by the delay.
Using the foregoing yardstick, the Court finds that Braza’s right
to speedy disposition of the case has not been infringed.
Record shows that the complaint against Braza and twenty-
three (23) other respondents was filed in January 2007 before
the PACPO-Visayas. After the extensive inquiries and data-
19
gathering, the PACPO-Visayas came out with an evaluation
report on March 23, 2007 concluding that the installed
lampposts and lighting facilities were highly overpriced.41
PACPO-Visayas recommended that the respondents be
charged with violation of Section 3(e) of R.A. No. 3019.
Thereafter, the investigatory process was set in motion before
the OMB-Visayas where the respondents filed their respective
counter-affidavits and submitted voluminous documentary
evidence to refute the allegations against them. Owing to the
fact that the controversy involved several transactions and
varying modes of participation by the 24 respondents and that
their respective responsibilities had to be established, the
OMB-Visayas resolved the complaint only on January 24, 2008
with the recommendation that the respondents be indicted for
violation of Section 3(g) of R.A. 3019. The Court notes that
Braza never decried the time spent for the preliminary
investigation. There was no showing either that there were
unreasonable delays in the proceedings or that the case was
kept in idle slumber.
After the filing of the information, the succeeding events
appeared to be part of a valid and regular course of the judicial
proceedings not attended by capricious, oppressive and
vexatious delays. On November 3, 2008, Sandiganbayan
ordered the reinvestigation of the case upon motion of accused
Radaza, petitioner Braza and other accused DPWH officials. In
the course of the reinvestigation, the OMB-Visayas furnished
the respondents with the additional documents/papers it
secured, especially the Commission on Audit Report, for their
verification, comment and submission of countervailing
evidence.42 Thereafter, the OMB-Visayas issued its
Supplemental Resolution, dated May 4, 2009, finding probable
cause against the accused for violation of Section 3(e) of R.A.
3019.
Indeed, the delay can hardly be considered as "vexatious,
capricious and oppressive." The complexity of the factual and
legal issues, the number of persons charged, the various
pleadings filed, and the volume of documents submitted,
prevent this Court from yielding to the petitioner’s claim of
violation of his right to a speedy disposition of his case. Rather,
it appears that Braza and the other accused were merely
afforded sufficient opportunities to ventilate their respective
defenses in the interest of justice, due process and fair
investigation. The re-investigation may have inadvertently
contributed to the further delay of the proceedings but this
process cannot be dispensed with because it was done for the
protection of the rights of the accused. Albeit the conduct of
investigation may hold back the progress of the case, the same
was essential so that the rights of the accused will not be
compromised or sacrificed at the altar of expediency.43 The
bare allegation that it took the OMB more than two (2) years to
terminate the investigation and file the necessary information
would not suffice.44 As earlier stated, mere mathematical
reckoning of the time spent for the investigation is not a
sufficient basis to conclude that there was arbitrary and
inordinate delay.
The delay in the determination of probable cause in this case
should not be cause for an unfettered abdication by the anti-
graft court of its duty to try and determine the controversy in
Case No. SB-08-CRM-0275. The protection under the right to a
speedy disposition of cases should not operate to deprive the
government of its inherent prerogative in prosecuting criminal
cases.
Finally, Braza challenges the sufficiency of the allegations in
the second information because there is no indication of any
actual and quantifiable injury suffered by the government. He
then argues that the facts under the second information are
inadequate to support a valid indictment for violation of
Section 3(e) of R.A. No. 3019.
The petitioner's simple syllogism must fail.
Section 3 (e) of R.A. No. 3019 states:
Sec. 3. Corrupt practices of public officers – In addition to acts
or omission of public officers already penalized by existing
law, the following shall constitute corrupt practices of any
public officer and are hereby declared to be unlawful:
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of offices
or government corporations charged with the grant of licenses
or permits or other concessions.
In a catena of cases, this Court has held that there are two (2)
ways by which a public official violates Section 3(e) of R.A. No.
3019 in the performance of his functions, namely: (1) by
causing undue injury to any party, including the Government;
or (2) by giving any private party any unwarranted benefit,
advantage or preference.45 The accused may be charged
under either mode or under both.1âwphi1 The disjunctive term
"or" connotes that either act qualifies as a violation of Section
3(e) of R.A. No. 3019.46 In other words, the presence of one
would suffice for conviction.
It must be emphasized that Braza was indicted for violation of
Section 3(e) of R.A. No. 3019 under the second mode. "To be
found guilty under the second mode, it suffices that the
accused has given unjustified favor or benefit to another, in the
exercise of his official, administrative and judicial
functions."47 The element of damage is not required for
violation of Section 3(e) under the second mode.48
In the case at bench, the second information alleged, in
substance, that accused public officers and employees,
discharging official or administrative function, together with
Braza, confederated and conspired to give F ABMIK
unwarranted benefit or preference by awarding to it Contract
I.D. No. 06H00050 through manifest partiality or evident bad
faith, without the conduct of a public bidding and compliance
with the requirement for qualification contrary to the
provisions of R.A. No. 9184 or the Government Procurement
Reform Act. Settled is the rule that private persons, when
acting in conspiracy with public officers, may be indicted and,
if found guilty, held liable for the pertinent offenses under
Section 3 of R.A. No. 3 019.49 Considering that all the elements
of the offense of violation of Sec. 3(e) were alleged in the
second information, the Court finds the same to be sufficient
in form and substance to sustain a conviction.
At any rate, the presence or absence of the elements of the
crime is evidentiary in nature and is a matter of defense that
may be passed upon after a full-blown trial on the merits.50 It
is not proper, therefore, to resolve the issue right at the outset
without the benefit of a full-blown trial. This issue requires a
fuller ventilation and examination.
All told, this Court finds that the Sandiganbayan did not commit
grave abuse of discretion amounting to lack or excess of
jurisdiction, much less did it gravely err, in denying Braza's
motion to quash the information/dismiss Case No. SB-08-CRM-
0275. This ruling, however, is without prejudice to the actual
merits of this criminal case as may be shown during the trial
before the court a quo.
WHEREFORE, the petition for certiorari is DENIED. The
Sandiganbayan is hereby DIRECTED to dispose of Case No.
SB-08-CRM- 0275 with reasonable dispatch.
SO ORDERED.
RE: FAILURE OF FORMER JUDGE ANTONIO A. CARBONELL
TO DECIDE CASES SUBMITTED FOR DECISION AND TO
RESOLVE PENDING MOTIONS IN THE REGIONAL TRIAL
COURT, BRANCH 27, SAN FERNANDO, LA UNION.
RESOLUTION
BERSAMIN, J.:
This administrative case originates from the judicial audit
conducted by the Office of the Court Administrator (OCA) on
March 3 and 4, 2008 in the Regional Trial Court of San
Fernando, La Union, Branch 27, in view of the disability
20
retirement of Presiding Judge Antonio A. Carbonell on
December 31, 2007.
According to the Audit Team’s Report, Branch 27 had a total
caseload of 231 cases, consisting of 147 criminal cases and 84
civil cases, and Judge Carbonell failed to decide 41 criminal
cases (one inherited) and 22 civil cases (four inherited),
namely: Criminal Case Nos. 1183, 4559, 5117, 3532, 3672, 5165,
5007, 5946, 6934, 5763, 7014, 5991, 4724, 6311, 6076, 4789, 6297,
5424, 4928, 6403, 6816, 5635, 5666, 5134, 5865, 6284, 6454, 5394,
6770, 5375, 5356, 7557, 5940, 6311, 6333, 7729, 7111, 6325, 6068,
6517, and 7766; and Civil Case Nos. 3009, 4564, 4563, 4714,
3647, 4362, 6041, 4798, 4561, 6989, 2882, 6185, 7153, 7163, LRC
2332, SCA 7198, 7310, 3487, 7327, 7331, 7298, and 7323.1
Judge Carbonell was also reported to have failed to resolve
pending motions or incidents in four criminal cases and 12 civil
cases, to wit: Criminal Case Nos. 7559, 6409, 7787, and 7788;
and Civil Case Nos. 4793, LRC 1308, 7064, 4973, SP 2901, SP
2952, AC 1797, 7100, 7152, 7060, SP 2986, and SP 2987.2
In a Memorandum dated May 15, 2008, the OCA recommended
to the Court that a fine of P50,000.00 be imposed upon Judge
Carbonell for gross inefficiency for failing to promptly decide
the cases and to resolve pending motions and incidents.3
On June 17, 2008, the Court directed the Clerk of Court to
furnish Judge Carbonell with a copy of the Audit Team’s
Report, and ordered him to submit his comment on the report
within ten days from notice.4
Not having received the comment from Judge Carbonell
despite the lapse of the time given, the Court resolved on
September 21, 2010 to require him to show cause why he
should not be disciplinarily dealt with or held in contempt.5
Judge Carbonell replied,6 stating that he had incorporated his
comment/compliance to the June 17, 2008 resolution in the
letter dated July 17, 2008 (Re: Very Urgent Request for Release
of Disability Retirement Benefits and Money Value of Accrued
Leave Credits) he had sent to Chief Justice Reynato S. Puno.7
He remarked that the Court had actually granted his request for
the payment of his disability retirement benefits subject to the
retention of P200,000.00 pending resolution of the pending
administrative cases against him.8
In his July 17, 2008 letter to Chief Justice Puno, Judge
Carbonell surmised that the Audit Team might have overlooked
the fact that he had inherited some of the undecided cases from
the predecessor judge; that said cases had no transcripts of
stenographic notes, because of which he was impelled to
require the parties to submit their respective memoranda; that
the cases would only be considered submitted for decision
after the parties would have filed their respective memoranda;
and that he had undergone a quadruple heart bypass operation
in 2005 that had adversely affected his pace in deciding the
cases.
On November 23, 2010, the Court referred Judge Carbonell’s
letter to the OCA for evaluation, report, and recommendation.9
In its Memorandum dated February 2, 2011,10 the OCA
reiterated its recommendation to impose a fine ofP50,000.00 on
Judge Carbonell, noting that he had failed to render any valid
reason for his delay in deciding the cases submitted for
decision and in resolving the pending motions or incidents in
other cases. The OCA noted that only five cases submitted for
decision had been inherited; and that the case records did not
bear any requests for extension of time or any directive for the
transcription of stenographic notes. It stressed that heavy
caseload would not justify the failure to promptly decide and
resolve cases because he could have simply asked the Court
for an extension of time.
The recommendation of the OCA is well-taken, subject to the
modification of the penalty to be imposed.
As a frontline official of the Judiciary, a trial judge should at all
times act with efficiency and probity. He is duty-bound not only
to be faithful to the law, but also to maintain professional
competence. The pursuit of excellence ought always to be his
guiding principle. Such dedication is the least that he can do to
sustain the trust and confidence that the public have reposed
in him and the institution he represents.11
The Court cannot overstress its policy on prompt disposition
or resolution of cases.12 Delay in the disposition of cases is a
major culprit in the erosion of public faith and confidence in
the judicial system, as judges have the sworn duty to
administer justice without undue delay.13 Thus, judges have
been constantly reminded to strictly adhere to the rule on the
speedy disposition of cases and observe the periods
prescribed by the Constitution for deciding cases, which is
three months from the filing of the last pleading, brief or
memorandum for lower courts.14To further impress upon
judges such mandate, the Court has issued guidelines
(Administrative Circular No. 3-99 dated January 15, 1999) that
would insure the speedy disposition of cases and has therein
reminded judges to scrupulously observe the periods
prescribed in the Constitution.
Nonetheless, the Court has been mindful of the plight of our
judges and understanding of circumstances that may hinder
them from promptly disposing of their businesses. Hence, the
Court has allowed extensions of time to decide cases beyond
the 90-day period. All that a judge needs to do is to request and
justify an extension of time to decide the cases, and the Court
has almost invariably granted such request.
Judge Carbonell failed to decide a total of 63 cases and to
resolve 16 pending motions or incidents within the 90-day
reglementary period. He intimated that his poor health affected
his pace in deciding the cases. Had such been the case, then
he should have explained his predicament to the Court and
asked for an extension of time to decide the cases.
Unfortunately, he failed to do so.
Judge Carbonell claims that some of the inherited cases had
no transcripts of stenographic notes, thereby preventing him
from resolving the cases on time. He posits that a case would
not be considered submitted for decision if the parties did not
yet file their respective memoranda.1âwphi1
The Audit Team’s Report shows that, in an apparent attempt to
suspend the running of the 90-day period to decide the cases,
Judge Carbonell liberally gave the parties in most of the
overdue cases several extensions of time to file their
respective memoranda. Some extensions were even for
indefinite periods, with the parties being simply given "ample
time to file their memo," as the relevant court orders stated.
In view of the foregoing, Judge Carbonell’s excuses are futile
in the light of the following provisions of Administrative
Circular No. 28, dated July 3, 1989, viz:
(3)
A case is considered submitted for decision upon the
admission of the evidence of the parties at the termination of
the trial. The ninety (90) days period for deciding the case shall
commence to run from submission of the case for decision
without memoranda; in case the Court requires or allows its
filing, the case shall be considered submitted for decision
upon the filing of the last memorandum or the expiration of the
period to do so, whichever is earlier. Lack of transcript of
stenographic notes shall not be a valid reason to interrupt or
suspend the period for deciding the case unless the case was
previously heard by another judge not the deciding judge in
which case the latter shall have the full period of ninety (90)
days from the completion of the transcripts within which to
decide the same.
(4)
The court may grant extension of time to file memoranda, but
the ninety (90) day period for deciding shall not be interrupted
thereby.
Without a doubt, Judge Carbonell’s failure to decide several
cases within the reglementary period, without justifiable and
credible reasons, constituted gross inefficiency, warranting
the imposition of administrative sanctions,15 like fines. The
fines imposed have varied in each case, depending chiefly on
the number of cases not decided within the reglementary
21
period and other factors, including the presence of aggravating
or mitigating circumstances like the damage suffered by the
parties from the delay, the health condition and age of the
judge, etc.16 Thus, in one case, the Court mitigated the liability
of a Judge who had been suffering from illnesses and who had
later retired due to disability, and imposed upon him a fine of
P20,000.00 for failure to decide 31 cases.17
Considering that Judge Carbonell similarly retired due to
disability, the Court believes that his poor health condition
greatly contributed to his inability to efficiently perform his
duties as a trial judge. That mitigated his administrative
liability, for which reason the Court reduces the recommended
penalty of fine from P50,000.00 toP20,000.00.
WHEREFORE, Retired Judge Antonio A. Carbonell is
ORDERED to pay a fine of P20,000.00 to be deducted from the
P200,000.00 that was withheld from his retirement benefits, and
the balance to be immediately released to him.
SO ORDERED.
RAFAEL L. COSCOLLUELA, Petitioner,
vs.
SANBIGANBAYAN (FIRST DIVISION) and PEOPLE OF THE
PHILIPPINES, Respondents.
x-----------------------x
G.R. No. 191871
EDWIN N. NACIONALES, ERNESTO P. MALVAS, and JOSE MA.
G. AMUGOD, Petitioners,
vs.
SANDIGANBAYAN (FIRST DIVISION) and PEOPLE OF THE
PHILIPPINES, represented by the OFFICE OF THE SPECIAL
PROSECUTOR, OFFICE OF THE OMBUDSMAN, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in these consolidated Petitions for Certiorari1 are the
October 6, 20092 and February 10, 20103Resolutions of public
respondent First Division of Sandiganbayan (SB), denying the
Motion to Quash4 dated July 8, 2009 filed by petitioner Rafael
L. Coscolluela (Coscolluela). The said motion was adopted by
petitioners Edwin N. Nacionales (Nacionales), Dr. Ernesto P.
Malvas (Malvas), and Jose Ma. G. Amugod (Amugod), praying
for the dismissal of Crim. Case No. SB-09-CRM-0154 for
violation of their right to speedy disposition of cases.
The Facts
Coscolluela served as governor of the Province of Negros
Occidental (Province) for three (3) full terms which ended on
June 30, 2001. During his tenure, Nacionales served as his
Special Projects Division Head, Amugod as Nacionales’
subordinate, and Malvas as Provincial Health Officer.5
On November 9, 2001, the Office of the Ombudsman for the
Visayas (Office of the Ombudsman) received a letter-
complaint6 dated November 7, 2001 from People’s Graftwatch,
requesting for assistance to investigate the anomalous
purchase of medical and agricultural equipment for the
Province in the amount of P20,000,000.00 which allegedly
happened around a month before Coscolluela stepped down
from office.
Acting on the letter-complaint, the Case Building Team of the
Office of the Ombudsman conducted its investigation,
resulting in the issuance of a Final Evaluation Report7 dated
April 16, 2002 which upgraded the complaint into a criminal
case against petitioners.8 Consequently, petitioners filed their
respective counter-affidavits.9
On March 27, 2003, the assigned Graft Investigation Officer
Butch E. Cañares (Cañares) prepared a Resolution (March 27,
2003 Resolution), finding probable cause against petitioners
for violation of Section 3(e) of Republic Act No. (RA) 3019,
otherwise known as the "Anti-Graft and Corrupt Practices Act,"
and recommended the filing of the corresponding information.
On even date, the Information10 was prepared and signed by
Cañares and submitted to Deputy Ombudsman for the Visayas
Primo C. Miro (Miro) for recommendation. Miro recommended
the approval of the Information on June 5, 2003. However, the
final approval of Acting Ombudsman Orlando C. Casimiro
(Casimiro), came only on May 21, 2009, and on June 19, 2009,
the Information was filed before the SB.
Petitioners alleged that they learned about the March 27, 2003
Resolution and Information only when they received a copy of
the latter shortly after its filing with the SB.11
On July 9, 2009, Coscolluela filed a Motion to Quash,12
arguing, among others, that his constitutional right to speedy
disposition of cases was violated as the criminal charges
against him were resolved only after almost eight (8) years
since the complaint was instituted. Nacionales, Malvas, and
Amugod later adopted Coscolluela’s motion.
In reply, the respondents filed their Opposition to Motion to
Quash13 dated August 7, 2009, explaining that although the
Information was originally dated March 27, 2003, it still had to
go through careful review and revision before its final approval.
It also pointed out that petitioners never raised any objections
regarding the purported delay in the proceedings during the
interim.14
The Ruling of the Sandiganbayan
In a Resolution15 dated October 6, 2009, the SB denied
petitioners’ Motion to Quash for lack of merit. It held that the
preliminary investigation against petitioners was actually
resolved by Cañares on March 27, 2003, one (1) year and four
(4) months from the date the complaint was filed, or in
November 9, 2001. Complying with internal procedure, Cañares
then prepared the March 27, 2003 Resolution and Information
for the recommendation of the Miro and eventually, the final
approval of the Casimiro. As these issuances had to undergo
careful review and revision through the various levels of the
said office, the period of delay – i.e., from March 27, 2003 to
May 21, 2009, or roughly over six (6) years – cannot be deemed
as inordinate16 and as such, petitioners’ constitutional right to
speedy disposition of cases was not violated.17
Aggrieved, petitioners filed their respective Motions for
Reconsideration18 dated November 9, 2009 and November 6,
2009, similarly arguing that the SB erred in making a distinction
between two time periods, namely: (a) from the filing of the
complaint up to the time Cañares prepared the resolution
finding probable cause against petitioners; and (b) from the
submission of the said resolution to the Acting Ombudsman
for review and approval up to the filing of the Information with
the SB. In this regard, petitioners averred that the
aforementioned periods should not be compartmentalized and
thus, treated as a single period. Accordingly, the delay of eight
(8) years of the instant case should be deemed prejudicial to
their right to speedy disposition of cases.19
The SB, however, denied the foregoing motions in its
Resolution20 dated February 10, 2010 for lack of merit.
Hence, the instant petitions.
The Issue Before the Court
The sole issue raised for the Court’s resolution is whether the
SB gravely abused its discretion in finding that petitioners’
right to speedy disposition of cases was not violated.
The Court’s Ruling
22
The petitions are meritorious.
A person’s right to the speedy disposition of his case is
guaranteed under Section 16, Article III of the 1987 Philippine
Constitution (Constitution) which provides:
SEC. 16. All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.
This constitutional right is not limited to the accused in
criminal proceedings but extends to all parties in all cases, be
it civil or administrative in nature, as well as all proceedings,
either judicial or quasi-judicial. In this accord, any party to a
case may demand expeditious action to all officials who are
tasked with the administration of justice.21
It must be noted, however, that the right to speedy disposition
of cases should be understood to be a relative or flexible
concept such that a mere mathematical reckoning of the time
involved would not be sufficient.22Jurisprudence dictates that
the right is deemed violated only when the proceedings are
attended by vexatious, capricious, and oppressive delays; or
when unjustified postponements of the trial are asked for and
secured; or even without cause or justifiable motive, a long
period of time is allowed to elapse without the party having his
case tried.23
Hence, in the determination of whether the defendant has been
denied his right to a speedy disposition of a case, the following
factors may be considered and balanced: (1) the length of
delay; (2) the reasons for the delay; (3) the assertion or failure
to assert such right by the accused; and (4) the prejudice
caused by the delay.24
Examining the incidents in the present case, the Court holds
that petitioners’ right to a speedy disposition of their criminal
case had been violated.
First, it is observed that the preliminary investigation
proceedings took a protracted amount of time to complete.
In this relation, the Court does not lend credence to the SB’s
position that the conduct of preliminary investigation was
terminated as early as March 27, 2003, or the time when
Cañares prepared the Resolution recommending the filing of
the Information. This is belied by Section 4,
Rule II of the Administrative Order No. 07 dated April 10, 1990,
otherwise known as the "Rules of Procedure of the Office of
the Ombudsman," which provides:
SEC. 4. Procedure – The preliminary investigation of cases
falling under the jurisdiction of the Sandiganbayan and
Regional Trial Courts shall be conducted in the manner
prescribed in Section 3, Rule 112 of the Rules of Court, subject
to the following provisions:
xxxx
No information may be filed and no complaint may be
dismissed without the written authority or approval of the
Ombudsman in cases falling within the jurisdiction of the
Sandiganbayan, or of the proper Deputy Ombudsman in all
other cases. (Emphasis and underscoring supplied)
The above-cited provision readily reveals that there is no
complete resolution of a case under preliminary investigation
until the Ombudsman approves the investigating officer’s
recommendation to either file an Information with the SB or to
dismiss the complaint. Therefore, in the case at bar, the
preliminary investigation proceedings against the petitioners
were not terminated upon Cañares’ preparation of the March
27, 2003 Resolution and Information but rather, only at the time
Casimiro finally approved the same for filing with the SB. In this
regard, the proceedings were terminated only on May 21, 2009,
or almost eight (8) years after the filing of the complaint.
Second, the above-discussed delay in the Ombudsman’s
resolution of the case largely remains unjustified.
To this end, the Court equally denies the SB’s ratiocination that
the delay in proceedings could be excused by the fact that the
case had to undergo careful review and revision through the
different levels in the Office of the Ombudsman before it is
finally approved, in addition to the steady stream of cases
which it had to resolve.
Verily, the Office of the Ombudsman was created under the
mantle of the Constitution, mandated to be the "protector of the
people" and as such, required to "act promptly on complaints
filed in any form or manner against officers and employees of
the Government, or of any subdivision, agency or
instrumentality thereof, in order to promote efficient
service."25 This great responsibility cannot be simply brushed
aside by ineptitude. Precisely, the Office of the Ombudsman
has the inherent duty not only to carefully go through the
particulars of case but also to resolve the same within the
proper length of time. Its dutiful performance should not only
be gauged by the quality of the assessment but also by the
reasonable promptness of its dispensation. Thus, barring any
extraordinary complication, such as the degree of difficulty of
the questions involved in the case or any event external thereto
that effectively stymied its normal work activity – any of which
have not been adequately proven by the prosecution in the
case at bar – there appears to be no justifiable basis as to why
the Office of the Ombudsman could not have earlier resolved
the preliminary investigation proceedings against the
petitioners.
Third, the Court deems that petitioners cannot be faulted for
their alleged failure to assert their right to speedy disposition
of cases.
Records show that they could not have urged the speedy
resolution of their case because they were unaware that the
investigation against them was still on-going. They were only
informed of the March 27, 2003 Resolution and Information
against them only after the lapse of six (6) long years, or when
they received a copy of the latter after its filing with the SB on
June 19, 2009.26 In this regard, they could have reasonably
assumed that the proceedings against them have already been
terminated. This serves as a plausible reason as to why
petitioners never followed-up on the case altogether.
Instructive on this point is the Court’s observation in Duterte v.
Sandiganbayan,27 to wit:
Petitioners in this case, however, could not have urged the
speedy resolution of their case because they were completely
unaware that the investigation against them was still on-going.
Peculiar to this case, we reiterate, is the fact that petitioners
were merely asked to comment, and not file counter-affidavits
which is the proper procedure to follow in a preliminary
investigation. After giving their explanation and after four long
years of being in the dark, petitioners, naturally, had reason to
assume that the charges against them had already been
dismissed.
On the other hand, the Office of the Ombudsman failed to
present any plausible, special or even novel reason which
could justify the four-year delay in terminating its investigation.
Its excuse for the delay — the many layers of review that the
case had to undergo and the meticulous scrutiny it had to entail
— has lost its novelty and is no longer appealing, as was the
invocation in the Tatad case. The incident before us does not
involve complicated factual and legal issues, specially (sic) in
view of the fact that the subject computerization contract had
been mutually cancelled by the parties thereto even before the
Anti-Graft League filed its complaint. (Emphasis and
underscoring supplied)
Being the respondents in the preliminary investigation
proceedings, it was not the petitioners’ duty to follow up on the
prosecution of their case. Conversely, it was the Office of the
Ombudsman’s responsibility to expedite the same within the
bounds of reasonable timeliness in view of its mandate to
promptly act on all complaints lodged before it. As pronounced
in the case of Barker v. Wingo:28
A defendant has no duty to bring himself to trial; the State has
that duty as well as the duty of insuring that the trial is
consistent with due process.
23
Fourth, the Court finally recognizes the prejudice caused to the
petitioners by the lengthy delay in the proceedings against
them.
Lest it be misunderstood, the right to speedy disposition of
cases is not merely hinged towards the objective of spurring
dispatch in the administration of justice but also to prevent the
oppression of the citizen by holding a criminal prosecution
suspended over him for an indefinite time. Akin to the right to
speedy trial, its "salutary objective" is to assure that an
innocent person may be free from the anxiety and expense of
litigation or, if otherwise, of having his guilt determined within
the shortest possible time compatible with the presentation
and consideration of whatsoever legitimate defense he may
interpose.30 This looming unrest as well as the tactical
disadvantages carried by the passage of time should be
weighed against the State and in favor of the individual. In the
context of the right to a speedy trial, the Court in Corpuz v.
Sandiganbayan31 (Corpuz) illumined:
A balancing test of applying societal interests and the rights of
the accused necessarily compels the court to approach speedy
trial cases on an ad hoc basis.
x x x Prejudice should be assessed in the light of the interest
of the defendant that the speedy trial was designed to protect,
namely: to prevent oppressive pre-trial incarceration; to
minimize anxiety and concerns of the accused to trial; and to
limit the possibility that his defense will be impaired. Of these,
the most serious is the last, because the inability of a defendant
adequately to prepare his case skews the fairness of the entire
system. There is also prejudice if the defense witnesses are
unable to recall accurately the events of the distant past. Even
if the accused is not imprisoned prior to trial, he is still
disadvantaged by restraints on his liberty and by living under
a cloud of anxiety, suspicion and often, hostility. His financial
resources may be drained, his association is curtailed, and he
is subjected to public obloquy.
Delay is a two-edge sword. It is the government that bears the
burden of proving its case beyond reasonable doubt. The
passage of time may make it difficult or impossible for the
government to carry its burden. The Constitution and the Rules
do not require impossibilities or extraordinary efforts,
diligence or exertion from courts or the prosecutor, nor
contemplate that such right shall deprive the State of a
reasonable opportunity of fairly prosecuting criminals. As held
in Williams v. United States, for the government to sustain its
right to try the accused despite a delay, it must show two
things: (a) that the accused suffered no serious prejudice
beyond that which ensued from the ordinary and inevitable
delay; and (b) that there was no more delay than is reasonably
attributable to the ordinary processes of justice.
Closely related to the length of delay is the reason or
justification of the State for such delay. Different weights
should be assigned to different reasons or justifications
invoked by the State. For instance, a deliberate attempt to delay
the trial in order to hamper or prejudice the defense should be
weighted heavily against the State. Also, it is improper for the
prosecutor to intentionally delay to gain some tactical
advantage over the defendant or to harass or prejudice him. On
the other hand, the heavy case load of the prosecution or a
missing witness should be weighted less heavily against the
State. x x x (Emphasis and underscoring supplied; citations
omitted)
As the right to a speedy disposition of cases encompasses the
broader purview of the entire proceedings of which trial proper
is but a stage, the above-discussed effects in Corpuz should
equally apply to the case at bar. As held in Dansal v. Fernandez,
Sr.:32
Sec. 16, Article III of the 1987 Constitution, reads:
"Sec. 16. All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or
administrative bodies."
Initially embodied in Section 16, Article IV of the 1973
Constitution, the aforesaid constitutional provision is one of
three provisions mandating speedier dispensation of justice. It
guarantees the right of all persons to "a speedy disposition of
their case"; includes within its contemplation the periods
before, during and after trial, and affords broader protection
than Section 14(2), which guarantees just the right to a speedy
trial. It is more embracing than the protection under Article VII,
Section 15, which covers only the period after the submission
of the case. The present constitutional provision applies to
civil, criminal and administrative cases. (Emphasis and
underscoring supplied; citations omitted)
Thus, in view of the unjustified length of time miring the Office
of the Ombudsman’s resolution of the case as well as the
concomitant prejudice that the delay in this case has caused,
it is undeniable that petitioners’ constitutional right to due
process and speedy disposition of cases had been violated. As
the institutional vanguard against corruption and bureaucracy,
the Office of the Ombudsman should create a system of
accountability in order to ensure that cases before it are
resolved with reasonable dispatch and to equally expose those
who are responsible for its delays, as it ought to determine in
this case.
Corollarily, for the SB’s patent and utter disregard of the
existing laws and jurisprudence surrounding the matter, the
Court finds that it gravely abused its discretion when it denied
the quashal of the Information. Perforce, the assailed
resolutions must be set aside and the criminal case against
petitioners be dismissed.
While the foregoing pronouncement should, as matter of
course, result in the acquittal of the petitioners, it does not
necessarily follow that petitioners are entirely exculpated from
any civil liability, assuming that the same is proven in a
subsequent case which the Province may opt to pursue.
Section 2, Rule 111 of the Rules of Court provides that an
acquittal in a criminal case does not bar the private offended
party from pursuing a subsequent civil case based on the
delict, unless the judgment of acquittal explicitly declares that
the act or omission from which the civil liability may arise did
not exist.33 As explained in the case of Abejuela v. People,34
citing Banal v. Tadeo, Jr.:35
The Rules provide: "The extinction of the penal action does not
carry with it extinction of the civil, unless the extinction
proceeds from a declaration in a final judgment that the fact
from which the civil might arise did not exist. In other cases,
the person entitled to the civil action may institute it in the
jurisdiction and in the manner provided by law against the
person who may be liable for restitution of the thing and
reparation or indemnity for the damage suffered."
xxxx
In Banal vs. Tadeo, Jr., we declared:
"While an act or omission is felonious because it is punishable
by law, it gives rise to civil liability not so much because it is a
crime but because it caused damage to another. Viewing things
pragmatically, we can readily see that what gives rise to the
civil liability is really the obligation and moral duty of everyone
to repair or make whole the damage caused to another by
reason of his own act or omission, done intentionally or
negligently, whether or not the same be punishable by
law."(Emphasis and underscoring supplied)
Based on the violation of petitioners’ right to speedy
disposition of cases as herein discussed, the present case
stands to be dismissed even before either the prosecution or
the defense has been given the chance to present any
evidence. Thus, the Court is unable to make a definite
pronouncement as to whether petitioners indeed committed
the acts or omissions from which any civil liability on their part
might arise as prescribed under Section 2, Rule 120 of the
Rules of Court.36 Consequently, absent this pronouncement,
the Province is not precluded from instituting a subsequent
civil case based on the delict if only to recover the amount of
P20,000,000.00 in public funds attributable to petitioners’
alleged malfeasance.
WHEREFORE, the petitions are hereby GRANTED. The assailed
Resolutions dated October 6, 2009 and February 10, 2010 of the
First Division of the Sandiganbayan are ANNULLED and SET
24
ASIDE. The Sandiganbayan is likewise ordered to DISMISS THE PEOPLE OF THE PHILIPPINES, petitioner,
Crim. Case No. SB-09-CRM-0154 for violation of the vs.
Constitutional right to speedy disposition of cases of HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial
petitioners Rafael L. Coscolluela, Edwin N. Nacionales, Dr. Court, National Capital Judicial Region, Branch 52, Manila and
Ernesto P. Malvas, and Jose Ma. G. Amugod, without prejudice THELMA SARMIENTO, respondents.
to any civil action which the Province of Negros Occidental
may file against petitioners. R.R. Nogales Law Office for petitioner in G.R. No. 63419, G.R. Nos.
74524-25, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and counsel
SO ORDERED. for respondent in G.R. No. 75789.

XI- XI- XI- XI- XI- XI- XI- XI- XI- XI- XI- XI- XI- XI- XI- XI- XI- XI- XI Pio S. Canta for petitioner in G.R. Nos. 66839-42.

FLORENTINA A. LOZANO, petitioner, Hermogenes Datuin, Jr. for petitioner in G.R. No. 71654.
vs.
THE HONORABLE ANTONIO M. MARTINEZ, in his capacity as Abinoja, Tabalingcos, Villalon & Associates for petitioner in G.R.
Presiding Judge, Regional Trial Court, National Capital Judicial
Nos. 75122-49.
Region, Branch XX, Manila, and the HONORABLE JOSE B.
FLAMINIANO, in his capacity as City Fiscal of
Manila, respondents. The Solicitor General for respondent in G.R. No. 63419, G.R. Nos.
66839-42, G.R. No. 71654, G.R. Nos. 74524-25, G.R. Nos. 75122-
49, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and counsel for
G.R. No. L-66839-42 December 18, 1986 petitioner in G.R. No. 75789.

LUZVIMINDA F. LOBATON petitioner,

vs.
HONORABLE GLICERIO L. CRUZ, in his capacity as Presiding
Executive Judge, Branch V, Region IV, Regional Trial Court, YAP, J.:
sitting at Lemery, Batangas, THE PROVINCIAL FISCAL OF
BATANGAS, and MARIA LUISA TORDECILLA, respondents. The constitutionality of Batas Pambansa Bilang 22 (BP 22 for short),
popularly known as the Bouncing Check Law, which was approved
G.R No. 71654 December 18, 1986 on April 3, 1979, is the sole issue presented by these petitions for
decision. The question is definitely one of first impression in our
jurisdiction.
ANTONIO DATUIN and SUSAN DATUIN, petitioners,
vs.
HONORABLE JUDGE ERNANI C. PANO, Regional Trial Court, These petitions arose from cases involving prosecution of offenses
Quezon City, Branch LXXXVIII, HONORABLE ClTY FISCAL OF under the statute. The defendants in those cases moved
QUEZON CITY, respondents. seasonably to quash the informations on the ground that the acts
charged did not constitute an offense, the statute being
unconstitutional. The motions were denied by the respondent trial
G.R. No. 74524-25 December 18, 1986
courts, except in one case, which is the subject of G. R. No. 75789,
wherein the trial court declared the law unconstitutional and
OSCAR VIOLAGO, petitioner, dismissed the case. The parties adversely affected have come to us
vs. for relief.
HONORABLE JUDGE ERNANI C. PAÑ;O Regional Trial Court,
Quezon City, Branch LXXXVIII, HONORABLE CITY FISCAL OF As a threshold issue the former Solicitor General in his comment on
QUEZON CITY, respondents.
the petitions, maintained the posture that it was premature for the
accused to elevate to this Court the orders denying their motions to
G.R. No. 75122-49 December 18, 1986 quash, these orders being interlocutory. While this is correct as a
general rule, we have in justifiable cases intervened to review the
lower court's denial of a motion to quash. 1 In view of the importance
ELINOR ABAD, petitioner,
vs. of the issue involved here, there is no doubt in our mind that the
THE HONORABLE NICOLAS A. GEROCHI, JR., in his capacity instant petitions should be entertained and the constitutional
as Presiding Judge, Regional Trial Court, National Capital challenge to BP 22 resolved promptly, one way or the other, in order
Judicial Region, Branch 139, Makati and FEDERICO L. to put to rest the doubts and uncertainty that exist in legal and
MELOCOTTON JR., in his capacity as Trial Fiscal Regional Trial judicial circles and the general public which have unnecessarily
Court, Branch 139, Makati, respondents. caused a delay in the disposition of cases involving the enforcement
of the statute.

G.R No. 75812-13 December 18, 1986

AMABLE R. AGUILUZ VII and SYLVIA V. AGUILUZ,
spouses, petitioners,
vs.
HONORABLE PRESIDING JUDGE OF BRANCH 154, now
vacant but temporarily presided by HONORABLE ASAALI S.
ISNANI Branch 153, Court of First Instance of Pasig, Metro
Manila, respondent.
For the purpose of resolving the constitutional issue presented here,
we do not find it necessary to delve into the specifics of the
informations involved in the cases which are the subject of the
petitions before us. 2 The language of BP 22 is broad enough to
cover all kinds of checks, whether present dated or postdated, or
whether issued in payment of pre-existing obligations or given in
mutual or simultaneous exchange for something of value.
I

G.R No. 75765-67 December 18, 1986

BP 22 punishes a person "who makes or draws and issues any
check on account or for value, knowing at the time of issue that he
LUIS M. HOJAS, petitioner, does not have sufficient funds in or credit with the drawee bank for
vs. the payment of said check in full upon presentment, which check is
HON. JUDGE SENEN PENARANDA, Presiding Judge, Regional subsequently dishonored by the drawee bank for insufficiency of
Trial Court of Cagayan de Oro City, Branch XX, HONORABLE funds or credit or would have been dishonored for the same reason
JUDGE ALFREDO LAGAMON, Presiding Judge, Regional Trial had not the drawer, without any valid reason, ordered the bank to
Court of Cagayan de Oro City, Branch XXII, HONORABLE CITY stop payment." The penalty prescribed for the offense is
FISCAL NOLI T. CATHI, City Fiscal of Cagayan de Oro imprisonment of not less than 30 days nor more than one year or a
City,respondents. fine or not less than the amount of the check nor more than double
said amount, but in no case to exceed P200,000.00, or both such
G.R. No. 75789 December 18, 1986 fine and imprisonment at the discretion of the court. 3

25
The statute likewise imposes the same penalty on "any person who,
having sufficient funds in or credit with the drawee bank when he
makes or draws and issues a check, shall fail to keep sufficient
funds or to maintain a credit to cover the full amount of the check if
presented within a period of ninety (90) days from the date
appearing thereon, for which reason it is dishonored by the drawee
bank. 4
An essential element of the offense is "knowledge" on the part of the
maker or drawer of the check of the insufficiency of his funds in or
credit with the bank to cover the check upon its presentment. Since
this involves a state of mind difficult to establish, the statute itself
creates a prima facie presumption of such knowledge where
payment of the check "is refused by the drawee because of
insufficient funds in or credit with such bank when presented within
ninety (90) days from the date of the check. 5 To mitigate the
harshness of the law in its application, the statute provides that such
presumption shall not arise if within five (5) banking days from
receipt of the notice of dishonor, the maker or drawer makes
arrangements for payment of the check by the bank or pays the
holder the amount of the check.
Another provision of the statute, also in the nature of a rule of
evidence, provides that the introduction in evidence of the unpaid
and dishonored check with the drawee bank's refusal to pay
"stamped or written thereon or attached thereto, giving the reason
therefor, "shall constitute prima facie proof of "the making or
issuance of said check, and the due presentment to the drawee for
payment and the dishonor thereof ... for the reason written, stamped
or attached by the drawee on such dishonored check." 6
The presumptions being merely prima facie, it is open to the
accused of course to present proof to the contrary to overcome the
said presumptions.
II
BP 22 is aimed at putting a stop to or curbing the practice of issuing
checks that are worthless, i.e. checks that end up being rejected or
dishonored for payment. The practice, as discussed later, is
proscribed by the state because of the injury it causes to t public
interests.
Before the enactment of BP 22, provisions already existed in our
statute books which penalize the issuance of bouncing or rubber
checks. Criminal law has dealth with the problem within the context
of crimes against property punished as "estafa" or crimes involving
fraud and deceit. The focus of these penal provisions is on the
damage caused to the property rights of the victim.
The Penal Code of Spain, which was in force in the Philippines from
1887 until it was replaced by the Revised Penal Code in 1932,
contained provisions penalizing, among others, the act of
defrauding another through false pretenses. Art. 335 punished a
person who defrauded another "by falsely pretending to possess
any power, influence, qualification, property, credit, agency or
business, or by means of similar deceit." Although no explicit
mention was made therein regarding checks, this provision was
deemed to cover within its ambit the issuance of worthless or bogus
checks in exchange for money. 7
In 1926, an amendment was introduced by the Philippine
Legislature, which added a new clause (paragraph 10) to Article 335
of the old Penal Code, this time referring in explicit terms to the
issuance of worthless checks. The amendment penalized any
person who 1) issues a check in payment of a debt or for other
valuable consideration, knowing at the time of its issuance that he
does not have sufficient funds in the bank to cover its amount, or 2)
maliciously signs the check differently from his authentic signature
as registered at the bank in order that the latter would refuse to
honor it; or 3) issues a postdated check and, at the date set for its
payment, does not have sufficient deposit to cover the same. 8
In 1932, as already adverted to, the old Penal Code was superseded
by the Revised Penal Code. 9 The above provisions, in amended
form, were incorporated in Article 315 of the Revised Penal Code
defining the crime of estafa. The revised text of the provision read
as follows:
Art. 315. Swindling (estafa).—Any person who shall
defraud another by any of the means mentioned
hereinbelow shall be punished by:
xxx xxx xxx
2. By means of any of the following false pretenses or
fraudulent acts executed prior to or simultaneously with
the commis sion of the fraud:
(a) By using fictitious name, or falsely pretending
to possess power, influence, qualifications,
property, credit, agency, business or imaginary
transactions, or by means of other similar
deceits;
xxx xxx xxx
(d) By postdating a check, or issuing a check in
payment of an obligation the offender knowing
that at the time he had no funds in the bank, or
the funds deposited by him were not sufficient to
cover the amount of the cheek without informing
the payee of such circumstances.
The scope of paragraph 2 (d), however, was deemed to exclude
checks issued in payment of pre-existing obligations. 10 The
rationale of this interpretation is that in estafa, the deceit causing the
defraudation must be prior to or simultaneous with the commission
of the fraud. In issuing a check as payment for a pre-existing debt,
the drawer does not derive any material benefit in return or as
consideration for its issuance. On the part of the payee, he had
already parted with his money or property before the check is issued
to him hence, he is not defrauded by means of any "prior" or
"simultaneous" deceit perpetrated on him by the drawer of the
check.
With the intention of remedying the situation and solving the
problem of how to bring checks issued in payment of pre-existing
debts within the ambit of Art. 315, an amendment was introduced
by the Congress of the Philippines in 1967, 11 which was enacted
into law as Republic Act No. 4885, revising the aforesaid proviso to
read as follows:
(d) By postdating a check, or issuing a check in payment
of an obligation when the offender had no funds in the
bank, or his funds deposited therein were not sufficient to
cover the amount of the check. The failure of the drawer
of the check to deposit the amount necessary to cover his
check within three (3) days from receipt of notice from the
bank and/or the payee or holder that said check has been
dishonored for lack or insufficiency of funds shall be puma
facie evidence of deceit constituting false pretense or
fraudulent act.
However, the adoption of the amendment did not alter the situation
materially. A divided Court held in People vs. Sabio, Jr. 12 that
Article 315, as amended by Republic Act 4885, does not cover
checks issued in payment of pre-existing obligations, again relying
on the concept underlying the crime of estafa through false
pretenses or deceit—which is, that the deceit or false pretense must
be prior to or simultaneous with the commission of the fraud.
Since statistically it had been shown that the greater bulk of
dishonored checks consisted of those issued in payment of pre-
existing debts, 13 the amended provision evidently failed to cope
with the real problem and to deal effectively with the evil that it was
intended to eliminate or minimize.
With the foregoing factual and legal antecedents as a backdrop, the
then Interim Batasan confronted the problem squarely. It opted to
take a bold step and decided to enact a law dealing with the problem
of bouncing or worthless checks, without attaching the law's
umbilical cord to the existing penal provisions on estafa. BP 22
addresses the problem directly and frontally and makes the act of
issuing a worthless check malum prohibitum. 14
The question now arises: Is B P 22 a valid law?
Previous efforts to deal with the problem of bouncing checks within
the ambit of the law on estafa did not evoke any constitutional
challenge. In contrast, BP 22 was challenged promptly.
Those who question the constitutionality of BP 22 insist that: (1) it
offends the constitutional provision forbidding imprisonment for
26
debt; (2) it impairs freedom of contract; (3) it contravenes the equal
protection clause; (4) it unduly delegates legislative and executive
powers; and (5) its enactment is flawed in that during its passage
the Interim Batasan violated the constitutional provision prohibiting
amendments to a bill on Third Reading.
The constitutional challenge to BP 22 posed by petitioners deserves
a searching and thorough scrutiny and the most deliberate
consideration by the Court, involving as it does the exercise of what
has been described as "the highest and most delicate function which
belongs to the judicial department of the government." 15
As we enter upon the task of passing on the validity of an act of a
co-equal and coordinate branch of the government, we need not be
reminded of the time-honored principle, deeply ingrained in our
jurisprudence, that a statute is presumed to be valid. Every
presumption must be indulged in favor of its constitutionality. This is
not to say that we approach our task with diffidence or timidity.
Where it is clear that the legislature has overstepped the limits of its
authority under the constitution we should not hesitate to wield the
axe and let it fall heavily, as fall it must, on the offending statute.
III
Among the constitutional objections raised against BP 22, the most
serious is the alleged conflict between the statute and the
constitutional provision forbidding imprisonment for debt. It is
contended that the statute runs counter to the inhibition in the Bill of
Rights which states, "No person shall be imprisoned for debt or non-
payment of a poll tax." 16 Petitioners insist that, since the offense
under BP 22 is consummated only upon the dishonor or non-
payment of the check when it is presented to the drawee bank, the
statute is really a "bad debt law" rather than a "bad check law." What
it punishes is the non-payment of the check, not the act of issuing it.
The statute, it is claimed, is nothing more than a veiled device to
coerce payment of a debt under the threat of penal sanction.
First of all it is essential to grasp the essence and scope of the
constitutional inhibition invoked by petitioners. Viewed in its
historical context, the constitutional prohibition against
imprisonment for debt is a safeguard that evolved gradually during
the early part of the nineteenth century in the various states of the
American Union as a result of the people's revulsion at the cruel and
inhumane practice, sanctioned by common law, which permitted
creditors to cause the incarceration of debtors who could not pay
their debts. At common law, money judgments arising from actions
for the recovery of a debt or for damages from breach of a contract
could be enforced against the person or body of the debtor by writ
of capias ad satisfaciendum. By means of this writ, a debtor could
be seized and imprisoned at the instance of the creditor until he
makes the satisfaction awarded. As a consequence of the popular
ground swell against such a barbarous practice, provisions
forbidding imprisonment for debt came to be generally enshrined in
the constitutions of various states of the Union. 17
This humanitarian provision was transported to our shores by the
Americans at the turn of t0he century and embodied in our organic
laws. 18 Later, our fundamental law outlawed not only imprisonment
for debt, but also the infamous practice, native to our shore, of
throwing people in jail for non-payment of the cedula or poll tax. 19
The reach and scope of this constitutional safeguard have been the
subject of judicial definition, both by our Supreme Court 20 and by
American State courts. 21 Mr. Justice Malcolm speaking for
the Supreme Court in Ganaway vs. Queen, 22 stated: "The 'debt'
intended to be covered by the constitutional guaranty has a well-
defined meaning. Organic provisions relieving from imprisonment
for debt, were intended to prevent commitment of debtors to prison
for liabilities arising from actions ex contractu The inhibition was
never meant to include damages arising in actions ex delicto, for the
reason that damages recoverable therein do not arise from any
contract entered into between the parties but are imposed upon the
defendant for the wrong he has done and are considered as
punishment, nor to fines and penalties imposed by the courts in
criminal proceedings as punishments for crime."
The law involved in Ganaway was not a criminal statute but the
Code of Procedure in Civil Actions (1909) which authorized the
arrest of the defendant in a civil case on grounds akin to those which
justify the issuance of a writ of attachment under our present Rules
of Court, such as imminent departure of the defendant from the
Philippines with intent to defraud his creditors, or concealment,
removal or disposition of properties in fraud of creditors, etc. The
Court, in that case, declared the detention of the defendant unlawful,
being violative of the constitutional inhibition against imprisonment
for debt, and ordered his release. The Court, however, refrained
from declaring the statutory provision in question unconstitutional.
Closer to the case at bar is People v. Vera Reyes, 23 wherein a
statutory provision which made illegal and punishable the refusal of
an employer to pay, when he can do so, the salaries of his
employees or laborers on the fifteenth or last day of every month or
on Saturday every week, was challenged for being violative of the
constitutional prohibition against imprisonment for debt. The
constitutionality of the law in question was upheld by the Court, it
being within the authority of the legislature to enact such a law in
the exercise of the police power. It was held that "one of the
purposes of the law is to suppress possible abuses on the part of
the employers who hire laborers or employees without paying them
the salaries agreed upon for their services, thus causing them
financial difficulties. "The law was viewed not as a measure to
coerce payment of an obligation, although obviously such could be
its effect, but to banish a practice considered harmful to public
welfare.
IV
Has BP 22 transgressed the constitutional inhibition against
imprisonment for debt? To answer the question, it is necessary to
examine what the statute prohibits and punishes as an offense. Is it
the failure of the maker of the check to pay a debt? Or is it the
making and issuance of a worthless check in payment of a debt?
What is the gravamen of the offense? This question lies at the heart
of the issue before us.
The gravamen of the offense punished by BP 22 is the act of making
and issuing a worthless check or a check that is dishonored upon
its presentation for payment. It is not the non-payment of an
obligation which the law punishes. The law is not intended or
designed to coerce a debtor to pay his debt. The thrust of the law is
to prohibit, under pain of penal sanctions, the making of worthless
checks and putting them in circulation. Because of its deleterious
effects on the public interest, the practice is proscribed by the law.
The law punishes the act not as an offense against property, but an
offense against public order.
Admittedly, the distinction may seem at first blush to appear elusive
and difficult to conceptualize. But precisely in the failure to perceive
the vital distinction lies the error of those who challenge the validity
of BP 22.
It may be constitutionally impermissible for the legislature to
penalize a person for non-payment of a debt ex contractu But
certainly it is within the prerogative of the lawmaking body to
proscribe certain acts deemed pernicious and inimical to public
welfare. Acts mala in se are not the only acts which the law can
punish. An act may not be considered by society as inherently
wrong, hence, not malum in se but because of the harm that it
inflicts on the community, it can be outlawed and criminally punished
as malum prohibitum. The state can do this in the exercise of its
police power.
The police power of the state has been described as "the most
essential, insistent and illimitable of powers" which enables it to
prohibit all things hurtful to the comfort, safety and welfare of
society. 24 It is a power not emanating from or conferred by the
constitution, but inherent in the state, plenary, "suitably vague and
far from precisely defined, rooted in the conception that man in
organizing the state and imposing upon the government limitations
to safeguard constitutional rights did not intend thereby to enable
individual citizens or group of citizens to obstruct unreasonably the
enactment of such salutary measures to ensure communal peace,
safety, good order and welfare." 25
The enactment of BP 22 is a declaration by the legislature that, as
a matter of public policy, the making and issuance of a worthless
check is deemed public nuisance to be abated by the imposition of
penal sanctions.
It is not for us to question the wisdom or impolicy of the statute. It is
sufficient that a reasonable nexus exists between means and end.
Considering the factual and legal antecedents that led to the
adoption of the statute, it is not difficult to understand the public
concern which prompted its enactment. It had been reported that
the approximate value of bouncing checks per day was close to 200
million pesos, and thereafter when overdrafts were banned by the
27
Central Bank, it averaged between 50 minion to 80 million pesos a
day. 26
By definition, a check is a bill of exchange drawn on a bank and
payable on demand. 27 It is a written order on a bank, purporting to
be drawn against a deposit of funds for the payment of all events, of
a sum of money to a certain person therein named or to his order or
to cash and payable on demand. 28 Unlike a promissory note, a
check is not a mere undertaking to pay an amount of money. It is an
order addressed to a bank and partakes of a representation that the
drawer has funds on deposit against which the check is drawn,
sufficient to ensure payment upon its presentation to the bank.
There is therefore an element of certainty or assurance that the
instrument wig be paid upon presentation. For this reason, checks
have become widely accepted as a medium of payment in trade and
commerce. Although not legal tender, checks have come to be
perceived as convenient substitutes for currency in commercial and
financial transactions. The basis or foundation of such perception is
confidence. If such confidence is shakes the usefulness of checks
as currency substitutes would be greatly diminished or may become
nit Any practice therefore tending to destroy that confidence should
be deterred for the proliferation of worthless checks can only create
havoc in trade circles and the banking community.
Recent statistics of the Central Bank show that one-third of the
entire money supply of the country, roughly totalling P32.3 billion,
consists of peso demand deposits; the remaining two. 29 These de
deposit thirds consists of currency in circulation. ma deposits in the
banks constitute the funds against which among others, commercial
papers like checks, are drawn. The magnitude of the amount
involved amply justifies the legitimate concern of the state in
preserving the integrity of the banking system. Flooding the system
with worthless checks is like pouring garbage into the bloodstream
of the nation's economy.
The effects of the issuance of a worthless check transcends the
private interests of the parties directly involved in the transaction
and touches the interests of the community at large. The mischief it
creates is not only a wrong to the payee or holder, but also an injury
to the public. The harmful practice of putting valueless commercial
papers in circulation, multiplied a thousand fold, can very wen
pollute the channels of trade and commerce, injure the banking
system and eventually hurt the welfare of society and the public
interest. As aptly stated — 30
The 'check flasher' does a great deal more than contract
a debt; he shakes the pillars of business; and to my mind,
it is a mistaken charity of judgment to place him in the
same category with the honest man who is unable to pay
his debts, and for whom the constitutional inhibition
against' imprisonment for debt, except in cases of fraud
was intended as a shield and not a sword.
In sum, we find the enactment of BP 22 a valid exercise of the police
power and is not repugnant to the constitutional inhibition against
imprisonment for debt.
This Court is not unaware of the conflicting jurisprudence obtaining
in the various states of the United States on the constitutionality of
the "worthless check" acts. 31 It is needless to warn that foreign
jurisprudence must be taken with abundant caution. A caveat to be
observed is that substantial differences exist between our statute
and the worthless check acts of those states where the
jurisprudence have evolved. One thing to remember is that BP 22
was not lifted bodily from any existing statute. Furthermore, we have
to consider that judicial decisions must be read in the context of the
facts and the law involved and, in a broader sense, of the social
economic and political environment—in short, the milieu—under
which they were made. We recognize the wisdom of the old saying
that what is sauce for the goose may not be sauce for the gander.
As stated elsewhere, police power is a dynamic force that enables
the state to meet the exigencies of changing times. There are
occasions when the police power of the state may even override a
constitutional guaranty. For example, there have been cases
wherein we held that the constitutional provision on non-impairment
of contracts must yield to the police power of the state. 32 Whether
the police power may override the constitutional inhibition against
imprisonment for debt is an issue we do not have to address. This
bridge has not been reached, so there is no occasion to cross it.
We hold that BP 22 does not conflict with the constitutional inhibition
against imprisonment for debt.
V
We need not detain ourselves lengthily in the examination of the
other constitutional objections raised by petitioners, some of which
are rather flimsy.
We find no valid ground to sustain the contention that BP 22 impairs
freedom of contract. The freedom of contract which is
constitutionally protected is freedom to enter into "lawful" contracts.
Contracts which contravene public policy are not lawful. 33 Besides,
we must bear in mind that checks can not be categorized as mere
contracts. It is a commercial instrument which, in this modem day
and age, has become a convenient substitute for money; it forms
part of the banking system and therefore not entirely free from the
regulatory power of the state.
Neither do we find substance in the claim that the statute in question
denies equal protection of the laws or is discriminatory, since it
penalizes the drawer of the check, but not the payee. It is contended
that the payee is just as responsible for the crime as the drawer of
the check, since without the indispensable participation of the payee
by his acceptance of the check there would be no crime. This
argument is tantamount to saying that, to give equal protection, the
law should punish both the swindler and the swindled. The
petitioners' posture ignores the well-accepted meaning of the clause
"equal protection of the laws." The clause does not preclude
classification of individuals, who may be accorded different
treatment under the law as long as the classification is no
unreasonable or arbitrary. 34
It is also suggested that BP 22 constitutes undue or improper
delegation of legislative powers, on the theory that the offense is not
completed by the sole act of the maker or drawer but is made to
depend on the will of the payee. If the payee does not present the
check to the bank for payment but instead keeps it, there would be
no crime. The logic of the argument stretches to absurdity the
meaning of "delegation of legislative power." What cannot be
delegated is the power to legislate, or the power to make
laws. 35 which means, as applied to the present case, the power to
define the offense sought to be punished and to prescribe the
penalty. By no stretch of logic or imagination can it be said that the
power to define the crime and prescribe the penalty therefor has
been in any manner delegated to the payee. Neither is there any
provision in the statute that can be construed, no matter how
remotely, as undue delegation of executive power. The suggestion
that the statute unlawfully delegates its enforcement to the offended
party is farfetched.
Lastly, the objection has been raised that Section 9 (2) of Article VII
of the 1973 Constitution was violated by the legislative body when it
enacted BP 22 into law. This constitutional provision prohibits the
introduction of amendments to a bill during the Third Reading. It is
claimed that during its Third Reading, the bill which eventually
became BP 22 was amended in that the text of the second
paragraph of Section 1 of the bill as adopted on Second Reading
was altered or changed in the printed text of the bill submitted for
approval on Third Reading.
A careful review of the record of the proceedings of the Interim
Batasan on this matter shows that, indeed, there was some
confusion among Batasan Members on what was the exact text of
the paragraph in question which the body approved on Second
Reading. 36 Part of the confusion was due apparently to the fact that
during the deliberations on Second Reading (the amendment
period), amendments were proposed orally and approved by the
body or accepted by the sponsor, hence, some members might not
have gotten the complete text of the provisions of the bill as
amended and approved on Second Reading. However, it is clear
from the records that the text of the second paragraph of Section 1
of BP 22 is the text which was actually approved by the body on
Second Reading on February 7, 1979, as reflected in the approved
Minutes for that day. In any event, before the bin was submitted for
final approval on Third Reading, the Interim Batasan created a
Special Committee to investigate the matter, and the Committee in
its report, which was approved by the entire body on March 22,
1979, stated that "the clause in question was ... an authorized
amendment of the bill and the printed copy thereof reflects
accurately the provision in question as approved on Second
Reading. 37 We therefore, find no merit in the petitioners' claim that
in the enactment of BP 22 the provisions of Section 9 (2) of Article
VIII of the 1973 Constitution were violated.
28
WHEREFORE, judgment is rendered granting the petition in G.R.
No. 75789 and setting aside the order of the respondent Judge
dated August 19, 1986. The petitions in G.R. Nos. 63419, 66839-
42, 71654, 74524-25, 75122-49, 75812-13 and 75765-67 are
hereby dismissed and the temporary restraining order issued in
G.R. Nos. 74524-25 is lifted. With costs against private petitioners.
SO ORDERED.
FELICIANO V. AGBANLOG, petitioner,
vs.
PEOPLE OF THE PHILIPPINES AND
SANDIGANBAYAN, respondents.
Michael P. Moralde for petitioner.
QUIASON, J.:
This is a petition for review on certiorari under Rule 45 of the
Revised Rules of Court and Section 7 of P.D. No. 1606 as amended,
of the decision of the Sandiganbayan (First Division) promulgated
on June 28, 1992, which found petitioner guilty beyond reasonable
doubt of Malversation of Public Funds, penalized under paragraph
4, Article 217, of the Revised Penal Code, and sentencing him to
suffer, in the absence of mitigating and aggravating circumstances
"the indeterminate penalty of, from ELEVEN (11) years and one (1)
DAY of Prision Mayor, as minimum to SIXTEEN (16) YEARS, FIVE
(5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as
maximum, with the accessory penalties of the law; to pay a fine in
the amount of P21,940.70; to suffer the penalty of perpetual special
disqualification and to pay the costs."
The Sandiganbayan made the following findings of facts :
Feliciano Agbanlog y Vinluan was the Officer-in-
Charge of the Office of the Municipal Treasurer
of Aglipay, Quirino, for the period: March 24,
1986 to May 31, 1988. When audited by COA
Auditing Examiner Marcelina P. Reyes of the
Provincial Auditor's Office of Cobarroguis,
Quirino, on August 4, 1986 for the aforesaid
period of his incumbency as Acting Municipal
Treasurer, Feliciano Agbanlog was found short
in his cash and accounts in the sum of
P21,940.70.
The shortage was broken down in the following
manner :
a. Disallowed cash item
of Mr. Feliciano V. Agbanlog
May 31, 1986 worded as
cash
advance to defray various
expenses
which was not approved
by the Municipal Mayor
P12,504.49
b. Disallowed voucher No.
101-86-04-71 dated April 18,
1986
due to under delivery of
printed forms P2,900.00
c. Disallowed voucher No.
101-86-05-144 dated
May 31, 1986 due to
under delivery of printed
forms P3,260.00
d. Unaccounted collection
P3,276.21
————
Total
P21,940.
70
A written demand to explain the shortage and to
pay the amount thereof was neither answered
nor acted upon by the accountable officer.
Consequently, a Report was made by
Examining Auditors Marcelina P. Reyes,
Asuncion G. Tamondong and Margarita B.
Eugenio to the Provincial Auditor of Quirino,
manifesting their findings and recommending
the institution of administrative and/or criminal
charges against Acting Municipal Treasurer
Feliciano Agbanlog.
At the outset, the Auditors found the accused
Agbanlog short in the amount of P32,950.34,
broken down in this manner:
Accountability:
Balance shown by your
cash book on May 31, 1986
certified correct by you
and verified by us P85,186.40
Credits to Accountability:
Cash and valid cash items
produced by you
and counted on us P52,236.06
—————
Shortage P32,950.34
Upon the finding that P11,009.64 of this amount
was chargeable to the account of former
Municipal Treasurer Carlos Pastor, predecessor
of Municipal Treasurer Ruperto Pallaya, the said
amount of P11,009.64 was deducted from the
accountability of Feliciano Agbanlog. The Acting
Municipal Treasurer was nevertheless made
accountable for the shortage of P21,940.70, the
amount for which he is not charged.
As regards the disbursement voucher billed as a
cash advance for various expenses in the
amount of P12,504.49, Exhibit "E", this voucher
was disallowed by the auditors because there
was no appropriation for this disbursement. It is
indicated in the voucher that the giving out of this
money was in the nature of a cash advance. The
purpose for which the cash advance was given
out was, however, not clearly indicated. The
particulars of payment merely states "to cash
advance to defray various expenditures". Only
the signature of the accused Feliciano Agbanlog
may be found in the voucher. This indicates that
the amount of P12,504.49 was given out to and
received by the accused, Feliciano V. Agbanlog,
from Roberto E. Pallaya. Vouchers of this
nature, in order to be valid, must bear the
signature of the incumbent Municipal Mayor of
Aglipay, Quirino. The signature of the then
Mayor, the Hon. Deogracias L. Prego, Sr., does
not appear in the voucher. No invoice or receipt
was presented to support the disbursement.
Thus, considering the fact that the accused,
Feliciano V. Agbanlog received the proceeds of
the voucher, this disbursement has, indeed,
become the accountability of the accused,
whose duty it was to liquidate the same. The
accused did not so liquidate. Accused's
allegation that the amount of money involved
was given to him to the Municipal Mayor has not
been backed up by sufficient evidence. If this
amount of money were for the Mayor's account,
the Mayor should have been made to sign the
voucher, or else, there should have been
accomplished some sort of evidence payment
for the Mayor.
Disbursement Voucher No. 101-8604-71, dated
April 18, 1986, Exhibit "F", in the amount of
29
 P3,500.00, was partially disallowed because
printed forms for which the voucher was made
out was not actually delivered but yet paid for.
The accused was able to present proof of
delivery only of accounting forms valued at
P600.00. Consequently, the accused was
credited with the amount of P600.00. The
remaining balance of P2,900.00 was
nevertheless disallowed.
Disbursement Voucher No. 101-8605-144,
dated May 31, 1986, Exhibit "G" in the amount
of P4,110.00 was likewise partially disallowed.
The accused was able to show proof of a
legitimate disbursement in the amount of
P850.00. Consequently, the accused was
credited with this amount and only the sum of
P3,260.00 was disallowed.
As regards the shortage in the amount of
P3,276.21, representing the accused
unaccounted collections, per Collector's Daily
Statement of Collections for the period: April to
May, 1986, Exhibits "H" to "M", We find evidence
showing that this amount, while turned over to
the accused Feliciano Agbanlog in his capacity
as Acting Municipal Treasurer by Collectors
Jane G. Domingo, Marilyn Villarta, Danilo de
Guzman, Guadalupe M. Quimpayag and
Rolando Domingo, has not been accounted for,
the accused claiming that cash collections of the
aforesaid collectors were never remitted to him.
There is ample proof, therefore, of the fact that
the accused received these cash collections. His
signatures on various documents, Exhibits "H" to
"M", "H-1", "I-1", "J-1", "K-1", "L-1" and "M-1",
virtually indicate that the accused had actually
received the amounts indicated in these exhibits.
We cannot believe that the accused would sign
these documents if he did not receive the
amount of money corresponding thereto. The
accused's allegation, made as an afterthought,
that the collectors who were supposed to
turnover their collections to him did not actually
turnover their collections cannot be believed.
The contention that the collectors had instead
made out vales or cash advances covering the
amount of their collections, is not supported by
proof. The vale slips or cash advance papers
allegedly given to the accused in lieu of cash
could not be produced by the accused.
The accused was supposed to return these vale
slips to the collectors only after they made good
the borrowed amount. This lapse in evidence
does not speak well of the defense herein put up
by the accused. (Rollo, pp. 30-34)
Petitioner admits the shortage of the accountable funds charged by
the prosecution but claims that the prosecution failed to show that
the shortage accrued during his short stint as acting treasurer.
According to him, the audit of his funds should have been made
immediately upon his assumption as Officer-in-charge of the Office
of the Treasurer in the last week of March, 1986, instead of in
August, 1986. He further claims that while there was a turn-over of
the funds on June 2, 1986 when Municipal Treasurer Ruperto
Pallaya reported back for work, there was no turnover of the funds
when he temporarily took charge of the Office of the Treasurer.
(Rollo, pp. 5-6)
Re : Shortage of P12,504.49
Petitioner admits that he was the one who prepared the voucher,
(Exh. "E"), and who received the amount of P12,504.49 mentioned
therein. He does not deny the authenticity of his signatures
appearing thereon. No other person, other than petitioner, was
involved in the preparation of the said voucher and the receipt of the
amount of P12,504.49. He only claims that the money was given to
the Municipal Mayor, who allegedly refused to sign the voucher.
Petitioner, having worked as a bookkeeper in the Treasurer's Office
of Cobarroguis, Quirino, since 1979 and as Assistant Municipal
Treasurer since 1982, should know that vouchers must be signed
by the claimants. If he acknowledged receipt of the money knowing
that the claimant was the Municipal Mayor, he became a party to
the fraud and assumed responsibility for the consequences of his
acts. The defense did not call the Municipal Mayor to testify that he
was the real claimant and that he received the money from the
petitioner.
Re : Shortage of P2,900.00
Petitioner admits that he was the one who prepared the voucher
dated April 18, 1986 for the payment of various forms in the amount
of P3,500.00 (Exh. "F"). He was the one who acknowledged receipt
of the supplies mentioned in the voucher and who received the
amount of P3,500.00 in payment thereof. He even certified to the
necessity and legality of the expense.
When audited, petitioner was able to show the delivery of forms
valued at only P600.00. The burden was on petitioner to explain
satisfactorily the discrepancy between the voucher and the receipt
of the delivery.
Re : Shortage of P3,260.00
Out of the amount of P4,100.00 disbursed under the voucher
marked as Exhibit "G", petitioner admits having been able to support
payment of only P850.00; hence the amount of P3,260.00 was
disallowed.
Re :Shortage of P3,276.21
As to the shortage in the amount of P3,276.21 representing the
unaccounted collections of petitioner for the month of April and May
1986, petitioner claims that the said amount was never turned over
to him. If this was true, he should not have signed the documents
marked Exhibits "H" to "M", "A-1", "Y-7", "5-1", "K-1", "L-1" and "M-
1", all acknowledging receipt of the cash collections of the various
collectors.
In all the foregoing cases of shortage, petitioner admits having
prepared and collected the amounts stated in the vouchers (Exhs.
"E", "F", "G") and having signed the collectors' daily statement of
collection, which evidence his receipt of the amounts stated therein
(Exhs. "H" to "M"). With such admissions, how can petitioner now
attribute the shortage of his accountable funds to his predecessor?
It is also difficult to comprehend how an earlier audit of petitioner's
accountability or an audit made upon assumption of office of the
Municipal Treasurer could possible explain the shortages unearthed
by the government auditor and assist him in his defense.
The elements of malversation of public funds or property punishable
under Article 217 of the Revised Penal Code are :
a) That the offender is a public officer;.
b) That he had the custody or control of funds or property by reason
of the duties of his office;.
c) That those funds or property were public funds or property for
which he was accountable;.
d) That he appropriated, took, misappropriated or consented or,
through abandonment or negligence permitted another person to
take them. (II Reyes, The Revised Penal Code, p. 391 [1981 ed.])
The prosecution has established (a) that appellant received in his
possession public funds; (b) that he could not account for them and
did not have them in his possession when audited; and (c) that he
could not give a satisfactory explanation or reasonable excuse for
the disappearance of said funds. (Cabello v. Sandiganbayan, 197
SCRA 94 [1991]) The prosecution is not required to present direct
evidence of the misappropriation, which may be impossible to do.
(Villanueva v. Sandiganbayan, 200 SCRA 722 [1991]).
The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by any
duly authorized officer, is a prima facie evidence that he has put
such funds or property to personal use. (Art. 217, last paragraph,
Revised Penal Code as amended by R.A. 1060).
30
Petitioner questions as oppressive and unconstitutional the penalty
imposed on him — that of eleven years and one day of prision
mayor, as minimum, to sixteen years, five months and eleven days
of reclusion temporal, as maximum.
He argues that considering the value of the peso in 1932 when the
Revised Penal Code was enacted and the value of peso today, the
penalty for malversation of P21,000.00 should only be an
imprisonment of one or two years. (Rollo, pp. 10-11)
Assuming arguendo that inflation has in effect made more severe
the penalty for malversing P21,000.00, the remedy cannot come
from this Court but from the Congress. The Court can intervene and
strike down a penalty as cruel, degrading or inhuman only when it
has become so flagrantly oppressive and so wholly disproportionate
to the nature of the offense as to shock the moral senses. (People
v. Dionisio, 22 SCRA 1299 [1968]; People v. Estoista, 93 Phil. 647
[1953]; U.S. v. Borromeo, 23 Phil. 279 [1912]) Considering that
malversation of public funds by a public officer is a betrayal of the
public trust, We are not prepared to say that the penalty imposed on
petitioner is so disproportionate to the crime committed as to shock
the moral sense.
WHEREFORE, the petition for review is DISMISSED and the
decision appealed from is AFFIRMED in toto, with costs against
petitioner.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial
Court, Branch 52, Manila, and K.T. LIM alias MARIANO
LIM, respondents.
BELLOSILLO, J.:
Failing in his argument that B.P. 22, otherwise known as the
"Bouncing Check Law", is unconstitutional, 1 private respondent
now argues that the check he issued, a memorandum check, is in
the nature of a promissory note, hence, outside the purview of the
statute. Here, his argument must also fail.
The facts are simple. Private respondent K.T. Lim was charged
before respondent court with violation of B.P. 22 in an Information
alleging ––
That on . . . January 10, 1985, in the City of
Manila . . . the said accused did then and there
wilfully, unlawfully and feloniously make or draw
and issue to Fatima Cortez Sasaki . . . Philippine
Trust Company Check No. 117383 dated
February 9, 1985 . . . in the amount of
P143,000.00, . . . well knowing that at the time of
issue he . . . did not have sufficient funds in or
credit with the drawee bank . . . which check . . .
was subsequently dishonored by the drawee
bank for insufficiency of funds, and despite
receipt of notice of such dishonor, said accused
failed to pay said Fatima Cortez Sasaki the
amount of said check or to make arrangement
for full payment of the same within five (5)
banking days after receiving said notice. 2
On 18 July 1986, private respondent moved to quash the
Information of the ground that the facts charged did not constitute a
felony as B.P. 22 was unconstitutional and that the check he issued
was a memorandum check which was in the nature of a promissory
note, perforce, civil in nature. On 1 September 1986, respondent
judge, ruling that B.P. 22 on which the Information was based was
unconstitutional, issued the questioned Order quashing the
Information. Hence, this petition for review on certiorari filed by the
Solicitor General in behalf of the government.
Since the constitutionality of the "Bouncing Check Law" has already
been sustained by this Court in Lozano v.Martinez 3 and the seven
(7) other cases decided jointly with it, 4 the remaining issue, as aptly
stated by private respondent in his Memorandum, is whether a
memorandum check issued postdated in partial payment of a pre-
existing obligation is within the coverage of B.P. 22.
Citing U.S. v. Isham, 5 private respondent contends that although a
memorandum check may not differ in form and appearance from an
ordinary check, such a check is given by the drawer to the payee
more in the nature of memorandum of indebtedness and, should be
sued upon in a civil action.
We are not persuaded.
A memorandum check is in the form of an ordinary check, with the
word "memorandum", "memo" or "mem" written across its face,
signifying that the maker or drawer engages to pay the bona
fide holder absolutely, without any condition concerning its
presentment. 6 Such a check is an evidence of debt against the
drawer, and although may not be intended to be presented, 7 has
the same effect as an ordinary check, 8 and if passed to the third
person, will be valid in his hands like any other check. 9
From the above definition, it is clear that a memorandum check,
which is in the form of an ordinary check, is still drawn on a bank
and should therefore be distinguished from a promissory note,
which is but a mere promise to pay. If private respondent seeks to
equate memorandum check with promissory note, as he does to
skirt the provisions of B.P. 22, he could very well have issued a
promissory note, and this would be have exempted him form the
coverage of the law. In the business community a promissory note,
certainly, has less impact and persuadability than a check.
Verily, a memorandum check comes within the meaning of Sec. 185
of the Negotiable Instruments Law which defines a check as "a bill
of exchange drawn on a bank payable on demand." A check is also
defined as " [a] written order or request to a bank or persons carrying
on the business of banking, by a party having money in their hands,
desiring them to pay, on presentment, to a person therein named or
bearer, or to such person or order, a named sum of money," citing 2
Dan. Neg. Inst. 528; Blair v. Wilson, 28 Gratt. (Va.) 170; Deener
v. Brown,1 MacArth. (D.C.) 350; In re Brown, 2 Sto. 502, Fed. Cas.
No. 1,985. See Chapman v. White, 6 N.Y. 412, 57 Am. Dec
464. 10 Another definition of check is that is "[a] draft drawn upon a
bank and payable on demand, signed by the maker or drawer,
containing an unconditional promise to pay a sum certain in money
to the order of the payee," citing State v. Perrigoue, 81 Wash, 2d
640, 503 p. 2d 1063, 1066. 11
A memorandum check must therefore fall within the ambit of B.P.
22 which does not distinguish but merely provides that "[a]ny person
who makes or draws and issues any check knowing at the time of
issue that he does not have sufficient funds in or credit with the
drawee bank . . . which check is subsequently dishonored . . . shall
be punished by imprisonment . . ." (Emphasis supplied ). 12 Ubi lex
no distinguit nec nos distinguere debemus.
But even if We retrace the enactment of the "Bouncing Check Law"
to determine the parameters of the concept of "check", We can
easily glean that the members of the then Batasang Pambansa
intended it to be comprehensive as to include all checks drawn
against banks. This was particularly the ratiocination of Mar. Estelito
P. Mendoza, co-sponsor of Cabinet Bill No. 9 which later became
B.P. 22, when in response to the interpellation of Mr. Januario T.
Seño, Mr. Mendoza explained that the draft or order must be
addressed to a bank or depository, 13and accepted the proposed
amendment of Messrs. Antonio P. Roman and Arturo M. Tolentino
that the words "draft or order", and certain terms which technically
meant promissory notes, wherever they were found in the text of the
bill, should be deleted since the bill was mainly directed against the
pernicious practice of issuing checks with insufficient or no funds,
and not to drafts which were not drawn against banks. 14
A memorandum check, upon presentment, is generally accepted by
the bank. Hence it does not matter whether the check issued is in
the nature of a memorandum as evidence of indebtedness or
whether it was issued is partial fulfillment of a pre-existing obligation,
for what the law punishes is the issuance itself of a bouncing
check15 and not the purpose for which it was issuance. The mere
act of issuing a worthless check, whether as a deposit, as a
guarantee, or even as an evidence of a pre-existing debt, is malum
prohibitum. 16
We are not unaware that a memorandum check may carry with it
the understanding that it is not be presented at the bank but will be
31
redeemed by the maker himself when the loan fall due. This
understanding may be manifested by writing across the check
"Memorandum", "Memo" or "Mem." However, with the promulgation
of B.P. 22, such understanding or private arrangement may no
longer prevail to exempt it from penal sanction imposed by the law.
To require that the agreement surrounding the issuance of check be
first looked into and thereafter exempt such issuance from the
punitive provision of B.P. 22 on the basis of such agreement or
understanding would frustrate the very purpose for which the law
was enacted — to stem the proliferation of unfunded checks. After
having effectively reduced the incidence of worthless checks
changing hands, the country will once again experience the limitless
circulation of bouncing checks in the guise of memorandum checks
if such checks will be considered exempt from the operation of B.P.
22. It is common practice in commercial transactions to require
debtors to issue checks on which creditors must rely as guarantee
of payment. To determine the reasons for which checks are issued,
or the terms and conditions for their issuance, will greatly erode the
faith the public responses in the stability and commercial value of
checks as currency substitutes, and bring about havoc in trade and
in banking communities. 17
submission of the Inventory of the Estate of the decedent, referred
as Motion-Annex 'A' thereof. The Inventory shows that the
properties left by the deceased consists of Real and Personal
Properties, as well as Credits and Collectibles, itemized under letter
heading A, B, and C of the Inventory, respectively.
2. The Real Properties are occupied by some lessees,
namely: Cargo Bridge Philippines Corporation, represented by its
President Mr. Bernhard Ashauer, Jr.; Mrs. Lea Amorcillo, Mrs.
Milagros Majoremos, Mr. Danilo Aguylo, Mrs. Marjorie Jalalon, Mrs.
Jona Sarvida, Mrs. Analyn Malunes, Mrs. Edna Rubi, Mrs.
Josephine Saballa, Mr. Benjamin Vergara, Mr. Jerry Peligro, Mrs.
Mary Joy Sandi, and Mr. Jaime Cabarse, all inside the Allers'
Property Compound at 8110 Dr. A. Santos Ave., San Dionisio,
Parañaque City.
xxx xxx xxx

WHEREFORE, the petition is GRANTED and the Order of

respondent Judge of 1 September 1986 is SET ASIDE.
Consequently, respondent Judge, or whoever presides over the
Regional Trial Court of Manila, Branch 52, is hereby directed
forthwith to proceed with the hearing of the case until terminated.
SO ORDERED.
G.R. No. 154037 April 30, 2003
5. It is further shown that all known intervenors, lessees and
heirs were served of the motion and notified of the hearing, with no
opposition except intervenor Berlito P. Taripe, based on his claim
against the estate, which may be treated in due time for claims
against the estate. However, the motion under consideration refers
to the return to the court of the true Inventory of the Estate of the
deceased within three (3) months as directed under Section 1, Rule
83 which sets a specific period of time to submit, otherwise it is
violated. The opposition is not tenable.

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF

BENJAMIN VERGARA, JONA SARVIDA, MILAGROS
6. Finding the motion meritorious, the same is hereby
MAJOREMOS, MAJORIE JALALON, MAY JOY MENDOZA (@
GRANTED. As prayed for, the Inventory of the Estate attached
May Joy Sandi), and JOY SABALLA (@ Josephine Saballa),
therewith as Motion-Annex 'A' (sic) and considered as a compliance
MABELYN B. VERGARA, RIO SARVIDA, FRANCISCO
of the required return of the true Inventory of the estate of the
MAJOREMOS, in their respective behalves and in behalf of ROY
decedent.
JALALON, ROMMEL MENDOZA and DELFIN SABALLA,
petitioners,

vs. 7. Further, the lessees above-cited and listed in the Inventory

are directed to pay their respective monthly rental regularly starting
HON. FRANCISCO C. GEDORIO, JR., Presiding Judge, Regional
the month of August, 1999, including arrears if any, to the duly
Trial Court of Ormoc, Branch 12; SPO3 ANGELO S. LLENOS and
appointed Special Administratrix Mrs. Eleuteria P. Bolaño, until
the CITY JAIL WARDEN OF ORMOC; and ELEUTERIA P.
further notice.
BOLAÑO, respondents.

xxx xxx xxx

AUSTRIA-MARTINEZ, J.:

Let copies of this Order together with the Inventory served to all
Petitioners are the tenants of Berlito P. Taripe on a property located
above-cited.
in Dr. A. Santos Ave., Parañaque City. On December 24, 2001, they
were arrested by Ormoc City policemen by authority of a Warrant of
Arrest dated November 19, 2001 issued by Judge Fortunito L.
Madrona in Sp. Proc. No. 3695-0 for Issuance of Letters of SO ORDERED.3 (Emphasis Ours)
Administration, Distribution and Partition pending before the
Regional Trial Court of Ormoc City (Branch 12).1
Copies of the order were sent on October 12, 1999 to petitioners via
registered mail.4
The warrant of arrest stemmed from a motion filed by respondent
Eleuteria P. Bolaño, as Special Administratrix of the estate of the
late Anselma P. Allers, praying that petitioners be held guilty of
Five months later, on motion of respondent Bolaño, as Special
indirect contempt for not complying with the probate court's order
Administratrix, the probate court issued a writ of execution on March
dated October 9, 1999 directing them to pay their monthly rentals to
3, 2000 to enforce the aforesaid order dated October 5, 1999. The
respondent Bolaño.2
Sheriff submitted a return dated August 10, 2000 stating that on
June 5, 2000, he met with petitioners but failed to collect the rentals
due on the property as Taripe had already collected from them three
It appears that pending the settlement of the estate of the deceased months advance rentals.5
Allers, respondent Bolaño included the property leased by Taripe to
petitioners in the inventory of the estate. The probate court issued
the assailed Order dated October 5, 1999, portions of which read as
On August 4, 2000, respondent Bolaño filed a motion to require
follows:
petitioners to explain why they should not be cited in indirect
contempt for disobeying the October 5, 1999 order of the probate
court.6 Petitioners were served copies of the motion by registered
1. SUBMITTED FOR RESOLUTION is an omnibus motion mail.7 The probate court granted the motion in its Resolution dated
filed by the Petitioner-Administratrix, informing among others, the September 7, 2000, portions of which read as follows:
32
The Motion to Exclude Certain Parcels of Land as part of the Estate
of the decedent is also denied for lack of merit. The properties
sought to be excluded by intervenor Bertito P. Taripe are
titled/registered in the name of the decedent and therefore they
should be included in the inventory of the intestate estate of
Anselma Allers. If intervenor has claims against the estate, he
should file a separate action against the Administratrix in
accordance with Rule 87 of the Revised Rules of Court. As it is,
intervenor cannot claim ownership over properties registered in the
name of the decedent by mere motion.
The Return of the Deputy Sheriff of the Writ of Execution is noted.
Petitioner's motion to let the lessees explain why they should not be
cited for contempt for disobeying the Court's order is granted. All
lessees listed on the Writ of Execution are hereby ordered to explain
within twenty (20) days from receipt of this order why they should
not be cited for indirect contempt of the Court for disobeying the
Court's Order dated October 5, 1999, and the Writ of Execution
dated May 29, 2000.
SO ORDERED. (Emphasis Ours)
Petitioners were furnished copies of the said Order on September
27, 2000 by registered mail.8
Six months later, in a letter dated March 18, 2001, some of the
petitioners, together with the other tenants of the property, informed
the probate court that they are "freezing" their monthly rentals as
they are in a quandary as to whom to pay the rentals.9
Respondent Bolaño then filed on March 20, 2001, a motion to cite
petitioners in contempt, which was set for hearing on May 11,
2001.10 In its Order dated May 11, 2001, the probate court found
petitioners guilty of indirect contempt and ordered them to pay a fine
of P30,000.00 each and to undergo imprisonment until they comply
with the probate court's order for them to pay rentals.11
Petitioners again wrote the probate court on June 11, 2001 asking
that the indirect contempt "slapped" against them be withdrawn.
They stated that their failure to attend the May 11, 2001 hearing was
due to financial constraints, most of them working on construction
sites, receiving minimum wages, and repeated that the reason why
they are freezing the monthly rentals is that they are uncertain as to
whom to remit it.12
Upon motion of respondent Bolaño, the probate court, per its Order
dated November 16, 2001, issued a warrant of arrest on November
19, 2001. On December 24, 2001, petitioners were arrested.
On December 26, 2001, petitioners filed with the Court of Appeals
a petition for the issuance of a writ of habeas corpus.13 On January
3, 2002, the appellate court ordered the temporary release of
petitioners.14 After due proceedings, the appellate court rendered
its decision on March 26, 2002 denying the petition for lack of merit.
The dispositive portion of the decision reads:
WHEREFORE, the instant petition for issuance of a writ of habeas
corpus is hereby DENIED for lack of merit. This Court's resolution
ordering the temporary release of the lessees is hereby
RECALLED. The lessees are ordered REMANDED to the custody
of the Jail Warden of Ormoc City until they have complied with the
orders of the probate court.
No pronouncement as to costs.
SO ORDERED.15
Their motion for reconsideration having been denied, petitioners
filed herein petition for review on certiorari under Rule 45 of the
Rules of Court, based on the following grounds:
I. THE APPELLATE COURT ERRED IN NOT HOLDING
THAT THE ORDER DATED OCTOBER 5, 1999 (ANNEX "E")
PARTICULARLY THE PORTION THEREOF WHICH SUMMARILY
DIRECTED THE LESSEES TO TURNOVER THEIR MONTHLY
RENTALS OF THE APARTMENTS OF BERLITO P. TARIPE TO
ELEUTERIA P. BOLAÑO AS SPECIAL ADMINISTRATRIX, IS
UNLAWFUL;
II. THE APPELLATE COURT ERRED IN NOT HOLDING
THAT THE MOTION FOR INDIRECT CONTEMPT OF COURT
FILED BY RESPONDENT ELEUTERIA P. BOLAÑO AGAINST THE
LESSEES IS NOT THE PROPER REMEDY AND THAT THE
ORDER OF THE COURT A QUO GRANTING SAID MOTION AND
DECLARING THAT THE LESSEES ARE GUILTY OF INDIRECT
CONTEMPT IS A REVERSIBLE ERROR.
III. THE APPELLATE COURT ERRED IN NOT HOLDING
THAT THE ORDER OF THE COURT A QUO TO ISSUE WARRANT
OF ARREST AND THE SAID WARRANT SO ISSUED AS WELL
AS THE ACTUAL ARREST OF SAID LESSEES IN COMPLIANCE
THEREWITH, ARE UNLAWFUL;
IV. THE APPELLATE COURT ERRED IN NOT HOLDING
THE TEMPORARY RELEASE OF THE LESSEES
PERMANENT.16
The crux of petitioners' arguments is that they were not notified of
the motion filed by respondent Special Administratrix Bolaño,
submitting an inventory of the estate of the late Anselma P. Allers,
which includes the property occupied by them. Such being the case,
petitioners contend that the order dated October 5, 1999 granting
the motion and directing them to pay the rentals to Bolaño is
unlawful hence, their refusal to comply with it is not
contumacious.17 They also assail the appointment of respondent
Bolaño as Special Administratrix for having been made without the
required bond,18 and that she has no authority to file the motion for
indirect contempt, as her powers are limited.19
When service of notice is an issue, the rule is that the person
alleging that the notice was served must prove the fact of service.20
The burden of proving notice rests upon the party asserting its
existence.21 In civil cases, service made through registered mail is
proved by the registry receipt issued by the mailing office and an
affidavit of the person mailing of facts showing compliance with
Section 7 of Rule 13. In the present case, as proof that petitioners
were served with copies of the omnibus motion submitting an
inventory of the estate of deceased Allers, respondent Bolaño
presented photocopies of the motion with a certification by counsel
that service was made by registered mail, together with the registry
receipts.22 While the affidavit and the registry receipts proved that
petitioners were served with copies of the motion, it does not follow,
however, that petitioners in fact received the motion. Respondent
Bolaño failed to present the registry return cards showing that
petitioners actually received the motion.23 Receipts for registered
letters and return receipts do not prove themselves, they must be
properly authenticated in order to serve as proof of receipt of the
letters.24 Respondent also failed to present a certification of the
33
postmaster that notice was duly issued and delivered to petitioners
such that service by registered mail may be deemed completed.25
Nonetheless, even in the absence of proof of actual receipt by the
petitioners, the subject orders issued by the probate court are valid
and enforceable. Petitioners cannot deny the fact that they had
actual knowledge of the said orders. They have admitted in their
letter dated March 18, 2001 addressed to the probate court that they
received the court's order dated October 5, 1999 "barely 2 months
before," 26 or sometime in January 2001. Instead of complying with
the said order, they "froze" payment of their rentals for the reason
that they are caught in the middle of the dispute and are not sure to
whom to give the rentals. When respondent Bolaño filed the motion
to cite them in indirect contempt, setting the hearing on May 11,
2001, again, records show that they had actual knowledge of the
same. In their second letter, dated June 11, 2001, addressed to the
probate court, they acknowledged that they knew of the hearing set
on May 11, 2001, and the reason for their failure to attend was due
to financial constraints.27 They likewise admitted in said letter that
they knew of the court's order dated May 11, 2001 finding them
guilty of indirect contempt.28 Petitioners therefore cannot cry denial
of due process as they were actually notified of the proceedings
before the probate court. Thus, under the circumstances, it is not
imperative to require proof of a formal notice. It would be an idle
ceremony where an adverse party, as in this case, had actual
knowledge of the proceedings.29
When petitioners refused to remit the rentals to respondent Bolaño
per Order dated October 5, 1999, a written charge of indirect
contempt was duly filed before the trial court and hearing on the
motion set on May 11, 2001. As previously stated, petitioners did
not attend said hearing despite knowledge thereof; instead, they
wrote the court on June 11, 2001 asking that the contempt findings
against them be withdrawn. Clearly, they were given the opportunity
to be heard, and as aptly stated by the court, they were given more
than sufficient time to comply with the Order dated October 5,
1999.30
Despite the foregoing, we find that the trial court's finding of
contempt and the order directing the imprisonment of petitioner to
be unwarranted. The salutary rule is that the power to punish to
contempt must be exercised on the preservative, not vindictive
principle, and on the corrective and not retaliatory idea of
punishment. Court must exercise their contempt powers judiciously
and sparingly, with utmost self-restraint.31
In Halili vs. Court of Industrial Relations,32 the Court quoted the
pronouncements of some American courts, to wit:
Except where the fundamental power of the court to imprison for
contempt has been restricted by statute, and subject to
constitutional prohibitions where a contemnor fails or refuses to
obey an order of the court for the payment of money he may be
imprisoned to compel obedience to such order. [Fla.–Revell v.
Dishong, 175 So. 905, 129 Fla. 9; Va. Branch v. Branch, 132 S.E.
303; 144 Va. 244]. (17 C.J.S. 287).
xxx xxx xxx
. . . It has been said that imprisonment for contempt as a means of
coercion for civil purpose cannot be resorted to until all other means
fail [Mich.–Atchison, etc. R. co. v. Jennison, 27 N.W. 6, 60 Mich.
232], but the court's power to order the contemnor's detension
continues so long as the contumacy persists [Ark.–Lane v.
Alexander, 271 S.W. 710, 168 Ark. 700] (17 C.J.S. 289).33
which we hereby adopt as proper guidelines in the determination of
whether the Court of Appeals erred in affirming the order of the trial
court finding petitioners guilty of indirect contempt of court and
directing their imprisonment for their contumacious refusal to pay
the rentals to the administratrix.
In Philippine jurisdiction, Section 20, Article 3 of the 1987 Philippine
Constitution expressly provides that no person shall be imprisoned
for debt. Debt, as used in the Constitution, refers to civil debt or one
not arising from a criminal offense.34 It means any liability to pay
arising out of a contract, express or implied.35 In the present case,
petitioners, as recognized lessees of the estate of the deceased,
were ordered by the probate court to pay the rentals to the
administratrix. Petitioners did not comply with the order for the
principal reason that they were not certain as to the rightful person
to whom to pay the rentals because it was a certain Berlito P. Taripe
who had originally leased the subject property to them. Clearly, the
payment of rentals is covered by the constitutional guarantee
against imprisonment.
Moreover, petitioners cannot be validly punished for contempt under
Section 8, Rule 71 of the Rules of Court to wit:
SEC. 8. Imprisonment until order obeyed. — When the contempt
consists in the refusal or omission to do an act which is yet in the
power of the respondent to perform, he may be imprisoned by order
of the court concerned until he performs it. (7a)
because herein subject order is not a special judgment enforceable,
under Section 11, Rule 39, which provides:
SEC. 11. Execution of special judgment. — When a judgment
requires the performance of any act other than those mention in the
two preceding sections, a certified copy of judgment shall be
attached to the writ of execution and shall be served by the officer
upon the party against whom the same is rendered, or upon any
other person required thereby, or by law to obey the same, and such
party or person may be punished for contempt if he disobeys such
judgment.
Section 9 of Rule 39 refers to the execution of judgments for money,
thus:
SEC. 9. Execution of judgments for money, how enforced. — (a)
Immediate payment on demand. — The officer shall enforce an
execution of a judgment for money by demanding from the judgment
obligor the immediate payment of the full amount stated in the writ
of execution and all lawful fees. The judgment obligor shall pay in
cash, certified bank check payable to the judgment obligee, or any
other form of payment acceptable to the latter, the amount of the
judgment debt under proper receipt directly to the judgment obligee
or his authorized representative if present at the time of payment.
The lawful fees shall be handed under proper receipt to the
executing sheriff who shall turn over the said amount within the
same day to the clerk of court of the court that issued the writ.
If the judgment obligee or his authorized representative is not
present to receive payment, the judgment obligor shall deliver the
aforesaid payment to the executing sheriff. The latter shall turn over
all the amounts coming into his possession within the same day to
the clerk of court of the court that issued the writ, or if the same is
not practicable, deposit said amounts to a fiduciary account in the
nearest government depository bank of the Regional Trial court of
the locality.
The clerk of said court shall thereafter arrange for the remittance of
the deposit to the account of the court that issued the writ whose
clerk of court shall then deliver said payment to the judgment obligee
in satisfaction of the judgment. The excess, if any, shall be delivered
34
to the judgment obligor while the lawful fees shall be retained by the
clerk of court for disposition as provided by law. In no case shall the
executing sheriff demand that any payment by check be made
payable to him.
(b) Satisfaction by levy. — If the judgment obligor cannot pay
all or part of the obligation in cash, certified bank check or other
mode or payment acceptable to the judgment obligee, the officer
shall levy upon the properties of the judgment obligor of every kind
and nature whatsoever which may be disposed of for value and not
otherwise exempt from execution giving the latter the option to
immediately choose which property or part thereof may be levied
upon, sufficient to satisfy the judgment. If the judgment obligor does
not exercise the option, the officer shall first levy on the personal
properties, if any, and then on the real properties if the personal
properties are insufficient to answer for the judgment.
The sheriff shall sell only a sufficient portion of the personal or real
property of the judgment obligor which has been levied upon.
When there is more property of the judgment obligor than is
sufficient to satisfy the judgment and lawful fees, he must sell only
so much of the personal or real property as is sufficient to satisfy the
judgment and lawful fees.
Real property, stocks, shares, debts, credits, and other personal
property, or any interest in either real or personal property, may be
levied upon in like manner and with like effect as under a writ of
attachment.
(c) Garnishment of debts and credits. — The officer may levy
on debts due the judgment obligor and other credits, including bank
deposits, financial interests, royalties, commissions and other
personal property not capable of manual delivery in the possession
or control of third parties. Levy shall be made by serving notice upon
the person owing such debts or having in his possession or control
such credits to which the judgment obligor is entitled. The
garnishment shall cover only such amount as will satisfy the
judgment and all lawful fees.
The garnishee shall make a written report to the court within five (5)
days from service of the notice of garnishment stating whether or
not the judgment obligor has sufficient funds or credits to satisfy the
amount of the judgment. If not, the report shall state how much funds
or credits the garnishee holds for the judgment obligor. The
garnished amount in cash, or certified bank check issued in the
name of the judgment obligee, shall be delivered directly to the
judgment obligee within ten (10) working days from service of notice
on said garnishee requiring such delivery, except the lawful fees
which shall be paid directly to the court.
In the event there are two or more garnishees holding deposits or
credits sufficient to satisfy the judgment, the judgment obligor, if
available, shall have the right to indicate the garnishee or
garnishees who shall be required to deliver the amount due;
otherwise, the choice shall be made by the judgment obligee.
The executing sheriff shall observe the same procedure under
paragraph (a) with respect to delivery of payment to the judgment
obligee. (8a, 15a)
while Section 10 of the same Rule refers to execution of judgments
for specific acts such as conveyance, delivery of deeds or other
specific acts vesting title; sale of real or personal property, delivery
or restitution of real property, removal of improvements on property
subject of execution and delivery of personal property.
The order directing the payment of rentals falls within the purview of
Section 9 as quoted above. Until and unless all the means provided
for under Section 9, Rule 39 have been resorted to and failed,
imprisonment for contempt as a means of coercion for civil purposes
cannot be resorted to by the courts.36 In Sura vs. Martin, Sr.,37 we
held that:
Where an order for the arrest and imprisonment of defendant for
contempt of court (for failure to satisfy a judgment for support on
ground of insolvency) would, in effect, violate the Constitution.
Thus, petitioners could not be held guilty of contempt of court for
their continued refusal to comply with the probate court's order to
pay rentals to the administratrix nor could they be held guilty of
contempt for disobeying the writ of execution issued by the probate
court, which directs therein the Sheriff, thus:
Should lessees fail to pay the aforementioned amounts on rentals,
then of the goods and chattels of said lessees you may cause to be
made the sum sufficient to cover the aforestated amounts, but if no
sufficient personal properties are found thereof to satisfy this
execution, then of the real properties you make the sums of money
in the manner required by law and make return of your proceeding
under this writ within the reglementary period.38
It was the sheriff's duty to enforce the writ.39
Under Section 9(b), Rule 39, of the Rules of Court, in cases when
the execution calls for payment of money and the obligor cannot pay
all or part of the obligation in cash, certified bank check or other
mode or payment acceptable to the judgment obligee, the officer
shall levy upon the properties of the judgment obligor of every kind
and nature whatsoever which may be disposed of for value and not
otherwise exempt from execution giving the latter the option to
immediately choose which property or part thereof may be levied
upon, sufficient to satisfy the judgment. If the judgment obligor does
not exercise the option, the officer shall first levy on the personal
properties, if any, and then on the real properties if the personal
properties are insufficient to answer for the judgment. The sheriff
shall sell only a sufficient portion of the personal or real property of
the judgment obligor which has been levied upon. When there is
more property of the judgment obligor than is sufficient to satisfy the
judgment and lawful fees, he must sell only so much of the personal
or real property as is sufficient to satisfy the judgment and lawful
fees. Real property, stocks, shares, debts, credits, and other
personal property, or any interest in either real or personal property,
may be levied upon in like manner and with like effect as under a
writ of attachment.
The writ of execution issued by the trial court in this case
commanded its sheriff to collect from petitioners the rentals due
from the property, and should they fail to pay, from petitioners'
personal/real properties sufficient to cover the amounts sought to be
collected.40 It was not addressed to petitioners. It pertained to the
sheriff to whom the law entrusts the execution of judgments,41 and
it was due to the latter's failure that the writ was not duly enforced.
In fine, the Court of Appeals committed a reversible error in affirming
the Decision dated November 16, 2001 of the trial court.
WHEREFORE, finding the petition for review on certiorari to be with
merit, the decision dated March 26, 2002 rendered by the Court of
Appeals is REVERSED and SET ASIDE. Its Resolution dated
January 3, 2002 ordering the temporary release of petitioners is
made permanent. The Warrant of Arrest dated November 19, 2001
35
issued by the Regional Trial Court of Ormoc City (Branch 12) in Sp.
Proc. No. 3695-0 is DEEMED RECALLED.
No costs.
SO ORDERED.
G.R. No. L-32485 October 22, 1970
IN THE MATTER OF THE PETITION FOR THE DECLARATION OF
THE PETITIONER'S RIGHTS AND DUTIES UNDER SEC. 8 OF
R.A. No. 6132.
KAY VILLEGAS KAMI, INC., petitioner.
MAKASIAR, J.:.
This petition for declaratory relief was filed by Kay Villegas Kami,
Inc., claiming to be a duly recognized and existing non-stock and
non-profit corporation created under the laws of the land, and
praying for a determination of the validity of Sec. 8 of R.A. No. 6132
and a declaration of petitioner's rights and duties thereunder. In
paragraph 7 of its petition, petitioner avers that it has printed
materials designed to propagate its ideology and program of
government, which materials include Annex B; and that in
paragraph 11 of said petition, petitioner intends to pursue its
purposes by supporting delegates to the Constitutional Convention
who will propagate its ideology.
Petitioner, in paragraph 7 of its petition, actually impugns because
it quoted, only the first paragraph of Sec. 8(a) on the ground that it
violates the due process clause, right of association, and freedom
of expression and that it is an ex post facto law.
The first three grounds were overruled by this Court when it held
that the questioned provision is a valid limitation on the due process,
freedom of expression, freedom of association, freedom of
assembly and equal protection clauses; for the same is designed to
prevent the clear and present danger of the twin substantive evils,
namely, the prostitution of electoral process and denial of the equal
protection of the laws. Moreover, under the balancing-of-interests
test, the cleansing of the electoral process, the guarantee of equal
change for all candidates, and the independence of the delegates
who must be "beholden to no one but to God, country and
conscience," are interests that should be accorded primacy.1
The petitioner should therefore be accordingly guided by the
pronouncements in the cases of Imbong and Gonzales. 2
The claim of petitioner that the challenged provision constitutes an
ex post facto law is likewise untenable.
An ex post facto law is one which:.
(1) makes criminal an act done before the passage of the law
and which was innocent when done, and punishes such an act;
(2) aggravates a crime, or makes it greater than it was, when
committed;
(3) changes the punishment and inflicts a greater punishment
than the law annexed to the crime when committed;
(4) alters the legal rules of evidence, and authorizes
conviction upon less or different testimony than the law required at
the time of the commission of the offense;
(5) assuming to regulate civil rights and remedies only, in
effect imposes penalty or deprivation of a right for something which
when done was lawful; and
(6) deprives a person accused of a crime of some lawful
protection to which he has become entitled, such as the protection
of a former conviction or acquittal, or a proclamation of amnesty.3
From the aforesaid definition as well as classification of ex post facto
laws, the constitutional inhibition refers only to criminal laws which
are given retroactive effect.4
While it is true that Sec. 18 penalizes a violation of any provision of
R.A. No. 6132 including Sec. 8(a) thereof, the penalty is imposed
only for acts committed after the approval of the law and not those
perpetrated prior thereto. There is nothing in the law that remotely
insinuates that Secs. 8(a) and 18, or any other provision thereof,
shall apply to acts carried out prior to its approval. On the contrary,
See. 23 directs that the entire law shall be effective upon its
approval. It was approved on August 24, 1970.
WHEREFORE, the prayer of the petition is hereby denied and
paragraph 1 of Sec. 8(a) of R.A. No. 6132 is not unconstitutional.
Without costs.
G.R. No. 135080 November 28, 2007
ORLANDO L. SALVADOR, for and in behalf of the Presidential Ad
Hoc Fact-Finding Committee on Behest Loans, Petitioner,
vs.
PLACIDO L. MAPA, JR., RAFAEL A. SISON, ROLANDO M. ZOSA,
CESAR C. ZALAMEA, BENJAMIN BAROT, CASIMIRO TANEDO,
J.V. DE OCAMPO, ALICIA L. REYES, BIENVENIDO R. TANTOCO,
JR., BIENVENIDO R. TANTOCO, SR., FRANCIS B. BANES,
ERNESTO M. CARINGAL, ROMEO V. JACINTO, and MANUEL D.
TANGLAO, Respondents.
DECISION
NACHURA, J.:
The Presidential Ad Hoc Fact-Finding Committee on Behest Loans,
(the Committee), through Atty. Orlando L. Salvador (Atty. Salvador),
filed this Petition for Review on Certiorari seeking to nullify the
October 9, 1997 Resolution1 of the Office of the Ombudsman in
OMB-0-96-2428, dismissing the criminal complaint against
36
respondents on ground of prescription, and the July 27, 1998
Order2 denying petitioner’s motion for reconsideration.
On October 8, 1992 then President Fidel V. Ramos issued
Administrative Order No. 13 creating the Presidential Ad Hoc Fact-
Finding Committee on Behest Loans, which reads:
WHEREAS, Sec. 28, Article II of the 1987 Constitution provides that
"Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its
transactions involving public interest";
WHEREAS, Sec. 15, Article XI of the 1987 Constitution provides
that "The right of the state to recover properties unlawfully acquired
by public officials or employees, from them or from their nominees
or transferees, shall not be barred by prescription, laches or
estoppel";
WHEREAS, there have been allegations of loans, guarantees, and
other forms of financial accommodations granted, directly or
indirectly, by government-owned and controlled bank or financial
institutions, at the behest, command, or urging by previous
government officials to the disadvantage and detriment of the
Philippines government and the Filipino people;
ACCORDINGLY, an "Ad-Hoc FACT FINDING COMMITTEE ON
BEHEST LOANS" is hereby created to be composed of the
following:
Chairman of the Presidential
Commission on Good Government - Chairman
The Solicitor General - Vice-Chairman
Representative from the
Office of the Executive Secretary - Member
Representative from the
Department of Finance - Member
Representative from the
Department of Justice - Member
Representative from the
Development Bank of the Philippines - Member
Representative from the
Philippine National Bank - Member
Representative from the
Asset Privatization Trust - Member
Government Corporate Counsel - Member
Representative from the
Philippine Export and Foreign
Loan Guarantee Corporation - Member
The Ad Hoc Committee shall perform the following functions:
1. Inventory all behest loans; identify the lenders and borrowers,
including the principal officers and stockholders of the borrowing
firms, as well as the persons responsible for granting the loans or
who influenced the grant thereof;
2. Identify the borrowers who were granted "friendly waivers," as
well as the government officials who granted these waivers;
determine the validity of these waivers;
3. Determine the courses of action that the government should take
to recover those loans, and to recommend appropriate actions to
the Office of the President within sixty (60) days from the date
hereof.
The Committee is hereby empowered to call upon any department,
bureau, office, agency, instrumentality or corporation of the
government, or any officer or employee thereof, for such assistance
as it may need in the discharge of its functions.3
By Memorandum Order No. 61 dated November 9, 1992, the
functions of the Committee were subsequently expanded, viz.:
WHEREAS, among the underlying purposes for the creation of the
Ad Hoc Fact-Finding Committee on Behest Loans is to facilitate the
collection and recovery of defaulted loans owing government-owned
and controlled banking and/or financing institutions;
WHEREAS, this end may be better served by broadening the scope
of the fact-finding mission of the Committee to include all non-
performing loans which shall embrace behest and non-behest
loans;
NOW THEREFORE, I, FIDEL V. RAMOS, President of the Republic
of the Philippines, by virtue of the power vested in me by law, do
hereby order:
Sec. 1. The Ad Hoc Fact-Finding Committee on Behest Loans shall
include in its investigation, inventory, and study, all non-performing
loans which shall embrace both behest and non-behest loans:
The following criteria may be utilized as a frame of reference in
determining a behest loan:
1. It is under-collateralized;
2. The borrower corporation is undercapitalized;
37
3. Direct or indirect endorsement by high government officials like
presence of marginal notes;
4. Stockholders, officers or agents of the borrower corporation are
identified as cronies;
5. Deviation of use of loan proceeds from the purpose intended;
6. Use of corporate layering;
7. Non-feasibility of the project for which financing is being sought;
and
8. Extraordinary speed in which the loan release was made.
Moreover, a behest loan may be distinguished from a non-behest
loan in that while both may involve civil liability for non-payment or
non-recovery, the former may likewise entail criminal liability.4
Several loan accounts were referred to the Committee for
investigation, including the loan transactions between Metals
Exploration Asia, Inc. (MEA), now Philippine Eagle Mines, Inc.
(PEMI) and the Development Bank of the Philippines (DBP).
After examining and studying the documents relative to the loan
transactions, the Committee determined that they bore the
characteristics of behest loans, as defined under Memorandum
Order No. 61 because the stockholders and officers of PEMI were
known cronies of then President Ferdinand Marcos; the loan was
under-collateralized; and PEMI was undercapitalized at the time the
loan was granted.
Specifically, the investigation revealed that in 1978, PEMI applied
for a foreign currency loan and bank investment on its preferred
shares with DBP. The loan application was approved on April 25,
1979 per Board Resolution (B/R) No. 1297, but the loan was never
released because PEMI failed to comply with the conditions
imposed by DBP. To accommodate PEMI, DBP subsequently
adopted B/R No. 2315 dated June 1980, amending B/R No. 1297,
authorizing the release of PEMI’s foreign currency loan proceeds,
and even increasing the same. Per B/R No. 95 dated October 16,
1980, PEMI was granted a foreign currency loan of $19,680,267.00
or P146,601,979.00, and it was released despite non-compliance
with the conditions imposed by DBP. The Committee claimed that
the loan had no sufficient collaterals and PEMI had no sufficient
capital at that time because its acquired assets were only valued at
P72,045,700.00, and its paid up capital was only P46,488,834.00.
Consequently, Atty. Orlando L. Salvador, Consultant of the Fact-
Finding Committee, and representing the Presidential Commission
on Good Government (PCGG), filed with the Office of the
Ombudsman (Ombudsman) a sworn complaint for violation of
Sections 3(e) and (g) of Republic Act No. 3019, or the Anti-Graft and
Corrupt Practices Act, against the respondents Placido I. Mapa, Jr.,
Rafael A. Sison; Rolando M. Zosa; Cesar C. Zalamea; Benjamin
Barot, Casimiro Tanedo, J.V. de Ocampo, Bienvenido R. Tantoco,
Jr., Francis B. Banes, Ernesto M. Caringal, Romeo V. Jacinto,
Manuel D. Tanglao and Alicia Ll. Reyes.5
After considering the Committee’s allegation, the Ombudsman
handed down the assailed Resolution,6 dismissing the complaint.
The Ombudsman conceded that there was ground to proceed with
the conduct of preliminary investigation. Nonetheless, it dismissed
the complaint holding that the offenses charged had already
prescribed, viz.:
[W]hile apparently, PEMI was undercapitalized at the time the
subject loans were entered into; the financial accommodations were
undercollateralized at the time they were granted; the stockholders
and officers of the borrower corporation are identified cronies of then
President Marcos; and the release of the said loans was made
despite non-compliance by PEMI of the conditions attached
therewith, which consequently give a semblance that the subject
Foreign Currency Loans are indeed Behest Loans, the prosecution
of the offenses charged cannot, at this point, prosper on grounds of
prescription.
It bears to stress that Section 11 of R.A. No. 3019 as originally
enacted, provides that the prescriptive period for violations of the
said Act (R.A. 3019) is ten (10) years. Subsequently, BP 195,
enacted on March 16, 1982, amended the period of prescription
from ten (10) years to fifteen (15) years
Moreover as enunciated in [the] case of People vs. Sandiganbayan,
211 SCRA 241, the computation of the prescriptive period of a crime
violating a special law like R.A. 3019 is governed by Act No. 3326
which provides, thus:
xxxx
Section 2. Prescription shall begin to run from the day of the
commission of the violation of law, and if the same be not known at
the time, from the discovery thereof and the institution of the judicial
proceedings for its investigation and punishment.
The prescription shall be interrupted when the proceedings are
instituted against the guilty person, and shall begin to run again if
the proceedings are dismissed for reasons not constituting
jeopardy.
Corollary thereto, the Supreme Court in the case of People vs.
Dinsay, C.A. 40 O.G. 12th Supp., 50, ruled that when there is
nothing which was concealed or needed to be discovered because
the entire series of transactions were by public instruments, the
period of prescription commenced to run from the date the said
instrument were executed.
The aforesaid principle was further elucidated in the cases of People
vs. Sandiganbayan, 211 SCRA 241, 1992, and People vs. Villalon,
192 SCRA 521, 1990, where the Supreme Court pronounced that
when the transactions are contained in public documents and the
execution thereof gave rise to unlawful acts, the violation of the law
commences therefrom. Thus, the reckoning period for purposes of
prescription shall begin to run from the time the public instruments
came into existence.
In the case at bar, the subject financial accommodations were
entered into by virtue of public documents (e.g., notarized contracts,
board resolutions, approved letter-request) during the period of
1978 to 1981 and for purposes of computing the prescriptive period,
the aforementioned principles in the Dinsay, Villalon and
Sandiganbayan cases will apply. Records show that the complaint
was referred and filed with this Office on October 4, 1996 or after
the lapse of more than fifteen (15) years from the violation of the
law. [Deductibly] therefore, the offenses charged had already
prescribed or forever barred by Statute of Limitations.
38
It bears mention that the acts complained of were committed before
the issuance of BP 195 on March 2, 1982. Hence, the prescriptive
period in the instant case is ten (10) years as provided in the (sic)
Section 11 of R.A. 3019, as originally enacted.
Equally important to stress is that the subject financial transactions
between 1978 and 1981 transpired at the time when there was yet
no Presidential Order or Directive naming, classifying or
categorizing them as Behest or Non-Behest Loans.
To reiterate, the Presidential Ad Hoc Committee on Behest Loans
was created on October 8, 1992 under Administrative Order No. 13.
Subsequently, Memorandum Order No. 61, dated November 9,
1992, was issued defining the criteria to be utilized as a frame of
reference in determining behest loans. Accordingly, if these Orders
are to be considered the bases of charging respondents for alleged
offenses committed, they become ex-post facto laws which are
proscribed by the Constitution. The Supreme Court in the case of
People v. Sandiganbayan, supra, citing Wilensky V. Fields, Fla, 267
So 2dl, 5, held that "an ex-post facto law is defined as a law which
provides for infliction of punishment upon a person for an act done
which when it was committed, was innocent."7
Thus, the Ombudsman disposed:
WHEREFORE, premises considered, it is hereby respectfully
recommended that the instant case be DISMISSED.
SO RESOLVED.8
The Committee filed a Motion for Reconsideration, but the
Ombudsman denied it on July 27, 1998.
Hence, this petition positing these issues:
A. WHETHER OR NOT THE CRIME DEFINED BY SEC. 3(e) AND
(g) OF R.A. 3019 HAS ALREADY PRESCRIBED AT THE TIME
THE PETITIONER FILED ITS COMPLAINT.
B. WHETHER OR NOT ADMINISTRATIVE ORDER NO. 13 AND
MEMORANDUM ORDER NO. 61 ARE EX-POST FACTO LAW[S].9
The Court shall deal first with the procedural issue.
Commenting on the petition, Tantoco, Reyes, Mapa, Zalamea and
Caringal argued that the petition suffers from a procedural infirmity
which warrants its dismissal. They claimed that the PCGG availed
of the wrong remedy in elevating the case to this Court.
Indeed, what was filed before this Court is a petition captioned as
Petition for Review on Certiorari. We have ruled, time and again,
that a petition for review on certiorari is not the proper mode by
which resolutions of the Ombudsman in preliminary investigations
of criminal cases are reviewed by this Court. The remedy from the
adverse resolution of the Ombudsman is a petition for certiorari
under Rule 65,10 not a petition for review on certiorari under Rule
45.
However, though captioned as a Petition for Review on Certiorari,
we will treat this petition as one filed under Rule 65 since a reading
of its contents reveals that petitioner imputes grave abuse of
discretion to the Ombudsman for dismissing the complaint. The
averments in the complaint, not the nomenclature given by the
parties, determine the nature of the action.11 In previous rulings, we
have treated differently labeled actions as special civil actions for
certiorari under Rule 65 for reasons such as justice, equity, and fair
play.12
Having resolved the procedural issue, we proceed to the merits of
the case.
As the Committee puts it, the issues to be resolved are: (i) whether
or not the offenses subject of its criminal complaint have prescribed,
and (ii) whether Administrative Order No. 13 and Memorandum
Order No. 61 are ex post facto laws.
The issue of prescription has long been settled by this Court in
Presidential Ad Hoc Fact-Finding Committee on Behest Loans v.
Desierto,13 thus:
[I]t is well-nigh impossible for the State, the aggrieved party, to have
known the violations of R.A. No. 3019 at the time the questioned
transactions were made because, as alleged, the public officials
concerned connived or conspired with the "beneficiaries of the
loans." Thus, we agree with the COMMITTEE that the prescriptive
period for the offenses with which the respondents in OMB-0-96-
0968 were charged should be computed from the discovery of the
commission thereof and not from the day of such commission.14
The ruling was reiterated in Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Ombudsman Desierto,15 wherein
the Court explained:
In cases involving violations of R.A. No. 3019 committed prior to the
February 1986 EDSA Revolution that ousted President Ferdinand
E. Marcos, we ruled that the government as the aggrieved party
could not have known of the violations at the time the questioned
transactions were made. Moreover, no person would have dared to
question the legality of those transactions. Thus, the counting of the
prescriptive period commenced from the date of discovery of the
offense in 1992 after an exhaustive investigation by the Presidential
Ad Hoc Committee on Behest Loans.16
This is now a well-settled doctrine which the Court has applied in
subsequent cases involving the PCGG and the Ombudsman.17
Since the prescriptive period commenced to run on the date of the
discovery of the offenses, and since discovery could not have been
made earlier than October 8, 1992, the date when the Committee
was created, the criminal offenses allegedly committed by the
respondents had not yet prescribed when the complaint was filed on
October 4, 1996.
Even the Ombudsman, in its Manifestation & Motion (In Lieu of
Comment),18 conceded that the prescriptive period commenced
from the date the Committee discovered the crime, and not from the
date the loan documents were registered with the Register of
Deeds. As a matter of fact, it requested that the record of the case
be referred back to the Ombudsman for a proper evaluation of its
merit.
Likewise, we cannot sustain the Ombudsman’s declaration that
Administrative Order No. 13 and Memorandum Order No. 61 violate
the prohibition against ex post facto laws for ostensibly inflicting
39
punishment upon a person for an act done prior to their issuance
and which was innocent when done.
WHEREFORE, the petition is GRANTED. The assailed Resolution
and Order of the Office of Ombudsman in OMB-0-96-2428, are SET
ASIDE. The Office of the Ombudsman is directed to conduct with
The constitutionality of laws is presumed. To justify nullification of a dispatch an evaluation of the merits of the complaint against the
law, there must be a clear and unequivocal breach of the herein respondents.
Constitution, not a doubtful or arguable implication; a law shall not
be declared invalid unless the conflict with the Constitution is clear
beyond reasonable doubt. The presumption is always in favor of
constitutionality. To doubt is to sustain.19 Even this Court does not SO ORDERED.
decide a question of constitutional dimension, unless that question
is properly raised and presented in an appropriate case and is
necessary to a determination of the case, i.e., the issue of
constitutionality must be the very lis mota presented.201âwphi1
Republic of the Philippines

SUPREME COURT
Furthermore, in Estarija v. Ranada,21 where the petitioner raised
the issue of constitutionality of Republic Act No. 6770 in his motion Manila
for reconsideration of the Ombudsman’s decision, we had occasion
to state that the Ombudsman had no jurisdiction to entertain
questions on the constitutionality of a law. The Ombudsman,
SECOND DIVISION
therefore, acted in excess of its jurisdiction in declaring
unconstitutional the subject administrative and memorandum
orders.
PEOPLE OF THE PHILIPPINES,

In any event, we hold that Administrative Order No. 13 and

Memorandum Order No. 61 are not ex post facto laws. Plaintiff-Appellee,

An ex post facto law has been defined as one — (a) which makes - versus -
an action done before the passing of the law and which was
innocent when done criminal, and punishes such action; or (b) which
aggravates a crime or makes it greater than it was when committed;
CLEMENTE CASTA y CAROLINO,
or (c) which changes the punishment and inflicts a greater
punishment than the law annexed to the crime when it was
committed; or (d) which alters the legal rules of evidence and
receives less or different testimony than the law required at the time Accused-Appellant.
of the commission of the offense in order to convict the defendant.22
This Court added two (2) more to the list, namely: (e) that which
assumes to regulate civil rights and remedies only but in effect
imposes a penalty or deprivation of a right which when done was G.R. No. 172871
lawful; or (f) that which deprives a person accused of a crime of
some lawful protection to which he has become entitled, such as the
protection of a former conviction or acquittal, or a proclamation of Present:
amnesty.23

QUISUMBING, J., Chairman,

The constitutional doctrine that outlaws an ex post facto law
generally prohibits the retrospectivity of penal laws. Penal laws are
those acts of the legislature which prohibit certain acts and establish
penalties for their violations; or those that define crimes, treat of their carpio MORALES,
nature, and provide for their punishment.24 The subject
administrative and memorandum orders clearly do not come within
the shadow of this definition. Administrative Order No. 13 creates TINGA,
the Presidential Ad Hoc Fact-Finding Committee on Behest Loans,
and provides for its composition and functions. It does not mete out
penalty for the act of granting behest loans. Memorandum Order No.
61 merely provides a frame of reference for determining behest VELASCO, JR., and
loans. Not being penal laws, Administrative Order No. 13 and
Memorandum Order No. 61 cannot be characterized as ex post
facto laws. There is, therefore, no basis for the Ombudsman to rule BRION, JJ.
that the subject administrative and memorandum orders are ex post
facto.

Promulgated:

One final note. Respondents Mapa and Zalamea, in their respective

comments, moved for the dismissal of the case against them. Mapa
claims that he was granted transactional immunity from all PCGG- September 16, 2008
initiated cases,25 while Zalamea denied participation in the
approval of the subject loans.26 The arguments advanced by Mapa
and Zalamea are matters of defense which should be raised in their x --------------------------------------------------------------------------------------
respective counter-affidavits. Since the Ombudsman erroneously --x
dismissed the complaint on ground of prescription, respondents’
respective defenses were never passed upon during the preliminary
investigation. Thus, the complaint should be referred back to the
Ombudsman for proper evaluation of its merit.

40
DECISION

On cross-examination, he testified that he was at about "two (2)

arms length" away from Danilo when he was stabbed, while their
other companions were behind them.10
BRION, J.:

Senior Police Officer I Domingo Camba (SPO1 Camba), a member

This is an appeal from the March 10, 2006 Decision1 of the Court of
Appeals (CA) in CA-G.R. CR-HC No. 01217. The CA affirmed the
August 18, 1999 Decision2 of the Regional Trial Court (RTC),
Branch 55, Alaminos, Pangasinan, finding the appellant Clemente
Casta y Carolino (appellant) guilty beyond reasonable doubt of the
crime of murder and sentencing him to suffer the penalty of reclusion
perpetua.
ANTECEDENT FACTS
of the Bolinao Police Station, narrated that on August 20, 1989,
Barangay Captain Igmedio Gatchalian went to the Bolinao Police
Station to report the stabbing of Danilo by the appellant; the incident
was entered in the police blotter as Entry No. 4300.11 He and other
police officers promptly went to Barangay Goyoden and conducted
an on-the-spot investigation at the crime scene.12 The next day
(August 21, 1989), the appellant’s uncle came and told him that the
appellant was at his (the appellant’s) house. He went with the
appellant’s uncle to the appellant’s house where the appellant gave
himself up. He forthwith brought the appellant to the police station
for investigation.13

The prosecution charged the appellant before the RTC with the
crime of murder under an Information that states:
That on or about the 20th day of August, 1989 in the afternoon, at
barangay Goyoden, municipality of Bolinao, province of
Pangasinan, New [sic]Republic of the Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with
intent to kill and by means of treachery, did, then and there, willfully,
unlawfully and feloniously, suddenly and without warning attack and
stab DANILO CAMBA with a knife, inflicting upon the victim the
following injuries to wit:
- stab wound, 3 inches in length, 4 inches in depth, located at the
back, left side, 5 inches (level) below the armpit;
At the police station, the appellant confessed to the killing of Danilo
after being informed of his constitutional rights and in the presence
of counsel, a certain Atty. Antonio V. Tiong,14 The confession was
reduced to writing and was signed by the appellant and Atty.
Tiong.15
Dionisia Camba (Dionisia), Danilo’s widow, testified that her
husband was an employee of the Office of the Register of Deeds,
Lingayen, Pangasinan at the time of his death, earning more than
P3,000.00 a month.16 They have four (4) children and that her
husband was the sole breadwinner of the family. According to her,
she spent a total of P13,500.00 for the funeral and burial expenses
of her husband17 but the receipts for these expenses have all been
lost.18

Dr. Prudencio C. de Perio (Dr. de Perio), the Municipal Health

Officer of Bolinao, Pangasinan, narrated that he conducted an
- stab wound at the left forearm, 3 cm. length and 1 inch depth.
autopsy on the remains of Danilo at the request of the police,19 and
made the following findings:

which caused his instantaneous death to the damage and prejudice

of the heirs of Danilo Camba.
AUTOPSY REPORT

CONTRARY to Article 248 of the Revised Penal Code.3

xxxx

The appellant pleaded not guilty to the charge upon arraignment.

III. Findings
The prosecution presented the following witnesses in the trial on the
merits that followed: Marlyn4 Cister; Modesto Cardona; Domingo
Camba; Dionisia Camba; and Dr. Prudencio C. de Perio. The
appellant took the witness stand for the defense. A male cadaver undergoing rigor mortis, around 5’6" in height, and
around 145 lbs. in weight.

Marlyn Cister (Marlyn) testified that in the afternoon of August 20,

1989, while seated on the steps of the stairs of their house, she saw - Stab wound, 3 inches in length, 4 inches in depth, located at the
Danilo Camba (Danilo) and Modesto Cardona (Modesto) standing back, left side, 5 inches (level) below the armpit.
by the roadside.5 Suddenly, the appellant appeared from behind
Danilo and stabbed him (Danilo).6 Danilo fell and died on the spot.
Thereafter, the appellant fled.7
- Left lung injured and also the heart, causing massive
hemorrhages.

Modesto narrated that at around 3:00 o’clock in the afternoon of

August 20, 1989, he was walking along the road at Sitio Makber,
- Stab wound at the left forearm, 3 cm. length and 1 inch depth.
Goyoden, Bolinao, Pangasinan when Danilo emerged from a small
road and joined him. Along the way, they met Marcos Gumangan
(Marcos) and Angel Gatchalian (Angel) with whom they exchanged
greetings; it was Danilo’s first time to visit Goyoden after several Wound is horizontal.20
years. They all walked towards the west with Marcos and Angel
walking behind them. Suddenly, the appellant appeared from behind
Danilo and stabbed him using a double-bladed knife.8 Danilo turned
According to Dr. de Perio, the victim’s cause of death was "shock,
around and then fell; the appellant fled still holding the knife he used
due to massive hemorrhage brought about by the stab wounds."21
in stabbing Danilo.9

41
He added that the stab wounds were caused by a sharp-pointed
instrument such as a dagger.22
SO ORDERED.30

The appellant gave a different version of the events which the RTC
summarized as follows The records of this case were originally transmitted to this Court on
appeal. Pursuant to our ruling in People v. Mateo,31 we endorsed
the case and its records to the CA for appropriate action and
disposition.32
x x x that on August 20, 1989 in the afternoon, he went to Sitio
Matber, Goyoden, Bolinao, to buy fish; that before reaching the
place where he will buy fish, he met a person whom he did not
know.23 This person called him by waving his hand and pointing to The CA, in a decision dated March 10, 2006, affirmed the RTC
him. He responded to the call of this person by approaching him but decision in toto.
when he was near him, this person boxed him but he was not hit.
They grappled with each other and he did not notice if there were
other persons around them; that he then noticed that his knife was In his brief,33 the appellant argues that the RTC erred –
already bloody so he ran away; that there was no person around
that he noticed when he saw his knife bloody; that at that time, he
did not know the identity of the person with whom he grappled; that
when he was already detained, he learned that the person was 1. in convicting him of the crime of murder; and
Danilo Camba.24

2. in imposing upon him the penalty of reclusion perpetua.

The accused also declared that he was not arrested by the Police,
but he surrendered to Pat. Domingo Camba on August 21, 1989 to
whom his uncle relayed the information that he wanted to surrender THE COURT’S RULING
and Pat. Camba fetched him. While under Police custody, he was
investigated by Pat. Camba and said investigation was in writing
and signed by him (Exhibit D, D-1 and D-2), but he said that the
document was not his statement although it bears his signature.25 We resolve to deny the appeal but we modify the penalty imposed
He was forced to sign the investigation because he was afraid of the and the amount of the awarded indemnities.
investigator who bears the same family name as the victim but he
does not know if they are related; x x x x26
Sufficiency of Prosecution Evidence

On cross-examination, he declared that he did not plan to kill the

victim and his killing was accidental.27 He gave his affidavit in the
Bolinao dialect in questions and answers (Exhibits D and series);
that all the signatures bearing his name are his (Exhibit D-4, D-5, D-
6); that this document has an English translation (Exhibit F); x x x
that he admitted on direct examination that he stabbed Danilo
Camba and he threw the knife into the sea when he rode on a
motorboat and was confused; that he knew that the date when he
stabbed Danilo Camba was August 20, 1989 and in the afternoon
but he did no know the time.28
On re-direct examination, the accused declared that the reason for
his stabbing Danilo Camba was that when they met on the road and
Camba was drunk, without any provocation on his part, Camba
positioned to box him so he drew his knife and stabbed him; that he
did not know the reason why Camba wanted to box him; that at that
time, Camba was with one Fedelino Gatchalian; that he had no
previous grudge with Camba because he did not know him; that he
did not see the victim with any weapon and he did not know if he
was armed or not; and that he is bigger than Camba.29 [Footnotes
referring to the pertinent parts of the record supplied]
An established rule in appellate review is that the trial court’s factual
findings, including its assessment of the credibility of the witnesses
and the probative weight of their testimonies, as well as the
conclusions drawn from the factual findings, are accorded respect,
if not conclusive effect. These actual findings and conclusions
assume greater weight if they are affirmed by the CA. Despite the
enhanced persuasive effect of the initial RTC factual ruling and the
results of the CA’s appellate factual review, we nevertheless fully
scrutinized the records of this case as the penalty of reclusion
perpetua that the lower courts imposed on the accused demands no
less than this kind of scrutiny.34
A striking feature of this case is that the appellant did not deny that
he stabbed Danilo. He expressly made this admission in his
testimony of January 18, 1995:
ATTY. ROMIE V. BRAGA:

Q: In your direct-examination, you admitted having stabbed the

The RTC convicted the appellant of the crime of murder in its deceased Danilo Camba, will you tell the Court where was that knife
decision of August 18, 1999 as follows: which you used in stabbing Danilo Camba?

Wherefore, in view of the foregoing considerations, the Court hereby CLEMENTE CASTA:
renders judgment, finding the accused Clemente Casta y Carolino,
of Barangay Goyoden, Bolinao, Pangasinan, guilty beyond
reasonable doubt of the crime of Murder for the death of Danilo A: I left it in the sea, sir.
Camba, of the same place, and hereby sentences him to suffer the
penalty of reclusion perpetua and to indemnify the heirs of the
deceased in the amount of P50,000.00 as compensation for the
death of the victim, P100,000.00 as moral and exemplary damages Q: You mean you threw it into the sea?
and P13,000.00 as actual damages.

A: Yes, sir.
With costs de oficio.

42
Q: Will you tell the Court why you threw the knife which you used in Q: Will you tell us what you heard when you said that person called
stabbing Danilo Camba into the sea? you?

A: Because I rode in a motor boat and then I threw it into the sea, A: He called me by waving his hand and then he pointed me [sic].
sir.

Q: After that, did you respond to his hand-waving by getting near?

Q: And will you tell the Court why you threw or drop it into the sea?

A: When I got near him, he boxed me, sir.

A: Because I was confused, sir.

Q: Were you hit when he boxed you?

Q: Now will you tell us what time was it more or less when you
stabbed Danilo Camba?
A: No, sir.

A: I do not know the time, sir.

Q: What happened next after that person boxed you?

Q: But it was in the afternoon of August 20, 1989, is that correct?

A: We fought each other by grappling, sir.

A: Yes, sir. x x x35 [Emphasis ours]

xxx

This in-court admission confirms the separate admission he made

at the Bolinao police station on August 22, 1989 in the presence of
Q: When you grappled with each other, who was the first who
counsel, Atty. Antonio V. Tiong.
grappled against whom?

The petitioner sought to exculpate himself by claiming that the

A: He, sir.
stabbing was an act of self-defense. In his testimony of May 3, 1994,
he claimed:

Q: What happened when he grappled with you and you grappled

with him, what happened next?
ATTY. TEOFILO A. HUMILDE:

A: I did not notice that my knife has already blood so I ran away.
Q: After Gumangan left and you continued walking, were you able
to reach the place where you were to buy fish?

xxx
CLEMENTE CASTA:

Q: Did you come to know him later, that person whom you grappled
with?
A: No, sir.

A: When I was in prison, sir.

Q: Why?

Q: Who was that?

A: I met the person whom I don’t know, sir.

A: Danilo Camba, sir.36 [Emphasis ours]

xxx

Like the RTC, we do not believe that the appellant acted in self-
Q: What did you do when you saw that person by the roadside after
defense.
you have seen Gumangan?

As a rule, the prosecution bears the burden of establishing the guilt

A: None, sir, he called me.
of the accused beyond reasonable doubt. However, when the
accused admits the killing and, by way of justification, pleads self-
defense, the burden of evidence shifts; he must then show by clear
xxx and convincing evidence that he indeed acted in self-defense. For
that purpose, he must rely on the strength of his own evidence and
not on the weakness of the prosecution’s case.37

43
Article 11(1) of the Revised Penal Code spells out the elements that
the accused must establish by clear and convincing evidence to
successfully plead self-defense. The Article provides:
Art. 11. Justifying Circumstances. – The following do not incur any
criminal liability:
1. Anyone who acts in defense of his person or rights, provided that
the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself.
xxx
There is unlawful aggression when the peril to one’s life, limb or right
is either actual or imminent. There must be actual physical force or
actual use of a weapon. It is a statutory and doctrinal requirement
to establish self-defense that unlawful aggression must be present.
It is a condition sine qua non; there can be no self-defense,
complete or incomplete, unless the victim commits unlawful
aggression against the person defending himself.38
We find that the appellant miserably failed to prove that he had to
defend himself against an unlawful aggression. Aside from his own
claim (which we find under the circumstances to be self-serving),
the appellant did not present any other evidence to corroborate his
claim that the victim boxed him when they met on the road in Sitio
Makber, Barangay Goyoden, Bolinao, Pangasinan. As against his
bald claim, two eye-witnesses - Marlyn and Modesto – saw no
unlawful aggression by the victim against the appellant. Marlyn
testified that at the time he was stabbed, Danilo was merely standing
near the roadside fronting her (Marlyn’s) house. Modesto, on the
other hand, narrated that, he, Danilo and several others were simply
walking slowly along the Sitio Makber, Goyoden road towards the
west when the appellant suddenly approached from behind and
stabbed Danilo.
We find no reason to disbelieve these straightforward narration of
the events surrounding the stabbing that led to Danilo’s death. Nor
do we see anything on the record showing any improper motive that
would lead the witnesses to testify as they did. In fact, the appellant
never imputed any such motive on Marlyn and Modesto. The
established rule, laid down in an already long line of cases, is that
in the absence of evidence showing any reason or motive for the
prosecution witnesses to falsely testify, their testimony can be given
full faith and credit.39 Thus, no actual or imminent threat to the
appellant’s life or limb existed when he stabbed Danilo to death.
The Crime Committed
Article 248 of the Revised Penal Code defines the crime of murder
as follows:
Article 248. Murder. – Any person who not falling within the
provisions of Article 246, shall kill another, shall be guilty of murder
and shall be punished by reclusion temporal in its maximum period
to death, if committed with any of the following attendant
circumstances:
1. With treachery x x x x 40
Treachery, the qualifying circumstance alleged against the
appellant, exists when an offender commits any of the crimes
against persons, employing means, methods or forms which tend
directly or especially to ensure its execution, without risk to the
offender, arising from the defense that the offended party might
make.41 This definition sets out what must be shown by evidence
to conclude that treachery existed, namely: (1) the employment of
such means of execution as would give the person attacked no
opportunity for self-defense or retaliation; and (2) the deliberate and
conscious adoption of the means of execution. To reiterate, the
essence of qualifying circumstance is the suddenness, surprise and
the lack of expectation that the attack will take place, thus depriving
the victim of any real opportunity for self-defense while ensuring the
commission of the crime without risk to the aggressor.42
The evidence in the case shows that Danilo was by the roadside
when the appellant, wielding a deadly weapon - a double-bladed
knife - suddenly appeared from behind and stabbed him. The
unsuspecting victim was hit at the back below the left armpit,
puncturing his heart and lungs. As the witnesses testified, the attack
was sudden and while the victim was in an unguarded position: from
his rear so that the unsuspecting victim had practically no chance to
defend himself. The location of the thrust – at the left side, below
the armpit – shows that the heart was the targeted organ to
immediately incapacitate the victim and render him unable to defend
against or respond to the attack. As the evidence shows, the victim
simply fell immediately after being stabbed, in the way that a raging
bull immediately crumbles to its knees, spent and harmless, upon
being hit by the matador’s sword thrust, delivered from above,
between its shoulder blades, targeting the heart. These mode,
manner and execution of the attack, to our mind, bespeak of
treachery.
Voluntary Surrender
Voluntary surrender, properly undertaken, is a mitigating
circumstance that lowers the imposable penalty. It is present when
the following elements concur: a) the offender has not been actually
arrested; b) the offender surrenders himself to a person in authority
or to the latter’s agent; and c) the surrender is voluntary. To be
sufficient, the surrender must be spontaneous and made in a
manner clearly indicating the intent of the accused to surrender
unconditionally, either because he acknowledges his guilt or wishes
to save the authorities the trouble and expense attendant to the
efforts of searching for and capturing him.43
We find all the requisites present in this case. The appellant testified
that he had asked his uncle, Ediom Casta, to go to the police to
signify his intention to surrender. At around 7:00 o’clock in the
morning of August 21, 1989, SPO1 (then Patrolman) Camba came
to his house to bring him back to the Bolinao Police Station for
investigation. The appellant’s testimony that he voluntarily
surrendered was corroborated by the November 21, 1991 testimony
of SPO1 Camba, which we quote:
ATTY. ROMIE V. BRAGA
Q: Now, as police investigator, will you inform the Court if Clemente
Casta, the accused herein, ever presented himself to your office?
DOMINGO CAMBA
44
A: Yes, sir.
Q: And in relation with this incident and that appearance of
Clemente Casta in your office, was it reflected and entered in your
police blotter?
A: Yes, sir.
Q: Now, will you go over your police blotter and read into the record
the fact of the appearance of Clemente in your office in relation with
this incident?
A: On entry 4302 21 August, 1989 07 hundred hours Clemente
Casta y Carolino, 21 years old, single, fisherman, resident of
Goyuden Bolinao, Pangasinan was brought into this station for
investigation following his voluntary surrender to have allegedly
killed Danilo Camba on or about 1500 hundred hours 20 August
1989 in Goyuden this municipality.44
That the appellant surrendered only in the morning of August 21,
1989 (or a day after the stabbing incident) does not diminish nor
affect the voluntariness of his surrender. For voluntary surrender to
mitigate an offense, it is not required that the accused surrender at
the first opportunity.45 Here, the appellant went voluntarily went with
SPO1 Camba to the police station within a day after the killing to
own up to the killing. Thus, the police did not devote time and effort
to the investigation of the killing and to the search and capture of
the assailant.
Based on these considerations, we hold that the mitigating
circumstance of voluntary surrender should be appreciated in
appellant’s favor.
The Proper Penalty
The Information in this case indicates that the crime of murder was
committed by the appellant on August 20, 1989 which was before
the effectivity of Republic Act No. 7659 on December 31, 1993
amending Article 248 of the Revised Penal Code on murder, raising
the penalty to reclusion perpetua to death. Prior to its amendment
the penalty for the crime of murder under Article 248 of the Revised
Penal Code was reclusion temporal in its maximum period to death.
In light of the greater penalty that attaches under the amendment,
the previous penalty of reclusion temporal in its maximum period to
death will have to be imposed in order not to run afoul of the
constitutional prohibition against ex post facto laws. Under Section
22 of Article III of the 1987 Constitution, no ex post facto law or bill
of attainder shall be enacted. An ex post facto law, among others,
is one that changes the penalty and inflicts a greater punishment
than what the law annexed to the crime when committed46 - the
situation that would obtain if the amendment under Republic Act No.
7659 would be applied.
Considering that the appellant has in his favor the mitigating
circumstance of voluntary surrender with no aggravating
circumstance to offset it, the imposable penalty should be in the
minimum period, i.e., reclusion temporal in its maximum period.
Under the Indeterminate Sentence Law,47 the maximum sentence
shall be reclusion temporal in its maximum period (17 years, 4
months and 1 day to 20 years) and the minimum shall be taken from
the next lower penalty, which is prision mayor maximum to reclusion
temporal medium (10 years and 1 day to 17 years and 4 months).
Civil Liability
The RTC awarded the amount of P13,000.00 to the victim’s heirs as
actual damages in light of established jurisprudence that allows only
expenses duly supported by receipts as proof of actual damages.48
This RTC ruling has however been overtaken by our rulings in the
landmark cases of People v. Abrazaldo49 and People v.
Villanueva.50 In Abrazaldo, we ruled that where the amount of the
actual damages cannot be determined because of the absence of
supporting and duly presented receipts but evidence confirming the
heirs’ entitlement to actual damages, temperate damages in the
amount of P25,000.00 may be awarded. This ruling was reiterated,
with slight modification in Villanueva, where we held that when the
actual damages proven by receipts during the trial amount to less
than P25,000.00, we can nevertheless award temperate damages
of P25,000.00. Thus, the heirs’ entitlement is P25,000.00 of
temperate damages.
We also modify the award of P100,000.00 as moral and exemplary
damages which the RTC lumped together. Moral damages are
mandatory in cases of murder and homicide without need of
allegation and proof other than the death of the victim. We find the
award of P50,000.00 as moral damages in order in accordance with
established jurisprudence. 51
The award of exemplary damages is justified by the duly proven
qualifying circumstance of treachery; when a crime is committed
with an aggravating circumstance, either qualifying or generic, an
award of P25,000.00 as exemplary damages is justified under
Article 2230 of the New Civil Code.52
We cannot award loss of earning capacity to the victim’s heirs since
no documentary evidence was presented to substantiate this claim.
As a rule, documentary evidence should be presented to
substantiate a claim for damages for loss of earning capacity. While
there are exceptions to the rule, these exceptions do not apply as
the victim, Danilo, was an employee of the Office of the Register of
Deeds of Lingayen, Pangasinan when he died; he was not a worker
earning less than the minimum wage under the prevailing labor
laws.53
We affirm the P50,000.00 death indemnity awarded to the victim’s
heirs, in accordance with prevailing jurisprudence.54
WHEREFORE, in light of all the foregoing, we hereby AFFIRM the
March 10, 2006 Decision of the Court of Appeals in CA-G.R. CR-
HC
No. 01217 with the following MODIFICATIONS:
(1) the appellant is sentenced to suffer the indeterminate penalty of
imprisonment for (10) years and one (1) day of prision mayor
maximum, as minimum, to seventeen (17) years four (4) months
and one (1) day of reclusion temporal maximum, as maximum;
(2) moral damages is REDUCED to P50,000.00;
(3) exemplary damages is REDUCED to P25,000.00;
(4) the award of actual damages is DELETED; and
45
(5) the appellant is ORDERED to PAY the victim’s heirs the amount
of P25,000.00 as temperate damages.
Costs against the appellant Clemente Casta.
SO ORDERED.
G.R. No. 176169 November 14, 2008
ROSARIO NASI-VILLAR, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
TINGA, J.:
This is a Petition for Review1 under Rule 45 of the Rules of Court
filed by petitioner Rosario Nasi-Villar assailing the Decision2 dated
27 June 2005 and Resolution3 dated 28 November 2006 of the
Court of Appeals. This case originated from an Information4 for
Illegal Recruitment as defined under Sections 6 and 7 of Republic
Act (R.A.)
No. 80425 filed by the Office of the Provincial Prosecutor of Davao
del Sur on 5 October 1998 for acts committed by petitioner and one
Dolores Placa in or about January 1993. The Information reads:
That on [sic] or about the month of [January 1993], in the
Municipality of Sta. Cruz, Province of Davao del Sur, Philippines and
within the jurisdiction of the Honorable Court, the aforenamed
accused, conspiring together, confederating with and mutually
helping one another through fraudulent representation and deceitful
machination, did then and there [willfully], unlawfully and feloniously
recruit Nila Panilag for employment abroad[,] demand and receive
the amount of P6,500.00 Philippine Currency [sic] as placement
fee[,] the said accused being a non-licensee or non-holder of
authority to engage in the recruitment of workers abroad to the
damage and prejudice of the herein offended party.
CONTRARY TO LAW.6
On 3 July 2002, after due trial, the Regional Trial Court (RTC), Br.
18, Digos City, Davao del Sur found the evidence presented by the
prosecution to be more credible than that presented by the defense
and thus held petitioner liable for the offense of illegal recruitment
under the Labor Code, as amended.7 The dispositive portion of the
decision reads:
WHEREFORE, premises considered, the Court hereby finds
accused ROSARIO NASI-VILLAR GUILTY BEYOND
REASONABLE DOUBT of Illegal Recruitment and, in accordance
with the penalty set forth under the Labor Code, as amended, said
accused is hereby sentenced to an indeterminate penalty ranging
from FOUR YEARS as minimum to FIVE YEARS as maximum.
On the civil aspect of the case, there being no substantial proof
presented to justify a grant of civil damages, this Court makes no
pronouncement thereon.
With respect to accused Ma. Dolores Placa, who is still at large, the
records of this case are hereby sent to the archives to be retrieved
in the event that said accused would be apprehended. Issue an alias
warrant of arrest for the apprehension of said accused.
SO ORDERED.8
Petitioner appealed to the Court of Appeals raising as sole issue the
alleged error by the trial court in finding her guilty of illegal
recruitment on the basis of the trial court's appreciation of the
evidence presented by the prosecution.
The Court of Appeals, in its Decision dated 27 June 2005,9 following
the principle that an appeal in a criminal case throws the whole case
wide open for review, noted that the criminal acts alleged to have
been committed happened sometime in 1993. However, R.A. No.
8042, under which petitioner was charged, was approved only on 7
June 1995 and took effect on 15 July 1995. Thus, the Court of
Appeals declared that petitioner should have been charged under
the Labor Code, in particular Art. 13(b) thereof, and not under R.A.
No. 8042. Accordingly, it made its findings on the basis of the
provisions of the Labor Code and found petitioner liable under Art.
38, in relation to Art. 13(b), and Art. 39 of the Labor Code. The
appellate court affirmed with modification the decision of the RTC,
decreeing in the dispositive portion, thus:
WHEREFORE, in view of all the foregoing, the appealed Decision
of the Regional Trial Court, 11th Judicial Region, Br. 18, City of
Digos, Province of Davao del Sur, finding Rosario Nasi-Villar guilty
beyond reasonable doubt o the crime of Illegal Recruitment is
AFFIRMED with MODIFICATION in that Rosario Nasi-Villar is
ORDERED to pay Nila Panilag the sum of P10,000.00 as temperate
damages.
SO ORDERED.10
On 28 November 2006, the appellate court denied petitioner's
motion for reconsideration.11
Hence, petitioner filed the instant petition for review.
Petitioner alleges that the Court of Appeals erred in failing to
consider that R.A. No. 8042 cannot be given retroactive effect and
that the decision of the RTC constitutes a violation of the
constitutional prohibition against ex post facto law. Since R.A. No.
8042 did not yet exist in January 1993 when the crime was allegedly
committed, petitioner argues that law cannot be used as the basis
of filing a criminal action for illegal recruitment. What was applicable
in 1993 is the Labor Code, where under Art. 38, in relation to Art.
39, the violation of the Code is penalized with imprisonment of not
less than four (4) years nor more than eight (8) years or a fine of not
less than P20,000.00 and not more than P100,000.00 or both. On
the other hand, Sec. 7(c) of R.A. No. 8042 penalizes illegal
recruitment with a penalty of imprisonment of not less than six (6)
years and one (1) day but not more than twelve (12) years and a
fine not less than P200,000.00 nor more than P500,000.00. Thus,
the penalty of imprisonment provided in the Labor Code was raised
or increased by R.A. No. 8042. Petitioner concludes that the charge
and conviction of an offense carrying a penalty higher than that
provided by the law at the time of its commission constitutes a
violation of the prohibition against ex post facto law and the
retroactive application of R.A. No. 8042.
46

In its Comment12 dated 7 September 2007, the Office of the
Solicitor General (OSG) argues that the Court of Appeals' conviction
of petitioner under the Labor Code is correct. While conceding that
there was an erroneous designation of the law violated by petitioner,
the OSG stresses that the designation of the offense in the
Information is not determinative of the nature and character of the
crime charged against her but the acts alleged in the Information.
The allegations in the Information clearly charge petitioner with
illegal recruitment as defined in Art. 38, in relation to Art. 13(b) of
the Labor Code, and penalized under Art. 39(c) of the same Code.
The evidence on record substantiates the charge to a moral
certainty. Thus, while there was an erroneous specification of the
law violated by petitioner in the Information, the CA was correct in
affirming the RTC's imposition of the penalty for simple illegal
recruitment under the Labor Code, the OSG concludes.
Penal laws cannot be given retroactive effect, except when they are
favorable to the accused.17
R.A. No. 8042 amended pertinent provisions of the Labor Code and
gave a new definition of the crime of illegal recruitment and provided
for its higher penalty. There is no indication in R.A. No. 8042 that
said law, including the penalties provided therein, would take effect
retroactively. A law can never be considered ex post facto as long
as it operates prospectively since its strictures would cover only
offenses committed after and not before its enactment.18 Neither
did the trial court nor the appellate court give R.A. No. 8042 a
retroactive application since both courts passed upon petitioner's
case only under the aegis of the Labor Code. The proceedings
before the trial court and the appellate court did not violate the
prohibition against ex post facto law nor involved a retroactive
application of R.A. No. 8042 in any way.

The petition is denied. We find no reversible error in the decision

arrived at by the Court of Appeals. WHEREFORE, the petition is DENIED. The assailed Decision dated
27 June 2005 and Resolution dated 28 November 2006 of the Court
of Appeals are AFFIRMED.

In Gabriel v. Court of Appeals,13 we held that the real nature of the

crime charged is determined, not from the caption or preamble of
the information nor from the specification of the law alleged to have SO ORDERED.
been violated–these being conclusions of law–but by the actual
recital of facts in the complaint or information. What controls is not
the designation but the description of the offense charged. From a G.R. Nos. L-32613-14 December 27, 1972
legal point of view, and in a very real sense, it is of no concern to
the accused what the technical name of the crime of which he
stands charged is. If the accused performed the acts alleged in the
body of the information, in the manner stated, then he ought to be PEOPLE OF THE PHILIPPINES, petitioner,
punished and punished adequately, whatever may be the name of
vs.
the crime which those acts constitute.14
HON. SIMEON. FERRER (in his capacity as Judge of the Court of
First Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO
In the case at bar, the prosecution established beyond reasonable CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias
doubt that petitioner had performed the acts constituting the offense "Taba," respondents.
defined in Art. 38, in relation to Art. 13(b) and punished by Art. 39 of
the Labor Code, as alleged in the body of the Information. To prove
illegal recruitment, two elements must be shown, namely: (1) the Solicitor R. Mutuc for respondent Feliciano Co.
person charged with the crime must have undertaken recruitment
activities, or any of the activities enumerated in Article 34 of the
Labor Code, as amended; and (2) said person does not have a
license or authority to do so.15 Art. 13(b) defines "recruitment and Jose W. Diokno for respondent Nilo Tayag.
placement" as "any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring, or procuring workers, and includes
referrals, contract services, promising, or advertising for
employment, locally or abroad, whether for profit or not; Provided
that any person or entity which, in any manner, offers or promises
for a fee employment to two or more persons, is considered
engaged in recruitment and placement." The trial court found these CASTRO, J.:p
two elements had been proven in the case at bar. Petitioner has not
offered any argument or proof that countervails such findings.
I. Statement of the Case

The basic rule is that a criminal act is punishable under the law in
force at the time of its commission. Thus, petitioner can only be
charged and found guilty under the Labor Code which was in force
in 1993 when the acts attributed to her were committed. Petitioner
was charged in 1998 under an Information that erroneously
designated the offense as covered by R.A. No. 8042, but alleged in
its body acts which are punishable under the Labor Code. As it was
proven that petitioner had committed the acts she was charged with,
she was properly convicted under the Labor Code, and not under
R.A. No. 8042.
Posed in issue in these two cases is the constitutionality of the Anti-
Subversion
Act, 1 which outlaws the Communist Party of the Philippines and
other "subversive associations," and punishes any person who
"knowingly, willfully and by overt acts affiliates himself with,
becomes or remains a member" of the Party or of any other similar
"subversive" organization.

On March 5, 1970 a criminal complaint for violation of section 4 of

There is no violation of the prohibition against ex post facto law nor
a retroactive application of R.A. No. 8042, as alleged by petitioner.
An ex post facto law is one which, among others, aggravates a crime
or makes it greater than it was when committed or changes the
punishment and inflicts a greater punishment than the law annexed
to the crime when committed.16 Penal laws and laws which, while
not penal in nature, nonetheless have provisions defining offenses
and prescribing penalties for their violation operate prospectively.
the Anti-Subversion Act was filed against the respondent Feliciano
Co in the Court of First Instance of Tarlac. On March 10 Judge Jose
C. de Guzman conducted a preliminary investigation and, finding a
prima facie case against Co, directed the Government prosecutors
to file the corresponding information. The twice-amended
information, docketed as Criminal Case No. 27, recites:

47
That on or about May 1969 to December 5, 1969, in the Municipality
of Capas, Province of Tarlac, Philippines, and within the jurisdiction
of this Honorable Court, the abovenamed accused, feloniously
became an officer and/or ranking leader of the Communist Party of
the Philippines, an outlawed and illegal organization aimed to
overthrow the Government of the Philippines by means of force,
violence, deceit, subversion, or any other illegal means for the
purpose of establishing in the Philippines a totalitarian regime and
placing the government under the control and domination of an alien
power, by being an instructor in the Mao Tse Tung University, the
training school of recruits of the New People's Army, the military arm
of the said Communist Party of the Philippines.
That in the commission of the above offense, the following
aggravating circumstances are present, to wit:
(a) That the crime has been committed in contempt of or with
insult to public authorities;
(b) That the crime was committed by a band; and afford
impunity.
(c) With the aid of armed men or persons who insure or afford
impunity.
Co moved to quash on the ground that the Anti-Subversion Act is a
bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed
with the same court, sharing the respondent Nilo Tayag and five
others with subversion. After preliminary investigation was had, an
information was filed, which, as amended, reads:
The undersigned provincial Fiscal of Tarlac and State Prosecutors
duly designated by the Secretary of Justice to collaborate with the
Provincial Fiscal of Tarlac, pursuant to the Order dated June 5,
above entitled case, hereby accuse Nilo S. Tayag, alias Romy
Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE,
ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias
COMMANDER MELODY and several JOHN DOES, whose
identities are still unknown, for violation of REPUBLIC ACT No.
1700, otherwise known as the Anti-Subversion Law, committed as
follows:
That in or about March 1969 and for sometime prior thereto and
thereafter, in the Province of Tarlac, within the jurisdiction of this
Honorable Court, and elsewhere in the Philippines, the above-
named accused knowingly, willfully and by overt acts organized,
joined and/or remained as offices and/or ranking leaders, of the
KABATAANG MAKABAYAN, a subversive organization as defined
in Republic Act No. 1700; that BENJAMIN BIE and COMMANDER
MELODY, in addition thereto, knowingly, willfully and by over acts
joined and/or remained as a member and became an officer and/or
ranking leader not only of the Communist Party of the Philippines
but also of the New People's Army, the military arm of the
Communist Party of the Philippines; and that all the above-named
accused, as such officers and/or ranking leaders of the aforestated
subversive organizations, conspiring, confederating and mutually
helping one another, did then and there knowingly, willfully and
feloniously commit subversive and/or seditious acts, by inciting,
instigating and stirring the people to unite and rise publicly and
tumultuously and take up arms against the government, and/or
engage in rebellious conspiracies and riots to overthrow the
government of the Republic of the Philippines by force, violence,
deceit, subversion and/or other illegal means among which are the
following:
1. On several occasions within the province of Tarlac, the
accused conducted meetings and/or seminars wherein the said
accused delivered speeches instigating and inciting the people to
unite, rise in arms and overthrow the Government of the Republic of
the Philippines, by force, violence, deceit, subversion and/or other
illegal means; and toward this end, the said accused organized,
among others a chapter of the KABATAANG MAKABAYAN in barrio
Motrico, La Paz, Tarlac for the avowed purpose of undertaking or
promoting an armed revolution, subversive and/or seditious
propaganda, conspiracies, and/or riots and/or other illegal means to
discredit and overthrow the Government of the Republic of the
Philippines and to established in the Philippines a Communist
regime.
2. The accused NILO TAYAG alias ROMY REYES alias
TABA, together with FRANCISCO PORTEM alias KIKO Gonzales
and others, pursued the above subversive and/or seditious activities
in San Pablo City by recruiting members for the New People's Army,
and/or by instigating and inciting the people to organize and unite
for the purpose of overthrowing the Government of the Republic of
the Philippines through armed revolution, deceit, subversion and/or
other illegal means, and establishing in the Philippines a Communist
Government.
That the following aggravating circumstances attended the
commission of the offense: (a) aid of armed men or persons to
insure or afford impunity; and (b) craft, fraud, or disguise was
employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of
the statute on the grounds that (1) it is a bill of attainder; (2) it is
vague; (3) it embraces more than one subject not expressed in the
title thereof; and (4) it denied him the equal protection of the laws.
Resolving the constitutional issues raised, the trial court, in its
resolution of September 15, 1970, declared the statute void on the
grounds that it is a bill of attainder and that it is vague and
overboard, and dismissed the informations against the two accused.
The Government appealed. We resolved to treat its appeal as a
special civil action for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of
attainder or ex port facto law shall be enacted." 2 A bill of attainder
is a legislative act which inflicts punishment without trial. 3 Its
essence is the substitution of a legislative for a judicial determination
of guilt. 4 The constitutional ban against bills of attainder serves to
implement the principle of separation of powers 5 by confining
legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the
judicial function. 7 History in perspective, bills of attainder were
employed to suppress unpopular causes and political minorities, 8
and it is against this evil that the constitutional prohibition is directed.
The singling out of a definite class, the imposition of a burden on it,
and a legislative intent, suffice to stigmatizea statute as a bill of
attainder. 9
In the case at bar, the Anti-Subversion Act was condemned by the
court a quo as a bill of attainder because it "tars and feathers" the
Communist Party of the Philippines as a "continuing menace to the
freedom and security of the country; its existence, a 'clear, present
and grave danger to the security of the Philippines.'" By means of
the Act, the trial court said, Congress usurped "the powers of the
judge," and assumed "judicial magistracy by pronouncing the guilt
of the CCP without any of the forms or safeguards of judicial trial."
Finally, according to the trial court, "if the only issue [to be
determined] is whether or not the accused is a knowing and
voluntary member, the law is still a bill of attainder because it has
48
expressly created a presumption of organizational guilt which the
accused can never hope to overthrow."
1. When the Act is viewed in its actual operation, it will be
seen that it does not specify the Communist Party of the Philippines
or the members thereof for the purpose of punishment. What it does
is simply to declare the Party to be an organized conspiracy for the
overthrow of the Government for the purposes of the prohibition,
stated in section 4, against membership in the outlawed
organization. The term "Communist Party of the Philippines" issued
solely for definitional purposes. In fact the Act applies not only to the
Communist Party of the Philippines but also to "any other
organization having the same purpose and their successors." Its
focus is not on individuals but on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S.
Federal Labor-Management Reporting and Disclosure Act of 1959
11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and
therefore unconstitutional. Section 504 provided in its pertinent parts
as follows:
(a) No person who is or has been a member of the
Communist
Party ... shall serve —
(1) as an officer, director, trustee, member of any executive
board or similar governing body, business agent, manager,
organizer, or other employee (other than as an employee
performing exclusively clerical or custodial duties) of any labor
organization.
during or for five years after the termination of his membership in
the Communist Party....
(b) Any person who willfully violates this section shall be fined
not more than $10,000 or imprisoned for not more than one year, or
both.
This statute specified the Communist Party, and imposes disability
and penalties on its members. Membership in the Party, without
more, ipso facto disqualifies a person from becoming an officer or a
member of the governing body of any labor organization. As the
Supreme Court of the United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor
Management Reporting and Disclosure Act plainly constitutes a bill
of attainder. Congress undoubtedly possesses power under the
Commerce Clause to enact legislation designed to keep from
positions affecting interstate commerce persons who may use of
such positions to bring about political strikes. In section 504,
however, Congress has exceeded the authority granted it by the
Constitution. The statute does not set forth a generally applicable
rule decreeing that any person who commits certain acts or
possesses certain characteristics (acts and characteristics which, in
Congress' view, make them likely to initiate political strikes) shall not
hold union office, and leaves to courts and juries the job of deciding
what persons have committed the specified acts or possessed the
specified characteristics. Instead, it designates in no uncertain
terms the persons who possess the feared characteristics and
therefore cannot hold union office without incurring criminal liability
— members of the Communist Party.
Communist Party v. Subversive Activities Control Board, 367 US 1,
6 L ed 2d 625, 81 S CT 1357, lend a support to our conclusion. That
case involved an appeal from an order by the Control Board ordering
the Communist Party to register as a "Communist-action
organization," under the Subversive Activities Control Act of 1950,
64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of
"Communist-action organization" which the Board is to apply is set
forth in sec. 3 of the Act:
[A]ny organization in the United States ... which (i)is substantially
directed, dominated, or controlled by the foreign government or
foreign organization controlling the world Communist movement
referred to in section 2 of this title, and(ii) operates primarily to
advance the objectives of such world Communist movement... 64
Stat 989, 50 USC sec. 782 (1958 ed.)
A majority of the Court rejected the argument that the Act was a bill
of attainder, reasoning that sec. 3 does not specify the persons or
groups upon which the deprivations setforth in the Act are to be
imposed, but instead sets forth a general definition. Although the
Board has determined in 1953 that the Communist Party was a
"Communist-action organization," the Court found the statutory
definition not to be so narrow as to insure that the Party would
always come within it:
In this proceeding the Board had found, and the Court of Appeals
has sustained its conclusion, that the Communist Party, by virtud of
the activities in which it now engages, comes within the terms of the
Act. If the Party should at anytime choose to abandon these
activities, after it is once registered pursuant to sec. 7, the Act
provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683)
Indeed, were the Anti-Subversion Act a bill of attainder, it would be
totally unnecessary to charge Communists in court, as the law
alone, without more, would suffice to secure their punishment. But
the undeniable fact is that their guilt still has to be judicially
established. The Government has yet to prove at the trial that the
accused joined the Party knowingly, willfully and by overt acts, and
that they joined the Party, knowing its subversive character and with
specific intent to further its basic objective, i.e., to overthrow the
existing Government by force deceit, and other illegal means and
place the country under the control and domination of a foreign
power.
As to the claim that under the statute organizationl guilt is
nonetheless imputed despite the requirement of proof of knowing
membership in the Party, suffice it to say that is precisely the nature
of conspiracy, which has been referred to as a "dragneet device"
whereby all who participate in the criminal covenant are liable. The
contention would be correct if the statute were construed as
punishing mere membership devoid of any specific intent to further
the unlawful goals of the Party. 13 But the statute specifically
required that membership must be knowing or active, with specific
intent to further the illegal objectives of the Party. That is what
section 4 means when it requires that membership, to be unlawful,
must be shown to have been acquired "knowingly, willfully and by
overt acts." 14 The ingredient of specific intent to pursue the
unlawful goals of the Party must be shown by "overt acts." 15 This
constitutes an element of "membership" distinct from the ingredient
of guilty knowledge. The former requires proof of direct participation
in the organization's unlawful activities, while the latter requires
proof of mere adherence to the organization's illegal objectives.
2. Even assuming, however, that the Act specifies
individuals and not activities, this feature is not enough to render it
a bill of attainder. A statute prohibiting partners or employees of
securities underwriting firms from serving as officers or employees
of national banks on the basis of a legislative finding that the
persons mentioned would be subject to the temptation to commit
acts deemed inimical to the national economy, has been declared
not to be a bill of attainder. 16 Similarly, a statute requiring every
secret, oath-bound society having a membership of at least twenty
to register, and punishing any person who becomes a member of
49
such society which fails to register or remains a member thereof,
was declared valid even if in its operation it was shown to apply only
to the members of the Ku Klux Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial Peace
Act, 18 requiring labor unions to file with the Department of Labor
affidavits of union officers "to the effect that they are not members
of the Communist Party and that they are not members of any
organization which teaches the overthrow of the Government by
force or by any illegal or unconstitutional method," was upheld by
this Court. 19
Indeed, it is only when a statute applies either to named individuals
or to easily ascertainable members of a group in such a way as to
inflict punishment on them without a judicial trial does it become a
bill of attainder. 20 It is upon this ground that statutes which
disqualified those who had taken part in the rebellion against the
Government of the United States during the Civil War from holding
office, 21 or from exercising their profession, 22 or which prohibited
the payment of further compensation to individuals named in the Act
on the basis of a finding that they had engages in subversive
activities, 23 or which made it a crime for a member of the
Communist Party to serve as an officer or employee of a labor union,
24 have been invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally
acknowledged to be certain as to be "judicially noticeable," the
legislature may apply its own rules, and judicial hearing is not
needed fairly to make such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York
legislature passed a law requiring every secret, oath-bound society
with a membership of at least twenty to register, and punishing any
person who joined or remained a member of such a society failing
to register. While the statute did not specify the Ku Klux Klan, in its
operation the law applied to the KKK exclusively. In sustaining the
statute against the claim that it discriminated against the Ku Klux
Klan while exempting other secret, oath-bound organizations like
masonic societies and the Knights of Columbus, the United States
Supreme Court relied on common knowledge of the nature and
activities of the Ku Klux Klan. The Court said:
The courts below recognized the principle shown in the cases just
cited and reached the conclusion that the classification was justified
by a difference between the two classes of associations shown by
experience, and that the difference consisted (a) in a manifest
tendency on the part of one class to make the secrecy surrounding
its purpose and membership a cloak for acts and conduct inimical
to personal rights and public welfare, and (b) in the absence of such
a tendency on the part of the other class. In pointing out this
difference one of the courts said of the Ku Klux Klan, the principal
association in the included class: "It is a matter of common
knowledge that this organization functions largely at night, its
members disguised by hoods and gowns and doing things
calculated to strike terror into the minds of the people;" and later
said of the other class: "These organizations and their purposes are
well known, many of them having been in existence for many years.
Many of them are oath-bound and secret. But we hear no complaint
against them regarding violation of the peace or interfering with the
rights of others." Another of the courts said: "It is a matter of
common knowledge that the association or organization of which
the relator is concededly a member exercises activities tending to
the prejudice and intimidation of sundry classes of our citizens. But
the legislation is not confined to this society;" and later said of the
other class: "Labor unions have a recognized lawful purpose. The
benevolent orders mentioned in the Benevolent Orders Law have
already received legislative scrutiny and have been granted special
privileges so that the legislature may well consider them beneficial
rather than harmful agencies." The third court, after recognizing "the
potentialities of evil in secret societies," and observing that "the
danger of certain organizations has been judicially demonstrated,"
— meaning in that state, — said: "Benevolent orders, labor unions
and college fraternities have existed for many years, and, while not
immune from hostile criticism, have on the whole justified their
existence."
We assume that the legislature had before it such information as
was readily available including the published report of a hearing,
before a committee of the House of Representatives of the 57th
Congress relating to the formation, purposes and activities of the
Klu Klux Klan. If so it was advised — putting aside controverted
evidence — that the order was a revival of the Ku Klux Klan of an
earlier time with additional features borrowed from the Know
Nothing and the A. P. A. orders of other periods; that its
memberships was limited to native-born, gentile, protestant whites;
that in part of its constitution and printed creed it proclaimed the
widest freedom for all and full adherence to the Constitution of the
United States; in another exacted of its member an oath to shield
and preserve "white supremacy;" and in still another declared any
person actively opposing its principles to be "a dangerous ingredient
in the body politic of our country and an enemy to the weal of our
national commonwealth;" that it was conducting a crusade against
Catholics, Jews, and Negroes, and stimulating hurtful religious and
race prejudices; that it was striving for political power and assuming
a sort of guardianship over the administration of local, state and
national affairs; and that at times it was taking into its own hands the
punishment of what some of its members conceived to be crimes.
27
In the Philippines the character of the Communist Party has been
the object of continuing scrutiny by this Court. In 1932 we found the
Communist Party of the Philippines to be an illegal association. 28
In 1969 we again found that the objective of the Party was the
"overthrow of the Philippine Government by armed struggle and to
establish in the Philippines a communist form of government similar
to that of Soviet Russia and Red China." 29 More recently, in
Lansang vs. Garcia, 30 we noted the growth of the Communist Party
of the Philippines and the organization of Communist fronts among
youth organizations such as the Kabataang Makabayan (KM) and
the emergence of the New People's Army. After meticulously
reviewing the evidence, we said: "We entertain, therefore, no doubts
about the existence of a sizeable group of men who have publicly
risen in arms to overthrow the government and have thus been and
still are engaged in rebellion against the Government of the
Philippines.
3. Nor is it enough that the statute specify persons or groups
in order that it may fall within the ambit of the prohibition against bills
of attainder. It is also necessary that it must apply retroactively and
reach past conduct. This requirement follows from the nature of a
bill of attainder as a legislative adjudication of guilt. As Justice
Frankfurter observed, "frequently a bill of attainder was ... doubly
objectionable because of its ex post facto features. This is the
historic explanation for uniting the two mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.'
... Therefore, if [a statute] is a bill of attainder it is also an ex post
facto law. But if it is not an ex post facto law, the reasons that
establish that it is not are persuasive that it cannot be a bill of
attainder." 31
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme
Court upheld the validity of the Charter of the City of Los Angeles
which provided:
... [N]o person shall hold or retain or be eligible for any public office
or employment in the service of the City of Los Angeles, in any office
or department thereof, either elective or appointive, who has within
five (5) years prior to the effective date of this section advised,
advocated, or taught, or who may, after this section becomes
effective, become a member of or affiliated with any group, society,
association, organization or party which advises, advocates or
teaches or has within said period of five (5) years advised,
advocated, or taught the overthrow by force or violence of the
Government of the United States of America or of the State of
California.
50

In upholding the statute, the Court stressed the prospective
application of the Act to the petitioner therein, thus:
... Immaterial here is any opinion we might have as to the charter
provision insofar as it purported to apply restrospectively for a five-
year period to its effective date. We assume that under the Federal
Constitution the Charter Amendment is valid to the extent that it bars
from the city's public service persons who, subsequently to its
adoption in 1941, advise, advocate, or reach the violent overthrow
of the Government or who are or become affiliated with any group
doing so. The provisions operating thus prospectively were a
reasonable regulation to protect the municipal service by
establishing an employment qualification of loyalty to the State and
the United States.
... Unlike the provisions of the charter and ordinance under which
petitioners were removed, the statute in the Lovett case did not
declare general and prospectively operative standards of
qualification and eligibility for public employment. Rather, by its
terms it prohibited any further payment of compensationto named
individuals or employees. Under these circumstances, viewed
against the legislative background, the statutewas held to have
imposed penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress
thereby assumed judicial magistracy, them it mustbe demonstrated
that the statute claimed to be a bill of attainderreaches past conduct
and that the penalties it imposesare inescapable. As the U.S.
Supreme Court observedwith respect to the U.S. Federal
Subversive Activities ControlAct of 1950:
Nor is the statute made an act of "outlawry" or of attainderby the fact
that the conduct which it regulates is describedwith such
particularity that, in probability, few organizationswill come within the
statutory terms. Legislatures may act tocurb behaviour which they
regard as harmful to the public welfare,whether that conduct is
found to be engaged in by manypersons or by one. So long as the
incidence of legislation issuch that the persons who engage in the
regulated conduct, bethey many or few, can escape regulation
merely by altering thecourse of their own present activities, there
can be no complaintof an attainder. 33
This statement, mutatis mutandis, may be said of theAnti-
Subversion Act. Section 4 thereof expressly statesthat the
prohibition therein applies only to acts committed"After the approval
of this Act." Only those who "knowingly,willfully and by overt acts
affiliate themselves with,become or remain members of the
Communist Party of thePhilippines and/or its successors or of any
subversive association"after June 20, 1957, are punished. Those
whowere members of the Party or of any other subversive
associationat the time of the enactment of the law, weregiven the
opportunity of purging themselves of liability byrenouncing in writing
and under oath their membershipin the Party. The law expressly
provides that such renunciationshall operate to exempt such
persons from penalliability. 34 The penalties prescribed by the Act
are thereforenot inescapable.
III. The Act and the Requirements of Due Process
1. As already stated, the legislative declaration in section 2
of the Act that the Communist Party of the Philippinesis an
organized conspiracy for the overthrow of theGovernment is inteded
not to provide the basis for a legislativefinding of guilt of the
members of the Party butrather to justify the proscription spelled out
in section 4. Freedom of expression and freedom of association are
sofundamental that they are thought by some to occupy a"preferred
position" in the hierarchy of constitutional values. 35 Accordingly,
any limitation on their exercise mustbe justified by the existence of
a substantive evil. This isthe reason why before enacting the statute
in question Congressconducted careful investigations and then
stated itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines althoughpurportedly a
political party, is in fact an organized conspiracyto overthrow the
Government of the Republic of the Philippinesnot only by force and
violence but also by deceit, subversionand other illegal means, for
the purpose of establishing in thePhilippines a totalitarian regime
subject to alien dominationand control;
... [T]he continued existence and activities of the CommunistParty
of the Philippines constitutes a clear, present andgrave danger to
the security of the Philippines;
... [I]n the face of the organized, systematice and
persistentsubversion, national in scope but international in
direction,posed by the Communist Party of the Philippines and its
activities,there is urgent need for special legislation to cope withthis
continuing menace to the freedom and security of the country.
In truth, the constitutionality of the Act would be opento question if,
instead of making these findings in enactingthe statute, Congress
omitted to do so.
In saying that by means of the Act Congress has assumed judicial
magistracy, the trial courd failed to takeproper account of the
distinction between legislative fact and adjudicative fact. Professor
Paul Freund elucidatesthe crucial distinction, thus:
... A law forbidding the sale of beverages containingmore than 3.2
per cent of alcohol would raise a question of legislativefact, i.e.,
whether this standard has a reasonable relationto public health,
morals, and the enforcement problem. Alaw forbidding the sale of
intoxicating beverages (assuming itis not so vague as to require
supplementation by rule-making)would raise a question of
adjudicative fact, i.e., whether thisor that beverage is intoxicating
within the meaning of the statuteand the limits on governmental
action imposed by the Constitution. Of course what we mean by fact
in each case is itselfan ultimate conclusion founded on underlying
facts and oncriteria of judgment for weighing them.
A conventional formulation is that legislative facts — those facts
which are relevant to the legislative judgment — will not be
canvassed save to determine whether there is a rationalbasis for
believing that they exist, while adjudicativefacts — those which tie
the legislative enactment to the litigant — are to be demonstrated
and found according to the ordinarystandards prevailing for judicial
trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this
Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a
reasonable relation to a proper legislative purpose, and are neither
arbitrary nor discriminatory, the requirements of due process are
satisfied, and judicial determination to that effect renders a court
functus officio." The recital of legislative findings implements this
test.
With respect to a similar statement of legislative findingsin the U.S.
Federal Subversive Activities Control Actof 1950 (that "Communist-
action organizations" are controlledby the foreign government
controlling the worldCommunist movement and that they operate
primarily to"advance the objectives of such world Communist
movement"),the U.S. Supreme Court said:
51
It is not for the courts to reexamine the validity of theselegislative
findings and reject them....They are the productof extensive
investigation by Committes of Congress over morethan a decade
and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We
certainly cannot dismiss them as unfoundedirrational imaginings. ...
And if we accept them, as we mustas a not unentertainable
appraisal by Congress of the threatwhich Communist organizations
pose not only to existing governmentin the United States, but to the
United States as asovereign, independent Nation. ...we must
recognize that thepower of Congress to regulate Communist
organizations of thisnature is
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative
findings articulated in the Anti-Subversion Act.
That the Government has a right to protect itself againstsubversion
is a proposition too plain to require elaboration.Self-preservation is
the "ultimate value" of society. It surpasses and transcendes every
other value, "forif a society cannot protect its very structure from
armedinternal attack, ...no subordinate value can be protected" 40
As Chief Justice Vinson so aptly said in Dennis vs. United States:
41
Whatever theoretical merit there may be to the argumentthat there
is a 'right' to rebellion against dictatorial governmentsis without force
where the existing structure of government provides for peaceful
and orderly change. We rejectany principle of governmental
helplessness in the face of preparationfor revolution, which
principle, carried to its logical conclusion,must lead to anarchy. No
one could conceive that it isnot within the power of Congress to
prohibit acts intended tooverthrow the government by force and
violence.
2. By carefully delimiting the reach of the Act to conduct (as
explicitly described in sectin 4 thereof), Congressreaffirmed its
respect for the rule that "even throughthe governmental purpose be
legitimate and substantial,that purpose cannot be pursued by
means that broadly stiflefundamental personal liberties when the
end can be more narrowly achieved." 42 The requirement of
knowing membership,as distinguished from nominal membership,
hasbeen held as a sufficient basis for penalizing membershipin a
subversive organization. 43 For, as has been stated:
Membership in an organization renders aid and encouragement to
the organization; and when membership is acceptedor retained with
knowledge that the organization is engaged inan unlawful purpose,
the one accepting or retaining membershipwith such knowledge
makes himself a party to the unlawfulenterprise in which it is
engaged. 44
3. The argument that the Act is unconstitutionallyoverbroad
because section 2 merely speaks of "overthrow"of the Government
and overthrow may be achieved by peaceful means, misconceives
the function of the phrase"knowingly, willfully and by overt acts" in
section 4. Section 2 is merely a legislative declaration; the
definitionsof and the penalties prescribed for the different acts
prescribedare stated in section 4 which requires that membershipin
the Communist Party of the Philippines, to be unlawful, must be
acquired "knowingly, willfully and by overt acts." Indeed, the first
"whereas" clause makes clear thatthe overthrow contemplated is
"overthrow not only by forceand violence but also be deceit,
subversion and other illegalmeans." The absence of this qualificatio
in section 2 appearsto be due more to an oversight rather than to
deliberateomission.
Moreover, the word "overthrow' sufficiently connotesthe use of
violent and other illegal means. Only in a metaphoricalsense may
one speak of peaceful overthrow ofgovernments, and certainly the
law does not speak in metaphors.In the case of the Anti-Subversion
Act, the use ofthe word "overthrow" in a metaphorical sense is
hardlyconsistent with the clearly delineated objective of the
"overthrow,"namely, "establishing in the Philippines a
totalitarianregime and place [sic] the Government under thecontrol
and domination of an alien power." What thisCourt once said in a
prosecution for sedition is appropos: "The language used by the
appellant clearly imported anoverthrow of the Government by
violence, and it should beinterpreted in the plain and obvious sense
in which it wasevidently intended to be understood. The word
'overthrow'could not have been intended as referring to an
ordinarychange by the exercise of the elective franchise. The useof
the whip [which the accused exhorted his audience to useagainst
the Constabulary], an instrument designed toleave marks on the
sides of adversaries, is inconsistentwith the mild interpretation
which the appellant wouldhave us impute to the language." 45
IV. The Act and the Guaranty of Free Expression
As already pointed out, the Act is aimed against conspiracies to
overthrow the Government by force, violence orother illegal means.
Whatever interest in freedom of speechand freedom of association
is infringed by the prohibitionagainst knowing membership in the
Communist Party ofthe Philippines, is so indirect and so
insubstantial as to beclearly and heavily outweighed by the
overriding considerationsof national security and the preservartion
of democraticinstitutions in his country.
The membership clause of the U.S. Federal Smith Actis similar in
many respects to the membership provision ofthe Anti-Subversion
Act. The former provides:
Whoever organizes or helps or attempts to organize anysociety,
group, or assembly of persons who teach, advocate, orencourage
the overthrow or destruction of any such governmentby force or
violence; or becomes or is a member of, or affiliatedwith, any such
society, group or assembly of persons, knowingthe purpose thereof
—
Shall be fined not more than $20,000 or imprisoned notmore than
twenty years, or both, and shall be ineligible for emplymentby the
United States or any department or agencythereof, for the five years
next following his conviction.... 46
In sustaining the validity of this provision, the "Court said in Scales
vs. United States: 47
It was settled in Dennis that advocacy with which we arehere
concerned is not constitutionally protected speech, and itwas further
established that a combination to promote suchadvocacy, albeit
under the aegis of what purports to be a politicalparty, is not such
association as is protected by the firstAmendment. We can discern
no reason why membership, whenit constitutes a purposeful form of
complicity in a group engagingin this same forbidden advocacy,
should receive anygreater degree of protection from the guarantees
of that Amendment.
Moreover, as was held in another case, where the problemsof
accommodating the exigencies of self-preservationand the values
of liberty are as complex and intricate as inthe situation described in
the legislative findings stated inthe U.S. Federal Subversive
Activities Control Act of 1950,the legislative judgment as to how that
threat may best bemet consistently with the safeguards of personal
freedomsis not to be set aside merely because the judgment of
judgeswould, in the first instance, have chosen other methods. 48
For in truth, legislation, "whether it restrains freedom tohire or
freedom to speak, is itself an effort at compromisebetween the
claims of the social order and individual freedom,and when the
52
legislative compromise in either case isbrought to the judicial test
the court stands one step removedfrom the conflict and its resolution
through law." 49
V. The Act and its Title
The respondent Tayag invokes the constitutional commandthat "no
bill which may be enacted into law shall embrace more than one
subject which shall be expressed in the title of the bill." 50
What is assailed as not germane to or embraced in thetitle of the
Act is the last proviso of section 4 which reads:
And provided, finally, That one who conspires with anyother person
to overthrow the Government of the Republic ofthe Philippines, or
the government of any of its political subdivisionsby force, violence,
deceit, subversion or illegal means,for the purpose of placing such
Government or political subdivisionunder the control and domination
of any lien power, shallbe punished by prision correccional to prision
mayor with allthe accessory penalties provided therefor in the same
code.
It is argued that the said proviso, in reality, punishes notonly
membership in the Communist Party of the Philippinesor similar
associations, but as well "any conspiracyby two persons to
overthrow the national or any local governmentby illegal means,
even if their intent is not to establisha totalitarian regime, burt a
democratic regime, evenif their purpose is not to place the nation
under an aliencommunist power, but under an alien democratic
power likethe United States or England or Malaysia or even an anti-
communistpower like Spain, Japan, Thailand or Taiwanor
Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist
Party of the Philippines and SimilarAssociations, Penalizing
Membership Therein, and forOther Purposes"), has a short title.
Section 1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of
the statuteunequivocally indicates that the subject matter is
subversionin general which has for its fundamental purpose the
substitutionof a foreign totalitarian regime in place of theexisting
Government and not merely subversion by
Communistconspiracies..
The title of a bill need not be a catalogue or an indexof its contents,
and need not recite the details of the Act. 51 It is a valid title if it
indicates in broad but clear termsthe nature, scope, and
consequences of the proposed lawand its operation. 52 A narrow or
technical construction isto be avoided, and the statute will be read
fairly and reasonablyin order not to thwart the legislative intent. We
holdthat the Anti-Subversion Act fully satisfies these requirements.
VI. Conclusion and Guidelines
In conclusion, even as we uphold the validity of theAnti-Subversion
Act, we cannot overemphasize the needfor prudence and
circumspection in its enforcement, operatingas it does in the
sensitive area of freedom of expressionand belief. Accordingly, we
set the following basic guidelines to be observed in any prosecution
under the Act.The Government, in addition to proving such
circumstancesas may affect liability, must establish the following
elementsof the crime of joining the Communist Party of the
Philippinesor any other subversive association:
(1) In the case of subversive organizations other thanthe
Communist Party of the Philippines, (a) that thepurpose of the
organization is to overthrow the presentGovernment of the
Philippines and to establish in thiscountry a totalitarian regime under
the domination of aforeign power; (b) that the accused joined such
organization;and (c) that he did so knowingly, willfully and byovert
acts; and
(2) In the case of the Communist Party of the Philippines,(a)
that the CPP continues to pursue the objectiveswhich led Congress
in 1957 to declare it to be an organizedconspiracy for the overthrow
of the Government by illegalmeans for the purpose of placing the
country under thecontrol of a foreign power; (b) that the accused
joined theCPP; and (c) that he did so willfully, knowingly and byovert
acts.
We refrain from making any pronouncement as to thecrime or
remaining a member of the Communist Party ofthe Philippines or of
any other subversive association: weleave this matter to future
determination.
ACCORDINGLY, the questioned resolution of September15, 1970
is set aside, and these two cases are herebyremanded to the court
a quo for trial on the merits. Costs de oficio.
G.R. No. 149927 March 30, 2004
REPUBLIC OF THE PHILIPPINES, Represented by the
Department of Environment and Natural Resources (DENR)
Under then Minister ERNESTO R. MACEDA; and Former
Government Officials CATALINO MACARAIG, FULGENCIO S.
FACTORAN, ANGEL C. ALCALA, BEN MALAYANG, ROBERTO
PAGDANGANAN, MARIANO Z. VALERA and ROMULO SAN
JUAN, petitioners,
vs.
ROSEMOOR MINING AND DEVELOPMENT CORPORATION,
PEDRO DEL CONCHA, and ALEJANDRO and RUFO DE
GUZMAN, respondents.
DECISION
PANGANIBAN, J.:
A mining license that contravenes a mandatory provision of the law
under which it is granted is void. Being a mere privilege, a license
does not vest absolute rights in the holder. Thus, without offending
the due process and the non-impairment clauses of the Constitution,
it can be revoked by the State in the public interest.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules of
Court, seeking to nullify the May 29, 2001 Decision2 and the
September 6, 2001 Resolution3 of the Court of Appeals (CA) in CA-
GR SP No. 46878. The CA disposed as follows:
"WHEREFORE, premises considered, the appealed Decision is
hereby AFFIRMED in toto."4
53
The questioned Resolution denied petitioners’ Motion
Reconsideration.
On the other hand, trial court’s Decision, which was affirmed by the
CA, had disposed as follows:
"WHEREFORE, judgment is hereby rendered as follows:
‘1. Declaring that the cancellation of License No. 33 was done
without jurisdiction and in gross violation of the Constitutional right
of the petitioners against deprivation of their property rights without
due process of law and is hereby set aside.
‘2. Declaring that the petitioners’ right to continue the exploitation of
the marble deposits in the area covered by License No. 33 is
maintained for the duration of the period of its life of twenty-five (25)
years, less three (3) years of continuous operation before License
No. 33 was cancelled, unless sooner terminated for violation of any
of the conditions specified therein, with due process.
‘3. Making the Writ of preliminary injunction and the Writ of
Preliminary Mandatory Injunction issued as permanent.
‘4. Ordering the cancellation of the bond filed by the Petitioners in
the sum of 1 Million.
‘5. Allowing the petitioners to present evidence in support of the
damages they claim to have suffered from, as a consequence of the
summary cancellation of License No. 33 pursuant to the agreement
of the parties on such dates as maybe set by the Court; and
‘6. Denying for lack of merit the motions for contempt, it appearing
that actuations of the respondents were not contumacious and
intended to delay the proceedings or undermine the integrity of the
Court.
‘No pronouncement yet as to costs.’"5
The Facts
The CA narrated the facts as follows:
"The four (4) petitioners, namely, Dr. Lourdes S. Pascual, Dr. Pedro
De la Concha, Alejandro De La Concha, and Rufo De Guzman, after
having been granted permission to prospect for marble deposits in
the mountains of Biak-na-Bato, San Miguel, Bulacan, succeeded in
discovering marble deposits of high quality and in commercial
quantities in Mount Mabio which forms part of the Biak-na-Bato
mountain range.
"Having succeeded in discovering said marble deposits, and as a
result of their tedious efforts and substantial expenses, the
petitioners applied with the Bureau of Mines, now Mines and
Geosciences Bureau, for the issuance of the corresponding license
to exploit said marble deposits.
xxxxxxxxx
for "After compliance with numerous required conditions, License No.
33 was issued by the Bureau of Mines in favor of the herein
petitioners.
xxxxxxxxx
"Shortly after Respondent Ernesto R. Maceda was appointed
Minister of the Department of Energy and Natural Resources
(DENR), petitioners’ License No. 33 was cancelled by him through
his letter to ROSEMOOR MINING AND DEVELOPMENT
CORPORATION dated September 6, 1986 for the reasons stated
therein. Because of the aforesaid cancellation, the original petition
was filed and later substituted by the petitioners’ AMENDED
PETITION dated August 21, 1991 to assail the same.
"Also after due hearing, the prayer for injunctive relief was granted
in the Order of this Court dated February 28, 1992. Accordingly, the
corresponding preliminary writs were issued after the petitioners
filed their injunction bond in the amount of ONE MILLION PESOS
(P1,000,000.00).
xxxxxxxxx
"On September 27, 1996, the trial court rendered the herein
questioned decision."6
The trial court ruled that the privilege granted under respondents’
license had already ripened into a property right, which was
protected under the due process clause of the Constitution. Such
right was supposedly violated when the license was cancelled
without notice and hearing. The cancellation was said to be
unjustified, because the area that could be covered by the four
separate applications of respondents was 400 hectares. Finally,
according to the RTC, Proclamation No. 84, which confirmed the
cancellation of the license, was an ex post facto law; as such, it
violated Section 3 of Article XVIII of the 1987 Constitution.
On appeal to the Court of Appeals, herein petitioners asked whether
PD 463 or the Mineral Resources Development Decree of 1974 had
been violated by the award of the 330.3062 hectares to respondents
in accordance with Proclamation No. 2204. They also questioned
the validity of the cancellation of respondents’ Quarry
License/Permit (QLP) No. 33.
Ruling of the Court of Appeals
Sustaining the trial court in toto, the CA held that the grant of the
quarry license covering 330.3062 hectares to respondents was
authorized by law, because the license was embraced by four (4)
separate applications -- each for an area of 81 hectares. Moreover,
it held that the limitation under Presidential Decree No. 463 -- that a
quarry license should cover not more than 100 hectares in any given
province -- was supplanted by Republic Act No. 7942,7 which
increased the mining areas allowed under PD 463.
It also ruled that the cancellation of respondents’ license without
notice and hearing was tantamount to a deprivation of property
without due process of law. It added that under the clause in the
Constitution dealing with the non-impairment of obligations and
contracts, respondents’ license must be respected by the State.
Hence, this Petition.8
54

Issues
Petitioners submit the following issues for the Court’s consideration:
"(1) [W]hether or not QLP No. 33 was issued in blatant contravention
of Section 69, P.D. No. 463; and (2) whether or not Proclamation
No. 84 issued by then President Corazon Aquino is valid. The
corollary issue is whether or not the Constitutional prohibition
against ex post facto law applies to Proclamation No. 84"9
The Court’s Ruling
The Petition has merit.
First Issue:
Validity of License
Respondents contend that the Petition has no legal basis, because
PD 463 has already been repealed.10 In effect, they ask for the
dismissal of the Petition on the ground of mootness.
PD 463, as amended, pertained to the old system of exploration,
development and utilization of natural resources through licenses,
concessions or leases.11 While these arrangements were provided
under the 193512 and the 197313 Constitutions, they have been
omitted by Section 2 of Article XII of the 1987 Constitution.14
With the shift of constitutional policy toward "full control and
supervision of the State" over natural resources, the Court in Miners
Association of the Philippines v. Factoran Jr. 15 declared the
provisions of PD 463 as contrary to or violative of the express
mandate of the 1987 Constitution. The said provisions dealt with the
lease of mining claims; quarry permits or licenses covering privately
owned or public lands; and other related provisions on lease,
licenses and permits.
RA 7942 or the Philippine Mining Act of 1995 embodies the new
constitutional mandate. It has repealed or amended all laws,
executive orders, presidential decrees, rules and regulations -- or
parts thereof -- that are inconsistent with any of its provisions.16
It is relevant to state, however, that Section 2 of Article XII of the
1987 Constitution does not apply retroactively to a "license,
concession or lease" granted by the government under the 1973
Constitution or before the effectivity of the 1987 Constitution on
February 2, 1987.17 As noted in Miners Association of the
Philippines v. Factoran Jr., the deliberations of the Constitutional
Commission18 emphasized the intent to apply the said
constitutional provision prospectively.
While RA 7942 has expressly repealed provisions of mining laws
that are inconsistent with its own, it nonetheless respects previously
issued valid and existing licenses, as follows:
"SECTION 5. Mineral Reservations. — When the national interest
so requires, such as when there is a need to preserve strategic raw
materials for industries critical to national development, or certain
minerals for scientific, cultural or ecological value, the President
may establish mineral reservations upon the recommendation of the
Director through the Secretary. Mining operations in existing mineral
reservations and such other reservations as may thereafter be
established, shall be undertaken by the Department or through a
contractor: Provided, That a small scale-mining cooperative covered
by Republic Act No. 7076 shall be given preferential right to apply
for a small-scale mining agreement for a maximum aggregate area
of twenty-five percent (25%) of such mineral reservation, subject to
valid existing mining/quarrying rights as provided under Section 112
Chapter XX hereof. All submerged lands within the contiguous zone
and in the exclusive economic zone of the Philippines are hereby
declared to be mineral reservations.
"x x x x x x x x x
"SECTION 7. Periodic Review of Existing Mineral Reservations. —
The Secretary shall periodically review existing mineral reservations
for the purpose of determining whether their continued existence is
consistent with the national interest, and upon his recommendation,
the President may, by proclamation, alter or modify the boundaries
thereof or revert the same to the public domain without prejudice to
prior existing rights."
"SECTION 18. Areas Open to Mining Operations. — Subject to any
existing rights or reservations and prior agreements of all parties, all
mineral resources in public or private lands, including timber or
forestlands as defined in existing laws, shall be open to mineral
agreements or financial or technical assistance agreement
applications. Any conflict that may arise under this provision shall
be heard and resolved by the panel of arbitrators."
"SECTION 19. Areas Closed to Mining Applications. -- Mineral
agreement or financial or technical assistance agreement
applications shall not be allowed:
(a) In military and other government reservations, except upon prior
written clearance by the government agency concerned;
(b) Near or under public or private buildings, cemeteries,
archeological and historic sites, bridges, highways, waterways,
railroads, reservoirs, dams or other infrastructure projects, public or
private works including plantations or valuable crops, except upon
written consent of the government agency or private entity
concerned;
(c) In areas covered by valid and existing mining rights;
(d) In areas expressly prohibited by law;
(e) In areas covered by small-scale miners as defined by law unless
with prior consent of the small-scale miners, in which case a royalty
payment upon the utilization of minerals shall be agreed upon by
the parties, said royalty forming a trust fund for the socioeconomic
development of the community concerned; and
(f) Old growth or virgin forests, proclaimed watershed forest
reserves, wilderness areas, mangrove forests, mossy forests,
national parks, provincial/municipal forests, parks, greenbelts,
game refuge and bird sanctuaries as defined by law and in areas
expressly prohibited under the National Integrated Protected Areas
System (NIPAS) under Republic Act No. 7586, Department
Administrative Order No. 25, series of 1992 and other laws."
"SECTION 112. Non-impairment of Existing Mining/ Quarrying
Rights. — All valid and existing mining lease contracts,
55
permits/licenses, leases pending renewal, mineral production- and free from ambiguity, it must be given its literal meaning and
sharing agreements granted under Executive Order No. 279, at the applied without attempted interpretation.22
date of effectivity of this Act, shall remain valid, shall not be
impaired, and shall be recognized by the Government: Provided,
That the provisions of Chapter XIV on government share in mineral
Moreover, the lower courts’ ruling is evidently inconsistent with the
production-sharing agreement and of Chapter XVI on incentives of
fact that QLP No. 33 was issued solely in the name of Rosemoor
this Act shall immediately govern and apply to a mining lessee or
Mining and Development Corporation, rather than in the names of
contractor unless the mining lessee or contractor indicates his
the four individual stockholders who are respondents herein. It
intention to the secretary, in writing, not to avail of said provisions:
likewise brushes aside a basic postulate that a corporation has a
Provided, further, That no renewal of mining lease contracts shall
separate personality from that of its stockholders.23
be made after the expiration of its term: Provided, finally, That such
leases, production-sharing agreements, financial or technical
assistance agreements shall comply with the applicable provisions
of this Act and its implementing rules and regulations. The interpretation adopted by the lower courts is contrary to the
purpose of Section 69 of PD 463. Such intent to limit, without
qualification, the area of a quarry license strictly to 100 hectares in
any one province is shown by the opening proviso that reads:
"SECTION 113. Recognition of Valid and Existing Mining Claims
"Notwithstanding the provisions of Section 14 hereof x x x." The
and Lease/Quarry Application. — Holders of valid and existing
mandatory nature of the provision is also underscored by the use of
mining claims, lease/quarry applications shall be given preferential
the word shall. Hence, in the application of the 100-hectare-per-
rights to enter into any mode of mineral agreement with the
province limit, no regard is given to the size or the number of mining
government within two (2) years from the promulgation of the rules
claims under Section 14, which we quote:
and regulations implementing this Act." (Underscoring supplied)

"SECTION 14. Size of Mining Claim. -- For purposes of registration

Section 3(p) of RA 7942 defines an existing mining/quarrying right
of a mining claim under this Decree, the Philippine territory and its
as "a valid and subsisting mining claim or permit or quarry permit or
shelf are hereby divided into meridional blocks or quadrangles of
any mining lease contract or agreement covering a mineralized area
one-half minute (1/2) of latitude and longitude, each block or
granted/issued under pertinent mining laws." Consequently,
quadrangle containing area of eighty-one (81) hectares, more or
determining whether the license of respondents falls under this
less.
definition would be relevant to fixing their entitlement to the rights
and/or preferences under RA 7942. Hence, the present Petition has
not been mooted.
"A mining claim shall cover one such block although a lesser area
may be allowed if warranted by attendant circumstances, such as
geographical and other justifiable considerations as may be
Petitioners submit that the license clearly contravenes Section 69 of
determined by the Director: Provided, That in no case shall the
PD 463, because it exceeds the maximum area that may be
locator be allowed to register twice the area allowed for lease under
granted. This incipient violation, according to them, renders the
Section 43 hereof." (Italics supplied)
license void ab initio.

Clearly, the intent of the law would be brazenly circumvented by

Respondents, on the other hand, argue that the license was validly
ruling that a license may cover an area exceeding the maximum by
granted, because it was covered by four separate applications for
the mere expediency of filing several applications. Such ruling would
areas of 81 hectares each.
indirectly permit an act that is directly prohibited by the law.

The license in question, QLP No. 33,19 is dated August 3, 1982,

and it was issued in the name of Rosemoor Mining Development
Corporation. The terms of the license allowed the corporation to
extract and dispose of marbleized limestone from a 330.3062-
hectare land in San Miguel, Bulacan. The license is, however,
subject to the terms and conditions of PD 463, the governing law at
the time it was granted; as well as to the rules and regulations
promulgated thereunder.20 By the same token, Proclamation No.
2204 -- which awarded to Rosemoor the right of development,
exploitation, and utilization of the mineral site -- expressly cautioned
that the grant was subject to "existing policies, laws, rules and
regulations."21
The license was thus subject to Section 69 of PD 463, which reads:
Second Issue:
Validity of Proclamation No. 84
Petitioners also argue that the license was validly declared a nullity
and consequently withdrawn or terminated. In a letter dated
September 15, 1986, respondents were informed by then Minister
Ernesto M. Maceda that their license had illegally been issued,
because it violated Section 69 of PD 463; and that there was no
more public interest served by the continued existence or renewal
of the license. The latter reason, they added, was confirmed by the
language of Proclamation No. 84. According to this law, public
interest would be served by reverting the parcel of land that was
excluded by Proclamation No. 2204 to the former status of that land
as part of the Biak-na-Bato national park.

"Section 69. Maximum Area of Quarry License – Notwithstanding

the provisions of Section 14 hereof, a quarry license shall cover an
area of not more than one hundred (100) hectares in any one
province and not more than one thousand (1,000) hectares in the
entire Philippines." (Italics supplied)
They also contend that Section 74 of PD 463 would not apply,
because Minister Maceda’s letter did not cancel or revoke QLP No.
33, but merely declared the latter’s nullity. They further argue that
respondents waived notice and hearing in their application for the
license.

The language of PD 463 is clear. It states in categorical and

mandatory terms that a quarry license, like that of respondents,
should cover a maximum of 100 hectares in any given province. This
law neither provides any exception nor makes any reference to the
number of applications for a license. Section 69 of PD 463 must be
taken to mean exactly what it says. Where the law is clear, plain,
On the other hand, respondents submit that, as provided for in
Section 74 of PD 463, their right to due process was violated when
their license was cancelled without notice and hearing. They
likewise contend that Proclamation No. 84 is not valid for the
following reasons: 1) it violates the clause on the non-impairment of
contracts; 2) it is an ex post facto law and/or a bill of attainder; and
56
3) it was issued by the President after the effectivity of the 1987
Constitution.
This Court ruled on the nature of a natural resource exploration
permit, which was akin to the present respondents’ license, in
Southeast Mindanao Gold Mining Corporation v. Balite Portal
Mining Cooperative,24 which held:
"x x x. As correctly held by the Court of Appeals in its challenged
decision, EP No. 133 merely evidences a privilege granted by the
State, which may be amended, modified or rescinded when the
national interest so requires. This is necessarily so since the
exploration, development and utilization of the country’s natural
mineral resources are matters impressed with great public interest.
Like timber permits, mining exploration permits do not vest in the
grantee any permanent or irrevocable right within the purview of the
non-impairment of contract and due process clauses of the
Constitution, since the State, under its all-encompassing police
power, may alter, modify or amend the same, in accordance with
the demands of the general welfare."25
This same ruling had been made earlier in Tan v. Director of
Forestry26 with regard to a timber license, a pronouncement that
was reiterated in Ysmael v. Deputy Executive Secretary,27 the
pertinent portion of which reads:
"x x x. Timber licenses, permits and license agreements are the
principal instruments by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is
promoted. And it can hardly be gainsaid that they merely evidence
a privilege granted by the State to qualified entities, and do not vest
in the latter a permanent or irrevocable right to the particular
concession area and the forest products therein. They may be
validly amended, modified, replaced or rescinded by the Chief
Executive when national interests so require. Thus, they are not
deemed contracts within the purview of the due process of law
clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548,
October 27, 1983, 125 SCRA 302]."28 (Italics supplied)
In line with the foregoing jurisprudence, respondents’ license may
be revoked or rescinded by executive action when the national
interest so requires, because it is not a contract, property or a
property right protected by the due process clause of the
Constitution.29 Respondents themselves acknowledge this
condition of the grant under paragraph 7 of QLP No. 33, which we
quote:
"7. This permit/license may be revoked or cancelled at any time by
the Director of Mines and Geo-Sciences when, in his opinion public
interests so require or, upon failure of the permittee/licensee to
comply with the provisions of Presidential Decree No. 463, as
amended, and the rules and regulations promulgated thereunder,
as well as with the terms and conditions specified herein; Provided,
That if a permit/license is cancelled, or otherwise terminated, the
permittee/licensee shall be liable for all unpaid rentals and royalties
due up to the time of the termination or cancellation of the
permit/license[.]"30 (Italics supplied)
The determination of what is in the public interest is necessarily
vested in the State as owner of all mineral resources. That
determination was based on policy considerations formally
enunciated in the letter dated September 15, 1986, issued by then
Minister Maceda and, subsequently, by the President through
Proclamation No. 84. As to the exercise of prerogative by Maceda,
suffice it to say that while the cancellation or revocation of the
license is vested in the director of mines and geo-sciences, the latter
is subject to the former’s control as the department head. We also
stress the clear prerogative of the Executive Department in the
evaluation and the consequent cancellation of licenses in the
process of its formulation of policies with regard to their utilization.
Courts will not interfere with the exercise of that discretion without
any clear showing of grave abuse of discretion.31
Moreover, granting that respondents’ license is valid, it can still be
validly revoked by the State in the exercise of police power.32 The
exercise of such power through Proclamation No. 84 is clearly in
accord with jura regalia, which reserves to the State ownership of
all natural resources.33 This Regalian doctrine is an exercise of its
sovereign power as owner of lands of the public domain and of the
patrimony of the nation, the mineral deposits of which are a valuable
asset.34
Proclamation No. 84 cannot be stigmatized as a violation of the non-
impairment clause. As pointed out earlier, respondents’ license is
not a contract to which the protection accorded by the non-
impairment clause may extend.35 Even if the license were, it is
settled that provisions of existing laws and a reservation of police
power are deemed read into it, because it concerns a subject
impressed with public welfare.36 As it is, the non-impairment clause
must yield to the police power of the state.37
We cannot sustain the argument that Proclamation No. 84 is a bill
of attainder; that is, a "legislative act which inflicts punishment
without judicial trial."38 Its declaration that QLP No. 33 is a patent
nullity39 is certainly not a declaration of guilt. Neither is the
cancellation of the license a punishment within the purview of the
constitutional proscription against bills of attainder.
Too, there is no merit in the argument that the proclamation is an ex
post facto law. There are six recognized instances when a law is
considered as such: 1) it criminalizes and punishes an action that
was done before the passing of the law and that was innocent when
it was done; 2) it aggravates a crime or makes it greater than it was
when it was committed; 3) it changes the punishment and inflicts
one that is greater than that imposed by the law annexed to the
crime when it was committed; 4) it alters the legal rules of evidence
and authorizes conviction upon a less or different testimony than
that required by the law at the time of the commission of the offense;
5) it assumes the regulation of civil rights and remedies only, but in
effect imposes a penalty or a deprivation of a right as a
consequence of something that was considered lawful when it was
done; and 6) it deprives a person accused of a crime of some lawful
protection to which he or she become entitled, such as the
protection of a former conviction or an acquittal or the proclamation
of an amnesty.40 Proclamation No. 84 does not fall under any of the
enumerated categories; hence, it is not an ex post facto law.
It is settled that an ex post facto law is limited in its scope only to
matters criminal in nature.41 Proclamation 84, which merely
restored the area excluded from the Biak-na-Bato national park by
canceling respondents’ license, is clearly not penal in character.
Finally, it is stressed that at the time President Aquino issued
Proclamation No. 84 on March 9, 1987, she was still validly
exercising legislative powers under the Provisional Constitution of
1986.42 Section 1 of Article II of Proclamation No. 3, which
promulgated the Provisional Constitution, granted her legislative
power "until a legislature is elected and convened under a new
Constitution." The grant of such power is also explicitly recognized
and provided for in Section 6 of Article XVII of the 1987
Constitution.43
WHEREFORE, this Petition is hereby GRANTED and the appealed
Decision of the Court of Appeals SET ASIDE. No costs.
SO ORDERED.
57

G.R. No. 181704 December 6, 2011
BUREAU OF CUSTOMS EMPLOYEES ASSOCIATION (BOCEA),
represented by its National President (BOCEA National Executive
Council) Mr. Romulo A. Pagulayan, Petitioner,
vs.
HON. MARGARITO B. TEVES, in his capacity as Secretary of the
Department of Finance, HON. NAPOLEON L. MORALES, in his
capacity as Commissioner of the Bureau of Customs, HON. LILIAN
B. HEFTI, in her capacity as Commissioner of the Bureau of Internal
Revenue, Respondents.
DECISION
VILLARAMA, JR., J.:
Before this Court is a petition1 for certiorari and prohibition with
prayer for injunctive relief/s under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, to declare Republic Act (R.A.) No. 9335,2
otherwise known as the Attrition Act of 2005, and its Implementing
Rules and Regulations3 (IRR) unconstitutional, and the
implementation thereof be enjoined permanently.
The Facts
On January 25, 2005, former President Gloria Macapagal-Arroyo
signed into law R.A. No. 9335 which took effect on February 11,
2005.
In Abakada Guro Party List v. Purisima4 (Abakada), we said of R.A.
No. 9335:
RA [No.] 9335 was enacted to optimize the revenue-generation
capability and collection of the Bureau of Internal Revenue (BIR)
and the Bureau of Customs (BOC). The law intends to encourage
BIR and BOC officials and employees to exceed their revenue
targets by providing a system of rewards and sanctions through the
creation of a Rewards and Incentives Fund (Fund) and a Revenue
Performance Evaluation Board (Board). It covers all officials and
employees of the BIR and the BOC with at least six months of
service, regardless of employment status.
The Fund is sourced from the collection of the BIR and the BOC in
excess of their revenue targets for the year, as determined by the
Development Budget and Coordinating Committee (DBCC). Any
incentive or reward is taken from the fund and allocated to the BIR
and the BOC in proportion to their contribution in the excess
collection of the targeted amount of tax revenue.
The Boards in the BIR and the BOC are composed of the Secretary
of the Department of Finance (DOF) or his/her Undersecretary, the
Secretary of the Department of Budget and Management (DBM) or
his/her Undersecretary, the Director General of the National
Economic Development Authority (NEDA) or his/her Deputy
Director General, the Commissioners of the BIR and the BOC or
their Deputy Commissioners, two representatives from the rank-
and-file employees and a representative from the officials
nominated by their recognized organization.
Each Board has the duty to (1) prescribe the rules and guidelines
for the allocation, distribution and release of the Fund; (2) set criteria
and procedures for removing from the service officials and
employees whose revenue collection falls short of the target; (3)
terminate personnel in accordance with the criteria adopted by the
Board; (4) prescribe a system for performance evaluation; (5)
perform other functions, including the issuance of rules and
regulations and (6) submit an annual report to Congress.
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission
(CSC) were tasked to promulgate and issue the implementing rules
and regulations of RA [No.] 9335, to be approved by a Joint
Congressional Oversight Committee created for such purpose.5
The Joint Congressional Oversight Committee approved the
assailed IRR on May 22, 2006. Subsequently, the IRR was
published on May 30, 2006 in two newspapers of general
circulation, the Philippine Star and the Manila Standard, and
became effective fifteen (15) days later.6
Contending that the enactment and implementation of R.A. No.
9335 are tainted with constitutional infirmities in violation of the
fundamental rights of its members, petitioner Bureau of Customs
Employees Association (BOCEA), an association of rank-and-file
employees of the Bureau of Customs (BOC), duly registered with
the Department of Labor and Employment (DOLE) and the Civil
Service Commission (CSC), and represented by its National
President, Mr. Romulo A. Pagulayan (Pagulayan), directly filed the
present petition before this Court against respondents Margarito B.
Teves, in his capacity as Secretary of the Department of Finance
(DOF), Commissioner Napoleon L. Morales (Commissioner
Morales), in his capacity as BOC Commissioner, and Lilian B. Hefti,
in her capacity as Commissioner of the Bureau of Internal Revenue
(BIR). In its petition, BOCEA made the following averments:
Sometime in 2008, high-ranking officials of the BOC pursuant to the
mandate of R.A. No. 9335 and its IRR, and in order to comply with
the stringent deadlines thereof, started to disseminate Collection
District Performance Contracts7 (Performance Contracts) for the
lower ranking officials and rank-and-file employees to sign. The
Performance Contract pertinently provided:
xxxx
WHEREAS, pursuant to the provisions of Sec. 25 (b) of the
Implementing Rules and Regulations (IRR) of the Attrition Act of
2005, that provides for the setting of criteria and procedures for
removing from the service Officials and Employees whose revenue
collection fall short of the target in accordance with Section 7 of
Republic Act 9335.
xxxx
NOW, THEREFORE, for and in consideration of the foregoing
premises, parties unto this Agreement hereby agree and so agreed
to perform the following:
xxxx
2. The "Section 2, PA/PE" hereby accepts the allocated Revenue
Collection Target and further accepts/commits to meet the said
target under the following conditions:
58
a.) That he/she will meet the allocated Revenue Collection Target
and thereby undertakes and binds himself/herself that in the event
the revenue collection falls short of the target with due consideration
of all relevant factors affecting the level of collection as provided in
the rules and regulations promulgated under the Act and its IRR,
he/she will voluntarily submit to the provisions of Sec. 25 (b) of the
IRR and Sec. 7 of the Act; and
b.) That he/she will cascade and/or allocate to respective
Appraisers/Examiners or Employees under his/her section the said
Revenue Collection Target and require them to execute a
Performance Contract, and direct them to accept their individual
target. The Performance Contract executed by the respective
Examiners/Appraisers/Employees shall be submitted to the Office
of the Commissioner through the LAIC on or before March 31, 2008.
x x x x8
BOCEA opined that the revenue target was impossible to meet due
to the Government’s own policies on reduced tariff rates and tax
breaks to big businesses, the occurrence of natural calamities and
because of other economic factors. BOCEA claimed that some BOC
employees were coerced and forced to sign the Performance
Contract. The majority of them, however, did not sign. In particular,
officers of BOCEA were summoned and required to sign the
Performance Contracts but they also refused. To ease the brewing
tension, BOCEA claimed that its officers sent letters, and sought
several dialogues with BOC officials but the latter refused to heed
them.
In addition, BOCEA alleged that Commissioner Morales exerted
heavy pressure on the District Collectors, Chiefs of Formal Entry
Divisions, Principal Customs Appraisers and Principal Customs
Examiners of the BOC during command conferences to make them
sign their Performance Contracts. Likewise, BOC Deputy
Commissioner Reynaldo Umali (Deputy Commissioner Umali)
individually spoke to said personnel to convince them to sign said
contracts. Said personnel were threatened that if they do not sign
their respective Performance Contracts, they would face possible
reassignment, reshuffling, or worse, be placed on floating status.
Thus, all the District Collectors, except a certain Atty. Carlos So of
the Collection District III of the Ninoy Aquino International Airport
(NAIA), signed the Performance Contracts.
In their Comment,12 respondents, through the Office of the Solicitor
General (OSG), countered that R.A. No. 9335 and its IRR do not
violate the right to due process and right to security of tenure of BIR
and BOC employees. The OSG stressed that the guarantee of
security of tenure under the 1987 Constitution is not a guarantee of
perpetual employment. R.A. No. 9335 and its IRR provided a
reasonable and valid ground for the dismissal of an employee which
is germane to the purpose of the law. Likewise, R.A. No. 9335 and
its IRR provided that an employee may only be separated from the
service upon compliance with substantive and procedural due
process. The OSG added that R.A. No. 9335 and its IRR must enjoy
the presumption of constitutionality.
In its Reply,13 BOCEA claimed that R.A. No. 9335 employs means
that are unreasonable to achieve its stated objectives; that the law
is unduly oppressive of BIR and BOC employees as it shifts the
extreme burden upon their shoulders when the Government itself
has adopted measures that make collection difficult such as
reduced tariff rates to almost zero percent and tax exemption of big
businesses; and that the law is discriminatory of BIR and BOC
employees. BOCEA manifested that only the high-ranking officials
of the BOC benefited largely from the reward system under R.A. No.
9335 despite the fact that they were not the ones directly toiling to
collect revenue. Moreover, despite the BOCEA’s numerous
requests,14 BOC continually refused to provide BOCEA the
Expenditure Plan on how such reward was distributed.
Since BOCEA was seeking similar reliefs as that of the petitioners
in Abakada Guro Party List v. Purisima, BOCEA filed a Motion to
Consolidate15 the present case with Abakada on April 16, 2008.
However, pending action on said motion, the Court rendered its
decision in Abakada on August 14, 2008. Thus, the consolidation of
this case with Abakada was rendered no longer possible.16
In Abakada, this Court, through then Associate Justice, now Chief
Justice Renato C. Corona, declared Section 1217 of R.A. No. 9335
creating a Joint Congressional Oversight Committee to approve the
IRR as unconstitutional and violative of the principle of separation
of powers. However, the constitutionality of the remaining provisions
of R.A. No. 9335 was upheld pursuant to Section 1318 of R.A. No.
9335. The Court also held that until the contrary is shown, the IRR
of R.A. No. 9335 is presumed valid and effective even without the
approval of the Joint Congressional Oversight Committee.19

Notwithstanding our ruling in Abakada, both parties complied with

our Resolution20 dated February 10, 2009, requiring them to submit
BOCEA further claimed that Pagulayan was constantly harassed
their respective Memoranda.
and threatened with lawsuits. Pagulayan approached Deputy
Commissioner Umali to ask the BOC officials to stop all forms of
harassment, but the latter merely said that he would look into the
matter. On February 5, 2008, BOCEA through counsel wrote the The Issues
Revenue Performance Evaluation Board (Board) to desist from
implementing R.A. No. 9335 and its IRR and from requiring rank-
and-file employees of the BOC and BIR to sign Performance
BOCEA raises the following issues:
Contracts.9 In his letter-reply10 dated February 12, 2008, Deputy
Commissioner Umali denied having coerced any BOC employee to
sign a Performance Contract. He also defended the BOC, invoking
its mandate of merely implementing the law. Finally, Pagulayan and I.
BOCEA’s counsel, on separate occasions, requested for a certified
true copy of the Performance Contract from Deputy Commissioner
Umali but the latter failed to furnish them a copy.11
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.]
9335, AND ITS IMPLEMENTING RULES AND REGULATIONS
ARE UNCONSTITUTIONAL AS THESE VIOLATE THE RIGHT TO
This petition was filed directly with this Court on March 3, 2008. DUE PROCESS OF THE COVERED BIR AND BOC OFFICIALS
BOCEA asserted that in view of the unconstitutionality of R.A. No. AND EMPLOYEES[;]
9335 and its IRR, and their adverse effects on the constitutional
rights of BOC officials and employees, direct resort to this Court is
justified. BOCEA argued, among others, that its members and other
II.
BOC employees are in great danger of losing their jobs should they
fail to meet the required quota provided under the law, in clear
violation of their constitutional right to security of tenure, and at their
and their respective families’ prejudice. WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.]
9335, AND ITS IMPLEMENTING RULES AND REGULATIONS
ARE UNCONSTITUTIONAL AS THESE VIOLATE THE RIGHT OF

59
BIR AND BOC OFFICIALS AND EMPLOYEES TO THE EQUAL
PROTECTION OF THE LAWS[;]
III.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS
IMPLEMENTING RULES AND REGULATIONS VIOLATE THE
RIGHT TO SECURITY OF TENURE OF BIR AND BOC OFFICIALS
AND EMPLOYEES AS ENSHRINED UNDER SECTION 2 (3),
ARTICLE IX (B) OF THE CONSTITUTION[;]
IV.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS
IMPLEMENTING RULES AND REGULATIONS ARE
UNCONSTITUTIONAL AS THEY CONSTITUTE UNDUE
DELEGATION OF LEGISLATIVE POWERS TO THE REVENUE
PERFORMANCE EVALUATION BOARD IN VIOLATION OF THE
PRINCIPLE OF SEPARATION OF POWERS ENSHRINED IN THE
CONSTITUTION[; AND]
V.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 IS A BILL OF
ATTAINDER AND HENCE[,] UNCONSTITUTIONAL BECAUSE IT
INFLICTS PUNISHMENT THROUGH LEGISLATIVE FIAT UPON A
PARTICULAR GROUP OR CLASS OF OFFICIALS AND
EMPLOYEES WITHOUT TRIAL.21
BOCEA manifested that while waiting for the Court to give due
course to its petition, events unfolded showing the patent
unconstitutionality of R.A. No. 9335. It narrated that during the first
year of the implementation of R.A. No. 9335, BOC employees
exerted commendable efforts to attain their revenue target of P196
billion which they surpassed by as much as P2 billion for that year
alone. However, this was attained only because oil companies
made advance tax payments to BOC. Moreover, BOC employees
were given their "reward" for surpassing said target only in 2008, the
distribution of which they described as unjust, unfair, dubious and
fraudulent because only top officials of BOC got the huge sum of
reward while the employees, who did the hard task of collecting,
received a mere pittance of around P8,500.00. In the same manner,
the Bonds Division of BOC-NAIA collected 400+% of its designated
target but the higher management gave out to the employees a
measly sum of P8,500.00 while the top level officials partook of
millions of the excess collections. BOCEA relies on a piece of
information revealed by a newspaper showing the list of BOC
officials who apparently earned huge amounts of money by way of
reward.22 It claims that the recipients thereof included lawyers,
support personnel and other employees, including a dentist, who
performed no collection functions at all. These alleged anomalous
selection, distribution and allocation of rewards was due to the
failure of R.A. No. 9335 to set out clear guidelines.23
In addition, BOCEA avers that the Board initiated the first few cases
of attrition for the Fiscal Year 2007 by subjecting five BOC officials
from the Port of Manila to attrition despite the fact that the Port of
Manila substantially complied with the provisions of R.A. No. 9335.
It is thus submitted that the selection of these officials for attrition
without proper investigation was nothing less than arbitrary. Further,
the legislative and executive departments’ promulgation of
issuances and the Government’s accession to regional trade
agreements have caused a significant diminution of the tariff rates,
thus, decreasing over-all collection. These unrealistic settings of
revenue targets seriously affect BIR and BOC employees tasked
with the burden of collection, and worse, subjected them to
attrition.24
BOCEA assails the constitutionality of R.A. No. 9335 and its IRR on
the following grounds:
1. R.A. No. 9335 and its IRR violate the BIR and BOC employees’
right to due process because the termination of employees who had
not attained their revenue targets for the year is peremptory and
done without any form of hearing to allow said employees to
ventilate their side. Moreover, R.A. No. 9335 and its IRR do not
comply with the requirements under CSC rules and regulations as
the dismissal in this case is immediately executory. Such
immediately executory nature of the Board’s decision negates the
remedies available to an employee as provided under the CSC
rules.
2. R.A. No. 9335 and its IRR violate the BIR and BOC employees’
right to equal protection of the law because R.A. No. 9335 and its
IRR unduly discriminates against BIR and BOC employees as
compared to employees of other revenue generating government
agencies like the Philippine Amusement and Gaming Corporation,
Department of Transportation and Communication, the Air
Transportation Office, the Land Transportation Office, and the
Philippine Charity Sweepstakes Office, among others, which are not
subject to attrition.
3. R.A. No. 9335 and its IRR violate the BIR and BOC employees’
right to security of tenure because R.A. No. 9335 and its IRR
effectively removed remedies provided in the ordinary course of
administrative procedure afforded to government employees. The
law likewise created another ground for dismissal, i.e., non-
attainment of revenue collection target, which is not provided under
CSC rules and which is, by its nature, unpredictable and therefore
arbitrary and unreasonable.
4. R.A. No. 9335 and its IRR violate the 1987 Constitution because
Congress granted to the Revenue Performance Evaluation Board
(Board) the unbridled discretion of formulating the criteria for
termination, the manner of allocating targets, the distribution of
rewards and the determination of relevant factors affecting the
targets of collection, which is tantamount to undue delegation of
legislative power.
5. R.A. No. 9335 is a bill of attainder because it inflicts punishment
upon a particular group or class of officials and employees without
trial. This is evident from the fact that the law confers upon the Board
the power to impose the penalty of removal upon employees who
do not meet their revenue targets; that the same is without the
benefit of hearing; and that the removal from service is immediately
executory. Lastly, it disregards the presumption of regularity in the
performance of the official functions of a public officer.25
On the other hand, respondents through the OSG stress that except
for Section 12 of R.A. No. 9335, R.A. No. 9335 and its IRR are
constitutional, as per our ruling in Abakada. Nevertheless, the OSG
argues that the classification of BIR and BOC employees as public
officers under R.A. No. 9335 is based on a valid and substantial
distinction since the revenue generated by the BIR and BOC is
essentially in the form of taxes, which is the lifeblood of the State,
while the revenue produced by other agencies is merely incidental
or secondary to their governmental functions; that in view of their
mandate, and for purposes of tax collection, the BIR and BOC are
sui generis; that R.A. No. 9335 complies with the "completeness"
and "sufficient standard" tests for the permissive delegation of
legislative power to the Board; that the Board exercises its
delegated power consistent with the policy laid down in the law, that
is, to optimize the revenue generation capability and collection of
the BIR and the BOC; that parameters were set in order that the
Board may identify the officials and employees subject to attrition,
60
and the proper procedure for their removal in case they fail to meet
the targets set in the Performance Contract were provided; and that
the rights of BIR and BOC employees to due process of law and
security of tenure are duly accorded by R.A. No. 9335. The OSG
likewise maintains that there was no encroachment of judicial power
in the enactment of R.A. No. 9335 amounting to a bill of attainder
since R.A. No. 9335 and its IRR merely defined the offense and
provided for the penalty that may be imposed. Finally, the OSG
reiterates that the separation from the service of any BIR or BOC
employee under R.A. No. 9335 and its IRR shall be done only upon
due consideration of all relevant factors affecting the level of
collection, subject to Civil Service laws, rules and regulations, and
in compliance with substantive and procedural due process. The
OSG opines that the Performance Contract, far from violating the
BIR and BOC employees’ right to due process, actually serves as a
notice of the revenue target they have to meet and the possible
consequences of failing to meet the same. More, there is nothing in
the law which prevents the aggrieved party from appealing the
unfavorable decision of dismissal.26
In essence, the issues for our resolution are:
1. Whether there is undue delegation of legislative power to the
Board;
2. Whether R.A. No. 9335 and its IRR violate the rights of BOCEA’s
members to: (a) equal protection of laws, (b) security of tenure and
(c) due process; and
3. Whether R.A. No. 9335 is a bill of attainder.
Our Ruling
Prefatorily, we note that it is clear, and in fact uncontroverted, that
BOCEA has locus standi. BOCEA impugns the constitutionality of
R.A. No. 9335 and its IRR because its members, who are rank-and-
file employees of the BOC, are actually covered by the law and its
IRR. BOCEA’s members have a personal and substantial interest in
the case, such that they have sustained or will sustain, direct injury
as a result of the enforcement of R.A. No. 9335 and its IRR.27
However, we find no merit in the petition and perforce dismiss the
same.
It must be noted that this is not the first time the constitutionality of
R.A. No. 9335 and its IRR are being challenged. The Court already
settled the majority of the same issues raised by BOCEA in our
decision in Abakada, which attained finality on September 17, 2008.
As such, our ruling therein is worthy of reiteration in this case.
We resolve the first issue in the negative.
The principle of separation of powers ordains that each of the three
great branches of government has exclusive cognizance of and is
supreme in matters falling within its own constitutionally allocated
sphere.28 Necessarily imbedded in this doctrine is the principle of
non-delegation of powers, as expressed in the Latin maxim potestas
delegata non delegari potest, which means "what has been
delegated, cannot be delegated." This doctrine is based on the
ethical principle that such delegated power constitutes not only a
right but a duty to be performed by the delegate through the
instrumentality of his own judgment and not through the intervening
mind of another.29 However, this principle of non-delegation of
powers admits of numerous exceptions,30 one of which is the
delegation of legislative power to various specialized administrative
agencies like the Board in this case.
The rationale for the aforementioned exception was clearly
explained in our ruling in Gerochi v. Department of Energy,31 to wit:
In the face of the increasing complexity of modern life, delegation of
legislative power to various specialized administrative agencies is
allowed as an exception to this principle. Given the volume and
variety of interactions in today’s society, it is doubtful if the
legislature can promulgate laws that will deal adequately with and
respond promptly to the minutiae of everyday life. Hence, the need
to delegate to administrative bodies — the principal agencies tasked
to execute laws in their specialized fields — the authority to
promulgate rules and regulations to implement a given statute and
effectuate its policies. All that is required for the valid exercise of this
power of subordinate legislation is that the regulation be germane
to the objects and purposes of the law and that the regulation be not
in contradiction to, but in conformity with, the standards prescribed
by the law. These requirements are denominated as the
completeness test and the sufficient standard test.32
Thus, in Abakada, we held,
Two tests determine the validity of delegation of legislative power:
(1) the completeness test and (2) the sufficient standard test. A law
is complete when it sets forth therein the policy to be executed,
carried out or implemented by the delegate. It lays down a sufficient
standard when it provides adequate guidelines or limitations in the
law to map out the boundaries of the delegate’s authority and
prevent the delegation from running riot. To be sufficient, the
standard must specify the limits of the delegate’s authority,
announce the legislative policy and identify the conditions under
which it is to be implemented.
RA [No.] 9335 adequately states the policy and standards to guide
the President in fixing revenue targets and the implementing
agencies in carrying out the provisions of the law. Section 2 spells
out the policy of the law:
"SEC. 2. Declaration of Policy. — It is the policy of the State to
optimize the revenue-generation capability and collection of the
Bureau of Internal Revenue (BIR) and the Bureau of Customs
(BOC) by providing for a system of rewards and sanctions through
the creation of a Rewards and Incentives Fund and a Revenue
Performance Evaluation Board in the above agencies for the
purpose of encouraging their officials and employees to exceed their
revenue targets."
Section 4 "canalized within banks that keep it from overflowing" the
delegated power to the President to fix revenue targets:
"SEC. 4. Rewards and Incentives Fund. — A Rewards and
Incentives Fund, hereinafter referred to as the Fund, is hereby
created, to be sourced from the collection of the BIR and the BOC
in excess of their respective revenue targets of the year, as
determined by the Development Budget and Coordinating
Committee (DBCC), in the following percentages:
Excess of Collection [Over] the Revenue Targets
Percent (%) of the Excess Collection to Accrue to the Fund
30% or below — 15%
More than 30% — 15% of the first 30% plus 20% of the
remaining excess
61
The Fund shall be deemed automatically appropriated the year
immediately following the year when the revenue collection target
was exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue
collection expected of the BIR and the BOC for a given fiscal year
as stated in the Budget of Expenditures and Sources of Financing
(BESF) submitted by the President to Congress. The BIR and the
BOC shall submit to the DBCC the distribution of the agencies’
revenue targets as allocated among its revenue districts in the case
of the BIR, and the collection districts in the case of the BOC.
xxx xxx x x x"
Revenue targets are based on the original estimated revenue
collection expected respectively of the BIR and the BOC for a given
fiscal year as approved by the DBCC and stated in the BESF
submitted by the President to Congress. Thus, the determination of
revenue targets does not rest solely on the President as it also
undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s
authority and identifies the conditions under which officials and
employees whose revenue collection falls short of the target by at
least 7.5% may be removed from the service:
"SEC. 7. Powers and Functions of the Board. — The Board in the
agency shall have the following powers and functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from service
officials and employees whose revenue collection falls short of the
target by at least seven and a half percent (7.5%), with due
consideration of all relevant factors affecting the level of collection
as provided in the rules and regulations promulgated under this Act,
subject to civil service laws, rules and regulations and compliance
with substantive and procedural due process: Provided, That the
following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not
exceeding two years in operation, and has no historical record of
collection performance that can be used as basis for evaluation; and
2. Where the revenue or customs official or employee is a recent
transferee in the middle of the period under consideration unless the
transfer was due to nonperformance of revenue targets or potential
nonperformance of revenue targets: Provided, however, That when
the district or area of responsibility covered by revenue or customs
officials or employees has suffered from economic difficulties
brought about by natural calamities or force majeure or economic
causes as may be determined by the Board, termination shall be
considered only after careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted
in the preceding paragraph: Provided, That such decision shall be
immediately executory: Provided, further, That the application of the
criteria for the separation of an official or employee from service
under this Act shall be without prejudice to the application of other
relevant laws on accountability of public officers and employees,
such as the Code of Conduct and Ethical Standards of Public
Officers and Employees and the Anti-Graft and Corrupt Practices
Act;
xxx xxx x x x"
At any rate, this Court has recognized the following as sufficient
standards: "public interest", "justice and equity", "public
convenience and welfare" and "simplicity, economy and welfare". In
this case, the declared policy of optimization of the revenue-
generation capability and collection of the BIR and the BOC is
infused with public interest.33
We could not but deduce that the completeness test and the
sufficient standard test were fully satisfied by R.A. No. 9335, as
evident from the aforementioned Sections 2, 4 and 7 thereof.
Moreover, Section 534 of R.A. No. 9335 also provides for the
incentives due to District Collection Offices. While it is apparent that
the last paragraph of Section 5 provides that "[t]he allocation,
distribution and release of the district reward shall likewise be
prescribed by the rules and regulations of the Revenue
Performance and Evaluation Board," Section 7 (a)35 of R.A. No.
9335 clearly mandates and sets the parameters for the Board by
providing that such rules and guidelines for the allocation,
distribution and release of the fund shall be in accordance with
Sections 4 and 5 of R.A. No. 9335. In sum, the Court finds that R.A.
No. 9335, read and appreciated in its entirety, is complete in all its
essential terms and conditions, and that it contains sufficient
standards as to negate BOCEA’s supposition of undue delegation
of legislative power to the Board.
Similarly, we resolve the second issue in the negative.
Equal protection simply provides that all persons or things similarly
situated should be treated in a similar manner, both as to rights
conferred and responsibilities imposed. The purpose of the equal
protection clause is to secure every person within a state’s
jurisdiction against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statute or by its improper
execution through the state’s duly constituted authorities. In other
words, the concept of equal justice under the law requires the state
to govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a legitimate
governmental objective.361awphil
Thus, on the issue on equal protection of the laws, we held in
Abakada:
The equal protection clause recognizes a valid classification, that is,
a classification that has a reasonable foundation or rational basis
and not arbitrary. With respect to RA [No.] 9335, its expressed public
policy is the optimization of the revenue-generation capability and
collection of the BIR and the BOC. Since the subject of the law is
the revenue-generation capability and collection of the BIR and the
BOC, the incentives and/or sanctions provided in the law should
logically pertain to the said agencies. Moreover, the law concerns
only the BIR and the BOC because they have the common distinct
primary function of generating revenues for the national government
through the collection of taxes, customs duties, fees and charges.
The BIR performs the following functions:
"Sec. 18. The Bureau of Internal Revenue. — The Bureau of Internal
Revenue, which shall be headed by and subject to the supervision
and control of the Commissioner of Internal Revenue, who shall be
appointed by the President upon the recommendation of the
Secretary [of the DOF], shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for
all revenues collected;
62

(2) Exercise duly delegated police powers for the proper
performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal
economic activities;
(4) Exercise supervision and control over its constituent and
subordinate units; and
(5) Perform such other functions as may be provided by law.
xxx xxx x x x"
On the other hand, the BOC has the following functions:
"Sec. 23. The Bureau of Customs. — The Bureau of Customs which
shall be headed and subject to the management and control of the
Commissioner of Customs, who shall be appointed by the President
upon the recommendation of the Secretary [of the DOF] and
hereinafter referred to as Commissioner, shall have the following
functions:
(1) Collect custom duties, taxes and the corresponding fees,
charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and
customs laws;
(4) Prevent and suppress smuggling, pilferage and all other
economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the
clearance of vessels and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in
all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.
xxx xxx x x x"
Both the BIR and the BOC are bureaus under the DOF. They
principally perform the special function of being the instrumentalities
through which the State exercises one of its great inherent functions
— taxation. Indubitably, such substantial distinction is germane and
intimately related to the purpose of the law. Hence, the classification
and treatment accorded to the BIR and the BOC under RA [No.]
9335 fully satisfy the demands of equal protection.37
As it was imperatively correlated to the issue on equal protection,
the issues on the security of tenure of affected BIR and BOC officials
and employees and their entitlement to due process were also
settled in Abakada:
Clearly, RA [No.] 9335 in no way violates the security of tenure of
officials and employees of the BIR and the BOC. The guarantee of
security of tenure only means that an employee cannot be
dismissed from the service for causes other than those provided by
law and only after due process is accorded the employee. In the
case of RA [No.] 9335, it lays down a reasonable yardstick for
removal (when the revenue collection falls short of the target by at
least 7.5%) with due consideration of all relevant factors affecting
the level of collection. This standard is analogous to inefficiency and
incompetence in the performance of official duties, a ground for
disciplinary action under civil service laws. The action for removal is
also subject to civil service laws, rules and regulations and
compliance with substantive and procedural due process.38
In addition, the essence of due process is simply an opportunity to
be heard, or as applied to administrative proceedings, a fair and
reasonable opportunity to explain one’s side.39 BOCEA’s
apprehension of deprivation of due process finds its answer in
Section 7 (b) and (c) of R.A. No. 9335.40 The concerned BIR or
BOC official or employee is not simply given a target revenue
collection and capriciously left without any quarter. R.A. No. 9335
and its IRR clearly give due consideration to all relevant factors41
that may affect the level of collection. In the same manner,
exemptions42 were set, contravening BOCEA’s claim that its
members may be removed for unattained target collection even due
to causes which are beyond their control. Moreover, an employee’s
right to be heard is not at all prevented and his right to appeal is not
deprived of him.43 In fine, a BIR or BOC official or employee in this
case cannot be arbitrarily removed from the service without
according him his constitutional right to due process. No less than
R.A. No. 9335 in accordance with the 1987 Constitution guarantees
this.
We have spoken, and these issues were finally laid to rest. Now, the
Court proceeds to resolve the last, but new issue raised by BOCEA,
that is, whether R.A. No. 9335 is a bill of attainder proscribed under
Section 22,44 Article III of the 1987 Constitution.
On this score, we hold that R.A. No. 9335 is not a bill of attainder. A
bill of attainder is a legislative act which inflicts punishment on
individuals or members of a particular group without a judicial trial.
Essential to a bill of attainder are a specification of certain
individuals or a group of individuals, the imposition of a punishment,
penal or otherwise, and the lack of judicial trial.451avvphi1
In his Concurring Opinion in Tuason v. Register of Deeds, Caloocan
City,46 Justice Florentino P. Feliciano traces the roots of a Bill of
Attainder, to wit:
Bills of attainder are an ancient instrument of tyranny. In England a
few centuries back, Parliament would at times enact bills or statutes
which declared certain persons attainted and their blood corrupted
so that it lost all heritable quality (Ex Parte Garland, 4 Wall. 333, 18
L.Ed. 366 [1867]). In more modern terms, a bill of attainder is
essentially a usurpation of judicial power by a legislative body. It
envisages and effects the imposition of a penalty — the deprivation
of life or liberty or property — not by the ordinary processes of
judicial trial, but by legislative fiat. While cast in the form of special
legislation, a bill of attainder (or bill of pains and penalties, if it
prescribed a penalty other than death) is in intent and effect a penal
judgment visited upon an identified person or group of persons (and
not upon the general community) without a prior charge or demand,
63
without notice and hearing, without an opportunity to defend, without
any of the civilized forms and safeguards of the judicial process as
we know it (People v. Ferrer, 48 SCRA 382 [1972]; Cummings and
Missouri, 4 Wall. 277, 18 L. Ed. 356 [1867]; U.S. v. Lovett, 328, U.S.
303, 90 L.Ed. 1252 [1945]; U.S. v. Brown, 381 U.S. 437, 14 L.Ed.
2d. 484 [1965]. Such is the archetypal bill of attainder wielded as a
means of legislative oppression. x x x47
R.A. No. 9335 does not possess the elements of a bill of attainder.
It does not seek to inflict punishment without a judicial trial. R.A. No.
9335 merely lays down the grounds for the termination of a BIR or
BOC official or employee and provides for the consequences
thereof. The democratic processes are still followed and the
constitutional rights of the concerned employee are amply
protected.
A final note.
We find that BOCEA’s petition is replete with allegations of defects
and anomalies in allocation, distribution and receipt of rewards.
While BOCEA intimates that it intends to curb graft and corruption
in the BOC in particular and in the government in general which is
nothing but noble, these intentions do not actually pertain to the
constitutionality of R.A. No. 9335 and its IRR, but rather in the
faithful implementation thereof. R.A. No. 9335 itself does not
tolerate these pernicious acts of graft and corruption.48 As the Court
is not a trier of facts, the investigation on the veracity of, and the
proper action on these anomalies are in the hands of the Executive
branch. Correlatively, the wisdom for the enactment of this law
remains within the domain of the Legislative branch. We merely
interpret the law as it is. The Court has no discretion to give statutes
a meaning detached from the manifest intendment and language
thereof.49 Just like any other law, R.A. No. 9335 has in its favor the
presumption of constitutionality, and to justify its nullification, there
must be a clear and unequivocal breach of the Constitution and not
one that is doubtful, speculative, or argumentative.50 We have so
declared in Abakada, and we now reiterate that R.A. No. 9335 and
its IRR are constitutional.
WHEREFORE, the present petition for certiorari and prohibition with
prayer for injunctive relief/s is DISMISSED.
No costs.
SO ORDERED.
G.R. No. 75271-73 June 27, 1988
CATALINO N. SARMIENTO and 71 other striking workers of
ASIAN TRANSMISSION CORPORATION,petitioners,
vs.
THE HON. JUDGE ORLANDO R. TUICO of the Municipal Trial
Court of Calamba, Laguna, ROBERTO PIMENTEL, NELSON C.
TEJADA, and the COMMANDING OFFICER, 224th PC Company
at Los Baños Laguna, respondents.
No. L-77567 June 27, 1988
ASIAN TRANSMISSION, CORPORATION (ATC), petitioner,
vs.
THE NATIONAL LABOR RELATIONS COMMISSION
(NLRC), respondent.
Jose C. Espinas for petitioners in G.R. Nos. 75271-73.
Augusto Gatmaytan for petitioner ATC.
Emilio C. Capulong, Jr. for private respondents in G.R. Nos. 75271-
73.
CRUZ, J.:
Two basic questions are presented in these cases, to wit:
1. Whether or not a return-to-work order may be validly issued by
the National Labor Relations Commission pending determination of
the legality of the strike; and
2. Whether or not, pending such determination, the criminal
prosecution of certain persons involved in the said strike may be
validly restrained.
The first issue was submitted to the Court in G.R. No. 77567, to
which we gave due course on July 1, 1987. 1 The case arose when
on May 7, 1986, petitioner Asian Transmission Corporation
terminated the services of Catalino Sarmiento, vice-president of the
Bisig ng Asian Transmission Labor Union (BATU), for allegedly
carrying a deadly weapon in the company premises. 2 As a result,
the BATU filed a notice of strike on May 26, 1986, claiming that the
ATC had committed an unfair labor practice. 3 The conciliatory
conference held on June 5, 1986, failed to settle the dispute. The
ATC then filed a petition asking the Ministry of Labor and
Employment to assume jurisdiction over the matter or certify the
same to the NLRC for compulsory arbitration. 4 Noting that the
impending strike would prejudice the national interest as well as the
welfare of some 350 workers and their families, the MOLE issued
an order on June 3, 1986, certifying the labor dispute to the
NLRC. 5 At the same time, it enjoined the management from locking
out its employees and the union from declaring a strike or similar
concerted action. This order was reiterated on June 13, 1986, upon
the representation of the ATC that some 40 workers had declared a
strike and were picketing the company premises. 6 Proceedings
could not continue in the NLRC, however, because of the
acceptance by President Aquino of the resignations of eight of its
members, leaving only the vice-chairman in office. 7 For this reason,
the MOLE, on September 9, 1986, set aside the orders of June 9
and 13, 1986, and directly assumed jurisdiction of the dispute, at the
same time enjoining the company to accept all returning
workers. 8 This order was itself set aside on November 24,1986,
upon motion of both the BATU and the ATC in view of the
appointment of new commissioners in the NLRC. The MOLE then
returned the case to the respondent NLRC and directed it to
expeditiously resolve all issues relating to the dispute, "adding that
the union and the striking workers are ordered to return to work
immediately." 9 Conformably, the NLRC issued on January 13, 1987
the following resolution, which it affirmed in its resolution of February
12, 1987, denying the motion for reconsideration:
CERTIFIED CASE No. NCR-NS-5-214-86,
entitled Asian Transmission Corporation,
Petitioner versus Bisig ng Asian Transmission
Labor Union (BATU), et al., Respondents.-
Considering that the petitioner, despite the order
dated 24 November 1986 of the Acting Minister,
"to accept all the returning workers" continues to
defy the directive insofar as 44 of the workers
are concerned, the Commission, sitting en
banc, resolved to order the petitioner to accept
the said workers, or, to reinstate them on payroll
immediately upon receipt of the resolution.
It is these orders of January 13 and February 12, 1987, that are
challenged by the ATC in this petition for certiorari and are the
subject of the temporary restraining order issued by this Court on
March 23, 1987. 10
The second issue was raised in G.R. Nos. 75271-73, which we have
consolidated with the first- mentioned petition because of the
Identity of their factual antecedents. This issue was provoked by
three criminal complaints filed against the petitioning workers in the
municipal trial court of Calamba, Laguna, two by the personnel
administrative officer of the ATC and the third by the Philippine
Constabulary. The first two complaints, filed on July 11 and July 15,
1986, were for "Violation of Article 265, par. 1, in relation to Article
273 of the Labor Code of the Philippines." 11 The third, filed on July
17, 1986, was for coercion. 12 In all three complaints, the defendants
were charged with staging an illegal strike, barricading the gates of
the ATC plant and preventing the workers through intimidation,
64
harassment and force from reporting for work. Acting on Criminal
Case No. 15984, Judge Orlando Tuico issued a warrant of arrest
against the petitioners and committed 72 of them to jail although he
later ordered the release of 61 of them to the custody of the
municipal mayor of Calamba, Laguna. 13 The petitioners had earlier
moved for the lifting of the warrant of arrest and the referral of the
coercion charge to the NLRC and, later, for the dismissal of Criminal
Cases Nos. 15973 and 15981 on the ground that they came under
the primary jurisdiction of the NLRC. 14 As the judge had not ruled
on these motions, the petitioners came to this Court in this petition
for certiorari and prohibition. On August 12, 1986, we issued a
temporary restraining order to prevent Judge Tuico from enforcing
the warrant of arrest and further proceeding with the case. 15 This
order was reiterated on September 21, 1987, "to relieve tensions
that might prevent an amicable settlement of the dispute between
the parties in the compulsory arbitration proceedings now going on
in the Department of Labor," and made to apply to Judge Paterno
Lustre, who had succeeded Judge Tuico. 16
That is the background. Now to the merits.
It is contended by the ATC that the NLRC had no jurisdiction in
issuing the return-to-work order and that in any case the same
should be annulled for being oppressive and violative of due
process.
The question of competence is easily resolved. The authority for the
order is found in Article 264(g) of the Labor Code, as amended by
B.P. Blg. 227, which provides as follows:
When in his opinion there exists a labor dispute
causing or likely to cause strikes or lockouts
adversely affecting the national interest, such as
may occur in but not limited to public utilities,
companies engaged in the generation or
distribution of energy, banks, hospitals, and
export- oriented industries, including those
within export processing zones, the Minister of
Labor and Employment shall assume jurisdiction
over the dispute and decide it or certify the same
to the Commission for compulsory arbitration.
Such assumption or certification shall have the
effect of automatically enjoining the intended or
impending strike or lockout as specified in the
assumption order. If one has already taken place
at the time of assumption or certification, all
striking or locked out employees shall
immediately return to work and the employer
shall immediately resume operations and
readmit all workers under the same terms and
conditions prevailing before the strike or lockout.
The Minister may seek the assistance of law-
enforcement agencies to ensure compliance
with this provision as well as such orders as he
may issue to enforce the same.
The justification of the MOLE for such order was embodied therein,
thus:
Asian Transmission Corporation is an export-
oriented enterprise and its annual export
amounts to 90% of its sales generating more
than twelve (12) million dollars per year. The
corporation employs three hundred fifty (350)
workers with a total monthly take home pay or
approximately P1,300,000.00 a month.
Any disruption of company operations will cause
the delay of shipments of export finished
products which have been previously committed
to customers abroad, thereby seriously
hampering the economic recovery program
which is being pursued by the government. It wig
also affect gravely the livelihood of three
hundred fifty (350) families who will be deprived
of their incomes.
This Office is therefore of the opinion that a strike
or any disruption in the normal operation of the
company will adversely affect the national
interest. It is in the interest of both labor and
management that the dispute be certified for
compulsory arbitration to National Labor
Relations Commission.
WHEREFORE, this Office hereby certifies the
labor dispute to the National Labor Relations
Commission in accordance with Article 264(g) of
the Labor Code, as amended. In line with this
Certification, the management is enjoined from
locking out its employees and the union from
declaring a strike, or any concerted action which
will disrupt the harmonious labor-management
relations at the company. 17
There can be no question that the MOLE acted correctly in certifying
the labor dispute to the NLRC, given the predictable prejudice the
strike might cause not only to the parties but more especially to the
national interest. Affirming this fact, we conclude that the return-to-
work order was equally valid as a statutory part and parcel of the
certification order issued by the MOLE on November 24, 1986. The
law itself provides that "such assumption or certification shall have
the effect of automatically enjoining the intended or impending
strike. If one has already taken place at the time of assumption or
certification, all striking or locked out employees shall immediately
return to work and the employer shall immediately resume
operations and readmit all workers under the same terms and
conditions prevailing before the strike or lockout." The challenged
order of the NLRC was actually only an implementation of the above
provision of the Labor Code and a reiteration of the directive earlier
issued by the MOLE in its own assumption order of September 9,
1986.
It must be stressed that while one purpose of the return-to-work
order is to protect the workers who might otherwise be locked out
by the employer for threatening or waging the strike, the more
important reason is to prevent impairment of the national interest in
case the operations of the company are disrupted by a refusal of the
strikers to return to work as directed. In the instant case, stoppage
of work in the firm will be hurtful not only to both the employer and
the employees. More particularly, it is the national economy that will
suffer because of the resultant reduction in our export earnings and
our dollar reserves, not to mention possible cancellation of the
contracts of the company with foreign importers. It was particularly
for the purpose of avoiding such a development that the labor
dispute was certified to the NLRC, with the return-to-work order
following as a matter of course under the law.
It is also important to emphasize that the return-to-work order not so
much confers a right as it imposes a duty; and while as a right it may
be waived, it must be discharged as a duty even against the
worker's will. Returning to work in this situation is not a matter of
option or voluntariness but of obligation. The worker must return to
his job together with his co-workers so the operations of the
company can be resumed and it can continue serving the public and
promoting its interest. That is the real reason such return can be
compelled. So imperative is the order in fact that it is not even
considered violative of the right against involuntary servitude, as this
Court held in Kaisahan ng Mga Manggagawa sa Kahoy v. Gotamco
Sawmills. 18 The worker can of course give up his work, thus
severing his ties with the company, if he does not want to obey the
order; but the order must be obeyed if he wants to retain his work
even if his inclination is to strike.
If the worker refuses to obey the return-to-work order, can it be said
that he is just suspending the enjoyment of a right and he is entitled
to assert it later as and when he sees fit? In the meantime is the
management required to keep his position open, unable to employ
replacement to perform the work the reluctant striker is unwilling to
resume because he is still manning the picket lines?
While the ATC has manifested its willingness to accept most of the
workers, and has in fact already done so, it has balked at the
demand of the remaining workers to be also allowed to return to
work. 19 Its reason is that these persons, instead of complying with
the return-to-work order, as most of the workers have done, insisted
on staging the restrained strike and defiantly picketed the company
premises to prevent the resumption of operations. By so doing, the
ATC submits, these strikers have forfeited their right to be
readmitted, having abandoned their positions, and so could be
validly replaced.
The Court agrees.
65
The records show that the return-to-work order was first issued on
June 3, 1986, and was reiterated on June 13, 1986. The strike was
declared thereafter, if we go by the criminal complaints in G.R. Nos.
75271-73, where the alleged acts are claimed to have been done
on June 9,1986, and July 15,1986.
These dates are not denied. In fact, the petitioners argue in their
pleadings that they were engaged only in peaceful
picketing, 20 which would signify that they had not on those dates
returned to work as required and had decided instead to ignore the
said order. By their own acts, they are deemed to have abandoned
their employment and cannot now demand the right to return thereto
by virtue of the very order they have defied.
One other point that must be underscored is that the return-to-work
order is issued pending the determination of the legality or illegality
of the strike. It is not correct to say that it may be enforced only if
the strike is legal and may be disregarded if the strike is illegal, for
the purpose precisely is to maintain the status quo while the
determination is being made. Otherwise, the workers who contend
that their strike is legal can refuse to return to their work and cause
a standstill in the company operations while retaining the positions
they refuse to discharge or allow the management to fill. Worse, they
win also claim payment for work not done, on the ground that they
are still legally employed although actually engaged in activities
inimical to their employer's interest.
This is like eating one's cake and having it too, and at the expense
of the management. Such an unfair situation surely was not
contemplated by our labor laws and cannot be justified under the
social justice policy, which is a policy of fairness to both labor and
management. Neither can this unseemly arrangement be sustained
under the due process clause as the order, if thus interpreted, would
be plainly oppressive and arbitrary.
Accordingly, the Court holds that the return-to-work order should
benefit only those workers who complied therewith and, regardless
of the outcome of the compulsory arbitration proceedings, are
entitled to be paid for work they have actually performed.
Conversely, those workers who refused to obey the said order and
instead waged the restrained strike are not entitled to be paid for
work not done or to reinstatement to the positions they have
abandoned by their refusal to return thereto as ordered.
Turning now to the second issue, we hold that while as a general
rule the prosecution of criminal offenses is not subject to injunction,
the exception must apply in the case at bar. The suspension of
proceedings in the criminal complaints filed before the municipal
court of Calamba, Laguna, is justified on the ground of prematurity
as there is no question that the acts complained of are connected
with the compulsory arbitration proceedings still pending in the
NLRC. The first two complaints, as expressly captioned, are for
"violation of Art. 265, par. 2, in relation to Art. 273, of the Labor Code
of the Philippines," and the third complaint relates to the alleged acts
of coercion committed by the defendants in blocking access to the
premises of the ATC. Two of the criminal complaints were filed by
the personnel administrative officer of the ATC although he
vigorously if not convincingly insists that he was acting in his
personal capacity.
In view of this, the three criminal cases should be suspended until
the completion of the compulsory arbitration proceedings in the
NLRC, conformably to the policy embodied in Circular No. 15, series
of 1982, and Circular No. 9, series of 1986, issued by the Ministry
of Justice in connection with the implementation of B.P. Blg.
227. 21These circulars, briefly stated, require fiscals and other
government prosecutors to first secure the clearance of the Ministry
of Labor and/or the Office of the President "before taking
cognizance of complaints for preliminary investigation and the filing
in court of the corresponding informations of cases arising out of or
related to a labor dispute," including "allegations of violence,
coercion, physical injuries, assault upon a person in authority and
other similar acts of intimidation obstructing the free ingress to and
egress from a factory or place of operation of the machines of such
factory, or the employer's premises." It does not appear from the
record that such clearance was obtained, conformably to the
procedure laid down "to attain the industrial peace which is the
primordial objectives of this law," before the three criminal cases
were filed.
The Court makes no findings on the merits of the labor dispute and
the criminal cases against the workers as these are not in issue in
the petitions before it. What it can only express at this point is the
prayerful hope that these disagreements will be eventually resolved
with justice to all parties and in that spirit of mutual accommodation
that should always characterize the relations between the workers
and their employer. Labor and management are indispensable
partners in the common endeavor for individual dignity and national
prosperity. There is no reason why they cannot pursue these goals
with open hands rather than clenched fists, striving with rather than
against each other, that they may together speed the dawning of a
richer day for all in this amiable land of ours.
WHEREFORE, judgment is hereby rendered as follows:
1. In G.R. No. 77567, the petition is DENIED and the challenged
Orders of the NLRC dated January 13, 1986, and February 12,
1986, are AFFIRMED as above interpreted. The temporary
restraining order dated March 23, 1987, is LIFTED.
2. In G.R. Nos. 75271-73, the temporary restraining order of August
12,1986, and September 21, 1986, are CONTINUED IN FORCE
until completion of the compulsory arbitration proceedings in the
NLRC.
No costs. It is so ordered.
G.R. No. L-5790 April 17, 1953
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PABLO DE LA CRUZ, defendant-appellant.
Claro M. Recto for appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor
Felixberto Milambiling for appellee.
BENGZON, J.:
Having retailed a can of milk at ten centavos more than the ceiling
price, Pablo de la Cruz was sentenced, after trial, in the court of first
instance of Manila, to imprisonment for five years, and to pay a fine
of five thousand pesos plus costs. He was also barred from
engaging in wholesale and retail business for five years.
In this appeal he argues that the trial judge erred: (a) in not holding
that the charge was fabricated; (b) in imposing a punishment wholly
disproportionate to the offense and therefore unconstitutional and
(c) in not invalidating Republic Act No. 509 in so far as it prescribed
excessive penalties.
The evidence shows that in the morning of October 14, 1950,
Eduardo Bernardo, Jr. went to the defendant's store in Sampaloc,
Manila, and purchased from him a six-ounce tin of "Carnation" milk
for thirty centavos. As the purchase had been made for Ruperto
Austria, who was not in good terms with Pablo de la Cruz the matter
reached the City Fiscal's office and resulted in this criminal
prosecution, because Executive Order No. 331 (issued by authority
of Republic Act No. 509) fixed 20 centavos as the maximum price
for that kind of commodity.
The record is now before us, and from a reading thereof, we find it
difficult to accept appellants contention that the charge had no
foundation in fact. The People's case has been established beyond
reasonable doubt.
And his argument based on the principles of entrapment, may not
be upheld, because he was selling to the public, i.e., to anybody
who would come to his store to buy his commodities, and no special
circumstances are shown to support the claim that he was led or
induced to commit the offense.
However, appellant's extensive discussion of his two propositions
about the penalty, deserves serious consideration.
Republic Act No. 509 provides in part as follows:
SEC. 12. Imprisonment for a period of not less two months
nor more than twelve years or a fine of not less than two
thousand pesos nor more than ten thousand pesos, or
both, shall be imposed upon any person who sells any
article, goods, or commodity in excess of the maximum
selling price fixed by the president; . . . .
66
 In addition to the penalties prescribed above, the persons,
corporations, partnerships, or associations found guilty of
any violation of this Act or of any rule or regulations issued
by the president pursuant to this Act shall be barred from
the wholesome and retail business for a period of five
years for a first offense, and shall be permanently barred
for the second or succeeding offenses.
The constitution directs that "Excessive fines shall not be imposed,
nor cruel and unusual punishment inflicted." The prohibition of cruel
and unusual punishments is generally aimed at the form or
character of the punishment rather than its severity in respect of
duration or amount, and apply to punishment which never existed in
America of which public sentiment has regarded as cruel or obsolete
(15 Am. Jur., p. 172), for instance those inflicted at the whipping
post, or in the pillory, burning at the stake, breaking on the wheel,
disemboweling, and the like (15 Am. Jur., supra, Note 35 L.R.A. p.
561). Fine and imprisonment would not thus be within the
prohibition.
However, there are respectable authorities holding that the inhibition
applies as well to punishments that although not cruel and unusual
in nature, may be so severe as to fall within the fundamental
restriction. (15 Am. Jur., p. 178.) These authorities explain,
nevertheless, that to justify a court's declaration of conflict with the
Constitution, the prison term must be so disproportionate to the
offense committed as to shock the moral sense of all reasonable
men as to what is right and proper under the circumstances (lb.).
And seldom has a sentence been declared to be cruel and unusual
solely on account of its duration (15 Am. Jur., p. 179).
Because it expressly enjoins the imposition of "excessive fines" the
Constitution might have contemplated the latter school of thought
assessing punishments not only by their character but also by their
duration or extent. And yet, having applied "excessive" to fines, and
"cruel and unusual" to punishment did it not intend to distinguish
"excessive" from "cruel" or "unusual"? And then, it has been
heretofore the practice that when a court finds the penalty to be
"clearly excessive" it enforces the law but makes a recommendation
to the Chief Executive for clemency (Art. 5 Revised Penal Code).
Did the Constitutional Convention intend to stop that practice? Or is
that article unconstitutional?
So far as the writer of this opinion has been able to ascertain, these
questions have not been definitely passed upon by this
court,1 although in U.S. vs. Borromeo, 23 Phil., 279 it was said that
the prohibition of the Philippine Bill on punishments refer not only to
the mode but to the extent thereto.
For the purposes of this decision, we may assume, without actually
holding, that too long a prison term might clash with the Philippine
Constitution.
But that brings up again two opposing theories. On one side we are
told the prohibition applies to legislation only, and not to the courts'
decision imposing penalties within the limits of the statute (15 Am.
Jur., "Criminal Law" sec. 526). On the other, authorities are not
lacking to the effect that the fundamental prohibition likewise
restricts the judge's power and authority (State vs. Ross 55 Or. 450,
104 Pac. 596; State vs. Whitaker, 48 La. Am. 527, 19 So. 457). (See
also U.S. vs. Borromeo, 23 Phil., 279.)
In other words, and referring to the penalty provided in Republic Act
No. 509, under the first theory the section would violate the
Constitution, if the penalty is excessive under any and all
circumstances, the minimum being entirely out of proportion to the
kind of offenses prescribed. If it is not, the imposition by the judge
of a stiff penalty — but within the limits of the section — will not be
deemed unconstitutional.2 The second theory would contrast the
penalty imposed by the court with the gravity of the particular crime
or misdemeanor, and if notable disparity results, it would apply the
constitutional brake, even if the statute would, under other
circumstances, be not extreme or oppressive.
Now therefore, if we adopt the first doctrine the present issue would
be: Is imprisonment for two months or fine of two thousand pesos
too excessive for a merchant who sells goods at prices beyond the
ceilings established in the Executive Order? Obviously a negative
answer must be returned, because in overstepping the price barriers
he might derive, in some instances, profits amounting to thousands
of pesos. Therefore under that doctrine, the penalty imposed in this
case would not be susceptible of valid attack, it being within the
statutory limits.
Under the second theory the inquiry should be: Is five years and five
thousand pesos, cruel and unusual for a violation that merely netted
a ten-centavo profit to the accused? Many of us do not regard such
punishment unusual and cruel, remembering the national policy
against profiteering in the matter of foodstuffs affecting the people's
health, the need of stopping speculation in such essentials and of
safeguarding public welfare in times of food scarcity or similar
stress. In our opinion the damage caused to the State is not
measured exclusively by the gains obtained by the accused,
inasmuch as one violation would mean others, and the
consequential breakdown of the beneficial system of price controls.
Some of us however are deeply moved by the plight of this modest
store-owner with a family to support, who will serve in Muntinglupa
a stretch of five years, for having attempted to earn a few extra
centavos.
Fortunately there is an area of compromise, skirting the
constitutional issue, yet executing substantial justice: We may
decrease the penalty, exercising that discretion vested in the courts
by the same statutory enactment.
Wherefore, reducing the imprisonment to six months and the fine to
two thousand pesos, we hereby affirm the appealed decision in all
other respects.
G.R. No. L-45127 May 5, 1989
PEOPLE OF THE PHILIPPINES, represented by the Provincial
Fiscal of Leyte, petitioner,
vs.
HON. JUDGE AUXENCIO C. DACUYCUY, CELESTINO S.
MATONDO, SEGUNDINO A, CAVAL and CIRILO M.
ZANORIA, respondents.
The Office of the Solicitor General for petitioner.
Adelino B. Sitoy for private respondents.
REGALADO, J.:
Involved in this special civil action is the unique situation, to use an
euphemistic phrase, of an alternative penal sanction of
imprisonment imposed by law but without a specification as to the
term or duration thereof.
As a consequence of such legislative faux pas or oversight, the
petition at bar seeks to set aside the decision of the then Court of
First Instance of Leyte, Branch IV, dated September
8,1976, 1 penned by herein respondent judge and granting the
petition for certiorari and prohibition with preliminary injunction filed
by herein private respondents and docketed therein as Civil Case
No. 5428, as well as his resolution of October 19, 1976 2 denying
the motions for reconsideration filed by the parties therein. Subject
of said decision were the issues on jurisdiction over violations of
Republic Act No. 4670, otherwise known as the Magna Carta for
Public School Teachers, and the constitutionality of Section 32
thereof.
In a complaint filed by the Chief of Police of Hindang, Leyte on April
4, 1975, herein private respondents Celestino S. Matondo,
Segundino A. Caval and Cirilo M. Zanoria, public school officials of
Leyte, were charged before the Municipal Court of Hindang, Leyte
in Criminal Case No. 555 thereof for violation of Republic Act No.
4670. The case was set for arraignment and trial on May 29, 1975.
At the arraignment, the herein private respondents, as the accused
therein, pleaded not guilty to the charge. Immediately thereafter,
they orally moved to quash the complaint for lack of jurisdiction over
the offense allegedly due to the correctional nature of the penalty of
imprisonment prescribed for the offense. The motion to quash was
subsequently reduced to writing on June 13, 1975. 3 On August 21,
1975, the municipal court denied the motion to quash for lack of
merit. 4 On September 2, 1975, private respondents filed a motion
for the reconsideration of the aforesaid denial order on the same
ground of lack of jurisdiction, but with the further allegation that the
facts charged do not constitute an offense considering that Section
32 of Republic Act No. 4670 is null and void for being
unconstitutional. In an undated order received by the counsel for
67
private respondents on October 20,1975, the motion for
reconsideration was denied. 5
On October 26, 1975, private respondents filed a petitions 6 for
certiorari and prohibition with preliminary injunction before the
former Court of First Instance of Leyte, Branch VIII, where it was
docketed as Civil Case No. B-622, to restrain the Municipal Judge,
Provincial Fiscal and Chief of Police of Hindang, Leyte from
proceeding with the trial of said Criminal Case No. 555 upon the
ground that the former Municipal Court of Hindang had no
jurisdiction over the offense charged. Subsequently, an amended
petition 7 alleged the additional ground that the facts charged do not
constitute an offense since the penal provision, which is Section 32
of said law, is unconstitutional for the following reasons: (1) It
imposes a cruel and unusual punishment, the term of imprisonment
being unfixed and may run to reclusion perpetua; and (2) It also
constitutes an undue delegation of legislative power, the duration of
the penalty of imprisonment being solely left to the discretion of the
court as if the latter were the legislative department of the
Government.
On March 30, 1976, having been advised that the petition of herein
private respondents was related to Criminal Case No. 1978 for
violation of Presidential Decree No. 442 previously transferred from
Branch VIII to Branch IV of the erstwhile Court of First Instance of
Leyte, Judge Fortunate B. Cuna of the former branch transferred the
said petition to the latter branch for further proceedings and where
it was subsequently docketed therein as Civil Case No. 5428. 8 On
March 15, 1976, the petitioner herein filed an opposition to the
admission of the said amended petitions 9but respondent judge
denied the same in his resolution of April 20, 1976. 10 On August 2,
1976, herein petitioner filed a supplementary memorandum in
answer to the amended petition. 11
On September 8, 1976, respondent judge rendered the aforecited
challenged decision holding in substance that Republic Act No.
4670 is valid and constitutional but cases for its violation fall outside
of the jurisdiction of municipal and city courts, and remanding the
case to the former Municipal Court of Hindang, Leyte only for
preliminary investigation.
As earlier stated, on September 25, 1976, petitioner filed a motion
for reconsideration. 12 Likewise, private respondents filed a motion
for reconsideration of the lower court's decision but the same was
limited only to the portion thereof which sustains the validity of
Section 32 of Republic Act No. 4670. 13 Respondent judge denied
both motions for reconsideration in a resolution dated October 19,
1976. 14
The instant petition to review the decision of respondent judge
poses the following questions of law: (1) Whether the municipal and
city courts have jurisdiction over violations of Republic Act No. 4670;
and (2) Whether Section 32 of said Republic Act No. 4670 is
constitutional.
We shall resolve said queries in inverse order, since prior
determination of the constitutionality of the assailed provision of the
law involved is necessary for the adjudication of the jurisdictional
issue raised in this petition.
1. The disputed section of Republic Act No. 4670
provides:
Sec. 32. Penal Provision. — A person who shall
wilfully interfere with, restrain or coerce any
teacher in the exercise of his rights guaranteed
by this Act or who shall in any other manner
commit any act to defeat any of the provisions of
this Act shall, upon conviction, be punished by a
fine of not less than one hundred pesos nor more
than one thousand pesos, or by imprisonment,
in the discretion of the court. (Emphasis
supplied).
Two alternative and distinct penalties are consequently imposed, to
wit: (a) a fine ranging from P100.00 to P1,000.00; or (b)
imprisonment. It is apparent that the law has no prescribed period
or term for the imposable penalty of imprisonment. While a minimum
and maximum amount for the penalty of fine is specified, there is no
equivalent provision for the penalty of imprisonment, although both
appear to be qualified by the phrase "in the discretion of the court.
Private respondents contend that a judicial determination of what
Congress intended to be the duration of the penalty of imprisonment
would be violative of the constitutional prohibition against undue
delegation of legislative power, and that the absence of a provision
on the specific term of imprisonment constitutes that penalty into a
cruel and unusual form of punishment. Hence, it is vigorously
asserted, said Section 32 is unconstitutional.
The basic principle underlying the entire field of legal concepts
pertaining to the validity of legislation is that in the enactment of
legislation a constitutional measure is thereby created. In every
case where a question is raised as to the constitutionality of an act,
the court employs this doctrine in scrutinizing the terms of the law.
In a great volume of cases, the courts have enunciated the
fundamental rule that there is a presumption in favor of the
constitutionality of a legislative enactment. 15
It is contended that Republic Act No. 4670 is unconstitutional on the
ground that the imposable but indefinite penalty of imprisonment
provided therein constitutes a cruel and unusual punishment, in
defiance of the express mandate of the Constitution. This contention
is inaccurate and should be rejected.
We note with approval the holding of respondent judge that —
The rule is established beyond question that a
punishment authorized by statute is not cruel or
unusual or disproportionate to the nature of the
offense unless it is a barbarous one unknown to
the law or so wholly disproportionate to the
nature of the offense as to shock the moral
sense of the community. Based on the principle,
our Supreme Court has consistently overruled
contentions of the defense that the punishment
of fine or imprisonment authorized by the statute
involved is cruel and unusual. (Legarda vs.
Valdez, 1 Phil. 146; U.S. vs. Pico, 18 Phil. 386;
People vs. Garay, 2 ACR 149; People vs.
Estoista 93 Phil. 647; People vs. Tiu Ua. 96 Phil.
738; People vs. Dionisio, 22 SCRA 1299). The
language of our Supreme Court in the first of the
cases it decided after the last world war is
appropriate here:
The Constitution directs that
'Excessive fines shall not be
imposed, nor cruel and
unusual punishment
inflicted.' The prohibition of
cruel and unusual
punishments is generally
aimed at the form or
character of the punishment
rather than its severity in
respect of duration or
amount, and apply to
punishments which never
existed in America, or which
public sentiment has
regarded as cruel or
obsolete (15 Am. Jur., p.
172), for instance there (sic)
inflicted at the whipping post,
or in the pillory, burning at
the stake, breaking on the
wheel, disemboweling, and
the like (15 Am. Jur. Supra,
Note 35 L.R.A. p. 561). Fine
and imprisonment would not
thus be within the
prohibition.' (People vs. de la
Cruz, 92 Phil. 906). 16
The question that should be asked, further, is whether the
constitutional prohibition looks only to the form or nature of the
penalty and not to the proportion between the penalty and the crime.
The answer thereto may be gathered from the pronouncement
in People vs. Estoista, 17 where an "excessive" penalty was upheld
as constitutional and was imposed but with a recommendation for
executive clemency, thus:
68
 ... If imprisonment from 5 to 10 years is out of
proportion to the present case in view of certain
circumstances, the law is not to be declared
unconstitutional for this reason. The
constitutionality of an act of the legislature is not
to be judged in the light of exceptional cases.
Small transgressors for which the heavy net was
not spread are, like small fishes, bound to be
caught, and it is to meet such a situation as this
that courts are advised to make a
recommendation to the Chief Executive for
clemency or reduction of the penalty...
That the penalty is grossly disproportionate to the crime is an
insufficient basis to declare the law unconstitutional on the ground
that it is cruel and unusual. The fact that the punishment authorized
by the statute is severe does not make it cruel or unusual. 18 In
addition, what degree of disproportion the Court will consider as
obnoxious to the Constitution has still to await appropriate
determination in due time since, to the credit of our legislative
bodies, no decision has as yet struck down a penalty for being "cruel
and unusual" or "excessive."
We turn now to the argument of private respondents that the entire
penal provision in question should be invalidated as an 49 "undue
delegation of legislative power, the duration of penalty of
imprisonment being solely left to the discretion of the court as if the
lattter were the legislative department of the government."
Petitioner counters that the discretion granted therein by the
legislature to the courts to determine the period of imprisonment is
a matter of statutory construction and not an undue delegation of
legislative power. It is contended that the prohibition against undue
delegation of legislative power is concerned only with the delegation
of power to make laws and not to interpret the same. It is also
submitted that Republic Act No. 4670 vests in the courts the
discretion, not to fix the period of imprisonment, but to choose which
of the alternative penalties shall be imposed.
Respondent judge sustained these theses of petitioner on his theory
that "the principle of separation of powers is not violated by vesting
in courts discretion as to the length of sentence or amount of fine
between designated limits in sentencing persons convicted of crime.
In such instance, the exercise of judicial discretion by the courts is
not an attempt to use legislative power or to prescribe and create a
law but is an instance of the administration of justice and the
application of existing laws to the facts of particular cases." 19 What
respondent judge obviously overlooked is his own reference to
penalties "between designated limits."
In his commentary on the Constitution of the United States, Corwin
wrote:
.. At least three distinct ideas have contributed to
the development of the principle that legislative
power cannot be delegated. One is the doctrine
of separation of powers: Why go to the trouble of
separating the three powers of government if
they can straightway remerge on their own
motion? The second is the concept of due
process of laws which precludes the transfer of
regulatory functions to private persons. Lastly,
there is the maxim of agency "Delegata potestas
non potest delegari." 20
An apparent exception to the general rule forbidding the delegation
of legislative authority to the courts exists in cases where discretion
is conferred upon said courts. It is clear, however, that when the
courts are said to exercise a discretion, it must be a mere legal
discretion which is exercised in discerning the course prescribed by
law and which, when discerned, it is the duty of the court to follow. 21
So it was held by the Supreme Court of the United States that the
principle of separation of powers is not violated by vesting in courts
discretion as to the length of sentence or the amount of fine between
designated limits in sentencing persons convicted of a crime. 22
In the case under consideration, the respondent judge erronneously
assumed that since the penalty of imprisonment has been provided
for by the legislature, the court is endowed with the discretion to
ascertain the term or period of imprisonment. We cannot agree with
this postulate. It is not for the courts to fix the term of imprisonment
where no points of reference have been provided by the legislature.
What valid delegation presupposes and sanctions is an exercise of
discretion to fix the length of service of a term of imprisonment which
must be encompassed within specific or designated limits provided
by law, the absence of which designated limits well constitute such
exercise as an undue delegation, if not-an outright intrusion into or
assumption, of legislative power.
Section 32 of Republic Act No. 4670 provides for an indeterminable
period of imprisonment, with neither a minimum nor a maximum
duration having been set by the legislative authority. The courts are
thus given a wide latitude of discretion to fix the term of
imprisonment, without even the benefit of any sufficient standard,
such that the duration thereof may range, in the words of respondent
judge, from one minute to the life span of the accused. Irremissibly,
this cannot be allowed. It vests in the courts a power and a duty
essentially legislative in nature and which, as applied to this case,
does violence to the rules on separation of powers as well as the
non-delegability of legislative powers. This time, the preumption of
constitutionality has to yield.
On the foregoing considerations, and by virtue of the separability
clause in Section 34 of Republic Act No. 4670, the penalty of
imprisonment provided in Section 32 thereof should be, as it is
hereby, declared unconstitutional.
It follows, therefore, that a ruling on the proper interpretation of the
actual term of imprisonment, as may have been intended by
Congress, would be pointless and academic. It is, however, worth
mentioning that the suggested application of the so-called rule or
principle of parallelism, whereby a fine of P1,000.00 would be
equated with one year of imprisonment, does not merit judicial
acceptance. A fine, whether imposed as a single or as an alternative
penalty, should not and cannot be reduced or converted into a
prison term; it is to be considered as a separate and independent
penalty consonant with Article 26 of the Revised Penal Code. 23 It is
likewise declared a discrete principal penalty in the graduated
scales of penalties in Article 71 of said Code. There is no rule for
transmutation of the amount of a fine into a term of imprisonment.
Neither does the Code contain any provision that a fine when
imposed in conjunction with imprisonment is subordinate to the
latter penalty. In sum, a fine is as much a principal penalty as
imprisonment. Neither is subordinate to the other. 24
2. It has been the consistent rule that the criminal jurisdiction of the
court is determined by the statute in force at the time of the
commencement of the action. 25
With the deletion by invalidation of the provision on imprisonment in
Section 32 of Republic Act No. 4670, as earlier discussed, the
imposable penalty for violations of said law should be limited to a
fine of not less than P100.00 and not more than P1,000.00, the
same to serve as the basis in determining which court may properly
exercise jurisdiction thereover. When the complaint against private
respondents was filed in 1975, the pertinent law then in force was
Republic Act No. 296, as amended by Republic Act No. 3828, under
which crimes punishable by a fine of not more than P 3,000.00 fall
under the original jurisdiction of the former municipal courts.
Consequently, Criminal Case No. 555 against herein private
respondents falls within the original jurisdiction of the Municipal Trial
Court of Hindang, Leyte.
WHEREFORE, the decision and resolution of respondent judge are
hereby REVERSED and SET ASIDE. Criminal Case No. 555 filed
against private respondents herein is hereby ordered to be
remanded to the Municipal Trial Court of Hindang, Leyte for trial on
the merits.
SO ORDERED.
G.R. No. 105907 May 24, 1993
FELICIANO V. AGBANLOG, petitioner,
vs.
PEOPLE OF THE PHILIPPINES AND
SANDIGANBAYAN, respondents.
Michael P. Moralde for petitioner.
QUIASON, J.:
69
This is a petition for review on certiorari under Rule 45 of the
Revised Rules of Court and Section 7 of P.D. No. 1606 as amended,
of the decision of the Sandiganbayan (First Division) promulgated
on June 28, 1992, which found petitioner guilty beyond reasonable
doubt of Malversation of Public Funds, penalized under paragraph
4, Article 217, of the Revised Penal Code, and sentencing him to
suffer, in the absence of mitigating and aggravating circumstances
"the indeterminate penalty of, from ELEVEN (11) years and one (1)
DAY of Prision Mayor, as minimum to SIXTEEN (16) YEARS, FIVE
(5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as
maximum, with the accessory penalties of the law; to pay a fine in
the amount of P21,940.70; to suffer the penalty of perpetual special
disqualification and to pay the costs."
The Sandiganbayan made the following findings of facts :
Feliciano Agbanlog y Vinluan was the Officer-in-
Charge of the Office of the Municipal Treasurer
of Aglipay, Quirino, for the period: March 24,
1986 to May 31, 1988. When audited by COA
Auditing Examiner Marcelina P. Reyes of the
Provincial Auditor's Office of Cobarroguis,
Quirino, on August 4, 1986 for the aforesaid
period of his incumbency as Acting Municipal
Treasurer, Feliciano Agbanlog was found short
in his cash and accounts in the sum of
P21,940.70.
The shortage was broken down in the following
manner :
a. Disallowed cash item
of Mr. Feliciano V. Agbanlog
May 31, 1986 worded as
cash
advance to defray various
expenses
which was not approved
by the Municipal Mayor
P12,504.49
b. Disallowed voucher No.
101-86-04-71 dated April 18,
1986
due to under delivery of
printed forms P2,900.00
c. Disallowed voucher No.
101-86-05-144 dated
May 31, 1986 due to
under delivery of printed
forms P3,260.00
d. Unaccounted collection
P3,276.21
————
Total
P21,940.
70
A written demand to explain the shortage and to
pay the amount thereof was neither answered
nor acted upon by the accountable officer.
Consequently, a Report was made by
Examining Auditors Marcelina P. Reyes,
Asuncion G. Tamondong and Margarita B.
Eugenio to the Provincial Auditor of Quirino,
manifesting their findings and recommending
the institution of administrative and/or criminal
charges against Acting Municipal Treasurer
Feliciano Agbanlog.
At the outset, the Auditors found the accused
Agbanlog short in the amount of P32,950.34,
broken down in this manner:
Accountability:
Balance shown by your
cash book on May 31, 1986
certified correct by you
and verified by us P85,186.40
Credits to Accountability:
Cash and valid cash items
produced by you
and counted on us P52,236.06
—————
Shortage P32,950.34
Upon the finding that P11,009.64 of this amount
was chargeable to the account of former
Municipal Treasurer Carlos Pastor, predecessor
of Municipal Treasurer Ruperto Pallaya, the said
amount of P11,009.64 was deducted from the
accountability of Feliciano Agbanlog. The Acting
Municipal Treasurer was nevertheless made
accountable for the shortage of P21,940.70, the
amount for which he is not charged.
As regards the disbursement voucher billed as a
cash advance for various expenses in the
amount of P12,504.49, Exhibit "E", this voucher
was disallowed by the auditors because there
was no appropriation for this disbursement. It is
indicated in the voucher that the giving out of this
money was in the nature of a cash advance. The
purpose for which the cash advance was given
out was, however, not clearly indicated. The
particulars of payment merely states "to cash
advance to defray various expenditures". Only
the signature of the accused Feliciano Agbanlog
may be found in the voucher. This indicates that
the amount of P12,504.49 was given out to and
received by the accused, Feliciano V. Agbanlog,
from Roberto E. Pallaya. Vouchers of this
nature, in order to be valid, must bear the
signature of the incumbent Municipal Mayor of
Aglipay, Quirino. The signature of the then
Mayor, the Hon. Deogracias L. Prego, Sr., does
not appear in the voucher. No invoice or receipt
was presented to support the disbursement.
Thus, considering the fact that the accused,
Feliciano V. Agbanlog received the proceeds of
the voucher, this disbursement has, indeed,
become the accountability of the accused,
whose duty it was to liquidate the same. The
accused did not so liquidate. Accused's
allegation that the amount of money involved
was given to him to the Municipal Mayor has not
been backed up by sufficient evidence. If this
amount of money were for the Mayor's account,
the Mayor should have been made to sign the
voucher, or else, there should have been
accomplished some sort of evidence payment
for the Mayor.
Disbursement Voucher No. 101-8604-71, dated
April 18, 1986, Exhibit "F", in the amount of
P3,500.00, was partially disallowed because
printed forms for which the voucher was made
out was not actually delivered but yet paid for.
The accused was able to present proof of
delivery only of accounting forms valued at
P600.00. Consequently, the accused was
credited with the amount of P600.00. The
remaining balance of P2,900.00 was
nevertheless disallowed.
Disbursement Voucher No. 101-8605-144,
dated May 31, 1986, Exhibit "G" in the amount
of P4,110.00 was likewise partially disallowed.
The accused was able to show proof of a
legitimate disbursement in the amount of
P850.00. Consequently, the accused was
credited with this amount and only the sum of
P3,260.00 was disallowed.
As regards the shortage in the amount of
P3,276.21, representing the accused
unaccounted collections, per Collector's Daily
Statement of Collections for the period: April to
May, 1986, Exhibits "H" to "M", We find evidence
showing that this amount, while turned over to
the accused Feliciano Agbanlog in his capacity
as Acting Municipal Treasurer by Collectors
70
 Jane G. Domingo, Marilyn Villarta, Danilo de
Guzman, Guadalupe M. Quimpayag and
Rolando Domingo, has not been accounted for,
the accused claiming that cash collections of the
aforesaid collectors were never remitted to him.
There is ample proof, therefore, of the fact that
the accused received these cash collections. His
signatures on various documents, Exhibits "H" to
"M", "H-1", "I-1", "J-1", "K-1", "L-1" and "M-1",
virtually indicate that the accused had actually
received the amounts indicated in these exhibits.
We cannot believe that the accused would sign
these documents if he did not receive the
amount of money corresponding thereto. The
accused's allegation, made as an afterthought,
that the collectors who were supposed to
turnover their collections to him did not actually
turnover their collections cannot be believed.
The contention that the collectors had instead
made out vales or cash advances covering the
amount of their collections, is not supported by
proof. The vale slips or cash advance papers
allegedly given to the accused in lieu of cash
could not be produced by the accused.
The accused was supposed to return these vale
slips to the collectors only after they made good
the borrowed amount. This lapse in evidence
does not speak well of the defense herein put up
by the accused. (Rollo, pp. 30-34)
Petitioner admits the shortage of the accountable funds charged by
the prosecution but claims that the prosecution failed to show that
the shortage accrued during his short stint as acting treasurer.
According to him, the audit of his funds should have been made
immediately upon his assumption as Officer-in-charge of the Office
of the Treasurer in the last week of March, 1986, instead of in
August, 1986. He further claims that while there was a turn-over of
the funds on June 2, 1986 when Municipal Treasurer Ruperto
Pallaya reported back for work, there was no turnover of the funds
when he temporarily took charge of the Office of the Treasurer.
(Rollo, pp. 5-6)
Re : Shortage of P12,504.49
Petitioner admits that he was the one who prepared the voucher,
(Exh. "E"), and who received the amount of P12,504.49 mentioned
therein. He does not deny the authenticity of his signatures
appearing thereon. No other person, other than petitioner, was
involved in the preparation of the said voucher and the receipt of the
amount of P12,504.49. He only claims that the money was given to
the Municipal Mayor, who allegedly refused to sign the voucher.
Petitioner, having worked as a bookkeeper in the Treasurer's Office
of Cobarroguis, Quirino, since 1979 and as Assistant Municipal
Treasurer since 1982, should know that vouchers must be signed
by the claimants. If he acknowledged receipt of the money knowing
that the claimant was the Municipal Mayor, he became a party to
the fraud and assumed responsibility for the consequences of his
acts. The defense did not call the Municipal Mayor to testify that he
was the real claimant and that he received the money from the
petitioner.
Re : Shortage of P2,900.00
Petitioner admits that he was the one who prepared the voucher
dated April 18, 1986 for the payment of various forms in the amount
of P3,500.00 (Exh. "F"). He was the one who acknowledged receipt
of the supplies mentioned in the voucher and who received the
amount of P3,500.00 in payment thereof. He even certified to the
necessity and legality of the expense.
When audited, petitioner was able to show the delivery of forms
valued at only P600.00. The burden was on petitioner to explain
satisfactorily the discrepancy between the voucher and the receipt
of the delivery.
Re : Shortage of P3,260.00
Out of the amount of P4,100.00 disbursed under the voucher
marked as Exhibit "G", petitioner admits having been able to support
payment of only P850.00; hence the amount of P3,260.00 was
disallowed.
Re :Shortage of P3,276.21
As to the shortage in the amount of P3,276.21 representing the
unaccounted collections of petitioner for the month of April and May
1986, petitioner claims that the said amount was never turned over
to him. If this was true, he should not have signed the documents
marked Exhibits "H" to "M", "A-1", "Y-7", "5-1", "K-1", "L-1" and "M-
1", all acknowledging receipt of the cash collections of the various
collectors.
In all the foregoing cases of shortage, petitioner admits having
prepared and collected the amounts stated in the vouchers (Exhs.
"E", "F", "G") and having signed the collectors' daily statement of
collection, which evidence his receipt of the amounts stated therein
(Exhs. "H" to "M"). With such admissions, how can petitioner now
attribute the shortage of his accountable funds to his predecessor?
It is also difficult to comprehend how an earlier audit of petitioner's
accountability or an audit made upon assumption of office of the
Municipal Treasurer could possible explain the shortages unearthed
by the government auditor and assist him in his defense.
The elements of malversation of public funds or property punishable
under Article 217 of the Revised Penal Code are :
a) That the offender is a public officer;.
b) That he had the custody or control of funds or property by reason
of the duties of his office;.
c) That those funds or property were public funds or property for
which he was accountable;.
d) That he appropriated, took, misappropriated or consented or,
through abandonment or negligence permitted another person to
take them. (II Reyes, The Revised Penal Code, p. 391 [1981 ed.])
The prosecution has established (a) that appellant received in his
possession public funds; (b) that he could not account for them and
did not have them in his possession when audited; and (c) that he
could not give a satisfactory explanation or reasonable excuse for
the disappearance of said funds. (Cabello v. Sandiganbayan, 197
SCRA 94 [1991]) The prosecution is not required to present direct
evidence of the misappropriation, which may be impossible to do.
(Villanueva v. Sandiganbayan, 200 SCRA 722 [1991]).
The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by any
duly authorized officer, is a prima facie evidence that he has put
such funds or property to personal use. (Art. 217, last paragraph,
Revised Penal Code as amended by R.A. 1060).
Petitioner questions as oppressive and unconstitutional the penalty
imposed on him — that of eleven years and one day of prision
mayor, as minimum, to sixteen years, five months and eleven days
of reclusion temporal, as maximum.
He argues that considering the value of the peso in 1932 when the
Revised Penal Code was enacted and the value of peso today, the
penalty for malversation of P21,000.00 should only be an
imprisonment of one or two years. (Rollo, pp. 10-11)
Assuming arguendo that inflation has in effect made more severe
the penalty for malversing P21,000.00, the remedy cannot come
from this Court but from the Congress. The Court can intervene and
strike down a penalty as cruel, degrading or inhuman only when it
has become so flagrantly oppressive and so wholly disproportionate
to the nature of the offense as to shock the moral senses. (People
v. Dionisio, 22 SCRA 1299 [1968]; People v. Estoista, 93 Phil. 647
[1953]; U.S. v. Borromeo, 23 Phil. 279 [1912]) Considering that
malversation of public funds by a public officer is a betrayal of the
public trust, We are not prepared to say that the penalty imposed on
petitioner is so disproportionate to the crime committed as to shock
the moral sense.
71
WHEREFORE, the petition for review is DISMISSED and the
decision appealed from is AFFIRMED in toto, with costs against
petitioner.
SO ORDERED.
G.R. No. 117472 February 7, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LEO ECHEGARAY y PILO, accused-appellant.
PER CURIAM:
On June 25, 1996, we rendered our decision in the instant case
affirming the conviction of the accused-appellant for the crime of
raping his ten-year old daughter. The crime having been committed
sometime in April, 1994, during which time Republic Act (R.A) No.
7659, commonly known as the Death Penalty Law, was already in
effect, accused-appellant was inevitably meted out the supreme
penalty of death.
On July 9, 1996, the accused-appellant timely filed a Motion for
Reconsideration which focused on the sinister motive of the victim's
grandmother that precipitated the filing of the alleged false
accusation of rape against the accused. We find no substantial
arguments on the said motion that can disturb our verdict.
On August 6, 1996, accused-appellant discharged the defense
counsel, Atty. Julian R. Vitug, and retained the services of the Anti-
Death Penalty Task Force of the Free Legal Assistance Group of
the Philippines (FLAG).
On August 23, 1996, we received the Supplemental Motion for
Reconsideration prepared by the FLAG on behalf of accused-
appellant. The motion raises the following grounds for the reversal
of the death sentence:
[1] Accused-appellant should not have been
prosecuted since the pardon by the offended
party and her mother before the filing of the
complaint acted as a bar to his criminal
prosecution.
[2] The lack of a definite allegation of the date of
the commission of the offense in the Complaint
and throughout trial prevented the accused-
appellant from preparing an adequate defense.
[3] The guilt of the accused was not proved
beyond a reasonable doubt.
[4] The Honorable Court erred in finding that the
accused-appellant was the father or stepfather
of the complainant and in affirming the sentence
of death against him on this basis.
[5] The trial court denied the accused-appellant
of due process and manifested bias in the
conduct of the trial.
[6] The accused-appellant was denied his
constitutional right to effective assistance of
counsel and to due process, due to the
incompetence of counsel.
[7] R.A. [No.] 7659, reimposing the death penalty
is unconstitutional per se:
a. For crimes where no death
results from the offense, the
death penalty is a severe
and excessive penalty in
violation of Article III, Sec.
19(1) of the 1987
Constitution.
b. The death penalty is cruel
and unusual punishment in
violation of Article III, Sec. 11
of the 1987 Constitution.
In sum, the Supplemental Motion for Reconsideration
raises three (3) main issues: (1) mixed factual and legal
matters relating to the trial proceedings and findings; (2)
alleged incompetence of accused-appellant's former
counsel; and (3) purely legal question of the
constitutionality of R.A. No. 7659.
I
It is a rudimentary principle of law that matters neither alleged in the
pleadings nor raised during the proceedings below cannot be
ventilated for the first time on appeal before the Supreme Court.
Moreover, as we have stated in our Resolution in Manila Bay Club
Corporation v. Court of Appeals: 1
If well-recognized jurisprudence precludes
raising an issue only for the first time on appeal
proper, with more reason should such issue be
disallowed or disregarded when initially raised
only in a motion for reconsideration of the
decision of the appellate court.
It is to be remembered that during the proceedings of the rape case
against the accused-appellant before the sala of then presiding
judge Maximiano C. Asuncion, the defense attempted to prove that:
a) the rape case was motivated by greed, hence,
a mere concoction of the alleged victim's
maternal grandmother;
b) the accused is not the real father of the
complainant;
c) the size of the penis of the accused cannot
have possibly penetrated the alleged victim's
private part; and
d) the accused was in Parañaque during the
time of the alleged rape.
In his Brief before us when the rape case was elevated for automatic
review, the accused-appellant reiterated as grounds for exculpation:
a) the ill-motive of the victim's maternal grandmother in prompting
her grandchild to file the rape case;
b) the defense of denial relative to the size of his penis which could
not have caused the healed hymenal lacerations of the victim; and
c) the defense of alibi.
Thus, a second hard look at the issues raised by the new counsel
of the accused-appellant reveals that in their messianic appeal for a
reversal of our judgment of conviction, we are asked to consider for
the first time, by way of a Supplemental Motion for Reconsideration,
the following matters:
a) the affidavit of desistance written by the victim
which acted as a bar to the criminal prosecution
for rape against the accused-appellant;
b) the vagueness attributed to the date of the
commission of the offense in the Complaint
which deprived the accused-appellant from
adequately defending himself;
c) the failure of this Court to clearly establish the
qualifying circumstance that placed the
accused-appellant within the coverage of the
Death Penalty Law;
d) the denial of due process and the manifest
bias exhibited by the trial court during the trial of
the rape case.
72
Apparently, after a careful scrutiny of the foregoing points for
reconsideration, the only legitimate issue that we can tackle relates
to the Affidavit of Desistance which touches on the lack of
jurisdiction of the trial court to have proceeded with the prosecution
of the accused-appellant considering that the issue of jurisdiction
over the subject matter may be raised at any time, even during
appeal. 2
It must be stressed that during the trial proceedings of the rape case
against the accused-appellant, it appeared that despite the
admission made by the victim herself in open court that she had
signed an Affidavit of Desistance, she, nevertheless, "strongly
pointed out that she is not withdrawing the charge against the
accused because the latter might do the same sexual assaults to
other women." 3 Thus, this is one occasion where an affidavit of
desistance must be regarded with disfavor inasmuch as the victim,
in her tender age, manifested in court that she was pursuing the
rape charges against the accused-appellant.
We have explained in the case of People v. Gerry Ballabare, 4 that:
As pointed out in People v. Lim (24 190 SCRA
706 [1990], which is also cited by the accused-
appellant, an affidavit of desistance is merely an
additional ground to buttress the accused's
defenses, not the sole consideration that can
result in acquittal. There must be other
circumstances which, when coupled with the
retraction or desistance, create doubts as to the
truth of the testimony given by the witnesses at
the trial and accepted by the judge. 5
In the case at bar, all that the accused-appellant offered as defenses
mainly consisted of denial and alibi which cannot outweigh the
positive identification and convincing testimonies given by the
prosecution. Hence, the affidavit of desistance, which the victim
herself intended to disregard as earlier discussed, must have no
bearing on the criminal prosecution against the accused-appellant,
particularly on the trial court's jurisdiction over the case.
II
The settled rule is that the client is bound by the negligence or
mistakes of his counsel. 6 One of the recognized exceptions to this
rule is gross incompetency in a way that the defendant is highly
prejudiced and prevented, in effect, from having his day in court to
defend himself. 7
In the instant case, we believe that the former counsel of the
accused-appellant to whom the FLAG lawyers now impute
incompetency had amply exercised the required ordinary diligence
or that reasonable decree of care and skill expected of him relative
to his client's defense. As the rape case was being tried on the
merits, Atty. Vitug, from the time he was assigned to handle the
case, dutifully attended the hearings thereof. Moreover, he had
seasonably submitted the Accused-Appellant's Brief and the Motion
for Reconsideration of our June 25, 1996 Decision with extensive
discussion in support of his line of defense. There is no indication of
gross incompetency that could have resulted from a failure to
present any argument or any witness to defend his client. Neither
has he acted haphazardly in the preparation of his case against the
prosecution evidence. The main reason for his failure to exculpate
his client, the accused-appellant, is the overwhelming evidence of
the prosecution. The alleged errors committed by the previous
counsel as enumerated by the new counsel could not have
overturned the judgment of conviction against the accused-
appellant.
III
Although its origins seem lost in obscurity, the imposition of death
as punishment for violation of law or custom, religious or secular, is
an ancient practice. We do know that our forefathers killed to avenge
themselves and heir akin and that initially, the criminal law was used
to compensate for a wrong done to a private party or his family, not
to punish in the name of the state.
The dawning of civilization brought with it both the increasing
sensitization throughout the later generations against past barbarity
and the institutionalization of state power under the rule of law.
Today every man or woman is both an individual person with
inherent human rights recognized and protected by the state and a
citizen with the duty to serve the common weal and defend and
preserve society.
One of the indispensable powers of the state is the power to secure
society against threatened and actual evil. Pursuant to this, the
legislative arm of government enacts criminal laws that define and
punish illegal acts that may be committed by its own subjects, the
executive agencies enforce these laws, and the judiciary tries and
sentences the criminals in accordance with these laws.
Although penologists, throughout history, have not stopped
debating on the causes of criminal behavior and the purposes of
criminal punishment, our criminal laws have been perceived as
relatively stable and functional since the enforcement of the Revised
Penal Code on January 1, 1932, this notwithstanding occasional
opposition to the death penalty provisions therein. The Revised
Penal Code, as it was originally promulgated, provided for the death
penalty in specified crimes under specific circumstances. As early
as 1886, though, capital punishment had entered our legal system
through the old Penal Code, which was a modified version of the
Spanish Penal Code of 1870.
The opposition to the death penalty uniformly took the form of a
constitutional question of whether or not the death penalty is a cruel,
unjust, excessive or unusual punishment in violation of the
constitutional proscription against cruel and unusual punishments.
We unchangingly answered this question in the negative in the
cases ofHarden v. Director of Prison, 8 People v. Limaco, 9 People
v. Camano, 10 People v. Puda 11 and People
12
v. Marcos. In Harden, we ruled:
The penalty complained of is neither cruel,
unjust nor excessive. In Ex-parte Kemmler, 136
U.S., 436, the United States Supreme Court said
that 'punishments are cruel when they involve
torture or a lingering death, but the punishment
of death is not cruel, within the meaning of that
word as used in the constitution. It implies there
something inhuman and barbarous, something
more than the mere extinguishment of life. 13
Consequently, we have time and again emphasized that
our courts are not the for a for a protracted debate on the
morality or propriety of the death sentence where the law
itself provides therefor in specific and well-defined criminal
acts. Thus we had ruled in the 1951 case of Limaco that:
. . . there are quite a number of people who
honestly believe that the supreme penalty is
either morally wrong or unwise or ineffective.
However, as long as that penalty remains in the
statute books, and as long as our criminal law
provides for its imposition in certain cases, it is
the duty of judicial officers to respect and apply
the law regardless of their private opinions. 14
and this we have reiterated in the 1995 case of People
v. Veneracion. 15
Under the Revised Penal Code, death is the penalty for the crimes
of treason, correspondence with the enemy during times of war,
qualified piracy, parricide, murder, infanticide, kidnapping, rape with
homicide or with the use of deadly weapon or by two or more
persons resulting in insanity, robbery with homicide, and arson
resulting in death. The list of capital offenses lengthened as the
legislature responded to the emergencies of the times. In 1941,
Commonwealth Act (C.A.) No. 616 added espionage to the list. In
the 1950s, at the height of the Huk rebellion, the government
enacted Republic Act (R.A.) No. 1700, otherwise known as the Anti-
Subversion Law, which carried the death penalty for leaders of the
rebellion. From 1971 to 1972, more capital offenses were created
by more laws, among them, the Anti-Hijacking Law, the Dangerous
Drugs Act, and the Anti-Carnapping Law. During martial law,
Presidential Decree (P.D.) No. 1866 was enacted penalizing with
death, among others, crimes involving homicide committed with an
unlicensed firearm.
In the aftermath of the 1986 revolution that dismantled the Marcos
regime and led to the nullification of the 1973 Constitution, a
Constitutional Commission was convened following appointments
thereto by Corazon Aquino who was catapulted to power by the
people.
73
Tasked with formulating a charter that echoes the new found
freedom of a rejuvenated people, the Constitutional Commissioners
grouped themselves into working committees among which is the
Bill of Rights Committee with Jose B. Laurel, Jr. as Chairman and
Father Joaquin G. Bernas, S.J., as Vice-Chairman.
On July 17, 1986, Father Bernas presented the committee draft of
the proposed bill of rights to the rest of the commission. What is now
Article III, Section 19 (1) of the 1987 Constitution was first
denominated as Section 22 and was originally worded as follows:
Excessive fines shall not be imposed nor cruel,
degrading or inhuman punishment or the death
penalty inflicted. Death penalty already imposed
shall be commuted to reclusion perpetua.
Father Bernas explained that the foregoing provision was
the result of a consensus among the members of the Bill
of Rights Committee that the death penalty should be
abolished. Having agreed to abolish the death penalty,
they proceeded to deliberate on how the abolition was to
be done--whether the abolition should be done by the
Constitution or by the legislature-and the majority voted for
a constitutional abolition of the death penalty. Father
Bernas explained:
. . . [T]here was a division in the Committee not
on whether the death penalty should be
abolished or not, but rather on whether the
abolition should be done by the Constitution —
in which case it cannot be restored by the
legislature — or left to the legislature. The
majority voted for the constitutional abolition of
the death penalty. And the reason is that capital
punishment is inhuman for the convict and his
family who are traumatized by the waiting, even
if it is never carried out. There is no evidence that
the death penalty deterred deadly criminals,
hence, life should not be destroyed just in the
hope that other lives might be saved. Assuming
mastery over the life of another man is just too
presumptuous for any man. The fact that the
death penalty as an institution has been there
from time immemorial should not deter us from
reviewing it. Human life is more valuable than an
institution intended precisely to serve human life.
So, basically, this is the summary of the reasons
which were presented in support of the
constitutional abolition of the death penalty. 16
The original wording of Article III, Section 19 (1), however, did not
survive the debate that it instigated. Commissioner Napoleon G.
Rama first pointed out that "never in our history has there been a
higher incidence of crime" and that "criminality was at its zenith
during the last decade". 17 Ultimately, the dissent defined itself to an
unwillingness to absolutely excise the death penalty from our legal
system and leave society helpless in the face of a future upsurge of
crimes or other similar emergencies. As Commissioner Rustico F.
de los Reyes, Jr. suggested, "although we abolish the death penalty
in the Constitution, we should afford some amount of flexibility to
future legislation", 18 and his concern was amplified by the
interpellatory remarks of Commissioner Lugum L. Commissioner
and now Associate Justice Florenz Regalado, Commissioner
Crispino M. de Castro, Commissioner Ambrosio B. Padilla,
Commissioner Christian Monsod, Commissioner Francisco A.
Rodrigo, and Commissioner Ricardo Romulo. Commissioner
Padilla put it succinctly in the following exchange with
Commissioner Teodoro C. Bacani:
BISHOP BACANI. . . . At present, they explicitly
make it clear that the church has never
condemned the right of the state to inflict capital
punishment.
MR. PADILLA. . . . So it is granted that the state
is not deprived of the right even from a moral
standpoint of imposing or prescribing capital
punishment.
BISHOP BACANI. Yes. What I am saying is that
from the Catholic point of view, that right of the
state is not forbidden.
MR. PADILLA. In fact . . . we have to accept that
the state has the delegated authority from the
Creator to impose the death penalty under
certain circumstances.
BISHOP BACANI. The state has the delegation
from God for it to do what is needed for the sake
of the common good but the issue at stake is
whether or not under the present circumstances
that will be for the common good.
MR. PADILLA. But the delegated power of the
state cannot be denied.
BISHOP BACANI. Yes, the state can be
delegated by God at a particular stage in history,
but it is not clear whether or not that delegation
is forever under all circumstances.
MR. PADILLA. So this matter should be left to
the legislature to determine, under certain
specified conditions or circumstances, whether
the retention of the death penalty or its abolition
would be for the common good. I do not believe
this Commission can a priori, and as was
remarked within a few days or even a month,
determine a positive provision in the Constitution
that would prohibit even the legislature to
prescribe the death penalty for the most heinous
crimes, the most grievous offenses attended by
many qualifying and aggravating
circumstances. 19
What followed, thus, were proposed amendments to the
beleaguered provision. The move to add the phrase, "unless for
compelling reasons involving heinous crimes, the national assembly
provides for the death penalty," came from Commissioners Monsod,
Jose E. Suarez and de los Reyes. Commissioner Rodrigo, however,
expressed reservations even as regards the proposed amendment.
He said:
. . . [T]he issue here is whether or not we should
provide this matter in the Constitution or leave it
to the discretion of our legislature. Arguments
pro and con have been given. . . . But my stand
is, we should leave this to the discretion of the
legislature.
The proposed amendment is halfhearted. It is
awkward because we will, in effect repeal by our
Constitution a piece of legislation and after
repealing this piece of legislation tell the
legislature that we have repealed the law and
that the legislature can go ahead and enact it
again. I think this is not worthy of a constitutional
body like ours. If we will leave the matter of the
death Penalty to the legislature, let us leave it
completely to the discretion of the legislature,
but let us not have this half-baked provision. We
have many provisions in the Revised Penal
Code imposing the death penalty. We will now
revoke or repeal these pieces of legislation by
means of the Constitution, but at the same time
say that it is up to the legislature to impose this
again.
. . . The temper and condition of the times
change . . . and so we, I think we should leave
this matter to the legislature to enact statutes
depending on the changing needs of the times.
Let us entrust this completely to the legislature
composed of representatives elected by the
people.
I do not say that we are not competent. But we
have to admit the fact that we are not elected by
the people and if we are going to entrust this to
the legislature, let us not be half-baked nor
halfhearted about it. Let us entrust it to the
legislature 100 percent. 20
74
 Nonetheless, the proposed amendment was approved
with twenty-three (23) commissioners voting in favor of the
amendment and twelve (12) voting against it, followed by
more revisions, hence the present wording of Article III,
Section 19(1) of the 1987 Constitution in the following
tenor:
Excessive fines shall not be imposed nor cruel,
degrading or inhuman punishment inflicted.
Neither shall death penalty be imposed, unless,
for compelling reasons involving heinous crimes,
the Congress hereafter provides for it. Any death
penalty already imposed shall be reduced
to reclusion perpetua.
The implications of the foregoing provision on the effectivity of the
death penalty provisions in the Revised Penal Code and certain
special criminal laws and the state of the scale of penalties
thereunder, were tremendous.
The immediate problem pertained to the applicable penalty for what
used to be capital crimes. In People v.Gavarra, 21 we stated that "in
view of the abolition of the death penalty under Section 19, Article
III of the 1987 Constitution, the penalty that may be imposed for
murder is reclusion temporal in its maximum period to reclusion
perpetua"22 thereby eliminating death as the original maximum
period. The constitutional abolition of the death penalty, it seemed,
limited the penalty for murder to only the remaining periods, to wit,
the minimum and the medium, which we then, in People
v. Masangkay, 23 People v. Atencio 24 and People
v. Intino 25 divided into three new periods, to wit, the lower half
ofreclusion temporal maximum as the minimum; the upper half of
reclusion temporal maximum as the medium; and reclusion
perpetua as the maximum, in keeping with the three-grade scheme
under the Revised Penal Code. In People v. Munoz, 26however, we
reconsidered these aforecited cases and after extended discussion,
we concluded that the doctrine announced therein did not reflect the
intention of the framers. The crux of the issue was whether or not
Article III, Section 19 (1) absolutely abolished the death penalty, for
if it did, then, the aforementioned new three-grade penalty should
replace the old one where the death penalty constituted the
maximum period. But if no total abolition can be read from said
constitutional provision and the death penalty is only suspended, it
cannot as yet be negated by the institution of a new three-grade
penalty premised on the total inexistence of the death penalty in our
statute books. We thus ruled in Munoz:
The advocates of the Masangkay ruling argue
that the Constitution abolished the death penalty
and thereby limited the penalty for murder to the
remaining periods, to wit, the minimum and the
medium. These should now be divided into three
new periods in keeping with the three-grade
scheme intended by the legislature. Those who
disagree feel that Article III, Section 19 (1)
merely prohibits the imposition of the death
penalty and has not, by reducing it to reclusion
perpetua, also correspondingly reduced the
remaining penalties. These should be
maintained intact.
A reading of Section 19 (1) of Article III will
readily show that there is really nothing therein
which expressly declares the abolition of the
death penalty. The provision merely says that
the death penalty shall not be imposed unless
for compelling reasons involving heinous crimes
the Congress hereafter provides for it and, if
already imposed, shall be reduced to reclusion
perpetua. The language, while rather awkward,
is still plain enough. 27
Nothing is more defining of the true content of Article III, Section 19
(1) of the 1987 Constitution than the form in which the legislature
took the initiative in re-imposing the death penalty.
The Senate never doubted its power as vested in it by the
constitution, to enact legislation re-imposing the death penalty for
compelling reasons involving heinous crimes. Pursuant to this
constitutional mandate, the Senate proceeded to a two-step process
consisting of: first, the decision, as a matter of policy, to re-impose
the death penalty or not; and second, the vote to pass on the third
reading the bill re-imposing the death penalty for compelling
reasons involving heinous crimes.
On February 15, 1993, after a fierce and fiery exchange of
arguments for and against capital punishment, the Members of the
Senate voted on the policy issue of death penalty. The vote was
explained, thus:
SUSPENSION OF THE RULES
Upon motion of Senator Romulo, there being no
objection, the Body suspended the Rules of the
Senate.
Thereafter, upon motion of Senator Romulo,
there being no objection, the Chair directed that
a nominal voting be conducted on the policy
issue of death penalty.
INQUIRY OF SENATOR TOLENTINO
Asked by Senator Tolentino on how the
Members of the Senate would vote on this policy
question, Senator Romulo stated that a vote of
Yes would mean a vote in favor of death as a
penalty to be reincorporated in the scale of
penalties as provided in the Revised Penal
Code, and a vote of No would be a vote against
the reincorporation of death penalty in the scale
of penalties in the Revised Penal Code.
INQUIRY OF SENATOR ALVAREZ
xxx xxx xxx
The Chair explained that it was agreed upon that
the Body would first decide the question whether
or not death penalty should be reimposed, and
thereafter, a seven-man committee would be
formed to draft the compromise bill in
accordance with the result of the voting. If the
Body decides in favor of the death penalty, the
Chair said that the committee would specify the
crimes on which death penalty would be
imposed. It affirmed that a vote of Yes in the
nominal voting would mean a vote in favor of
death penalty on at least one crime, and that
certain refinements on how the penalty would be
imposed would be left to the discretion of the
seven-man committee.
xxx xxx xxx
INQUIRY OF SENATOR TANADA
In reply to Senator Tanada's query, the Chair
affirmed that even if a senator would vote "yes"
on the basic policy issue, he could still vote "no"
on the imposition of the death penalty on a
particular crime.
REMARKS OF SENATOR TOLENTINO
Senator Tolentino observed that the Body would
be voting on the basic policy issue of whether or
not the death penalty would be included in the
scale of penalties found in Article 27 of the
Revised Penal Code. so that if it is voted down,
the Body would discontinue discussing Senate
Bill No. 891 pursuant to the Rules, but if
approved, a special committee, as agreed upon
in the caucus, is going to be appointed and
whatever course it will take will depend upon the
mandate given to it by the Body later on.
The Chair affirmed Senator Tolentino's
observations.
REMARKS OF SENATOR ROCO
75
 Senator Roco stated that the Body would vote
whether or not death as a penalty will be
reincorporated in the scale of penalties provided
by the Revised Penal Code. However, he
pointed out that if the Body decides in favor of
death penalty, the Body would still have to
address two issues: 1) Is the crime for which the
death penalty is supposed to be imposed
heinous pursuant to the constitutional mandate?
2) And, if so, is there a compelling reason to
impose the death penalty for it? The death
penalty, he stressed, cannot be imposed simply
because the crime is heinous. 28
With seventeen (17) affirmative votes and seven (7)
negative votes and no abstention, the Chair declared that
the Senate has voted to re-incorporate death as a penalty
in the scale of penalties as provided in the Revised Penal
Code. A nine-person committee was subsequently
created to draft the compromise bill pursuant to said vote.
The mandate of the committee was to retain the death
penalty, while the main debate in the committee would be
the determination of the crimes to be considered heinous.
On March 17, 1993, Senator Arturo Tolentino, Chairman of the
Special Committee on the Death Penalty, delivered his Sponsorship
Speech. He began with an explanation as to why the Senate Bill No.
891 re-imposes the death penalty by amending the Revised Penal
Code and other special penal laws and includes provisions that do
not define or punish crimes but serve purposes allied to the re-
imposition of the death penalty. Senator Tolentino stated:
. . . [W]hen the Senate approved the policy of
reimposing the death penalty on heinous crimes
and delegated to the Special Committee the
work of drafting a bill, a compromise bill that
would be the subject for future deliberations of
this Body, the Committee had to consider that
the death penalty was imposed originally in the
Revised Penal Code.
So, when the Constitution was approved in order
to do away with the death penalty, unless
Congress should, for compelling reasons
reimpose that penalty on heinous crimes, it was
obvious that it was the Revised Penal Code that
was affected by that provision of the
Constitution. The death penalty, as provided in
the Revised Penal Code, would be considered
as having been repealed-all provisions on the
death penalty would be considered as having
been repealed by the Constitution, until
Congress should, for compelling reasons,
reimpose such penalty on heinous crimes.
Therefore, it was not only one article but many
articles of the Revised Penal Code that were
actually affected by the Constitution.
And it is in consideration of this consequence of
the constitutional provision that our Special
Committee had to consider the Revised Penal
Code itself in making this compromise bill or text
of the bill. That is why, in the proposed draft now
under consideration which we are sponsoring,
the specific provisions of the Revised Penal
Code are actually either reenacted or amended
or both. Because by the effect of the
Constitution, some provisions were totally
repealed, and they had to be reenacted so that
the provisions could be retained. And some of
them had to be amended because the
Committee thought that amendments were
proper. 29
In response to a query by Senator Gloria Macapagal-
Arroyo as to whether or not it would have been better if the
Senate were to enact a special law which merely defined
and imposed the death penalty for heinous crimes,
Senator Tolentino explicated, thus:
. . . [T]hat may be a way presenting the bill. But
we must bear in mind that the death penalty is
imposed in the Revised Penal Code. Therefore,
when the Constitution abolished the death
penalty, it actually was amending the Revised
Penal Code to such an extent that the
Constitution provides that where the death
penalty has already been imposed but not yet
carried out, then the penalty shall bereclusion
perpetua, that is the penalty in the Revised
Penal Code. So we thought that it would be best
to just amend the provisions of the Revised
Penal Code, restoring the death penalty for
some crimes that may be considered as
heinous. That is why the bill is in this form
amending the provisions of the Revised Penal
Code.
Of course, if some people want to present a
special bill . . . the whole trouble is, when a
special bill is presented and we want to punish
in the special bill the case of murder, for
instance, we will have to reproduce the
provisions of the Revised Penal Code on murder
in order to define the crime for which the death
penalty shall be imposed. Or if we want to
impose the death penalty in the case of
kidnapping which is punished in the Revised
Penal Code, we will do the same — merely
reproduce. Why will we do that? So we just
followed the simpler method of keeping the
definition of the crime as the same and merely
adding some aggravating circumstances and
reimposing the death penalty in these offenses
originally punished in the Revised Penal
Code. 30
From March 17, 1993, when the death penalty bill was presented
for discussion until August 16, 1993, the Members of the Senate
debated on its provisions.
The stiffest opposition thereto was bannered by Senator Lina who
kept prodding the sponsors of the bill to state the compelling reason
for each and every crime for which the supreme penalty of death
was sought. Zeroing in on the statement in the preamble of the
death penalty bill that the same is warranted in the face of "the
alarming upsurge of [heinous] crimes", Senator Lina demanded for
solid statistics showing that in the case of each and every crime in
the death penalty bill, there was a significantly higher incidence of
each crime after the suspension of the death penalty on February 2,
1987 when the 1987 Constitution was ratified by the majority of the
Filipino people, than before such ratification. 31 Inasmuch as the re-
impositionists could not satisfy the abolitionists with sufficient
statistical data for the latter to accept the alarming upsurge of
heinous crimes as a compelling reason justifying the re-imposition
of the death penalty, Senator Lina concluded that there were, in fact,
no compelling reasons therefor. In the alternative, Senator Lina
argued that the compelling reason required by the constitution was
that "the State has done everything in its command so that it can be
justified to use an inhuman punishment called death penalty". 32 The
problem, Senator Lina emphasized, was that even the re-
impositionists admit that there were still numerous reforms in the
criminal justice system that may and must be put in place, and so
clearly, the recourse to the enactment of a death penalty bill was not
in the nature of a last resort, hence, unconstitutional in the absence
of compelling reasons. As an initial reaction to Senator Lina's
contentions, Senator Tolentino explained that the statement in the
preamble is a general one and refers to all the crimes covered by
the bill and not to specific crimes. He added that one crime may not
have the same degree of increase in incidence as the other crimes
and that the public demand to impose the death penalty is enough
compelling reason. 33
Equally fit to the task was Senator Wigberto Tanada to whom the
battle lines were clearly drawn. He put to issue two things: first, the
definition of "heinous crimes" as provided for in the death penalty
bill; and second, the statement of compelling reasons for each and
every capital crime. His interpellation of Senator Tolentino clearly
showed his objections to the bill:
Senator Tanada. . . . But what would make
crimes heinous, Mr. President? Are crimes
heinous by their nature or elements as they are
described in the bill or are crimes heinous
because they are punished by death, as bribery
and malversation are proposed to be punished
in the bill?
76
Senator Tolentino. They are heinous by their
nature, Mr. President, but that is not supposed
to be the exclusive criterion. The nature of the
offense is the most important element in
considering it heinous but at the same time, we
should consider the relation of the offense to
society in order to have a complete idea of the
heinous nature of these offenses.
In the case of malversation or bribery, for
instance, these offenses by themselves
connected with the effect upon society and the
government have made them fall under the
classification of heinous crimes. The compelling
reason for imposing the death penalty is when
the offenses of malversation and bribery
becomes so grave and so serious as indicated
in the substitute bill itself, then there is a
compelling reason for the death penalty.
Senator Tanada. With respect to the compelling
reasons. Mr. President, does the Gentleman
believe that these compelling reasons, which
would call for the reimposition of the death
penalty, should be separately, distinctly and
clearly stated for each crime so that it will be very
clear to one and all that not only are these crimes
heinous but also one can see the compelling
reasons for the reimposition of the death penalty
therefor?
Senator Tolentino. Mr. President that matter was
actually considered by the Committee. But the
decision of the Committee was to avoid stating
the compelling reason for each and every
offense that is included in the substitute
measure. That is why in the preamble, general
statements were made to show these
compelling reasons. And that we believe,
included in the bill, when converted into law,
would be sufficient notice as to what were
considered compelling reasons by the
Congress, in providing the death penalty for
these different offenses.
If a matter like this is questioned before the
Supreme Court, I would suppose that with the
preamble already in general terms, the Supreme
Court would feel that it was the sense of
Congress that this preamble would be applicable
to each and every offense described or
punishable in the measure.
So we felt that it was not necessary to repeat
these compelling reasons for each and every
offense.
Senator Tanada. Mr. President, I am thinking
about the constitutional limitations upon the
power of Congress to enact criminal legislation,
especially the provisions on the Bill of Rights,
particularly the one which says that no person
shall be held to answer for a criminal offense
without due process of law.
Can we not say that under this provision, it is
required that the compelling reasons be so
stated in the bill so that the bill, when it becomes
a law, will clearly define the acts and the
omissions punished as crimes?
Senator Tolentino. Mr. President I believe that in
itself, as substantive law, this is sufficient. The
question of whether there is due process will
more or less be a matter of procedure in the
compliance with the requirements of the
Constitution with respect to due process itself
which is a separate matter from the substantive
law as to the definition and penalty for crimes.
Senator Tanada. Under the Constitution, Mr.
President, it appears that the reimposition of the
death penalty is subject to three conditions and
these are:
1.
Congres
s should
so
provide
such
reimposit
ion of the
death
penalty;
2. There
are
compellin
g
reasons;
and
3. These
involve
heinous
crimes.
Under these provision of the Constitution,
paragraph 1, Section 13, does the distinguished
Gentleman not feel that Congress is bound to
state clearly the compelling reasons for the
reimposition of the death penalty for each crime,
as well as the elements that make each of the
crimes heinous included in the bill?
Senator Tolentino. Mr. President, that is a matter
of opinion already. I believe that whether we
state the compelling reasons or not, whether we
state why a certain offense is heinous, is not very
important. If the question is raised in the
Supreme court, it is not what we say in the bill
that will be controlling but what the Supreme
Court will fell as a sufficient compelling reason
or as to the heinous nature whether the crime is
heinous or not. The accused can certainly raise
the matter of constitutionality but it will not go into
the matter of due process. It will go into the very
power of Congress to enact a bill imposing the
death penalty. So that would be entirely
separate from the matter of due process. 34
Senator Francisco Tatad, on his part, pointed out that the death
penalty bill violated our international commitment in support of the
worldwide abolition of capital punishment, the Philippines being a
signatory to the International Covenant on Civil and Political Rights
and its Second Optional Protocol. Senator Ernesto Herrera clarified,
however, that in the United Nations, subject matters are submitted
to the different committees which vote on them for consideration in
the plenary session. He stressed that unless approved in the
plenary session, a declaration would have no binding effect on
signatory countries. In this respect, the Philippines cannot be
deemed irrevocably bound by said covenant and protocol
considering that these agreements have reached only the
committee level.35
After the protracted debate, the Members of the Senate voted on
Senate Bill No. 891 on third reading. With seventeen (17) affirmative
votes, four (4) negative votes, and one abstention, the death penalty
bill was approved on third reading on August 16, 1993.
The Senate's vote to pass Senate Bill No. 891 on third reading on
August 16, 1993 was a vindication of, the House of Representatives.
The House had, in the Eight Congress, earlier approved on third
reading House Bill No. 295 on the restoration of the death penalty
for certain heinous crimes. The House was in effect rebuffed by the
Senate when the Senate killed House Bill No. 295 along with other
bills coming from the House. House Bill No. 295 was resurrected
during the Ninth Congress in the form of House Bill No. 62 which
was introduced by twenty one (21) Members of the House of
Representatives on October 27, 1992. House Bill No. 62 was a
merger of House Bill Nos. 125, 187, 411, 764, 506, 781, 955, 1565,
1586, 2206, 3238, 3576 and 3632 authored by various Members of
the Lower House.
77
In his Sponsorship Speech, Representative Manuel R. Sanchez of
Rizal ably essayed the constitutional vesting in Congress of the
power to re-impose the death penalty for compelling reasons
invoking heinous crimes as well as the nature of this constitutional
pre-requisite to the exercise of such power.
"Mr. Speaker, in Article III, Section 19(1) of Constitution reads, a I
quote:
Neither shall death penalty be imposed, unless,
for compelling reasons involving heinous crimes,
the Congress shall thereafter provide for it. . .
The phrase "unless, for compelling reasons
involving heinous crimes, the Congress shall
thereafter provide for it was introduced as an
amendment by then Comm. Christian Monsod.
The import of this amendment is unmistakable.
By this amendment, the death penalty was not
completely abolished by the 1987 Constitution.
Rather, it merely suspended the death penalty
and gave Congress the discretion to review it at
the propitious time.
Arguing for the inclusion of said amendment in
the fine provision, Comm. Ricardo Romulo said,
and I quote:
"The people should have the
final say on the subject,
because, at some future
time, the people might want
to restore death penalty
through initiative and
referendum.
Commissioner Monsod further argued, and I
quote:
We cannot presume to have
the wisdom of the ages.
Therefore, it is entirely
possible in the future that
circumstances may arise
which we should not
preclude today.
xxx xxx xxx
I believe that [there] are enough compelling
reasons that merit the reimposition of the capital
punishment. The violent manner and the
viciousness in which crimes are now committed
with alarming regularity, show very clearly a
patent disregard of the law and a mockery of
public peace and order.
In the public gallery section today are the
relatives of the vict ims of heinous crimes — the
Hultmans, the Maguans, the Vizcondes, the
Castanoses, and many more, and they are all
crying for justice. We ought to listen to them
because their lives, their hopes, their dreams,
their future have fallen asunder by the cruel and
vicious criminality of a few who put their selfish
interest above that of society.
Heinous crime is an act or series of acts which,
by the flagrantly violent manner in which the
same was committed or by the reason of its
inherent viciousness, shows a patent disregard
and mockery of the law, public peace and order,
or public morals. It is an offense whose essential
and inherent viciousness and atrocity are
repugnant and outrageous to a civilized society
and hence, shock the moral self of a people.
Of late, we are witness to such kind of barbaric
crimes.
The Vizconde massacre that took the lives of a
mother and her two lovely daughters, will stand
in the people's memory for many long years as
the epitome of viciousness and atrocity that are
repugnant to civilized society.
The senseless murder of Eldon Maguan, and
up-and-coming young business executive, was
and still is an outrage that shocks the moral self
of our people.
The mind-boggling death of Maureen Hultmann,
a comely 16 year-old high school student who
dreamt of becoming a commercial model
someday, at the hands of a crazed man was so
repulsive, so brutal that it offends the
sensibilities of Christians and non-Christians
alike.
The cold-blooded double murder of Cochise
Bernabe and Beebom Castanos, the lovely and
promising couple from the University of the
Philippines, is eternally lodged in the recesses of
our minds and still makes our stomach turn in
utter disgust.
xxx xxx xxx
The seriousness of the situation is such that if no
radical action is taken by this body in restoring
death penalty as a positive response to the
overwhelming clamor of the people, then, as
Professor Esteban Bautista of the Philippine
Law Center said and I quote:
"When people begin to
believe that organized
society is unwilling or unable
to impose upon criminal
offenders the punishment
they deserve, there are sown
the seeds of anarchy — of
self-help, of vigilante justice
and lynch law. The people
will take the law upon their
hands and exact vengeance
in the nature of personal
vendetta."
It is for this reason, Mr. Speaker, that I stand
here and support House Bill No. 62.
As duly elected Representatives of our people,
collectively, we ought to listen to our
constitutents and heed their plea — a plea for
life, liberty and pursuit of their happiness under
a regime of justice and democracy, and without
threat that their loves ones will be kidnapped,
raped or butchered.
But if such a misfortune befalls them, there is the
law they could rely on for justice. A law that will
exact retribution for the victims. A law that will
deter future animalistic behavior of the criminal
who take their selfish interest over and above
that of society. A law that will deal a deathblow
upon all heinous crimes.
Mr. Speaker, my distinguished colleagues, for
the preservation of all that we hold dear and
sacred, let us retore the death penalty. 36
A studious comparison of the legislative proceedings in the Senate
and in the House of Representatives reveals that, while both
Chambers were not wanting of oppositors to the death penalty, the
Lower House seemed less quarrelsome about the form of the death
penalty bill as a special law specifying certain heinous crimes
without regard to the provisions of the Revised penal Code and
more unified in the perception of what crimes are heinous and that
the fact of their very heinousness involves the compulsion and the
imperative to suppress, if not completely eradicate, their
occurrence. Be it the foregoing general statement of Representative
78
Sanchez or the following details of the nature of the heinous crimes
enumerated in House Bill No. 62 by Representative Miguel L.
Romero of Negros Oriental, there was clearly, among the hundred
or so re-impositionists in the Lower House, no doubt as to their
cause:
My friends, this bill provides for the imposition of
the death penalty not only for the importation,
manufacture and sale of dangerous drugs, but
also far other heinous crimes such as reason;
parricide; murder; kidnapping; robbery; rape as
defined by the Revised Penal Code with or
without additionally defined circumstances;
plunder, as defined in R.A. 7080; piracy, as
defined under Section 2 of PD 532: carnapping,
as defined in Section 2 of RA 6539, when the
owner, driver or occupant is killed; hijacking as
defined in . . . RA 6235; and arson resulting in
the death of any occupants.
All these crimes have a common denominator
which qualifies them to the level of heinous
crimes. A heinous crime is one which by reason
of its inherent or manifest wickedness,
viciousness, atrocity or perversity, is repugnant
and outrageous to the common standards of
decency and morality in a just and civilized
society.
For instance, the crime of treason is defined as
a breach of allegiance to a government,
committed by a person who owes allegiance to
it (U.S. v. Abad I Phil. 437). By the "allegiance"
is meant the obligation of fidelity and obedience
which individuals owe to the government under
which they live or to their sovereign in return for
the protection which they receive (52 Arm Jur
797).
In kidnapping, the though alone of one's loved
one being held against his or her own will in
some unidentified xxx house by a group of
scoundrels who are strangers is enough terrify
and send shivers of fear through the spine of any
person, even scoundrels themselves.
In robbery accompanied by rape, intentional
mutilation or arson, what is being punished by
death is the fact that the perpetrator, at the time
of the commission of the crime, thinks nothing of
the other crime he commits and sees it merely
as a form of self-amusement. When a homicide
is committed by reason of the robbery, the
culprits are perceived as willing to take human
life in exchange for money or other personal
property.
In the crime of rape, not only do we speak of the
pain and agony of the parents over the personal
shock and suffering of their child but the stigma
of the traumatic and degrading incident which
has shattered the victim's life and permanently
destroyed her reputation, not to mention the
ordeal of having to undergo the shameful
experience of police interrogation and court
hearings.
Piracy, which is merely a higher form of robbery,
is punished for the universal hostility of the
perpetrators against their victims who are
passengers and complement of the vessel, and
because of the fact that, in the high seas, no one
may be expected to be able to come to the
rescue of the helpless victims. For the same
reason, Mr. Speaker, the crime of air piracy is
punished due to the evil motive of the hijackers
in making unreasonable demands upon the
sovereignty of an entire nation or nations,
coupled with the attendant circumstance of
subjecting the passengers to terrorism. 37
The debate on House Bill No. 62 lasted from October 27, 1992 to
February 11, 1993. On February 11, 1993, the Members of the
House of Representatives overwhelmingly approved the death
penalty bill on second reading.
On February 23, 1993, after explaining their votes, the Members of
the House of Representatives cast their vote on House Bill No. 62
when it was up for consideration on third reading. 38 The results
were 123 votes in favor, 26 votes against, and 2 abstentions.
After the approval on third reading of House Bill No. 62 on February
23, 1993 and of Senate Bill No. 891 on August 16, 1993, the
Bicameral Conference Committee convened to incorporate and
consolidate them.
On December 31, 1993, Republic Act (R.A.) No. 7659, entitled, "An
Act to Impose the Death Penalty on Certain Heinous Crimes,
Amending for that Purpose the Revised Penal Code, as Amended,
Other Special Penal Laws, and for Other Purposes," took effect. 39
Between December 31, 1993, when R.A No. 7659 took effect, and
the present time, criminal offenders have been prosecuted under
said law, and one of them, herein accused-appellant has been,
pursuant to said law, meted out the supreme penalty of death for
raping his ten-year old daughter. Upon his conviction his case was
elevated to us on automatic review. On June 25, 1996, we affirmed
his conviction and the death sentence.
Now, accused-appellant comes to us in the heels of this court's
affirmation of his death sentence and raises for the first time the
issue of the constitutionality of R.A. 7659. His thesis is two-fold: (1)
that the death penalty law is unconstitutional per se for having been
enacted in the absence of compelling reasons therefor; and (2) that
the death penalty for rape is a cruel, excessive and inhuman
punishment in violation of the constitutional proscription against
punishment of such nature.
We reject accused-appellant's proposition.
Three justices interposed their dissent hereto, agreeing with
accused-appellant's view that Congress enacted R.A No. 7659
without complying with the twin requirements of compelling reasons
and heinous crimes.
At this juncture, the detailed events leading to the enactment of R.A.
No. 7659 as unfurled in the beginning of this disquisition,
necessarily provide the context for the following analysis.
Article III, Section 19 (1) of the 1987 Constitution plainly vests in
Congress the power to re-impose the death penalty "for compelling
reasons involving heinous crimes". This power is not subsumed in
the plenary legislative power of Congress, for it is subject to a clear
showing of "compelling reasons involving heinous crimes."
The constitutional exercise of this limited power to re-impose the
death penalty entails (1) that Congress define or describe what is
meant by heinous crimes; (2) that Congress specify and penalize by
death, only crimes that qualify as heinous in accordance with the
definition or description set in the death penalty bill and/or designate
crimes punishable by reclusion perpetua to death in which latter
case, death can only be imposed upon the attendance of
circumstances duly proven in court that characterize the crime to be
heinous in accordance with the definition or description set in the
death penalty bill; and (3) that Congress, in enacting this death
penalty bill be singularly motivated by "compelling reasons involving
heinous crimes."
In the second whereas clause of the preamble of R.A. No. 7659, we
find the definition or description of heinous crimes. Said clause
provides that:
. . . the crimes punishable by death under this
Act are heinous for being grievous, odious and
hateful offenses and which, by reason of their
inherent or manifest wickedness, viciousness,
atrocity and perversity are repugnant and
outrageous to the common standards and norms
of decency and morality in a just civilized and
ordered society.
Justice Santiago Kapunan, in his dissenting opinion
in People v. Alicando, 40 traced the etymological root of
the word "heinous" to the Early Spartans' word, "haineus",
79
 meaning hateful and abominable, which in turn, was from on the
the Greek prefix "haton", denoting acts so hatefully or victim or
shockingly evil. threats to
kill him
We find the foregoing definition or description to be a sufficient were
criterion of what is to be considered a heinous crime. This criterion made;
is deliberately undetailed as to the circumstances of the victim, the and (d) if
accused, place, time, the manner of commission of crime, its the victim
proximate consequences and effects on the victim as well as on is a
society, to afford the sentencing authority sufficient leeway to minor,
exercise his discretion in imposing the appropriate penalty in cases except
where R.A. No 7659 imposes not a mandatory penalty of death but when the
accused
the more flexible penalty of reclusion perpetua to death.
is any of
the
During the debates on the proposed death penalty bill, Senators parents,
Lina and Tañada grilled the sponsors of the bill as regards what they female or
perceived as a mere enumeration of capital crimes without a a public
specification of the elements that make them heinous. They were officer
oblivious to the fact that there were two types of crimes in the death (Sec. 8);
penalty bill: first, there were crimes penalized by reclusion
perpetua to death; and second, there were crimes penalized by
mandatory capital punishment upon the attendance of certain (7)
specified qualifying circumstances. Robbery
with
homicide
Under R.A. No. 7659, the following crimes are penalized , rape or
by reclusion perpetua to death: intention
al
(1) mutilatio
Treason n (Sec.
(Sec. 2); 9);

(2) (8)
Qualified Destructi
piracy ve arson
(Sec. 3); if what is
burned is
(a) one or
(3) more
Parricide buildings
(Sec. 5); or
edifice;
(4) (b) a
Murder building
(Sec. 6); where
people
usually
(5) gather;
Infanticid (c) a
e (Sec. train,
7); ship or
airplane
(6) for public
Kidnappi use: (d) a
ng and building
serious or factory
illegal in the
detention service of
if public
attended utilities:
by any of (e) a
the building
following for the
four purpose
circumst of
ances: concealin
(a) the g or
victim destroyin
was g
detained evidence
for more of a
than crime: (f)
three an
days; (6) arsenal,
it was fireworks
committe factory,
d or
simulatin governm
g public ent
authority; museum:
(c) and (g) a
serious storehou
physical se or
injuries factory of
were explosive
inflicted materials
80
located in d drugs
an (id.);
inhabited
place; or
(14)
regardles Manufact
s of what ure of
is burned prohibite
if the d drugs
arson is (id.);
perpetrat
ed by two
or more (15)
persons( Possessi
Sec. 10); on or use
of
prohibite
(9) Rape d drugs
attended
in certain
by any of specified
the
amounts
following (id.)
circumst
ances:
(a) the (16)
rape is Cultivatio
committe n of
d with a plants
deadly which are
weapon; sources
(b) the of
rape is prohibite
committe d drugs
d by two (id.)
or more
persons: (17)
and (c) Importati
the rape on of
is regulated
attempte drugs
d or (Sec. 1J):
frustrated
and
committe (18)
d with Manufact
homicide ure of
(Sec. regulated
11); drugs
(id.);
(10)
Plunder (19)
involving Sale,
at least administr
P50 ation,
million(S dispensa
ec. 12); tion,
delivery,
transport
(11) ation,
Importati and
on of distributi
prohibite on of
d drugs regulated
(Sec. drugs
13), (id.):

(12) (20)
Sale, Maintena
administr nce of
ation den,
delivery, dive, or
distributi resort for
on, and users of
transport regulated
ation of drugs
prohibite (Sec.
d drugs 15),
(id.);
(21)
(13) Possessi
Maintena on or use
nce of of
den, dive regulated
or resort drugs in
for users specified
of amounts
prohibite

81
 (Sec. come punishable by reclusion perpetua and/or
16); death in consideration of any offer, promise, gift
or present, he shall suffer the penalty for the
offense which was not prosecuted
(22)
Misappro
priation, If it is the public officer who asks or demands
misapplic such gift or present, he shall suffer the penalty of
ation or death. (Sec. 4)
failure to
account (2) Kidnapping and serious illegal detention for
dangerou ransom resulting in the death of the victim or the
s drugs victim is raped tortured or subjected to
confiscat dehumanizing acts
ed by the
arresting
officer "The penalty shall be death where the
(Sec. kidnapping or detention was committed for the
17); purpose of ransom from the victim or any other
person, even if none of the circumstances
above-mentioned were present in the
(23) commission of the offense.
Planting
evidence
of When the victim is killed or dies as a
dangerou consequence of the detention " is raped, or is
s drugs in subject to torture or dehumanizing acts, the
person or maximum penalty [of death] shall be imposed.
immediat (Sec. 8)
e vicinity
of (3) Destructive arson resulting in death
another
to
implicate "If as a consequence of the commission of any
the latter of the acts penalized under this Article, death
(Sec. results, the mandatory penalty of death shall be
19); and imposed." (Sec. 10)

(24) (4) Rape with the victim becoming insane, rape

Carnappi
ng where
the
owner,
driver or
occupant
of the
carnappe
d motor
vehicle is
killed or
raped
(Sec.
20).
All the foregoing crimes are not capital crimes per se, the
uniform penalty for all of them being not mandatory death
but the flexible penalty of reclusion perpetua to death. In
other words, it is premature to demand for a specification
of the heinous elements in each of the foregoing crimes
because they are not anyway mandatorily penalized with
death. The elements that call for the imposition of the
supreme penalty of death in these crimes, would only be
relevant when the trial court, given the prerogative to
imposereclusion perpetua, instead actually imposes the
death penalty because it has, in appreciating the evidence
proffered before it, found the attendance of certain
circumstances in the manner by which the crime was
committed, or in the person of the accused on his own or
in relation to the victim, or in any other matter of
significance to the commission of the crime or its effects
on the victim or on society, which circumstances
characterize the criminal acts as grievous, odious, or
hateful, or inherently or manifestly wicked, vicious,
atrocious or perverse as to be repugnant and outrageous
to the common standards and norms of decency and
morality in a just, civilized and ordered society.
On the other hand. under R.A. No 7659, the mandatory penalty of
death is imposed in the following crimes:
(1) Qualified bribery
"If any public officer is entrusted with law
enforcement and he refrains from arresting or
prosecuting an offender who has committed a
with homicide and qualified rape
"When by reason or on the occasion of the rape,
the victim has become insane, the penalty shall
be death.
xxx xxx xxx
When by reason or on the occasion of the rape,
a homicide is committed, the penalty shall be
death.
The death penalty shall also be Imposed if the
crime of rape is committed with any of the
following attendant circumstances:
1. When the victim is under eighteen (18) years
of age and the offender is parent, ascendant,
step-parent, guardian, relative by consanguinity
or affinity within the third civil degree, or the
common-law spouse of the parent of the victim.
2. when the victim is under the custody of the
police or military authorities.
3. when the rape is committed in full new of the
husband, parent, any of the children or other
relatives within the third degree of
consanguinity.
4. when the victim is a religious or a child below
seven (7) years old.
5. when the offender that he is afflicted with
Acquired Immune Deficiency Syndrome (AIDS)
disease.
6. when committal by any member of the Armed
Forces of the Philippines or the Philippine
National Police or any law enforcement agency.
7. when by reason or on the occasion of the
rape, the victim has suffered permanent physical
mutilation. (Sec. 11)
82
(5) Sale, administration, delivery, distribution
and transportation of prohibited drugs where the
victim is a minor or the victim dies
"Notwithstanding, the provision of Section 20 of
this Act to the contrary, if the victim of the offense
is a minor, or should a prohibited drug involved
in any offense under this Section be the
proximate cause of the death of victim thereof;
the maximum penalty [of death] herein provided
shall be imposed." (Sec. 13)
(6) Maintenance of den, dive, or resort for users
of prohibited drugs where the victim is a minor or
the victim dies
"Notwithstanding the provisions of Section 20 of
this Act to the contrary, the maximum of the
penalty (of death) shall be imposed in every
case where a prohibited drug is administered,
delivered or sold to a minor who is allowed to use
the same in such place.
Should a prohibited drug be the proximate case
of the death of a person using the same in such
den, dive or resort, the maximum penalty herein
provided shall be imposed on the maintainer
notwithstanding the provisions of Section 20 of
this Act to the contrary." (Sec. 13)
(7) Sale, administration, dispensation, delivery,
distribution and transportation of regulated drugs
where the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of
this Act to the contrary, if the victim of the offense
is a minor, or should a regulated drug involved
in any offense under this Section be the
proximate cause of the death of a victim thereof,
the maximum penalty [of death] herein provided
shall be imposed." (Sec. 14)
(8) Maintenance of den, dive. or resort for users
of regulated drugs where the victim is a minor or
the victim dies
'Notwithstanding the provisions of Section 20 of
this Act to the contrary, the maximum penalty [of
death] herein provided shall be imposed in every
case where a regulated drug is administered,
delivered or sold to a minor who is allowed to use
the same in such place.
Should a regulated drug be the proximate cause
of death of a person using the same in such den,
dive or resort, the maximum penalty herein
provided shall be imposed on the maintainer
notwithstanding the provisions of Section 20 of
this Act to the contrary." (Sec. 15)
(9) Drug offenses if convicted are government
officials, employees or officers including
members of police agencies and armed forces
"The maximum penalties [of death] provided for
in Section 3, 4 (1), 5 (1 ), 6, 7, 8. R, 9 1 1, 12 and
13 of Article II and Sections 14, 14-A, 14 ( 1),
15A (1), 16, and 19 of Article III [of the
Dangerous Drugs Act of 1972] shall be imposed,
if those found guilty of any of the same offenses
are government officials, employees or officers
including members of police agencies and the
armed forces. " (Sec. 19)
(10) Planting of dangerous drugs as evidence in
drug offenses with the mandatory death penalty
if convicted are government officials, employees
or officers
"Any such above government official, employee
or officer who is round guilty of planting any
dangerous drugs punished in Section s 3, 4, 7,
8, 9 and 13 of Article II and Sections 14, 14-A,
15, and 16 of Article III (of the Dangerous Drugs
Act of 1972) in the person or in the immediate
vicinity of another as evidence to implicate the
latter, shall suffer the same penalty as therein
provided." (Sec. 19)
(11) In all the crimes in RA. No. 7659 in their
qualified form
"When in the commission of the crime,
advantage was taken by the offends of his public
position, the penalty to be imposed shall be in its
maximum [of death] regardless of mitigating
circumstances.
The maximum penalty [of death] shall be
imposed if the offense was committed by any
person who belongs to an organized/syndicated
crime group.
An organized/syndicated crime group means a
group of two or more persons collaborating,
confederating or mutually helping one another
for purposes of gain in the commission of any
crime." (Sec. 23)
It is specifically against the foregoing capital crimes that the test of
heinousness must be squarely applied.
The evil of a crime may take various forms. There are crimes that
are, by their very nature, despicable, either because life was
callously taken or the victim is treated like an animal and utterly
dehumanized as to completely disrupt the normal course of his or
her growth as a human being. The right of a person is not only to
live but to live a quality life, and this means that the rest of society
is obligated to respect his or her individual personality, the integrity
and the sanctity of his or her own physical body, and the value he
or she puts in his or her own spiritual, psychological, material and
social preferences and needs. Seen in this light, the capital crimes
of kidnapping and serious illegal detention for ransom resulting in
the death of the victim or the victim is raped, tortured, or subjected
to dehumanizing acts; destructive arson resulting in death; and drug
offenses involving minors or resulting in the death of the victim in
the case of other crimes; as well as murder, rape, parricide,
infanticide, kidnapping and serious illegal detention where the victim
is detained for more than three days or serious physical injuries
were indicted on the victim or threats to kill him were made or the
victim is a minor, robbery with homicide rape or intentional
mutilation, destructive arson, and carnapping where the owner,
driver or occupant of the carnapped vehicle is killed or raped, which
are penalized by reclusion perpetua to death, are clearly heinous by
their very nature.
There are crimes, however, in which the abomination lies in the
significance and implications of the subject criminal acts in the
scheme of the larger socio-political and economic context in which
the state finds itself to be struggling to develop and provide for its
poor and underprivileged masses. Reeling from decades of corrupt
tyrannical rule that bankrupted the government and impoverished
the population, the Philippine Government must muster the political
will to dismantle the culture of corruption dishonesty, greed and
Syndicated criminality that so deeply entrenched itself in the
structures of society and the psyche of the populace. Terribly
lacking the money to provide even the most basic services to its
people, any form of misappropriation or misapplication of
government funds translates to an actual threat to the very
existence of government, and in turn, the very survival of the people
it governs over. Viewed in this context, no less heinous are the
effects and repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses involving
government officials, employees or officers, that their perpetrators
must not be allowed to cause further destruction and damage to
society.
We have no doubt, therefore, that insofar as the element of
heinousness is concerned, R.A. No. 7659 has correctly identified
crimes warranting the mandatory penalty of death. As to the other
crimes in R.A No 7659 punished by reclusion perpetua to death,
they are admittingly no less abominable than those mandatorily
penalized by death. The proper time to determine their heinousness
in contemplation of law, is when on automatic review, we are called
83
to pass on a death Sentence involving crimes punishable
by reclusion perpetua to death under R.A. No. 7659, with the trial
court meting out the death sentence in exercise of judicial discretion.
This is not to say, however, that the aggravating circumstances
under the Revised Penal Code need be additionally alleged as
establishing the heinousness of the crime for the trial Court to validly
impose the death penalty in the crimes under R.A. No. 7659 which
are punished with the flexible penalty of reclusion perpetua to death.
In the first place, the 1987 Constitution did not amend or repeal the
provisions of the Revised Penal Code relating to aggravating
circumstances Secondly, R.A. No. 7659, while it specifies
circumstances that generally qualify a crime provided therein to be
punished by the maximum penalty of death, neither amends nor
repeals the aggravating circumstances under the Revised Penal
Code. Thus, construing R.A. No. 7659 in pari materia with the
Revised Penal Code, death may be imposed when (1) aggravating
circumstances attend the commission of the crime as to make
operative the provision of the Revised Penal Code regarding the
imposition of the maximum penalty; and (2) other circumstances
attend the commission of the crime which indubitably characterize
the same as heinous in contemplation of R.A. No. 7659 that justify
the imposition of death, albeit the imposable penalty isreclusion
perpetua to death. Without difficulty, we understand the rationale for
the guided discretion granted in the trial court to cognize
circumstances that characterize the commission of the crime as
heinous. Certainly there is an infinity of circumstances that may
attend the commission of a crime to the same extent that there is no
telling the evil that man is capable of. The legislature cannot and
need not foresee and inscribe in law each and every loathsome act
man is capable of. It is sufficient thus that R.A. No. 7659 provides
the test and yardstick for the determination of the legal situation
warranting the imposition of the supreme penalty of death. Needless
to say, we are not unaware of the ever existing danger of abuse of
discretion on the part of the trial court in meting out the death
sentence. Precisely to reduce to nil the possibility of executing an
innocent man or one criminal but not heinously criminal, R.A. No.
7659 is replete with both procedural and substantive safeguards
that ensure only the correct application of the mandate of R.A. No.
7659.
In the course of the congressional debates on the constitutional
requirement that the death penalty be re-imposed for compelling
reasons involving heinous crimes, we note that the main objection
to the death penalty bill revolved around the persistent demand of
the abolitionists for a statement of the compelling reason in each
and every heinous crime and statistical proof that such compelling
reason actually exists.
We believe, however, that the elements of heinousness and
compulsion are inseparable and are, in fact, interspersed with each
other. Because the subject crimes are either so revolting and
debasing as to violate the most minimum of the human standards of
decency or its effects, repercussions, implications and
consequences so destructive, destabilizing, debilitating, or
aggravating in the context of our socio-political and economic
agenda as a developing nation, these crimes must be frustrated,
curtailed and altogether eradicated. There can be no its or buts in
the face of evil, and we cannot afford to wait until we rub elbows with
it before grasping it by the ears and thrashing it to its demission.
The abolitionists in congress insisted that all criminal reforms first
be pursued and implemented before the death penalty be re-
imposed in case such reforms prove unsuccessful They claimed
that the only compelling reason contemplated of by the constitution
is that nothing else but the death penalty is left for the government
to resort to that could check the chaos and the destruction that is
being caused by unbridled criminality. Three of our colleagues, are
of the opinion that the compelling reason required by the constitution
is that there occurred a dramatic and significant change in the socio-
cultural milieu after the suspension of the death penalty on February
2, 1987 such as an unprecedented rise in the incidence of
criminality. Such are, however, interpretations only of the phrase
"compelling; reasons" but not of the conjunctive phrase "compelling
reasons involving heinous crimes". The imposition of the
requirement that there be a rise in the incidence of criminality
because of the suspension of the death penalty, moreover, is an
unfair and misplaced demand, for what it amounts to, in fact, is a
requirement that the death penalty first proves itself to be a truly
deterrent factor in criminal behavior. If there was a dramatically
higher incidence of criminality during the time that the death penalty
was suspended, that would have proven that the death penalty was
indeed a deterrent during the years before its suspension. Suffice it
to say that the constitution in the first place did not require that the
death penalty be first proven to be a deterrent; what it requires is
that there be compelling reasons involving heinous crimes.
Article III, Section 19(1) of the 1987 Constitution simply states that
congress, for compelling reasons involving heinous crimes, may re-
impose the death penalty. Nothing in the said provision imposes a
requirement that for a death penalty bill to be valid, a positive
manifestation in the form of a higher incidence of crime should first
be perceived and statistically proven following the suspension of the
death penalty. Neither does the said provision require that the death
penalty be resorted to as a last recourse when all other criminal
reforms have failed to abate criminality in society It is immaterial and
irrelevant that R.A. No. 7659 cites that there has been an "alarming
upsurge of such crimes", for the same was never intended by said
law to be the yardstick to determine the existence of compelling
reasons involving heinous crimes. Fittingly, thus, what R.A. No.
7659 states is that "the Congress, in the interest of justice, public
order and rule of law, and the need to rationalize and harmonize the
penal sanctions for heinous crimes, finds compelling reasons to
impose the death penalty for said crimes."
We now proceed to answer accused-appellant's other ground for
attacking the constitutionality of R.A. No. 7659,i.e., that the death
penalty imposed in rape is violative of the constitutional proscription
against cruel, degrading or inhuman punishment.
Accused-appellant first claims that the death penalty is per se a
cruel, degrading or inhuman punishment as ruled by the United
States (U.S.) Supreme Court in Furman v. Georgia. 41 To state,
however, that the U.S. Supreme Court, in Furman, categorically
ruled that the death penalty is a cruel, degrading or inhuman
punishment, is misleading and inaccurate.
The issue in Furman was not so much death penalty itself but the
arbitrariness pervading the procedures by which the death penalty
was imposed on the accused by the sentencing jury. Thus, the
defense theory in Furmancentered not so much on the nature of the
death penalty as a criminal sanction but on the discrimination
against the black accused who is meted out the death penalty by a
white jury that is given the unconditional discretion to determine
whether or not to impose the death penalty. In fact, the long road of
the American abolitionist movement leading to the landmark case
of Furman was trekked by American civil rights advocates zealously
fighting against racial discrimination. Thus, the U.S. Supreme Court
stated in Furman:
We cannot say from facts disclosed in these
records that these defendants were sentenced
to death because they were black. Yet our task
is not restricted to an effort to divine what
motives impelled these death penalties. Rather,
we deal with a system of law and of justice that
leaves to the uncontrolled discretion of judges or
juries the determination whether defendants
committing these crimes should die . . . .
xxx xxx xxx
In a Nation committed to equal protection of the
laws there is no permissible caste' aspect of law
enforcement. Yet we know that the discretion of
judges and juries in imposing the death penalty
enables the penalty to be selectively applied
feeding prejudices against the accused if he is
poor and despised . . .
xxx xxx xxx
Thus, these discretionary statutes are
unconstitutional in their operation. They are
pregnant with discrimination and discrimination
is an ingredient not compatible with the idea of
equal protection of the laws that is implicit in the
ban on cruel and unusual punishments.
Furman, thus, did not outlaw the death penalty because it was cruel
and unusual per se. While the U.S. Supreme Court nullified all
discretionary death penalty statutes in Furman, it did so because the
discretion which these statutes vested in the trial judges and
sentencing juries was uncontrolled and without any parameters,
guidelines, or standards intended to lessen, if not altogether
eliminate, the intervention of personal biases, prejudices and
84
discriminatory acts on the part of the trial judges and sentencing
juries.
Consequently, in the aftermath of Furman when most of the states
re-enacted their death penalty statutes now bearing the procedural
checks that were required by the U.S. Supreme Court, said court
affirmed the constitutionality of the new death penalty statutes in the
cases of Gregg v. Georgia, 42 Jurek v.
Texas, 43 and Profitt v. Florida 44.
Next, accused-appellant asseverates that the death penalty is a
cruel, inhuman or degrading punishment for the crime of rape mainly
because the latter, unlike murder, does not involve the taking of life.
In support of his contention, accused-appellant largely relies on the
ruling of the U.S. Supreme Court in Coker v. Georgia. 45
In Coker, the U.S Supreme Court ruled as follows:
. . . It is now settled that the death penalty is not
invariably cruel and punishment within the
meaning of Eight Amendment; it is not inherently
unacceptable mode of punishment for crime;
neither is it always disproportionate to the crime
for which it is imposed. It is also established that
imposing capital punishment at least for murder,
in accordance with the procedures provided
under the Georgia Statutes saves the sentence
from the infirmities which led the Court to
invalidate the prior Georgia capital punishment
statute in Furman v. Georgia . . .
xxx xxx xxx
In Gregg [v. Georgia] . . . the Court's judgment
was that the death penalty for deliberate murder
was neither the purposeless Imposition of
severe punishment nor a punishment grossly
disproportionate to the crime. But the Court
reserved the question of the constitutionality of
the death penalty when imposed for other
crimes. . . .
That question, with respect to rape of an adult
woman, is now before us.
xxx xxx xxx
. . . [T]he public judgment with respect to rape.
as reflected in the statutes providing the
punishment for that crime, has been dramatically
different. In reviving death penalty laws to satisfy
Furman's mandate, none of the states that had
not previously authorized death for rape chose
to include rape among capital felonies. Of the 16
States in which rape had been a capital offense,
only three provided the death penalty for rape of
an adult woman in their revised statutes-
Georgia, North Carolina and Louisiana. In the
latter two States, the death penalty was
mandatory for those found guilty, and those laws
were invalidated by Woodson and Roberts.
When Louisiana and North Carolina respondent
to those decisions, again revised their capital
punishment laws, they reenacted the death
penalty for murder but not for rape; none of the
seven other legislatures that to our knowledge
have amended or replaced their death penalty
statutes since July 2, 1976, including four States
(in addition to Louisiana and North Carolina) that
had authorized the death sentence for rape prior
to 1972 and had reacted to Furman with
mandatory statutes, included rape among the
crimes for which death was an authorized
punishment.
xxx xxx xxx
It should be noted that Florida. Mississippi, and
Tennessee also authorized the death penalty in
some rape cases, but only where the victim was
a child and the rapist an adult. the Tennessee
statute has since been invalidated because the
death sentence was mandatory. x x x The
upshot is that Georgia is the sole jurisdiction in
the United States at the present time that
authorizes a sentence of death when the rape
victim is an adult woman, and only two other
jurisdictions provide capital punishment when
the victim is a child.
The current judgment with respect to the death
penalty for rape is not wholly unanimous among
state legislatures, but it obviously weighs very
heavily on the side of rejecting capital
punishment as a suitable penalty for raping an
adult woman.
. . . [T]he legislative rejection of capital
punishment for rape strongly confirms our own
judgment, which is that death is indeed a
disproportionate penalty for the crime of raping
an adult woman.
We do not discount the seriousness of rape as a
crime. It is highly reprehensible, both in a moral
sense and in its almost total contempt for the
personal integrity and autonomy of the female
victim and for the latter's privilege of choosing
those with whom intimate relationships are to be
established. Short of homicide, it is the ultimate
violation of self. It is also a violent crime because
it normally involves force, or the threat of force
or intimidation, to over come the will and the
capacity of the victim to resist. Rape is very often
accompanied by physical injury to the female
and can also inflict mental and psychological
damage. Because it undermines the
community's sense of security. there is public
injury as well.
Rape is without doubt deserving of serious
punishment; but in terms of moral depravity and
of the injury to the person and to the public. it
does not compare with murder, which does
involve the unjustified taking of human life.
Although it may be accompanied by another
crime, rape by definition does not include the
death of or even the serious injury to another
person. The murderer kills; the rapist, if no more
than that does not. Life is over for the victim of
the murderer; for the rape victim, life may not be
nearly so happy as it was, but it is not over and
normally is not beyond repair. We have the
abiding conviction that the death penalty, which
"is unique in its severity and irrevocability" . . . is
an excessive penalty for the rapist who, as such
does not take human life.
The U.S. Supreme Court based its foregoing ruling on two grounds:
first, that the public has manifested its rejection of the death penalty
an a proper punishment for the crime of rape through the willful
omission by the state legislatures to include rape in their in the
aftermath of Furman; and second, that rape, while concededly a
dastardly contemptuous violation of a woman's spiritual integrity,
physical privacy, and psychological balance, does not involve the
taking of life.
Anent the first ground, we fail to see how this could have any bearing
on the Philippine experience and in the context of our own culture.
Anent the second ground, we disagree with the court's predicate
that the gauge of whether or not a crime warrants the death penalty
or not, is the attendance of the circumstance of death on the part of
the victim. Such a premise is in fact an ennobling of the biblical
notion of retributive justice of "an eye for an eye, a tooth for a tooth".
We have already demonstrated earlier in our discussion of heinous
crimes that the forfeiture of life simply because life was taken, never
was a defining essence of the death penalty in the context of our
legal history and cultural experience; rather, the death penalty is
imposed in heinous crimes because the perpetrators thereof have
committed unforgivably execrable acts that have so deeply
dehumanized a person or criminal acts with severely destructive
effects on the national efforts to lift the masses from abject poverty
through organized governmental strategies based on a disciplined
and honest citizenry, and because they have so caused irreparable
85
and substantial injury to both their victim and the society and a
repetition of their acts would pose actual threat to the safety of
individuals and the survival of government, they must be
permanently prevented from doing so. At any rate, this court has no
doubts as to the innate heinousness of the crime of rape, as we
have held in the case ofPeople v. Cristobal: 46
Rape is the forcible violation of the sexual
intimacy of another person. It does injury to
justice and charity. Rape deeply wounds the
respect, Freedom, and physical and moral
integrity to which every person has a right. It
causes grave damage that can mark the victim
for life. It is always an intrinsically evil act . . . an
outrage upon decency and dignity that hurts not
only the victim but the society itself
We are not unaware that for all the legal posturings we have so
essayed here, at the heart of the issue of capital punishment is the
wistful, sentimental life-and-death question to which all of us,
without thinking, would answer, "life, of course, over death". But
dealing with the fundamental question of death provides a context
for struggling with even more basic questions, for to grapple with the
meaning of death is, in an indirect way to ask the meaning of life.
Otherwise put, to ask what the rights are of the dying is to ask what
the rights are of the living.
Capital punishment ought not to be abolished
solely because it is substantially repulsive, if
infinitely less repulsive than the acts which
invoke it. Yet the mounting zeal for its abolition
seems to arise from a sentimentalized
hyperfastidiousness that seeks to expunge from
the society all that appears harsh and
suppressive. If we are to preserve the humane
society we will have to retain sufficient strength
of character and will to do the unpleasant in
order that tranquility and civility may rule
comprehensively. It seems very likely that
capital punishment is a . . . necessary, if limited
factor in that maintenance of social tranquility
and ought to be retained on this ground. To do
otherwise is to indulge in the luxury of permitting
a sense of false delicacy to reign over the
necessity of social survival. 47
WHEREFORE, in view of all the foregoing, the Motion for
Reconsideration and Supplemental Motion for Reconsideration are
hereby DENIED 48 for LACK OF MERIT.
SO ORDERED
G.R. No. 123567 June 5, 1998
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROBERTO TONGKO, accused-appellant.
PUNO, J.:
This is an appeal by accused Roberto Tongko from the Decision of
the RTC of Pasig City, Branch 156 finding him guilty of estafa under
Article 315 (2) (d) of the Revised Penal Code. He was sentenced to
suffer twenty seven (27) years of reclusion perpetua and to
indemnify Carmelita v. Santos by way of actual damges in the sum
of P100,000.00 and to pay the cost of suit.
Accused was charged under the following Information:
That on or about the 20th day of August, 1993,
in the Municipality of Pasig, Metro Manila,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, by
means of deceit and false pretenses committed
prior to or simultaneously with the commission of
the fraudulent acts, did then and there willfully,
unlawfully and feloniously make or draw and
issue to one, Carmelita Santos to apply on
account or for value, the check described below:
BANK CHECK NO. DATE AMOUNT
Phil. Amanah Bank 203729 12-20-93
P10,000.00
Phil. Amanah Bank 203730 12-20-93 10,000.00
Phil. Amanah Bank 203731 12-20-93 10,000.00
Phil. Amanah Bank 203732 12-20-93 10,000.00
Phil. Amanah Bank 203733 12-20-93 10,000.00
Phil. Amanah Bank 203737 12-20-93 10,000.00
Phil. Amanah Bank 203738 12-20-93 10,000.00
Phil. Amanah Bank 203739 12-20-93 10,000.00
Phil. Amanah Bank 203740 12-20-93 10,000.00
Phil. Amanah Bank 203741 12-20-93 10,000.00
said accused well knowing at the time of issue
he did not have sufficient funds in or credit with
the drawee bank for the payment in full of the
face amount of such check upon presentment
which check when presented for payment within
ninety (90) days from the date thereof was
subsequently dishonored by the drawee bank for
the reason "Account Closed" and despite the
lapse of three (3) banking days from receipt of
notice that said check has been dishonored, the
accused failed to pay said payee the face
amount of such check or to make arrangement
for full payment thereof, to the damage and
prejudice of said Carmelita Santos in the total
amount of P100,000.00.
CONTRARY TO LAW.
Accused pled not quilty and underwent trial.
The evidence for the prosecution shows that on September 21,
1990, accused opened savings and current account with Amanah
Bank. 1 In the morning of August 20, 1993, Marites Bo-ot brought
the accused to the office of Carmelita V. Santos at Room 504 Pacific
Place, Pearl Drive, Ortigas Center, Pasig City to borrow
money. 2 The accused asked for P50,000.00 to be paid not later
than December 1993. 3 He assured Santos that his receivables
would come in by November 1993. He persuaded Santos to give
the loan by issuing five (5) check, each in the sum of P10,000.00,
postdated December 20, 1993 and by signing a promissory
note. 4 The promissory note was co-signed by Bo-ot. In the
afternoon of the same date, the accused returned to Santos and
borrowed an additional P50,000.00. Again, he issued five (5)
checks, each worth P10,000.00 postdated December 20, 1993. He
also signed a promissory note together with Bo-ot. 5
On September 14, 1993, Amanah Bank closed accused's current
account for lack of funds. On October 19, 1993, accused himself
requested for the closing of his savings account. 6
Santos did not present accused's checks to the drawee bank on
their due date upon the request of accused himself. 7 Instead, the
checks were presented on March 1, 1994 but were dishonored as
accused's accounts had been closed. 8 Accused was informed that
his checks had bounced. He promised to make good the checks. He
failed to redeem his promise, hence, the case at bar. 9
The accused testified for himself. Nobody corroborated his
testimony. He admitted the evidence of the prosecution but alleged
that the postdated checks were issued a day or two after he signed
the promissory notes.10 Obviously, he was relying on the defense
that the checks were in payment of a pre-existing obligation.
As aforestated, the trial court convicted the accused. He appealed
to this Court and changed his counsel. 11 He now contends:
86
 I accused that these checks
THE TRIAL COURT ERRED IN HOLDING
THAT THE ISSUANCE OF THE TEN (10)
POSTDATED CHECKS (EXHS. "C" TO "L") BY
THE ACCUSED-APPELLANT CONSTITUTED
FRAUD WHICH INDUCED THE PRIVATE
COMPLAINANT TO EXTEND THE LOANS. IT
IS RESPECTFULLY SUBMITTED THAT THE
INDUCEMENT WAS THE EXECUTION OF
THE TWO (2) PROMISSORY NOTES AS WELL
AS THE CO-SIGNING THEREOF BY MA.
THERESA DEL ROSARIO BO-OT (WHO
INTRODUCED ACCUSED-APPELLANT TO
PRIVATE COMPLAINANT), IN A JOINT AND
SEVERAL CAPACITY.
II
THE TRIAL COURT ERRED IN NOT HOLDING
THAT THE POST-DATED CHECKS WERE IN
PAYMENT OF PRE-EXISTING OBLIGATIONS.
III
THE TRIAL COURT ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY OF ESTAFA
AS CHARGED, AND IN IMPOSING A STIFF
PRISON TERM OF 27 YEARS
OF RECLUSIONPERPETUA, A PENALTY
"TOO HARSH AND OUT OF PROPORTION"
AS TO BE VIOLATIVE OF THE
CONSTITUTION.
The appeal is without merit.
Estafa, under Article 315, paragraph 2(d) of the Revised Penal
Code, as amended by Republic Act. No. 4885, has the following
elements: (1) postdating or issuance of a check in payment of an
obligation contracted at the time the check was issued; (2) lack of
sufficiency of funds to cover the check; and (3) damage to the payee
thereof.
To avoid the first element, appellant contends that he was able to
borrow P100,000.00 from Santos due to the promissory notes he
co-signed with Bo-ot and not due to the postdated checks he issued.
We reject this contention. Firstly, this contention was contrived only
after appellant's conviction in the trial court. The records show that
appellant did not raise this defense in the trial court. He cannot fault
the trial court for failing to consider a defense which he never raised.
Secondly, Santos is the best person who can testify on what induced
her to lend P100,000.00 to the appellant. Santos categorically
declared that it was the issuance of postdated checks which
persuaded her to part with her money. We quote her
testimony, viz.: 12
Q What happened to those
checks you mentioned in the
promissory note?
A When presented to the
bank they were all returned
by the bank for reason,
account closed.
Q Before this was deposited
to the bank when the
accused came to your office
and loaned money from you,
what was his representation
if any to you?
A That his collection will
come in by Nov. 1993 and
also the checks issued to me
will be definitely funded on
the date that it will become
due.
Q Were you persuaded as a
result of the statement of the
will be good that you parted
away the amount?
A Yes, sir.
There is likewise no merit to the submission of appellant that his
postdated checks were in payment of a pre-existing obligation.
Again, we note appellant's change of theory in foisting this
argument. In the trial court, appellant testified that he issued the
postdated checks, thru Bo-ot, a day or two after he obtained the
P100,000.00 loan from Santos. 13 The falsity of the uncorroborated
claim, however, is too obvious and the trial court correctly rejected
it. The claim cannot succeed in light of Santos' testimony that the
issuance of said checks persuaded her to grant the loans. A look at
the two promissory notes will show that they bear the date August
20, 1993 and they referred to the postdated checks issued by the
appellant. There could be no reference to the postdated checks if
they were issued a day or two after the loans. In this appeal,
however, appellant offers the new thesis that since the checks were
postdated December 1993, ergo, they were issued in payment of
the P100,000.00 he got from Santos on August 20, 1993. The
postdating of the checks to December 1993 simply means that on
said date the checks would be properly funded. It does not mean
that the checks should be deemed as issued only on December
1993.
Lastly, appellant contends that the penalty of twenty seven (27)
years of reclusion perpetua is too harsh and out of proportion to the
crime he committed. He submits that his sentence violates section
19(1), Article III of the Constitution which prohibits the infliction of
cruel, degrading or inhuman punishment. We are not persuaded.
InPeople v. de la Cruz, 14 we held that ". . . the prohibition of cruel
and unusual punishments is generally aimed at the form or
character of the punishment rather than its severity in respect of
duration or amount, and apply to punishments which never existed
in America or which public sentiment has regarded as cruel or
obsolete . . . for instance those inflicted at the whipping post, or in
the pillory, burning at the stake, breaking on the wheel,
disemboweling, and the like . . ." In People v.Estoista, 15 we further
held:
It takes more than merely being harsh,
excessive, out of proportion, or severe for a
penalty to be obnoxious to the Constitution. The
fact that the punishment authorized by the
statute is severe does not make it cruel and
unusual. Expressed in other terms, it has been
held that to come under the ban, the punishment
must be "flagrantly and plainly oppressive,"
"wholly disproportionate to the nature of the
offense as to shock the moral sense of the
community."
The legislature was not thoughtless in imposing severe
penalties for violation of par. 2(d) of Article 315 of the
Revised Penal Code. The history of the law will show that
the severe penalties were intended to stop the upsurge of
swindling by issuance of bouncing checks. It was felt that
unless aborted, this kind of estafa ". . . would erode the
people's confidence in the use of negotiable instruments
as a medium of commercial transaction and consequently
result in the retardation of trade and commerce and the
undermining of the banking system of the country." 16 The
Court cannot impugn the wisdom of Congress in setting
this policy.
IN VIEW WHEREOF, the Decision dated January 16, 1996 of the
RTC of Pasig City, Br. 156 in Criminal Case No. 106614 convicting
appellant is affirmed. Costs against appellant.
SO ORDERED.
[G.R. No. 132601. October 12, 1998]
LEO ECHEGARAY y PILO, petitioner, vs. THE SECRETARY OF
JUSTICE and THE DIRECTOR OF THE BUREAU OF
CORRECTIONS, THE EXECUTIVE JUDGE OF THE
87
 REGIONAL TRIAL COURT OF QUEZON CITY AND THE
PRESIDING JUDGE OF REGIONAL TRIAL COURT OF
QUEZON CITY, BRANCH 104, respondents.
DECISION
PER CURIAM:
On June 25, 1996, this Court affirmed[1] the conviction of
petitioner Leo Echegaray y Pilo for the crime of rape of the 10 year-
old daughter of his common-law spouse and the imposition upon
him of the death penalty for the said crime.
Petitioner duly filed a Motion for Reconsideration raising
mainly factual issues, and on its heels, a Supplemental Motion for
Reconsideration raising for the first time the issue of the
constitutionality of Republic Act No. 7659[2] (the death penalty law)
and the imposition of the death penalty for the crime of rape.
On February 7, 1998, this Court denied[3] petitioner's Motion
for Reconsideration and Supplemental Motion for Reconsideration
with a finding that Congress duly complied with the requirements for
the reimposition of the death penalty and therefore the death penalty
law is not unconstitutional.
In the meantime, Congress had seen it fit to change the mode
of execution of the death penalty from electrocution to lethal
injection,[4] and passed Republic Act No. 8177, AN ACT
DESIGNATING DEATH BY LETHAL INJECTION AS THE
METHOD OF CARRYING OUT CAPITAL PUNISHMENT,
AMENDING FOR THE PURPOSE ARTICLE 81 OF THE REVISED
PENAL CODE, AS AMENDED BY SECTION 24 OF REPUBLIC
ACT NO. 7659.[5] Pursuant to the provisions of said law, the
Secretary of Justice promulgated the Rules and Regulations to
Implement Republic Act No. 8177 ("implementing rules") [6] and
directed the Director of the Bureau of Corrections to prepare the
Lethal Injection Manual.[7]
On March 2, 1998, petitioner filed a Petition[8] for Prohibition,
Injunction and/or Temporary Restraining Order to enjoin
respondents Secretary of Justice and Director of the Bureau of
Prisons from carrying out the execution by lethal injection of
petitioner under R.A. No. 8177 and its implementing rules as these
are unconstitutional and void for being: (a) cruel, degrading and
inhuman punishment per seas well as by reason of its being (b)
arbitrary, unreasonable and a violation of due process, (c) a
violation of the Philippines' obligations under international
covenants, (d) an undue delegation of legislative power by
Congress, (e) an unlawful exercise by respondent Secretary of the
power to legislate, and (f) an unlawful delegation of delegated
powers by the Secretary of Justice to respondent Director.
On March 3, 1998, petitioner, through counsel, filed a Motion
for Leave of Court[9] to Amend and Supplement Petition with the
Amended and Supplemental Petition[10] attached thereto, invoking
the additional ground of violation of equal protection, and impleading
the Executive Judge of the Regional Trial Court of Quezon City and
the Presiding Judge of the Regional Trial Court, Branch 104, in order
to enjoin said public respondents from acting under the questioned
rules by setting a date for petitioner's execution.
On March 3, 1998, the Court resolved, without giving due
course to the petition, to require the respondents to COMMENT
thereon within a non-extendible period of ten (10) days from notice,
and directed the parties "to MAINTAIN the status quo prevailing at
the time of the filing of this petition."
On March 10, 1998, the Court granted the Motion for Leave of
Court to Amend and Supplement Petition, and required respondents
to COMMENT thereon within ten (10) days from notice.
On March 16, 1998, petitioner filed a Very Urgent Motion (1)
To clarify Status Quo Order, and (2) For the Issuance of a
Temporary Restraining Order expressly enjoining public
respondents from taking any action to carry out petitioner's
execution until the petition is resolved.
On March 16, 1998, the Office of the Solicitor General [11] filed
a Comment (On the Petition and the Amended Supplemental
Petition)[12] stating that (1) this Court has already upheld the
constitutionality of the Death Penalty Law, and has repeatedly
declared that the death penalty is not cruel, unjust, excessive or
unusual punishment; (2) execution by lethal injection, as authorized
under R.A. No. 8177 and the questioned rules, is constitutional,
lethal injection being the most modern, more humane, more
economical, safer and easier to apply (than electrocution or the gas
chamber); (3) the International Covenant on Civil and Political
Rights does not expressly or impliedly prohibit the imposition of the
death penalty; (4) R.A. No. 8177 properly delegated legislative
power to respondent Director; and that (5) R.A. No. 8177 confers
the power to promulgate the implementing rules to the Secretary of
Justice, Secretary of Health and the Bureau of Corrections.
On March 17, 1998, the Court required the petitioner to file a
REPLY thereto within a non-extendible period of ten days from
notice.
On March 25, 1998, the Commission on Human Rights [13] filed
a Motion for Leave of Court to Intervene and/or Appear as Amicus
Curiae[14] with the attached Petition to Intervene and/or Appear
asAmicus Curiae[15] alleging that the death penalty imposed under
R.A. No. 7659 which is to be implemented by R.A. No. 8177 is cruel,
degrading and outside the limits of civil society standards, and
further invoking (a) Article II, Section 11 of the Constitution which
provides: "The State values the dignity of every human person and
guarantees full respect for human rights."; (b) Article III of
the Universal Declaration of Human Rights which states that
"Everyone has the right to life, liberty and security of person," and
Article V thereof, which states that "No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment.";
(c) The International Covenant on Civil and Political Rights, in
particular, Article 6 thereof, and the Second Optional Protocol to the
International Covenant on Civil and Political Rights Aiming At The
Abolition of the Death Penalty; (d) Amnesty International statistics
showing that as of October 1996, 58 countries have abolished the
death penalty for all crimes, 15 countries have abolished the death
penalty for ordinary crimes, and 26 countries are abolitionists de
facto, which means that they have retained the death penalty for
ordinary crimes but are considered abolitionists in practice that they
have not executed anyone during the past ten (10) years or more,
or in that they have made an international commitment not to carry
out executions, for a total of 99 countries which are total abolitionists
in law or practice, and 95 countries as retentionists; [16] and (e) Pope
John Paul II's encyclical, "Evangelium Vitae." In a Resolution dated
April 3, 1998, the Court duly noted the motion.
On March 27, 1998, petitioner filed a Reply[17] stating that (1)
this Court is not barred from exercising judicial review over the death
penalty per se, the death penalty for rape and lethal injection as a
mode of carrying out the death penalty; (2) capital punishment is a
cruel, degrading and inhuman punishment; (3) lethal injection is
cruel, degrading and inhuman punishment, and that being the "most
modern" does not make it less cruel or more humane, and that the
Solicitor General's "aesthetic" criteria is short-sighted, and that the
lethal injection is not risk free nor is it easier to implement; and (4)
the death penalty violates the International Covenant on Civil and
Political Rights considering that the Philippines participated in the
deliberations of and voted for the Second Optional Protocol.
After deliberating on the pleadings, the Court gave due course
to the petition, which it now resolves on the merits.
In the Amended and Supplemental Petition, petitioner assails
the constitutionality of the mode of carrying out his death sentence
by lethal injection on the following grounds: [18]
I.
DEATH BY LETHAL INJECTION IS UNCONSTITUTIONAL
FOR BEING A CRUEL, DEGRADING AND INHUMAN
PUNISHMENT.
II.
THE DEATH PENALTY VIOLATES THE INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL RIGHTS, WHICH IS
PART OF THE LAW OF THE LAND.
III.
LETHAL INJECTION, AS AUTHORIZED UNDER
REPUBLIC ACT NO. 8177 AND THE QUESTIONED
RULES, IS UNCONSTITUTIONAL BECAUSE IT IS AN
UNNECESSARY AND WANTON INFLICTION OF PAIN ON
A PERSON AND IS, THUS, A CRUEL, DEGRADING, AND
INHUMAN PUNISHMENT.
IV.
REPUBLIC ACT NO. 8177 UNDULY DELEGATES
LEGISLATIVE POWER TO RESPONDENT DIRECTOR.
V.
88
 RESPONDENT SECRETARY UNLAWFULLY DELEGATED
THE LEGISLATIVE POWERS DELEGATED TO HIM
UNDER REPUBLIC ACT NO. 8177 TO RESPONDENT
DIRECTOR.
VI.
RESPONDENT SECRETARY EXCEEDED THE
AUTHORITY DELEGATED TO HIM UNDER REPUBLIC
ACT NO. 8177 AND UNLAWFULLY USURPED THE
POWER TO LEGISLATE IN PROMULGATING THE
QUESTIONED RULES.
VII.
SECTION 17 OF THE QUESTIONED RULES IS
UNCONSTITUTIONAL FOR BEING DISCRIMINATORY AS
WELL AS FOR BEING AN INVALID EXERCISE BY
RESPONDENT SECRETARY OF THE POWER TO
LEGISLATE.
VIII.
INJUCTION MUST ISSUE TO PREVENT IRREPARABLE
DAMAGE AND INJURY TO PETITIONER'S RIGHTS BY
REASON OF THE EXISTENCE, OPERATION AND
IMPLEMENTATION OF AN UNCONSTITUTIONAL
STATUTE AND EQUALLY INVALID AND IMPLEMENTING
RULES.
Concisely put, petitioner argues that R.A. No. 8177 and its
implementing rules do not pass constitutional muster for: (a)
violation of the constitutional proscription against cruel, degrading
or inhuman punishment, (b) violation of our international treaty
obligations, (c) being an undue delegation of legislative power, and
(d) being discriminatory.
The Court shall now proceed to discuss these
issues in seriatim.
I. LETHAL INJECTION, NOT CRUEL, DEGRADING OR
INHUMAN PUNISHMENT UNDER SECTION 19,
ARTICLE III OF THE 1987 CONSTITUTION.
The main challenge to R.A. 8177 and its implementing rules is
anchored on Article III, Section 19 (1) of the 1987 Constitution which
proscribes the imposition of "cruel, degrading or inhuman"
punishment. "The prohibition in the Philippine Bill against cruel and
unusual punishments is an Anglo-Saxon safeguard against
governmental oppression of the subject, which made its first
appearance in the reign of William and Mary of England in 'An Act
declaring the rights and liberties of the subject, and settling the
succession of the crown,' passed in the year 1689. It has been
incorporated into the Constitution of the United States (of America)
and into most constitutions of the various States in substantially the
same language as that used in the original statute. The exact
language of the Constitution of the United States is used in the
Philippine Bill."[19] "The counterpart of Section 19 (1) in the 1935
Constitution reads: 'Excessive fines shall not be imposed, nor cruel
and inhuman punishment inflicted.' xxx In the 1973 Constitution the
phrase became 'cruel or unusual punishment.' The Bill of Rights
Committee of the 1986 Constitutional Commission read the 1973
modification as prohibiting 'unusual' punishment even if not 'cruel.' It
was thus seen as an obstacle to experimentation in
penology. Consequently, the Committee reported out the present
text which prohibits 'cruel, degrading or inhuman punishment' as
more consonant with the meaning desired and with jurisprudence
on the subject."[20]
Petitioner contends that death by lethal injection constitutes
cruel, degrading and inhuman punishment considering that (1) R.A.
No. 8177 fails to provide for the drugs to be used in carrying out
lethal injection, the dosage for each drug to be administered, and
the procedure in administering said drug/s into the accused; (2) R.A.
No. 8177 and its implementing rules are uncertain as to the date of
the execution, time of notification, the court which will fix the date of
execution, which uncertainties cause the greatest pain and suffering
for the convict; and (3) the possibility of "botched executions" or
mistakes in administering the drugs renders lethal injection
inherently cruel.
Before the Court proceeds any further, a brief explanation of
the process of administering lethal injection is in order.
In lethal injection, the condemned inmate is strapped on a
hospital gurney and wheeled into the execution room. A trained
technician inserts a needle into a vein in the inmate's arm and
begins an intravenous flow of saline solution. At the warden's signal,
a lethal combination of drugs is injected into the intravenous
line. The deadly concoction typically includes three drugs: (1) a
nonlethal dose of sodium thiopenthotal, a sleep inducing
barbiturate; (2) lethal doses of pancuronium bromide, a drug that
paralyzes the muscles; and (3) potassium chloride, which stops the
heart within seconds. The first two drugs are commonly used during
surgery to put the patient to sleep and relax muscles; the third is
used in heart bypass surgery.[21]
Now it is well-settled in jurisprudence that the death
penalty per se is not a cruel, degrading or inhuman
punishment.[22] In the oft-cited case of Harden v. Director of
Prisons,[23] this Court held that "[p]unishments are cruel when they
involve torture or a lingering death; but the punishment of death is
not cruel, within the meaning of that word as used in the
constitution. It implies there something inhuman and barbarous,
something more than the mere extinguishment of life." Would the
lack in particularity then as to the details involved in the execution
by lethal injection render said law "cruel, degrading or
inhuman"? The Court believes not. For reasons hereafter
discussed, the implementing details of R.A. No. 8177 are matters
which are properly left to the competence and expertise of
administrative officials.[24]
Petitioner contends that Sec. 16[25] of R.A. No. 8177 is
uncertain as to which "court" will fix the time and date of execution,
and the date of execution and time of notification of the death
convict. As petitioner already knows, the "court" which designates
the date of execution is the trial court which convicted the accused,
that is, after this Court has reviewed the entire records of the
case[26] and has affirmed the judgment of the lower
court. Thereupon, the procedure is that the "judgment is entered
fifteen (15) days after its promulgation, and 10 days thereafter, the
records are remanded to the court below including a certified copy
of the judgment for execution.[27] Neither is there any uncertainty as
to the date of execution nor the time of notification. As to the date of
execution, Section 15 of the implementing rules must be read in
conjunction with the last sentence of Section 1 of R.A. No. 8177
which provides that the death sentence shall be carried out "not
earlier than one (1) year nor later then eighteen (18) months from
the time the judgment imposing the death penalty became final and
executory, without prejudice to the exercise by the President of his
executive clemency powers at all times." Hence, the death convict
is in effect assured of eighteen (18) months from the time the
judgment imposing the death penalty became final and
executory[28] wherein he can seek executive clemency[29] and attend
to all his temporal and spiritual affairs. [30]
Petitioner further contends that the infliction of "wanton pain"
in case of possible complications in the intravenous injection,
considering and as petitioner claims, that respondent Director is an
untrained and untested person insofar as the choice and
administration of lethal injection is concerned, renders lethal
injection a cruel, degrading and inhuman punishment. Such
supposition is highly speculative and unsubstantiated.
First. Petitioner has neither alleged nor presented evidence
that lethal injection required the expertise only of phlebotomists and
not trained personnel and that the drugs to be administered are
unsafe or ineffective.[31] Petitioner simply cites situations in the
United States wherein execution by lethal injection allegedly
resulted in prolonged and agonizing death for the convict, [32] without
any other evidence whatsoever.
Second. Petitioner overlooked Section 1, third paragraph of
R.A. No. 8177 which requires that all personnel involved in the
execution proceedings should be trained prior to the performance of
such task.We must presume that the public officials entrusted with
the implementation of the death penalty (by lethal injection) will
carefully avoid inflicting cruel punishment. [33]
Third. Any infliction of pain in lethal injection is merely
incidental in carrying out the execution of death penalty and does
not fall within the constitutional proscription against cruel, degrading
and inhuman punishment. "In a limited sense, anything is cruel
which is calculated to give pain or distress, and since punishment
imports pain or suffering to the convict, it may be said that all
punishments are cruel. But of course the Constitution does not
mean that crime, for this reason, is to go unpunished."[34] The cruelty
against which the Constitution protects a convicted man is cruelty
inherent in the method of punishment, not the necessary suffering
involved in any method employed to extinguish life
humanely.[35] Numerous federal and state courts of the United
States have been asked to review whether lethal injections
89
constitute cruel and unusual punishment. No court has found lethal
injections to implicate prisoner's Eighth Amendment rights. In fact,
most courts that have addressed the issue state in one or two
sentences that lethal injection clearly is a constitutional form of
execution.[36] A few jurisdictions, however, have addressed the
merits of the Eighth Amendment claims. Without exception, these
courts have found that lethal injection does not constitute cruel and
unusual punishment. After reviewing the medical evidence that
indicates that improper doses or improper administration of the
drugs causes severe pain and that prison officials tend to have little
training in the administration of the drugs, the courts have found that
the few minutes of pain does not rise to a constitutional violation. [37]
What is cruel and unusual "is not fastened to the obsolete but
may acquire meaning as public opinion becomes enlightened by a
humane justice" and "must draw its meaning from the evolving
standards of decency that mark the progress of a maturing
society."[38] Indeed, "[o]ther (U.S.) courts have focused on
'standards of decency' finding that the widespread use of lethal
injections indicates that it comports with contemporary
norms."[39] the primary indicator of society's standard of decency
with regard to capital punishment is the response of the country's
legislatures to the sanction.[40] Hence, for as long as the death
penalty remains in our statute books and meets the most stringent
requirements provided by the Constitution, we must confine our
inquiry to the legality of R.A. No. 8177, whose constitutionality we
duly sustain in the face of petitioner's challenge. We find that the
legislature's substitution of the mode of carrying out the death
penalty from electrocution to lethal injection infringes no
constitutional rights of petitioner herein.
II. REIMPOSITION OF THE DEATH PENALTY LAW
DOES NOT VIOLATE INTERNATIONAL TREATY
OBLIGATIONS
Petitioner assiduously argues that the reimposition of the
death penalty law violates our international obligations, in particular,
the International Covenant on Civil And Political Rights, which was
adopted by the General Assembly of the United Nations on
December 16, 1996, signed and ratified by the Philippines on
December 19, 1966 and October 23, 1986,[41] respectively.
Article 6 of the International Covenant on Civil and Political
Rights provides:
"1. Every human being has the inherent right to life. This right shall
be protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty,
sentence of death may be imposed only for the most serious
crimes in accordance with the law in force at the time of the
commission of the crime and not contrary to the provisions of the
present Covenant and to the Convention on the Prevention and
Punishment of the Crime of Genocide. This penalty can only be
carried out pursuant to a final judgment rendered by a competent
court." (emphasis supplied)
3. When deprivation of life constitutes the crime of genocide, it is
understood that nothing in this article shall authorize any State Party
to the present Covenant to derogate in any way from any obligation
assumed under the provisions of the Convention on the Prevention
and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or
commutation of the sentence. Amnesty, pardon or commutation of
the sentence of death may be granted in all-cases.
5. Sentence of death shall not be imposed for crimes committed by
persons below eighteen years of age and shall not be carried out on
pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the
abolition of capital punishment by any State. Party to the present
Covenant."
Indisputably, Article 6 of the Covenant enshrines the
individual's right to life. Nevertheless, Article 6 (2) of
the Covenant explicitly recognizes that capital punishment is an
allowable limitation on the right to life, subject to the limitation that it
be imposed for the "most serious crimes". Pursuant to Article 28 of
the Covenant, a Human Rights Committee was established and
under Article 40 of the Covenant, State parties to the Covenant are
required to submit an initial report to the Committee on the
measures they have adopted which give effect to the rights
recognized within the Covenant and on the progress made on the
enjoyment of those rights one year of its entry into force for the State
Party concerned and thereafter, after five years. On July 27, 1982,
the Human Rights Committee issued General Comment No.
6 interpreting Article 6 of the Covenant stating that "(while) it follows
from Article 6 (2) to (6) that State parties are not obliged to abolish
the death penalty totally, they are obliged to limit its use and, in
particular, to abolish it for other than the 'most serious
crimes.' Accordingly, they ought to consider reviewing their criminal
laws in this light and, in any event, are obliged to restrict the
application of the death penalty to the most serious crimes.' The
article strongly suggests (pars. 2 (2) and (6) that abolition is
desirable. xxx The Committee is of the opinion that the expression
'most serious crimes' must be read restrictively to mean that the
death penalty should be a quite exceptional measure." Further,
the Safeguards Guaranteeing Protection of Those Facing the Death
Penalty[42] adopted by the Economic and Social Council of the
United Nations declare that the ambit of the term 'most serious
crimes' should not go beyond intentional crimes, with lethal or other
extremely grave consequences.
The Optional Protocol to the International Covenant on Civil
and Political Rights was adopted by the General Assembly of the
United Nations on December 16, 1966, and signed and ratified by
the Philippines on December 19, 1966 and August 22,
1989,[43] respectively. The Optional Protocol provides that the
Human Rights Committee shall receive and consider
communications from individuals claiming to be victims of violations
of any of the rights set forth in the Covenant.
On the other hand, the Second Optional Protocol to the
International Covenant on Civil and Political Rights, Aiming at the
Abolition of the Death Penalty was adopted by the General
Assembly on December 15, 1989. The Philippines neither signed
nor ratified said document.[44] Evidently, petitioner's assertion of
our obligation under the Second Optional Protocol is misplaced.
III. THERE IS NO UNDUE DELEGATION OF
LEGISLATIVE POWER IN R.A. NO. 8177 TO THE
SECRETARY OF JUSTICE AND THE DIRECTOR
OF BUREAU OF CORRECTIONS, BUT SECTION
19 OF THE RULES AND REGULATIONS TO
IMPLEMENT R.A. NO. 8177 IS INVALID.
The separation of powers is a fundamental principle in our
system of government. It obtains not through express provision but
by actual division in the framing of our Constitution. Each
department of the government has exclusive cognizance of matters
placed within its jurisdiction, and is supreme within its own
sphere.[45] Corollary to the doctrine of separation of powers is the
principle of non-delegation of powers. "The rule is that what has
been delegated, cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest."[46] The recognized
exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under
Section 28 (2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President
under Section 23 (2) of Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.[47]
Empowering the Secretary of Justice in conjunction with the
Secretary of Health and the Director of the Bureau of Corrections,
to promulgate rules and regulations on the subject of lethal injection
is a form of delegation of legislative authority to administrative
bodies.
The reason for delegation of authority to administrative
agencies is the increasing complexity of the task of government
requiring expertise as well as the growing inability of the legislature
to cope directly with the myriad problems demanding its
attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature
cannot be expected to attend to by itself. Specialization even in
legislation has become necessary. On many problems involving
day-to-day undertakings, the legislature may not have the needed
competence to provide the required direct and efficacious, not to
say, specific solutions. These solutions may, however, be expected
from its delegates, who are supposed to be experts in the particular
fields assigned to them.[48]
Although Congress may delegate to another branch of the
Government the power to fill in the details in the execution,
enforcement or administration of a law, it is essential, to forestall a
violation of the principle of separation of powers, that said law: (a)
90
be complete in itself - it must set forth therein the policy to be
executed, carried out or implemented by the delegate[49] - and (b) fix
a standard - the limits of which are sufficiently determinate or
determinable - to which the delegate must conform in the
performance of his functions.[50]
Considering the scope and the definiteness of R.A. No. 8177,
which changed the mode of carrying out the death penalty, the Court
finds that the law sufficiently describes what job must be done, who
is to do it, and what is the scope of his authority. [51]
R.A. No. 8177 likewise provides the standards which define
the legislative policy, mark its limits, map out its boundaries, and
specify the public agencies which will apply it. it indicates the
circumstances under which the legislative purpose may be carried
out.[52] R.A. No. 8177 specifically requires that "[t]he death sentence
shall be executed under the authority of the Director of the Bureau
of Corrections, endeavoring so far as possible to mitigate the
sufferings of the person under the sentence during the lethal
injection as well as during the proceedings prior to the
execution."[53]Further, "[t]he Director of the Bureau of Corrections
shall take steps to ensure that the lethal injection to be
administered is sufficient to cause the instantaneous death of
the convict."[54] The legislature also mandated that "all personnel
involved in the administration of lethal injection shall be
trained prior to the performance of such task."[55] The Court
cannot see that any useful purpose would be served by requiring
greater detail.[56] The question raised is not the definition of what
constitutes a criminal offense,[57] but the mode of carrying out the
penalty already imposed by the Courts. In this sense, R.A. No. 8177
is sufficiently definite and the exercise of discretion by the
administrative officials concerned is, to use the words of Justice
Benjamin Cardozo, canalized within banks that keep it from
overflowing.
Thus, the Court finds that the existence of an area for exercise
of discretion by the Secretary of Justice and the Director of the
Bureau of Corrections under delegated legislative power is proper
where standards are formulated for the guidance and the exercise
of limited discretion, which though general, are capable of
reasonable application.[58]
It is also noteworthy that Article 81 of the Revised Penal Code
which originally provided for the death penalty by electrocution was
not subjected to attack on the ground that it failed to provide for
details such as the kind of chair to be used, the amount of voltage,
volume of amperage or place of attachment of electrodes on the
death convict. Hence, petitioner's analogous argument with respect
to lethal injection must fail.
A careful reading of R.A. No. 8177 would show that there is
no undue delegation of legislative power from the Secretary of
Justice to the Director of the Bureau of Corrections for the simple
reason that under the Administrative Code of 1987, the Bureau of
Corrections is a mere constituent unit of the Department of
Justice.[59] Further, the Department of Justice is tasked, among
others, to take charge of the "administration of the correctional
system."[60] Hence, the import of the phraseology of the law is that
the Secretary of Justice should supervise the Director of the Bureau
of Corrections in promulgating the Lethal Injection Manual, in
consultation with the Department of Health. [61]
However, the Rules and Regulations to Implement Republic
Act No. 8177 suffer serious flaws that could not be overlooked. To
begin with, something basic appears missing in Section 19 of the
implementing rules which provides:
"SEC. 19. EXECUTION PROCEDURE. - Details of the
procedure prior to, during and after administering the lethal
injection shall be set forth in a manual to be prepared by the
Director. The manual shall contain details of, among others,
the sequence of events before and after execution;
procedures in setting up the intravenous line; the
administration of the lethal drugs; the pronouncement of
death; and the removal of the intravenous system.
Said manual shall be confidential and its distribution
shall be limited to authorized prison personnel."
Thus, the Courts finds in the first paragraph of Section 19 of
the implementing rules a veritable vacuum. The Secretary of Justice
has practically abdicated the power to promulgate the manual on
the execution procedure to the Director of the Bureau of
Corrections, by not providing for a mode of review and approval
thereof. Being a mere constituent unit of the Department of Justice,
the Bureau of Corrections could not promulgate a manual that would
not bear the imprimatur of the administrative superior, the Secretary
of Justice as the rule-making authority under R.A. No. 8177. Such
apparent abdication of departmental responsibility renders the said
paragraph invalid.
As to the second paragraph of section 19, the Court finds the
requirement of confidentiality of the contents of the manual even
with respect to the convict unduly suppressive. It sees no legal
impediment for the convict, should he so desire, to obtain a copy of
the manual. The contents of the manual are matters of public
concern "which the public may want to know, either because these
directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen."[62] Section 7 of Article III
of the 1987 Constitution provides:
"SEC. 7. The right of the people to information on
matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to
official acts, transaction, or decisions, as well as to
government research data used as a basis for policy
development, shall be afforded the citizen, subject to such
limitation as may be provided by law."
The incorporation in the Constitution of a guarantee of access
to information of public concern is a recognition of the essentiality of
the free flow of ideas and information in a democracy. [63] In the same
way that free discussion enables members of society to cope with
the exigencies of their time,[64] access to information of general
interest aids the people in democratic decision-making[65] by giving
them a better perspective of the vital issues confronting the
nation.[66]
D. SECTION 17 OF THE RULES AND REGULATIONS
TO IMPLEMENT R.A. NO. 8177 IS INVALID FOR
BEING DISCRIMINATORY AND CONTRARY TO
LAW.
Even more seriously flawed than Section 19 is Section of the
implementing rules which provides:
"SEC. 17. SUSPENSION OF THE EXECUTION OF
THE DEATH SENTENCE. Execution by lethal injection shall
not be inflicted upon a woman within the three years next
following the date of the sentence or while she is pregnant,
nor upon any person over seventy (70) years of age. In this
latter case, the death penalty shall be commuted to the
penalty of reclusion perpetua with the accessory penalties
provided in Article 40 of the Revised Penal Code."
Petitioner contends that Section 17 is unconstitutional for
being discriminatory as well as for being an invalid exercise of the
power to legislate by respondent Secretary. Petitioner insists that
Section 17 amends the instances when lethal injection may be
suspended, without an express amendment of Article 83 of the
Revised Penal Code, as amended by section 25 of R.A. No. 7659.
Article 83 f the Revised Penal Code, as amended by section
25 of R.A. No. 7659 now reads as follows:
"ART. 83, Suspension of the execution of the death
sentence.- The death sentence shall not be inflicted upon a
woman while she is pregnant or within one (1) year after
delivery, nor upon any person over seventy years of age. In
this last case, the death sentence shall be commuted to the
penalty of reclusion perpetua with the accessory penalty
provided in Article 40. x x x".
On this point, the Courts finds petitioner's contention
impressed with merit. While Article 83 of the Revised Penal Code,
as amended by Section 25 of Republic Act No. 7659, suspends the
implementation of the death penalty while a woman is pregnant
or within one (1) year after delivery, Section 17 of the
implementing rules omits the one (1) year period following delivery
as an instance when the death sentence is suspended, and adds a
ground for suspension of sentence no longer found under Article 83
of the Revised Penal Code as amended, which is the three-year
reprieve after a woman is sentenced. This addition is, in petitioner's
view, tantamount to a gender-based discrimination sans statutory
basis, while the omission is an impermissible contravention of the
applicable law.
Being merely an implementing rule, Section 17 aforecited
must not override, but instead remain consistent and in harmony
with the law it seeks to apply and implement. Administrative rules
and regulations are intended to carry out, neither to supplant nor to
modify, the law."[67] An administrative agency cannot amend an act
91
of Congress.[68] In case of discrepancy between a provision of
statute and a rule or regulation issued to implement said statute, the
statutory provision prevails. Since the cited clause in Section 17
which suspends the execution of a woman within the three (3) years
next following the date of sentence finds no supports in Article 83 of
the Revised Penal Code as amended, perforce Section 17 must be
declared invalid.
One member of the Court voted to declare Republic Act. No.
8177 as unconstitutional insofar as it delegates the power to make
rules over the same subject matter to two persons (the Secretary of
Justice and the Director of the Bureau of Corrections) and
constitutes a violation of the international norm towards the abolition
of the death penalty. One member of the Court, consistent with his
view in People v. Echegaray, 267 SCRA 682, 734-758 (1997) that
the death penalty law (Republic Act. No. 7659) is itself
unconstitutional, believes that Republic Act No. 8177 which
provides for the means of carrying out the death sentence, is
likewise unconstitutional. Two other members of the court
concurred in the aforesaid Separate Opinions in that the death
penalty law (Republic Act No. 7659) together with the assailed
statute (Republic Act No. 8177) are unconstitutional. In sum, four
members of the Court voted to declare Republic Act. No. 8177 as
unconstitutional. These Separate Opinions are hereto
annexed, infra.
WHEREFORE, the petition is DENIED insofar as petitioner
seeks to declare the assailed statute (Republic Act No. 8177) as
unconstitutional; but GRANTED insofar as Sections 17 and 19 of
the Rules and Regulations to Implement Republic Act No. 8177 are
concerned, which are hereby declared INVALID because (a)
Section 17 contravenes Article 83 of the Revised Penal Code, as
amended by Section 25 of the Republic Act No. 7659; and (b)
Section 19 fails to provide for review and approval of the Lethal
Injection Manual by the Secretary of Justice, and unjustifiably
makes the manual confidential, hence unavailable to interested
parties including the accused/convict and counsel. Respondents
are hereby enjoined from enforcing and implementing Republic Act
No. 8177 until the aforesaid Sections 17 and 19 of the Rules and
Regulations to Implement Republic Act No. 8177 are appropriately
amended, revised and/or corrected in accordance with this
Decision.
NO COSTS.
SO ORDERED.
[G.R. No. 149276. September 27, 2002]
JOVENCIO LIM and TERESITA LIM, petitioners, vs. THE
PEOPLE OF THE PHILIPPINES, THE REGIONAL
TRIAL COURT OF QUEZON CITY, BRANCH 217, THE
CITY PROSECUTOR OF QUEZON CITY, AND WILSON
CHAM, respondents.
DECISION
CORONA, J.:
The constitutionality of PD 818, a decree which amended
Article 315 of the Revised Penal Code by increasing the penalties
for estafa committed by means of bouncing checks, is being
challenged in this petition for certiorari, for being violative of the due
process clause, the right to bail and the provision against cruel,
degrading or inhuman punishment enshrined under the
Constitution.
The antecedents of this case, as gathered from the parties
pleadings and documentary proofs, follow.
In December 1991, petitioner spouses issued to private
respondent two postdated checks, namely, Metrobank check no.
464728 dated January 15, 1992 in the amount of P365,750 and
Metrobank check no. 464743 dated January 22, 1992 in the amount
of P429,000. Check no. 464728 was dishonored upon presentment
for having been drawn against insufficient funds while check no.
464743 was not presented for payment upon request of petitioners
who promised to replace the dishonored check.
When petitioners reneged on their promise to cover the
amount of check no. 464728, the private respondent filed a
complaint-affidavit before the Office of the City Prosecutor of
Quezon City charging petitioner spouses with the crime of estafa
under Article 315, par. 2 (d) of the Revised Penal Code, as amended
by PD 818.
On February 16, 2001, the City Prosecutor issued a resolution
finding probable cause against petitioners and recommending the
filing of an information for estafa with no bail recommended. On the
same day, an information for the crime of estafa was filed with
Branch 217 of the Regional Trial Court of Quezon City against
petitioners. The case was docketed as Criminal Case No. Q-01-
101574. Thereafter, the trial court issued a warrant for the arrest of
herein petitioners, thus:
It appearing on the face of the information and from supporting
affidavit of the complaining witness and its annexes that probable
cause exists, that the crime charged was committed and accused is
probably guilty thereof, let a warrant for the arrest of the accused be
issued.
No Bail Recommended.
SO ORDERED.[1]
On July 18, 2001, petitioners filed an Urgent Motion to Quash
Information and Warrant of Arrest which was denied by the trial
court. Likewise, petitioners motion for bail filed on July 24, 2001 was
denied by the trial court on the same day. Petitioner Jovencio Lim
was arrested by virtue of the warrant of arrest issued by the trial
court and was detained at the Quezon City Jail.However, petitioner
Teresita Lim remained at large.
On August 22, 2001, petitioners filed the instant petition for
certiorari imputing grave abuse of discretion on the part of the lower
court and the Office of the City Prosecutor of Quezon City, arguing
that PD 818 violates the constitutional provisions on due process,
bail and imposition of cruel, degrading or inhuman punishment.
In a resolution dated February 26, 2002, this Court granted the
petition of Jovencio Lim to post bail pursuant to Department of
Justice Circular No. 74 dated November 6, 2001 which amended
the 2000 Bail Bond Guide involving estafa under Article 315, par. 2
(d), and qualified theft. Said Circular specifically provides as follows:
xxx xxx xxx
3) Where the amount of fraud is P32,000.00 or over in
which the imposable penalty is reclusion
temporal to reclusion perpetua, bail shall be based
on reclusion temporal maximum, pursuant to Par. 2
(a) of the 2000 Bail Bond Guide, multiplied by
P2,000.00, plus an additional of P2,000.00 for every
P10,000.00 in excess of P22,000.00; Provided,
however, that the total amount of bail shall not
exceed P60,000.00.
In view of the aforementioned resolution, the matter
concerning bail shall no longer be discussed. Thus, this decision will
focus on whether or not PD 818 violates Sections 1 and 19 of Article
III of the Constitution, which respectively provide:
Section 1. No person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
xxx
Section 19 (1) Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. x x x.
We shall deal first with the issue of whether PD 818 was
enacted in contravention of Section 19 of Article III of the
Constitution. In this regard, the impugned provision of PD 818 reads
as follows:
SECTION 1. Any person who shall defraud another by means of
false pretenses or fraudulent acts as defined in paragraph 2(d) of
Article 315 of the Revised Penal Code, as amended by Republic Act
No. 4885, shall be punished by:
1st. The penalty of reclusion temporal if the amount of the fraud is
over 12,000 pesos but does not exceed 22,000 pesos, and if such
amount exceeds the later sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one year
92
for each additional 10,000 pesos but the total penalty which may be
imposed shall in no case exceed thirty years. In such cases, and in
connection with the accessory penalties which may be imposed
under the Revised Penal Code, the penalty shall be
termed reclusion perpetua;
2nd. The penalty of prision mayor in its maximum period, if the
amount of the fraud is over 6,000 pesos but does not exceed 12,000
pesos.
3rd. The penalty of prision mayor in its medium period, if such
amount is over 200 pesos but does not exceed 6,000 pesos; and
4th. By prision mayor in its minimum period, if such amount does not
exceed 200 pesos.
Petitioners contend that, inasmuch as the amount of the
subject check is P365,750, they can be penalized with reclusion
perpetua or 30 years of imprisonment. This penalty, according to
petitioners, is too severe and disproportionate to the crime they
committed and infringes on the express mandate of Article III,
Section 19 of the Constitution which prohibits the infliction of cruel,
degrading and inhuman punishment.
Settled is the rule that a punishment authorized by statute is
not cruel, degrading or disproportionate to the nature of the offense
unless it is flagrantly and plainly oppressive and wholly
disproportionate to the nature of the offense as to shock the moral
sense of the community. It takes more than merely being harsh,
excessive, out of proportion or severe for a penalty to be obnoxious
to the Constitution.[2] Based on this principle, the Court has
consistently overruled contentions of the defense that the penalty of
fine or imprisonment authorized by the statute involved is cruel and
degrading.
In People vs. Tongko,[3] this Court held that the prohibition
against cruel and unusual punishment is generally aimed at the form
or character of the punishment rather than its severity in respect of
its duration or amount, and applies to punishments which never
existed in America or which public sentiment regards as cruel or
obsolete. This refers, for instance, to those inflicted at the whipping
post or in the pillory, to burning at the stake, breaking on the wheel,
disemboweling and the like. The fact that the penalty is severe
provides insufficient basis to declare a law unconstitutional and
does not, by that circumstance alone, make it cruel and inhuman.
Petitioners also argue that while PD 818 increased the
imposable penalties for estafa committed under Article 315, par. 2
(d) of the Revised Penal Code, it did not increase the amounts
corresponding to the said new penalties. Thus, the original amounts
provided for in the Revised Penal Code have remained the same
notwithstanding that they have become negligible and
insignificant compared to the present value of the peso.
This argument is without merit. The primary purpose of PD
818 is emphatically and categorically stated in the following:
WHEREAS, reports received of late indicate an upsurge of estafa
(swindling) cases committed by means of bouncing checks;
WHEREAS, if not checked at once, these criminal acts would erode
the peoples confidence in the use of negotiable instruments as a
medium of commercial transaction and consequently result in the
retardation of trade and commerce and the undermining of the
banking system of the country;
WHEREAS, it is vitally necessary to arrest and curb the rise in this
kind of estafa cases by increasing the existing penalties provided
therefor.
Clearly, the increase in the penalty, far from being cruel and
degrading, was motivated by a laudable purpose, namely, to
effectuate the repression of an evil that undermines the countrys
commercial and economic growth, and to serve as a necessary
precaution to deter people from issuing bouncing checks. The fact
that PD 818 did not increase the amounts corresponding to the new
penalties only proves that the amount is immaterial and
inconsequential. What the law sought to avert was the proliferation
of estafa cases committed by means of bouncing checks. Taking
into account the salutary purpose for which said law was decreed,
we conclude that PD 818 does not violate Section 19 of Article III of
the Constitution.
Moreover, when a law is questioned before the Court, the
presumption is in favor of its constitutionality. To justify its
nullification, there must be a clear and unmistakable breach of the
Constitution, not a doubtful and argumentative one.[4] The burden of
proving the invalidity of a law rests on those who challenge it. In this
case, petitioners failed to present clear and convincing proof to
defeat the presumption of constitutionality of PD 818.
With respect to the issue of whether PD 818 infringes on
Section 1 of Article III of the Constitution, petitioners claim that PD
818 is violative of the due process clause of the Constitution as it
was not published in the Official Gazette. This claim is incorrect and
must be rejected. Publication, being an indispensable part of due
process, is imperative to the validity of laws, presidential decrees
and executive orders.[5] PD 818 was published in the Official
Gazette on December 1, 1975.[6]
With the foregoing considerations in mind, this Court upholds
the constitutionality of PD 818.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
G.R. No. L-45127 May 5, 1989
PEOPLE OF THE PHILIPPINES, represented by the Provincial
Fiscal of Leyte, petitioner,
vs.
HON. JUDGE AUXENCIO C. DACUYCUY, CELESTINO S.
MATONDO, SEGUNDINO A, CAVAL and CIRILO M. ZANORIA,
respondents.
The Office of the Solicitor General for petitioner.
Adelino B. Sitoy for private respondents.
REGALADO, J.:
Involved in this special civil action is the unique situation, to use an
euphemistic phrase, of an alternative penal sanction of
imprisonment imposed by law but without a specification as to the
term or duration thereof.
As a consequence of such legislative faux pas or oversight, the
petition at bar seeks to set aside the decision of the then Court of
First Instance of Leyte, Branch IV, dated September 8,1976, 1
penned by herein respondent judge and granting the petition for
certiorari and prohibition with preliminary injunction filed by herein
private respondents and docketed therein as Civil Case No. 5428,
as well as his resolution of October 19, 1976 2 denying the motions
for reconsideration filed by the parties therein. Subject of said
decision were the issues on jurisdiction over violations of Republic
Act No. 4670, otherwise known as the Magna Carta for Public
School Teachers, and the constitutionality of Section 32 thereof.
In a complaint filed by the Chief of Police of Hindang, Leyte on April
4, 1975, herein private respondents Celestino S. Matondo,
Segundino A. Caval and Cirilo M. Zanoria, public school officials of
Leyte, were charged before the Municipal Court of Hindang, Leyte
in Criminal Case No. 555 thereof for violation of Republic Act No.
4670. The case was set for arraignment and trial on May 29, 1975.
At the arraignment, the herein private respondents, as the accused
therein, pleaded not guilty to the charge. Immediately thereafter,
they orally moved to quash the complaint for lack of jurisdiction over
the offense allegedly due to the correctional nature of the penalty of
imprisonment prescribed for the offense. The motion to quash was
subsequently reduced to writing on June 13, 1975. 3 On August 21,
1975, the municipal court denied the motion to quash for lack of
merit. 4 On September 2, 1975, private respondents filed a motion
for the reconsideration of the aforesaid denial order on the same
ground of lack of jurisdiction, but with the further allegation that the
facts charged do not constitute an offense considering that Section
32 of Republic Act No. 4670 is null and void for being
unconstitutional. In an undated order received by the counsel for
private respondents on October 20,1975, the motion for
reconsideration was denied. 5
On October 26, 1975, private respondents filed a petitions 6 for
certiorari and prohibition with preliminary injunction before the
former Court of First Instance of Leyte, Branch VIII, where it was
docketed as Civil Case No. B-622, to restrain the Municipal Judge,
93
Provincial Fiscal and Chief of Police of Hindang, Leyte from
proceeding with the trial of said Criminal Case No. 555 upon the
ground that the former Municipal Court of Hindang had no
jurisdiction over the offense charged. Subsequently, an amended
petition 7 alleged the additional ground that the facts charged do not
constitute an offense since the penal provision, which is Section 32
of said law, is unconstitutional for the following reasons: (1) It
imposes a cruel and unusual punishment, the term of imprisonment
being unfixed and may run to reclusion perpetua; and (2) It also
constitutes an undue delegation of legislative power, the duration of
the penalty of imprisonment being solely left to the discretion of the
court as if the latter were the legislative department of the
Government.
On March 30, 1976, having been advised that the petition of herein
private respondents was related to Criminal Case No. 1978 for
violation of Presidential Decree No. 442 previously transferred from
Branch VIII to Branch IV of the erstwhile Court of First Instance of
Leyte, Judge Fortunate B. Cuna of the former branch transferred the
said petition to the latter branch for further proceedings and where
it was subsequently docketed therein as Civil Case No. 5428. 8 On
March 15, 1976, the petitioner herein filed an opposition to the
admission of the said amended petitions 9 but respondent judge
denied the same in his resolution of April 20, 1976. 10 On August 2,
1976, herein petitioner filed a supplementary memorandum in
answer to the amended petition. 11
On September 8, 1976, respondent judge rendered the aforecited
challenged decision holding in substance that Republic Act No.
4670 is valid and constitutional but cases for its violation fall outside
of the jurisdiction of municipal and city courts, and remanding the
case to the former Municipal Court of Hindang, Leyte only for
preliminary investigation.
As earlier stated, on September 25, 1976, petitioner filed a motion
for reconsideration. 12 Likewise, private respondents filed a motion
for reconsideration of the lower court's decision but the same was
limited only to the portion thereof which sustains the validity of
Section 32 of Republic Act No. 4670. 13 Respondent judge denied
both motions for reconsideration in a resolution dated October 19,
1976. 14
The instant petition to review the decision of respondent judge
poses the following questions of law: (1) Whether the municipal and
city courts have jurisdiction over violations of Republic Act No. 4670;
and (2) Whether Section 32 of said Republic Act No. 4670 is
constitutional.
We shall resolve said queries in inverse order, since prior
determination of the constitutionality of the assailed provision of the
law involved is necessary for the adjudication of the jurisdictional
issue raised in this petition.
1. The disputed section of Republic Act No. 4670 provides:
Sec. 32. Penal Provision. — A person who shall wilfully interfere
with, restrain or coerce any teacher in the exercise of his rights
guaranteed by this Act or who shall in any other manner commit any
act to defeat any of the provisions of this Act shall, upon conviction,
be punished by a fine of not less than one hundred pesos nor more
than one thousand pesos, or by imprisonment, in the discretion of
the court. (Emphasis supplied).
Two alternative and distinct penalties are consequently imposed, to
wit: (a) a fine ranging from P100.00 to P1,000.00; or (b)
imprisonment. It is apparent that the law has no prescribed period
or term for the imposable penalty of imprisonment. While a minimum
and maximum amount for the penalty of fine is specified, there is no
equivalent provision for the penalty of imprisonment, although both
appear to be qualified by the phrase "in the discretion of the court.
Private respondents contend that a judicial determination of what
Congress intended to be the duration of the penalty of imprisonment
would be violative of the constitutional prohibition against undue
delegation of legislative power, and that the absence of a provision
on the specific term of imprisonment constitutes that penalty into a
cruel and unusual form of punishment. Hence, it is vigorously
asserted, said Section 32 is unconstitutional.
The basic principle underlying the entire field of legal concepts
pertaining to the validity of legislation is that in the enactment of
legislation a constitutional measure is thereby created. In every
case where a question is raised as to the constitutionality of an act,
the court employs this doctrine in scrutinizing the terms of the law.
In a great volume of cases, the courts have enunciated the
fundamental rule that there is a presumption in favor of the
constitutionality of a legislative enactment. 15
It is contended that Republic Act No. 4670 is unconstitutional on the
ground that the imposable but indefinite penalty of imprisonment
provided therein constitutes a cruel and unusual punishment, in
defiance of the express mandate of the Constitution. This contention
is inaccurate and should be rejected.
We note with approval the holding of respondent judge that —
The rule is established beyond question that a punishment
authorized by statute is not cruel or unusual or disproportionate to
the nature of the offense unless it is a barbarous one unknown to
the law or so wholly disproportionate to the nature of the offense as
to shock the moral sense of the community. Based on the principle,
our Supreme Court has consistently overruled contentions of the
defense that the punishment of fine or imprisonment authorized by
the statute involved is cruel and unusual. (Legarda vs. Valdez, 1
Phil. 146; U.S. vs. Pico, 18 Phil. 386; People vs. Garay, 2 ACR 149;
People vs. Estoista 93 Phil. 647; People vs. Tiu Ua. 96 Phil. 738;
People vs. Dionisio, 22 SCRA 1299). The language of our Supreme
Court in the first of the cases it decided after the last world war is
appropriate here:
The Constitution directs that 'Excessive fines shall not be imposed,
nor cruel and unusual punishment inflicted.' The prohibition of cruel
and unusual punishments is generally aimed at the form or
character of the punishment rather than its severity in respect of
duration or amount, and apply to punishments which never existed
in America, or which public sentiment has regarded as cruel or
obsolete (15 Am. Jur., p. 172), for instance there (sic) inflicted at the
whipping post, or in the pillory, burning at the stake, breaking on the
wheel, disemboweling, and the like (15 Am. Jur. Supra, Note 35
L.R.A. p. 561). Fine and imprisonment would not thus be within the
prohibition.' (People vs. de la Cruz, 92 Phil. 906). 16
The question that should be asked, further, is whether the
constitutional prohibition looks only to the form or nature of the
penalty and not to the proportion between the penalty and the crime.
The answer thereto may be gathered from the pronouncement in
People vs. Estoista, 17 where an "excessive" penalty was upheld as
constitutional and was imposed but with a recommendation for
executive clemency, thus:
... If imprisonment from 5 to 10 years is out of proportion to the
present case in view of certain circumstances, the law is not to be
declared unconstitutional for this reason. The constitutionality of an
act of the legislature is not to be judged in the light of exceptional
cases. Small transgressors for which the heavy net was not spread
are, like small fishes, bound to be caught, and it is to meet such a
situation as this that courts are advised to make a recommendation
to the Chief Executive for clemency or reduction of the penalty...
That the penalty is grossly disproportionate to the crime is an
insufficient basis to declare the law unconstitutional on the ground
that it is cruel and unusual. The fact that the punishment authorized
by the statute is severe does not make it cruel or unusual. 18 In
addition, what degree of disproportion the Court will consider as
obnoxious to the Constitution has still to await appropriate
determination in due time since, to the credit of our legislative
bodies, no decision has as yet struck down a penalty for being "cruel
and unusual" or "excessive."
We turn now to the argument of private respondents that the entire
penal provision in question should be invalidated as an 49 "undue
delegation of legislative power, the duration of penalty of
imprisonment being solely left to the discretion of the court as if the
lattter were the legislative department of the government."
Petitioner counters that the discretion granted therein by the
legislature to the courts to determine the period of imprisonment is
a matter of statutory construction and not an undue delegation of
legislative power. It is contended that the prohibition against undue
delegation of legislative power is concerned only with the delegation
of power to make laws and not to interpret the same. It is also
submitted that Republic Act No. 4670 vests in the courts the
discretion, not to fix the period of imprisonment, but to choose which
of the alternative penalties shall be imposed.
Respondent judge sustained these theses of petitioner on his theory
that "the principle of separation of powers is not violated by vesting
in courts discretion as to the length of sentence or amount of fine
between designated limits in sentencing persons convicted of crime.
In such instance, the exercise of judicial discretion by the courts is
not an attempt to use legislative power or to prescribe and create a
law but is an instance of the administration of justice and the
application of existing laws to the facts of particular cases." 19 What
94
respondent judge obviously overlooked is his own reference to
penalties "between designated limits."
In his commentary on the Constitution of the United States, Corwin
wrote:
.. At least three distinct ideas have contributed to the development
of the principle that legislative power cannot be delegated. One is
the doctrine of separation of powers: Why go to the trouble of
separating the three powers of government if they can straightway
remerge on their own motion? The second is the concept of due
process of laws which precludes the transfer of regulatory functions
to private persons. Lastly, there is the maxim of agency "Delegata
potestas non potest delegari." 20
An apparent exception to the general rule forbidding the delegation
of legislative authority to the courts exists in cases where discretion
is conferred upon said courts. It is clear, however, that when the
courts are said to exercise a discretion, it must be a mere legal
discretion which is exercised in discerning the course prescribed by
law and which, when discerned, it is the duty of the court to follow.
21
So it was held by the Supreme Court of the United States that the
principle of separation of powers is not violated by vesting in courts
discretion as to the length of sentence or the amount of fine between
designated limits in sentencing persons convicted of a crime. 22
In the case under consideration, the respondent judge erronneously
assumed that since the penalty of imprisonment has been provided
for by the legislature, the court is endowed with the discretion to
ascertain the term or period of imprisonment. We cannot agree with
this postulate. It is not for the courts to fix the term of imprisonment
where no points of reference have been provided by the legislature.
What valid delegation presupposes and sanctions is an exercise of
discretion to fix the length of service of a term of imprisonment which
must be encompassed within specific or designated limits provided
by law, the absence of which designated limits well constitute such
exercise as an undue delegation, if not-an outright intrusion into or
assumption, of legislative power.
Section 32 of Republic Act No. 4670 provides for an indeterminable
period of imprisonment, with neither a minimum nor a maximum
duration having been set by the legislative authority. The courts are
thus given a wide latitude of discretion to fix the term of
imprisonment, without even the benefit of any sufficient standard,
such that the duration thereof may range, in the words of respondent
judge, from one minute to the life span of the accused. Irremissibly,
this cannot be allowed. It vests in the courts a power and a duty
essentially legislative in nature and which, as applied to this case,
does violence to the rules on separation of powers as well as the
non-delegability of legislative powers. This time, the preumption of
constitutionality has to yield.
On the foregoing considerations, and by virtue of the separability
clause in Section 34 of Republic Act No. 4670, the penalty of
imprisonment provided in Section 32 thereof should be, as it is
hereby, declared unconstitutional.
It follows, therefore, that a ruling on the proper interpretation of the
actual term of imprisonment, as may have been intended by
Congress, would be pointless and academic. It is, however, worth
mentioning that the suggested application of the so-called rule or
principle of parallelism, whereby a fine of P1,000.00 would be
equated with one year of imprisonment, does not merit judicial
acceptance. A fine, whether imposed as a single or as an alternative
penalty, should not and cannot be reduced or converted into a
prison term; it is to be considered as a separate and independent
penalty consonant with Article 26 of the Revised Penal Code. 23 It
is likewise declared a discrete principal penalty in the graduated
scales of penalties in Article 71 of said Code. There is no rule for
transmutation of the amount of a fine into a term of imprisonment.
Neither does the Code contain any provision that a fine when
imposed in conjunction with imprisonment is subordinate to the
latter penalty. In sum, a fine is as much a principal penalty as
imprisonment. Neither is subordinate to the other. 24
2. It has been the consistent rule that the criminal jurisdiction
of the court is determined by the statute in force at the time of the
commencement of the action. 25
With the deletion by invalidation of the provision on imprisonment in
Section 32 of Republic Act No. 4670, as earlier discussed, the
imposable penalty for violations of said law should be limited to a
fine of not less than P100.00 and not more than P1,000.00, the
same to serve as the basis in determining which court may properly
exercise jurisdiction thereover. When the complaint against private
respondents was filed in 1975, the pertinent law then in force was
Republic Act No. 296, as amended by Republic Act No. 3828, under
which crimes punishable by a fine of not more than P 3,000.00 fall
under the original jurisdiction of the former municipal courts.
Consequently, Criminal Case No. 555 against herein private
respondents falls within the original jurisdiction of the Municipal Trial
Court of Hindang, Leyte.
WHEREFORE, the decision and resolution of respondent judge are
hereby REVERSED and SET ASIDE. Criminal Case No. 555 filed
against private respondents herein is hereby ordered to be
remanded to the Municipal Trial Court of Hindang, Leyte for trial on
the merits.
SO ORDERED.
G.R. No. L-45129 March 6, 1987
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HONORABLE BENJAMIN RELOVA, in his capacity as
Presiding Judge of the Court of First Instance of Batangas,
Second Branch, and MANUEL OPULENCIA, respondents.
FELICIANO, J.:
In this petition for certiorari and mandamus, the People of the
Philippines seek to set aside the orders of the respondent Judge of
the Court of First Instance of Batangas in Criminal Case No. 266,
dated 12 August 1976 and 8 November 1976, respectively,
quashing an information for theft filed against private respondent
Manuel Opulencia on the ground of double jeopardy and denying
the petitioner's motion for reconsideration.
On 1 February 1975, members of the Batangas City Police together
with personnel of the Batangas Electric Light System, equipped with
a search warrant issued by a city judge of Batangas City, searched
and examined the premises of the Opulencia Carpena Ice Plant and
Cold Storage owned and operated by the private respondent
Manuel Opulencia. The police discovered that electric wiring,
devices and contraptions had been installed, without the necessary
authority from the city government, and "architecturally concealed
inside the walls of the building" 1 owned by the private respondent.
These electric devices and contraptions were, in the allegation of
the petitioner "designed purposely to lower or decrease the readings
of electric current consumption in the electric meter of the said
electric [ice and cold storage] plant." 2 During the subsequent
investigation, Manuel Opulencia admitted in a written statement that
he had caused the installation of the electrical devices "in order to
lower or decrease the readings of his electric meter. 3
On 24 November 1975, an Assistant City Fiscal of Batangas City
filed before the City Court of Batangas City an information against
Manuel Opulencia for violation of Ordinance No. 1, Series of 1974,
Batangas City. A violation of this ordinance was, under its terms,
punishable by a fine "ranging from Five Pesos (P5.00) to Fifty Pesos
(P50.00) or imprisonment, which shall not exceed thirty (30) days,
or both, at the discretion of the court." 4 This information reads as
follows:
The undersigned, Assistant City Fiscal, accuses Manuel Opulencia
y Lat of violation of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10
Article II, Title IV of ordinance No. 1, S. 1974, with damage to the
City Government of Batangas, and penalized by the said ordinance,
committed as follows:
That from November, 1974 to February, 1975 at Batangas City,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to defraud the City Government
of Batangas, without proper authorization from any lawful and/or
permit from the proper authorities, did then and there wilfully,
unlawfully and feloniously make unauthorized installations of
electric wirings and devices to lower or decrease the consumption
of electric fluid at the Opulencia Ice Plant situated at Kumintang,
Ibaba, this city and as a result of such unathorized installations of
electric wirings and devices made by the accused, the City
Government of Batangas was damaged and prejudiced in the total
amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND
SIXTEEN CENTAVOS (P41,062.16) Philippine currency, covering
the period from November 1974 to February, 1975, to the damage
and prejudice of the City Government of Batangas in the aforestated
amount of P41,062.16, Philippine currency.
95
The accused Manuel Opulencia pleaded not guilty to the above
information. On 2 February 1976, he filed a motion to dismiss the
information upon the grounds that the crime there charged had
already prescribed and that the civil indemnity there sought to be
recovered was beyond the jurisdiction of the Batangas City Court to
award. In an order dated 6 April 1976, the Batangas City Court
granted the motion to dismiss on the ground of prescription, it
appearing that the offense charged was a light felony which
prescribes two months from the time of discovery thereof, and it
appearing further that the information was filed by the fiscal more
than nine months after discovery of the offense charged in February
1975.
Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of
Batangas City filed before the Court of First Instance of Batangas,
Branch 11, another information against Manuel Opulencia, this time
for theft of electric power under Article 308 in relation to Article 309,
paragraph (1), of the Revised Penal Code. This information read as
follows:
The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat
of the crime of theft, defined and penalized by Article 308, in relation
to Article 309, paragraph (1) of the Revised Penal Code, committed
as follows:
That on, during, and between the month of November, 1974, and
the 21st day of February, 1975, at Kumintang, lbaba, Batangas City,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with intent of gain and without the
knowledge and consent of the Batangas Electric Light System, did
then and there, wilfully, unlawfully and feloniously take, steal and
appropriate electric current valued in the total amount of FORTY
ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN
CENTAVOS (P41,062.16) Philippine Currency, to the damage and
prejudice of the said Batangas Electric Light System, owned and
operated by the City Government of Batangas, in the
aforementioned sum of P41,062.16.
The above information was docketed as Criminal Case No. 266
before the Court of First Instance of Batangas, Branch II. Before he
could be arraigned thereon, Manuel Opulencia filed a Motion to
Quash, dated 5 May 1976, alleging that he had been previously
acquitted of the offense charged in the second information and that
the filing thereof was violative of his constitutional right against
double jeopardy. By Order dated 16 August 1976, the respondent
Judge granted the accused's Motion to Quash and ordered the case
dismissed. The gist of this Order is set forth in the following
paragraphs:
The only question here is whether the dismissal of the first case can
be properly pleaded by the accused in the motion to quash.
In the first paragraph of the earlier information, it alleges that the
prosecution "accuses Manuel Opulencia y Lat of violation of Sec.
3(b) in relation to Sec. 6(d) and Sec. 10 Article II, Title IV of
Ordinance No. 1, s. 1974, with damage to the City Government of
Batangas, etc. " (Emphasis supplied). The first case, as it appears,
was not simply one of illegal electrical connections. It also covered
an amount of P41,062.16 which the accused, in effect, allegedly
with intent to defraud, deprived the city government of Batangas. If
the charge had meant illegal electric installations only, it could have
alleged illegal connections which were done at one instance on a
particular date between November, 1974, to February 21, 1975. But
as the information states "that from November, 1974 to February
1975 at Batangas City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused with intent to defraud
the City Government of Batangas, without proper authorization from
any lawful and/or permit from the proper authorities, did then and
there wilfully, unlawfully and feloniously make unauthorized
installations of electric wirings and devices, etc." (Emphasis
supplied), it was meant to include the P 41,062.16 which the
accused had, in effect, defrauded the city government. The
information could not have meant that from November 1974 to 21
February 1975, he had daily committed unlawful installations.
When, therefore, he was arraigned and he faced the indictment
before the City Court, he had already been exposed, or he felt he
was exposed to consequences of what allegedly happened between
November 1974 to February 21, 1975 which had allegedly resulted
in defrauding the City of Batangas in the amount of P 41,062.16.
(Emphases and parentheses in the original)
A Motion for Reconsideration of the above-quoted Order filed by the
petitioner was denied by the respondent Judge in an Order dated
18 November 1976.
On 1 December 1976, the present Petition for certiorari and
mandamus was filed in this Court by the Acting City Fiscal of
Batangas City on behalf of the People.
The basic premise of the petitioner's position is that the
constitutional protection against double jeopardy is protection
against a second or later jeopardy of conviction for the same
offense. The petitioner stresses that the first information filed before
the City Court of Batangas City was one for unlawful or unauthorized
installation of electrical wiring and devices, acts which were in
violation of an ordinance of the City Government of Batangas. Only
two elements are needed to constitute an offense under this City
Ordinance: (1) that there was such an installation; and (2) no
authority therefor had been obtained from the Superintendent of the
Batangas City Electrical System or the District Engineer. The
petitioner urges that the relevant terms of the City Ordinance —
which read as follows:
Section 3.-Connection and Installation
(a) xxx
(b) The work and installation in the houses and building and
their connection with the Electrical System shall be done either by
the employee of the system duly authorized by its Superintendent
or by persons adept in the matter duly authorized by the District
Engineer. Applicants for electrical service permitting the works of
installation or connection with the system to be undertaken by the
persons not duly authorized therefor shall be considered guilty of
violation of the ordinance.
would show that:
The principal purpose for (sic) such a provision is to ensure that
electrical installations on residences or buildings be done by
persons duly authorized or adept in the matter, to avoid fires and
accidents due to faulty electrical wirings. It is primarily a regulatory
measure and not intended to punish or curb theft of electric fluid
which is already covered by the Revised Penal Code. 5
The gist of the offense under the City Ordinance, the petitioner's
argument continues, is the installing of electric wiring and devices
without authority from the proper officials of the city government. To
constitute an offense under the city ordinance, it is not essential to
establish any mens rea on the part of the offender generally
speaking, nor, more specifically, an intent to appropriate and steal
electric fluid.
In contrast, the petitioner goes on, the offense of theft under Article
308 of the Revised Penal Code filed before the Court of First
Instance of Batangas in Criminal Case No. 266 has quite different
essential elements. These elements are:
1. That personal property be taken;
2. That the personal property (taken) belongs to another;
3. That the taking be done with intent of gain;
4. That the taking be done without the consent of the owner;
and
5. That the taking be accomplished without violence against
or intimidation of persons or force upon things. 6
The petitioner also alleges, correctly, in our view, that theft of
electricity can be effected even without illegal or unauthorized
installations of any kind by, for instance, any of the following means:
1. Turning back the dials of the electric meter;
2. Fixing the electric meter in such a manner that it will not
register the actual electrical consumption;
3. Under-reading of electrical consumption; and
4. By tightening the screw of the rotary blade to slow down
the rotation of the same. 7
The petitioner concludes that:
The unauthorized installation punished by the ordinance [of
Batangas City] is not the same as theft of electricity [under the
Revised Penal Code]; that the second offense is not an attempt to
commit the first or a frustration thereof and that the second offense
is not necessarily included in the offense charged in the first
inforrnation 8
96

The above arguments made by the petitioner are of course correct.
This is clear both from the express terms of the constitutional
provision involved — which reads as follows:
No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction
or acquittal under either shall constitute a bar to another prosecution
for the same act. (Emphasis supplied; Article IV (22), 1973
Constitution) 9
and from our case law on this point. 10 The basic difficulty with the
petitioner's position is that it must be examined, not under the terms
of the first sentence of Article IV (22) of the 1973 Constitution, but
rather under the second sentence of the same section. The first
sentence of Article IV (22) sets forth the general rule: the
constitutional protection against double jeopardy is not available
where the second prosecution is for an offense that is different from
the offense charged in the first or prior prosecution, although both
the first and second offenses may be based upon the same act or
set of acts. The second sentence of Article IV (22) embodies an
exception to the general proposition: the constitutional protection,
against double jeopardy is available although the prior offense
charged under an ordinance be different from the offense charged
subsequently under a national statute such as the Revised Penal
Code, provided that both offenses spring from the same act or set
of acts. This was made clear sometime ago in Yap vs. Lutero. 11
In Yap, petitioner Manuel Yap was charged in Criminal Case No.
16054 of the Municipal Court of Iloilo City, with violation of Article 14
of Ordinance No. 22, Series of 1951, in relation to Ordinance No.
15, Series of 1954, of the City of Iloilo. The information charged him
with having "wilfully, unlawfully and feloniously drive[n] and
operate[d]" an automobile — "recklessly and without reasonable
caution thereby endangering other vehicles and pedestrians
passing in said street." Three months later, Yap was again charged
in Criminal Case No. 16443 of the same Municipal Court, this time
with serious physical injuries through reckless imprudence. The
information charged him with violation of the Revised Motor Vehicle
Law (Act No. 3992 as amended by Republic Act No. 587) committed
by driving and operating an automobile in a reckless and negligent
manner and as a result thereof inflicting injuries upon an unfortunate
pedestrian. Yap moved to quash the second information upon the
ground that it placed him twice in jeopardy of punishment for the
same act. This motion was denied by the respondent municipal
judge. Meantime, another municipal judge had acquitted Yap in
Criminal Case No. 16054. Yap then instituted a petition for certiorari
in the Court of First Instance of Iloilo to set aside the order of the
respondent municipal judge. The Court of First Instance of Iloilo
having reversed the respondent municipal judge and having
directed him to desist from continuing with Criminal Case No.
16443, the respondent Judge brought the case to the Supreme
Court for review on appeal. In affirming the decision appealed from
and holding that the constitutional protection against double
jeopardy was available to petitioner Yap, then Associate Justice and
later Chief Justice Roberto Concepcion wrote:
To begin with, the crime of damage to property through reckless
driving — with which Diaz stood charged in the court of first instance
— is a violation of the Revised Penal Code (third paragraph of
Article 365), not the Automobile Law (Act No. 3992, as amended by
Republic Act No. 587). Hence, Diaz was not twice accused of a
violation of the same law. Secondly, reckless driving and certain
crimes committed through reckless driving are punishable under
different provisions of said Automobile Law. Hence — from the view
point of Criminal Law, as distinguished from political or
Constitutional Law — they constitute, strictly, different offenses,
although under certain conditions, one offense may include the
other, and, accordingly, once placed in jeopardy for one, the plea of
double jeopardy may be in order as regards the other, as in the Diaz
case. (Emphases in the original)
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy.
The first sentence of clause 20, section 1, Article III of the
Constitution, ordains that "no person shall be twice put in jeopardy
of punishment for the same offense." (Emphasis in the original) The
second sentence of said clause provides that "if an act is punishable
by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act." Thus, the
first sentence prohibits double jeopardy of punishment for the same
offense, whereas the second contemplates double jeopardy of
punishment for the same act. Under the first sentence, one may be
twice put in jeopardy of punishment of the same act provided that
he is charged with different offenses, or the offense charged in one
case is not included in or does not include, the crime charged in the
other case. The second sentence applies, even if the offenses
charged are not the same, owing to the fact that one constitutes a
violation of an ordinance and the other a violation of a statute. If the
two charges are based on one and the same act conviction or
acquittal under either the law or the ordinance shall bar a
prosecution under the other. 12 Incidentally, such conviction or
acquittal is not indispensable to sustain the plea of double jeopardy
of punishment for the same offense. So long as jeopardy has
attached under one of the informations charging said offense, the
defense may be availed of in the other case involving the same
offense, even if there has been neither conviction nor acquittal in
either case.
The issue in the case at bar hinges, therefore, on whether or not,
under the information in case No. 16443, petitioner could — if he
failed to plead double jeopardy — be convicted of the same act
charged in case No. 16054, in which he has already been acquitted.
The information in case No. 16054 alleges, substantially, that on the
date and in the place therein stated, petitioner herein had wilfully,
unlawfully and feloniously driven and operated "recklessly and
without reasonable caution" an automobile described in said
information. Upon the other hand, the information in case No.
16443, similarly states that, on the same date and in the same place,
petitioner drove and operated the aforementioned automobile in a
"reckless and negligent manner at an excessive rate of speed and
in violation of the Revised Motor Vehicle Law (Act No. 3992), as
amended by Republic Act No. 587, and existing city ordinances."
Thus, if the theories mentioned in the second information were not
established by the evidence, petitioner could be convicted in case
No. 16443 of the very same violation of municipal ordinance
charged in case No. 16054, unless he pleaded double jeopardy.
It is clear, therefore, that the lower court has not erred eventually
sustaining the theory of petitioner herein.
Put a little differently, where the offenses charged are penalized
either by different sections of the same statute or by different
statutes, the important inquiry relates to the identity of offenses
charge: the constitutional protection against double jeopardy is
available only where an Identity is shown to exist between the earlier
and the subsequent offenses charged. In contrast, where one
offense is charged under a municipal ordinance while the other is
penalized by a statute, the critical inquiry is to the identity of the acts
which the accused is said to have committed and which are alleged
to have given rise to the two offenses: the constitutional protection
against double jeopardy is available so long as the acts which
constitute or have given rise to the first offense under a municipal
ordinance are the same acts which constitute or have given rise to
the offense charged under a statute.
The question may be raised why one rule should exist where two
offenses under two different sections of the same statute or under
different statutes are charged, and another rule for the situation
where one offense is charged under a municipal ordinance and
another offense under a national statute. If the second sentence of
the double jeopardy provision had not been written into the
Constitution, conviction or acquittal under a municipal ordinance
would never constitute a bar to another prosecution for the same act
under a national statute. An offense penalized by municipal
ordinance is, by definition, different from an offense under a statute.
The two offenses would never constitute the same offense having
been promulgated by different rule-making authorities — though
one be subordinate to the other — and the plea of double jeopardy
would never lie. The discussions during the 1934-1935
Constitutional Convention show that the second sentence was
inserted precisely for the purpose of extending the constitutional
protection against double jeopardy to a situation which would not
otherwise be covered by the first sentence. 13
The question of Identity or lack of Identity of offenses is addressed
by examining the essential elements of each of the two offenses
charged, as such elements are set out in the respective legislative
definitions of the offenses involved. The question of Identity of the
acts which are claimed to have generated liability both under a
municipal ordinance and a national statute must be addressed, in
the first instance, by examining the location of such acts in time and
space. When the acts of the accused as set out in the two
informations are so related to each other in time and space as to be
reasonably regarded as having taken place on the same occasion
and where those acts have been moved by one and the same, or a
continuing, intent or voluntary design or negligence, such acts may
be appropriately characterized as an integral whole capable of
giving rise to penal liability simultaneously under different legal
enactments (a municipal ordinance and a national statute).
In Yap, the Court regarded the offense of reckless driving under the
Iloilo City Ordinance and serious physical injuries through reckless
imprudence under the Revised Motor Vehicle Law as derived from
the same act or sets of acts — that is, the operation of an automobile
97
in a reckless manner. The additional technical element of serious
physical injuries related to the physical consequences of the
operation of the automobile by the accused, i.e., the impact of the
automobile upon the body of the offended party. Clearly, such
consequence occurred in the same occasion that the accused
operated the automobile (recklessly). The moral element of
negligence permeated the acts of the accused throughout that
occasion.
In the instant case, the relevant acts took place within the same time
frame: from November 1974 to February 1975. During this period,
the accused Manuel Opulencia installed or permitted the installation
of electrical wiring and devices in his ice plant without obtaining the
necessary permit or authorization from the municipal authorities.
The accused conceded that he effected or permitted such
unauthorized installation for the very purpose of reducing electric
power bill. This corrupt intent was thus present from the very
moment that such unauthorized installation began. The immediate
physical effect of the unauthorized installation was the inward flow
of electric current into Opulencia's ice plant without the
corresponding recording thereof in his electric meter. In other words,
the "taking" of electric current was integral with the unauthorized
installation of electric wiring and devices.
It is perhaps important to note that the rule limiting the constitutional
protection against double jeopardy to a subsequent prosecution for
the same offense is not to be understood with absolute literalness.
The Identity of offenses that must be shown need not be absolute
Identity: the first and second offenses may be regarded as the
"same offense" where the second offense necessarily includes the
first offense or is necessarily included in such first offense or where
the second offense is an attempt to commit the first or a frustration
thereof. 14 Thus, for the constitutional plea of double jeopardy to be
available, not all the technical elements constituting the first offense
need be present in the technical definition of the second offense.
The law here seeks to prevent harrassment of an accused person
by multiple prosecutions for offenses which though different from
one another are nonetheless each constituted by a common set or
overlapping sets of technical elements. As Associate Justice and
later Chief Justice Ricardo Paras cautioned in People vs. del
Carmen et al., 88 Phil. 51 (1951):
While the rule against double jeopardy prohibits prosecution for the
same offense, it seems elementary that an accused should be
shielded against being prosecuted for several offenses made out
from a single act. Otherwise, an unlawful act or omission may give
use to several prosecutions depending upon the ability of the
prosecuting officer to imagine or concoct as many offenses as can
be justified by said act or omission, by simply adding or subtracting
essential elements. Under the theory of appellant, the crime of rape
may be converted into a crime of coercion, by merely alleging that
by force and intimidation the accused prevented the offended girl
from remaining a virgin. (88 Phil. at 53; emphases supplied)
By the same token, acts of a person which physically occur on the
same occasion and are infused by a common intent or design or
negligence and therefore form a moral unity, should not be
segmented and sliced, as it were, to produce as many different acts
as there are offenses under municipal ordinances or statutes that
an enterprising prosecutor can find
It remains to point out that the dismissal by the Batangas City Court
of the information for violation of the Batangas City Ordinance upon
the ground that such offense had already prescribed, amounts to an
acquittal of the accused of that offense. Under Article 89 of the
Revised Penal Code, "prescription of the crime" is one of the
grounds for "total extinction of criminal liability." Under the Rules of
Court, an order sustaining a motion to quash based on prescription
is a bar to another prosecution for the same offense. 15
It is not without reluctance that we deny the people's petition for
certiorari and mandamus in this case. It is difficult to summon any
empathy for a businessman who would make or enlarge his profit
by stealing from the community. Manuel Opulencia is able to escape
criminal punishment because an Assistant City Fiscal by
inadvertence or otherwise chose to file an information for an offense
which he should have known had already prescribed. We are,
however, compelled by the fundamental law to hold the protection
of the right against double jeopardy available even to the private
respondent in this case.
The civil liability aspects of this case are another matter. Because
no reservation of the right to file a separate civil action was made by
the Batangas City electric light system, the civil action for recovery
of civil liability arising from the offense charged was impliedly
instituted with the criminal action both before the City Court of
Batangas City and the Court of First Instance of Batangas. The
extinction of criminal liability whether by prescription or by the bar of
double jeopardy does not carry with it the extinction of civil liability
arising from the offense charged. In the present case, as we noted
earlier, 16 accused Manuel Opulencia freely admitted during the
police investigation having stolen electric current through the
installation and use of unauthorized elibctrical connections or
devices. While the accused pleaded not guilty before the City Court
of Batangas City, he did not deny having appropriated electric
power. However, there is no evidence in the record as to the amount
or value of the electric power appropriated by Manuel Opulencia,
the criminal informations having been dismissed both by the City
Court and by the Court of First Instance (from which dismissals the
Batangas City electric light system could not have appealed 17)
before trial could begin. Accordingly, the related civil action which
has not been waived expressly or impliedly, should be remanded to
the Court of First Instance of Batangas City for reception of evidence
on the amount or value of the electric power appropriated and
converted by Manuel Opulencia and rendition of judgment
conformably with such evidence.
WHEREFORE, the petition for certiorari and mandamus is DENIED.
Let the civil action for related civil liability be remanded to the Court
of First Instance of Batangas City for further proceedings as
indicated above. No pronouncement as to costs.
SO ORDERED.
G.R. No. L-36528 September 24, 1987
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE CITY COURT OF MANILA, BRANCH VI and AGAPITO
GONZALES Y VENERACION, respondents.
PADILLA, J.:
Petition for review on certiorari to set aside the order of the
respondent City Court of Manila, Branch VI, dated 20 January 1973,
dismissing the information (for violation of Article 201 (3) of the
Revised Penal Code) against the accused, herein respondent
Agapito Gonzales, in Criminal Case No. F-147348 and its amended
order, dated 16 March 1973, denying petitioner's motion for
reconsideration of the first order.
Respondent Agapito Gonzales, together with Roberto Pangilinan,
was accused of violating Section 7, in relation to Section 11,
Republic Act No. 3060 and Article 201 (3) of the Revised Penal
Code, in two (2) separate informations filed with the City Court of
Manila on 4 April 1972.
On 7 April 1972, before arraignment in the two (2) cases, the City
Fiscal amended the information in Criminal Case No. F-147347 (for
violation of Section 7 in relation to Section 11, Rep. Act No. 3060),
by alleging that the accused.
conspiring, and confederating together, and mutually helping each
other did then and there wilfully, unlawfully, and feloniously publicly
exhibit and cause to be publicly exhibited ... completed composite
prints of motion film, of the 8 mm. size, in color forming visual
moving images on the projection screen through the mechanical
application of the projection equipment, which motion pictures have
never been previously submitted to the Board of Censors for Motion
Pictures for preview, examination and partnership, nor duly passed
by said Board, in a public place, to wit: at Room 309, De Leon
Building, Raon Street corner Rizal Avenue, [Manila].
On the other hand, the information in Criminal Case No. F-147348
(for violation of Article 201 (3) of the Revised Penal Code) was
amended to allege that, on the same date, 16 July 1971, the same
accused,
conspiring and confederating together and actually helping each
other, did then and there wilfully, unlawfully, feloniously and publicly
exhibit, through the mechanical application of movie projection
equipment and the use of projection screen, indecent and immoral
motion picture scenes, to wit: motion pictures of the 8 mm. size, in
color, depicting and showing scenes of totally naked female and
male persons with exposed private parts doing the sex act in various
lewd and obvious positions, among other similarly and equally
obscene and morally offensive scenes, in a place open to public
view, to wit: at Room 309, De Leon Building, Raon Street corner
Rizal Avenue, [Manila].
98
On 31 May 1972, upon arraignment, accused Agapito Gonzales
pleaded not guilty to both charges. The other accused, Roberto
Pangilinan, was not arraigned as he was (and he still is) at large.
On 26 June 1972, accused Agapito Gonzales filed a motion to
quash the informations in the two (2) cases, on the ground that said
informations did not charge an offense. The motion was denied on
17 July 1972 and the cases were set for trial on 7 August 1972.
No hearing was held on 7 August 1972, however, as the accused
moved for postponement of the trial set on said date and the trial set
on two (2) other dates. On 15 November 1972, the accused
Gonzales moved for permission to withdraw his plea of "not guilty"
in Criminal Case No. F-147348, without however, substituting or
entering another plea. The Court granted the motion and reset the
hearing of the cases for 27 December 1972.
On 27 December 1972, accused Gonzales moved to quash the
information in Criminal Case No. F-147348 on the ground of double
jeopardy, as there was according to him, also pending against him
Criminal Case No. F-147347, for violation of Rep. Act No. 3060,
where the information allegedly contains the same allegations as
the information in Criminal Case No. F-147348.
Petitioner opposed the motion to quash but the respondent City
Court, in an order, dated 20 January 1973, dismissed the case
(Criminal Case No. F-147348) stating thus:
In one case (F-147347), the basis of the charge is a special law,
Rep. Act No. 3060. In the other case (F-147348), the basis of the
same is the pertinent provision of the Revised Penal Code.
Considering that the allegations in the information of said cases are
Identical the plea entered in one case by the accused herein can be
reasonably seen as exposing him to double jeopardy in the other
case, as said allegations therein are not only similar but [sic]
Identical facts.
After the dismissal of Criminal Case No. F-147348, or on 7 February
1973, in Criminal Case No. F-147347, the accused changed his plea
of "not guilty" and entered a plea of "guilty" for violation of Rep. Act
No. 3060. He was accordingly sentenced to pay a fine of P600.00.
On 10 February 1973, petitioner filed a motion for reconsideration
of the order of 20 January 1973, dismissing Criminal Case No. F-
147348. This was however denied by respondent court in its order
dated 15 March 1973, and in its amended order dated 16 March
1973; hence, this petition for review on certiorari.
Petitioner contends that the accused could not invoke the
constitutional guarantee against double jeopardy, when there had
been no conviction, acquittal, dismissal or termination of criminal
proceedings in another case for the same offense. 1 The
respondent, on the other hand, argues that conviction or acquittal
in, or dismissal or termination of a first case is not necessary, so
long as he had been put in jeopardy of being convicted or acquitted
in the first case of the same offense. 2
It is a settled rule that to raise the defense of double jeopardy, three
requisites must be present: (1) a first jeopardy must have attached
prior to the second; (2) the first jeopardy must have been validly
terminated; and (3) the second jeopardy must be for the same
offense, or the second offense includes or is necessarily included in
the offense charged in the first information, or is an attempt to
commit the same or a frustration thereof
All these requisites do not exist in this case.
The two (2) informations with which the accused was charged, do
not make out only one offense, contrary to private respondent's
allegations. In other words, the offense defined in section 7 of Rep.
Act No. 3060 punishing the exhibition of motion pictures not duly
passed by the Board of Censors for Motion Pictures does not
include or is not included in the offense defined in Article 201 (3) of
the Revised Penal Code punishing the exhibition of indecent and
immoral motion pictures.
The two (2) offenses do not constitute a jeopardy to each other. A
scrutiny of the two (2) laws involved would show that the two (2)
offenses are different and distinct from each other. The relevant
provisions of Rep. Act No. 3060 state:
Sec. 7. It shall be unlawful for any person or entity to exhibit or
cause to be exhibited in any motion picture theater or public place,
or by television within the Philippines any motion picture, including
trailers, stills, and other pictorial advertisements in connection with
motion pictures, not duly passed by the Board; or to print or cause
to be printed on any motion picture to be exhibited in any theater, or
public place or by television, a label or notice showing the same to
have been previously passed by the said Board when the same has
not been previously authorized, except motion pictures imprinted or
exhibited by the Philippine Government and/or its departments and
agencies, and newsreels.
Sec. 11. Any violation of Section seven of this Act shall be punished
by imprisonment of not less than six months but not more than two
years, or by a fine of not less than six hundred nor more than two
thousand pesos, or both at the discretion of the court. If the offender
is an alien he shall be deported immediately. The license to operate
the movie theater or television shall also be revoked. Any other kind
of violation shall be punished by imprisonment of not less than one
month nor more than three months or a fine of not less than one
hundred pesos nor more than three hundred pesos, or both at the
discretion of the court. In case the violation is committed by a
corporation, partnership or association, the liability shall devolve
upon the president, manager, administrator, or any office thereof
responsible for the violation.
On the other hand, Article 201 (3) of the Revised Penal Code
provides:
Art. 201. Immoral doctrines, obscene publications and exhibitions.-
The penalty of prision correccional in its minimum period, or a fine
ranging from 200 to 2,000 pesos, or both, shall be imposed upon:
... 3. Those who in theaters, fairs, cinematographs, or any other
place open to public view, shall exhibit indecent or immoral plays,
scenes, acts, or shows; ...
It is evident that the elements of the two (2) offenses are different.
The gravamen of the offense defined in Rep. Act No. 3060 is the
public exhibition of any motion picture which has not been
previously passed by the Board of Censors for Motion Pictures. The
motion picture may not be indecent or immoral but if it has not been
previously approved by the Board, its public showing constitutes a
criminal offense. 3 On the other hand, the offense punished in Article
201 (3) of the Revised Penal Code is the public showing of indecent
or immoral plays, scenes, acts, or shows, not just motion pictures.
4
The nature of both offenses also shows their essential difference.
The crime punished in Rep. Act No. 3060 is a malum prohibitum in
which criminal intent need not be proved because it is presumed,
while the offense punished in Article 201 (3) of the Revised Penal
Code is malum in se, in which criminal intent is an indispensable
ingredient.
Considering these differences in elements and nature, there is no
Identity of the offenses here involved for which legal jeopardy in one
may be invoked in the other. 5 Evidence required to prove one
offense is not the same evidence required to prove the other. The
defense of double jeopardy cannot prosper. As aptly put in People
v. Doriquez. 6
It is a cardinal rule that the protection against double jeopardy may
be invoked only for the same offense or Identical offense. A single
act may offend against two (or more) entirely distinct and unrelated
provisions of law, and if one provision requires proof of an additional
fact or element which the other does not, an acquittal or conviction
or a dismissal of the information under one does not bar prosecution
under the other. (People v. Bacolod, 89 Phil. 621; People v. Alvarez,
45 Phil. 24). Phrased elsewhere, where two different laws (or
articles of the same code) define two crimes, prior jeopardy as to
one of them is no obstacle to a prosecution of the other, although
both offenses arise from the same facts, if each crime involves some
important act which is not an essential element of the other. (People
v. Alvarez, 45 Phil. 472). 7 (Emphasis supplied)
Petitioner also questions the propriety of allowing the accused in
Criminal Case No. F-147348 to withdraw his plea of not guilty in
order to file a motion to quash on the ground of double jeopardy.
Petitioner argues:
It is true that on February 3, 1973, the trial court finally convicted
respondent Gonzales in Criminal Case No. F-147347 by imposing
on him a fine of P600.00. But it is obvious that respondent
Gonzales's conviction in that case cannot retroactively supply the
ground for the dismissal of Criminal Case No. F-147348.
But even if conviction in Criminal Case No. F-147347 preceded the
dismissal of Criminal Case No. F-147348, still that conviction cannot
bar the prosecution for violation of Article 201 (3) of the Revised
Penal Code, because, by pleading to the charge in Criminal Case
No. F-147348 without moving to quash the information, the accused
(now the respondent) Gonzales must be taken to have waived the
99
defense of double jeopardy, pursuant to the provisions of Rule 117,
section 10. (Barot v. Villamor, 105 Phil. 263 [1959]) It is only in cases
where, after pleading or moving to quash on some other grounds,
the accused learns for the first time that the offense of which he is
charged is an offense for which he has been in jeopardy that the
court may in its discretion entertain at any time before judgment a
motion to quash on that ground. ... In the case at bar, however, the
fact is that the accused (now the respondent Gonzales) was
arraigned in the same court. He, therefore, cannot claim ignorance
of the existence of another charge against him for supposedly the
same offense. 8
Petitioner's argument is well-taken. Sec. 10, Rule 117, of the Rules
of Court, before its amendment stated —
SEC. 10. Failure to move to quash-Effect of- Exception. — If the
defendant does not move to quash the complaint or information
before he pleads thereto he shall be taken to have waived all
objections which are grounds for a motion to quash except when the
complaint or information does not charge an offense, or the court is
without jurisdiction of the same. If, however, the defendant learns
after he has pleaded or has moved to quash on some other ground
that the offense for which he is now charged is an offense for which
he has been pardoned, or of which he has been convicted or
acquitted or been in jeopardy, the court may in its discretion
entertain at any time before judgment a motion to quash on the
ground of such pardon, conviction, acquittal or jeopardy. (Emphasis
supplied)
However, it must be noted that, under the 1985 Rules, the provision
now reads as follows:
Failure to move or quash or to allege any ground therefore. The
failure of the accused to assert any ground of a motion to quash
before he pleads to the complaint or information, either because he
did not file a motion to quash or failed to allege the same in said
motion, shall be deemed a waiver of the grounds for a motion to
quash, except the grounds of no offense charged, lack of
jurisdiction, extinction of the offense or penalty, and jeopardy. ... 9
The above, being an amendment favorable to the accused, the
benefit thereof can be extended to the accused-respondent.
However, whatever benefit he may derive from this amendment, is
also illusory. For, as previously noted, there is no double jeopardy
which gave rise to a valid motion to quash.
The People (petitioner) rightly appealed the dismissal of Criminal
Case No F-147348. For, as ruled in People v. Desalisa: 10
As a general rule, the dismissal or termination of a case after
arraignment and plea of the defendant to a valid information shall
be a bar to another prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof, or for any offense
which necessarily includes or is necessarily included in the
complaint or information (Sec. 9, Rule 113). However, an appeal by
the prosecution from the order of dismissal (of the criminal case) by
the trial court shall not constitute double jeopardy if (1) the dismissal
is made upon motion, or with the express consent, of the defendant,
and (2) the dismissal is not an acquittal or based upon consideration
of the evidence or of the merits of the case; and (3) the question to
be passed upon by the appellate court is purely legal so that should
the dismissal be found incorrect, the case would have to be
remanded to the court of origin for further proceedings, to determine
the guilt or innocence of the defendant. 11
WHEREFORE, the petition is granted. The appealed orders are
hereby reversal and set aside. Criminal Case No. F-147348 is
ordered reinstated and remanded to the respondent Court for trial
according to law.
SO ORDERED.
G.R. No. L-36458 February 21, 1983
FRANCISCA ALIMAGNO and JOVITA MELO, petitioners,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
Joaquin E. Chipeco and Fortunato Gupit, Jr., for petitioners.
The Solicitor General for respondent.
RELOVA, J.:
Petitioners Francisca Alimagno and Jovita Melo were convicted, as
principal and accomplice, respectively, of the crime of corruption of
minor, as defined in Article 340 of the Revised Penal Code, by the
City Court of San Pablo, and sentenced as follows:
... The accused Francisca Alimagno, to suffer the penalty ranging
from six (6) months of arresto mayor as minimum to two (2) years,
eleven (11) months and ten (10) days as maximum, to indemnify the
offended party in the sum of P500.00 with subsidiary imprisonment
in case of insolvency, which shall not be more than one-third of the
principal penalty herein imposed and to pay the proportionate costs;
the accused Jovita Melo, to suffer the penalty of six (6) months of
arresto mayor, to indemnify the offended party in the sum of
P200.00 with subsidiary imprisonment in case of insolvency which
shall not be more than one-third of the principal penalty herein
imposed and to pay the proportionate costs.
The Court of Appeals modified the decision with respect to the
subsidiary penalty, thus:
However, the subsidiary imprisonment in case of insolvency of the
defendants to pay the respective indemnities imposed upon them
should be eliminated from the dispositive portion of the lower court's
decision. (Rep. Act No. 5465). Moreover, it should be ordained
therein that in the event of insolvency of one of them, the other
should be subsidiarily liable thereto, with right of reimbursement,
pursuant to Article 110 of the Revised Penal Code.
WHEREFORE, with the modification indicated above, the decision
appealed from, being in keeping with the evidence and the law, is
hereby affirmed, with costs against the appellants.
The main facts are set forth in the decision of the Court of Appeals,
from which We quote:
Complainant Filomena de la Cruz, who was undisputedly born on
August 10, 1946 at Calamba, Laguna (Exh. B), was employed in the
house of Pita Alvero at San Pablo City as a domestic helper for a
period of only nine (9) days from November 20, 1964 to November
29, 1964. On November 27, 1964, she came to know defendant
Francisca Alimagno who was bringing money to her employer Pita
Alvero. On said date, defendant Alimagno tried to convince her to
leave the house of Pita Alvero, promising her a better job. Defendant
Alimagno, having gained her confidence, succeeded in thus
persuading her to leave the house of Pita Alvero. Hence, on
November 29, 1964, after leaving a self-explanatory note, Exh. A,
which was admittedly written by accused Francisca Alimagno
herself, which reads:
Ako ho ay nagtanan kasama ko ay lalake.
Your Utusan
complainant abandoned the house of her mistress and went with
defendants Francisca Alimagno and Jovita Melo in a jeep, together
with a man and a driver. They then proceeded to Barrio Putol, San
Pablo City, where she was brought to a hut thereat and there
allowed to be ravished by a man. whom she saw for the first time,
after the latter had covered her mouth with a rag and tied her hands,
so that she was rendered speechless and helpless from offering any
resistance, so much so that he was able to satiate his lust with her
until 12:00 o'clock midnight. Thereafter, she was brought by the man
to the house of defendant Jovita Melo only to be transferred later to
the house of defendant Francisca Alimagno, where she stayed for
more or less three days until she was found there and taken back
by Leovigildo Perez and Pita Alvero. The two thereafter brought her
to the Police Department for the corresponding investigation.
Petitioners contend that the Court of Appeals erred (1) in convicting
them of the crime of corruption of minor upon wholly unsubstantial
and inherently conflicting evidence; (2) in not holding that the facts,
as found by it and the trial court, do not constitute the crime of
corruption of minors as defined and penalized by Article 340 of the
Revised Penal Code; (3) in not holding that the minor referred to in
Article 340 of the Revised Penal Code should be below 18 years of
age; (4) in not holding that a person who is already corrupted can
no longer be the victim of corruption of minors committed through
abuse of authority or confidence; (5) in not acquitting the petitioners
of the crime of corruption of minors; and, (6) in not holding that the
penalty imposed upon petitioner Melo is incorrect.
Petitioners argue that they were convicted upon unsubstantial and
inherently conflicting evidence. This contention is devoid of factual
basis considering the findings of the Court of Appeals which are
hereunder reproduced if only to demonstrate that the same were
made after a thorough analysis of the evidence, and hence are
beyond this Court's power of review:
100

Appellants (herein petitioners) further contend that the lower court
erred in not finding that even before November 29, 1964, the
complainant Filomena de la Cruz was already a corrupted person
and therefore she could no longer be the victim of the crime of
"Corruption of Minors" penalized by Article 340 of the Revised Penal
Code in view of the fact that from her own statement, Exh. 1, she
admitted that she had sexual intercourse with other men.
This argument is clearly untenable. Complainant, who does not
know how to read and write vehemently denied the contents of Exh.
1, saying that it was not the statement she gave to the police.
Indeed, she testified that previous to the incident, she did not have
any coition with any man and the trial court so believed her. In any
event, even assuming it to be true, Article 340 does not prescribe
that the persons corrupted be of good reputation, as in the case of
simple seduction under Article 338, much less that they be virgins,
as in qualified seduction under Article 337, both of the Revised
Penal Code. It follows that the above-mentioned traits are of no
consequence. ...
xxx xxx xxx
With regard to the letter (Exh. A), appellant Francisca Alimagno
admitted having written the same out of pity to the complainant
Filomena de la Cruz (tsn., p. 70, April 22, 1966). But, if she had
nothing to do with complainant's sexual adventure, it is strange why
she wrote said letter, containing false averments, and then took the
complainant away from the house of Pita Alvero, without the
knowledge and consent of the latter. She, being a friend of Pita
Alvero, should have known that her actuation in writing the letter
was ill-advised and morally wrong. Her admission that she wrote the
same clearly indicates her plan to facilitate or promote the
prostitution or corruption of the complainant.
Appellant Francisca Alimagno testified that the witness for the
prosecution Leovigildo Perez was demanding P5,000.00 from her
and later was reduced to P2,000.00 (tsn. p. 83, April 22, 1966) to
quash the case against her. On cross-examination, she (Francisca
Alimagno) said that Perez was asking the aforesaid amount on the
ground floor of the Secret Service Division. The pertinent portion of
her testimony read, thus:
Q You stated that Leovigildo Perez asked P5,000.00 from you, can
you tell where Leovigildo Perez asked P5,000.00 from you?
A At the ground floor, sir.
Q Are you referring to the Office of the Secret Service Division?
A At the ground floor but not within the office of the Secret Service
Division.
Q Was that when you were called by the Secret Service men?
A Yes, sir.
Q Did you immediately denounce Perez to the police what he was
asking from you?
A No, sir.
Q Why did you not tell or report the matter to the police?
A Because we called up Atty. Alvero and asked him to assist us.
Q And you told Atty. Alvero that Leovigildo Perez was asking you
P5,000.00?
A No, sir, he just told me go home.
Q In other words when Atty. Alvero arrived he just told you to go
home?
A Yes. sir. (tsn., pp.100-101, Ibid.)
If there is truth on the matter that Leovigildo Perez was extorting
money from her (Francisca Alimagno) for the purpose of quashing
the case, appellant Alimagno should have reported or denounced
immediately to the police such attitude of Perez, inasmuch as they
were near the office of the Secret Service Division or told the matter
to Atty. Alvero, but she allegedly kept the matter to herself. The truth,
however, is that it was appellant Alimagno who made an offer of
P50.00 to Leovigildo Perez to drop the case against her. Thus, the
pertinent portion of his (Perez) testimony reads:
A The truth is that the spouses went to our residence and asked me
to accept the amount of P50.00 and drop the case. I told them to
ask the complainant, but the complainant refused and said that let
the court decide the case.
xxx xxx xxx
Q In your answer you refer to the spouses, will you please
specify whom you are referring to?
A The spouses, Alimagno, Sir. (tsn., pp. 145-146, June 1, 1966)
The above-quoted testimony of Leovigildo Perez was strengthened
by the testimony of Detective Sergeant Francisco Escondo, a
disinterested witness for the prosecution who testified, thus:
Q Will you please tell the conversation between you and the
accused for the second time?
A They seek our service to help them in settling the case.
Q What was your answer?
A I told them, its up to you. (tsn., pp. 14-15, June 7, 1965.)
On cross-examination, the same witness further testified, thus:
A After Francisca Alimagno had talked with the complainant she
requested us to help them to settle this case. t.s.n., p. 22, Ibid.)
It is clear from the foregoing testimony, of both witnesses for the
prosecution that the appellants made an offer of compromise for the
settlement of the case. These overtures made by the appellants to
have the case settled out of court are indicative of a guilty
conscience and it is well-settled in this jurisdiction that an offer of
compromise is an evidence of guilt. (People vs. Manzano, CA-G.R.
No. 00204-R, Nov. 29,1962.)
We find no reason in this case to depart from the rule which limits
this Court's appellate jurisdiction to review only errors of law
"accepting as conclusive the factual findings of the lower court upon
its own assessment of the evidence. (Evangelista vs. Abad Santos,
51 SCRA 416.)
On the question raised that petitioners could not be guilty of the
crime of corruption because the offended party is more than
eighteen years of age at the time the alleged offense is committed,
the point to consider is whether "under age" means below eighteen
or twenty-one years old. Article 340 of the Revised Penal Code
provides:
Any person who shall habitually or with abuse of authority or
confidence, promote or facilitate the prostitution or corruption of
persons under age to satisfy the lust of another, shall be punished
by...
Petitioners contend that in "crimes against chastity, like seduction,
acts of lasciviousness with the consent of the offended party and
consented abduction, the age of the victim is pegged at below 18
years of age; ... that the phrase 'person under age' (in Article 340 of
the Revised Penal Code) was meant by the lawmakers to refer to
persons below 18 years of age." (p. 61, Petitioner's Brief.)
We cannot subscribe to this view. Article 402 of the Civil Code
provides that "majority commences upon the attainment of the age
of twenty-one years." When the lawmakers specifically provide
"persons under age", instead of "below eighteen years of age", they
could mean no other than that the offended party must be below 21
years old, and not below 18 years of age. The same is true in Acts
of Lasciviousness in Article 336. White Slave Trade in Article 341,
and Forcible Abduction in Article 342 of the Revised Penal Code,
where the age limit is not set at eighteen. Justice Ramon C. Aquino,
in his commentary on the Revised Penal Code, page 1623, Book II,
states that "Art. 340 was taken from art. 444 of the old Penal Code.
The requisites of the crime of corruption of minors are that the
accused acted habitually or with the abuse of authority or
confidence; that he promoted or facilitated the prostitution or
corruption of persons below 21 years of age and that he so acted in
order to satisfy the lust of another." (emphasis supplied).
However, We take note of the recommendation of the Solicitor
General that with respect to petitioner Jovita Melo who was found
guilty as accomplice in a consummated crime where the penalty is
arresto mayor, medium and maximum periods (2 months and 1 day
to 6 months), and where there is no modifying circumstances
present, the penalty in its medium period should be imposed, or not
less than 3 months and 11 days nor more than 4 months and 20
101
days. Otherwise stated, the petitioner Jovita Melo should suffer the
penalty of 4 months and 20 days, instead of 6 months of arresto
mayor.
WHEREFORE, with the modification above indicated, the decision
of the Court of Appeals is AFFIRMED. With costs.
SO ORDERED.
G.R. No. L-36342 April 27, 1983
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE CITY COURT OF MANILA, BRANCH XI and FRANCISCO
GAPAY y MALLARES, respondents.
Solicitor General for petitioner.
Mario F. Estayan for respondents.
RESOLUTION
RELOVA, J:
This is a petition to review the order, dated November 17, 1972, of
the City Court of Manila, Branch XI, dismissing the information for
homicide thru reckless imprudence filed against private respondent,
Francisco Gapay y Mallares, in Criminal Case No. E-505633 on the
ground of double jeopardy. Respondent court held that the private
respondent having been previously tried and convicted of serious
physical injuries thru reckless imprudence for the resulting death of
the victim would place the accused in double jeopardy.
The question presented in this case is whether a person who has
been prosecuted for serious physical injuries thru reckless
imprudence and convicted thereof may be prosecuted subsequently
for homicide thru reckless imprudence if the offended party dies as
a result of the same injuries he had suffered.
In Melo vs. People, 85 Phil. 766, this Court held that "where after
the first prosecution a new fact supervenes for which the defendant
is responsible, which changes the character of the offense and,
together with the facts existing at a time, constitutes a new and
distinct offense, the accused cannot be said to be in second
jeopardy if indicted for the second offense." However, the trial court
held that the doctrine of Melo vs. People does not apply in the case
at bar in view of this Court's ruling in People vs. Buan, 22 SCRA
1383, that Article 365 of the Penal Code punishes the negligent
state of mind and not the resulting injury. The trial court concluded
that once prosecuted for and convicted of negligence, the accused
cannot again be prosecuted for the same negligence although for a
different resulting injury.
In the case at bar, the incident occurred on October 17, 1971. The
following day, October 18, an information for serious physical
injuries thru reckless imprudence was filed against private
respondent driver of the truck. On the same day, the victim Diolito
de la Cruz died.
On October 20, 1972, private respondent was arraigned on the
charge of serious physical injuries thru reckless imprudence. He
pleaded guilty, was sentenced to one (1) month and one (1) day of
arresto mayor, and commenced serving sentence.
On October 24, 1972, an information for homicide thru reckless
imprudence was filed against private respondent.
On November 17, 1972, the City Court of Manila, upon motion of
private respondent, issued an order dismissing the homicide thru
reckless imprudence case on the ground of double jeopardy.
Well-settled is the rule that one who has been charged with an
offense cannot be charge again with the same or Identical offense
though the latter be lesser or greater than the former. However, as
held in the case of Melo vs. People, supra, the rule of Identity does
not apply when the second offense was not in existence at the time
of the first prosecution, for the reason that in such case there is no
possibility for the accused, during the first prosecution, to be
convicted for an offense that was then inexistent. "Thus, where the
accused was charged with physical injuries and after conviction, the
injured person dies, the charge for homicide against the same
accused does not put him twice in jeopardy." Stated differently,
where after the first prosecution a new fact supervenes for which the
defendant is responsible, which changes the character of the
offense and, together with the facts existing at the time, constitutes
a new and distinct offense, the accused cannot be said to be in
second jeopardy if indicted for the new offense.
As stated above, the victim Diolito dela Cruz died on the day the
information was filed, and the accused was arraigned two (2) days
after, or on October 20, 1972. When the information for homicide
thru reckless imprudence was, therefore, filed on October 24, 1972,
the accused-private respondent was already in jeopardy.
In his memorandum, the Solicitor General made mention of the fact
that on October 21, 1972, the City Fiscal filed an Urgent Motion
asking that the "hearing and arraignment of this case be held in
abeyance for there is information that the victim, Diolito dela Cruz
died, and the information would have to be amended." Be that as it
may, the fact remains that the victim Diolito dela Cruz died on
October 18 "one (1) day after the accident and the arrest of the
respondent Gapay" (P. 103, Rollo) and that on October 20, 1972,
the accused was arraigned, pleaded guilty and sentenced
accordingly. Thus, jeopardy had attached and no new fact
supervened after the arraignment and conviction of the accused.
ACCORDINGLY, the order of dismissal of the lower court is
affirmed.
SO ORDERED.
Melencio-Herrera and Plana, JJ., concur.
Teehankee (Chairman), J., took no part.
G.R. No. L-29270 November 23, 1971
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
RODRIGO YORAC, defendant-appellee.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor
General
Pacifico P. de Castro and Solicitor Pedro A. Ramirez for plaintiff-
appellant.
Vicente F. Delfin for defendant-appellee.
FERNANDO, J.:
The constitutional right not to be put twice in jeopardy for the same
offense 1 was the basis for a motion to quash filed by the accused,
now appellee, Rodrigo Yorac. He was prosecuted for frustrated
murder arising allegedly from having assaulted, attacked, and hit
with a piece of wood the offended party, for which he had been
previously tried and sentenced for slight physical injuries, his plea
being one of guilt. The later information for frustrated murder was
based on a second medical certificate after the lapse of one week
from the former previously given by the same physician who,
apparently, was much more thorough the second time, to the effect
that the victim did suffer a greater injury than was at first
ascertained. The lower court, presided by the Honorable Judge
Nestor B. Alampay, considering that there was no, supervening fact
that would negate the defense of double jeopardy, sustained the
motion to quash in an order of June 21, 1968. The People appealed.
As the order complained of is, fully supported by the latest
authoritative ruling of this Tribunal, People v. Buling, 2 we have to
affirm.
In the brief for the People of the Philippines, it was shown that the
accused Yorac was charged with slight physical injuries before the
City Court of Bacolod, the offended party being a certain Lam Hock
who, according to the medical certificate issued in April 10, 1968 by
a Dr. Rogelio Zulueta, a resident physician of the Occidental Negros
Provincial Hospital, was confined "since April 8, 1968 up to the
present time for head injury." 3 Then came a plea of guilty by the
accused on April 16, 1968 resulting in his being penalized to suffer
ten days of arresto menor. He started serving his sentence forthwith.
On April 18, 1968, the provincial fiscal filed an information, this time
in the Court of First Instance of Negros Occidental, charging the
same defendant with frustrated murder arising from the same act
against the aforesaid victim Lam Hock upon another medical
certificate dated April 17, 1968 issued by the same Dr. Zulueta. In
the medical certificate of April 17, 1968, it was made to appear that
102
the confinement of the offended party in the hospital was the result
of: "1. Contusion with lacerated wound 4 inches parieto-occipital
region scalp mid portion. 2. Cerebral concussion, moderately
severe, secondary." 4 Moreover, it further contained a statement
that the X-ray finding did not yield any "radiographic evidence of
fracture." The healing period barring complications, was declared to
be from eighteen to twenty-one days. 5
Afterwards, a motion to quash was filed by the accused on June 10,
1968 on the ground that, having been previously convicted of slight
physical injuries by the City Court of Bacolod and having already
served the penalty imposed on him for the very same offense, the
prosecution for frustrated murder arising out of the same act
committed against the same offended party, the crime of slight
physical injuries necessarily being included in that of frustrated
murder, he would be placed in second jeopardy if indicted for the
new offense. 6 In its well-reasoned resolution of June 21, 1968
granting the motion to quash and ordering the dismissal of a criminal
case for frustrated murder against the accused, Judge Alampay
relied on People v. Buling which, in his opinion, was squarely
applicable as "nothing in the later medical certificate [indicated] that
a new or supervening fact had developed or arisen since the time of
the filing of the original action" against the accused. A motion for
reconsideration being unavailing, an appeal was elevated to us.
As succinctly set forth in the brief of the People of the Philippines:
"The sole issue in this case is whether the defendant, who had
already been convicted of slight physical injuries before the City
Court of Bacolod for injuries inflicted upon Lam Hock, and had
served sentence therefore, may be prosecuted anew for frustrated
murder for the same act committed against the same person." 7 The
position taken by the appellant is in the affirmative but, as indicated
at the outset, the controlling force of People v. Buling would preclude
us from reversing the resolution of Judge Alampay.
1. The Constitution, to repeat, is quite explicit: "No person
shall be twice put in jeopardy of punishment for the same offense.
As Justice Laurel made clear in an address as delegate before the
Constitutional Convention, such a provision finds its origin" from the
days when sanguinary punishments were frequently resorted to by
despots." 9 A defendant in a criminal case should therefore,
according to him, be adjudged either guilty or not guilty and
thereafter left alone in peace, in the latter case the State being
precluded from taking an appeal. 10 It is in that sense that the right
against being twice put in jeopardy is considered as possessing
many features in common with the rule of finality in civil cases. For
the accused is given assurance that the matter is closed, enabling
him to plan his, future accordingly, protecting him from continued
distress, not to mention saving both him and the state from the
expenses incident to redundant litigation. There is likewise the
observation that this constitutional guarantee helps to equalize the
adversary capabilities of two grossly mismatched litigants, a poor
and impecunious defendant hardly in a position to keep on
shouldering the costs of a suit.
Then, as a member of the Supreme Court, Justice Laurel had the
first opportunity to give meaning to what, under the Constitution,
should be considered "the same offense." In the case of People v.
Tarok, decided in 1941, 11 the then comparatively new Rules of
Court in its Section 9 of Rule 113 speaks of a bar to another
prosecution for the offense charged after a defendant shall have
been convicted or acquitted or the case against him dismissed or
otherwise terminated without his express consent, "or for any
attempt to commit the same or frustration thereof or for, any offense
which necessarily includes or is necessarily included in the offense
charged in the former complaint or information." 12
In the Tarok case, the conviction for parricide of the accused was
sought to be set aside, as previously he had been indicted for the
crime of serious physical injuries, to which he had pleaded guilty.
He was sentenced and was actually incarcerated by virtue of such
penalty imposed. The offended party was his wife whom he hacked
with bolo, his ire being aroused by certain, remarks made her. While
he was thus serving sentence, the victim died resulting in the new
prosecution for parricide of which he was convicted. On appeal to
this Court, it was decided over the dissents of the then Justice
Moran and Justice Diaz that the offense of serious physical injury of
which he was found guilty being included in parricide his previous
conviction was a bar to such subsequent prosecution for the more
serious crime. The lower court judgement of conviction was thus
reversed. According to Justice Laurel who spoke for the Court: "To
our mind, the principle embodied in the New Rules of Court is a clear
expression of selection of rule amidst conflicting theories. We take
the position that when we amended section 26 of General Orders
No. 58 by providing that the conviction or acquittal of the defendant
or the dismissal of the case shall be a bar to another prosecution for
any offense not only necessarily therein included but which
necessarily includes the offense charged in the former complaint or
information, we meant what we have, in plain language, stated. We
certainly did not mean to engage in the simple, play of words." 13
2. Such a ruling was however re-examined and set aside in
Melo v. People, 14 where it was held that an accused who pleaded
guilty to the offense of frustrated homicide, the offended party
thereafter dying in the evening of the same day, could not rely on a
plea of double jeopardy if, as a result thereof, the information was
amended to charge him with homicide. 15 As was clarified in the
opinion of this Court through the then Chief Justice Moran, one of
the dissenters in the Tarok case: "This rule of identity does not
apply, however, when the second offense was not in existence at
the time of the first prosecution, for the simple reason that in such
case there is no possibility for the accused, during the first
prosecution, to be convicted for an offense that was then inexistent.
Thus, where the accused was charged with physical injuries and
after conviction the injured person dies, the charge for homicide
against the same accused does not put him twice in jeopardy." 16
Stated differently, if after the first prosecution "a new fact
supervenes on which defendant may be held liable, resulting in
altering the character of the crime and giving rise to a new and
distinct offense, "the accused cannot be said to be in second
jeopardy if indicted for the new offense." 17 It is noteworthy,
however, that in the Melo ruling, there was a reiteration of what was
so emphatically asserted by Justice Laurel in the Tarok case in
these words: "As the Government cannot begin with the highest,
and then down step by step, bringing the man into jeopardy for every
dereliction included therein, neither can it begin the lowest and
ascend to the highest with precisely the same result." 18
3. There is then the indispensable requirement of the
existence of "a new fact [which] supervenes for which the defendant
is responsible" changing the character of the crime imputed to him
and together with the facts existing previously constituting a new
and distinct offense. The conclusion reached in People v. Buling, 19
the latest case in point relied upon by Judge Alampay in the
resolution no appeal, was thus, predictable. As set forth in the
opinion of Justice Labrador in the case, there was a medical
certification that the wounds for which the accused Buenaventura
as first prosecuted for less serious physical injuries would require
medical attendance from a period of from ten days to fifteen days.
He pleaded guilty and on December 8, 1956, sentenced by the
Justice of the Peace of Cabalian Leyte, to one month and one day
of arresto mayor. He started serving his sentence on the same day.
On January 18, 1957, however, another physician examined the
offended party and with the use of an X-ray apparatus, certified that
he did suffer a fracture requiring a treatment of from one and one-
half months to two and one half months, barring complications. As
a result, on February 20, 1957, an information was filed against the
same accused, this time before the Court of First Instance of Leyte,
charging him with serious physical injuries. He stood trial and was
found guilty of such an offense and sentenced to imprisonment of
four months of arresto mayor as minimum to one year of prision
correccional as maximum. On appeal to this Court, his invocation of
the defense of double jeopardy struck a responsive chord, and he
was acquitted.
4. The opinion of Justice Labrador explained with clarity why
the constitutional right against being put twice in jeopardy was a bar
to the second prosecution. Thus: "If the X-ray examination discloses
the existence of a fracture on January 17, 1957, that fracture must
have existed when the first examination was made on December
10, 1956. There is therefore, no view or supervening fact that could
be said to have developed or arisen since the filing of the original
action, which would justify the application of the ruling enunciated
by us in the cases if Melo vs. People and People vs. Manolong ... .
We attribute the new finding of fracture, which evidently lengthened
the period of healing of the wound, to the very superficial and
inconclusive examination made on December 10, 1956. Had an X-
ray examination been taken at the time, the fracture would have
certainly been disclosed. The wound causing the delay in healing
was already in existence at the time of the first examination, but said
delay was, caused by the very superficial examination then made.
As we have stated, we find therefore that no supervening fact had
occurred which justifies the application of the rule in the case of Melo
vs. People and People vs. Manolong for which reason we are
constrained to apply the general rule of double jeopardy." 20 It is
quite apparent, in the light of the foregoing, why the lower court,
submitting to the compulsion of the Buling decision, had to sustain
the motion to quash and to dismiss the information against appellee
Yorac. No error could therefore be rightfully imputed to it.
WHEREFORE, the resolution of June 21, 1968 of Judge Nestor B.
Alampay granting the motion to quash, ordering the dismissal of the
case and the immediate release of the appellee Rodrigo Yorac, is
affirmed. Without costs.
103

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro,
Teehankee, Villamor and Makasiar, JJ., concur.
Barredo, J., took no part.
G.R. No. 162206 November 17, 2010
MONICO V. JACOB and CELSO L. LEGARDA, Petitioners,
vs.
HON. SANDIGANBAYAN FOURTH DIVISION and THE OFFICE
OF THE OMBUDSMAN, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
This is a Petition for Certiorari under Rule 65 of the Rules of Court
for the nullification of the Resolutions dated February 4, 20021 of
the Sandiganbayan Special Fourth Division and December 12,
20032 of the Sandiganbayan Fourth Division. In its Resolution dated
February 4, 2002, the Sandiganbayan Special Fourth Division set
aside the order to dismiss Criminal Case Nos. 25922-25939, among
other cases, verbally issued by Associate Justice Narciso S. Nario
(Justice Nario), Chairman of the Sandiganbayan Fourth Division,
during the court session held on August 20, 2001;3 while in its
Resolution dated December 12, 2003, the Sandiganbayan Fourth
Division denied the motions for reconsideration of the petitioners
and other accused.
The following facts are duly established from the pleadings of the
parties:
From 1993 to 1997, Petron Corporation (Petron), a corporation
engaged in the business of refining, marketing and distribution of
petroleum products, received Tax Credit Certificates (TCCs) by
assignment from 18 private firms4 registered with the Board of
Investments (BOI). The TCCs were issued by the One Stop Shop
Inter-Agency Tax Credit & Duty Drawback Center (OSS), an office
under the Department of Finance (DOF), created by virtue of
Administrative Order No. 266 dated February 7, 1992. Petron used
the assigned TCCs to pay its excise tax liabilities.
The practice was for the BOI-registered firms to sign the Deeds of
Assignment upon delivery of the TCCs to Petron. Petron then
forwarded said documents to the OSS, with a request for
authorization to use said TCCs to pay for its excise tax liabilities.
DOF Undersecretary Antonio P. Belicena (Belicena) approved the
request of Petron through the issuance of Tax Debit Memoranda
(TDM) addressed to the Collection Program Division of the Bureau
of Internal Revenue (BIR). The BIR Collection Program Division
accepted the TCCs as payment for the excise tax liabilities of Petron
by issuing its own TDM.5 The control numbers of the BIR-TDM were
indicated on the back of the TCCs, marking the final utilization of the
tax credits.6
However, the Fact Finding and Intelligence Bureau (FFIB) of the
Office of the Ombudsman eventually found that the aforementioned
transactions involving the TCCs were irregular and violative of the
Memorandum of Agreement dated August 29, 1989 between the
BOI and the DOF, which implemented Article 21 of Executive Order
No. 226, otherwise known as the Omnibus Investments Code of
1987.7
After the termination of the requisite preliminary investigation, the
Office of the Ombudsman issued a Resolution dated March 27,
2000 finding probable cause against several public officers and
private individuals, including petitioners Monico V. Jacob (Jacob),
President, and Celso L. Legarda (Legarda), Vice-President and
General Manager for Marketing, both of Petron, for perpetrating the
so-called "tax credit scam." On April 10, 2010, the Office of the
Ombudsman filed a total of 62 Informations, 18 of which, docketed
as Criminal Case Nos. 25922-25939, were against DOF
Undersecretary Belicena, OSS Deputy Executive Director Uldarico
P. Andutan, Jr., petitioners and other Petron officials, and officers of
the BOI-registered firms which assigned the TCCs to Petron,
charging them with violation of Section 3(e) of Republic Act No.
3019, otherwise known as the Anti-Graft and Corrupt Practices Act.
Petitioners provided an undisputed account of the events that
subsequently took place before the Sandiganbayan:
On April 14, 2000, petitioners and the four other Petron officers who
were similarly charged filed a Motion for Reinvestigation [with the
Office of the Ombudsman].
On 17 April 2000, the [Sandiganbayan Fourth Division] issued an
Order giving the prosecution a period of sixty (60) days within which
–
… to re-assess its evidence in these cases and to take appropriate
action on the said motion for reconsideration of accused movants
and to inform the Court within the same period as to its findings and
recommendations including the action thereon of the Honorable
Ombudsman.
Sixty (60) days passed but the Office of the Ombudsman did not
even bother to submit a report on the status of the motions for
reconsideration. Months passed, and then, AN ENTIRE YEAR
PASSED. There was still nothing from the respondent Office of the
Ombudsman.
In the meantime, petitioner Jacob was arraigned on 1 June 2000
while petitioner Legarda was arraigned on 18 May 2001.
On March 20, 2001, in view of a significant development in the Shell
cases (then pending with the 5th Division of [the Sandiganbayan]),
petitioners and other accused Petron officials filed a Motion to
Resolve with the Office of the Ombudsman. In the said motion,
petitioners cited the Memorandum dated 30 January 2001 issued
by Special Prosecutor Leonardo P. Tamayo upholding the dropping
of the charges against Shell official Pacifico Cruz on the ground that
there was no sufficient evidence to prove that he was part of the
conspiracy. Petitioners asserted that since their situation/alleged
participation is similar to that of Mr. Pacifico Cruz, they should
similarly be dropped from the criminal cases. Despite this, the
respondent Office of the Ombudsman took no action.
Considering the time that had lapsed, the [Sandiganbayan Fourth
Division], at the hearing on 1 June 2001, expressly warned the
prosecution that should it fail to resolve the
reconsideration/investigation, it would order the dismissal of the
cases or require the prosecution to show cause why it should not be
cited for contempt.
In its Resolution dated 26 June 2001, the [Sandiganbayan Fourth
Division] in fact denied the motion of the prosecution for the resetting
of the scheduled arraignment and pre-trial on 2 July 2001 "it
appearing that the Reinvestigation of these cases has been pending
for more than one (1) year now and the court cannot countenance
the unreasonable delay attributable to the plaintiff."
In spite of the denial of their motion, the prosecution still failed to
submit its report to the [Sandiganbayan Fourth Division] during the
2 July 2001 hearing. Instead they asked for a period of seven (7)
more days to resolve the motions for reconsideration. The
arraignment (of the other accused) and pre-trial therefore had to be
reset again to 17 July 2001.
One day before the schedule hearing, the prosecution filed a
Manifestation requesting the cancellation of the arraignment and
pre-trial scheduled the next day on the ground that the motions for
reconsideration/reinvestigation were still pending resolution.
Once again, [the Sandiganbayan Fourth Division] gave the
prosecution another chance. During the hearing on 17 July 2001,
the [Sandiganbayan 4th Division] directed the prosecution, through
Prosecutor Orlando Ines, to terminate the reinvestigation within a
period of one (1) more month. The arraignment and pre-trial were
then reset to 20 August 2001.
At the scheduled hearing on August 20, 2001, Prosecutor Orlando
Ines, however, again requested for the deferment of the arraignment
and pre-trial on the ground that the resolution on the various motions
for reconsideration/reinvestigation were still pending approval by the
Office of the Ombudsman.
In all the hearings conducted in the cases the defense verbally and
consistently invoked their right to speedy trial and moved for the
dismissal of the cases. In the course of more than one year,
however, the [Sandiganbayan 4th Division] kept affording the
prosecution one chance after another. The sixty days granted to the
prosecution became more than four hundred days – still, there was
no resolution in sight.
Thus on 20 August 2001, compelled by its duty to uphold the
fundamental law, the [Sandiganbayan Fourth Division, through its
Chairman, Justice Nario] issued a verbal order dismissing the
cases. The dismissal was duly recorded in the minutes of the
104
hearing of the said date which was attested to by the Clerk of Court
and signed by the parties.
On 24 August 2001, the prosecution filed a Motion for
Reconsideration with the following prayer: "WHEREFORE, the
undersigned Ombudsman Prosecutors prayed (sic) that the Order
issued by the Honorable Court for the summary dismissal of all the
graft and estafa charges aforecited be SET ASIDE."
On August 31, 2001, the [Sandiganbayan Fourth Division] issued an
Order taking cognizance of the Motion for Reconsideration filed by
the prosecution and requiring the accused to file their respective
comments thereon within five (5) days.
On 4 February 2002, OR SIX (6) MONTHS after [Justice Nario]
issued the verbal order of dismissal, the [Sandiganbayan Special
Fourth Division] issued an Order setting aside said verbal order.
xxxx
In the 4 February 2002 Resolution, this time a Division of five
justices (two of whom dissented) rendered a Resolution stating:
WHEREFORE, the dismissal of these cases orally ordered in open
court by the Chairman of the Fourth Division during its court session
held on August 20, 2001, and reiterated in his subsequent ponencia,
is hereby set aside.8 (Citations omitted.)
The Sandiganbayan Special Fourth Division gave the following
reasons for overruling Justice Nario’s verbal order dismissing the
criminal cases against the accused in the alleged tax credit scam:
In the present case, (1) there is already a delay of the trial for more
than one year now; (2) but it is not shown that the delay is vexatious,
capricious and oppressive; (3) it may be that, as stated in the herein
dissented Resolution, "at the hearings conducted in these cases,
the defense orally, openly and consistently asked for the dismissal
of these cases"; however, these oral manifestations were more of
"knee-jerk reactions" of the defense counsel in those hearings
everytime the prosecution requested for postponement than
anything else as said defense counsel did not seriously pursue the
dismissal of these cases, such as by reducing their "request" in a
formal written motion to dismiss and/or insisting that the court
formally rule on their request for dismissal and go on certiorari if
denied; and (4) considering the nature and importance of the cases,
if there is any prejudice that may have resulted as a consequence
of the series of postponements, it would be more against the
government than against any of the accused; however, be that as it
may, none of the herein accused has come out to claim having been
thus prejudiced.9
On February 26, 2002, petitioners, together with four other co-
accused Petron officials, filed a Motion for Reconsideration10 of the
February 4, 2002 Resolution of the Sandiganbayan Special Fourth
Division. Other accused also filed their motions for reconsideration
and motions to quash/dismiss. The prosecution expectedly opposed
all such motions of the accused.
In an Omnibus Resolution dated December 12, 2003, the
Sandiganbayan Fourth Division ruled in the prosecution’s favor and
denied all the motions filed by the accused, to wit:
Wherefore, premises considered, this court issues an Omnibus
Resolution denying all the above-described Motion to Quash for lack
of merit.
Hence, petitioners come before us via the instant Petition for
Certiorari averring grave abuse of discretion on the part of the
Sandiganbayan Special Fourth Division, specifically:
I and complex, due to the number of accused or the nature of the
THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN DENYING PETITIONERS’ RIGHT TO SPEEDY
TRIAL.
II
THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN HOLDING THAT PETITIONERS HAVE NOT
BEEN PUT IN DOUBLE JEOPARDY.
III
THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT CONSIDERING THE GLARING LACK OF
EVIDENCE AGAINST PETITIONERS.11
To recall, Justice Nario, as the Chairman of the Sandiganbayan
Fourth Division, ordered the dismissal of all criminal cases arising
from the purported tax credit scam on the ground that the accused,
including petitioners, had already been deprived of their right to a
speedy trial and disposition of the cases against them. Petitioners
assert that the Sandiganbayan gravely abused its discretion in
reversing Justice Nario’s order of dismissal of Criminal Case Nos.
25922-25939 because such reversal violated petitioners’
constitutional right against double jeopardy.
An accused’s right to "have a speedy, impartial, and public trial" is
guaranteed in criminal cases by Section 14(2), Article III12 of the
Constitution. This right to a speedy trial may be defined as one free
from vexatious, capricious and oppressive delays, its "salutary
objective" being to assure that an innocent person may be free from
the anxiety and expense of a court litigation or, if otherwise, of
having his guilt determined within the shortest possible time
compatible with the presentation and consideration of whatsoever
legitimate defense he may interpose. Intimating historical
perspective on the evolution of the right to speedy trial, we reiterate
the old legal maxim, "justice delayed is justice denied." This oft-
repeated adage requires the expeditious resolution of disputes,
much more so in criminal cases where an accused is constitutionally
guaranteed the right to a speedy trial.13
Hence, the Revised Rules on Criminal Procedure also include
provisions that ensure the protection of such right. As we presented
in Uy v. Hon. Adriano14:
Section 1(h), Rule 115 of the Revised Rules of Criminal Procedure
provides that the accused is entitled to a speedy, impartial and
public trial. Section 2, Rule 119 of the said Rules provides that trial,
once commenced, shall be continuous until terminated:
Sec. 2. Continuous trial until terminated; postponements. – Trial,
once commenced, shall continue from day to day as far as
practicable until terminated. It may be postponed for a reasonable
period of time for good cause.
The court shall, after consultation with the prosecutor and defense
counsel, set the case for continuous trial on a weekly or other short-
term trial calendar at the earliest possible time so as to ensure
speedy trial. In no case shall the entire trial period exceed one
hundred eighty (180) days from the first day of trial, except as
otherwise authorized by the Supreme Court.
The time limitations provided under this section and the preceding
section shall not apply where special laws or circulars of the
Supreme Court provide for a shorter period of trial.
However, any period of delay resulting from a continuance granted
by the court motu proprio, or on motion of either the accused or his
counsel, or the prosecution, if the court granted the continuance on
the basis of its findings set forth in the order that the ends of justice
is served by taking such action outweigh the best interest of the
public and the accused on a speedy trial, shall be deducted.
The trial court may grant continuance, taking into account the
following factors:
(a) Whether or not the failure to grant a continuance in the
proceeding would likely make a continuation of such proceeding
impossible or result in a miscarriage of justice; and
(b) Whether or not the case taken as a whole is so novel, unusual
prosecution, or that it is unreasonable to expect adequate
preparation within the periods of time established therein.
In addition, no continuance under section 3(f) of this Rule shall be
granted because of congestion of the court’s calendar or lack of
diligent preparation or failure to obtain available witnesses on the
part of the prosecutor.15
We further emphasized in Uy that "speedy trial" is a relative term
and necessarily a flexible concept. In determining whether the right
of the accused to a speedy trial was violated, the delay should be
considered, in view of the entirety of the proceedings. Indeed, mere
mathematical reckoning of the time involved would not suffice as the
realities of everyday life must be regarded in judicial proceedings
which, after all, do not exist in a vacuum.16
105
Corpuz v. Sandiganbayan17 is a case originating from exactly the
same factual background as the case at bar. Therein petitioners
Marialen C. Corpuz and Antonio H. Roman, Sr. were officers of
FILSYN Corporation, one of the BOI-registered firms that assigned
TCCs to Petron; and were among the accused in Criminal Case No.
25922. They filed a separate Petition for Certiorari before us
assailing the Resolutions dated February 4, 2002 of the
Sandiganbayan Special Fourth Division and December 12, 2003 of
the Sandiganbayan Fourth Division.
We expounded more extensively in Corpuz on the right of the
accused to a speedy trial and disposition of the case against him,
thus:
The right of the accused to a speedy trial and to a speedy disposition
of the case against him was designed to prevent the oppression of
the citizen by holding criminal prosecution suspended over him for
an indefinite time, and to prevent delays in the administration of
justice by mandating the courts to proceed with reasonable dispatch
in the trial of criminal cases. Such right to a speedy trial and a
speedy disposition of a case is violated only when the proceeding is
attended by vexatious, capricious and oppressive delays. The
inquiry as to whether or not an accused has been denied such right
is not susceptible by precise qualification. The concept of a speedy
disposition is a relative term and must necessarily be a flexible
concept.
While justice is administered with dispatch, the essential ingredient
is orderly, expeditious and not mere speed. It cannot be definitely
said how long is too long in a system where justice is supposed to
be swift, but deliberate. It is consistent with delays and depends
upon circumstances. It secures rights to the accused, but it does not
preclude the rights of public justice. Also, it must be borne in mind
that the rights given to the accused by the Constitution and the
Rules of Court are shields, not weapons; hence, courts are to give
meaning to that intent.18 (Emphases ours.)
We went on to lay down in Corpuz the test for determining whether
an accused was indeed deprived of his right to a speedy trial and
disposition of the case against him:
In determining whether the accused has been deprived of his right
to a speedy disposition of the case and to a speedy trial, four factors
must be considered: (a) length of delay; (b) the reason for the delay;
(c) the defendant’s assertion of his right; and (d) prejudice to the
defendant. Prejudice should be assessed in the light of the interest
of the defendant that the speedy trial was designed to protect,
namely: to prevent oppressive pre-trial incarceration; to minimize
anxiety and concerns of the accused to trial; and to limit the
possibility that his defense will be impaired. Of these, the most
serious is the last, because the inability of a defendant adequately
to prepare his case skews the fairness of the entire system. There
is also prejudice if the defense witnesses are unable to recall
accurately the events of the distant past. Even if the accused is not
imprisoned prior to trial, he is still disadvantaged by restraints on his
liberty and by living under a cloud of anxiety, suspicion and often,
hostility. His financial resources may be drained, his association is
curtailed, and he is subjected to public obloquy.
Delay is a two-edge sword. It is the government that bears the
burden of proving its case beyond reasonable doubt. The passage
of time may make it difficult or impossible for the government to
carry its burden. The Constitution and the Rules do not require
impossibilities or extraordinary efforts, diligence or exertion from
courts or the prosecutor, nor contemplate that such right shall
deprive the State of a reasonable opportunity of fairly prosecuting
criminals. As held in Williams v. United States, for the government
to sustain its right to try the accused despite a delay, it must show
two things: (a) that the accused suffered no serious prejudice
beyond that which ensued from the ordinary and inevitable delay;
and (b) that there was no more delay than is reasonably attributable
to the ordinary processes of justice.
Closely related to the length of delay is the reason or justification of
the State for such delay. Different weights should be assigned to
different reasons or justifications invoked by the State. For instance,
a deliberate attempt to delay the trial in order to hamper or prejudice
the defense should be weighted heavily against the State. Also, it is
improper for the prosecutor to intentionally delay to gain some
tactical advantage over the defendant or to harass or prejudice him.
On the other hand, the heavy case load of the prosecution or a
missing witness should be weighted less heavily against the State.
Corollarily, Section 4, Rule 119 of the Revised Rules of Criminal
Procedure enumerates the factors for granting a continuance.19
In the Petition at bar, Criminal Case Nos. 25922-25939 were filed
on April 10, 2000. Petitioner Jacob was arraigned on June 1, 2000,
while petitioner Legarda was arraigned on May 18, 2001; with both
petitioners pleading not guilty. Since then, there had been no other
significant development in the cases since the prosecution
repeatedly requested for deferment or postponement of the
scheduled hearings as it awaits the result of the reinvestigation of
the Office of the Ombudsman. Judge Nario verbally ordered the
dismissal of said cases during the hearing on August 20, 2001.
Thus, the criminal cases had been pending for about a year and four
months by the time they were dismissed by Justice Nario.
The accused, including petitioners, had consistently asked in open
court that the criminal cases be dismissed every time the
prosecution moved for a deferment or postponement of the
hearings.
The prosecution attributed the delay in the criminal proceedings to:
1) the 23 motions for reinvestigation or reconsideration filed by the
accused, which was granted by the Sandiganbayan in its April 17,
2000 Order; and 2) the failure of the Office of the Ombudsman to
terminate its reinvestigation and submit its report within the 60-day
period fixed by the said graft court.
Irrefragably, there had been an undue and inordinate delay in the
reinvestigation of the cases by the Office of the Ombudsman, which
failed to submit its reinvestigation report despite the lapse of the 60-
day period set by the Sandiganbayan, and even more than a year
thereafter. That there were 23 Motions for Reinvestigation filed is
insignificant. It should be stressed that reinvestigation, as the word
itself implies, is merely a repeat investigation of the case. It is simply
a chance for the Office of the Ombudsman to review and re-evaluate
its findings based on the evidence previously submitted by the
parties. The Office of the Ombudsman should have expedited the
reinvestigation, not only because it was ordered by the
Sandiganbayan to submit a report within a period of 60 days, but
also because said Office is bound by the Constitution20 and
Republic Act No. 6770, otherwise known as the Ombudsman Act of
1989,21 to act promptly on complaints and cases pending before it.
Nevertheless, while the re-investigation by the Office of the
Ombudsman delayed the proceedings in Criminal Case Nos.
25922-25939, the said process could not have been dispensed with
as it was undertaken for the protection of the rights of petitioners
themselves (and their co-accused) and their rights should not be
compromised at the expense of expediency.
In Corpuz, we warned against the overzealous or precipitate
dismissal of a case that may enable the defendant, who may be
guilty, to go free without having been tried, thereby infringing the
societal interest in trying people accused of crimes rather than
granting them immunization because of legal error.22 Earlier, in
People v. Leviste,23 we already stressed that:
[T]he State, like any other litigant, is entitled to its day in court, and
to a reasonable opportunity to present its case. A hasty dismissal
such as the one in question, instead of unclogging dockets, has
actually increased the workload of the justice system as a whole and
caused uncalled-for delays in the final resolution of this and other
cases. Unwittingly, the precipitate action of the respondent court,
instead of easing the burden of the accused, merely prolonged the
litigation and ironically enough, unnecessarily delayed the case – in
the process, causing the very evil it apparently sought to avoid. Such
action does not inspire public confidence in the administration of
justice.24
Thus, even though we acknowledge the delay in the criminal
proceedings, as well as the prejudice suffered by petitioners and
their co-accused by reason thereof, the weighing of interests militate
against a finding that petitioners’ right to speedy trial and disposition
of the cases involving them would have justified the dismissal of
Criminal Case Nos. 25922-25939. We agree with the
Sandiganbayan Special Fourth Division that Justice Nario’s
dismissal of the criminal cases was unwarranted under the
circumstances, since the State should not be prejudiced and
deprived of its right to prosecute the criminal cases simply because
of the ineptitude or nonchalance of the Office of the Ombudsman.
We reiterate our observations in Corpuz that:
There can be no denying the fact that the petitioners, as well as the
other accused, was prejudiced by the delay in the reinvestigation of
the cases and the submission by the Ombudsman/Special
Prosecutor of his report thereon. So was the State. We have
balanced the societal interest involved in the cases and the need to
give substance to the petitioners’ constitutional rights and their
quest for justice, and we are convinced that the dismissal of the
cases is too drastic a remedy to be accorded to the petitioners. The
cloud of suspicion may still linger over the heads of the petitioners
by the precipitate dismissal of the cases. We repeat -- the cases
106
involve the so-called tax credit certificates scam and hundreds of
millions of pesos allegedly perpetrated by government officials in
connivance with private individuals. The People has yet to prove the
guilt of the petitioners of the crimes charged beyond reasonable
doubt. We agree with the ruling of the Sandiganbayan that before
resorting to the extreme sanction of depriving the petitioner a
chance to prove its case by dismissing the cases, the
Ombudsman/Special Prosecutor should be ordered by the
Sandiganbayan under pain of contempt, to explain the delay in the
submission of his report on his reinvestigation.25
Furthermore, the Sandiganbayan Special Fourth Division did not
abuse its discretion in setting aside Justice Nario’s verbal order,
which dismissed Criminal Case Nos. 25922-25939, for not only was
such order baseless, as we had previously discussed herein; but
more importantly, because it is an utter nullity, as we had ruled in
Corpuz.
We held in Corpuz that:
In the unanimous Resolution of December 12, 2003, the
Sandiganbayan ruled as follows:
In the cases at bar, the dismissal made in open court by the
Chairman, which was not reduced in writing, is not a valid dismissal
or termination of the cases. This is because the Chairman cannot
unilaterally dismiss the same without the approval or consent of the
other members of the Division. The Sandiganbayan is a collegiate
court and under its internal rules prevailing at the time (Rule XVIII,
Section 1(b) of the 1984 Revised Rules of the Sandiganbayan,
which is now Section 1(b), Rule VIII of the 2002 Revised Internal
Rules of the Sandiganbayan), an order, resolution or judgment, in
order to be valid - that is to say, in order to be considered as an
official action of the Court itself - must bear the unanimous approval
of the members of the division, or in case of lack thereof, by the
majority vote of the members of a special division of five.
We agree with the foregoing ratiocination. Section 1, Rule 120 of
the Revised Rules of Criminal Procedure, mandates that a judgment
must be written in the official language, personally and directly
prepared by the judge and signed by him and shall contain clearly
and distinctly a statement of the facts and the law upon which it is
based. The rule applies to a final order dismissing a criminal case
grounded on the violation of the rights of the accused to a speedy
trial. A verbal judgment or order of dismissal is a violation of the
provision; hence, such order is, in contemplation of law, not in esse,
therefore, ineffective. Justice Nario failed to issue a written
resolution dismissing the criminal cases for failure of the prosecution
to submit its report on the reinvestigation of the cases within the
sixty-day period fixed by the graft court. Moreover, the verbal order
was rejected by majority vote of the members of the Sandiganbayan
Special Division. In fine, there has been no valid and effective order
of dismissal of the cases. The Sandiganbayan cannot then be
faulted for issuing the assailed resolutions.
Neither are the petitioners entitled to a writ of mandamus to compel
the Sandiganbayan to reinstate the cases, considering that the
verbal order of Justice Nario as aforestated does not exist at all in
contemplation of law.26 (Emphases ours.)
Given that Justice Nario’s verbal order dismissing Criminal Case
Nos. 25922-25939 is null and void, and does not exist at all in
contemplation of law, it follows that petitioners cannot invoke the
constitutional right against double jeopardy.1avvphi1
To substantiate a claim for double jeopardy, the following must be
demonstrated:
(1) [A] first jeopardy must have attached prior to the second; (2) the
first jeopardy must have been validly terminated; (3) the second
jeopardy must be for the same offense, or the second offense
includes or is necessarily included in the offense charged in the first
information, or is an attempt to commit the same or is a frustration
thereof.
And legal jeopardy attaches only: (a) upon a valid indictment; (b)
before a competent court; (c) after arraignment; (d) [when] a valid
plea [has] been entered; and (e) the case was dismissed or
otherwise terminated without the express consent of the accused.27
In the instant Petition, legal jeopardy has not yet attached since
there is so far no valid dismissal or termination of the criminal cases
against petitioners.
Finally, the Sandiganbayan Special Fourth Division did not commit
grave abuse of discretion nor erred in not considering the glaring
lack of evidence against petitioners.
As we pointed out in Rizon v. Desierto28:
Time and again, we have held that a prosecutor does not decide
whether there is evidence beyond reasonable doubt of the guilt of
the person charged. He merely determines whether there is
sufficient ground to engender a well-founded belief that a crime has
been committed and that the accused is probably guilty thereof, and
should be held for trial. A finding of probable cause, therefore, does
not require an inquiry as to whether there is sufficient evidence to
secure a conviction. It is enough that the prosecutor believes that
the act or omission complained of constitutes the offense charged.
A trial is intended precisely for the reception of prosecution evidence
in support of the charge. It is the court that is tasked to determine
guilt beyond reasonable doubt based on the evidence presented by
the parties at the trial on the merits.29
Here, there has been no trial yet. Therefore, there has been no
occasion yet for the full and exhaustive display of the parties’
evidence. The presence or absence of the elements of the crime is
evidentiary in nature that shall be passed upon after a full-blown trial
on the merits.
WHEREFORE, there being no showing that the impugned
Resolutions dated February 4, 2002 of the Sandiganbayan Special
Fourth Division and December 12, 2003 of the Sandiganbayan
Fourth Division in Criminal Case Nos. 25922-25939 are tainted with
grave abuse of discretion amounting to lack or excess of jurisdiction,
the instant Petition for Certiorari is DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 172716 November 17, 2010
JASON IVLER y AGUILAR, Petitioner,
vs.
HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the
Metropolitan Trial Court, Branch 71, Pasig City, and
EVANGELINE PONCE, Respondents.
DECISION
CARPIO, J.:
The Case
The petition seeks the review1 of the Orders2 of the Regional Trial
Court of Pasig City affirming sub-silencio a lower court’s ruling
finding inapplicable the Double Jeopardy Clause to bar a second
prosecution for Reckless Imprudence Resulting in Homicide and
Damage to Property. This, despite the accused’s previous
conviction for Reckless Imprudence Resulting in Slight Physical
Injuries arising from the same incident grounding the second
prosecution.
The Facts
Following a vehicular collision in August 2004, petitioner Jason Ivler
(petitioner) was charged before the Metropolitan Trial Court of Pasig
City, Branch 71 (MeTC), with two separate offenses: (1) Reckless
Imprudence Resulting in Slight Physical Injuries (Criminal Case No.
82367) for injuries sustained by respondent Evangeline L. Ponce
(respondent Ponce); and (2) Reckless Imprudence Resulting in
Homicide and Damage to Property (Criminal Case No. 82366) for
the death of respondent Ponce’s husband Nestor C. Ponce and
damage to the spouses Ponce’s vehicle. Petitioner posted bail for
his temporary release in both cases.
On 7 September 2004, petitioner pleaded guilty to the charge in
Criminal Case No. 82367 and was meted out the penalty of public
censure. Invoking this conviction, petitioner moved to quash the
Information in Criminal Case No. 82366 for placing him in jeopardy
of second punishment for the same offense of reckless imprudence.
The MeTC refused quashal, finding no identity of offenses in the two
cases.3
After unsuccessfully seeking reconsideration, petitioner elevated
the matter to the Regional Trial Court of Pasig City, Branch 157
(RTC), in a petition for certiorari (S.C.A. No. 2803). Meanwhile,
petitioner sought from the MeTC the suspension of proceedings in
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Criminal Case No. 82366, including the arraignment on 17 May
2005, invoking S.C.A. No. 2803 as a prejudicial question. Without
acting on petitioner’s motion, the MeTC proceeded with the
arraignment and, because of petitioner’s absence, cancelled his bail
and ordered his arrest.4 Seven days later, the MeTC issued a
resolution denying petitioner’s motion to suspend proceedings and
postponing his arraignment until after his arrest.5 Petitioner sought
reconsideration but as of the filing of this petition, the motion
remained unresolved.
Relying on the arrest order against petitioner, respondent Ponce
sought in the RTC the dismissal of S.C.A. No. 2803 for petitioner’s
loss of standing to maintain the suit. Petitioner contested the motion.
The Ruling of the Trial Court
In an Order dated 2 February 2006, the RTC dismissed S.C.A. No.
2803, narrowly grounding its ruling on petitioner’s forfeiture of
standing to maintain S.C.A. No. 2803 arising from the MeTC’s order
to arrest petitioner for his non-appearance at the arraignment in
Criminal Case No. 82366. Thus, without reaching the merits of
S.C.A. No. 2803, the RTC effectively affirmed the MeTC. Petitioner
sought reconsideration but this proved unavailing. 6
Hence, this petition.
Petitioner denies absconding. He explains that his petition in S.C.A.
No. 2803 constrained him to forego participation in the proceedings
in Criminal Case No. 82366. Petitioner distinguishes his case from
the line of jurisprudence sanctioning dismissal of appeals for
absconding appellants because his appeal before the RTC was a
special civil action seeking a pre-trial relief, not a post-trial appeal of
a judgment of conviction.7
Petitioner laments the RTC’s failure to reach the merits of his
petition in S.C.A. 2803. Invoking jurisprudence, petitioner argues
that his constitutional right not to be placed twice in jeopardy of
punishment for the same offense bars his prosecution in Criminal
Case No. 82366, having been previously convicted in Criminal Case
No. 82367 for the same offense of reckless imprudence charged in
Criminal Case No. 82366. Petitioner submits that the multiple
consequences of such crime are material only to determine his
penalty.
Respondent Ponce finds no reason for the Court to disturb the
RTC’s decision forfeiting petitioner’s standing to maintain his
petition in S.C.A. 2803. On the merits, respondent Ponce calls the
Court’s attention to jurisprudence holding that light offenses (e.g.
slight physical injuries) cannot be complexed under Article 48 of the
Revised Penal Code with grave or less grave felonies (e.g.
homicide). Hence, the prosecution was obliged to separate the
charge in Criminal Case No. 82366 for the slight physical injuries
from Criminal Case No. 82367 for the homicide and damage to
property.
In the Resolution of 6 June 2007, we granted the Office of the
Solicitor General’s motion not to file a comment to the petition as
the public respondent judge is merely a nominal party and private
respondent is represented by counsel.
The Issues
Two questions are presented for resolution: (1) whether petitioner
forfeited his standing to seek relief in S.C.A. 2803 when the MeTC
ordered his arrest following his non-appearance at the arraignment
in Criminal Case No. 82366; and (2) if in the negative, whether
petitioner’s constitutional right under the Double Jeopardy Clause
bars further proceedings in Criminal Case No. 82366.
The Ruling of the Court
We hold that (1) petitioner’s non-appearance at the arraignment in
Criminal Case No. 82366 did not divest him of personality to
maintain the petition in S.C.A. 2803; and (2) the protection afforded
by the Constitution shielding petitioner from prosecutions placing
him in jeopardy of second punishment for the same offense bars
further proceedings in Criminal Case No. 82366.
Petitioner’s Non-appearance at the Arraignment in
Criminal Case No. 82366 did not Divest him of Standing
to Maintain the Petition in S.C.A. 2803
Dismissals of appeals grounded on the appellant’s escape from
custody or violation of the terms of his bail bond are governed by
the second paragraph of Section 8, Rule 124,8 in relation to Section
1, Rule 125, of the Revised Rules on Criminal Procedure authorizing
this Court or the Court of Appeals to "also, upon motion of the
appellee or motu proprio, dismiss the appeal if the appellant
escapes from prison or confinement, jumps bail or flees to a foreign
country during the pendency of the appeal." The "appeal"
contemplated in Section 8 of Rule 124 is a suit to review judgments
of convictions.
The RTC’s dismissal of petitioner’s special civil action for certiorari
to review a pre-arraignment ancillary question on the applicability of
the Due Process Clause to bar proceedings in Criminal Case No.
82366 finds no basis under procedural rules and jurisprudence. The
RTC’s reliance on People v. Esparas9 undercuts the cogency of its
ruling because Esparas stands for a proposition contrary to the
RTC’s ruling. There, the Court granted review to an appeal by an
accused who was sentenced to death for importing prohibited drugs
even though she jumped bail pending trial and was thus tried and
convicted in absentia. The Court in Esparas treated the mandatory
review of death sentences under Republic Act No. 7659 as an
exception to Section 8 of Rule 124.10
The mischief in the RTC’s treatment of petitioner’s non-appearance
at his arraignment in Criminal Case No. 82366 as proof of his loss
of standing becomes more evident when one considers the Rules
of Court’s treatment of a defendant who absents himself from post-
arraignment hearings. Under Section 21, Rule 11411 of the Revised
Rules of Criminal Procedure, the defendant’s absence merely
renders his bondsman potentially liable on its bond (subject to
cancellation should the bondsman fail to produce the accused within
30 days); the defendant retains his standing and, should he fail to
surrender, will be tried in absentia and could be convicted or
acquitted. Indeed, the 30-day period granted to the bondsman to
produce the accused underscores the fact that mere non-
appearance does not ipso facto convert the accused’s status to that
of a fugitive without standing.
Further, the RTC’s observation that petitioner provided "no
explanation why he failed to attend the scheduled proceeding" 12 at
the MeTC is belied by the records. Days before the arraignment,
petitioner sought the suspension of the MeTC’s proceedings in
Criminal Case No. 82366 in light of his petition with the RTC in
S.C.A. No. 2803. Following the MeTC’s refusal to defer arraignment
(the order for which was released days after the MeTC ordered
petitioner’s arrest), petitioner sought reconsideration. His motion
remained unresolved as of the filing of this petition.
Petitioner’s Conviction in Criminal Case No. 82367
Bars his Prosecution in Criminal Case No. 82366
The accused’s negative constitutional right not to be "twice put in
jeopardy of punishment for the same offense"13protects him from,
among others, post-conviction prosecution for the same offense,
with the prior verdict rendered by a court of competent jurisdiction
upon a valid information.14 It is not disputed that petitioner’s
conviction in Criminal Case No. 82367 was rendered by a court of
competent jurisdiction upon a valid charge. Thus, the case turns on
the question whether Criminal Case No. 82366 and Criminal Case
No. 82367 involve the "same offense." Petitioner adopts the
affirmative view, submitting that the two cases concern the same
offense of reckless imprudence. The MeTC ruled otherwise, finding
that Reckless Imprudence Resulting in Slight Physical Injuries is an
entirely separate offense from Reckless Imprudence Resulting in
Homicide and Damage to Property "as the [latter] requires proof of
an additional fact which the other does not."15
We find for petitioner.
Reckless Imprudence is a Single Crime,
its Consequences on Persons and
Property are Material Only to Determine
the Penalty
The two charges against petitioner, arising from the same facts,
were prosecuted under the same provision of the Revised Penal
Code, as amended, namely, Article 365 defining and penalizing
quasi-offenses. The text of the provision reads:
Imprudence and negligence. — Any person who, by reckless
imprudence, shall commit any act which, had it been intentional,
would constitute a grave felony, shall suffer the penalty of arresto
108
mayor in its maximum period to prision correccional in its medium
period; if it would have constituted a less grave felony, the penalty
of arresto mayor in its minimum and medium periods shall be
imposed; if it would have constituted a light felony, the penalty of
arresto menor in its maximum period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit
an act which would otherwise constitute a grave felony, shall suffer
the penalty of arresto mayor in its medium and maximum periods; if
it would have constituted a less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed.
When the execution of the act covered by this article shall have only
resulted in damage to the property of another, the offender shall be
punished by a fine ranging from an amount equal to the value of
said damages to three times such value, but which shall in no case
be less than twenty-five pesos.
A fine not exceeding two hundred pesos and censure shall be
imposed upon any person who, by simple imprudence or
negligence, shall cause some wrong which, if done maliciously,
would have constituted a light felony.
In the imposition of these penalties, the court shall exercise their
sound discretion, without regard to the rules prescribed in Article
sixty-four.
The provisions contained in this article shall not be applicable:
1. When the penalty provided for the offense is equal to or
lower than those provided in the first two paragraphs of
this article, in which case the court shall impose the
penalty next lower in degree than that which should be
imposed in the period which they may deem proper to
apply.
2. When, by imprudence or negligence and with violation
of the Automobile Law, to death of a person shall be
caused, in which case the defendant shall be punished by
prision correccional in its medium and maximum periods.
Reckless imprudence consists in voluntary, but without malice,
doing or failing to do an act from which material damage results by
reason of inexcusable lack of precaution on the part of the person
performing or failing to perform such act, taking into consideration
his employment or occupation, degree of intelligence, physical
condition and other circumstances regarding persons, time and
place.
Simple imprudence consists in the lack of precaution displayed in
those cases in which the damage impending to be caused is not
immediate nor the danger clearly manifest.
The penalty next higher in degree to those provided for in this article
shall be imposed upon the offender who fails to lend on the spot to
the injured parties such help as may be in this hand to give.
Structurally, these nine paragraphs are collapsible into four sub-
groupings relating to (1) the penalties attached to the quasi-offenses
of "imprudence" and "negligence" (paragraphs 1-2); (2) a modified
penalty scheme for either or both quasi-offenses (paragraphs 3-4, 6
and 9); (3) a generic rule for trial courts in imposing penalties
(paragraph 5); and (4) the definition of "reckless imprudence" and
"simple imprudence" (paragraphs 7-8). Conceptually, quasi-
offenses penalize "the mental attitude or condition behind the act,
the dangerous recklessness, lack of care or foresight, the
imprudencia punible,"16 unlike willful offenses which punish the
intentional criminal act. These structural and conceptual features of
quasi-offenses set them apart from the mass of intentional crimes
under the first 13 Titles of Book II of the Revised Penal Code, as
amended.
Indeed, the notion that quasi-offenses, whether reckless or simple,
are distinct species of crime, separately defined and penalized
under the framework of our penal laws, is nothing new. As early as
the middle of the last century, we already sought to bring clarity to
this field by rejecting in Quizon v. Justice of the Peace of Pampanga
the proposition that "reckless imprudence is not a crime in itself but
simply a way of committing it x x x"17 on three points of analysis: (1)
the object of punishment in quasi-crimes (as opposed to intentional
crimes); (2) the legislative intent to treat quasi-crimes as distinct
offenses (as opposed to subsuming them under the mitigating
circumstance of minimal intent) and; (3) the different penalty
structures for quasi-crimes and intentional crimes:
The proposition (inferred from Art. 3 of the Revised Penal Code) that
"reckless imprudence" is not a crime in itself but simply a way of
committing it and merely determines a lower degree of criminal
liability is too broad to deserve unqualified assent. There are crimes
that by their structure cannot be committed through imprudence:
murder, treason, robbery, malicious mischief, etc. In truth, criminal
negligence in our Revised Penal Code is treated as a mere quasi
offense, and dealt with separately from willful offenses. It is not a
mere question of classification or terminology. In intentional crimes,
the act itself is punished; in negligence or imprudence, what is
principally penalized is the mental attitude or condition behind the
act, the dangerous recklessness, lack of care or foresight, the
imprudencia punible. x x x x
Were criminal negligence but a modality in the commission of
felonies, operating only to reduce the penalty therefor, then it would
be absorbed in the mitigating circumstances of Art. 13, specially the
lack of intent to commit so grave a wrong as the one actually
committed. Furthermore, the theory would require that the
corresponding penalty should be fixed in proportion to the penalty
prescribed for each crime when committed willfully. For each
penalty for the willful offense, there would then be a corresponding
penalty for the negligent variety. But instead, our Revised Penal
Code (Art. 365) fixes the penalty for reckless imprudence at arresto
mayor maximum, to prision correccional [medium], if the willful act
would constitute a grave felony, notwithstanding that the penalty for
the latter could range all the way from prision mayor to death,
according to the case. It can be seen that the actual penalty for
criminal negligence bears no relation to the individual willful crime,
but is set in relation to a whole class, or series, of
crimes.18 (Emphasis supplied)
This explains why the technically correct way to allege quasi-crimes
is to state that their commission results in damage, either to person
or property.19
Accordingly, we found the Justice of the Peace in Quizon without
jurisdiction to hear a case for "Damage to Property through
Reckless Imprudence," its jurisdiction being limited to trying charges
for Malicious Mischief, an intentional crime conceptually
incompatible with the element of imprudence obtaining in quasi-
crimes.
Quizon, rooted in Spanish law20 (the normative ancestry of our
present day penal code) and since repeatedly reiterated, 21 stands
on solid conceptual foundation. The contrary doctrinal
pronouncement in People v. Faller22that "[r]eckless impudence is
not a crime in itself x x x [but] simply a way of committing it x x
x,"23 has long been abandoned when the Court en banc
promulgated Quizon in 1955 nearly two decades after the Court
decided Faller in 1939. Quizon rejected Faller’s conceptualization of
quasi-crimes by holding that quasi-crimes under Article 365 are
distinct species of crimes and not merely methods of committing
crimes. Faller found expression in post-Quizon jurisprudence24 only
by dint of lingering doctrinal confusion arising from an indiscriminate
fusion of criminal law rules defining Article 365 crimes and the
complexing of intentional crimes under Article 48 of the Revised
Penal Code which, as will be shown shortly, rests on erroneous
conception of quasi-crimes. Indeed, the Quizonian conception of
quasi-crimes undergirded a related branch of jurisprudence
applying the Double Jeopardy Clause to quasi-offenses, barring
second prosecutions for a quasi-offense alleging one resulting act
after a prior conviction or acquittal of a quasi-offense alleging
another resulting act but arising from the same reckless act or
omission upon which the second prosecution was based.
Prior Conviction or Acquittal of
Reckless Imprudence Bars
Subsequent Prosecution for the Same
Quasi-Offense
The doctrine that reckless imprudence under Article 365 is a single
quasi-offense by itself and not merely a means to commit other
crimes such that conviction or acquittal of such quasi-offense bars
subsequent prosecution for the same quasi-offense, regardless of
its various resulting acts, undergirded this Court’s unbroken chain
of jurisprudence on double jeopardy as applied to Article 365
starting with People v. Diaz,25 decided in 1954. There, a full Court,
speaking through Mr. Justice Montemayor, ordered the dismissal of
109
a case for "damage to property thru reckless imprudence" because
a prior case against the same accused for "reckless driving," arising
from the same act upon which the first prosecution was based, had
been dismissed earlier. Since then, whenever the same legal
question was brought before the Court, that is, whether prior
conviction or acquittal of reckless imprudence bars subsequent
prosecution for the same quasi-offense, regardless of the
consequences alleged for both charges, the Court unfailingly and
consistently answered in the affirmative in People v.
Belga26 (promulgated in 1957 by the Court en banc, per Reyes, J.),
Yap v. Lutero27 (promulgated in 1959, unreported, per Concepcion,
J.), People v. Narvas28 (promulgated in 1960 by the Court en banc,
per Bengzon J.), People v. Silva29 (promulgated in 1962 by the
Court en banc, per Paredes, J.), People v.
Macabuhay30 (promulgated in 1966 by the Court en banc, per
Makalintal, J.), People v. Buan31 (promulgated in 1968 by the Court
en banc, per Reyes, J.B.L., acting C. J.), Buerano v. Court of
Appeals32 (promulgated in 1982 by the Court en banc, per Relova,
J.), and People v. City Court of Manila33 (promulgated in 1983 by
the First Division, per Relova, J.). These cases uniformly barred the
second prosecutions as constitutionally impermissible under the
Double Jeopardy Clause.
The reason for this consistent stance of extending the constitutional
protection under the Double Jeopardy Clause to quasi-offenses was
best articulated by Mr. Justice J.B.L. Reyes in Buan, where, in
barring a subsequent prosecution for "serious physical injuries and
damage to property thru reckless imprudence" because of the
accused’s prior acquittal of "slight physical injuries thru reckless
imprudence," with both charges grounded on the same act, the
Court explained:34
Reason and precedent both coincide in that once convicted or
acquitted of a specific act of reckless imprudence, the accused may
not be prosecuted again for that same act. For the essence of the
quasi offense of criminal negligence under article 365 of the Revised
Penal Code lies in the execution of an imprudent or negligent act
that, if intentionally done, would be punishable as a felony. The law
penalizes thus the negligent or careless act, not the result thereof.
The gravity of the consequence is only taken into account to
determine the penalty, it does not qualify the substance of the
offense. And, as the careless act is single, whether the injurious
result should affect one person or several persons, the offense
(criminal negligence) remains one and the same, and can not be
split into different crimes and prosecutions.35 x x x (Emphasis
supplied)
Evidently, the Diaz line of jurisprudence on double jeopardy merely
extended to its logical conclusion the reasoning of Quizon.
There is in our jurisprudence only one ruling going against this
unbroken line of authority. Preceding Diaz by more than a decade,
El Pueblo de Filipinas v. Estipona,36 decided by the pre-war colonial
Court in November 1940, allowed the subsequent prosecution of an
accused for reckless imprudence resulting in damage to property
despite his previous conviction for multiple physical injuries arising
from the same reckless operation of a motor vehicle upon which the
second prosecution was based. Estipona’s inconsistency with the
post-war Diaz chain of jurisprudence suffices to impliedly overrule
it. At any rate, all doubts on this matter were laid to rest in 1982 in
Buerano.37 There, we reviewed the Court of Appeals’ conviction of
an accused for "damage to property for reckless imprudence"
despite his prior conviction for "slight and less serious physical
injuries thru reckless imprudence," arising from the same act upon
which the second charge was based. The Court of Appeals had
relied on Estipona. We reversed on the strength of Buan: 38
Th[e] view of the Court of Appeals was inspired by the ruling of this
Court in the pre-war case of People vs. Estipona decided on
November 14, 1940. However, in the case of People vs. Buan, 22
SCRA 1383 (March 29, 1968), this Court, speaking thru Justice J.
B. L. Reyes, held that –
Reason and precedent both coincide in that once convicted or
acquitted of a specific act of reckless imprudence, the accused may
not be prosecuted again for that same act. For the essence of the
quasi offense of criminal negligence under Article 365 of the
Revised Penal Code lies in the execution of an imprudent or
negligent act that, if intentionally done, would be punishable as a
felony. The law penalizes thus the negligent or careless act, not the
result thereof. The gravity of the consequence is only taken into
account to determine the penalty, it does not qualify the substance
of the offense. And, as the careless act is single, whether the
injurious result should affect one person or several persons, the
offense (criminal negligence) remains one and the same, and can
not be split into different crimes and prosecutions.
xxxx
. . . the exoneration of this appellant, Jose Buan, by the Justice of
the Peace (now Municipal) Court of Guiguinto, Bulacan, of the
charge of slight physical injuries through reckless imprudence,
prevents his being prosecuted for serious physical injuries through
reckless imprudence in the Court of First Instance of the province,
where both charges are derived from the consequences of one and
the same vehicular accident, because the second accusation places
the appellant in second jeopardy for the same offense.39 (Emphasis
supplied)
Thus, for all intents and purposes, Buerano had effectively overruled
Estipona.
It is noteworthy that the Solicitor General in Buerano, in a reversal
of his earlier stance in Silva, joined causes with the accused, a fact
which did not escape the Court’s attention:
Then Solicitor General, now Justice Felix V. Makasiar, in his
MANIFESTATION dated December 12, 1969 (page 82 of the Rollo)
admits that the Court of Appeals erred in not sustaining petitioner’s
plea of double jeopardy and submits that "its affirmatory decision
dated January 28, 1969, in Criminal Case No. 05123-CR finding
petitioner guilty of damage to property through reckless imprudence
should be set aside, without costs." He stressed that "if double
jeopardy exists where the reckless act resulted into homicide and
physical injuries. then the same consequence must perforce follow
where the same reckless act caused merely damage to property-
not death-and physical injuries. Verily, the value of a human life lost
as a result of a vehicular collision cannot be equated with any
amount of damages caused to a motors vehicle arising from the
same mishap."40 (Emphasis supplied)
Hence, we find merit in petitioner’s submission that the lower courts
erred in refusing to extend in his favor the mantle of protection
afforded by the Double Jeopardy Clause. A more fitting
jurisprudence could not be tailored to petitioner’s case than People
v. Silva, 41 a Diaz progeny. There, the accused, who was also
involved in a vehicular collision, was charged in two separate
Informations with "Slight Physical Injuries thru Reckless
Imprudence" and "Homicide with Serious Physical Injuries thru
Reckless Imprudence." Following his acquittal of the former, the
accused sought the quashal of the latter, invoking the Double
Jeopardy Clause. The trial court initially denied relief, but, on
reconsideration, found merit in the accused’s claim and dismissed
the second case. In affirming the trial court, we quoted with approval
its analysis of the issue following Diaz and its progeny People v.
Belga:42
On June 26, 1959, the lower court reconsidered its Order of May 2,
1959 and dismissed the case, holding: —
[T]he Court believes that the case falls squarely within the doctrine
of double jeopardy enunciated in People v. Belga, x x x In the case
cited, Ciriaco Belga and Jose Belga were charged in the Justice of
the Peace Court of Malilipot, Albay, with the crime of physical
injuries through reckless imprudence arising from a collision
between the two automobiles driven by them (Crim. Case No. 88).
Without the aforesaid complaint having been dismissed or otherwise
disposed of, two other criminal complaints were filed in the same
justice of the peace court, in connection with the same collision one
for damage to property through reckless imprudence (Crim. Case
No. 95) signed by the owner of one of the vehicles involved in the
collision, and another for multiple physical injuries through reckless
imprudence (Crim. Case No. 96) signed by the passengers injured
in the accident. Both of these two complaints were filed against Jose
Belga only. After trial, both defendants were acquitted of the charge
against them in Crim. Case No. 88. Following his acquittal, Jose
Belga moved to quash the complaint for multiple physical injuries
through reckless imprudence filed against him by the injured
passengers, contending that the case was just a duplication of the
one filed by the Chief of Police wherein he had just been acquitted.
The motion to quash was denied and after trial Jose Belga was
convicted, whereupon he appealed to the Court of First Instance of
Albay. In the meantime, the case for damage to property through
reckless imprudence filed by one of the owners of the vehicles
involved in the collision had been remanded to the Court of First
Instance of Albay after Jose Belga had waived the second stage of
the preliminary investigation. After such remand, the Provincial
110
Fiscal filed in the Court of First Instance two informations against
Jose Belga, one for physical injuries through reckless imprudence,
and another for damage to property through reckless imprudence.
Both cases were dismissed by the Court of First Instance, upon
motion of the defendant Jose Belga who alleged double jeopardy in
a motion to quash. On appeal by the Prov. Fiscal, the order of
dismissal was affirmed by the Supreme Court in the following
language: .
The question for determination is whether the acquittal of Jose
Belga in the case filed by the chief of police constitutes a bar to his
subsequent prosecution for multiple physical injuries and damage
to property through reckless imprudence.
In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March
30, 1954, the accused was charged in the municipal court of Pasay
City with reckless driving under sec. 52 of the Revised Motor Vehicle
Law, for having driven an automobile in a ῾fast and reckless manner
... thereby causing an accident.’ After the accused had pleaded not
guilty the case was dismissed in that court ῾for failure of the
Government to prosecute’. But some time thereafter the city
attorney filed an information in the Court of First Instance of Rizal,
charging the same accused with damage to property thru reckless
imprudence. The amount of the damage was alleged to be P249.50.
Pleading double jeopardy, the accused filed a motion, and on
appeal by the Government we affirmed the ruling. Among other
things we there said through Mr. Justice Montemayor —
The next question to determine is the relation between the first
offense of violation of the Motor Vehicle Law prosecuted before the
Pasay City Municipal Court and the offense of damage to property
thru reckless imprudence charged in the Rizal Court of First
Instance. One of the tests of double jeopardy is whether or not the
second offense charged necessarily includes or is necessarily
included in the offense charged in the former complaint or
information (Rule 113, Sec. 9). Another test is whether the evidence
which proves one would prove the other that is to say whether the
facts alleged in the first charge if proven, would have been sufficient
to support the second charge and vice versa; or whether one crime
is an ingredient of the other. x x x
xxxx
The foregoing language of the Supreme Court also disposes of the
contention of the prosecuting attorney that the charge for slight
physical injuries through reckless imprudence could not have been
joined with the charge for homicide with serious physical injuries
through reckless imprudence in this case, in view of the provisions
of Art. 48 of the Revised Penal Code, as amended. The
prosecution’s contention might be true. But neither was the
prosecution obliged to first prosecute the accused for slight physical
injuries through reckless imprudence before pressing the more
serious charge of homicide with serious physical injuries through
reckless imprudence. Having first prosecuted the defendant for the
lesser offense in the Justice of the Peace Court of Meycauayan,
Bulacan, which acquitted the defendant, the prosecuting attorney is
not now in a position to press in this case the more serious charge
of homicide with serious physical injuries through reckless
imprudence which arose out of the same alleged reckless
imprudence of which the defendant have been previously cleared
by the inferior court.43
Significantly, the Solicitor General had urged us in Silva to
reexamine Belga (and hence, Diaz) "for the purpose of delimiting or
clarifying its application."44 We declined the invitation, thus:
The State in its appeal claims that the lower court erred in dismissing
the case, on the ground of double jeopardy, upon the basis of the
acquittal of the accused in the JP court for Slight Physical Injuries,
thru Reckless Imprudence. In the same breath said State, thru the
Solicitor General, admits that the facts of the case at bar, fall
squarely on the ruling of the Belga case x x x, upon which the order
of dismissal of the lower court was anchored. The Solicitor General,
however, urges a re-examination of said ruling, upon certain
considerations for the purpose of delimiting or clarifying its
application. We find, nevertheless, that further elucidation or
disquisition on the ruling in the Belga case, the facts of which are
analogous or similar to those in the present case, will yield no
practical advantage to the government. On one hand, there is
nothing which would warrant a delimitation or clarification of the
applicability of the Belga case. It was clear. On the other, this Court
has reiterated the views expressed in the Belga case, in the identical
case of Yap v. Hon. Lutero, etc., L-12669, April 30,
1959.45 (Emphasis supplied)
Article 48 Does not Apply to Acts Penalized
Under Article 365 of the Revised Penal Code
The confusion bedeviling the question posed in this petition, to
which the MeTC succumbed, stems from persistent but awkward
attempts to harmonize conceptually incompatible substantive and
procedural rules in criminal law, namely, Article 365 defining and
penalizing quasi-offenses and Article 48 on complexing of crimes,
both under the Revised Penal Code. Article 48 is a procedural
device allowing single prosecution of multiple felonies falling under
either of two categories: (1) when a single act constitutes two or
more grave or less grave felonies (thus excluding from its operation
light felonies46); and (2) when an offense is a necessary means for
committing the other. The legislature crafted this procedural tool to
benefit the accused who, in lieu of serving multiple penalties, will
only serve the maximum of the penalty for the most serious crime.
In contrast, Article 365 is a substantive rule penalizing not an act
defined as a felony but "the mental attitude x x x behind the act, the
dangerous recklessness, lack of care or foresight x x x," 47 a single
mental attitude regardless of the resulting consequences. Thus,
Article 365 was crafted as one quasi-crime resulting in one or more
consequences.
Ordinarily, these two provisions will operate smoothly. Article 48
works to combine in a single prosecution multiple intentional crimes
falling under Titles 1-13, Book II of the Revised Penal Code, when
proper; Article 365 governs the prosecution of imprudent acts and
their consequences. However, the complexities of human
interaction can produce a hybrid quasi-offense not falling under
either models – that of a single criminal negligence resulting in
multiple non-crime damages to persons and property with varying
penalties corresponding to light, less grave or grave offenses. The
ensuing prosecutorial dilemma is obvious: how should such a quasi-
crime be prosecuted? Should Article 48’s framework apply to
"complex" the single quasi-offense with its multiple (non-criminal)
consequences (excluding those amounting to light offenses which
will be tried separately)? Or should the prosecution proceed under
a single charge, collectively alleging all the consequences of the
single quasi-crime, to be penalized separately following the scheme
of penalties under Article 365?
Jurisprudence adopts both approaches. Thus, one line of rulings
(none of which involved the issue of double jeopardy) applied Article
48 by "complexing" one quasi-crime with its multiple
consequences48 unless one consequence amounts to a light felony,
in which case charges were split by grouping, on the one hand,
resulting acts amounting to grave or less grave felonies and filing
the charge with the second level courts and, on the other hand,
resulting acts amounting to light felonies and filing the charge with
the first level courts.49 Expectedly, this is the approach the MeTC
impliedly sanctioned (and respondent Ponce invokes), even though
under Republic Act No. 7691,50 the MeTC has now exclusive
original jurisdiction to impose the most serious penalty under Article
365 which is prision correccional in its medium period.
Under this approach, the issue of double jeopardy will not arise if
the "complexing" of acts penalized under Article 365 involves only
resulting acts penalized as grave or less grave felonies because
there will be a single prosecution of all the resulting acts. The issue
of double jeopardy arises if one of the resulting acts is penalized as
a light offense and the other acts are penalized as grave or less
grave offenses, in which case Article 48 is not deemed to apply and
the act penalized as a light offense is tried separately from the
resulting acts penalized as grave or less grave offenses.
The second jurisprudential path nixes Article 48 and sanctions a
single prosecution of all the effects of the quasi-crime collectively
alleged in one charge, regardless of their number or
severity,51 penalizing each consequence separately. Thus, in
Angeles v. Jose,52 we interpreted paragraph three of Article 365, in
relation to a charge alleging "reckless imprudence resulting in
damage to property and less serious physical injuries," as follows:
[T]he third paragraph of said article, x x x reads as follows:
When the execution of the act covered by this article shall have only
resulted in damage to the property of another, the offender shall be
punished by a fine ranging from an amount equal to the value of
111
said damage to three times such value, but which shall in no case
be less than 25 pesos.
The above-quoted provision simply means that if there is only
damage to property the amount fixed therein shall be imposed, but
if there are also physical injuries there should be an additional
penalty for the latter. The information cannot be split into two; one
for the physical injuries, and another for the damage to property, x
x x.53(Emphasis supplied)
By "additional penalty," the Court meant, logically, the penalty
scheme under Article 365.
Evidently, these approaches, while parallel, are irreconcilable.
Coherence in this field demands choosing one framework over the
other. Either (1) we allow the "complexing" of a single quasi-crime
by breaking its resulting acts into separate offenses (except for light
felonies), thus re-conceptualize a quasi-crime, abandon its present
framing under Article 365, discard its conception under the Quizon
and Diaz lines of cases, and treat the multiple consequences of a
quasi-crime as separate intentional felonies defined under Titles 1-
13, Book II under the penal code; or (2) we forbid the application of
Article 48 in the prosecution and sentencing of quasi-crimes, require
single prosecution of all the resulting acts regardless of their number
and severity, separately penalize each as provided in Article 365,
and thus maintain the distinct concept of quasi-crimes as crafted
under Article 365, articulated in Quizon and applied to double
jeopardy adjudication in the Diaz line of cases.1avvphi1
A becoming regard of this Court’s place in our scheme of
government denying it the power to make laws constrains us to keep
inviolate the conceptual distinction between quasi-crimes and
intentional felonies under our penal code. Article 48 is incongruent
to the notion of quasi-crimes under Article 365. It is conceptually
impossible for a quasi-offense to stand for (1) a
single act constituting two or more grave or less grave felonies; or
(2) anoffense which is a necessary means for committing another.
This is why, way back in 1968 in Buan, we rejected the Solicitor
General’s argument that double jeopardy does not bar a second
prosecution for slight physical injuries through reckless imprudence
allegedly because the charge for that offense could not be joined
with the other charge for serious physical injuries through reckless
imprudence following Article 48 of the Revised Penal Code:
The Solicitor General stresses in his brief that the charge for slight
physical injuries through reckless imprudence could not be joined
with the accusation for serious physical injuries through reckless
imprudence, because Article 48 of the Revised Penal Code allows
only the complexing of grave or less grave felonies. This same
argument was considered and rejected by this Court in the case of
People vs. [Silva] x x x:
[T]he prosecution’s contention might be true. But neither was the
prosecution obliged to first prosecute the accused for slight physical
injuries through reckless imprudence before pressing the more
serious charge of homicide with serious physical injuries through
reckless imprudence. Having first prosecuted the defendant for the
lesser offense in the Justice of the Peace Court of Meycauayan,
Bulacan, which acquitted the defendant, the prosecuting attorney is
not now in a position to press in this case the more serious charge
of homicide with serious physical injuries through reckless
imprudence which arose out of the same alleged reckless
imprudence of which the defendant has been previously cleared by
the inferior court.
[W]e must perforce rule that the exoneration of this appellant x x x
by the Justice of the Peace x x x of the charge of slight physical
injuries through reckless imprudence, prevents his being
prosecuted for serious physical injuries through reckless
imprudence in the Court of First Instance of the province, where both
charges are derived from the consequences of one and the same
vehicular accident, because the second accusation places the
appellant in second jeopardy for the same offense. 54 (Emphasis
supplied)
Indeed, this is a constitutionally compelled choice. By prohibiting the
splitting of charges under Article 365, irrespective of the number and
severity of the resulting acts, rampant occasions of constitutionally
impermissible second prosecutions are avoided, not to mention that
scarce state resources are conserved and diverted to proper use.
Hence, we hold that prosecutions under Article 365 should proceed
from a single charge regardless of the number or severity of the
consequences. In imposing penalties, the judge will do no more than
apply the penalties under Article 365 for each consequence alleged
and proven. In short, there shall be no splitting of charges under
Article 365, and only one information shall be filed in the same first
level court.55
Our ruling today secures for the accused facing an Article 365
charge a stronger and simpler protection of their constitutional right
under the Double Jeopardy Clause. True, they are thereby denied
the beneficent effect of the favorable sentencing formula under
Article 48, but any disadvantage thus caused is more than
compensated by the certainty of non-prosecution for quasi-crime
effects qualifying as "light offenses" (or, as here, for the more
serious consequence prosecuted belatedly). If it is so minded,
Congress can re-craft Article 365 by extending to quasi-crimes the
sentencing formula of Article 48 so that only the most severe penalty
shall be imposed under a single prosecution of all resulting acts,
whether penalized as grave, less grave or light offenses. This will
still keep intact the distinct concept of quasi-offenses. Meanwhile,
the lenient schedule of penalties under Article 365, befitting crimes
occupying a lower rung of culpability, should cushion the effect of
this ruling.
WHEREFORE, we GRANT the petition. We REVERSE the Orders
dated 2 February 2006 and 2 May 2006 of the Regional Trial Court
of Pasig City, Branch 157. We DISMISS the Information in Criminal
Case No. 82366 against petitioner Jason Ivler y Aguilar pending with
the Metropolitan Trial Court of Pasig City, Branch 71 on the ground
of double jeopardy.
Let a copy of this ruling be served on the President of the Senate
and the Speaker of the House of Representatives.
SO ORDERED.
HON. WALDO Q. FLORES, in his capacity as Senior Deputy
Executive Secretary in the Office of the President, HON. ARTHUR
P. AUTEA, in his capacity as Deputy Executive Secretary in the
Office of the President, and the PRESIDENTIAL ANTI-GRAFT
COMMISSION (PAGC), Petitioners,
- versus -
ATTY. ANTONIO F. MONTEMAYOR,
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
VILLARAMA, JR., J.:
Before us is a Rule 45 petition assailing the October 19,
2005 Decision[1] of the Court of Appeals (CA) in CA-G.R. SP No.
84254. The appellate court, in the said decision, had reversed and set
aside the March 23, 2004 Decision[2] and May 13, 2004
Resolution[3] of the Office of the President in O.P. Case No. 03-1-581
finding respondent Atty. Antonio F. Montemayor administratively
liable as charged and dismissing him from government service.
The facts follow.
Respondent Atty. Antonio F. Montemayor was appointed by the
President as Regional Director II of the Bureau of Internal Revenue
(BIR), Region IV, in San Fernando, Pampanga.
On January 30, 2003, the Office of the President received a letter
from a concerned citizen dated January 20, 2003 relating
Montemayors ostentatious lifestyle which is apparently
disproportionate to his income as a public official. The letter was
referred to Dario C. Rama, Chairman of the Presidential Anti-Graft
Commission (PAGC) for appropriate action.[4] The Investigating
Office of the PAGC immediately conducted a fact-finding inquiry into
the matter and issued subpoenas duces tecum to the responsible
personnel of the BIR and the Land Transportation Office (LTO). In
compliance with the subpoena, BIR Personnel Division Chief
Estelita Datu submitted to the PAGC a copy of Montemayors
appointment papers along with a certified true copy of the latters
Sworn Statement of Assets and Liabilities (SSAL) for the year
2002. Meanwhile, the LTO, through its Records Section Chief, Ms.
Arabelle O. Petilla, furnished the PAGC with a record of vehicles
registered to Montemayor, to wit: a 2001 Ford Expedition, a 1997
Toyota Land Cruiser, and a 1983 Mitsubishi Galant.[5]
112
During the pendency of the investigation, the Philippine Center for Executive Order (EO) No. 12;[23] fourth, that it was an error for the
Investigative Journalism, a media organization which had previously Office of the President to hold him liable for violation of Section 7
published an article on the unexplained wealth of certain BIR officials, of RA No. 3019 and Section 8 (A) of RA No. 6713 since the SSAL
also submitted to the PAGC copies of Montemayors SSAL for the should reflect assets and liabilities acquired in the preceding year;
years 1999, 2000 and 2001.[6] In Montemayors 1999 and 2000 SSAL, and fifth, that the assailed PAGC Resolution was not supported by
the PAGC noted that Montemayor declared his ownership over substantial evidence.
several motor vehicles, but failed to do the same in his 2001 SSAL.[7]
As aforesaid, the CA in its assailed Decision dated October 19,
On the basis of the said documents, the PAGC issued a Formal 2005, ruled in favor of Montemayor. The CA concluded that
Charge[8] against Montemayor on May 19, 2003 for violation of Section Montemayor was deprived of an opportunity to present
7 of Republic Act (RA) No. 3019[9] in relation to Section 8 (A) of RA No. controverting evidence amounting to a brazen denial of his right to
6713[10] due to his failure to declare the 2001 Ford Expedition with a due process.
value ranging from 1.7 million to 1.9 million pesos, and the 1997 Toyota
Land Cruiser with an estimated value of 1 million to 1.2 million pesos in
Hence, petitioners now appeal the matter before us raising the
his 2001[11] and 2002[12] SSAL. The charge was docketed as PAGC-
following issues:
ADM-0149-03. On the same date, the PAGC issued an
Order[13] directing Montemayor to file his counter-affidavit or verified
answer to the formal charge against him within ten (10) days from the I. WHETHER PETITIONER PAGC HAD A
receipt of the Order. Montemayor, however, failed to submit his counter- CONSTITUTIONAL DUTY TO ACCORD
affidavit or verified answer to the formal charge lodged against him. RESPONDENT A SECOND OPPORTUNITY TO
PRESENT EVIDENCE IN PAGC-ADM-0149-03
AFTER THE EXPIRATION OF THE TRO ISSUED
On June 4, 2003, during the preliminary conference, Montemayor, IN CA-G.R. SP NO. 77285.
through counsel, moved for the deferment of the administrative
proceedings explaining that he has filed a petition
II. WHETHER THE MERE PENDENCY OF CA-
for certiorari before the CA[14] questioning the PAGCs jurisdiction to
G.R. SP NO. 77285 WAS A LEGAL GROUND
conduct the administrative investigation against him. The PAGC
FOR RESPONDENTS REFUSAL TO PRESENT
denied Montemayors motion for lack of merit, and instead gave him
EVIDENCE IN [PAGC]-ADM-0149-03.
until June 9, 2003 to submit his counter-affidavit or verified
answer.[15] Still, no answer was filed.
III. WHETHER THE ALLEGED UNDUE HASTE AND
APPARENT PRECIPITATION OF
On June 23, 2003, the CA issued a Temporary Restraining Order PROCEEDINGS IN [PAGC]-ADM-0149-03 HAD
(TRO) in CA-G.R. SP No. 77285 enjoining the PAGC from RENDERED THE SAME INFIRM.
proceeding with the investigation for sixty (60)
days.[16] On September 12, 2003, shortly after the expiration of the IV. WHETHER RESPONDENT HAD COMMITTED A
sixty (60)-day TRO, the PAGC issued a Resolution[17] finding MAJOR ADMINISTRATIVE INFRACTION
Montemayor administratively liable as charged and recommending WARRANTING DISMISSAL FROM
to the Office of the President Montemayors dismissal from the [GOVERNMENT] SERVICE.
service.
V. WHETHER THE [OFFICE OF THE
On March 23, 2004, the Office of the President, through Deputy PRESIDENTS] DETERMINATION THAT
Executive Secretary Arthur P. Autea, issued a Decision adopting in RESPONDENT COMMITTED THE
toto the findings and recommendation of the PAGC. The pertinent ADMINISTRATIVE OFFENSE CHARGED IS
portion of the Decision reads: SUPPORTED BY SUBSTANTIAL EVIDENCE.
After a circumspect study of the case, this Office fully
agrees with the recommendation of PAGC and the VI. WHETHER THE PAGC HAD AUTHORITY TO
legal premises as well as the factual findings that hold RECOMMEND TO THE PRESIDENT THE
it together. Respondent failed to disclose in his 2001 PENALTY OF DISMISSAL, FOLLOWING ITS
and 2002 SSAL high-priced vehicles in breach of the INVESTIGATION INITIATED BY AN
prescription of the relevant provisions of RA No. 3019 ANONYMOUS COMPLAINT, AND DESPITE THE
in relation to RA No. 6713. He was, to be sure, afforded PENDENCY OF ANOTHER INVESTIGATION
ample opportunity to explain his failure, but he opted FOR THE SAME OFFENSE BEFORE THE
to let the opportunity pass by. [OFFICE OF THE] OMBUDSMAN.[24]

WHEREFORE, premises considered, respondent The issues may be summarized as follows:

Antonio F. Montemayor is hereby found
administratively liable as charged and, as I. WHETHER RESPONDENT WAS DEPRIVED
recommended by PAGC, meted the penalty of OF HIS RIGHT TO DUE PROCESS WHEN IT
dismissal from the service, with all accessory PROCEEDED TO INVESTIGATE HIM ON THE
penalties. BASIS OF AN ANONYMOUS COMPLAINT, AND
ALLEGEDLY WITHOUT AN OPPORTUNITY TO
SO ORDERED.[18] PRESENT EVIDENCE IN HIS DEFENSE;

II. WHETHER THE PAGC HAS THE AUTHORITY

Montemayor sought reconsideration of the said decision.[19] This TO RECOMMEND RESPONDENTS DISMISSAL
time, he argued that he was denied his right to due process when FROM THE SERVICE;
the PAGC proceeded to investigate his case notwithstanding the
pendency of his petition for certiorari before the CA, and its
subsequent elevation to the Supreme Court. [20] The motion was III. WHETHER THE ASSUMPTION BY THE OFFICE
eventually denied.[21] OF THE OMBUDSMAN OF ITS JURISDICTION TO
INVESTIGATE RESPONDENT FOR THE SAME
OFFENSE DEPRIVED THE PAGC [WITH ITS
Aggrieved, Montemayor brought the matter to the CA via a petition JURISDICTION] FROM PROCEEDING WITH ITS
for review[22] under Rule 43 of the 1997 Rules of Civil Procedure, as INVESTIGATION; AND
amended. He made the following assertions: first, that the PAGC
exceeded its authority when it recommended that he be dismissed IV. WHETHER THE PAGCS RECOMMENDATION
from government service since the power to investigate does not WAS SUPPORTED BY SUBSTANTIAL
necessarily carry with it the power to impose penalty unless the EVIDENCE.
same was expressly granted; second, that the PAGC grossly
violated his right to due process of law when it did not give him the
opportunity to present his countervailing evidence to the charges
against him; third, that the PAGC cannot validly proceed with the We discuss the first three (3) issues jointly as these involve
investigation of the charges against him on the basis of an unverified procedural aspects.
anonymous letter-complaint without any supporting documents
attached thereto, contrary to the requirement of Section 4 (c) of
113
The PAGC was created by virtue of EO No. 12, signed on April 16,
2001 to speedily address the problem on corruption and abuses
committed in the government, particularly by officials appointed by
the President. Under Section 4 (b) of EO No. 12, the PAGC has the
power to investigate and hear administrative complaints provided
(1) that the official to be investigated must be a presidential
appointee in the government or any of its agencies or
instrumentalities, and (2) that the said official must be occupying the
position of assistant regional director, or an equivalent rank, or
higher.[25]
Respondent contends that he was deprived of his right to due
process when the PAGC proceeded to investigate him on the basis
of an anonymous complaint in the absence of any documents
supporting the complainants assertions.
Section 4 (c) of EO No. 12, however, states that the PAGC has the
power to give due course to anonymous complaints against presidential
appointees if there appears on the face of the complaint or based on
the supporting documents attached to the anonymous complaint a
probable cause to engender a belief that the allegations may be
true.[26] The use of the conjunctive word or in the said provision is
determinative since it empowers the PAGC to exercise discretion in
giving due course to anonymous complaints. Because of the said
provision, an anonymous complaint may be given due course even if
the same is without supporting documents, so long as it appears from
the face of the complaint that there is probable cause. The clear
implication of the said provision is intent to empower the PAGC in line
with the Presidents objective of eradicating corruption among a
particular line of government officials, i.e., those directly appointed by
her. Absent the conjunctive word or, the PAGCs authority to conduct
investigations based on anonymous complaints will be very limited. It
will decimate the said administrative body into a toothless anti-
corruption agency and will inevitably undermine the Chief Executives
disciplinary power.
Respondent also assails the PAGCs decision to proceed with the
investigation process without giving him the opportunity to present
controverting evidence.
The argument is without merit.
We find nothing irregular with the PAGCs decision to proceed with
its investigation notwithstanding the pendency of Montemayors
petition for certiorari before the CA. The filing of a petition
for certiorari with the CA did not divest the PAGC of its jurisdiction
validly acquired over the case before it. Elementary is the rule that
the mere pendency of a special civil action for certiorari,
commenced in relation to a case pending before a lower court or an
administrative body such as the PAGC, does not interrupt the
course of the latter where there is no writ of injunction restraining
it.[27] For as long as no writ of injunction or restraining order is issued
in the special civil action for certiorari, no impediment exists, and
nothing prevents the PAGC from exercising its jurisdiction and
proceeding with the case pending before its office. [28] And even if
such injunctive writ or order is issued, the PAGC continues to retain
jurisdiction over the principal action[29] until the question on
jurisdiction is finally determined.
In the case at bar, a sixty (60)-day TRO was issued by the CA in
CA-G.R. SP No. 77285. However, barely a week after the lapse of
the TRO, the PAGC issued its resolution finding Montemayor
administratively liable and recommending to the Office of the
President his dismissal from government service. The CA believes
that there has been undue haste and apparent precipitation in the
PAGCs investigation proceedings.[30] It notes with disapproval the
fact that it was barely eight (8) days after the TRO had lapsed that
the PAGC issued the said resolution and explains that respondent
should have been given a second chance to present evidence prior
to proceeding with the issuance of the said resolution. [31]
We beg to disagree with the appellate courts observation.
First, it must be remembered that the PAGCs act of issuing the
assailed resolution enjoys the presumption of regularity particularly
since it was done in the performance of its official duties. Mere
surmises and conjectures, absent any proof whatsoever, will not tilt
the balance against the presumption, if only to provide constancy in
the official acts of authorized government personnel and officials.
Simply put, the timing of the issuance of the assailed PAGC
resolution by itself cannot be used to discredit, much less nullify,
what appears on its face to be a regular performance of the PAGCs
duties.
Second, Montemayors argument, as well as the CAs observation
that respondent was not afforded a second opportunity to present
controverting evidence, does not hold water. The essence of due
process in administrative proceedings is an opportunity to explain
ones side or an opportunity to seek reconsideration of the action or
ruling complained of.[32] So long as the party is given the opportunity
to explain his side, the requirements of due process are
satisfactorily complied with.[33]
Significantly, the records show that the PAGC issued an order
informing Montemayor of the formal charge filed against him and
gave him ten (10) days within which to present a counter-affidavit or
verified answer.[34] When the said period lapsed without respondent
asking for an extension, the PAGC gave Montemayor a fresh ten
(10)-day period to file his answer,[35] but the latter chose to await the
decision of the CA in his petition for certiorari.[36] During the
preliminary conference, Montemayor was again informed that he is
given a new ten (10)-day period, or until June 19, 2003 within which
to file his memorandum/position paper as well as supporting
evidence with a warning that if he still fails to do so, the complaint
shall be deemed submitted for resolution on the basis of available
documentary evidence on record.[37] Again, the deadline lapsed
without any evidence being presented by Montemayor in his
defense.
We stress that the PAGCs findings and recommendations remain
as recommendations until finally acted upon by the Office of the
President. Montemayor, therefore, had two (2) choices upon the
issuance of the PAGC resolution: to move for a reconsideration
thereof, or to ask for another opportunity before the Office of the
President to present his side particularly since the assailed
resolution is merely recommendatory in nature. Having failed to
exercise any of these two (2) options, Montemayor cannot now be
allowed to seek recourse before this Court for the consequences of
his own shortcomings.
Desperately, Montemayor contends that the authority of the PAGC to
investigate him administratively, as well as the power of the Office of
the President to act on the PAGCs recommendation, had already
ceased following the initiation and filing of the administrative and
criminal cases against him by the Office of the Ombudsman
(Ombudsman).[38] He points out that the Ombudsman is mandated by
Section 15, paragraph (1) of RA No. 6770[39] to take over the
investigation and prosecution of the charges filed
against him.[40]
We are still not persuaded.
The cases filed against respondent before the Ombudsman were
initiated after the Office of the President decided to dismiss
Montemayor.[41] More importantly, the proceedings before the
PAGC were already finished even prior to the initiation and filing of
cases against him by the Ombudsman. In fact, it was the PAGCs
findings and recommendations which served as the basis in the
Office of the Presidents decision to dismiss Montemayor from
government service. Clearly then, the exercise by the Office of the
President of its concurrent investigatory and prosecutorial power
over Montemayor had already been terminated even before the
Ombudsman could take cognizance over the matter. The
Ombudsman, therefore, cannot take over a task that is already a fait
accompli.
As to the substantive aspect, i.e., whether the PAGCs recommendation
to dismiss Montemayor from government service is supported by
substantial evidence, we find in favor of petitioners.
Montemayors argument that he did not deliberately omit to declare the
2001 Ford Expedition in his 2001 SSAL and the 1997 Toyota Land
Cruiser in his 2001 and 2002 SSAL fails to persuade us. Even if a motor
vehicle was acquired through chattel mortgage, it is a government
employees ethical and legal obligation to declare and include the same
in his SSAL. Montemayor cannot wiggle his way out of the mess he has
himself created since he knows for a fact that every asset acquired by
a civil servant must be declared in the SSAL. The law requires that the
SSAL be accomplished truthfully and in detail without distinction as to
how the property was acquired. Montemayor, therefore, cannot escape
liability by arguing that the ownership of the 2001 Ford Expedition has
114
not yet passed to him on the basis of a lame excuse that the said vehicle
was acquired only on installment basis sometime on July 3, 2001.[42]
Montemayor also argues that even if ownership of the said vehicle had
been transferred to him upon acquisition, the vehicle was sold to
another person on December 15, 2002;[43]hence, there is no need to
declare it in his 2001 SSAL. Respondents reasoning is anemic and
convoluted. It is evasive of the fact that the said vehicle was not reported
in his 2001 SSAL.Notably, the acquisition value of the 2001 Ford
Expedition was P1,599,000.00[44] is significantly greater than the
amount declared by Montemayor under machinery/equipment,
worthP1,321,212.50, acquired by him as of December 31, 2001,[45] and
to the P1,251,675.00 worth of machinery/ equipment acquired by him
as of December 31, 2002.[46] This belies Montemayors claim that the
said vehicle has been included among the machinery/equipment assets
he declared in his 2001 and 2002 SSAL.[47] Neither did Montemayor
satisfactorily reflect the P1,000,000.00 that has come to his hands as
payment for the alleged sale of his 2001 Ford Expedition in his 2002
SSAL.[48]
Respondent apparently fails to understand that the SSAL is not a
mere scrap of paper. The law requires that the SSAL must be
accomplished as truthfully, as detailed and as accurately as
possible. The filing thereof not later than the first fifteen (15) days of
April at the close of every calendar year must not be treated as a
simple and trivial routine, but as an obligation that is part and parcel
of every civil servants duty to the people. It serves as the basis of
the government and the people in monitoring the income and
lifestyle of officials and employees in the government in compliance
with the Constitutional policy to eradicate corruption,[49] promote
transparency in government,[50] and ensure that all government
employees and officials lead just and modest lives. [51] It is for this
reason that the SSAL must be sworn to and is made accessible to
the public, subject to reasonable administrative regulations.
Montemayors repeated and consistent failure to reflect truthfully and
adequately all his assets and liabilities in his SSAL betrays his claim
of innocence and good faith. Accordingly, we find that the penalty of
dismissal from government service, as sanctioned by Section 11 (a)
and (b) of RA No. 6713,[52] meted by the Office of the President
against him, is proper.
WHEREFORE, the petition is GRANTED. The assailed Decision
dated October 19, 2005 of the Court of Appeals in CA-G.R. SP No.
84254 is REVERSED and SET ASIDE. Accordingly, the March 23,
2004 Decision and the May 13, 2004 Resolution of the Office of the
President in O.P. Case No. 03-1-581 are REINSTATED and
UPHELD.
Respondent Atty. Antonio F. Montemayor
hereby DISMISSED from government service.
SO ORDERED.
[people vs ca]
ARNOLD JAMES M. YSIDORO, Petitioner,
- versus –
HON. TERESITA J. LEONARDO- DE CASTRO, HON. DIOSDADO
M. PERALTA and HON. EFREN N. DE LA CRUZ, in their official
capacities as Presiding Justice and Associate Justices,
respectively, of the First Division of the Sandiganbayan, and
NIERNA S. DOLLER, Respondents.
x----------------------------------------------------x
PEOPLE OF THE PHILIPPINES,
Petitioner,
- versus -
FIRST DIVISION OF THE SANDIGANBAYAN and ARNOLD
JAMES M. YSIDORO, Respondents.
x-----------------------------------------------------------------------------x
DECISION
BRION, J.:
Before us are consolidated petitions assailing the rulings of the
Sandiganbayan in Criminal Case No. 27963, entitled People of the
Philippines v. Arnold James M. Ysidoro.
G.R. No. 171513 is a petition for certiorari and
prohibition under Rule 65 of the Rules of Court (Rules) filed by
petitioner Arnold James M. Ysidoro to annul the resolutions, dated
July 6, 2005[1] and January 25, 2006,[2] of the Sandiganbayan
granting the Motion to Suspend Accused Pendente Lite.
G.R. No. 190963, on the other hand, is a petition
for certiorari under Rule 65 filed by the People of the Philippines
through the Office of the Special Prosecutor (People) to annul and
set aside the decision,[3] dated October 1, 2009, and the
resolution,[4] dated December 9, 2009, of the Sandiganbayan which
acquitted Ysidoro for violation of Section 3(e) of Republic Act
(R.A.) No. 3019 (Anti-Graft and Corrupt Practices Acts), as
amended.
The Antecedents
Ysidoro, as Municipal Mayor of Leyte, Leyte, was charged
before the Sandiganbayan, with the following information:
That during the period from June 2001 to December 2001 or
for sometime prior or subsequent thereto, at the Municipality
of Leyte, Province of Leyte, Philippines, and within the
jurisdiction of [the] Honorable Court, above-named accused,
ARNOLD JAMES M. YSIDORO, a public officer, being the
Municipal Mayor of Leyte, Leyte, in such capacity and
committing the offense in relation to office, with deliberate
intent, with manifest partiality and evident bad faith, did then
and there willfully, unlawfully and criminally, withhold and fail
to give to Nierna S. Doller, Municipal Social Welfare and
Development Officer (MSWDO) of Leyte, Leyte, without any
legal basis, her RATA for the months of August, September,
October, November and December, all in the year 2001, in
the total amount of TWENTY-TWO THOUSAND ONE
HUNDRED TWENTY-FIVE PESOS (P22,125.00), Philippine
Currency, and her Productivity Pay in the year 2000, in the
amount of TWO THOUSAND PESOS (P2,000.00),
Philippine Currency, and despite demands made upon
accused to release and pay her the amount of P22,125.00
and P2,000.00, accused failed to do so, thus accused in the
course of the performance of his official functions had
deprived the complainant of her RATA and Productivity Pay,
to the damage and injury of Nierna S. Doller and detriment
of public service.[5]
Ysidoro filed an omnibus motion to quash the information
and, in the alternative, for judicial determination of probable
cause,[6] which were both denied by the Sandiganbayan. In due
course, Ysidoro was arraigned and he pleaded not guilty.
The Sandiganbayan Preventively Suspends Ysidoro
On motion of the prosecution,[7] the Sandiganbayan
is preventively suspended Ysidoro for ninety (90) days in accordance
with Section 13 of R.A. No. 3019, which states:
Any incumbent public officer against whom any criminal
prosecution under a valid information under this Act or under
Title 7, Book II of the Revised Penal Code or for any offense
involving fraud upon government or public funds or property
whether as a simple or as complex offense and in whatever
stage of execution and mode of participation, is pending in
court, shall be suspended from office.
Ysidoro filed a motion for reconsideration, and questioned
the necessity and the duration of the preventive suspension.
However, the Sandiganbayan denied the motion for
reconsideration, ruling that -
Clearly, by well established jurisprudence, the
provision of Section 13, Republic Act 3019 make[s] it
mandatory for the Sandiganbayan to suspend, for a period not
exceeding ninety (90) days, any public officer who has been
validly charged with a violation of Republic Act 3019, as
amended or Title 7, Book II of the Revised Penal Code or any
offense involving fraud upon government of public funds or
property.[8]
Ysidoro assailed the validity of these Sandiganbayan
rulings in his petition (G.R. No. 171513) before the Court.
Meanwhile, trial on the merits in the principal case continued before
the Sandiganbayan. The prosecution and the defense presented
their respective evidence.
The prosecution presented Nierna S. Doller as its sole
witness. According to Doller, she is the Municipal Social Welfare
Development Officer of Leyte. She claimed that Ysidoro ordered her
115
name to be deleted in the payroll because her husband transferred
his political affiliation and sided with Ysidoros opponent. After her
name was deleted from the payroll, Doller did not receive her
representation and transportation allowance (RATA) for the period
of August 2001 to December 2001. Doller also related that she
failed to receive her productivity bonus for the year 2000
(notwithstanding her performance rating of VS) because
Ysidoro failed to sign her Performance Evaluation Report. Doller
asserted that she made several attempts to claim her RATA and
productivity bonus, and made representations with Ysidoro, but he
did not act on her requests. Doller related thather family failed to
meet their financial obligations as a result of Ysidoros actions.
To corroborate Dollers testimony, the prosecution
presented documentary evidence in the form of disbursement
vouchers, request for obligation of allotment, letters, excerpts from
the police blotter, memorandum, telegram, certification, order,
resolution, and the decision of the Office of the Deputy Ombudsman
absolving her of the charges.[9]
On the other hand, the defense presented seven (7)
witnesses,[10] including Ysidoro, and documentary evidence. The
defense showed that the withholding of Dollers RATA was due to
the investigation conducted by the Office of the Mayor on the
anomalies allegedly committed by Doller. For this reason, Ysidoro
ordered the padlocking of Dollers office, and ordered Doller and her
staff to hold office at the Office of the Mayor for the close monitoring
and evaluation of their functions. Doller was also prohibited from
outside travel without Ysidoros approval.
The Sandiganbayan Acquits Ysidoro
In a decision dated October 1, 2009,[11] the Sandiganbayan
acquitted Ysidoro and held that the second element of the offense
that there be malice, ill-motive or bad faith was not present. The
Sandiganbayan pronounced:
This Court acknowledges the fact that Doller was entitled to
RATA. However, the antecedent facts and circumstances
did not show any indicia of bad faith on the part of [Ysidoro]
in withholding the release of Dollers RATA.
In fact, this Court believes that [Ysidoro] acted in good faith
and in honest belief that Doller was not entitled to her RATA
based on the opinion of the COA resident Auditor and
Section 317 of the Government Accounting and Auditing
Manual.
It may be an erroneous interpretation of the law,
nonetheless, [Ysidoros] reliance to the same was a clear
basis of good faith on his part in withholding Dollers RATA.
With regard to the Productivity Incentive Bonus, Doller was
aware that the non-submission of the Performance
Evaluation Form is a ground for an employees non-
eligibility to receive the Productivity Incentive Bonus:
a) Employees disqualification for
performance-based personnel actions which
would require the rating for the given period such
as promotion, training or scholarship grants, and
productivity incentive bonus if the failure of the
submission of the report form is the fault of the
employees.
Doller even admitted in her testimonies that she failed to
submit her Performance Evaluation Report to [Ysidoro] for
signature.
There being no malice, ill-motive or taint of bad faith,
[Ysidoro] had the legal basis to withhold Dollers RATA and
Productivity pay.[12] (italics supplied)
In a resolution dated December 9, 2009,[13] the Sandiganbayan
denied the prosecutions motion for reconsideration, reasoning that
- petition was filed out of time considering the belated filing of the
It must be stressed that this Court acquitted
[Ysidoro] for two reasons: firstly, the prosecution failed to
discharge its burden of proving that accused Ysidoro acted
in bad faith as stated in paragraph 1 above; and secondly,
the exculpatory proof of good faith xxx.
Needless to state, paragraph 1 alone would be
enough ground for the acquittal of accused Ysidoro. Hence,
the COA Resident Auditor need not be presented in court to
prove that [Ysidoro] acted in good faith. This is based on the
legal precept that when the prosecution fails to discharge its
burden, an accused need not even offer evidence in his
behalf.[14] (italics supplied)
Supervening events occurred after the filing of Ysidoros
petition which rendered the issue in G.R. No. 171513 i.e., the
propriety of his preventive suspension moot and academic. First,
Ysidoro is no longer the incumbent Municipal Mayor
of Leyte, Leyte as his term of office expired in 2007. Second, the
prosecution completed its presentation of evidence and had rested
its case before the Sandiganbayan. And third, the Sandiganbayan
issued its decision acquitting Ysidoro of the crime charged.
In light of these events, what is left to resolve is the petition
for certiorari filed by the People on the validity of the judgment
acquitting Ysidoro of the criminal charge.
The Peoples Petition
The People posits that the elements of Section 3(e) of R.A.
No. 3019 have been duly established by the evidence, in that:
First. [Ysidoro] was the Municipal Mayor
of Leyte, Leyte when he ordered the deletion of private
complainants name in the payroll for RATA and productivity
pay.
Second. He caused undue injury to [Doller] when
he ordered the withholding of her RATA and productivity pay.
It is noteworthy that complainant was the only official in the
municipality who did not receive her RATA and productivity
pay even if the same were already included in the budget for
that year. x x x
Consequently, [Doller] testified that her family suffered
actual and moral damages due to the withholding of her
benefits namely: a) the disconnection of electricity in their
residence; x x x b) demand letters from their creditors; x x x
c) her son was dropped from school because they were not
able to pay for his final exams; x x x d) [h]er children did not
want to go to school anymore because they were
embarrassed that collectors were running after them.
Third. Accused clearly acted in evident bad faith
as he used his position to deprive [Doller] of her RATA and
productivity pay for the period mentioned to harass her due
to the transfer of political affiliation of her
husband.[15] (emphasis supplied)
The People argues[16] that the Sandiganbayan gravely abused its
discretion, and exceeded its, or acted without, jurisdiction in not
finding Ysidoro in bad faith when he withheld Dollers RATA and
deprived her of her productivity bonus. The Sandiganbayan failed to
take into account that: first, the Commission on Audit (COA)
resident auditor was never presented in court; second, the
documentary evidence showed that Doller continuously discharged
the functions of her office even if she had been prevented from
outside travel by Ysidoro; third, Ysidoro refused to release Dollers
RATA and productivity bonus notwithstanding the dismissal by the
Ombudsman of the cases against her for alleged anomalies
committed in office; and fourth, Ysidoro caused Dollers name to be
dropped from the payroll without justifiable cause, and he refused to
sign the disbursement vouchers and the request for obligation of
allotment so that Doller could claim her RATA and her productivity
bonus.
In the same manner, the People asserts that the
Sandiganbayan gravely abused its discretion when it ruled that
Doller was not eligible to receive the productivity bonus for her
failure to submit her Performance Evaluation Report. The
Sandiganbayan disregarded the evidence showing the strained
relationship and the maneuverings made by Ysidoro so that he
could deny her this incentive.
In his Comment,[17] Ysidoro prays for the dismissal of the petition for
procedural and substantive infirmities. First, he claims that the
Peoples motion for reconsideration before the Sandiganbayan. He
argues that by reason of the late filing of the motion for
reconsideration, the present petition was filed beyond the 60-day
reglementary period. Ysidoro also argues that the 60-day
reglementary period should have been counted from the Peoples
receipt of the Sandiganbayans decision since no motion for
reconsideration was seasonably filed. Second, Ysidoro claims that
the Sandiganbayans ruling was in accord with the evidence and the
prosecution was not denied due process to properly avail of the
remedy of a writ of certiorari. And third, Ysidoro insists that he can
116
no longer be prosecuted for the same criminal charge without
violating the rule against double jeopardy.
The Issue Raised
The ultimate issue to be resolved is whether the Sandiganbayan
gravely abused its discretion and exceeded its, or acted without,
jurisdiction when it acquitted Ysidoro of the crime charged.
The Courts Ruling
We first resolve the preliminary issue raised by Ysidoro on the
timeliness of the Peoples petition for certiorari. The records show
that the motion for reconsideration was filed by the People before
the Sandiganbayan on the last day of the 15-day reglementary
period to file the motion which fell on October 16, 2009, a
Friday. Although the date originally appearing in the notice of
hearing on the motion was September 22, 2009 (which later on was
corrected to October 22, 2009), the error in designating the month
was unmistakably obvious considering the date when the motion
was filed. In any case, the error cannot detract from the
circumstance that the motion for reconsideration was filed within the
15-day reglementary period. We consider, too, that Ysidoro was not
deprived of due process and was given the opportunity to be heard
on the motion. Accordingly, the above error cannot be considered
fatal to the right of the People to file its motion for
reconsideration. The counting of the 60-day reglementary period
within which to file the petition for certiorari will be reckoned from the
receipt of the People of the denial of its motion for reconsideration,
or on December 10, 2009. As the last day of the 60-day
reglementary period fell on February 8, 2010, the petition which was
filed on February 5, 2010 was filed on time.
Nevertheless, we dismiss the petitions for being procedurally
and substantially infirm.
A Review of a Judgment of Acquittal
Generally, the Rules provides three (3) procedural
remedies in order for a party to appeal a decision of a trial court in
a criminal case before this Court. The first is by ordinary appeal
under Section 3, Rule 122 of the 2000 Revised Rules on Criminal
Procedure. The second is by a petition for review on certiorari under
Rule 45 of the Rules. And the third is by filing a special civil action
for certiorari under Rule 65. Each procedural remedy is unique and
provides for a different mode of review. In addition, each procedural
remedy may only be availed of depending on the nature of the
judgment sought to be reviewed.
A review by ordinary appeal resolves factual and legal
issues. Issues which have not been properly raised by the parties
but are, nevertheless, material in the resolution of the case are also
resolved in this mode of review. In contrast, a review
on certiorari under a Rule 45 petition is generally limited to the
review of legal issues; the Court only resolves questions of law
which have been properly raised by the parties during the appeal
and in the petition. Under this mode, the Court determines whether
a proper application of the law was made in a given set of facts. A
Rule 65 review, on the other hand, is strictly confined to the
determination of the propriety of the trial courts jurisdiction whether
it has jurisdiction over the case and if so, whether the exercise of its
jurisdiction has or has not been attended by grave abuse of
discretion amounting to lack or excess of jurisdiction.
While an assailed judgment elevated by way of ordinary
appeal or a Rule 45 petition is considered an intrinsically valid, albeit
erroneous, judgment, a judgment assailed under Rule 65 is
characterized as an invalid judgment because of defect in the trial
courts authority to rule. Also, an ordinary appeal and a Rule 45
petition tackle errors committed by the trial court in the appreciation
of the evidence and/or the application of law. In contrast, a Rule 65
petition resolves jurisdictional errors committed in the proceedings
in the principal case. In other words, errors of judgment are the
proper subjects of an ordinary appeal and in a Rule 45 petition;
errors of jurisdiction are addressed in a Rule 65 petition.
As applied to judgments rendered in criminal cases, unlike
a review via a Rule 65 petition, only judgments of conviction can be
reviewed in an ordinary appeal or a Rule 45 petition. As we
explained in People v. Nazareno,[18] the constitutional right of the
accused against double jeopardy proscribes appeals of judgments
of acquittal through the remedies of ordinary appeal and a Rule 45
petition, thus:
The Constitution has expressly adopted the
double jeopardy policy and thus bars multiple criminal
trials, thereby conclusively presuming that a second trial
would be unfair if the innocence of the accused has been
confirmed by a previous final judgment. Further
prosecution via an appeal from a judgment of acquittal is
likewise barred because the government has already been
afforded a complete opportunity to prove the criminal
defendants culpability; after failing to persuade the court to
enter a final judgment of conviction, the underlying reasons
supporting the constitutional ban on multiple trials applies
and becomes compelling. The reason is not only the
defendants already established innocence at the first trial
where he had been placed in peril of conviction, but also
the same untoward and prejudicial consequences of a
second trial initiated by a government who has at its
disposal all the powers and resources of the
State. Unfairness and prejudice would necessarily result,
as the government would then be allowed another
opportunity to persuade a second trier of the defendants
guilt while strengthening any weaknesses that had
attended the first trial, all in a process where the
governments power and resources are once again
employed against the defendants individual means. That
the second opportunity comes via an appeal does not make
the effects any less prejudicial by the standards of reason,
justice and conscience.[19] (emphases supplied)
However, the rule against double jeopardy cannot be
properly invoked in a Rule 65 petition, predicated on two (2)
exceptional grounds, namely: in a judgment of acquittal rendered
with grave abuse of discretion by the court; and where the
prosecution had been deprived of due process. [20] The rule against
double jeopardy does not apply in these instances because a Rule
65 petition does not involve a review of facts and law on the merits
in the manner done in an appeal. In certiorari proceedings, judicial
review does not examine and assess the evidence of the parties nor
weigh the probative value of the evidence. [21] It does not include an
inquiry on the correctness of the evaluation of the
evidence.[22] A review under Rule 65 only asks the question of
whether there has been a validly rendered decision, not the question
of whether the decision is legally correct. [23]In other words, the focus
of the review is to determine whether the judgment is per se void on
jurisdictional grounds.[24]
Applying these legal concepts to this case, we find that
while the People was procedurally correct in filing its petition
for certiorari under Rule 65, the petition does not raise any
jurisdictional error committed by the Sandiganbayan. On the
contrary, what is clear is the obvious attempt by the People to have
the evidence in the case reviewed by the Court under the guise of a
Rule 65 petition. This much can be deduced by examining the
petition itself which does not allege any bias, partiality or bad faith
committed by the Sandiganbayan in its proceedings. The petition
does not also raise any denial of the Peoples due process in the
proceedings before the Sandiganbayan.
We observe, too, that the grounds relied in the petition
relate to factual errors of judgment which are more appropriate in an
ordinary appeal rather than in a Rule 65 petition. The grounds cited
in the petition call for the Courts own appreciation of the factual
findings of the Sandiganbayan on the sufficiency of the Peoples
evidence in proving the element of bad faith, and the sufficiency of
the evidence denying productivity bonus to Doller.
The Merits of the Case
Our consideration of the imputed errors fails to establish
grave abuse of discretion amounting to lack or excess of jurisdiction
committed by the Sandiganbayan. As a rule, misapplication of facts
and evidence, and erroneous conclusions based on evidence do
not, by the mere fact that errors were committed, rise to the level of
grave abuse of discretion.[25] That an abuse itself must be grave
must be amply demonstrated since the jurisdiction of the court, no
less, will be affected.[26] We have previously held that the mere fact,
too, that a court erroneously decides a case does not necessarily
deprive it of jurisdiction.[27]
Jurisprudence has defined grave abuse of discretion
amounting to lack or excess of jurisdiction in this wise:
Grave abuse of discretion is defined as capricious
or whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be patent and
gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at
all in contemplation of law, as where the power is exercised
in an arbitrary and despotic manner by reason of passion
and hostility.[28]
117
 Under this definition, the People bears the burden of
convincingly demonstrating that the Sandiganbayan gravely abused
its discretion in the appreciation of the evidence. We find that the
People failed in this regard.
We find no indication from the records that the
Sandiganbayan acted arbitrarily, capriciously and whimsically in
arriving at its verdict of acquittal. The settled rule is that conviction
ensues only if every element of the crime was alleged and
proved.[29] In this case, Ysidoro was acquitted by the
Sandiganbayan for two reasons: first, his bad faith (an element of
the crime charged) was not sufficiently proven by the prosecution
evidence; and second, there was exculpatory evidence of his good
faith.
As bad faith is a state of mind, the prosecution must
present evidence of the overt acts or omissions committed by
Ysidoro showing that he deliberately intended to do wrong or cause
damage to Doller by withholding her RATA. However, save from the
testimony of Doller of the strained relationship between her and
Ysidoro, no other evidence was presented to support Ysidoros bad
faith against her. We note that Doller even disproved Ysidoros bad
faith when she admitted that several cases had been actually filed
against her before the Office of the Ombudsman. It bears stressing
that these purported anomalies were allegedly committed in office
which Ysidoro cited to justify the withholding of Dollers RATA.
The records also show other acts that tend to negate
Ysidoros bad faith under the circumstances. First, the investigation
of the alleged anomalies by Ysidoro was corroborated by the
physical transfer of Doller and her subordinates to the Office of the
Mayor and the prohibition against outside travel imposed on
Doller. Second, the existence of the Ombudsmans cases against
Doller. And third, Ysidoros act of seeking an opinion from the COA
Auditor on the proper interpretation of Section 317 of the
Government Accounting and Auditing Manual before he withheld
the RATA. This section provides:
An official/employee who was wrongly removed or prevented
from performing his duties is entitled to back salaries but not
RATA. The rationale for the grant of RATA is to provide the
official concerned additional fund to meet necessary
expenses incidental to and connected with the exercise or
the discharge of the functions of an office. If he is out of
office, [voluntarily] or involuntarily, it necessarily follows that
the functions of the office remain undischarged (COA, Dec.
1602, October 23, 1990). And if the duties of the office are
not discharged, the official does not and is not supposed to
incur expenses. There being no expenses incurred[,] there
is nothing to be reimbursed (COA, Dec. 2121 dated June 28,
1979).[30]
Although the above provision was erroneously interpreted
by Ysidoro and the COA Auditor, the totality of the evidence, to our
mind, provides sufficient grounds to create reasonable doubt on
Ysidoros bad faith. As we have held before, bad faith does not
simply connote bad judgment or negligence but imputes a dishonest
purpose or some moral obliquity and conscious doing of a wrong or
a breach of a sworn duty through some motive or intent, or ill-will to
partake the nature of fraud.[31] An erroneous interpretation of a
provision of law, absent any showing of some dishonest or wrongful
purpose, does not constitute and does not necessarily amount to
bad faith.[32]
Similarly, we find no inference of bad faith when Doller
failed to receive the productivity bonus. Doller does not dispute that
the receipt of the productivity bonus was premised on the
submission by the employee of his/her Performance Evaluation
Report. In this case, Doller admitted that she did not submit her
Performance Evaluation Report; hence, she could not have
reasonably expected to receive any productivity bonus. Further, we
cannot agree with her self-serving claim that it was Ysidoros refusal
that led to her failure to receive her productivity bonus given that no
other hard evidence supported this claim. We certainly cannot rely
on Dollers assertion of the alleged statement made by one Leo
Apacible (Ysidoros secretary) who was not presented in court. The
alleged statement made by Leo Apacible that the mayor will get
angry with him and he might be laid off, [33] in addition to being
hearsay, did not even establish the actual existence of an order from
Ysidoro or of his alleged maneuverings to deprive Doller of her
RATA and productivity bonus.
In light of these considerations, we resolve to dismiss the
Peoples petition. We cannot review a verdict of acquittal which does
not impute or show any jurisdictional error committed by the
Sandiganbayan.
WHEREFORE, premises considered, the Court hereby resolves to:
1. DISMISS the petition for certiorari and prohibition,
docketed as G.R. No. 171513, filed by Arnold James M.
Ysidoro for being moot and academic.
2. DISMISS the petition for certiorari, docketed as G.R. No.
190963, filed by the People of the Philippines, through the
Office of the Special Prosecutor, for lack of merit.
SO ORDERED.
G.R. No. 189754 October 24, 2012
LITO BAUTISTA and JIMMY ALCANTARA, Petitioners,
vs.
SHARON G. CUNETA-PANGILINAN, Respondent.
DECISION
PERALTA, J.:
Before the Court is the petition for review on certiorari seeking to set
aside the Decision1
elated May 19, 2009 and Resolution2 dated September 28, 2009 of
the Court of Appeals (CA), in CA-G.R. SP No. 104885, entitled
Sharon G. Cuneta-Pangilinan v. lion. Rizalina T Capco-Urnali, in her
capacity as Presiding Judge of the Regional Trial Court in
Mandaluyong City, Branch 212, Lito Bautista, and Jimmy Alcantara,
which granted the
petition for certiorari of respondent Sharon G. Cuneta-Pangilinan.
TheCA Decision reversed and set aside the Order 3 dated April 25,
2008 of the Regional Trial Court (RTC), Branch 212, Mandaluyong
City, but only insofar as it pertains to the granting of the Demurrer
to Evidence filed by petitioners Lito Bautista (Bautista) and Jimmy
Alcantara (Alcantara), and also ordered that the case be remanded
to the trial court for reception of petitioners' evidence.
The antecedents are as follows:
On February 19, 2002, the Office of the City Prosecutor of
Mandaluyong City filed two (2) informations, both dated February 4,
2002, with the RTC, Branch 212, Mandaluyong City, against Pete
G. Ampoloquio, Jr. (Ampoloquio), and petitioners Bautista and
Alcantara, for the crime of libel, committed by publishing defamatory
articles against respondent Sharon Cuneta-Pangilinan in the tabloid
Bandera.
In Criminal Case No. MC02-4872, the Information dated February
4, 2002 reads:
That on or about the 24th day of April, 2001, in the City of
Mandaluyong, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and
confederating together with Jane/John Does unknown
directors/officer[s] of Bandera Publishing Corporation, publisher of
Bandera, whose true identities are unknown, and mutually helping
and aiding one another, with deliberate intent to bring SHARON G.
CUNETA-PANGILINAN into public dishonor, shame and contempt,
did then and there wilfully, unlawfully and feloniously, and with
malice and ridicule, cause to publish in Bandera (tabloid), with
circulation in Metro Manila, which among others have the following
insulting and slanderous remarks, to wit:
MAGTIGIL KA, SHARON!
Sharon Cuneta, the mega-taba singer-actress, I’d like to believe, is
really brain-dead. Mukhang totoo yata yung sinasabi ng kaibigan ni
Pettizou Tayag na ganyan siya.
Hayan at buong ingat na sinulat namin yung interview sa kaibigan
ng may-ari ng Central Institute of Technology at ni isang side
comment ay wala kaming ginawa and all throughout the article,
we’ve maintained our objectivity, pero sa interview sa aparadoric
singer- actress in connection with an album launching, ay buong
118
ningning na sinabi nitong she’s supposedly looking into the item that
we’ve written and most probably would take some legal action.
xxx
Magsalita ka, Missed Cuneta, at sabihin mong hindi ito totoo.
Ang hindi lang namin nagustuhan ay ang pagbintangan kaming
palagi naman daw namin siyang
sinisiraan, kaya hindi lang daw niya kami pinapansin, believing na
part raw siguro yun ng aming trabaho.
Dios mio perdon, what she gets to see are those purportedly biting
commentaries about her katabaan and kaplastikan but she has
simply refused to acknowledge the good reviews we’ve done on her.
xxx
Going back to this seemingly disoriented actress who’s desperately
trying to sing even if she truly can’t, itanggi mo na hindi mo kilala si
Pettizou Tayag gayung nagkasama raw kayo ng tatlong araw sa
mother's house ng mga Aboitiz sa Cebu more than a month ago, in
connection with one of those political campaigns of your husband.
xxx
thereby casting publicly upon complainant, malicious contemptuous
imputations of a vice, condition or defect, which tend to cause
complainant her dishonor, discredit or contempt.
4
CONTRARY TO LAW.
In Criminal Case No. MC02-4875, the Information dated February
4, 2002 reads:
That on or about the 27th day of March, 2001, in the City of
Mandaluyong, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and
confederating together with Jane/John Does unknown
directors/officers of Bandera Publishing Corporation, publisher of
Bandera, whose true identities are unknown, and mutually helping,
and aiding one another, with deliberate intent to bring SHARON G.
CUNETA-PANGILINAN into public dishonor, shame and contempt
did, then and there wilfully, unlawfully and feloniously, and with
malice and ridicule, cause to publish in Bandera (tabloid), with
circulation in Metro Manila, which, among others, have the following
insulting and slanderous remarks, to wit:
NABURYONG SA KAPLASTIKAN NI SHARON ANG
MILYONARYANG SUPPORTER NI KIKO!
FREAKOUT pala kay Sharon Cuneta ang isa sa mga loyal
supporters ni Kiko Pangilinan na si Pettizou Tayag, a multi-
millionaire who owns Central Institute of Technology College in
Sampaloc, Manila (it is also one of the biggest schools in Paniqui,
Tarlac).
xxx
Which in a way, she did. Bagama't busy siya (she was having a
meeting with some business associates), she went out of her way
to give Sharon security.
So, ang ginawa daw ni Ms. Tayag ay tinext nito si Sharon para
mabigyan ito ng instructions para kumportable itong makarating sa
Bulacan.
She was most caring and solicitous, pero tipong na-offend daw ang
megastar at nagtext pang "You don’t need to produce an emergency
SOS for me, I’ll be fine."
Now, nang makara[t]ing na raw sa Bulacan si Mega nagtatarang
daw ito at binadmouth si Pettizou. Kesyo ang kulit-kulit daw nito,
atribida, mapapel at kung anu-ano pang mga derogatory words na
nakarating siyempre sa kinauukulan.
Anyhow, if it’s true that Ms. Pettizou has been most financially
supportive of Kiko, how come Sharon seems not to approve of her?
"She doesn’t want kasi her husband to win as a senator because
when that happens, mawawalan siya ng hold sa kanya," our caller
opines.
Pettizou is really sad that Sharon is treating her husband like a
wimp.
"In public," our source goes on tartly, "pa kiss-kiss siya. Pa-
embrace-embrace pero kung silang dalawa na lang parang kung
sinong sampid kung i-treat niya si Kiko."
My God Pete, Harvard graduate si Kiko. He’s really intelligent as
compared to Sharon who appears to be brain dead most of the time.
Yung text message niyang "You don’t need to produce an
emergency SOS for me," hindi ba’t she was being redundant?
Another thing, I guess it’s high time that she goes on a diet again.
Jesus, she looks 6’11 crosswise!
xxx
Kunsabagay, she was only being most consistent. Yang si Sharon
daw ay talagang mega-brat, mega-sungit. But who does she think
she is? Her wealth, dear, would pale in comparison with the Tayag’s
millions. Kunsabagay, she’s brain dead most of the time.
xxx
thereby casting publicly upon complainant, malicious contemptuous
imputation of a vice, condition or defect, which tend to cause
complainant her dishonor, discredit or contempt.
CONTRARY TO LAW.5
Upon arraignment, petitioners, together with their co-accused
Ampoloquio, each entered a plea of not guilty. Thereafter, a joint
pre-trial and trial of the case ensued.6
Respondent’s undated Complaint-Affidavit7 alleged that Bautista
and Alcantara were Editor and Associate Editor, respectively, of the
publication Bandera, and their co-accused, Ampoloquio, was the
author of the alleged libelous articles which were published therein,
and subject of the two informations. According to respondent, in
April 2001, she and her family were shocked to learn about an article
dated March 27, 2001, featured on page 7 of Bandera (Vol. 11, No.
156), in the column Usapang Censored of Ampoloquio, entitled
Naburyong sa Kaplastikan ni Sharon ang
Milyonaryang Supporter ni Kiko, that described her as plastic
(hypocrite), ingrate, mega-brat, mega-sungit, and brain dead, which
were the subject of Criminal Case No. MC02-4875.8 Another article,
with the same title and similar text, also featured on the same date,
appeared on page 6 of Saksi Ngayon, in the column Banatan of
Ampoloquio.9 Moreover, respondent averred that on April 24, 2001,
Ampoloquio wrote two follow-up articles, one appeared in his
column Usapang Censored, entitled Magtigil Ka, Sharon!, stating
that she bad-mouthed one Pettizou Tayag by calling the latter kulit-
kulit (annoyingly persistent), atribida (presumptuous), mapapel
(officious or self-important), and other derogatory words; that she
humiliated Tayag during a meeting by calling the latter bobo
(stupid); that she exhibited offensive behavior towards Tayag; and
that she was a dishonest person with questionable credibility, which
were the subject of Criminal Case No. MC02-4872.10 Another
article, entitled Magtigil Ka, Sharon Cuneta!!!!, also featured on the
same date with similar text, and appeared on page 7 of Saksi
Ngayon (Vol. 3, No. 285), in the column Banatan of
Ampoloquio,11 with the headline in bold letters, Sharon Cuneta, May
Sira? on the front page of the said issue. 12 Respondent added that
Ampoloquio’s articles impugned her character as a woman and wife,
as they depicted her to be a domineering wife to a browbeaten
husband. According to Ampoloquio, respondent did not want her
husband (Senator Francis Pangilinan) to win (as Senator) because
that would mean losing hold over him, and that she would treat him
like a wimp and sampid (hanger-on) privately, but she appeared to
be a loving wife to him in public. Respondent denied that Tayag
contributed millions to her husband’s campaign fund. She clarified
119
that Tayag assisted during the campaign and was one of the
volunteers of her husband’s Kilos Ko Movement, being the first
cousin of one Atty. Joaquinito Harvey B. Ringler (her husband’s
partner in Franco Pangilinan Law Office); however, it was Atty.
Ringler who asked Tayag to resign from the movement due to
difficulty in dealing with her.
After presenting respondent on the witness stand, the prosecution
filed its Formal Offer of Documentary Exhibits dated October 11,
2006, which included her undated Complaint-Affidavit.13
On November 14, 2006, petitioners filed a Motion for Leave of Court
to File the Attached Demurrer to Evidence.14In their Demurrer to
Evidence,15 which was appended to the said Motion, Bautista and
Alcantara alleged that the prosecution's evidence failed to establish
their participation as Editor and Associate Editor, respectively, of the
publication Bandera; that they were not properly identified by
respondent herself during her testimony; and that the subject
articles written by Ampoloquio were not libelous due to absence of
malice.
On April 25, 2008, the RTC issued an Order 16 granting petitioners’
Demurrer to Evidence and dismissed Criminal Case Nos. MCO2-
4872 and MCO2-4875. The trial court opined, among others, that
since the prosecution did not submit its Comment/Opposition to the
petitioners' Demurrer to Evidence, the averments therein thus
became unrebutted; that the testimonial and documentary evidence
adduced by the prosecution failed to prove the participation of
petitioners as conspirators of the crime charged; and that during the
direct examination on July 27, 2004 and cross-examination on
August 1, 2006, respondent neither identified them, nor was there
any mention about their actual participation.
As a consequence, the prosecution filed a Motion to Admit17 dated
May 29, 2008, with the attached Comment (to Accused Lito Bautista
and Jimmy Alcantara's Demurrer to Evidence) 18 dated March 24,
2008, stating that during the pendency of the trial court's resolution
on the petitioners' Motion for Leave of Court to File the Attached
Demurrer to Evidence, with the attached Demurrer to Evidence, the
prosecution intended to file its Comment, by serving copies thereof,
through registered mail, upon counsels for the petitioners, including
the other accused, and the respondent; however, said Comment
was not actually filed with the trial court due to oversight on the part
of the staff of the State Prosecutor handling the case. 19 Claiming
that it was deprived of due process, the prosecution prayed that its
Comment be admitted and that the same be treated as a
reconsideration of the trial court's Order dated April 25, 2008.
In an Order dated June 3, 2008, the RTC granted the prosecutions'
Motion to Admit, with the attached Comment, and ruled that its
Comment be admitted to form part of the court records.
On August 19, 2008, respondent filed a Petition for Certiorari with
the CA, seeking to set aside the RTC Orders dated April 25, 2008
(which granted petitioners' Demurrer to Evidence and ordered the
dismissal of the cases against them) and June 3, 2008 (which noted
and admitted respondent's Comment to form part of the records of
the case).
In a Decision dated May 19, 2009, the CA granted respondent's
petition, thereby reversing and setting aside the RTC Order dated
April 25, 2008, but only insofar as it pertains to the grant of
petitioners' Demurrer to Evidence, and ordered that the case be
remanded to the trial court for reception of petitioners' evidence.
Aggrieved, petitioners filed a Motion for Reconsideration dated June
7, 2009 which, however, was denied by the CA in a Resolution dated
September 28, 2009.
Hence, petitioners filed this present petition, raising the following
arguments:
I.
RESPONDENT'S PETITION FOR CERTIORARI BEFORE THE
COURT OF APPEALS IS BARRED BY THE PETITIONERS'
RIGHT AGAINST DOUBLE JEOPARDY.
II.
RESPONDENT'S PETITION FOR CERTIORARI BEFORE THE
COURT OF APPEALS DOES NOT LIE TO CORRECT
ALLEGED ERRORS OF JUDGMENT COMMITTED BY THE
REGIONAL TRIAL COURT.
III.
THE COURT OF APPEALS ERRED IN FINDING THAT THE
TRIAL COURT COMMITTED GRAVE ABUSE OF
DISCRETION IN GRANTING PETITONERS' DEMURRER TO
EVIDENCE.
Petitioners allege that the Order of the RTC, dated April 25, 2008,
granting the Demurrer to Evidence was tantamount to an acquittal.
As such, the prosecution can no longer interpose an appeal to the
CA, as it would place them in double jeopardy. Petitioners contend
that respondent's petition for certiorari with the CA should not have
prospered, because the allegations therein, in effect, assailed the
trial court's judgment, not its jurisdiction. In other words, petitioners
posit that the said Order was in the nature of an error of judgment
rendered, which was not correctible by a petition for certiorari with
the CA.
Petitioners aver that although the CA correctly ruled that the
prosecution had not been denied due process, however, it erred in
ruling that the trial court committed grave abuse of discretion in
granting petitioners' Demurrer to Evidence, on the basis that the
prosecution failed to prove that they acted in conspiracy with
Ampoloquio, the author of the questioned articles. They added that
what the prosecution proved was merely their designations as Editor
and Associate Editor of the publication Bandera, but not the fact that
they had either control over the articles to be published or actually
edited the subject articles.
Respondent counters that petitioners failed to show special and
important reasons to justify their invocation of the Court's power to
review under Rule 45 of the Rules of Court. She avers that the
acquittal of petitioners does not preclude their further prosecution if
the judgment acquitting them is void for lack of jurisdiction. Further,
she points out that contrary to petitioners’ contention, the principle
of double jeopardy does not attach in cases where the court's
judgment acquitting the accused or dismissing the case is void,
either for having disregarded the State's right to due process or for
having been rendered by the trial court with grave abuse of
discretion amounting to lack or excess of jurisdiction, and not merely
errors of judgment.
Respondent also avers that even if the prosecution was deemed to
have waived its right to file a Comment on the petitioners’ Motion for
Leave of Court to File the Attached Demurrer to Evidence, this did
not give the trial court any reason to deprive the prosecution of its
right to file a Comment on the petitioners’ Demurrer to Evidence
itself, which was a clear violation of the due process requirement.
By reason of the foregoing, respondent insists that petitioners
cannot invoke violation of their right against double jeopardy.
The petition is impressed with merit.
At the onset, it should be noted that respondent took a procedural
misstep, and the view she is advancing is erroneous. The authority
to represent the State in appeals of criminal cases before the
Supreme Court and the CA is solely vested in the Office of the
Solicitor General (OSG). Section 35 (1), Chapter 12, Title III, Book
IV of the 1987 Administrative Code explicitly provides that the OSG
shall represent the Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation,
proceeding, investigation or matter requiring the services of lawyers.
It shall have specific powers and functions to represent the
Government and its officers in the Supreme Court and the CA, and
all other courts or tribunals in all civil actions and special
proceedings in which the Government or any officer thereof in his
official capacity is a party.20 The OSG is the law office of the
Government.21
To be sure, in criminal cases, the acquittal of the accused or the
dismissal of the case against him can only be appealed by the
Solicitor General, acting on behalf of the State. The private
complainant or the offended party may question such acquittal or
dismissal only insofar as the civil liability of the accused is
concerned. In a catena of cases, this view has been time and again
espoused and maintained by the Court. In Rodriguez v.
120
Gadiane,22 it was categorically stated that if the criminal case is
dismissed by the trial court or if there is an acquittal, the appeal on
the criminal aspect of the case must be instituted by the Solicitor
General in behalf of the State. The capability of the private
complainant to question such dismissal or acquittal is limited only to
the civil aspect of the case. The same determination was also
arrived at by the Court in Metropolitan Bank and Trust Company v.
Veridiano II.23 In the recent case of Bangayan, Jr. v.
Bangayan,24 the Court again upheld this guiding principle.
Worthy of note is the case of People v. Santiago, 25 wherein the
Court had the occasion to bring this issue to rest. The Court
elucidated:
It is well-settled that in criminal cases where the offended party is
the State, the interest of the private complainant or the private
offended party is limited to the civil liability. Thus, in the prosecution
of the offense, the complainant's role is limited to that of a witness
for the prosecution. If a criminal case is dismissed by the trial court
or if there is an acquittal, an appeal therefrom on the criminal aspect
may be undertaken only by the State through the Solicitor General.
Only the Solicitor General may represent the People of the
Philippines on appeal. The private offended party or complainant
may not take such appeal. However, the said offended party or
complainant may appeal the civil aspect despite the acquittal of the
accused.
In a special civil action for certiorari filed under Section 1, Rule 65
of the Rules of Court wherein it is alleged that the trial court
committed a grave abuse of discretion amounting to lack of
jurisdiction or on other jurisdictional grounds, the rules state that the
petition may be filed by the person aggrieved. In such case, the
aggrieved parties are the State and the private offended party or
complainant. The complainant has an interest in the civil aspect of
the case so he may file such special civil action questioning the
decision or action of the respondent court on jurisdictional grounds.
In so doing, complainant should not bring the action in the name of
the People of the Philippines. The action may be prosecuted in
name of said complainant.26
Thus, the Court has definitively ruled that in a criminal case in which
the offended party is the State, the interest of the private
complainant or the private offended party is limited to the civil liability
arising therefrom. If a criminal case is dismissed by the trial court or
if there is an acquittal, an appeal of the criminal aspect may be
undertaken, whenever legally feasible, only by the State through the
solicitor general. As a rule, only the Solicitor General may represent
the People of the Philippines on appeal. The private offended party
or complainant may not undertake such appeal. 27
In the case at bar, the petition filed by the respondent before the CA
essentially questioned the criminal aspect of the Order of the RTC,
not the civil aspect of the case. Consequently, the petition should
have been filed by the State through the OSG. Since the petition for
certiorari filed in the CA was not at the instance of the OSG, the
same should have been outrightly dismissed by the CA.
Respondent lacked the personality or legal standing to question the
trial court’s order because it is only the Office of the Solicitor General
(OSG), who can bring actions on behalf of the State in criminal
proceedings, before the Supreme Court and the CA.28 Thus, the CA
should have denied the petition outright.
Moreover, not only did the CA materially err in entertaining the
petition, it should be stressed that the granting of petitioners’
Demurrer to Evidence already amounted to a dismissal of the case
on the merits and a review of the order granting the demurrer to
evidence will place the accused in double jeopardy. Consequently,
the Court disagrees with the CA’s ruling reversing the trial court’s
order dismissing the criminal cases against petitioners.
Under Section 23,29 Rule 119 of the Rules of Court on Demurrer to
Evidence, after the prosecution terminates the presentation of
evidence and rests its case, the trial court may dismiss the case on
the ground of insufficiency of evidence upon the filing of a Demurrer
to Evidence by the accused with or without leave of court. If the
accused files a Demurrer to Evidence with prior leave of court and
the same is denied, he may adduce evidence in his defense.
However, if the Demurrer to Evidence is filed by the accused without
prior leave of court and the same is denied, he waives his right to
present evidence and submits the case for judgment on the basis of
the evidence for the prosecution.
Corollarily, after the prosecution rests its case, and the accused files
a Demurrer to Evidence, the trial court is required to evaluate
whether the evidence presented by the prosecution is sufficient
enough to warrant the conviction of the accused beyond reasonable
doubt. If the trial court finds that the prosecution evidence is not
sufficient and grants the accused's Demurrer to Evidence, the ruling
is an adjudication on the merits of the case which is tantamount to
an acquittal and may no longer be appealed. Any further
prosecution of the accused after an acquittal would, thus, violate the
constitutional proscription on double jeopardy. 30
Anent the prosecution’s claim of denial of due process. As correctly
found by the CA, the prosecution was not denied due process.
Suffice it to state that the prosecution had actively participated in the
trial and already rested its case, and upon petitioners' filing of their
Demurrer to Evidence, was given the opportunity to file its Comment
or Opposition and, in fact, actually filed its Comment thereto, albeit
belatedly. The CA emphasized that the word "may" was used in
Section 23 of Rule 119 of the Revised Rules of Criminal Procedure,
which states that if leave of court is granted, and the accused has
filed the Demurrer to Evidence within a non-extendible period of ten
(10) days from notice, the prosecution "may" oppose the Demurrer
to Evidence within a similar period from its receipt.1âwphi1 In this
regard, the CA added that the filing of a Comment or Opposition by
respondent is merely directory, not a mandatory or jurisdictional
requirement, and that in fact the trial court may even proceed with
the resolution of the petitioners' Demurrer to Evidence even without
the prosecution's Comment.
One final note. Article 360 of the Revised Penal Code specifies the
persons that can be held liable for libel. It provides:
ART. 360. Persons responsible. — Any person who shall publish,
exhibit or cause the publication or exhibition of any defamation in
writing or by similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or business
manager of a daily newspaper, magazine or serial publication, shall
be responsible for the defamation contained therein to the same
extent as if he were the author thereof.31
From the foregoing, not only is the person who published, exhibited
or caused the publication or exhibition of any defamation in writing
shall be responsible for the same, all other persons who participated
in its publication are liable, including the editor or business manager
of a daily newspaper, magazine or serial publication, who shall be
equally responsible for the defamations contained therein to the
same extent as if he were the author thereof. The liability which
attaches to petitioners is, thus, statutory in nature.
In Fermin v. People,32 therein petitioner argued that to sustain a
conviction for libel under Article 360 of the Code, it is mandatory that
the publisher knowingly participated in or consented to the
preparation and publication of the libelous article. She also averred
that she had adduced ample evidence to show that she had no hand
in the preparation and publication of the offending article, nor in the
review, editing, examination, and approval of the articles published
in Gossip Tabloid. The Court struck down her erroneous theory and
ruled that therein petitioner, who was not only the Publisher of
Gossip Tabloid but also its President and Chairperson, could not
escape liability by claiming lack of participation in the preparation
and publication of the libelous article.
Similarly, in Tulfo v. People,33 therein petitioners, who were
Managing Editor, National Editor of Remate publication, President
of Carlo Publishing House, and one who does typesetting, editing,
and layout of the page, claim that they had no participation in the
editing or writing of the subject articles which will hold them liable
for the crime of libel and, thus, should be acquitted. In debunking
this argument, the Court stressed that an editor or manager of a
newspaper, who has active charge and control over the publication,
is held equally liable with the author of the libelous article. This is
because it is the duty of the editor or manager to know and control
the contents of the paper, and interposing the defense of lack of
knowledge or consent as to the contents of the articles or publication
definitely will not prosper.
The rationale for the criminal culpability of those persons
enumerated in Article 360 was already elucidated as early as in the
case of U.S. v. Ocampo,34 to wit:
According to the legal doctrines and jurisprudence of the United
States, the printer of a publication containing libelous matter is liable
121
for the same by reason of his direct connection therewith and his
cognizance of the contents thereof. With regard to a publication in
which a libel is printed, not only is the publisher but also all other
persons who in any way participate in or have any connection with
its publication are liable as publishers.35
Accordingly, Article 360 would have made petitioners Bautista and
Alcantara, being the Editor and Assistant Editor, respectively, of
Bandera Publishing Corporation, answerable with Ampoloquio, for
the latter’s alleged defamatory writing, as if they were the authors
thereof. Indeed, as aptly concluded by the court a quo:
The aforestated provision is clear and unambiguous. It equally
applies to an editor of a publication in which a libelous article was
published and states that the editor of the same shall be responsible
for the defamation in writing as if he were the author thereof. Indeed,
when an alleged libelous article is published in a newspaper, such
fact alone sufficient evidence to charge the editor or business
manager with the guilt of its publication. This sharing of liability with
the author of said article is based on the principle that editors and
associate editors, by the nature of their positions, edit, control and
approve the materials which are to be published in a newspaper.
This means that, without their nod of approbation, any article alleged
to be libelous would not be published.
Hence, by virtue of their position and the authority which they
exercise, newspaper editors and associate editors are as much
critical part in the publication of any defamatory material as the
writer or author thereof.36
Nevertheless, petitioners could no longer be held liable in view of
the procedural infirmity that the petition for certiorari was not
undertaken by the OSG, but instead by respondent in her personal
capacity. Although the conclusion of the trial court may be wrong, to
reverse and set aside the Order granting the demurrer to evidence
would violate petitioners’ constitutionally-enshrined right against
double jeopardy. Had it not been for this procedural defect, the Court
could have seriously considered the arguments advanced by the
respondent in seeking the reversal of the Order of the RTC.
The granting of a demurrer to evidence should, therefore, be
exercised with caution, taking into consideration not only the rights
of the accused, but also the right of the private offended party to be
vindicated of the wrongdoing done against him, for if it is granted,
the accused is acquitted and the private complainant is generally
left with no more remedy. In such instances, although the decision
of the court may be wrong, the accused can invoke his right against
double jeopardy. Thus, judges are reminded to be more diligent and
circumspect in the performance of their duties as members of the
Bench, always bearing in mind that their decisions affect the lives of
the accused and the individuals who come to the courts to seek
redress of grievances, which decision could be possibly used by the
aggrieved party as basis for the filing of the appropriate actions
against them.
Perforce, the Order dated April 25, 2008 of the Regional Trial Court,
Branch 212, Mandaluyong City, in Criminal Case Nos. MC02-4872
and MC02-4875, which dismissed the actions as against petitioners
Lito Bautista and Jimmy Alcantara, should be reinstated.
WHEREFORE, the petition is GRANTED. The Decision dated May
19, 2009 and Resolution dated September 28, 2009 of the Court of
Appeals, in CA-G.R. SP No. 104885, are REVERSED AND SET
ASIDE. The portion of the Order dated April 25, 2008 of the Regional
Trial Court, Branch 212, Mandaluyong City, in Criminal Case Nos.
MC02-4872 and MC02-4875, which dismissed the actions as
against petitioners Lito Bautista and Jimmy Alcantara, is
REINSTATED.
SO ORDERED.
G.R. No. 195032 February 20, 2013
ISABELO A. BRAZA, Petitioner, vs. THE HONORABLE
SANDIGANBA Y AN (1st Division), Respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari filed by petitioner Isabelo
Braza (Braza) seeking to reverse and set aside the October 12,
2009 Resolution 1 of the Sandiganbayan in Criminal Case No. SB-
08-CRM-0275, entitled People v. Robert G.Lala, et al., as well as its
October 22, 2010 Resolution,2 denying his motion for
reconsideration.
The Philippines was assigned the hosting rights for the 12th
Association of Southeast Asian Nations (ASEAN)Leaders Summit
scheduled in December 2006. In preparation for this international
diplomatic event with the province of Cebu as the designated venue,
the Department of Public Works and Highways (DPWH) identified
projects relative to the improvement and rehabilitation of roads and
installation of traffic safety devices and lighting facilities. The then
Acting Secretary of the DPWH, Hermogenes E. Ebdane, approved
the resort to alternative modes of procurement for the
implementation of these projects due to the proximity of the ASEAN
Summit.
One of the ASEAN Summit-related projects to be undertaken was
the installation of street lighting systems along the perimeters of the
Cebu International Convention Center in Mandaue City and the
ceremonial routes of the Summit to upgrade the appearance of the
convention areas and to improve night-time visibility for security
purposes. Four (4) out of eleven (11) street lighting projects were
awarded to FABMIK Construction and Equipment Supply Company,
Inc. (FABMIK) and these were covered by Contract I.D. Nos.
06H0021, 06H00049, 06H00050, and 06H00052. Contract I.D. No.
06H00050, the subject transaction of this case, involved the supply
and installation of street lighting facilities along the stretch of
Mandaue-Mactan Bridge 1 to Punta Engaño Section in Lapu-Lapu
City, with an estimated project cost of P83,950,000.00.
With the exception of the street lighting project covered by Contract
I.D. No. 06H0021, the three other projects were bidded out only on
November 28, 2006 or less than two (2) weeks before the scheduled
start of the Summit. Thereafter, the DPWH and FABMIK executed
a Memorandum of Agreement (MOA) whereby FABMIK obliged
itself to implement the projects at its own expense and the DPWH
to guarantee the payment of the work accomplished. FABMIK was
able to complete the projects within the deadline of ten (10) days
utilizing its own resources and credit facilities. The schedule of the
international event, however, was moved by the national organizers
to January 9-15, 2007 due to typhoon Seniang which struck Cebu
for several days.
After the summit, a letter-complaint was filed before the Public
Assistance and Corruption Prevention
Office(PACPO), Ombudsman –Visayas, alleging that the ASEAN
Summit street lighting projects were overpriced. A panel composing
of three investigators conducted a fact-finding investigation to
determine the veracity of the accusation. Braza, being the president
of FABMIK, was impleaded as one of the respondents. On March
16, 2007, the Ombudsman directed the Department of Budget and
Management (DBM) and the DPWH to cease and desist from
releasing or disbursing funds for the projects in question. 3
On March 23, 2007, the fact-finding body issued its Evaluation
Report4 recommending the filing of charges for violation of Section
3(e) of Republic Act (R.A.) No. 3019, otherwise known as the Anti-
Graft and Corrupt Practice Act, against the DPWH officials and
employees in Region VII and the cities of Mandaue and Lapu-lapu,
and private contractors FABMIK and GAMPIK Construction and
Development, Inc. (GAMPIK). This report was filed before the Office
of the Ombudsman-Visayas (OMBVisayas) for the conduct of a
preliminary investigation and was docketed therein as OMB-V-C-07-
124-C, entitled PACPO-OMB-Visayas v. Lala, et. al.
After the preliminary investigation, the OMB-Visayas issued its
Resolution,5 dated January 24, 2008, finding probable cause to
indict the concerned respondents for violation of Section 3(g) of R.A.
No. 3019. It was found that the lampposts and other lighting facilities
installed were indeed highly overpriced after a comparison of the
costs of the materials indicated in the Program of Works and
Estimates (POWE) with those in the Bureau of
Customs(BOC) documents; and that the contracts entered into
between the government officials and the private contractors were
manifestly and grossly disadvantageous to the government.
Subsequently, the OMB-Visayas filed several informations before
the Sandiganbayan for violation of Sec. 3(g) of R.A. 3019 against
the officials of DPWH Region VII, the officials of the cities of
Mandaue and Lapu-lapu and private contractors, FABMIK President
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Braza and GAMPIK Board Chairman Gerardo S. Surla (Surla). The
Information docketed as SB-08- CRM-02756 (first
information) which involved the street lighting project covered by
Contract I.D. No. 06H00050 with FABMIK, was raffled to the First
Division of the Sandiganbayan. It was alleged therein that Braza
acted in conspiracy with the public officials and employees in the
commission of the crime charged.
On June 6, 2008, Braza was arraigned as a precondition to his
authorization to travel abroad. He entered a plea of "not guilty."
On August 14, 2008, the motions for reinvestigation filed by Arturo
Radaza (Radaza), the Mayor of Lapu-lapu City, and the DPWH
officials were denied by the Sandiganbayan for lack of merit.
Consequently, they moved for the reconsideration of said
resolution.7 On August 27, 2008, Braza filed a motion for
reinvestigation8 anchored on the following grounds: (1) the import
documents relied upon by the OMB-Visayas were spurious and
falsified; (2) constituted new evidence, if considered, would overturn
the finding of probable cause; and (3) the finding of overpricing was
bereft of factual and legal basis as the same was not substantiated
by any independent canvass of prevailing market prices of the
subject lampposts. He prayed for the suspension of the proceedings
of the case pending such reinvestigation. The Sandiganbayan
treated Braza's motion as his motion for reconsideration of its
August 14, 2008 Resolution.
On November 13, 2008, Braza filed a manifestation9 to make of
record that he was maintaining his previous plea of "not guilty"
without any condition.
During the proceedings held on November 3, 2008, the
Sandiganbayan reconsidered its August 14, 2008 resolution and
directed a reinvestigation of the case.10 According to the anti-graft
court, the allegations to the effect that no independent canvass was
conducted and that the charge of overpricing was based on falsified
documents were serious reasons enough to merit a reinvestigation
of the case. The Sandiganbayan said that it could be reasonably
inferred from the July 30, 2008 Order of the Ombudsman in OMB-
V-C-07-0124-C that the latter would not object to the conduct of a
reinvestigation of all the cases against the accused.
Braza filed his Manifestation,11 dated February 2, 2009, informing
the Sandiganbayan of his intention to abandon his previous motion
for reinvestigation. He opined that the prosecution would merely use
the reinvestigation proceedings as a means to engage in a second
unbridled fishing expedition to cure the lack of probable cause.
On March 23, 2009, Braza filed a motion12 in support of the
abandonment of reinvestigation with a plea to vacate Information,
insisting that the further reinvestigation of the case would only afford
the prosecution a second round of preliminary investigation which
would be vexatious, oppressive and violative of his constitutional
right to a speedy disposition of his case, warranting its dismissal
with prejudice.
After concluding its reinvestigation of the case, the OMB-Visayas
issued its Resolution,13 dated May 4, 2009,(Supplemental
Resolution) which upheld the finding of probable cause but modified
the charge from violation of Sec. 3(g) of R.A. No. 301914 to violation
of Sec. 3(e)15 of the same law. Accordingly, the prosecution filed its
Manifestation and Motion to Admit Amended Information16 on May
8, 2009.
On July 1, 2009, Braza filed his Comment (to the motion to admit
amended information) with Plea for Discharge and/or Dismissal of
the Case.17 He claimed that the first information had been rendered
ineffective or had been deemed vacated by the issuance of the
Supplemental Resolution and, hence, his discharge from the first
information was in order. By way of an alternative prayer, Braza
sought the dismissal of the case with prejudice claiming that his right
to a speedy disposition of the case had been violated and that the
Supplemental Resolution failed to cure the fatal infirmities of the
January 24, 2008 Resolution since proof to support the allegation of
overpricing remained wanting. Braza averred that he could not be
arraigned under the second information without violating the
constitutional proscription against double jeopardy.
On October 12, 2009, the Sandiganbayan issued the first assailed
resolution admitting the Amended Information, 18 dated May 4,
2009, (second Information) and denying Braza's plea for dismissal
of the criminal case. The Sandiganbayan ruled that Braza would not
be placed in double jeopardy should he be arraigned anew under
the second information because his previous arraignment was
conditional. It continued that even if he was regularly arraigned,
double jeopardy would still not set in because the second
information charged an offense different from, and which did not
include or was necessarily included in, the original offense charged.
Lastly, it found that the delay in the reinvestigation proceedings
could not be characterized as vexatious, capricious or oppressive
and that it could not be attributed to the prosecution. The dispositive
portion of the said resolution reads:
WHEREFORE, premises considered, the Motion to Admit Attached
Amended Information filed by the prosecution is hereby GRANTED.
The Amended Information charging all the accused therein with
violation of Sec. 3 (e) of R.A. 3019, being the proper offense, is
hereby ADMITTED.
Consequently, accused Braza's Alternative Relief for Dismissal of
the Case is hereby DENIED.
Let the arraignment of all the accused in the Amended Information
be set on November 18, 2009, at 8:30 in the morning.
SO ORDERED.19
On November 6, 2009, Braza moved for reconsideration with
alternative motion to quash the information20reiterating his
arguments that his right against double jeopardy and his right to a
speedy disposition of the case were violated warranting the
dismissal of the criminal case with prejudice. In the alternative,
Braza moved for the quashal of the second information vigorously
asserting that the same was fatally defective for failure to allege any
actual, specified and quantifiable injury sustained by the
government as required by law for indictment under Sec. 3(e) of
R.A. 3019, and that the charge of overpricing was unfounded.
On October 22, 2010, the Sandiganbayan issued the second
assailed resolution stating, among others, the denial of Braza's
Motion to Quash the information. The anti-graft court ruled that the
Amended Information was sufficient in substance as to inform the
accused of the nature and causes of accusations against them.
Further, it held that the specifics sought to be alleged in the
Amended Information were evidentiary in nature which could be
properly presented during the trial on the merits. The
Sandiganbayan also stated that it was possible to establish the fact
of overpricing if it would be proven that the contract price was
excessive compared to the price for which FABMIK purchased the
street lighting facilities from its supplier. Braza was effectively
discharged from the first Information upon the filing of the second
Information but said discharge was without prejudice to, and would
not preclude, his prosecution for violation of Sec. 3(e) of R.A. No.
3019. It added that his right to speedy disposition of the case was
not violated inasmuch as the length of time spent for the
proceedings was in compliance with the procedural requirements of
due process. The Sandiganbayan, however, deemed it proper that
a new preliminary investigation be conducted under the new charge.
Accordingly, the Sandiganbayan disposed:
WHEREFORE, in the light of all the foregoing, the separate omnibus
motions of accused-movant Radaza and accused-movants Bernido,
Manggis and Ojeda, insofar as the sought preliminary investigation
is concerned isGRANTED.
Accordingly, this case is hereby remanded to the Office of the
Ombudsman/Special Prosecutor for preliminary investigation of
violation of Section 3(e) of RA 3019. The said office/s are hereby
ordered to complete the said preliminary investigation and to submit
to the Court the result of the said investigation within sixty (60) days
from notice.
However, the Motion for Bill of Particulars of accusedmovants Lala,
Dindin Alvizo, Fernandez, Bagolor, Galang and Diano, the Motion
for Quashal of Information of accused-movants Bernido, Manggis
and Ojeda, and accused-movant Braza's Motion to Quash, are
hereby DENIED for lack of merit.
SO ORDERED.21
ISSUES
Undaunted, Braza filed this petition for certiorari ascribing grave
abuse of discretion on the Sandiganbayan for issuing the
123
Resolutions, dated October 12, 2009 and October 22, 2010,
respectively. Braza raised the following issues:
A) The Sandiganbayan committed grave abuse of discretion
in sustaining the withdrawal of the Information in violation
of the constitutional guarantee against double jeopardy, the
petitioner having entered a valid plea and vigorously
objected to any further conduct of reinvestigation and
amendment of Information.
B) The Sandiganbayan acted with grave abuse of discretion
in allowing the withdrawal and amendment of the
Information without prejudice, the proceedings being
fraught with flip-flopping, prolonged and vexatious
determination of probable cause, thereby violating
petitioner's constitutional right to speedy disposition of his
case, warranting his discharge with prejudice regardless of
the nature of his previous arraignment.
C) The Sandiganbayan acted with grave abuse of discretion
in denying the motion to quash Amended Information, there
being no allegation of actual, specified, or quantifiable
injury sustained by the government as required by law (in
cases involving Sec. 3 (e) of RA 3019) with the
Reinvestigation Report itself admitting on record that the
government has not paid a single centavo for the fully-
implemented project.
D) The Sandiganbayan acted with grave abuse of discretion
in sustaining the new indictment under Sec. 3(e) of R.A.
3019 without threshing out the fatal infirmities that hounded
the previous finding of overpricing – the erroneous reliance
on spurious import documents and lack of price canvass to
establish prevailing market price – thereby rendering the
new Resolution fatally defective.22
Essentially, Braza posits that double jeopardy has already set in on
the basis of his "not guilty" plea in the first Information and, thus, he
can no longer be prosecuted under the second Information. He
claims that his arraignment was unconditional because the
conditions in the plea were ineffective for not being unmistakable
and categorical. He theorizes that the waiver of his constitutional
guarantee against double jeopardy was not absolute as the same
was qualified by the phrase "as a result of the pending incidents."
He argues that even granting that his arraignment was indeed
conditional, the same had become simple and regular when he
validated and confirmed his plea of "not guilty" by means of a written
manifestation which removed any further condition attached to his
previous plea.
Braza submits that the prolonged, vexatious and flip-flopping
determination of probable cause violated his right to a speedy
disposition of the case which would justify the dismissal of the case
with prejudice. Further, he assails the sufficiency of the allegation of
facts in the second Information for failure to assert any actual and
quantifiable injury suffered by the government in relation to the
subject transaction. He points out that the admission in the
Reinvestigation Report to the effect that the government had not
paid a single centavo to FABMIK for the fully implemented project,
had rendered as invalid, baseless and frivolous any indictment or
prosecution for violation of Sec. 3(e) of R.A. 3019. Braza insists that
the Supplemental Resolution of the OMB-Visayas was fatally
defective considering that the Ombudsman did not conduct an
independent price canvass of the prevailing market price of the
subject lampposts and merely relied on the spurious and false BOC
documents to support its conclusion of overpricing.
By way of comment,23 the Office of the Special
Prosecutor (OSP) retorts that the withdrawal of the first information
and the subsequent filing of the second information did not place
Braza in double jeopardy or violate his right to speedy disposition of
the case. The OSP reasons that Braza waived his right to invoke
double jeopardy when he agreed to be conditionally arraigned. It
further argues that even granting that the arraignment was
unconditional, still double jeopardy would not lie because the charge
of violation of Section 3(e) of R.A. 3019 in the second information is
a different offense with different elements from that of the charge of
violation of Sec. 3(g) in the first Information. The OSP posits that his
right to a speedy disposition of the case was not violated as the
delay in the proceedings cannot be considered as oppressive,
vexatious or capricious. According to the OSP, such delay was
precipitated by the many pleadings filed by the accused, including
Braza, and was in fact incurred to give all the accused the
opportunities to dispute the accusation against them in the interest
of fairness and due process.
The OSP also submits that proof of the actual injury suffered by the
government and that of overpricing, are superfluous and immaterial
for the determination of probable cause because the alleged mode
for committing the offense charged in the second Information was
by giving any private party unwarranted benefit, advantage or
preference. The second Information sufficiently alleges all the
elements of the offense for which the accused were indicted.
The Court’s Ruling
Simply put, the pivotal issue in this case is whether the
Sandiganbayan acted with grave abuse of discretion in denying
Braza's plea for the dismissal of Case No. SB-08-CRM-0275 and
his subsequent motion to quash the second Information, particularly
on the grounds of double jeopardy, violation of his right to a speedy
disposition of the case, and failure of the Information to state every
single fact to constitute all the elements of the offense charged.
The petition is devoid of merit.
It is Braza’s stance that his constitutional right under the double
jeopardy clause bars further proceedings in Case No. SB-08-CRM-
0275. He asserts that his arraignment under the first information
was simple and unconditional and, thus, an arraignment under the
second information would put him in double jeopardy.
The Court is not persuaded. His argument cannot stand scrutiny.
The June 6, 2008 Order24 of the Sandiganbayan reads:
This morning, accused Isabelo A. Braza was summoned to
arraignment as a precondition in authorizing his travel. The
arraignment of the accused was conditional in the sense that if the
present Information will be amended as a result of the pending
incidents herein, he cannot invoke his right against double
jeopardy and he shall submit himself to arraignment anew
under such Amended Information. On the other hand, his
conditional arraignment shall not prejudice his right to question such
Amended Information, if one shall be filed. These conditions were
thoroughly explained to the accused and his counsel. After
consultation with his counsel, the accused willingly submitted
himself to such conditional arraignment.
Thereafter, the accused, with the assistance of counsel, was
arraigned by reading the Information to him in English, a language
understood by him. Thereafter, he pleaded Not Guilty to the charge
against him. [Emphases supplied]
While it is true that the practice of the Sandiganbayan of conducting
"provisional" or "conditional" arraignment of the accused is not
specifically sanctioned by the Revised Internal Rules of the
Procedure of the Sandiganbayan or by the regular Rules of
Procedure, this Court had tangentially recognized such practice
in People v. Espinosa,25provided that the alleged conditions
attached to the arraignment should be "unmistakable, express,
informed and enlightened." The Court further required that the
conditions must be expressly stated in the order disposing of
arraignment, otherwise, it should be deemed simple and
unconditional.26
A careful perusal of the record in the case at bench would reveal
that the arraignment of Braza under the first information was
conditional in nature as it was a mere accommodation in his favor
to enable him to travel abroad without the Sandiganbayan losing its
ability to conduct trial in absentia in case he would abscond. The
Sandiganbayan's June 6, 2008 Order clearly and unequivocally
states that the conditions for Braza's arraignment as well as his
travel abroad, that is, that if the Information would be amended, he
shall waive his constitutional right to be protected against double
jeopardy and shall allow himself to be arraigned on the amended
information without losing his right to question the same. It appeared
that these conditions were duly explained to Braza and his lawyer
by the anti-graft court. He was afforded time to confer and consult
his lawyer. Thereafter, he voluntarily submitted himself to such
conditional arraignment and entered a plea of "not guilty" to the
offense of violation of Sec. 3(g) of R.A. No. 3019.
124
Verily, the relinquishment of his right to invoke double jeopardy had
been convincingly laid out. Such waiver was clear, categorical and
intelligent. It may not be amiss to state that on the day of said
arraignment, one of the incidents pending for the consideration of
the Sandiganbayan was an omnibus motion for determination of
probable cause and for quashal of information or for reinvestigation
filed by accused Radaza. Accordingly, there was a real possibility
that the first information would be amended if said motion was
granted. Although the omnibus motion was initially denied, it was
subsequently granted upon motion for reconsideration, and a
reinvestigation was ordered to be conducted in the criminal case.
Having given his conformity and accepted the conditional
arraignment and its legal consequences, Braza is now estopped
from assailing its conditional nature just to conveniently avoid being
arraigned and prosecuted of the new charge under the second
information. Besides, in consonance with the ruling in Cabo v.
Sandiganbayan,27this Court cannot now allow Braza to renege and
turn his back on the above conditions on the mere pretext that he
affirmed his conditional arraignment through a pleading
denominated as Manifestation filed before the Sandiganbayan on
November 13, 2008. After all, there is no showing that the anti-graft
court had acted on, much less noted, his written manifestation.
Assuming, in gratia argumenti, that there was a valid and
unconditional plea, Braza cannot plausibly rely on the principle of
double jeopardy to avoid arraignment under the second information
because the offense charged therein is different and not included in
the offense charged under the first information. The right against
double jeopardy is enshrined in Section 21 of Article III of the
Constitution, which reads:
No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance conviction
or acquittal under either shall constitute a bar to another prosecution
for the same act.
This constitutionally mandated right is procedurally buttressed by
Section 17 of Rule 11728 of the Revised Rules of Criminal
Procedure. To substantiate a claim for double jeopardy, the accused
has the burden of demonstrating the following requisites: (1) a first
jeopardy must have attached prior to the second; (2) the first
jeopardy must have been validly terminated; and (3) the second
jeopardy must be for the same offense as in the first.29 As to the first
requisite, the first jeopardy attaches only (a) after a valid indictment;
(b) before a competent court; (c) after arraignment, (d) when a valid
plea has been entered; and (e) when the accused was acquitted or
convicted, or the case was dismissed or otherwise terminated
without his express consent.30 The test for the third element is
whether one offense is identical with the other or is an attempt to
commit it or a frustration thereof; or whether the second offense
includes or is necessarily included in the offense charged in the first
information.
Braza, however, contends that double jeopardy would still attach
even if the first information charged an offense different from that
charged in the second information since both charges arose from
the same transaction or set of facts. Relying on the antiquated ruling
of People v. Del Carmen,31 Braza claims that an accused should be
shielded against being prosecuted for several offenses made out
from a single act.
It appears that Braza has obviously lost sight, if he is not altogether
aware, of the ruling in Suero v. People32 where it was held that the
same criminal act may give rise to two or more separate and distinct
offenses; and that no double jeopardy attaches as long as there is
variance between the elements of the two offenses charged. The
doctrine of double jeopardy is a revered constitutional safeguard
against exposing the accused from the risk of being prosecuted
twice for the same offense, and not a different one.
There is simply no double jeopardy when the subsequent
information charges another and different offense, although arising
from the same act or set of acts.33 Prosecution for the same act is
not prohibited. What is forbidden is the prosecution for the same
offense.
In the case at bench, there is no dispute that the two charges
stemmed from the same transaction. A comparison of the elements
of violation of Sec. 3(g) of R.A. No. 3019 and those of violation of
Sec. 3(e) of the same law, however, will disclose that there is neither
identity nor exclusive inclusion between the two offenses. For
conviction of violation of Sec. 3(g), the prosecution must establish
the following elements:
1. The offender is a public officer;
2. He entered into a contract or transaction in behalf of the
government; and
3. The contract or transaction is manifestly and grossly
disadvantageous to the government.34
On the other hand, an accused may be held criminally liable of
violation of Section 3(e) of R.A. No. 3019, provided that the following
elements are present:
1. The accused must be a public officer discharging
administrative, judicial or official functions;
2. The accused must have acted with manifest partiality,
evident bad faith or gross inexcusable negligence; and
3. His action caused undue injury to any party, including
the government or gave any private party unwarranted
benefits, advantage or preference in the discharge of his
functions.35
Although violation of Sec. 3(g) of R.A. No. 3019 and violation of Sec.
3(e) of the same law share a common element, the accused being
a public officer, the latter is not inclusive of the former. The essential
elements of each are not included among or do not form part of
those enumerated in the other. For double jeopardy to exist, the
elements of one offense should ideally encompass or include those
of the other. What the rule on double jeopardy prohibits refers to
identity of elements in the two offenses. 36
Next, Braza contends that the long delay that characterized the
proceedings for the determination of probable cause has resulted in
the transgression of his constitutional right to a speedy disposition
of the case. According to him, the proceedings have unquestionably
been marred with vexatious, capricious and oppressive delay
meriting the dismissal of Case No. SB-08-CRM-0275. Braza claims
that it took the OMB more than two (2) years to charge him and his
co-accused with violation of Section 3(e) in the second information.
The petitioner's contention is untenable.
Section 16, Article III of the Constitution declares in no uncertain
terms that "[A]ll persons shall have the right to a speedy disposition
of their cases before all judicial, quasi-judicial, or administrative
bodies." The right to a speedy disposition of a case is deemed
violated only when the proceedings are attended by vexatious,
capricious, and oppressive delays, or when unjustified
postponements of the trial are asked for and secured, or when
without cause or justifiable motive, a long period of time is allowed
to elapse without the party having his case tried. 37 The constitutional
guarantee to a speedy disposition of cases is a relative or flexible
concept.38 It is consistent with delays and depends upon the
circumstances. What the Constitution prohibits are unreasonable,
arbitrary and oppressive delays which render rights nugatory. 39
In Dela Peña v. Sandiganbayan,40 the Court laid down certain
guidelines to determine whether the right to a speedy disposition
has been violated, as follows:
The concept of speedy disposition is relative or flexible. A mere
mathematical reckoning of the time involved is not sufficient.
Particular regard must be taken of the facts and circumstances
peculiar to each case. Hence, the doctrinal rule is that in the
determination of whether that right has been violated, the factors
that may be considered and balanced are as follows: (1) the length
of the delay; (2) the reasons for the delay; (3) the assertion or failure
to assert such right by the accused; and (4) the prejudice caused by
the delay.
Using the foregoing yardstick, the Court finds that Braza’s right to
speedy disposition of the case has not been infringed.
Record shows that the complaint against Braza and twenty-three
(23) other respondents was filed in January 2007 before the
PACPO-Visayas. After the extensive inquiries and data-gathering,
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the PACPO-Visayas came out with an evaluation report on March
23, 2007 concluding that the installed lampposts and lighting
facilities were highly overpriced. 41 PACPO-Visayas recommended
that the respondents be charged with violation of Section 3(e) of
R.A. No. 3019. Thereafter, the investigatory process was set in
motion before the OMB-Visayas where the respondents filed their
respective counter-affidavits and submitted voluminous
documentary evidence to refute the allegations against them. Owing
to the fact that the controversy involved several transactions and
varying modes of participation by the 24 respondents and that their
respective responsibilities had to be established, the OMB-Visayas
resolved the complaint only on January 24, 2008 with the
recommendation that the respondents be indicted for violation of
Section 3(g) of R.A. 3019. The Court notes that Braza never decried
the time spent for the preliminary investigation. There was no
showing either that there were unreasonable delays in the
proceedings or that the case was kept in idle slumber.
After the filing of the information, the succeeding events appeared
to be part of a valid and regular course of the judicial proceedings
not attended by capricious, oppressive and vexatious delays. On
November 3, 2008, Sandiganbayan ordered the reinvestigation of
the case upon motion of accused Radaza, petitioner Braza and
other accused DPWH officials. In the course of the reinvestigation,
the OMB-Visayas furnished the respondents with the additional
documents/papers it secured, especially the Commission on Audit
Report, for their verification, comment and submission of
countervailing evidence.42 Thereafter, the OMB-Visayas issued its
Supplemental Resolution, dated May 4, 2009, finding probable
cause against the accused for violation of Section 3(e) of R.A. 3019.
Indeed, the delay can hardly be considered as "vexatious,
capricious and oppressive." The complexity of the factual and legal
issues, the number of persons charged, the various pleadings filed,
and the volume of documents submitted, prevent this Court from
yielding to the petitioner’s claim of violation of his right to a speedy
disposition of his case. Rather, it appears that Braza and the other
accused were merely afforded sufficient opportunities to ventilate
their respective defenses in the interest of justice, due process and
fair investigation. The re-investigation may have inadvertently
contributed to the further delay of the proceedings but this process
cannot be dispensed with because it was done for the protection of
the rights of the accused. Albeit the conduct of investigation may
hold back the progress of the case, the same was essential so that
the rights of the accused will not be compromised or sacrificed at
the altar of expediency.43 The bare allegation that it took the OMB
more than two (2) years to terminate the investigation and file the
necessary information would not suffice.44 As earlier stated, mere
mathematical reckoning of the time spent for the investigation is not
a sufficient basis to conclude that there was arbitrary and inordinate
delay.
The delay in the determination of probable cause in this case should
not be cause for an unfettered abdication by the anti-graft court of
its duty to try and determine the controversy in Case No. SB-08-
CRM-0275. The protection under the right to a speedy disposition
of cases should not operate to deprive the government of its
inherent prerogative in prosecuting criminal cases.
Finally, Braza challenges the sufficiency of the allegations in the
second information because there is no indication of any actual and
quantifiable injury suffered by the government. He then argues that
the facts under the second information are inadequate to support a
valid indictment for violation of Section 3(e) of R.A. No. 3019.
The petitioner's simple syllogism must fail.
Section 3 (e) of R.A. No. 3019 states:
Sec. 3. Corrupt practices of public officers – In addition to acts or
omission of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and
are hereby declared to be unlawful:
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official
administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions.
In a catena of cases, this Court has held that there are two (2) ways
by which a public official violates Section 3(e) of R.A. No. 3019 in
the performance of his functions, namely: (1) by causing undue
injury to any party, including the Government; or (2) by giving any
private party any unwarranted benefit, advantage or
preference.45 The accused may be charged under either mode or
under both.1âwphi1 The disjunctive term "or" connotes that either
act qualifies as a violation of Section 3(e) of R.A. No. 3019. 46 In
other words, the presence of one would suffice for conviction.
It must be emphasized that Braza was indicted for violation of
Section 3(e) of R.A. No. 3019 under the second mode. "To be found
guilty under the second mode, it suffices that the accused has given
unjustified favor or benefit to another, in the exercise of his official,
administrative and judicial functions."47 The element of damage is
not required for violation of Section 3(e) under the second mode. 48
In the case at bench, the second information alleged, in substance,
that accused public officers and employees, discharging official or
administrative function, together with Braza, confederated and
conspired to give F ABMIK unwarranted benefit or preference by
awarding to it Contract I.D. No. 06H00050 through manifest
partiality or evident bad faith, without the conduct of a public bidding
and compliance with the requirement for qualification contrary to the
provisions of R.A. No. 9184 or the Government Procurement
Reform Act. Settled is the rule that private persons, when acting in
conspiracy with public officers, may be indicted and, if found guilty,
held liable for the pertinent offenses under Section 3 of R.A. No. 3
019.49 Considering that all the elements of the offense of violation of
Sec. 3(e) were alleged in the second information, the Court finds the
same to be sufficient in form and substance to sustain a conviction.
At any rate, the presence or absence of the elements of the crime
is evidentiary in nature and is a matter of defense that may be
passed upon after a full-blown trial on the merits.50 It is not proper,
therefore, to resolve the issue right at the outset without the benefit
of a full-blown trial. This issue requires a fuller ventilation and
examination.
All told, this Court finds that the Sandiganbayan did not commit
grave abuse of discretion amounting to lack or excess of jurisdiction,
much less did it gravely err, in denying Braza's motion to quash the
information/dismiss Case No. SB-08-CRM-0275. This ruling,
however, is without prejudice to the actual merits of this criminal
case as may be shown during the trial before the court a quo.
WHEREFORE, the petition for certiorari is DENIED. The
Sandiganbayan is hereby DIRECTED to dispose of Case No. SB-
08-CRM- 0275 with reasonable dispatch.
SO ORDERED.
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners, vs. JUSTO
LUKBAN, ET AL., respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as
remarkable as the one which this application for habeas
corpus submits for decision. While hardly to be expected to be met
with in this modern epoch of triumphant democracy, yet, after all,
the cause presents no great difficulty if there is kept in the forefront
of our minds the basic principles of popular government, and if we
give expression to the paramount purpose for which the courts, as
an independent power of such a government, were constituted. The
primary question is — Shall the judiciary permit a government of the
men instead of a government of laws to be set up in the Philippine
Islands?
Omitting much extraneous matter, of no moment to these
proceedings, but which might prove profitable reading for other
departments of the government, the facts are these: The Mayor of
the city of Manila, Justo Lukban, for the best of all reasons, to
exterminate vice, ordered the segregated district for women of ill
repute, which had been permitted for a number of years in the city
of Manila, closed. Between October 16 and October 25, 1918, the
women were kept confined to their houses in the district by the
police. Presumably, during this period, the city authorities quietly
perfected arrangements with the Bureau of Labor for sending the
126
women to Davao, Mindanao, as laborers; with some government
office for the use of the coastguard cutters Corregidor and Negros,
and with the Constabulary for a guard of soldiers. At any rate, about
midnight of October 25, the police, acting pursuant to orders from
the chief of police, Anton Hohmann and the Mayor of the city of
Manila, Justo Lukban, descended upon the houses, hustled some
170 inmates into patrol wagons, and placed them aboard the
steamers that awaited their arrival. The women were given no
opportunity to collect their belongings, and apparently were under
the impression that they were being taken to a police station for an
investigation. They had no knowledge that they were destined for a
life in Mindanao. They had not been asked if they wished to depart
from that region and had neither directly nor indirectly given their
consent to the deportation. The involuntary guests were received on
board the steamers by a representative of the Bureau of Labor and
a detachment of Constabulary soldiers. The two steamers with their
unwilling passengers sailed for Davao during the night of October
25.
The vessels reached their destination at Davao on October 29. The
women were landed and receipted for as laborers by Francisco
Sales, provincial governor of Davao, and by Feliciano Yñigo and
Rafael Castillo. The governor and the hacendero Yñigo, who
appear as parties in the case, had no previous notification that the
women were prostitutes who had been expelled from the city of
Manila. The further happenings to these women and the serious
charges growing out of alleged ill-treatment are of public interest,
but are not essential to the disposition of this case. Suffice it to say,
generally, that some of the women married, others assumed more
or less clandestine relations with men, others went to work in
different capacities, others assumed a life unknown and
disappeared, and a goodly portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and
the Negros were putting in to Davao, the attorney for the relatives
and friends of a considerable number of the deportees presented an
application forhabeas corpus to a member of the Supreme Court.
Subsequently, the application, through stipulation of the parties, was
made to include all of the women who were sent away from Manila
to Davao and, as the same questions concerned them all, the
application will be considered as including them. The application set
forth the salient facts, which need not be repeated, and alleged that
the women were illegally restrained of their liberty by Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the
city of Manila, and by certain unknown parties. The writ was made
returnable before the full court. The city fiscal appeared for the
respondents, Lukban and Hohmann, admitted certain facts relative
to sequestration and deportation, and prayed that the writ should not
be granted because the petitioners were not proper parties,
because the action should have been begun in the Court of First
Instance for Davao, Department of Mindanao and Sulu, because the
respondents did not have any of the women under their custody or
control, and because their jurisdiction did not extend beyond the
boundaries of the city of Manila. According to an exhibit attached to
the answer of the fiscal, the 170 women were destined to be
laborers, at good salaries, on the haciendas of Yñigo and Governor
Sales. In open court, the fiscal admitted, in answer to question of a
member of the court, that these women had been sent out of Manila
without their consent. The court awarded the writ, in an order of
November 4, that directed Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, Francisco
Sales, governor of the province of Davao, and Feliciano Yñigo,
an hacendero of Davao, to bring before the court the persons
therein named, alleged to be deprived of their liberty, on December
2, 1918.
Before the date mentioned, seven of the women had returned to
Manila at their own expense. On motion of counsel for petitioners,
their testimony was taken before the clerk of the Supreme Court
sitting as commissioners. On the day named in the order, December
2nd, 1918, none of the persons in whose behalf the writ was issued
were produced in court by the respondents. It has been shown that
three of those who had been able to come back to Manila through
their own efforts, were notified by the police and the secret service
to appear before the court. The fiscal appeared, repeated the facts
more comprehensively, reiterated the stand taken by him when
pleading to the original petition copied a telegram from the Mayor of
the city of Manila to the provincial governor of Davao and the answer
thereto, and telegrams that had passed between the Director of
Labor and the attorney for that Bureau then in Davao, and offered
certain affidavits showing that the women were contained with their
life in Mindanao and did not wish to return to Manila. Respondents
Sales answered alleging that it was not possible to fulfill the order of
the Supreme Court because the women had never been under his
control, because they were at liberty in the Province of Davao, and
because they had married or signed contracts as laborers.
Respondent Yñigo answered alleging that he did not have any of
the women under his control and that therefore it was impossible for
him to obey the mandate. The court, after due deliberation, on
December 10, 1918, promulgated a second order, which related that
the respondents had not complied with the original order to the
satisfaction of the court nor explained their failure to do so, and
therefore directed that those of the women not in Manila be brought
before the court by respondents Lukban, Hohmann, Sales, and
Yñigo on January 13, 1919, unless the women should, in written
statements voluntarily made before the judge of first instance of
Davao or the clerk of that court, renounce the right, or unless the
respondents should demonstrate some other legal motives that
made compliance impossible. It was further stated that the question
of whether the respondents were in contempt of court would later be
decided and the reasons for the order announced in the final
decision.
Before January 13, 1919, further testimony including that of a
number of the women, of certain detectives and policemen, and of
the provincial governor of Davao, was taken before the clerk of the
Supreme Court sitting as commissioner and the clerk of the Court
of First Instance of Davao acting in the same capacity. On January
13, 1919, the respondents technically presented before the Court
the women who had returned to the city through their own efforts
and eight others who had been brought to Manila by the
respondents. Attorneys for the respondents, by their returns, once
again recounted the facts and further endeavored to account for all
of the persons involved in the habeas corpus. In substance, it was
stated that the respondents, through their representatives and
agents, had succeeded in bringing from Davao with their consent
eight women; that eighty-one women were found in Davao who, on
notice that if they desired they could return to Manila, transportation
fee, renounced the right through sworn statements; that fifty-nine
had already returned to Manila by other means, and that despite all
efforts to find them twenty-six could not be located. Both counsel for
petitioners and the city fiscal were permitted to submit memoranda.
The first formally asked the court to find Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of Manila,
Jose Rodriguez and Fernando Ordax, members of the police force
of the city of Manila, Feliciano Yñigo, an hacendero of Davao,
Modesto Joaquin, the attorney for the Bureau of Labor, and
Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The
city fiscal requested that the replica al memorandum de los
recurridos, (reply to respondents' memorandum) dated January 25,
1919, be struck from the record.
In the second order, the court promised to give the reasons for
granting the writ of habeas corpus in the final decision. We will now
proceed to do so.
One fact, and one fact only, need be recalled — these one hundred
and seventy women were isolated from society, and then at night,
without their consent and without any opportunity to consult with
friends or to defend their rights, were forcibly hustled on board
steamers for transportation to regions unknown. Despite the feeble
attempt to prove that the women left voluntarily and gladly, that such
was not the case is shown by the mere fact that the presence of the
police and the constabulary was deemed necessary and that these
officers of the law chose the shades of night to cloak their secret
and stealthy acts. Indeed, this is a fact impossible to refute and
practically admitted by the respondents.
With this situation, a court would next expect to resolve the
question — By authority of what law did the Mayor and the Chief of
Police presume to act in deporting by duress these persons from
Manila to another distant locality within the Philippine Islands? We
turn to the statutes and we find —
Alien prostitutes can be expelled from the Philippine Islands in
conformity with an Act of congress. The Governor-General can
order the eviction of undesirable aliens after a hearing from the
Islands. Act No. 519 of the Philippine Commission and section 733
of the Revised Ordinances of the city of Manila provide for the
conviction and punishment by a court of justice of any person who
is a common prostitute. Act No. 899 authorizes the return of any
citizen of the United States, who may have been convicted of
vagrancy, to the homeland. New York and other States have
statutes providing for the commitment to the House of Refuge of
women convicted of being common prostitutes. Always a law! Even
when the health authorities compel vaccination, or establish a
quarantine, or place a leprous person in the Culion leper colony, it
is done pursuant to some law or order. But one can search in vain
for any law, order, or regulation, which even hints at the right of the
127
Mayor of the city of Manila or the chief of police of that city to force
citizens of the Philippine Islands — and these women despite their
being in a sense lepers of society are nevertheless not chattels but
Philippine citizens protected by the same constitutional guaranties
as are other citizens — to change their domicile from Manila to
another locality. On the contrary, Philippine penal law specifically
punishes any public officer who, not being expressly authorized by
law or regulation, compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile
is deemed so important as to be found in the Bill of Rights of the
Constitution. Under the American constitutional system, liberty of
abode is a principle so deeply imbedded in jurisprudence and
considered so elementary in nature as not even to require a
constitutional sanction. Even the Governor-General of the Philippine
Islands, even the President of the United States, who has often been
said to exercise more power than any king or potentate, has no such
arbitrary prerogative, either inherent or express. Much less,
therefore, has the executive of a municipality, who acts within a
sphere of delegated powers. If the mayor and the chief of police
could, at their mere behest or even for the most praiseworthy of
motives, render the liberty of the citizen so insecure, then the
presidents and chiefs of police of one thousand other municipalities
of the Philippines have the same privilege. If these officials can take
to themselves such power, then any other official can do the same.
And if any official can exercise the power, then all persons would
have just as much right to do so. And if a prostitute could be sent
against her wishes and under no law from one locality to another
within the country, then officialdom can hold the same club over the
head of any citizen.
Law defines power. Centuries ago Magna Charta decreed
that — "No freeman shall be taken, or imprisoned, or be disseized
of his freehold, or liberties, or free customs, or be outlawed, or
exiled, or any other wise destroyed; nor will we pass upon him nor
condemn him, but by lawful judgment of his peers or by the law of
the land. We will sell to no man, we will not deny or defer to any man
either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29;
1 eng. stat. at Large, 7.) No official, no matter how high, is above
the law. The courts are the forum which functionate to safeguard
individual liberty and to punish official transgressors. "The law," said
Justice Miller, delivering the opinion of the Supreme Court of the
United States, "is the only supreme power in our system of
government, and every man who by accepting office participates in
its functions is only the more strongly bound to submit to that
supremacy, and to observe the limitations which it imposes upon the
exercise of the authority which it gives." (U.S. vs. Lee [1882], 106
U.S., 196, 220.) "The very idea," said Justice Matthews of the same
high tribunal in another case, "that one man may be compelled to
hold his life, or the means of living, or any material right essential to
the enjoyment of life, at the mere will of another, seems to be
intolerable in any country where freedom prevails, as being the
essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S.,
356, 370.) All this explains the motive in issuing the writ of habeas
corpus, and makes clear why we said in the very beginning that the
primary question was whether the courts should permit a
government of men or a government of laws to be established in the
Philippine Islands.
What are the remedies of the unhappy victims of official oppression?
The remedies of the citizen are three: (1) Civil action; (2) criminal
action, and (3) habeas corpus.
The first is an optional but rather slow process by which the
aggrieved party may recoup money damages. It may still rest with
the parties in interest to pursue such an action, but it was never
intended effectively and promptly to meet any such situation as that
now before us.
As to criminal responsibility, it is true that the Penal Code in force in
these Islands provides:
Any public officer not thereunto authorized by law or by
regulations of a general character in force in the Philippines who
shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the
judgment of a court, shall be punished by a fine of not less than
three hundred and twenty-five and not more than three thousand
two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or
by regulation of a general character in force in the Philippines
who shall compel any person to change his domicile or
residence shall suffer the penalty of destierro and a fine of not
less than six hundred and twenty-five and not more than six
thousand two hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper
prosecuting officers find that any public officer has violated this
provision of law, these prosecutors will institute and press a criminal
prosecution just as vigorously as they have defended the same
official in this action. Nevertheless, that the act may be a crime and
that the persons guilty thereof can be proceeded against, is no bar
to the instant proceedings. To quote the words of Judge Cooley in
a case which will later be referred to — "It would be a monstrous
anomaly in the law if to an application by one unlawfully confined, ta
be restored to his liberty, it could be a sufficient answer that the
confinement was a crime, and therefore might be continued
indefinitely until the guilty party was tried and punished therefor by
the slow process of criminal procedure." (In the matter of Jackson
[1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised
and exists as a speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient defense of
personal freedom. Any further rights of the parties are left untouched
by decision on the writ, whose principal purpose is to set the
individual at liberty.
Granted that habeas corpus is the proper remedy, respondents
have raised three specific objections to its issuance in this instance.
The fiscal has argued (l) that there is a defect in parties petitioners,
(2) that the Supreme Court should not a assume jurisdiction, and (3)
that the person in question are not restrained of their liberty by
respondents. It was finally suggested that the jurisdiction of the
Mayor and the chief of police of the city of Manila only extends to
the city limits and that perforce they could not bring the women from
Davao.
The first defense was not presented with any vigor by counsel. The
petitioners were relatives and friends of the deportees. The way the
expulsion was conducted by the city officials made it impossible for
the women to sign a petition for habeas corpus. It was consequently
proper for the writ to be submitted by persons in their behalf. (Code
of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.)
The law, in its zealous regard for personal liberty, even makes it the
duty of a court or judge to grant a writ of habeas corpus if there is
evidence that within the court's jurisdiction a person is unjustly
imprisoned or restrained of his liberty, though no application be
made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners
had standing in court.
The fiscal next contended that the writ should have been asked for
in the Court of First Instance of Davao or should have been made
returnable before that court. It is a general rule of good practice that,
to avoid unnecessary expense and inconvenience, petitions
for habeas corpus should be presented to the nearest judge of the
court of first instance. But this is not a hard and fast rule. The writ
of habeas corpus may be granted by the Supreme Court or any
judge thereof enforcible anywhere in the Philippine Islands. (Code
of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.)
Whether the writ shall be made returnable before the Supreme
Court or before an inferior court rests in the discretion of the
Supreme Court and is dependent on the particular circumstances.
In this instance it was not shown that the Court of First Instance of
Davao was in session, or that the women had any means by which
to advance their plea before that court. On the other hand, it was
shown that the petitioners with their attorneys, and the two original
respondents with their attorney, were in Manila; it was shown that
the case involved parties situated in different parts of the Islands; it
was shown that the women might still be imprisoned or restrained
of their liberty; and it was shown that if the writ was to accomplish
its purpose, it must be taken cognizance of and decided immediately
by the appellate court. The failure of the superior court to consider
the application and then to grant the writ would have amounted to a
denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult
to meet. When the writ was prayed for, says counsel, the parties in
whose behalf it was asked were under no restraint; the women, it is
claimed, were free in Davao, and the jurisdiction of the mayor and
the chief of police did not extend beyond the city limits. At first blush,
this is a tenable position. On closer examination, acceptance of
such dictum is found to be perversive of the first principles of the
writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is
restraint of liberty. The essential object and purpose of the writ
of habeas corpus is to inquire into all manner of involuntary restraint
128
as distinguished from voluntary, and to relieve a person therefrom if
such restraint is illegal. Any restraint which will preclude freedom of
action is sufficient. The forcible taking of these women from Manila
by officials of that city, who handed them over to other parties, who
deposited them in a distant region, deprived these women of
freedom of locomotion just as effectively as if they had been
imprisoned. Placed in Davao without either money or personal
belongings, they were prevented from exercising the liberty of going
when and where they pleased. The restraint of liberty which began
in Manila continued until the aggrieved parties were returned to
Manila and released or until they freely and truly waived his right.
Consider for a moment what an agreement with such a defense
would mean. The chief executive of any municipality in the
Philippines could forcibly and illegally take a private citizen and
place him beyond the boundaries of the municipality, and then,
when called upon to defend his official action, could calmly fold his
hands and claim that the person was under no restraint and that he,
the official, had no jurisdiction over this other municipality. We
believe the true principle should be that, if the respondent is within
the jurisdiction of the court and has it in his power to obey the order
of the court and thus to undo the wrong that he has inflicted, he
should be compelled to do so. Even if the party to whom the writ is
addressed has illegally parted with the custody of a person before
the application for the writ is no reason why the writ should not issue.
If the mayor and the chief of police, acting under no authority of law,
could deport these women from the city of Manila to Davao, the
same officials must necessarily have the same means to return
them from Davao to Manila. The respondents, within the reach of
process, may not be permitted to restrain a fellow citizen of her
liberty by forcing her to change her domicile and to avow the act with
impunity in the courts, while the person who has lost her birthright
of liberty has no effective recourse. The great writ of liberty may not
thus be easily evaded.
It must be that some such question has heretofore been presented
to the courts for decision. Nevertheless, strange as it may seem, a
close examination of the authorities fails to reveal any analogous
case. Certain decisions of respectable courts are however very
persuasive in nature.
A question came before the Supreme Court of the State of Michigan
at an early date as to whether or not a writ ofhabeas corpus would
issue from the Supreme Court to a person within the jurisdiction of
the State to bring into the State a minor child under guardianship in
the State, who has been and continues to be detained in another
State. The membership of the Michigan Supreme Court at this time
was notable. It was composed of Martin, chief justice, and Cooley,
Campbell, and Christiancy, justices. On the question presented the
court was equally divided. Campbell, J., with whom concurred
Martin, C. J., held that the writ should be quashed. Cooley, J., one
of the most distinguished American judges and law-writers, with
whom concurred Christiancy, J., held that the writ should issue.
Since the opinion of Justice Campbell was predicated to a large
extent on his conception of the English decisions, and since, as will
hereafter appear, the English courts have taken a contrary view,
only the following eloquent passages from the opinion of Justice
Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this
court to issue the present writ on the petition which was laid
before us. . . .
It would be strange indeed if, at this late day, after the eulogiums
of six centuries and a half have been expended upon the Magna
Charta, and rivers of blood shed for its establishment; after its
many confirmations, until Coke could declare in his speech on
the petition of right that "Magna Charta was such a fellow that
he will have no sovereign," and after the extension of its benefits
and securities by the petition of right, bill of rights and habeas
corpus acts, it should now be discovered that evasion of that
great clause for the protection of personal liberty, which is the
life and soul of the whole instrument, is so easy as is claimed
here. If it is so, it is important that it be determined without delay,
that the legislature may apply the proper remedy, as I can not
doubt they would, on the subject being brought to their notice. .
..
The second proposition — that the statutory provisions are
confined to the case of imprisonment within the state — seems
to me to be based upon a misconception as to the source of our
jurisdiction. It was never the case in England that the court of
king's bench derived its jurisdiction to issue and enforce this writ
from the statute. Statutes were not passed to give the right, but
to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of
procedure upon this writ is, that it is directed to and served upon,
not the person confined, but his jailor. It does not reach the
former except through the latter. The officer or person who
serves it does not unbar the prison doors, and set the prisoner
free, but the court relieves him by compelling the oppressor to
release his constraint. The whole force of the writ is spent upon
the respondent, and if he fails to obey it, the means to be
resorted to for the purposes of compulsion are fine and
imprisonment. This is the ordinary mode of affording relief, and
if any other means are resorted to, they are only auxiliary to
those which are usual. The place of confinement is, therefore,
not important to the relief, if the guilty party is within reach of
process, so that by the power of the court he can be compelled
to release his grasp. The difficulty of affording redress is not
increased by the confinement being beyond the limits of the
state, except as greater distance may affect it. The important
question is, where the power of control exercised? And I am
aware of no other remedy. (In the matter of Jackson [1867], 15
Mich., 416.)
The opinion of Judge Cooley has since been accepted as
authoritative by other courts. (Rivers vs. Mitchell [1881], 57 Iowa,
193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex
parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject.
Thus, a child had been taken out of English by the respondent. A
writ of habeas corpus was issued by the Queen's Bench Division
upon the application of the mother and her husband directing the
defendant to produce the child. The judge at chambers gave
defendant until a certain date to produce the child, but he did not do
so. His return stated that the child before the issuance of the writ
had been handed over by him to another; that it was no longer in his
custody or control, and that it was impossible for him to obey the
writ. He was found in contempt of court. On appeal, the court,
through Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued
on January 22. That writ commanded the defendant to have the
body of the child before a judge in chambers at the Royal Courts
of Justice immediately after the receipt of the writ, together with
the cause of her being taken and detained. That is a command
to bring the child before the judge and must be obeyed, unless
some lawful reason can be shown to excuse the nonproduction
of the child. If it could be shown that by reason of his having
lawfully parted with the possession of the child before the issuing
of the writ, the defendant had no longer power to produce the
child, that might be an answer; but in the absence of any lawful
reason he is bound to produce the child, and, if he does not, he
is in contempt of the Court for not obeying the writ without lawful
excuse. Many efforts have been made in argument to shift the
question of contempt to some anterior period for the purpose of
showing that what was done at some time prior to the writ cannot
be a contempt. But the question is not as to what was done
before the issue of the writ. The question is whether there has
been a contempt in disobeying the writ it was issued by not
producing the child in obedience to its commands. (The
Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the
same effect the Irish case of In re Matthews, 12 Ir. Com. Law
Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case
[1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest.
A habeas corpus was directed to the defendant to have before the
circuit court of the District of Columbia three colored persons, with
the cause of their detention. Davis, in his return to the writ, stated
on oath that he had purchased the negroes as slaves in the city of
Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus,
and that they were then beyond his control and out of his custody.
The evidence tended to show that Davis had removed the negroes
because he suspected they would apply for a writ of habeas corpus.
The court held the return to be evasive and insufficient, and that
Davis was bound to produce the negroes, and Davis being present
in court, and refusing to produce them, ordered that he be
committed to the custody of the marshall until he should produce
the negroes, or be otherwise discharged in due course of law. The
court afterwards ordered that Davis be released upon the production
of two of the negroes, for one of the negroes had run away and been
lodged in jail in Maryland. Davis produced the two negroes on the
129
last day of the term. (United States vs. Davis [1839], 5 Cranch C.C.,
622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111
U.S., 624; Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the
defense offered by the respondents constituted a legitimate bar to
the granting of the writ of habeas corpus.
There remains to be considered whether the respondent complied
with the two orders of the Supreme Court awarding the writ
of habeas corpus, and if it be found that they did not, whether the
contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton
Hohmann, Francisco Sales, and Feliciano Yñigo to present the
persons named in the writ before the court on December 2, 1918.
The order was dated November 4, 1918. The respondents were
thus given ample time, practically one month, to comply with the
writ. As far as the record discloses, the Mayor of the city of Manila
waited until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the
attorney for the Bureau of Labor to the telegram of his chief, there
were then in Davao women who desired to return to Manila, but who
should not be permitted to do so because of having contracted
debts. The half-hearted effort naturally resulted in none of the
parties in question being brought before the court on the day named.
For the respondents to have fulfilled the court's order, three optional
courses were open: (1) They could have produced the bodies of the
persons according to the command of the writ; or (2) they could have
shown by affidavit that on account of sickness or infirmity those
persons could not safely be brought before the court; or (3) they
could have presented affidavits to show that the parties in question
or their attorney waived the right to be present. (Code of Criminal
Procedure, sec. 87.) They did not produce the bodies of the persons
in whose behalf the writ was granted; they did not show impossibility
of performance; and they did not present writings that waived the
right to be present by those interested. Instead a few stereotyped
affidavits purporting to show that the women were contended with
their life in Davao, some of which have since been repudiated by
the signers, were appended to the return. That through ordinary
diligence a considerable number of the women, at least sixty, could
have been brought back to Manila is demonstrated to be found in
the municipality of Davao, and that about this number either
returned at their own expense or were produced at the second
hearing by the respondents.
The court, at the time the return to its first order was made, would
have been warranted summarily in finding the respondents guilty of
contempt of court, and in sending them to jail until they obeyed the
order. Their excuses for the non-production of the persons were far
from sufficient. The, authorities cited herein pertaining to somewhat
similar facts all tend to indicate with what exactitude a habeas
corpus writ must be fulfilled. For example, in Gossage's case, supra,
the Magistrate in referring to an earlier decision of the Court, said:
"We thought that, having brought about that state of things by his
own illegal act, he must take the consequences; and we said that
he was bound to use every effort to get the child back; that he must
do much more than write letters for the purpose; that he must
advertise in America, and even if necessary himself go after the
child, and do everything that mortal man could do in the matter; and
that the court would only accept clear proof of an absolute
impossibility by way of excuse." In other words, the return did not
show that every possible effort to produce the women was made by
the respondents. That the court forebore at this time to take drastic
action was because it did not wish to see presented to the public
gaze the spectacle of a clash between executive officials and the
judiciary, and because it desired to give the respondents another
chance to demonstrate their good faith and to mitigate their wrong.
In response to the second order of the court, the respondents
appear to have become more zealous and to have shown a better
spirit. Agents were dispatched to Mindanao, placards were posted,
the constabulary and the municipal police joined in rounding up the
women, and a steamer with free transportation to Manila was
provided. While charges and counter-charges in such a bitterly
contested case are to be expected, and while a critical reading of
the record might reveal a failure of literal fulfillment with our
mandate, we come to conclude that there is a substantial
compliance with it. Our finding to this effect may be influenced
somewhat by our sincere desire to see this unhappy incident finally
closed. If any wrong is now being perpetrated in Davao, it should
receive an executive investigation. If any particular individual is still
restrained of her liberty, it can be made the object of
separatehabeas corpus proceedings.
Since the writ has already been granted, and since we find a
substantial compliance with it, nothing further in this connection
remains to be done.
The attorney for the petitioners asks that we find in contempt of court
Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, Jose Rodriguez, and Fernando Ordax,
members of the police force of the city of Manila, Modesto Joaquin,
the attorney for the Bureau of Labor, Feliciano Yñigo,
an hacenderoof Davao, and Anacleto Diaz, Fiscal of the city of
Manila.
The power to punish for contempt of court should be exercised on
the preservative and not on the vindictive principle. Only
occasionally should the court invoke its inherent power in order to
retain that respect without which the administration of justice must
falter or fail. Nevertheless when one is commanded to produce a
certain person and does not do so, and does not offer a valid
excuse, a court must, to vindicate its authority, adjudge the
respondent to be guilty of contempt, and must order him either
imprisoned or fined. An officer's failure to produce the body of a
person in obedience to a writ of habeas corpus when he has power
to do so, is a contempt committed in the face of the court. (Ex
parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C.,
407.)
With all the facts and circumstances in mind, and with judicial regard
for human imperfections, we cannot say that any of the
respondents, with the possible exception of the first named, has
flatly disobeyed the court by acting in opposition to its authority.
Respondents Hohmann, Rodriguez, Ordax, and Joaquin only
followed the orders of their chiefs, and while, under the law of public
officers, this does not exonerate them entirely, it is nevertheless a
powerful mitigating circumstance. The hacendero Yñigo appears to
have been drawn into the case through a misconstruction by
counsel of telegraphic communications. The city fiscal, Anacleto
Diaz, would seem to have done no more than to fulfill his duty as
the legal representative of the city government. Finding him
innocent of any disrespect to the court, his counter-motion to strike
from the record the memorandum of attorney for the petitioners,
which brings him into this undesirable position, must be granted.
When all is said and done, as far as this record discloses, the official
who was primarily responsible for the unlawful deportation, who
ordered the police to accomplish the same, who made
arrangements for the steamers and the constabulary, who
conducted the negotiations with the Bureau of Labor, and who later,
as the head of the city government, had it within his power to
facilitate the return of the unfortunate women to Manila, was Justo
Lukban, the Mayor of the city of Manila. His intention to suppress
the social evil was commendable. His methods were unlawful. His
regard for the writ ofhabeas corpus issued by the court was only
tardily and reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of the
Code of Civil Procedure, which relates to the penalty for disobeying
the writ, and in pursuance thereof to require respondent Lukban to
forfeit to the parties aggrieved as much as P400 each, which would
reach to many thousands of pesos, and in addition to deal with him
as for a contempt. Some members of the court are inclined to this
stern view. It would also be possible to find that since respondent
Lukban did comply substantially with the second order of the court,
he has purged his contempt of the first order. Some members of the
court are inclined to this merciful view. Between the two extremes
appears to lie the correct finding. The failure of respondent Lukban
to obey the first mandate of the court tended to belittle and
embarrass the administration of justice to such an extent that his
later activity may be considered only as extenuating his conduct. A
nominal fine will at once command such respect without being
unduly oppressive —such an amount is P100.
In resume — as before stated, no further action on the writ
of habeas corpus is necessary. The respondents Hohmann,
Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in
contempt of court. Respondent Lukban is found in contempt of court
and shall pay into the office of the clerk of the Supreme Court within
five days the sum of one hundred pesos (P100). The motion of the
fiscal of the city of Manila to strike from the record theReplica al
Memorandum de los Recurridos of January 25, 1919, is granted.
Costs shall be taxed against respondents. So ordered.
130
In concluding this tedious and disagreeable task, may we not be
permitted to express the hope that this decision may serve to
bulwark the fortifications of an orderly government of laws and to
protect individual liberty from illegal encroachment.
G.R. No. 170924 July 4, 2007
In the matter of the Petition for Habeas Corpus of CEZARI
GONZALES and JULIUS MESA
ROBERTO RAFAEL PULIDO, petitioner,
vs.
Gen. EFREN ABU, as Chief of Staff of the Armed Forces of the
Philippines and all persons acting in his stead and under his
authority, and GEN. ERNESTO DE LEON, in his capacity as the
Flag Officer in Command of the Philippine Navy, and all
persons acting in his stead and under his
authority, respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Review under Rule 45 of the Rules of
Court assailing the Decision1 of the Court of Appeals in CA-G.R. SP
No. 90546 which dismissed the Petition for Habeas Corpus filed by
petitioner Roberto Rafael Pulido (Pulido) in behalf of Cezari
Gonzales and Julius Mesa, and imposed on petitioner the penalty
of censure, and its Resolution2 dated 6 January 2006 denying his
motion for reconsideration.
The facts are not disputed.
At around one o’clock in the morning of 27 July 2003, three hundred
twenty-one (321) junior officers and enlisted personnel of the Armed
Forces of the Philippines (AFP) entered and took over the premises
of the Oakwood Premiere Luxury Apartments (Oakwood) located at
the Glorietta Complex, Ayala Avenue, Makati City. They disarmed
the security guards of said establishment and planted explosives in
its immediate surroundings.
The soldiers publicly announced that they went to Oakwood to air
their grievances against the administration of President Gloria
Macapagal Arroyo (President Arroyo). They declared their
withdrawal of support from the Commander-in-Chief of the AFP –
President Arroyo – and demanded her resignation and that of the
members of her cabinet and top officers of both the AFP and the
Philippine National Police (PNP).
At about one o’clock in the afternoon, President Arroyo issued
Proclamation No. 427 declaring the country to be under a "state of
rebellion." Consequently, she issued General Order No. 4 directing
the AFP and the PNP to carry out all reasonable measures, giving
due regard to constitutional rights, to suppress and quell the
"rebellion."
After a series of negotiations between the soldiers and the
government negotiators, the former agreed to return to barracks,
thus ending the occupation of Oakwood.
Among those involved in the occupation of Oakwood were Cezari
Gonzales and Julius Mesa, both enlisted personnel of the Philippine
Navy. It is in their behalf that the Petition for Habeas Corpus was
filed before the Court of Appeals.
On 2 August 2003, then AFP Chief of Staff Narciso L. Abaya issued
a directive3 to all Major Service Commanders and to the Chief of the
Intelligence Service of the Armed Forces of the Philippines (ISAFP)
regarding the Custody of Military Personnel Involved in the 27 July
2003 Mutiny. On the strength thereof, Gonzales and Mesa were
taken into custody by their Service Commander.
Gonzales and Mesa were not charged before a court martial with
violation of the Articles of War. They were, however, among the
soldiers charged before Branch 61 of the Regional Trial Court (RTC)
of Makati City, with the crime of Coup D’etat as defined under Article
134-A of the Revised Penal Code. Said case entitled, "People v.
Capt. Milo D. Maestrecampo, et al." was docketed as Criminal Case
No. 03-2784. On 18 November 2003, a Commitment Order was
issued by the RTC committing custody of the persons of Gonzales
and Mesa to the Commanding Officer of Fort San Felipe Naval
Base, Cavite City.4
On 8 December 2003, Gonzales and Mesa were discharged 5 from
military service.
On 16 December 2003, per order of the RTC, Criminal Case No. 03-
2784 was consolidated with Criminal Case No. 03-2678 entitled,
"People v. Ramon B. Cardenas" pending before Branch 148 of the
RTC of Makati City, on the ground that the cases are founded on
the same facts and/or formed part of a series of offenses of similar
character.6
In a Manifestation and Motion dated 3 March 2004, Commodore
Normando Naval, Commander of Naval Base Cavite, asked the
Makati RTC, Branch 148, to relieve him of his duty as custodian of
Gonzales and Mesa and that the latter be transferred to the Makati
City Jail.7 In an Order dated 29 April 2004, the RTC relieved him of
his duty but ordered the transfer of Gonzales and Mesa from the
Naval Base Cavite in Sangley Point, Cavite City, to the Philippine
Marine Brigade Headquarters, Philippine Marine, Fort Bonifacio,
Taguig, Metro Manila, under the custody of the Commander of the
Marine Brigade of the Philippine Marines, Fort Bonifacio, Taguig,
Metro Manila.8
In an Order dated 8 July 2004, the RTC resolved the petitions for
bail filed by the accused-soldiers. It admitted Gonzales and Mesa,
and twenty-five other co-accused to bail pegging the amount thereof
at P100,000.00 each.9
On 19 July 2004, both Gonzales and Mesa posted bail. 10 On 20 July
2004, the RTC issued orders directing the Commanding Officer of
Philippine Marine Corps, Fort Bonifacio, Makati City, to release
Gonzales and Mesa from his custody.11 Despite said orders and
their service to the marines, Gonzales and Mesa were not released.
On 21 July 2004, the People of the Philippines moved for partial
reconsideration12 of the order granting bail. Prior to the resolution of
said motion, Jovencito R. Zuño, Chief State Prosecutor, advised
Brig. Gen. Manuel F. Llena, Judge Advocate General, to defer
action on the provisional release of Gonzales and Mesa "until the
Motion for Reconsideration shall have been resolved and attained
finality."13 On 26 October 2004, the RTC denied the motion for
partial reconsideration.
With the denial of the Motion for Partial Reconsideration, the People
filed with the Court of Appeals on 4 February 2005 a special civil
action for certiorari under Rule 65 of the Rules of Court with urgent
prayer for Temporary Restraining Order (TRO) and/or Writ of
Preliminary Injunction, asking for the nullification and setting aside
of the orders dated 8 July 2004 and 26 October 2004 of Judge Oscar
B. Pimentel for having been issued without jurisdiction and/or grave
abuse of discretion amounting to lack or excess of jurisdiction. The
Petition for Certiorari was raffled to the Seventh Division and was
docketed as CA-G.R. SP No. 88440 entitled, "People of the
Philippines v. Hon. Oscar B. Pimentel, Presiding Judge of the
Regional Trial Court of Makati City, Branch 148." The Court of
Appeals (Seventh Division) did not issue a TRO and/or preliminary
injunction.
Since Gonzales and Mesa continued to be in detention, a Petition
for Habeas Corpus14 was filed by petitioner Pulido on their behalf on
22 July 2005. The case was docketed as CA-G.R. SP No. 90546
and raffled to the Third Division. In support thereof, it was argued
that since Gonzales and Mesa are no longer subject to Military Law
as they had been discharged from the service on 8 December 2003,
and since they are not charged before a court martial, the military
authorities have no jurisdiction to detain them, and there is no legal
ground to detain them further because a court order for their release
had already been issued.
On 10 August 2005, the Court of Appeals (3rd Division) issued a Writ
of Habeas Corpus directing respondents Gen. Efren Abu, Chief of
Staff of the Armed Forces of the Philippines, and all persons acting
in his stead and under his authority, and Gen. Ernesto de Leon, Flag
Officer in Command of the Philippine Navy, and all persons acting
in his stead and under his authority, to produce the bodies of
Gonzales and Mesa before the Court and to appear and show the
cause and validity of their detention.15
On 18 August 2005, a return of the Writ of Habeas Corpus was
made.16 Respondents prayed that the Petition forHabeas Corpus be
dismissed primarily on two grounds: (1) the continued detention of
Gonzales and Mesa is justified because of the pendency of the
Petition for Certiorari questioning the order dated 8 July 2004 of the
RTC granting bail to Gonzales and Mesa before the 7th Division of
131
the Court of Appeals, docketed as CA-G.R. SP No. 88440; and (2)
petitioner is guilty of forum shopping because of his failure to state
in the petition that the order granting bail has been elevated to the
Court of Appeals and pending before its 7th Division.
On 9 September 2005, the Court of Appeals (7th Division) rendered
its decision in CA-G.R. SP No. 88440 dismissing the petition that
questioned the propriety of the granting of bail to Gonzales, Mesa,
and twenty-five of their co-accused.17
On 12 September 2005, the Court of Appeals (3rd Division)
dismissed the Petition for Habeas Corpus for violation of Section 5,
Rule 7 of the Rules of Court. It ratiocinated:
A reading of the parties’ submissions reveals a threshold issue
– the charge of forum shopping and the related falsity in the
certification supporting the petition. We must initially resolve
these issues because a finding that the petitioner violated
Section 5, Rule 7 of the Rules of Court can lead to the outright
dismissal of the present petition. x x x
xxxx
The records show that the present petition contained the
following certificate of non-forum shopping:
"I, ROBERTO RAFAEL PULIDO, with office address at Unit
1601, 16th Floor 139 Corporate Center Valero Street, Makati
City, after having been duly sworn in accordance with law, do
hereby state that:
1. I am the petitioner in the above-captioned case;
2. I have read the Petition and caused it to be prepared. All
the contents thereof are true to my own personal knowledge
and the record;
3. I have not heretofore commenced any action or proceeding
involving the same issues, in the Supreme Court, the Court of
Appeals, or any other tribunal or agency and to the best of my
knowledge, no action or proceeding is pending in the
Supreme Court, the Court of Appeals, or any other tribunal or
agency; except for the related cases of "Eugene Gonzales et
al. vs. Gen. Narciso Abaya, et al., G.R. No. 164007 and
"Humabono Adaza et al., vs. Gen. Pedro Cabuay et al., G.R.
No. 160792, both awaiting the resolution of the Supreme
Court.
5. (sic, should be 4) If I should learn of any similar action or
proceeding filed or is pending in the Supreme Court, the Court
of Appeals, or any other tribunal or agency, I undertake to
report such fact within five (5) days therefrom to this Court.
The present petition and its accompanying certification likewise
show that the petitioner never mentioned the pendency before
the Seventh Division of this Court of the certiorari case, SP
88440, for the annulment of the lower court’s order granting the
soldiers-accused’s petition for bail, when this same lower court
order is cited as basis for the immediate release of Gonzales
and Mesa in the present petition. All that the certification
mentioned were the related cases pending before the Honorable
Supreme Court. Neither did the petitioner comply with his
undertaking under his certification to inform this Court within five
(5) days of the pendency of any similar action or proceeding filed
or is pending in the Supreme Court, the Court of Appeals, or any
other tribunal or agency, as in fact the certiorari case was
already pending with this Court when the present petition was
filed. The certiorari case was only brought to our attention after
the respondents filed their Return of the Writ.
To be sure, the petitioner, who is also the counsel for the
accused Gonzales and Mesa in the criminal case before Branch
148 RTC Makati City and who represents Gonzales and Mesa
as private respondents in CA-G.R. SP No. 88440, cannot feign
ignorance of the pendency of the certiorari case. Why he
deliberately kept the pendency of the certiorari case hidden from
us, has not been sufficiently explained. We have no doubt,
however, that his deliberate act of withholding information on a
material fact directly required to be disclosed by the Rules of
Court cannot but have legal consequences.
The primary basis of the present petition is the bail granted to
and posted by Gonzales and Mesa. This is very clear from the
petitioner’s argument that "The continued detention of the
enlisted personnel constitutes violation of the lawful orders of the
civilian court." He cited in support of this argument the grant and
the posting of the bail, and the issuance of the release orders by
the lower court. He did not disclose, however, what
subsequently happened to the order granting bail. He
deliberately omitted in his narration the fact that the People
moved to reconsider this order. Thus, he gave the impression
that the order granting bail immediately became enforceable and
that Gonzales’ and Mesa’s continued detention is illegal
because their constitutional rights to bail, which have received
judicial imprimatur, were continuously being violated by the
respondents.
The petitioner next omitted the fact that after the denial of its
motion for reconsideration of the order granting bail, the People
filed the certiorari case before this Court, seeking to annul the
lower court’s order. While we are aware of the rule that – the
mere pendency of a petition for certiorari will not prevent the
implementation of the assailed order unless the court where the
petition was filed issues either a temporary restraining order or
a writ or preliminary injunction – the filing of a petition for habeas
corpus while the order granting bail is being questioned on a
petition for certiorari raises issues beyond the immediate
execution of the lower court’s bail and release orders. They raise
questions on the propriety of filing the habeas corpus petition to
seek the release of persons under detention, at the same time
that a petition regarding their continued detention and release
are pending. Apparently, the petitioner wanted to avoid these
questions, prompting him to actively conceal the subsequent
motion for reconsideration of the bail order and the petition for
certiorari directly questioning this same order. In short, the
petitioner conveniently omitted in his narration of facts the
material factual antecedents detrimental to his cause; he
chose to narrate only the factual antecedents favorable to
his cause.
That the present petition has direct and intimate links with the
certiorari case is beyond doubt as they involve two sides of the
same coin. The certiorari case filed by the People seeks to
prevent the release of Gonzales and Mesa by annulling the
lower court’s grant of bail. The present petition, on the other
hand, was filed in behalf of Gonzales and Mesa to secure their
immediate release because the order granting bail is already
executory. In effect, the petitioner seeks to implement through a
petition for habeas corpus the provisional release from detention
that the lower court has ordered. The question this immediately
raises is: can this be done through a petition for habeas corpus
when the validity of the grant of bail and the release under bail
are live questions before another Division of this Court?
We believe and so hold that his cannot and should not be done
as this is precisely the reason why the rule against forum
shopping has been put in place. The remedies sought being two
sides of the same coin (i.e., the release of Gonzales and Mesa),
they cannot be secured through separately-filed cases where
issues of jurisdiction may arise and whose rulings may conflict
with one another. To be sure, we clearly heard the petitioner say
that there can be no conflict because the effectiveness of our
ruling in this petition will depend on the nature and tenor of the
ruling in the certiorari case; there is no basis for a release on
habeas corpus if this same Court will rule in the certiorari case
that the grant of bail is improper. For this very same reason, we
should not entertain the present petition as the matter before us
is already before another co-equal body whose ruling will be
finally determinative of the issue of Gonzales’ and Mesa’s
release. The Decision of the Seventh Division of this Court,
heretofore footnoted, ordering the release on bail of Gonzales
and Mesa drives home this point.
To be strictly accurate, the issues of detention and immediate
release that are now before the two Divisions of this Court are
likewise properly within the jurisdiction of the lower court who
has original jurisdiction over the criminal case and who has
issued the order granting bail in the exercise of this jurisdiction.
If indeed there is a question relating to the immediate release of
Gonzales and Mesa pursuant to the lower court’s order pending
the determination of the certiorari issues, such question should
be brought before the lower court as the tribunal that has
ordered the release, or before the Seventh Division of this Court
in the exercise of its supervisory powers over the lower court.
The Decision recently promulgated by the Seventh Division of
132
 this Court ordering the release on bail of the soldiers-accused
effectively demonstrates this point.
The inter-relationships among the criminal case below, the
certiorari case and the present petition, as well as among the
courts where these cases are pending, show beyond doubt that
the petitioner committed forum shopping in the strict sense of
that term i.e., the attempt by a party, after an adverse opinion in
one forum, to seek a favorable opinion in another forum other
that through an appeal or certiorari. The "adverse" aspect for the
petitioner, while not an opinion, is no less adverse as he has
failed to secure the release of Gonzales and Mesa before the
lower court and before this Court in the certiorari case (as of the
time of the filing of the present petition); thus, he came to us in
the present petition. That the Seventh Division of this Court has
ordered the release on bail of the soldiers-accused, thus
rendering the present petition moot and academic after the
finality of the 7th Division Decision, plainly demonstrates this
legal reality.18
The Court further imposed on petitioner the penalty of censure for
the aforesaid violation. The dispositive portion of the decision reads:
WHEREFORE, premises considered, we hereby DISMISS the
petition for violation of and pursuant to Section 5 Rule 7 of the
Rules of Court. The petitioner, Atty. Roberto Rafael Pulido, is
hereby CENSURED for these violations. Let a copy of this
Decision be furnished the Honorable Supreme Court, to be
attached to the petitioner’s record as a member of the Bar, as
a RECORD OF CENSURE that may be referred to and
considered in any future similar act.19
On 5 September 2005, petitioner filed a Motion for
Reconsideration20 which the Court of Appeals (Special Former Third
Division) denied in its resolution21 dated 6 January 2006.
Petitioner is now before us raising the following issues:
WHETHER OR NOT THE HONORABLE COURT OF APPEALS
ERRED IN DISMISSING THE PETITION FOR HABEAS
CORPUS ON THE GROUND OF FORUM SHOPPING.
A. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN NOT CONSIDERING THE NATURE
OF THE ACTION AND LIMITED ITSELF TO THE ISSUE OF
FORUM SHOPPING.
B. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN IMPOSING UPON PETITIONER THE
PENALTY OF CENSURE.
C. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN NOT PASSING UPON THE
EXISTENCE OR ABSENCE OF VALID GROUNDS TO
DETAIN JULIUS MESA AND CEZARI GONZALES.
Petitioner prays that the assailed decision and resolution of the
Court of Appeals be reversed and set aside, and an order be issued
ordering respondents to immediately release Gonzales and Mesa.
He further prays that the censure against him be also reversed and
set aside.
Before respondents could comment on the petition, petitioner filed,
with leave of court, a Motion to Withdraw the Prayer for the
Immediate Release of Julius Mesa and Cezari
Gonzales.22 Petitioner informed the Court that the Commanding
General of the Philippine Marines had ordered the release of
Gonzales and Mesa and surrendered their persons to the RTC of
Makati City, Branch 148. Thus, Mesa and Gonzales are now
enjoying temporary liberty by virtue of the release orders dated 20
July 2004 issued by the RTC. Petitioner asks that the prayer for the
immediate release of Gonzales and Mesa be dismissed but asks
that the other prayers in the petition be granted.
In its comment, the Solicitor General stressed that the habeas
corpus petition has been rendered moot and academic by reason of
the release of Mesa and Gonzales from detention and, in the
absence of an actual case or controversy, it is impractical to
consider and resolve issues involving the validity or legality of their
detention, including the alleged refusal of the Court of Appeals to
resolve said issues.
When the release of the persons in whose behalf the application for
a Writ of Habeas Corpus was filed is effected, the Petition for the
issuance of the writ becomes moot and academic. 23 With the
release of both Mesa and Gonzales, the Petition for Habeas
Corpus has, indeed, been rendered moot. Courts of justice
constituted to pass upon substantial rights will not consider
questions where no actual interests are involved. Thus, the well-
settled rule that courts will not determine a moot question. Where
the issues have become moot and academic, there ceases to be
any justiciable controversy, thus rendering the resolution of the
same of no practical value.24 This Court will therefore abstain from
expressing its opinion in a case where no legal relief is needed or
called for.25
The only remaining issues to be resolved are: (1) Is petitioner guilty
of forum shopping? (2) Should petitioner be penalized when he
failed to inform the 3rd Division of the Court of Appeals of the
pendency of the Petition forCertiorari filed by respondents before
the 7th Division of the same court which asked for the annulment of
the RTC’s order granting Gonzales and Mesa’s petition for bail?
To support his contention that there was no forum shopping,
petitioner asserts that the issues in the petitions
forcertiorari and habeas corpus are not similar/identical. As to his
non-disclosure of respondents’ filing of the motion for
reconsideration and the Petition for Certiorari, petitioner claims that
the same has no legal relevance to the Petition for Habeas
Corpus because at the time he filed said petition, the order granting
bail subsisted and has not been reversed or modified; and no TRO
or injunction has been issued that would affect the efficacy or validity
of the order granting the bail and the order directing the release of
Mesa and Gonzales.
For filing a Petition for Habeas Corpus despite the pendency of the
Petition for Certiorari that questioned the validity of the order
granting bail, which order is precisely the very basis of the Petition
for Habeas Corpus, petitioner is guilty of forum shopping.
It has been held that forum shopping is the act of a party against
whom an adverse judgment has been rendered in one forum, of
seeking another (and possibly favorable) opinion in another forum
(other than by appeal or the special civil action of certiorari), or the
institution of two or more actions or proceedings grounded on the
same cause on the supposition that one or the other court would
make a favorable disposition. Thus, it has been held that there is
forum shopping — (1) when, as a result of an adverse decision in
one forum, a party seeks a favorable decision (other than by appeal
or certiorari) in another; OR (2) if, after he has filed a petition before
the Supreme Court, a party files a motion before the Court of
Appeals, since in such a case, he deliberately splits appeals in the
hope that even in one case in which a particular allowable remedy
sought for is dismissed, another case (offering a similar remedy)
would still be open; OR (3) where a party attempts to obtain a
preliminary injunction in another court after failing to obtain the same
from the original court.26
The Court has laid down the yardstick to determine whether a party
violated the rule against forum shopping, as where the elements
of litis pendentia are present or where a final judgment in one case
will amount to res judicatain the other. Stated differently, there must
be between the two cases: (a) identity of parties; (b) identity of rights
asserted and reliefs prayed for, the relief being founded on the same
facts; and (c) the identity of the two preceding particulars is such
that any judgment rendered in the other action will, regardless of
which party is successful, amount to res judicata in the action under
consideration.27
As lucidly explained by the Court of Appeals, the ultimate relief
sought by petitioner in both the certiorari andhabeas corpus cases
is the release of Gonzales and Mesa. Petitioner should not have
filed the Petition forHabeas Corpus because the relief he is seeking
therein is the same relief he is asking for in the certiorari case.
Moreover, the main issue in both cases boils down to whether
Gonzales and Mesa should be released on bail. Because of the
presence of the elements of litis pendentia -- parties, reliefs and
issue are substantially the same/similar in the two cases; and any
decision in the certiorari case will be binding on the habeas corpus
case – petitioner is thus guilty of forum shopping.
For his failure to inform the Court of Appeals of the pendency of the
certiorari case, petitioner clearly violated his obligation to disclose
within five days the pendency of the same or a similar action or claim
as mandated in Section 5(c), Rule 728 of the Rules of Court.
133
WHEREFORE, premises considered, the Decision of the Court of
Appeals in CA-G.R. SP No. 90546 dated 12 September 2005
is AFFIRMED. Costs against the petitioner.
SO ORDERED.
G.R. No. 169482 January 29, 2008
IN THE MATTER OF THE PETITION OF HABEAS CORPUS OF
EUFEMIA E. RODRIGUEZ, filed by EDGARDO E.
VELUZ, petitioner,
vs.
LUISA R. VILLANUEVA and TERESITA R.
PABELLO, respondents.
DECISION
CORONA, J.:
This is a petition for review1 of the resolutions2 dated February 2,
2005 and September 2, 2005 of the Court of Appeals 3 in CA-G.R.
SP No. 88180 denying the petition for habeas corpus of Eufemia E.
Rodriguez, filed by petitioner Edgardo Veluz, as well as his motion
for reconsideration, respectively.
Eufemia E. Rodriguez was a 94-year old widow, allegedly suffering
from a poor state of mental health and deteriorating cognitive
abilities.4 She was living with petitioner, her nephew, since 2000. He
acted as her guardian.
In the morning of January 11, 2005, respondents Luisa R.
Villanueva and Teresita R. Pabello took Eufemia from petitioner
Veluz’ house. He made repeated demands for the return of Eufemia
but these proved futile. Claiming that respondents were restraining
Eufemia of her liberty, he filed a petition for habeas corpus5 in the
Court of Appeals on January 13, 2005.
The Court of Appeals ruled that petitioner failed to present any
convincing proof that respondents (the legally adopted children of
Eufemia) were unlawfully restraining their mother of her liberty. He
also failed to establish his legal right to the custody of Eufemia as
he was not her legal guardian. Thus, in a resolution dated February
2, 2005,6 the Court of Appeals denied his petition.
Petitioner moved for reconsideration but it was also denied. 7 Hence,
this petition.
Petitioner claims that, in determining whether or not a writ of habeas
corpus should issue, a court should limit itself to determining
whether or not a person is unlawfully being deprived of liberty. There
is no need to consider legal custody or custodial rights. The writ
of habeas corpus is available not only if the rightful custody of a
person is being withheld from the person entitled thereto but also if
the person who disappears or is illegally being detained is of legal
age and is not under guardianship. Thus, a writ of habeas
corpus can cover persons who are not under the legal custody of
another. According to petitioner, as long as it is alleged that a person
is being illegally deprived of liberty, the writ of habeas corpus may
issue so that his physical body may be brought before the court that
will determine whether or not there is in fact an unlawful deprivation
of liberty.
In their comment, respondents state that they are the legally
adopted daughters of Eufemia and her deceased spouse, Maximo
Rodriguez. Prior to their adoption, respondent Luisa was Eufemia’s
half-sister8 while respondent Teresita was Eufemia’s niece and
petitioner’s sister.9
Respondents point out that it was petitioner and his family who were
staying with Eufemia, not the other way around as petitioner
claimed. Eufemia paid for the rent of the house, the utilities and
other household needs.
Sometime in the 1980s, petitioner was appointed as the
"encargado" or administrator of the properties of Eufemia as well as
those left by the deceased Maximo. As such, he took charge of
collecting payments from tenants and transacted business with third
persons for and in behalf of Eufemia and the respondents who were
the only compulsory heirs of the late Maximo.
In the latter part of 2002, Eufemia and the respondents demanded
an inventory and return of the properties entrusted to petitioner.
These demands were unheeded. Hence, Eufemia and the
respondents were compelled to file a complaint for estafa against
petitioner in the Regional Trial Court of Quezon City. Consequently,
and by reason of their mother’s deteriorating health, respondents
decided to take custody of Eufemia on January 11, 2005. The latter
willingly went with them. In view of all this, petitioner failed to prove
either his right to the custody of Eufemia or the illegality of
respondents’ action.
We rule for the respondents.
The writ of habeas corpus extends to all cases of illegal confinement
or detention by which any person is deprived of his liberty or by
which the rightful custody of a person is being withheld from the one
entitled thereto.10 It is issued when one is either deprived of liberty
or is wrongfully being prevented from exercising legal custody over
another person.11 Thus, it contemplates two instances: (1)
deprivation of a person’s liberty either through illegal confinement or
through detention and (2) withholding of the custody of any person
from someone entitled to such custody.
In this case, the issue is not whether the custody of Eufemia is being
rightfully withheld from petitioner but whether Eufemia is being
restrained of her liberty. Significantly, although petitioner admits that
he did not have legal custody of Eufemia, he nonetheless insists
that respondents themselves have no right to her custody. Thus, for
him, the issue of legal custody is irrelevant. What is important is
Eufemia’s personal freedom.
Fundamentally, in order to justify the grant of the writ of habeas
corpus, the restraint of liberty must be in the nature of an illegal and
involuntary deprivation of freedom of action. 12
In general, the purpose of the writ of habeas corpus is
to determine whether or not a particular person is
legally held. A prime specification of an application for a
writ of habeas corpus, in fact, is an actual and effective,
and not merely nominal or moral, illegal restraint of liberty.
"The writ of habeas corpuswas devised and exists as a
speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient
defense of personal freedom. A prime specification of an
application for a writ ofhabeas corpus is restraint of liberty.
The essential object and purpose of the writ of habeas
corpus is to inquire into all manner of involuntary restraint
as distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal. Any restraint which will
preclude freedom of action is sufficient."13(emphasis
supplied)
In passing upon a petition for habeas corpus, a court or judge must
first inquire into whether the petitioner is being restrained of his
liberty.14 If he is not, the writ will be refused. Inquiry into the cause
of detention will proceed only where such restraint exists. 15 If the
alleged cause is thereafter found to be unlawful, then the writ should
be granted and the petitioner discharged. 16 Needless to state, if
otherwise, again the writ will be refused.
While habeas corpus is a writ of right, it will not issue as a matter of
course or as a mere perfunctory operation on the filing of the
petition.17 Judicial discretion is called for in its issuance and it must
be clear to the judge to whom the petition is presented that, prima
facie, the petitioner is entitled to the writ. 18 It is only if the court is
satisfied that a person is being unlawfully restrained of his liberty will
the petition for habeas corpus be granted.19 If the respondents are
not detaining or restraining the applicant or the person in whose
behalf the petition is filed, the petition should be dismissed. 20
In this case, the Court of Appeals made an inquiry into whether
Eufemia was being restrained of her liberty. It found that she was
not:
There is no proof that Eufemia is being detained and
restrained of her liberty by respondents. Nothing on
record reveals that she was forcibly taken by
respondents. On the contrary, respondents, being
134
 Eufemia’s adopted children, are taking care of
her.21 (emphasis supplied) We disagree with the OSG insofar as it argues that the petition

should be dismissed for failure to comply with Section 3, Rule 102

The Court finds no cogent or compelling reason to disturb this
finding.22
of the Rules of Court. Strict compliance with the technical

WHEREFORE, the petition is hereby DENIED. requirements for a habeas corpus petition as provided in the Rules

of Court may be dispensed with where the allegations in the

Costs against petitioner.
application are sufficient to make out a case for habeas corpus.
SO ORDERED.
In Angeles v. Director of New Bilibid Prison,[3] we held that the

formalities required for petitions for habeas corpus shall be

MARTIN GIBBS FLETCHER, UDK-14071
Petitioner, construed liberally. The petition for the writ is required to be verified
P
resent: but the defect in form is not fatal.[4] Indeed, in the landmark case

of Villavicencio v. Lukban,[5] this Court declared that it is the duty of

PUNO, C.J., Chairperson,
CARPIO,
a court to issue the writ if there is evidence that a person is unjustly
- v e r s u s - CORONA,
LEONARDO-DE CASTRO and
restrained of his liberty within its jurisdiction even if there is no
BERSAMIN, JJ.
application therefor. So long as this Court sits, technicality cannot
THE DIRECTOR OF BUREAU
OF CORRECTIONS or his trump liberty. Therefore, a petition which is deficient in form, such
representative,
Respondent. Promulgated: as petitioners petition-letter in this case, may be entertained so long
July
17, as its allegations sufficiently make out a case for habeas corpus.[6]
200
9
The ultimate purpose of the writ of habeas corpus is to relieve a
x---------------------------------------------------
x person from unlawful restraint.[7] The writ exists as a speedy and

effectual remedy to relieve persons from unlawful restraint and as

RESOLUTION
CORONA, J.: an effective defense of personal freedom.[8]

Where the restraint of liberty is allegedly authored by the State, the

Petitioner Martin Gibbs Fletcher seeks his release from prison in this
very entity tasked to ensure the liberty of all persons (citizens and
petition for the issuance of the writ of habeas corpus. He claims that
aliens alike) within its jurisdiction, courts must be vigilant in
his prison sentence of 12 to 17 years was commuted by then
extending the habeas corpus remedy to one who invokes it. To
President Fidel V. Ramos to nine to 12 years. Since he had already
strictly restrict the great writ of liberty to technicalities not only
served 14 years, three months and 12 days, including his good
defeats the spirit that animates the writ but also waters down the
conduct allowance, his continued imprisonment is illegal. [1]
precious right that the writ seeks to protect, the right to liberty. To

In its return to the writ, the Office of the Solicitor General (OSG) dilute the remedy that guarantees protection to the right is to negate

posited that the petition should be denied for failure to comply with the right itself. Thus, the Court will not unduly confine the writ

Section 3, Rule 102 of the Rules of Court. In particular, the petition of habeas corpus in the prison walls of technicality. Otherwise, it will

was neither signed nor verified by petitioner or a person on his betray its constitutional mandate to promulgate rules concerning the

behalf or by his purported counsel. Moreover, it was not protection and enforcement of constitutional rights.[9]

accompanied by a copy of the cause of petitioners detention or

Nonetheless, we agree with the OSG that petitioner is not
commitment order.
entitled to the issuance of the writ.

The OSG further opposed the issuance of the writ on the following

grounds: petitioners prison sentence was never commuted by then The writ of habeas corpus extends to all cases of illegal confinement

President Ramos; he had not been granted the status of a colonist; or detention by which any person is deprived of his

there were other pending cases against him warranting his liberty.[10] However, Section 4, Rule 102 of the Rules of Court

continued detention[2] and he was put under custody by virtue of a provides:

judicial process or a valid judgment. Sec. 4. When writ not allowed or discharge
authorized. If it appears that the person to be
restrained of his liberty is in the custody of
an officer under process issued by a court or
135
 judge; or by virtue of a judgment or order of
a court of record, and that court or judge had presented no proof of such commutation. Other than indorsements
jurisdiction to issue the process, render the
judgment, or make the order, the writ shall by the Chief Justice,[20] Public Attorneys Office[21] and
not be allowed; or if the jurisdiction appears
after the writ is allowed, the person shall not be Undersecretary of the Department of Justice,[22] no document
discharged by reason of any informality or defect
in the process, judgment, or order. Nor shall purporting to be the commutation of his sentence by then President
anything in this rule be held to authorize the
discharge of a person charged with or Ramos was attached in his petition and in his subsequent missives
convicted of an offense in the Philippines, or of
a person suffering imprisonment under lawful to this Court. His barren claim of commutation therefore deserves
judgment. (emphasis supplied)
scant consideration, lest we be accused of usurping the Presidents

sole prerogative to commute petitioners sentence in Criminal Case

Plainly stated, the writ obtains immediate relief for those No. 95-995.[23]

who have been illegally confined or imprisoned without sufficient

Having established that petitioners continued
cause. The writ, however, should not be issued when the custody
imprisonment is by virtue of a valid judgment and court process, we
over the person is by virtue of a judicial process or a valid
see no need to discuss petitioners other arguments.
judgment.[11]

It is undisputed that petitioner was convicted of estafa in

Criminal Case No. 95-995.[12] On June 24, 1996, he was sentenced WHEREFORE, the petition is hereby DISMISSED.

to imprisonment of 12 years of prision mayor as minimum to 17

SO ORDERED.
years and four months of reclusion temporal as maximum, with

payment of actual damages of P102,235.56.[13] NURHIDA JUHURI G.R. No. 182497

AMPATUAN,
Petitioner,
Based on petitioners prison records, [14] he began serving
Present:
his sentence on July 24, 1997. He claims that after having served
- versus - CORONA, C.J.,
good conduct time allowance for 14 years, three months and 12 Chairperson,
VELASCO, JR.,
days,[15] he should now be released from prison. LEONARDO-DE
CASTRO,
JUDGE VIRGILIO V. DEL CASTILLO, and
We disagree. MACARAIG, REGIONAL PEREZ, JJ.
TRIAL COURT, MANILA,
BRANCH 37, DIRECTOR
A convict may be released on parole after serving the GENERAL AVELINO
RAZON, JR., DIRECTOR
minimum period of his sentence. However, the pendency of another GEARY BARIAS, PSSUPT.
CO YEE M. CO, JR. and
criminal case is a ground for the disqualification of such convict from POLICE CHIEF INSPECTOR
AGAPITO QUIMSON, Promulgated:
being released on parole.[16] Unfortunately, petitioner is again on Respondents.
June 29, 2010
trial in Criminal Case No. 94-6988 for estafa.[17] The case was filed x------------------------------------------------
- - - - - - - - - - - -x
as early as 1996 but he was arraigned only on October 6, 2008. He

pleaded not guilty to the charge against him. Pre-trial was set on DECISION

January 26, 2009.[18] Clearly, he is disqualified from being released

PEREZ, J.:
on parole and consequently must serve out the entirety of his

sentence.
We note the issuance of a warrant for petitioners arrest on
March 8, 1996, the date he was first set for arraignment in Criminal
Case No. 94-6988. Pursuant to Section 4, Rule 102 of the Rules of
Court, the writ cannot be issued and petitioner cannot be discharged
[19]
since he has been charged with another criminal offense.
continued detention is without doubt warranted under the
circumstances.
Petitioner asserts that his sentence in Criminal Case No.
Before this Court is a Petition for Certiorari under Rule
[1]
65 of the Rules of Court assailing the Order dated 25 April 2008 of
the Regional Trial Court (RTC) of Manila, Branch 37, in Special
Proceeding No. 08-119132 which denied the petition for Habeas
Corpus filed by herein Petitioner Nurhida Juhuri Ampatuan in behalf
of her husband Police Officer 1 Basser B. Ampatuan[2] (PO1
His Ampatuan).
Petitioner alleged in her petition that her husband PO1
Ampatuan was assigned at Sultan Kudarat Municipal Police
Station. On 14 April 2008, he was asked by his Chief of Police to

95-995 was commuted by then President Ramos. However, he report to the Provincial Director of Shariff Kabunsuan,
Superintendent Esmael Pua Ali (Supt. Ali). The latter brought PO1

136
 Memorandum Circular 93-024, committed as
Ampatuan to Superintendent Piang Adam, Provincial Director of the
follows:
Philippine National Police (PNP) Maguindanao. PO1 Ampatuan
was directed to stay at the Police Provincial Office of Maguindanao That on or about 7:08 in the evening of
November 10, 2007, in M.H. Del Pilar and Pedro
without being informed of the cause of his restraint. The next day, Gil St., Ermita, Manila, above-named
15 April 2008, PO1 Ampatuan was brought to respondent while being an active member of
the PNPand within the jurisdiction of this office,
the General Santos City Airport and was made to board a Philippine armed with a cal .45 pistol, with intent to kill, did
Airlines plane bound for Manila. Upon landing at then and there willfully, unlawfully and
feloniously, shot Atty. Alioden D. Dalaig, Jr.,
the Manila Domestic Airport, PO1 Ampatuan was turned over to COMELEC official on the different parts of his
policemen of Manila and brought to Manila Mayor Alfredo Lim by body, thereby inflicting upon the latter mortal
gunshot wounds which directly cause (sic) his
Police Director Geary Barias and General Roberto Rosales. A press death.
briefing was then conducted where it was announced that PO1
Acts contrary to the existing PNP Laws rules
Ampatuan was arrested for the killing of two Commission on and Regulations.[7]
Elections (COMELEC) Officials. He was then detained at the Police
Jail in United Nations Avenue, Manila. Thereafter, PO1 Ampatuan
Also, through a Memorandum dated 18 April 2008, Police
was brought to inquest Prosecutor Renato Gonzaga of the Office of
Director General Avelino I. Razon, Jr. directed the Regional Director
the City Prosecutor of Manila due to the alleged murder of Atty.
of the National Capital Regional Police Office (NCRPO) to place
Alioden D. Dalaig, head of the Law Department of the
PO1 Ampatuan under restrictive custody, thus:
COMELEC.On 20 April 2008, PO1 Ampatuan was turned-over to
the Regional Headquarters Support Group 1. Reference: Memo from that
in Camp Bagong Diwa, Taguig City. [3] Office dated April 15, 2008 re
Arrest of PO1 Busser Ampatuan,
suspect in the killing of Atty.
Petitioner continues that on 21 April 2008, Chief Inquest Alioden Dalaig and Atty. Wynee
Asdala, both COMELEC Legal
Prosecutor Nelson Salva ordered the release for further
Officers.
investigation of PO1 Ampatuan.[4] The Order was approved by the
2. This pertains to the power of
City Prosecutor of Manila. But Police Senior Superintendent Co Yee
the Chief, PNP embodied in
Co, Jr., and Police Chief Inspector Agapito Quimson refused to Section 52 of RA 8551, to place
release PO1 Ampatuan. police personnel under restrictive
custody during the pendency of a
grave administrative case filed
This prompted Petitioner to file the petition for writ against him or even after the filing
of a criminal complaint, grave in
of habeas corpus in the RTC of Manila, Branch 37.[5] nature, against such police
personnel.

Private respondents had another version of the 3. In this connection, you are
antecedent facts. They narrated that at around 7:08 oclock in the hereby directed to place PO1
Busser Ampatuan, suspect in the
evening of 10 November 2007, a sixty-four-year-old man, later killing of Atty. Alioden Dalaig and
identified as Atty. Alioden D. Dalaig, Head of the COMELEC Legal Atty. Wynee Asdala, both
COMELEC Legal Officers, under
Department, was killed at the corner of M. H. Del Pilar and Pedro your restrictive custody.
Gil Streets, Ermita, Manila.Investigation conducted by the Manila
4. For strict compliance.[8]
Police District (MPD) Homicide Section yielded the identity of the
male perpetrator as PO1 Ampatuan. Consequently, PO1 Ampatuan
was commanded to the MPD District Director for proper On 19 April 2008, through a Memorandum Request
disposition. Likewise, inquest proceedings were conducted by the dated 18 April 2008, respondent Police Director Geary L. Barias
Manila Prosecutors Office. requested for the creation of the Summary Hearing Board to hear
the case of PO1 Ampatuan.[9]
On 18 April 2008, Police Senior Superintendent Atty.
Clarence V. Guinto, rendered his Pre-Charge Evaluation Report On 20 April 2008, Special Order No. 921 was issued by
against PO1 Ampatuan, finding probable cause to charge PO1 Police Director Edgardo E. Acua, placing PO1 Ampatuan under
Ampatuan with Grave Misconduct (Murder) and recommending that restrictive custody of the Regional Director, NCRPO, effective 19
said PO1 Ampatuan be subjected to summary hearing. April 2008. Said Special Order No. 921, reads:

Restrictiv
On even date, a charge sheet for Grave Misconduct was
e Custody
executed against PO1 Ampatuan, the accusatory portion of which
PO1 Basser B. Ampatuan 128677, is
reads:
placed under restrictive custody of the Regional
Director, NCRPO effective April 19, 2008.
CHARGE SHEET (Reference: Memorandum from CPNP dated 18
April 2008).
THE UNDERSIGNED NOMINAL
COMPLAINANT hereby charges above-named BY COMMAND OF POLICE
respondent of the administrative offense of DIRECTOR GENERAL RAZON:[10]
Grave Misconduct (murder) pursuant to Section
52 of R.A. 8551[6] in relation to NAPOLCOM

137
 Lastly, anent the contention of the
Meanwhile, on 21 April 2008, the City Prosecutor of
petitioner that the letter resignation of PO1
Manila recommended that the case against PO1 Ampatuan be set Ampatuan has rendered the administrative case
for further investigation and that the latter be released from custody moot and academic, the same could not be
accepted by this Court. It must be stressed that
unless he is being held for other charges/legal grounds. [11] the resignation has not been acted (sic) by the
appropriate police officials of the PNP, and that
the administrative case was filed while PO1
Armed with the 21 April 2008 recommendation of Ampatuan is still in the active status of the PNP.
the Manila Citys Prosecution Office, petitioner, who is the wife of
WHEREFORE, premises considered,
PO1 Ampatuan, filed a Petition for the Issuance of a Writ of Habeas the petition for habeas corpus is hereby
Corpus before the RTC of Manila on 22 April 2008. The petition was DISMISSED.[13]
docketed as Special Proceeding No. 08-119132 and was raffled to
Branch 37. Distressed, petitioner is now before this Court via a
On 24 April 2008, finding the petition to be sufficient in Petition for Certiorari under Rule 65 of the Rules of Court to
form and substance, respondent Judge Virgilio V. Macaraig ordered question the validity of the RTC Order dated 25 April 2008. The
the issuance of a writ of habeas corpuscommanding therein issues are:
respondents to produce the body of PO1 Ampatuan and directing
said respondents to show cause why they are withholding or I. THE RESPONDENT
restraining the liberty of PO1 Ampatuan.[12] COURT GRAVELY ABUSED ITS
DISCRETION WHEN IT FAILED TO
CONSIDER THAT THE
On 25 April 2008, the RTC resolved the Petition in its ARREST AND DETENTION OF PO1
BASSER B. AMPATUAN WAS MADE
Order which reads: WITHOUT ANY
WARRANT AND THEREFORE,
Essentially, counsels for petitioner ILLEGAL;
insists that PO1 Basser Ampatuan is being
illegally detained by the respondents despite the II. THE RESPONDENT
order of release of Chief Inquest Prosecutor COURT GRAVELY ABUSED ITS
Nelson Salva dated April 21, 2008. They further DISCRETION WHEN IT CONCEDED
claim that as of April 23, 2008, no administrative THE AUTHORITY OF RESPONDENT
case was filed against PO1 Ampatuan. AVELINO RAZON, JR. UNDERSEC.
52, PAR. 4, R.A. 8551 TO PLACE
Respondents, while admitting that to AMPATUAN UNDER RESTRICTIVE
date no criminal case was filed against PO1 CUSTODY FOR ADMINISTRATIVE
Ampatuan, assert that the latter is under PROCEEDINGS;
restrictive custody since he is facing an
administrative case for grave misconduct. They III. THE RESPONDENT
submitted to this Court the Pre-charge COURT GRAVELY ABUSED ITS
Evaluation Report and Charge Sheet. Further, in DISCRETION WHEN IT SHIRKED
support of their position, respondents cited the FROM ITS JUDICIAL DUTY TO
case of SPO2 Manalo, et al. v. Hon. Calderon, ORDER THE RELEASE OF PO1
G.R. No. 178920 claiming that habeas AMPATUAN FROM THE CUSTODY
corpus will not lie for a PNP personnel under OF RESPONDENTS MAMANG
restrictive custody. They claim that this is PULIS.[14]
authorized under Section 52, Par. 4 of R.A. 8551
authorizing the Chief of PNP to place
the PNP personnel under restrictive custody
during the pendency of administrative case for Essentially, a writ of habeas corpus applies to all cases of
grave misconduct. illegal confinement or detention by which any person is deprived of
Petitioner countered that the his liberty.[15]
administrative case filed against PO1 Ampatuan
was ante-dated to make it appear that there was
such a case filed before April 23, 2008.
Rule 102 of the 1997 Rules of Court sets forth the
The function of habeas corpus is to procedure to be followed in the issuance of the writ. The Rule
determine the legality of ones detention,
meaning, if there is sufficient cause for provides:
deprivation or confinement and if there is none
to discharge him at once. For habeas corpus to
issue, the restraint of liberty must be in the RULE 102
nature of illegal and involuntary deprivation of
freedom which must be actual and effective, not HABEAS CORPUS
nominal or moral.
SECTION 1. To what habeas corpus
Granting arguendo that the extends. Except as otherwise expressly
administrative case was ante-dated, the Court provided by law, the writ of habeas corpus shall
cannot simply ignore the filing of an extend to all cases of illegal confinement or
administrative case filed against PO1 detention by which any person is deprived of his
Ampatuan. It cannot be denied that the PNP has liberty, or by which the rightful custody of any
its own administrative disciplinary mechanism person is withheld from the person entitled
and as clearly pointed out by the respondents, thereto.
the Chief PNP is authorized to place PO1
Ampatuan under restrictive custody pursuant to SEC 2. Who may grant the writ. The
Section 52, Par. 4 of R.A. 8551. writ of habeas corpus may be granted by the
Supreme Court, or any member thereof, on any
The filing of the administrative case day and at any time, or by the Court of Appeals
against PO1 Ampatuan is a process done by or any member thereof in the instances
the PNP and this Court has no authority to order authorized by law, and if so granted it shall be
the release of the subject police officer. enforceable anywhere in the Philippines, and
138
 may be made returnable before the court or any
member thereof, or before a Court of First
Instance, or any judge thereof for hearing and
decision on the merits. It may also be granted by
a Court of First Instance, or a judge thereof, on
any day and at any time, and returnable before
himself, enforceable only within his judicial
district.
xxxx
SEC. 4. When writ not allowed or
discharge authorized. If it appears that the
person alleged to be restrained of his liberty is in
the custody of an officer under process issued
by a court or judge or by virtue of a judgment or
order of a court of record, and that the court or
judge had jurisdiction to issue the process,
render the judgment, or make the order, the writ
shall not be allowed; or if the jurisdiction appears
after the writ is allowed, the person shall not be
discharged by reason of any informality or defect
in the process, judgment, or order. Nor shall
anything in this rule be held to authorize the
discharge of a person charged with or convicted
of an offense in the Philippines, or of a person
suffering imprisonment under lawful judgment.
The objective of the writ is to determine whether the
confinement or detention is valid or lawful. If it is, the writ cannot be
issued. What is to be inquired into is the legality of a person's
detention as of, at the earliest, the filing of the application for the writ
of habeas corpus, for even if the detention is at its inception illegal,
it may, by reason of some supervening events, such as the
instances mentioned in Section 4 of Rule 102, be no longer illegal
at the time of the filing of the application. [16]
Plainly stated, the writ obtains immediate relief for those
who have been illegally confined or imprisoned without sufficient
cause. The writ, however, should not be issued when the custody
over the person is by virtue of a judicial process or a valid
judgment.[17]
The most basic criterion for the issuance of the writ,
therefore, is that the individual seeking such relief is illegally
deprived of his freedom of movement or placed under some form of
illegal restraint. If an individuals liberty is restrained via some legal
process, the writ of habeas corpus is unavailing.[18] Fundamentally,
in order to justify the grant of the writ of habeas corpus, the restraint
of liberty must be in the nature of an illegal and involuntary
deprivation of freedom of action.[19]
In general, the purpose of the writ of habeas corpus is to
determine whether or not a particular person is legally held. A prime
specification of an application for a writ ofhabeas corpus, in fact, is
an actual and effective, and not merely nominal or moral, illegal
restraint of liberty. The writ of habeas corpus was devised and
exists as a speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient defense of
personal freedom. A prime specification of an application for a writ
of habeas corpus is restraint of liberty. The essential object and
purpose of the writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to relieve
a person therefrom if such restraint is illegal. Any restraint which will
[20]
preclude freedom of action is sufficient.
In passing upon a petition for habeas corpus, a court or
judge must first inquire into whether the petitioner is being restrained
of his liberty. If he is not, the writ will be refused. Inquiry into the
cause of detention will proceed only where such restraint exists. If
the alleged cause is thereafter found to be unlawful, then the writ
should be granted and the petitioner discharged. Needless to state,
if otherwise, again the writ will be refused. [21]
While habeas corpus is a writ of right, it will not issue as a
matter of course or as a mere perfunctory operation on the filing of
the petition. Judicial discretion is called for in its issuance and it must
be clear to the judge to whom the petition is presented that, prima
facie, the petitioner is entitled to the writ. It is only if the court is
satisfied that a person is being unlawfully restrained of his liberty will
the petition for habeas corpus be granted. If the respondents are not
detaining or restraining the applicant or the person in whose behalf
the petition is filed, the petition should be dismissed. [22]
Petitioner contends that when PO1 Ampatuan was placed
under the custody of respondents on 20 April 2008, there was yet
no administrative case filed against him. When the release order of
Chief Inquest Prosecutor Nelson Salva was served upon
respondents on 21 April 2008, there was still no administrative case
filed against PO1 Ampatuan.She also argues that the arrest on 14
April 2008 of PO1 Ampatuan in Shariff Kabunsuan was illegal
because there was no warrant of arrest issued by any judicial
authority against him.
On the other hand, respondents, in their Comment[23] filed
by the Office of the Solicitor General, argue that the trial court
correctly denied the subject petition.Respondents maintain that
while the Office of the City Prosecutor of Manila had recommended
that PO1 Ampatuan be released from custody, said
recommendation was made only insofar as the criminal action for
murder that was filed with the prosecution office is concerned and
is without prejudice to other legal grounds for which he may be held
under custody. In the instant case, PO1 Ampatuan is also facing
administrative charges for Grave Misconduct. They cited the case
of Manalo v. Calderon,[24] where this Court held that a petition
for habeas corpus will be given due course only if it shows that
petitioner is being detained or restrained of his liberty unlawfully, but
a restrictive custody and monitoring of movements or whereabouts
of police officers under investigation by their superiors is not a form
of illegal detention or restraint of liberty. [25]
The Solicitor General is correct.
In this case, PO1 Ampatuan has been placed under
Restrictive Custody. Republic Act No. 6975 (also known as the
Department of Interior and Local Government Act of 1990), as
amended by Republic Act No. 8551 (also known as the Philippine
National Police Reform and Reorganization Act of 1998), clearly
provides that members of the police force are subject to the
administrative disciplinary machinery of the PNP. Section 41(b) of
139

the said law enumerates the disciplinary actions, including
restrictive custodythat may be imposed by duly designated
supervisors and equivalent officers of the PNP as a matter of
internal discipline. The pertinent provision of Republic Act No. 8551
reads:
Sec. 52 x x x.
xxxx
4. The Chief of the PNP shall have the power to
impose the disciplinary punishment of dismissal
from the service; suspension or forfeiture of
salary; or any combination thereof for a period
not exceeding one hundred eighty (180)
days. Provided, further, That the Chief of
the PNP shall have the authority to place
police personnel under restrictive custody
during the pendency of a grave
administrative case filed against him or even
after the filing of a criminal complaint, grave
in nature, against such police
personnel. [Emphasis ours].
Given that PO1 Ampatuan has been placed under
restrictive custody, such constitutes a valid argument for his
continued detention. This Court has held that a restrictive custody
and monitoring of movements or whereabouts of police officers
under investigation by their superiors is not a form of illegal
detention or restraint of liberty.[26]
Restrictive custody is, at best, nominal restraint which is
beyond the ambit of habeas corpus. It is neither actual nor effective
restraint that would call for the grant of the remedy prayed for. It is
a permissible precautionary measure to assure the PNP authorities
that the police officers concerned are always accounted for. [27]
Since the basis of PO1 Ampatuans restrictive custody is
the administrative case filed against him, his remedy is within such
administrative process.
We likewise note that PO1 Ampatuan has been under
restrictive custody since 19 April 2008. To date, the administrative
case against him should have already been resolved and the issue
of his restrictive custody should have been rendered moot and
academic, in accordance with Section 55 of Republic Act No. 8551,
which provides:
SEC. 55. Section 47 of Republic Act No. 6975 is
hereby amended to read as follows:
Sec. 47. Preventive Suspension
Pending Criminal Case. Upon the filing of a
complaint or information sufficient in form and
substance against a member of the PNP for
grave felonies where the penalty imposed by law
is six (6) years and one (1) day or more, the court
shall immediately suspend the accused from
office for a period not exceeding ninety (90) days
from arraignment: Provided, however, That if it
can be shown by evidence that the accused is
harassing the complainant and/or witnesses, the
court may order the preventive suspension of
the accused PNP member even if the charge is
punishable by a penalty lower than six (6) years
and one (1) day: Provided, further, That the
preventive suspension shall not be more than
ninety (90) days except if the delay in the
disposition of the case is due to the fault,
negligence or petitions of the
respondent: Provided, finally, That such
preventive suspension may be sooner lifted by
the court in the exigency of the service upon
recommendation of the Chief, PNP. Such case
shall be subject to continuous trial and shall
be terminated within ninety (90) days from
arraignment of the accused. (Emphasis
supplied.)
Having conceded that there is no grave abuse of
discretion on the part of the trial court, we have to dismiss the
petition.
In sum, petitioner is unable to discharge the burden of
showing that she is entitled to the issuance of the writ prayed for in
behalf of her husband, PO1 Ampatuan. The petition fails to show on
its face that the latter is unlawfully deprived of his liberty guaranteed
and enshrined in the Constitution.
WHEREFORE, premises considered, the instant petition
is DISMISSED for lack of merit.
Costs against petitioner.
SO ORDERED.
G.R. No. 182855 June 5, 2013
MR. ALEXANDER "LEX" ADONIS, represented by the CENTER
FOR MEDIA FREEDOM AND RESPONSIBILITY (CMFR),
through its Executive Director, MRS. MELINDA QUINTOS-DE
JESUS; and the NATIONAL UNION OF JOURNALISTS OF THE
PHILIPPINES (NUJP), through its Chairperson, MR. JOSE
TORRES, JR., Petitioners,
vs.
SUPERENTENDENT VENANCIO TESORO, DIRECTOR, DAVAO
PRISONS AND PENAL FARM, PANABO CITY, DIGOS DAVAO
DEL NORTE, Respondent.
RESOLUTION
REYES, J.:
This is a Petition for the Issuance of the Writ of Habeas
Corpus1 under Rule 102 of the 1997 Rules of Court filed by
petitioner Alexander Adonis (Adonis), praying that the Court directs
respondent Superintendent Venancio Tesoro (respondent), Director
of the Davao Prisons and Penal Farm, to have the body of the
former brought before this Court and in the alternative, praying for
the application of the Supreme Court Administrative Circular No. 08-
2008,2 which imposes the penalty of a fine instead of imprisonment
in Criminal Case No. 48679-2001.3
Antecedent Facts
In Criminal Case No. 48679-2001, Adonis was convicted by the
Regional Trial Court of Davao City (RTC), Branch 17 for Libel, filed
against him by then Representative Prospero Nograles. He was
sentenced to an indeterminate sentence of five (5) months and one
(1) day of arresto mayor maximum, as minimum penalty, to four (4)
years, six (6) months and one (1) day of prision correccional
140
medium, as maximum penalty.4 He began serving his sentence at
the Davao Prisons and Penal Farm on February 20, 2007. 5
A second libel case, docketed as Criminal Case No. 48719-2001
was likewise filed against Adonis by Jeanette L. Leuterio, pending
before the RTC of Davao City, Branch 14.6
On December 11, 2007, the Board of Pardons and Parole (BPP)
issued an order for the Discharge on Parole of seven (7) inmates in
various jails in the country, which included Adonis. The said
document was received by the City Parole and Probation Office of
Davao on May 2, 2008.7
Meanwhile, on January 25, 2008, this Court issued Administrative
Circular No. 08-2008, the subject of which is the "Guidelines in the
Observance of a Rule of Preference in the Imposition of Penalties
in Libel Cases."
In view of these developments, Adonis, on April 18, 2008 filed with
the RTC Branch 17 a Motion to Reopen Case (With Leave of
Court),8 praying for his immediate release from detention and for the
modification of his sentence to payment of fine pursuant to the said
Circular.
On May 26, 2008, in Criminal Case No. 48719-2001 before the RTC
Branch 14, Adonis moved for his provisional release from detention.
The motion was granted by Presiding Judge George Omelio in open
court and he was allowed to post bail in the amount
of P5,000.9 Subsequently on even date and after Adonis filed a cash
bond and an undertaking,10 the trial court issued an Order directing
the Chief of Davao Penal Colony "to release the accused Alexis
Adonis unless he is being held for some other crimes or
offenses."11 On the same date, the said order was served to the
respondent,12 but the release of Adonis was not effected.
On May 30, 2008, Adonis filed the instant petition for the issuance
of a writ of habeas corpus alleging that his liberty was restrained by
the respondent for no valid reason.13
The respondent consequently filed his Comment.14 Adonis then filed
on October 27, 2008 an Urgent Motion to Resolve15 and on
November 7, 2008 a Manifestation and Motion, 16 reiterating all his
previous prayers.
On February 11, 2009, the Court received the letter from the
respondent, informing the Court that Adonis had been released from
confinement on December 23, 2008 after accepting the conditions
set forth in his parole and with the advise to report to the City Parole
and Probation Officer of Davao.17
The Court’s Ruling
The petition is without merit.
The ultimate purpose of the writ of habeas corpus is to relieve a
person from unlawful restraint. The writ exists as a speedy and
effectual remedy to relieve persons from unlawful restraint and as
an effective defense of personal freedom. It is issued only for the
lone purpose of obtaining relief for those illegally confined or
imprisoned without sufficient legal basis. It is not issued when the
person is in custody because of a judicial process or a valid
judgment.18
Section 4, Rule 102 of the Revised Rules of Court provides when a
writ must not be allowed or discharge authorized, to wit:
SEC. 4. When writ not allowed or discharge authorized.― If it
appears that the person alleged to be restrained of his liberty is in
the custody of an officer under process issued by a court or judge
or by virtue of a judgment or order of a court of record, and that the
court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process,
judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an
offense in the Philippines, or of a person suffering imprisonment
under lawful judgment.
In the instant case, Adonis was convicted for libel by the RTC
Branch 17, in Criminal Case No. 48679-2001.1âwphi1Since his
detention was by virtue of a final judgment, he is not entitled to the
Writ of Habeas Corpus. He was serving his sentence when the BPP
granted him parole, along with six (6) others, on December 11,
2007.19 While it is true that a convict may be released from prison
on parole when he had served the minimum period of his sentence;
the pendency of another criminal case, however, is a ground for the
disqualification of such convict from being released on
parole.20 Notably, at the time he was granted the parole, the second
libel case was pending before the RTC Branch 14. 21 In fact, even
when the instant petition was filed, Criminal Case No. 48719-01 was
still pending. The issuance of the writ under such circumstance was,
therefore, proscribed. There was basis for the respondent to deny
his immediate release at that time.
Further, Adonis seeks the retroactive application of Administrative
Circular No. 08-2008, citing Fermin v. People,22 where the Court
preferred the imposition of the fine rather than imprisonment under
the circumstances of the case. Administrative Circular No. 08-2008,
was issued on January 25, 2008 and provides the "guidelines in the
observance of a rule of preference in the imposition of penalties in
libel cases." The pertinent portions read as follows:
All courts and judges concerned should henceforth take note of the
foregoing rule of preference set by the Supreme Court on the matter
of the imposition of penalties for the crime of libel bearing in mind
the following principles:
1. This Administrative Circular does not remove
imprisonment as an alternative penalty for the crime libel
under Article 355 of the Revised Penal Code;
2. The Judges concerned may, in the exercise of sound
discretion, and taking into consideration the peculiar
circumstances of each case, determine whether the
imposition of a fame alone would best serve the interests
of justice or whether forbearing to impose imprisonment
would depreciate the seriousness of the offense, work
violence on the social order, or otherwise be contrary to
the imperative of justice;
3. Should only a fine be imposed and the accused be
unable to pay the fine, there is no legal obstacle to the
application of the Revised Penal Code provision on
subsidiary imprisonment.23 (Emphasis ours)
A clear reading of the Administration Circular No. 08-2008 and
considering the attendant circumstances of the case, the benefits of
the administrative circular can not be given retroactive effect in
Criminal Case No. 48679-2001. It is too late in the day for Adonis to
raise such argument considering that Criminal Case No. 48679-
2001 has already become final and executory; and he had, in fact,
already commenced serving his sentence. Eventually, he was
released from confinement on December 23, 2008 after accepting
the conditions of the parole granted to him.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
WRIT OF HABEAS CORPUS AS POST CONVICTION REMEDY
[G.R. No. 117078. February 22, 1995.]
In the matter of the petition of ALFREDO G. LAMEN and
REYNALDO A. CORTES for the issuance of the writ of habeas
corpus for WILLY BAGAWE y PAGALLA; ALFREDO G. LAMEN
and REYNALDO A. CORTES, Petitioners, v. THE HON.
DIRECTOR, BUREAU OF CORRECTIONS, MUNTINGLUPA,
METRO MANILA, Respondents.
DECISION
DAVIDE, JR., J.:
141
Availing of our decision in People vs. Simon, 1 the petitioners filed ROGELIO V. ARIENDA, petitioner,
the instant petition to secure the release of Willy Bagawe y Pagalla,
who was earlier convicted of the violation of Section 4, Article II of vs.
R.A. No. 6425, 2 as amended, for selling and delivering marijuana
and sentenced to suffer the penalty of life imprisonment and to pay
a fine of P20,000.00. The prohibited drugs involved consist of three SECRETARY OF NATIONAL DEFENSE, and CHIEF, PHIL.
matchboxes containing marijuana flowering tops with a total weight CONSTABULARY, respondents.
of 3.5 grams, one matchbox with a marijuana cigarette butt, and one
brown paper bag containing 10 grams of marijuana flowering tops. G.R. No. L-33973 December 11, 1971
3

In our decision of 7 April 1992, 4 we affirmed in toto the aforesaid LUZVIMINDA DAVID, petitioner,
judgment of the trial court. 5 Our decision became final on 11 May
1992. 6 vs.

Willy Bagawe y Pagalla is presently serving his sentence in the New

Bilibid Prisons in Muntinglupa, Metro Manila. He has been under GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine
incarceration since his arrest on 14 April 1987. Constabulary, COL. N. C. CAMELLO, in his capacity as Chief of
Staff, Philippine Constabulary and HON. JUAN PONCE ENRILE
The petitioners contend that since the gross quantity of the in his capacity as Secretary, Department of National
marijuana involved in this case is only 13.6 grams, then in the light defense, respondents.
of People vs. Simon, the maximum term imposed on Bagawe should
be reduced to two (2) years, four (4) months and one (1) day G.R. No. L-33982 December 11, 1971
of prision correccional; and since he has already served more than
six years, he should be released from imprisonment.
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
NEMESIO E. PRUDENTE FELICIDAD G. PRUDENTE, petitioners,
In its comment, the Office of the Solicitor General agrees with the
petitioners that Simon should apply but disagrees with their
computation of the maximum penalty. It recommends that, following vs.
the penalties imposed by us in Simon and in People vs. Saycon, 7
the proper penalty should be six (6) months of arresto mayor as GENERAL MANUEL YAN, GEN. EDU GARCIA, respondents.
minimum to six (6) years of prision correccional as maximum,
without fine.
G.R. No. L-34004 December 11, 1971
Article 22 of the Revised Penal Code operates to benefit Willy
Bagawe since R.A. No. 7659 is favorable to him and since he is not IN THE MATTER OF THE APPLICATION FOR HABEAS
a habitual crime. CORPUSIN BEHALF OF GERARDO TOMAS, ALSO KNOWN AS
"GERRY TOMAS" AND FOR RETURN OF DOCUMENTS
Following Simon, the penalty which could have been imposed on ILLEGALLY SEIZED. DOMINGO E. DE LARA, in his capacity as
Willy Bagawe under R.A. No. 6425, as further amended by R.A. No. Chairman, Committee on Legal Assistance, Philippine Bar
7659, would have been prision correccional and, after applying the Association,petitioner,
Indeterminate Sentence Law, he would have been sentenced to an
indeterminate penalty ranging from six (6) months of arresto mayor,
as minimum, to four (4) years and two (2) months of prision vs.
correccional, as maximum.
BRIG. GENERAL EDUARDO M. GARCIA, CHIEF, PHILIPPINE
Since the decision in G.R. Nos. 88515-16 had long become final CONSTABULARY, respondent.
and Willy Bagawe is in fact serving his sentence, we cannot alter or
modify the penalty therein imposed. Nevertheless, the writ of
G.R. No. L-34013 December 11, 1971
habeas corpus comes to his rescue since he has undergone
imprisonment for a period more than the maximum imprisonment
which could have been properly imposed on him taking into account REYNALDO RIMANDO, petitioner,
the favorable statute, R.A. No. 7659. In the 1932 case of Directo vs.
Director of Prisons, 8 we ruled:nadchanroblesvirtualawlibrary vs.
In view of the foregoing considerations we are of the opinion and
hold: (1) that Article 22 of the Revised Penal Code which makes BRIG. GEN. EDUARDO M. GARCIA, Chief of the Philippine
penal provisions retroactive so far as they favor the accused, Constabulary, respondent.
provided he is not a habitual criminal, does not authorize a court
whose sentence has become final and executory to make a G.R. No. L-34039 December 11, 1971
substantial amendment, and any amendment made in such
sentence, though it be to give effect to a penal provision favorable
to the accused, would be null and void for lack of jurisdiction; and IN THE MATTER OF THE APPLICATION FOR HABEAS
(2) that the only means of giving retroactive effect to a penal CORPUSIN BEHALF OF SGT. FILOMENO M. DE CASTRO AND
provision favorable to the accused when the trial judge has lost HIS WIFE, MRS. BARCELISA C. DE CASTRO. CARLOS C.
jurisdiction over the case, is the writ of habeas RABAGO, in his capacity as President of the Conference
corpus. nadchanroblesvirtuallawlibrary Delegates Association of the Philippines (CONDA),petitioner,

IN VIEW OF THE FOREGOING, the instant petition is GRANTED vs.

and WILLY BAGAWE y PAGALLA,Accused-Appellant.in G.R. Nos.
88515-16, is hereby ordered RELEASED from detention, unless for
BRIG. GEN. EDUARDO M. GARCIA, Chief, Philippine
any other lawful cause his further confinement is warranted.
Constabulary, respondent.

SUSPENSION OF THE PRIVILEGE

G.R. No. L-34265 December 11, 1971

G.R. No. L-33964 December 11, 1971

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
ANTOLIN ORETA, JR. ANTOLIN ORETA, JR., petitioner,
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
TEODOSIO LANSANG RODOLFO DEL ROSARIO, and BAYANI
vs.
ALCALA, petitioners,
vs.
BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief, GEN. EDUARDO GARCIA and COL. PROSPERO
Philippine Constabulary, respondent. OLIVAS, respondents.

G.R. No. L-33965 December 11, 1971 G.R. No. L-34339 December 11, 1971
142
GARY B. OLIVAR, assisted by his father, GEORGE
OLIVAR, petitioner,
vs.
GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine
Constabulary, et al., respondents.
Ignacio P. Lacsina for petitioners Teodosio Lansang, et al.
Ramon A. Gonzales for petitioner Rogelio V. Arienda.
E. Voltaire Garcia II for petitioner Luzvimindo David.
Verzola, Africa and Atencio, Lorenzo M. Tanada, Wigberto E.
Tañada, Fortunato de Leon, R. G. Suntay and Juan T. David for
petitioner Felicidad G. Prudente.
Ruben L. Roxas for petitioner Reynaldo Rimando.
Nuñez, Acob, Del Rosario and Ramos for petitioner Carlos Rabago,
etc.
E. Voltaire Garcia II and M. P. Vivo for petitioner Gary Olivar, etc.,
et al.
Jose W. Diokno and Juanito R. Remulla for petitioner Antolin Oreta,
Jr.
Domingo E. de Lara for and in his own behalf.
Office of the Solicitor General Felix Q. Antonio and Assistant
Solicitor General Bernardo P. Pardo for respondents.
CONCEPCION, C.J.:
In the evening of August 21, 1971, at about 9 p.m., while the Liberal
Party of the Philippines was holding a public meeting at Plaza
Miranda, Manila, for the presentation of its candidates in the general
elections scheduled for November 8, 1971, two (2) hand grenades
were thrown, one after the other, at the platform where said
candidates and other persons were. As a consequence, eight (8)
persons were killed and many more injured, including practically all
of the aforementioned candidates, some of whom sustained
extensive, as well as serious, injuries which could have been fatal
had it not been for the timely medical assistance given to them.
On August 23, soon after noontime, the President of the Philippines
announced the issuance of Proclamation No. 889, dated August 21,
1971, reading as follows:
WHEREAS, on the basis of carefully evaluated
information, it is definitely established that
lawless elements in the country, which are
moved by common or similar ideological
conviction, design and goal and enjoying the
active moral and material support of a foreign
power and being guided and directed by a well
trained, determined and ruthless group of men
and taking advantage of our constitutional
liberties to promote and attain their ends, have
entered into a conspiracy and have in fact joined
and banded their forces together for the avowed
purpose of actually staging, undertaking and
waging an armed insurrection and rebellion in
order to forcibly seize political power in this
country, overthrow the duly constituted
government, and supplant our existing political
social, economic and legal order with an entirely
new one whose form of government, whose
system of laws, whose conception of God and
religion, whose notion of individual rights and
family relations, and whose political, social and
economic precepts are based on the Marxist-
Leninist-Maoist teachings and beliefs;
WHEREAS, these lawless elements, acting in
concert through front organizations that are
seemingly innocent and harmless, have
continuously and systematically strengthened
and broadened their memberships through
sustained and careful recruiting and enlistment
of new adherents from among our peasantry,
laborers, professionals, intellectuals, students,
and mass media personnel, and through such
sustained and careful recruitment and
enlistment have succeeded in infiltrating almost
every segment of our society in their ceaseless
determination to erode and weaken the political,
social, economic and moral foundations of our
existing government and to influence many
peasant, labor, professional, intellectual, student
and mass media organizations to commit acts of
violence and depredations against our duly
constituted authorities, against the members of
our law enforcement agencies, and worst of all,
against the peaceful members of our society;
WHEREAS, these lawless elements have
created a state of lawlessness and disorder
affecting public safety and the security of the
State, the latest manifestation of which has been
the dastardly attack on the Liberal Party rally in
Manila on August 21, 1971, which has resulted
in the death and serious injury of scores of
persons;
WHEREAS, public safety requires that
immediate and effective action be taken in order
to maintain peace and order, secure the safety
of the people and preserve the authority of the
State;
NOW, THEREFORE, I, FERDINAND E.
MARCOS, President of the Philippines, by virtue
of the powers vested upon me by Article VII,
Section 10, Paragraph (2) of the Constitution, do
hereby suspend the privilege of the writ
of habeas corpus, for the persons presently
detained, as well as others who may be
hereafter similarly detained for the crimes of
insurrection or rebellion, and all other crimes and
offenses committed by them in furtherance or on
the occasion thereof, or incident thereto, or in
connection therewith.
Presently, petitions for writ of habeas corpus were filed, in the
above-entitled cases, by the following persons, who, having been
arrested without a warrant therefor and then detained, upon the
authority of said proclamation, assail its validity, as well as that of
their detention, namely:
1. TEDORO LANSANG, RODOLFO DEL ROSARIO and BAYANI
ALCALA, the petitioners in Case No. L-33964 — filed on August 24,
1971 — who, on August 22, 1971, between 8 a.m. and 6 p.m., were
"invited" by agents of the Philippine Constabulary — which is under
the command of respondent Brig. Gen. Eduardo M. Garcia — to go
and did go to the headquarters of the Philippine Constabulary, at
Camp Crame, Quezon City, for interrogation, and thereafter,
detained;
2. ROGELIO V. ARIENDA, the petitioner in Case No. L-33965 —
filed, also, on August 24, 1971 — who was picked up in his
residence, at No. 55 Road, 3, Urduja Village, Quezon City, by
members of the Metrocom and then detained;
3. Soon after the filing of the petition in Case No. L-33965 — or on
August 28, 1971 — the same was amended to include VICENTE
ILAO and JUAN CARANDANG, as petitioners therein, although,
apart from stating that these additional petitioners are temporarily
residing with the original petitioner, Rogelio V. Arienda, the
amended petition alleged nothing whatsoever as regards the
circumstances under which said Vicente Ilao and Juan Carandang
are said to be illegally deprived of their liberty;
4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 — filed on
August 25, 1971 — who was similarly arrested in his residence, at
No. 131-B Kamias Road, Quezon City, and detained by the
Constabulary;
143
5. Felicidad G. Prudente, who filed the petition in Case No. L-33982
— on August 27, 1971 — upon the ground that her father, Dr.
NEMESIO E. PRUDENTE, had, on August 22, 1971, at about 8
p.m., been apprehended by Constabulary agents in his house, at
St. Ignatius Village, Quezon City, and then detained at the Camp
Crame stockade, Quezon City;
6. ANGELO DE LOS REYES, who was allowed — on August 30,
1971 — to intervene as one of the petitioners in Cases Nos. L-
33964, L-33965 and L-33973, he having been arrested by members
of the Constabulary on August 22, 1971, between 6:30 and 7:30
p.m., in his residence, at 86 Don Manuel Street, Sta. Mesa Heights,
Quezon City, and brought to Camp Crame, Quezon City, where he
is detained and restrained of liberty;
7. VICTOR FELIPE, who was similarly allowed to intervene as one
of the petitioners in said three (3) cases, upon the ground that, on
August 23, 1971, at about 8 a.m., he was, likewise, apprehended at
Sta. Rosa, Laguna, by members of the Philippine Constabulary and
brought, first to the Constabulary headquarters at Canlubang,
Laguna, and, then, to Camp Crame, Quezon City, where he is
detained and restrained of liberty;
8. TERESITO SISON, who was, also, allowed to intervene as one
of the petitioners in the same three (3) cases, he having been
arrested in his residence, at 318 Lakandula St., Angeles City, on
August 22, 1971, between 6 and 7 p.m., and taken to the PC offices
at Sto. Domingo, Angeles City, then to Camp Olivas, San Fernando,
Pampanga, and eventually to Camp Crame, Quezon City, where he
is restrained and deprived of liberty;
9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old second
year college students of St. Louis University, Baguio City, on whose
behalf, Domingo E. de Lara — in his capacity as Chairman,
Committee on Legal Assistance, Philippine Bar Association — filed
on September 3, 1971, the petition in Case No. L-34004, upon the
ground that said Gerardo Tomas had, on August 23, 1971, at about
6 a.m., been arrested by Constabulary agents, while on his way to
school in the City of Baguio, then brought to the Constabulary
premises therein at Camp Holmes, and, thereafter, taken, on August
24, 1971, to Camp Olivas, Pampanga, and thence, on August 25,
1971, to the Constabulary headquarters at Camp Crame, Quezon
City, where he is detained;
10. REYNALDO RIMANDO, petitioner in Case No. L-34013 — filed
on September 7, 1971 — a 19-year old student of the U.P. College
in Baguio city — who, while allegedly on his way home, at Lukban
Road, Baguio, on August 23, 1971, at about 1 a.m., was joined by
three (3) men who brought him to the Burnham Park, thence, to
Camp Olivas at San Fernando, Pampanga, and, thereafter, to Camp
Crame, Quezon City, where he is detained;
11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs.
BARCELISA C. DE CASTRO, on whose behalf Carlos C. Rabago
— as President of the Conference Delegates Association of the
Philippines (CONDA) — filed the petition in Case No. L-34039 — on
September 14, 1971 — against Gen. Eduardo M. Garcia, alleging
that, on August 27, 1971, at about 3 p.m., Mrs. De Castro was
arrested, while at Liamzon Subdivision, Rosario, Pasig, Rizal, by
agents of the Constabulary, and taken to the PC headquarters at
Camp Crame, where, later, that same afternoon, her husband was
brought, also, by PC agents and both are detained;
12. ANTOLIN ORETA, JR., who filed the petition in Case No. L-
34265 — on October 26, 1971 — against said Gen. Garcia, as Chief
of the Constabulary, and Col. Prospero Olivas, Chief of the Central
Intelligence Service (CIS), Philippine Constabulary, alleging that,
upon invitation from said CIS, he went, on October 20, 1971, to
Camp Aguinaldo, Quezon City, to see Gen. Manuel Yan, Chief of
Staff of the Armed Forces of the Philippines, who referred petitioner
to Col. Laroya of the CIS; that the latter, in turn, referred him to CIS
Investigator Atty. Berlin Castillo and another CIS against, whose
name is unknown to the petitioner; and that, after being interrogated
by the two (2), petitioner was detained illegally; and
13. GARY OLIVAR, petitioner in Case No. L-34339 — filed on
November 10, 1971 — who was apprehended, by agents of the
Constabulary, in the evening of November 8, 1941, in Quezon City,
and then detained at Camp Crame, in the same City.
Upon the filing of the aforementioned cases, the respondents were
forthwith required to answer the petitions therein, which they did.
The return and answer in L-33964 — which was, mutatis mutandis,
reproduced substantially or by reference in the other cases, except
L-34265 — alleges, inter alia, that the petitioners had been
apprehended and detained "on reasonable belief" that they had
"participated in the crime of insurrection or rebellion;" that "their
continued detention is justified due to the suspension of the privilege
of the writ of habeas corpus pursuant to Proclamation No. 889 of the
President of the Philippines;" that there is "a state of insurrection or
rebellion" in this country, and that "public safety and the security of
the State required the suspension of the privilege of the writ
of habeas corpus," as "declared by the President of the Philippines
in Proclamation No. 889; that in making said declaration, the
"President of the Philippines acted on relevant facts gathered thru
the coordinated efforts of the various intelligence agents of our
government but (of) which the Chief Executive could not at the
moment give a full account and disclosure without risking revelation
of highly classified state secrets vital to its safely and security"; that
the determination thus made by the President is "final and
conclusive upon the court and upon all other persons" and
"partake(s) of the nature of political question(s) which cannot be the
subject of judicial inquiry," pursuant to Barcelon v. Baker, 5 Phil. 87,
and Montenegro v. Castañeda, 91 Phil. 882; that petitioners "are
under detention pending investigation and evaluation of culpabilities
on the reasonable belief" that they "have committed, and are still
committing, individually or in conspiracy with others, engaged in
armed struggle, insurgency and other subversive activities for the
overthrow of the Government; that petitioners cannot raise, in these
proceedings for habeas corpus, "the question of their guilt or
innocence"; that the "Chief of Constabulary had petitioners taken
into custody on the basis of the existence of evidence sufficient to
afford a reasonable ground to believe that petitioners come within
the coverage of persons to whom the privilege of the writ of habeas
corpus has been suspended"; that the "continuing detention of the
petitioners as an urgent bona fide precautionary and preventive
measure demanded by the necessities of public safety, public
welfare and public interest"; that the President of the Philippines has
"undertaken concrete and abundant steps to insure that the
constitutional rights and privileges of the petitioners as well as of the
other persons in current confinement pursuant to Proclamation 889
remain unimpaired and unhampered"; and that "opportunities or
occasions for abuses by peace officers in the implementation of the
proclamation have been greatly minimized, if not completely
curtailed, by various safeguards contained in directives issued by
proper authority."
These safeguards are set forth in:
1. A letter of the President to the Secretary of National Defense,
dated August 21, 1971, directing, inter alia, in connection with the
arrest or detention of suspects pursuant to Proclamation No. 889,
that, except when caught inflagrante delicto, no arrest shall be made
without warrant authorized in writing by the Secretary of National
Defense; that such authority shall not be granted unless, "on the
basis of records and other evidences," it appears satisfactorily, in
accordance with Rule 113, section 6(b), of the Rules of Court, that
the person to be arrested is probably guilty of the acts mentioned in
the proclamation; that, if such person will be charged with a crime
subject to an afflictive penalty under the Anti-Subversion Act, the
authorization for his arrest shall not be issued unless supported by
signed intelligence reports citing at least one reliable witness to the
same overt act; that no unnecessary or unreasonable force shall be
used in effecting arrests; and that arrested persons shall not be
subject to greater restraint than is necessary for their detention;
2. Communications of the Chief of the Constabulary, dated August
23, 27, and 30, 1971, to all units of his command, stating that the
privilege of the writ is suspended for no other persons than those
specified in the proclamation; that the same does not involve
material law; that precautionary measures should be taken to
forestall violence that may be precipitated by improper behavior of
military personnel; that authority to cause arrest under the
proclamation will be exercised only by the Metrocom, CMA, CIS,
and "officers occupying position in the provinces down to provincial
commanders"; that there shall be no indiscriminate or mass arrests;
that arrested persons shall not be harmed and shall be accorded
fair and humane treatment; and that members of the detainee's
immediate family shall be allowed to visit him twice a week;
3. A memorandum of the Department of National Defense, dated
September 2, 1971, directing the Chief of the Constabulary to
establish appropriate Complaints and Action Bodies/Groups to
prevent and/or check any abuses in connection with the suspension
of the privilege of the writ; and
144
4. Executive Order No. 333, dated August 26, 1971, creating a of the people and preserve the authority of the
Presidential Administrative Assistance Committee to hear State;
complaints regarding abuses committed in connection with the
implementation of Proclamation No. 889.
NOW THEREFORE, I, FERDINAND E.
MARCOS, President of the Philippines, by virtue
Respondents in L-33965 further alleged that therein petitioners of the powers vested upon me by Article VII,
Vicente Ilao and Juan Carandang had been released from custody Section 10, Paragraph (2) of the Constitution, do
on August 31, 1971, "after it had been found that the evidence hereby suspend the privilege of the writ
against them was insufficient." of habeas corpus for the persons presently
detained, as well as all others who may be
In L-34265, the "Answer and Return" filed by respondents therein hereafter similarly detained for the crimes of
traversed some allegations of fact and conclusions of law made in insurrection or rebellion [,] and [all] other [crimes
the petition therein and averred that Antolin Oreta, Jr., the petitioner and offenses] overt acts committed by them in
therein, had been and is detained "on the basis of a reasonable furtherance [or on the occasion] thereof[,]. [or
ground to believe that he has committed overt acts in furtherance of incident thereto, or in connection therewith.] 1
rebellion or insurrection against the government" and, accordingly,
"comes within the class of persons as to whom the privilege of the On September 1, 1971, Cases Nos. L-33964, L-33965, L-33973 and
writ of habeas corpus has been suspended by Proclamation No. L-33982 were jointly heard and then the parties therein were
889, as amended," the validity of which is not contested by him. allowed to file memoranda, which were submitted from September
3 to September 9, 1971.
On August 30, 1971, the President issued Proclamation No. 889-A,
amending Proclamation No. 889, so as to read as follows: Soon thereafter, or on September 18, 1971, Proclamation No. 889
was further amended by Proclamation No. 889-B, lifting the
WHEREAS, on the basis of carefully evaluated suspension of the privilege of the writ of habeas corpus in the
following provinces, sub-provinces and cities of the Philippine,
information, it is definitely established that
lawless elements in the country, which are namely:
moved by common or similar ideological
conviction, design and goal and enjoying the A. PROVINCES:
active moral and material support of a foreign
power and being guided and directed by a well- 1. Batanes 15. Negros Occ.
trained, determined and ruthless group of men
2. Ilocos Norte 16. Negros
and taking advantage of our constitutional Or.
liberties to promote and attain their ends, have
3. Ilocos Sur 17. Cebu
entered into a conspiracy and have in fact joined 4. Abra 18. Bohol
and banded their forces together for the avowed 5. Abra 19. Capiz
purpose of [actually] staging, undertaking, [and] 6. Pangasinan 20. Aklan
wagging and are actually engaged in an armed 7. Batangas 21. Antique
insurrection and rebellion in order to forcibly 8. Catanduanes 22. Iloilo
seize political power in this country, overthrow 9. Masbate 23. Leyte
the duly constituted government, and supplant
10. Romblon 24. Leyte del
our existing political, social, economic and legal Sur
order with an entirely new one whose form of
11. Marinduque 25. Northern
government, whose system of laws, whose Samar
conception of God and religion, whose notion of 12. Or. Mindoro 26. Eastern
individual rights and family relations, and whose Samar
political, social and economic precepts are 13. Occ. Mindoro 27.
based on the Marxist-Leninist-Maoist teaching Western Samar
and beliefs; 14. Palawan.

WHEREAS, these lawless elements, acting in B. SUB-PROVINCES:

concert through front organizations that are
seemingly innocent and harmless, have
continuously and systematically strengthened 1. Guimaras 3. Siquior
and broadened their memberships through 2. Biliran
sustained and careful recruiting and enlistment
of new adherents from among our peasantly, C. CITIES:
laborers, professionals, intellectuals, students,
and mass media personnel, and through such
sustained and careful recruitment and 1. Laog 10. Bacolod
enlistment have succeeded in infiltrating almost 2. Dagupan 11. Bago
every segment of our society in their ceaseless 3. San Carlos 12. Canlaon
determination to erode and weaken the political, 4. Batangas 13. La Carlota
social, economic and moral foundations of our 5. Lipa 14. Bais
existing government and influence many 6. Puerto Princesa 15.
peasant, labor, professional, intellectual, student Dumaguete
and mass media organizations to commit acts of 7. San Carlos (Negros 16.
violence and depredations against our duly Iloilo
constituted authorities, against the members of Occ.) 17. Roxas
our law enforcement agencies, and worst of all, 8. Cadiz 18. Tagbilaran
against the peaceful members of our society; 9. Silay 19. Lapu-lapu

20. Cebu 24. Tacloban

WHEREAS, these lawless elements, by their 21. Mandaue 25. Ormoc
acts of rebellion and insurrection, have created 22. Danao 26. Calbayog
a state of lawlessness and disorder affecting 23. Toledo
public safety and security of the State, the latest
manifestation of which has been the dastardly
attack on the Liberal Party rally in Manila on On September 25, 1971, the President issued Proclamation No.
August 21, 1971, which has resulted in the death 889-C, restoring the privilege of the writ in the following provinces
and serious injury of scores of persons; and cities:

WHEREAS, public safety requires that A. PROVINCES:

immediate and effective action be taken in order
to maintain peace and order, secure the safety

145
 1. Surigao del Norte 8. suspension (of the privilege of the writ ofhabeas corpus) belongs to
Agusan del Sur the President and his 'decision is final and conclusive' upon the
2. Surigao del Sur 9. courts and upon all other persons." Indeed, had said question been
Misamis Or. decided in the affirmative the main issue in all of these cases,
3. Davao del Norte 10. except
Misamis Occ. L-34339, would have been settled, and, since the other issues were
4. Davao del Sur 11. relatively of minor importance, said cases could have been readily
Zamboanga del Norte disposed of. Upon mature deliberation, a majority of the Members
5. Davao Oriental 12. of the Court had, however, reached, although tentatively, a
Basilan consensus to the contrary, and decided that the Court had authority
6. Bukidnon 13. Pagadian to and should inquire into the existence of the factual bases required
7. Agusan del Norte by the Constitution for the suspension of the privilege of the writ; but
before proceeding to do so, the Court deemed it necessary to hear
B. CITIES: the parties on the nature and extent of the inquiry to be undertaken,
none of them having previously expressed their views thereof.
Accordingly, on October 5, 1971, the Court issued, in L-33964, L-
1. Surigao 8. Tangub 33965, L-33973 and L-33982, a resolution stating in part that —
2. Davao 9. Dapitan
3. Butuan 10. Dipolog
... a majority of the Court having tentatively
4. Cagayan 11. Zamboanga
5. Gingoong 12. Basilan arrived at a consensus that it may inquire in
6. Ozamiz 13. Pagadian. order to satisfy itself of the existence of the
7. Oroquieta factual bases for the issuance of Presidential
Proclamations Nos. 889 and 889-A (suspending
the privilege of the writ of habeas corpus for all
On October 4, 1971, the suspension of the privilege was further persons detained or to be detained for the
lifted by Proclamation No. 889-D, in the following places: crimes of rebellion or insurrection throughout the
Philippines, which area has lately been reduced
A. PROVINCES: to some eighteen provinces, two subprovinces
and eighteen cities with the partial lifting of the
suspension of the privilege effected by
1. Cagayan 5. Camarines Presidential Proclamations Nos. 889-B, 889-C
2. Cavite 6. Albay and 889-D) and thus determine the
3. Mountain Province 7. constitutional sufficiency of such bases in the
Sorsogon light of the requirements of Article III, sec. 1, par.
4. Kalinga-Apayao 14, and Article VII, sec. 10, par. 2, of the
Philippine Constitution; and considering that the
B. CITIES: members of the Court are not agreed on the
precise scope and nature of the inquiry to be
made in the premises, even as all of them are
1. Cavite City 3. Trece agreed that the Presidential findings are entitled
Martires to great respect, the Court RESOLVED that
2. Tagaytay 4. Legaspi these cases be set for rehearing on October 8,
1971 at 9:30 A.M.
As a consequences, the privilege of the writ of habeas corpus is still
suspended in the following eighteen (18) provinces, two (2) sub- xxx xxx xxx
provinces and eighteen (18) cities, to wit:

On October 8, 1971, said four cases were, therefore, heard, once

A. PROVINCE: again, but, this time jointly with cases Nos. L-34004, L-34013, and
L-34039, and the parties were then granted a period to file
1. Bataan 10. North memoranda, in amplification of their respective oral arguments,
Cotabato which memoranda were submitted from October 12 to October 21,
2. Benguet 11. Nueva Ecija 1971.
3. Bulacan 13. Pampanga
4. Camarines Sur 14. Respondents having expressed, during the oral arguments, on
Quezon September 1 and October 8, 1971, their willingness to impart to the
5. Ifugao 15. Rizal Court classified information relevant to these cases, subject to
6. Isabela 16. South appropriate security measures, the Court met at closed doors, on
Cotabato October 28 and 29, 1971, and, in the presence of three (3) attorneys
7. Laguna 17. Tarlac for the petitioners, chosen by the latter, namely, Senator Jose W.
8. Lanao del Norte 18. Diokno, Senator Salvador H. Laurel, and Atty. Leopoldo Africa, as
Zambales well as of the Solicitor General and two (2) members of his staff,
9. Lanao del Norte was briefed, by Gen. Manuel Yan, Chief of Staff of the Armed Forces
of the Philippines, Gen. Fidel Ramos, Deputy Chief of Staff, Gen.
B. SUB-PROVINCES: Felizardo Tanabe, Col. Tagumpay Nanadiego, Judge Advocate
General, JAGS (GSC), and other ranking officers of said Armed
Forces, on said classified information, most of which was contained
1. Aurora 2. Quirino
in reports and other documents already attached to the records.
During the proceedings, the members of the Court, and,
C. CITIES: occassionally, counsel for the petitioners, propounded pertinent
questions to said officers of the Armed Forces. Both parties were
1. Angeles 10. Manila then granted a period of time within which to submit their respective
2. Baguio 11. Marawi observations, which were filed on November 3, 1971, and
3. Cabanatuan 12. Naga complemented by some documents attached to the records on
4. Caloocan 13. Olongapo November 6, 1971, and a summary, submitted on November 15,
5. Cotabato 14. Palayan 1971, of the aforesaid classified information.
6. General Santos 15. Pasay
7. Iligan 16. Quezon In the meantime, cases Nos. L-34265 (Oreta) and L-34339 (Olivar)
8 Iriga 17. San Jose had been filed and the parties therein were heard in oral argument
9 Lucena 18. San Pablo on November 4, and 16, 1971, respectively.

The first major question that the Court had to consider was whether On November 15, 1971, the Solicitor General filed manifestations
it would adhere to the view taken in Barcelon v. Baker, 2 and — motions stating that on November 13, 1971, the following
reiterated in Montenegro v. Castañeda, 3 pursuant to which, "the petitioners were:
authority to decide whether the exigency has arisen requiring

146
(a) released from custody:
(1) Teodosio Lansang -- G.R. No. L-33964
(2) Bayani Alcala -- " " L-33964
(3) Rogelio Arienda -- " " L-33965
(4) Nemesio Prudente -- " " L-33982
(5) Gerardo Tomas -- " " L-34004
(6) Reynaldo Rimando -- " " L-34013
(7) Filomeno M. de Castro -- " " L-34039
(8) Barcelisa de Castro -- " " L-34039
(9) Antolin Oreta, Jr. -- " " L-34264.
(b) charged, together with other persons named in the criminal
complaint filed therefor, with a violation of Republic Act No. 1700
(Anti-Subversion Act), in the City Fiscal's Office of Quezon City:
(1) Angelo de los Reyes -- G.R. No. L-22982 *
(2) Teresito Sison -- " " L-33982 *
(c) accused, together with many others named in the criminal
complaint filed therefor, of a violation of section 4 of Republic Act
No. 1700 (Anti-Subversion Act), in the Court of First Instance of
Rizal:
(1) Rodolfo del Rosario -- G.R. No. L-33969 **
(2) Luzvimindo David -- " " L-33973
(3) Victor Felipe -- " " L-33982 *
and continue under detention pursuant to Proclamation No. 889, as
amended, and praying that the petitions in G.R. Nos. L-33964, L-
33965, L-33982, L-34004, L-34013 and L-34039 be dismissed,
without prejudice to the resolution of the remaining cases. Copy of
the criminal complaint filed, as above stated, with the Court of First
Instance of Rizal and docketed therein as Criminal Case No. Q-
1623 of said court — which was appended to said manifestations-
motions of the respondent as Annex 2 thereof — shows that Gary
Olivar, the petitioner in L-34339, is one of the defendants in said
case.
Required to comment on said manifestations-motions, Luzvimindo
David, petitioner in L-33973, in his comment dated November 23,
1971, urged the Court to rule on the merits of the petitions in all of
these cases, particularly on the constitutionality of Presidential
Proclamation No. 889, as amended, upon the ground that he is still
detained and that the main issue is one of public interest involving
as it does the civil liberties of the people. Angelo de los Reyes, one
of the petitioners in L-33964, L-33965 and L-33973, Nemesio E.
Prudente and Gerardo Tomas, for whose respective benefit the
petitions in L-33982 and L-34004 have been filed, maintained that
the issue in these cases is not moot, not even for the detainees who
have been released, for, as long as the privilege of the writ remains
suspended, they are in danger of being arrested and detained again
without just cause or valid reason. In his reply, dated and filed on
November 29, 1971, the Solicitor General insisted that the release
of the above-named petitioners rendered their respective petitions
moot and academic.
I obtaining at the time of the issuance of the original proclamation. In
Petitioners herein, except Antolin Oreta, Jr. in L-34265, question the
formal validity of the proclamation suspending the privilege of the
writ of habeas corpus. In this connection, it should be noted that, as
originally formulated, Proclamation No. 889 was contested upon the
ground that it did not comply with the pertinent constitutional
provisions, namely, paragraph (14) of section 1, Article III of our
Constitution, reading:
The privilege of the writ of habeas corpus shall
not be suspended except in cases of invasion,
insurrection, or rebellion, when the public safety
requires it, in any way of which events the same
may be suspended wherever during such period
the necessity for such suspension shall exist.
and paragraph (2), section 10, Article VII of the same instrument,
which provides that:
The President shall be commander-in-chief of all
armed forces of the Philippines, and whenever it
becomes necessary, he may call out such
armed forces to prevent or suppress lawless
violence, invasion, insurrection, or rebellion. In
case of invasion, insurrection, or rebellion, or
imminent danger thereof when the public safety
requires it, he may suspend the privileges of the
writ of habeas corpus, or place the Philippines or
any part thereof under martial law.
Regardless of whether or not the President may suspend the
privilege of the writ of habeas corpus in case of "imminent danger"
of invasion, insurrection or rebellion — which is one of the grounds
stated in said paragraph (2), section 10 of Art. VII of the Constitution,
but not mentioned in paragraph (14), section 1 of its Bill of Rights —
petitioners maintained that Proclamation No. 889 did not declare the
existence of actual "invasion insurrection or rebellion or imminent
danger thereof," and that, consequently, said Proclamation was
invalid. This contention was predicated upon the fact that, although
the first "whereas" in Proclamation No. 889 stated that "lawless
elements" had "entered into a conspiracy and have in
fact joined and banded their forces together for the avowed
purposeof actually staging, undertaking and waging an armed
insurrection and rebellion," the actuality so alleged refers to the
existence, not of an uprising that constitutes the essence of a
rebellion or insurrection, but of the conspiracyand the intent to rise
in arms.
Whatever may be the merit of this claim, the same has been
rendered moot and academic by Proclamation No. 889-A, issued
nine (9) days after the promulgation of the original proclamation, or
on August 30, 1971. Indeed, said Proclamation No. 889-A
amended, inter alia, the first "whereas" of the original proclamation
by postulating the said lawless elements "have entered into a
conspiracy and have in fact joined and banded their forces together
for the avowed purpose of staging, undertaking, waging and are
actually engaged in an armed insurrection and rebellion in order to
forcibly seize political power in this country, overthrow the duly
constituted government, and supplant our existing political, social,
economic and legal order with an entirely new one ...." Moreover,
the third "whereas" in the original proclamation was, likewise,
amended by alleging therein that said lawless elements, "by their
acts of rebellion and insurrection," have created a state of
lawlessness and disorder affecting public safety and the security of
the State. In other words, apart from adverting to the existence of
actualconspiracy and of the intent to rise in arms to overthrow the
government, Proclamation No. 889-A asserts that the lawless
elements "are actually engaged in an armed insurrection and
rebellion" to accomplish their purpose.
It may not be amiss to note, at this juncture, that the very tenor of
the original proclamation and particularly, the circumstances under
which it had been issued, clearly suggest the intent to aver that there
was and is, actually, a state of rebellion in the Philippines, although
the language of said proclamation was hardly a felicitous one, it
having in effect, stressed the actuality of the intent to rise in arms,
rather than of the factual existence of the rebellion itself. The
pleadings, the oral arguments and the memoranda of respondents
herein have consistently and abundantly emphasized — to justify
the suspension of the privilege of the writ of habeas corpus — the
acts of violence and subversion committed prior to August 21, 1971,
by the lawless elements above referred to, and the conditions
short, We hold that Proclamation No. 889-A has superseded the
original proclamation and that the flaws attributed thereto are purely
formal in nature.
II
Let us now consider the substantive validity of the proclamation, as
amended. Pursuant to the above-quoted provisions of the
Constitution, two (2) conditions must concur for the valid exercise of
the authority to suspend the privilege to the writ, to wit: (a) there
must be "invasion, insurrection, or rebellion" or — pursuant to
paragraph (2), section 10 of Art. VII of the Constitution — "imminent
danger thereof," and (b) "public safety" must require the suspension
of the privilege. The Presidential Proclamation under consideration
declares that there has been and there is actually a state of rebellion
and
that 4 "public safety requires that immediate and effective action be
taken in order to maintain peace and order, secure the safety of the
people and preserve the authority of the State."
Are these findings conclusive upon the Court? Respondents
maintain that they are, upon the authority of Barcelon v.
Baker 5 and Montenegro v. Castañeda. 6 Upon the other hand,
147
petitioners press the negative view and urge a reexamination of the
position taken in said two (2) cases, as well as a reversal thereof.
The weight of Barcelon v. Baker, as a precedent, is diluted by two
(2) factors, namely: (a) it relied heavily upon Martin v.
Mott 7 involving the U.S. President's power to call out the militia,
which — he being the commander-in-chief of all the armed forces
— may be exercised to suppress or prevent any lawless violence,
even without invasion, insurrection or rebellion, or imminent danger
thereof, and is, accordingly, much broader than his authority to
suspend the privilege of the writ of habeas corpus, jeopardizing as
the latter does individual liberty; and (b) the privilege had been
suspended by the American Governor-General, whose act, as
representative of the Sovereign, affecting the freedom of
its subjects, can hardly be equated with that of the President of the
Philippines dealing with the freedom of the Filipino people, in whom
sovereignty resides, and from whom all government authority
emanates. The pertinent ruling in the Montenegro case was based
mainly upon the Barcelon case, and hence, cannot have more
weight than the same. Moreover, in the Barcelon case, the Court
held that it could go into the question: "Did the Governor-General"
— acting under the authority vested in him by the Congress of the
United States, to suspend the privilege of the writ ofhabeas
corpus under certain conditions — "act in conformance with such
authority?" In other words, it did determine whether or not the Chief
Executive had acted in accordance with law. Similarly, in the
Montenegro case, the Court held that petitioner therein had "failed
to overcome the presumption of correctness which the judiciary
accords to acts of the Executive ...." In short, the
Court considered the question whether or not there really was are
rebellion, as stated in the proclamation therein contested.
Incidentally, even the American jurisprudence is neither explicit nor
clear on the point under consideration. Although some
cases 8 purport to deny the judicial power to "review" the findings
made in the proclamations assailed in said cases, the tenor of the
opinions therein given, considered as a whole, strongly suggests the
court's conviction that the conditions essential for the validity of said
proclamations or orders were, in fact, present therein, just as the
opposite view taken in other cases 9 had a backdrop permeated or
characterized by the belief that said conditions were absent. Hence,
the dictum of Chief Justice Taney to the effect that "(e)very case
must depend on its own circumstances." 10 One of the important, if
not dominant, factors, in connection therewith, was intimated in
Sterling v. Constantin, 11 in which the Supreme Court of the United
States, speaking through Chief Justice Hughes, declared that:
.... When there is a substantial showing that the
exertion of state power has overridden private
rightssecured by that Constitution, the subject
is necessarily one for judicial inquiry in an
appropriate proceeding directed against the
individuals charged with the transgression. To
such a case the Federal judicial power extends
(Art. 3, sec. 2) and, so extending, the court has
all the authority appropriate to its
exercise. .... 12
In our resolution of October 5, 1971, We stated that "a majority of
the Court" had "tentatively arrived at a consensus that it may
inquire in order to satisfy itself of the existence of the factual bases
for the issuance of Presidential Proclamations Nos. 889 and 889-A
... and thus determine the constitutional sufficiency of such basesin
the light of the requirements of Article III, sec. 1, par. 14, and Article
VII, sec. 10, par 2, of the Philippine Constitution...." Upon further
deliberation, the members of the Court are now unanimous in the
conviction that it has the authority to inquire into the existence of
said factual bases in order to determine the constitutional sufficiency
thereof.
Indeed, the grant of power to suspend the privilege is neither
absolute nor unqualified. The authority conferred by the
Constitution, both under the Bill of Rights and under the Executive
Department, is limited and conditional. The precept in the Bill of
Rights establishes a general rule, as well as an exception thereto.
What is more, it postulates the former in the negative, evidently to
stress its importance, by providing that "(t)he privilege of the writ
of habeas corpus shall not be suspended ...." It is only by way
of exception that it permits the suspension of the privilege "in cases
of invasion, insurrection, or rebellion" — or, under Art VII of the
Constitution, "imminent danger thereof" — "when the public safety
requires it, in any of which events the same may be suspended
wherever during such period the necessity for such suspension shall
exist." 13 For from being full and plenary, the authority to suspend
the privilege of the writ is thus circumscribed, confined and
restricted, not only by the prescribed setting or the conditions
essential to its existence, but, also, as regards the time when and
the place where it may be exercised. These factors and the
aforementioned setting or conditions mark, establish and define the
extent, the confines and the limits of said power, beyond which it
does not exist. And, like the limitations and restrictions imposed by
the Fundamental Law upon the legislative department, adherence
thereto and compliance therewith may, within proper bounds, be
inquired into by courts of justice. Otherwise, the explicit
constitutional provisions thereon would be meaningless. Surely, the
framers of our Constitution could not have intended to engage in
such a wasteful exercise in futility.
Much less may the assumption be indulged in when we bear in mind
that our political system is essentially democratic and republican in
character and that the suspension of the privilege affects the most
fundamental element of that system, namely, individual freedom.
Indeed, such freedom includes and connotes, as well as demands,
the right of every single member of our citizenry to freely discuss
and dissent from, as well as criticize and denounce, the views, the
policies and the practices of the government and the party in power
that he deems unwise, improper or inimical to the commonwealth,
regardless of whether his own opinion is objectively correct or not.
The untrammelled enjoyment and exercise of such right — which,
under certain conditions, may be a civic duty of the highest order —
is vital to the democratic system and essential to its successful
operation and wholesome growth and development.
Manifestly, however, the liberty guaranteed and protected by our
Basic Law is one enjoyed and exercised, not in derogation thereof,
but consistently therewith, and, hence, within the framework of the
social order established by the Constitution and the context of the
Rule of Law. Accordingly, when individual freedom is used to
destroy that social order, by means of force and violence, in
defiance of the Rule of Law — such as by rising publicly and taking
arms against the government to overthrow the same, thereby
committing the crime of rebellion — there emerges a circumstance
that may warrant a limited withdrawal of the aforementioned
guarantee or protection, by suspending the privilege of the writ
of habeas corpus, when public safety requires it. Although we must
be forewarned against mistaking mere dissent — no matter how
emphatic or intemperate it may be — for dissidence amounting to
rebellion or insurrection, the Court cannot hesitate, much less refuse
— when the existence of such rebellion or insurrection has been
fairly established or cannot reasonably be denied — to uphold the
finding of the Executive thereon, without, in effect, encroaching
upon a power vested in him by the Supreme Law of the land and
depriving him, to this extent, of such power, and, therefore, without
violating the Constitution and jeopardizing the very Rule of Law the
Court is called upon to epitomize.
As heretofore adverted to, for the valid suspension of the privilege
of the writ: (a) there must be "invasion, insurrection or rebellion" or
— pursuant to paragraph (2), section 10 of Art. VII of the
Constitution — "imminent danger thereof"; and (b) public safety
must require the aforementioned suspension. The President
declared in Proclamation No. 889, as amended, that both conditions
are present.
As regards the first condition, our jurisprudence 14 attests
abundantly to the Communist activities in the Philippines, especially
in Manila, from the late twenties to the early thirties, then aimed
principally at incitement to sedition or rebellion, as the immediate
objective. Upon the establishment of the Commonwealth of the
Philippines, the movement seemed to have waned notably; but, the
outbreak of World War II in the Pacific and the miseries, the
devastation and havoc, and the proliferation of unlicensed firearms
concomitant with the military occupation of the Philippines and its
subsequent liberation, brought about, in the late forties, a
resurgence of the Communist threat, with such vigor as to be able
to organize and operate in Central Luzon an army — called
HUKBALAHAP, during the occupation, and renamed Hukbong
Mapagpalaya ng Bayan (HMP) after liberation — which clashed
several times with the armed forces of the Republic. This prompted
then President Quirino to issue Proclamation No. 210, dated
October 22, 1950, suspending the privilege of the writ ofhabeas
corpus, the validity of which was upheld in Montenegro v.
Castañeda. 15 Days before the promulgation of said Proclamation,
or on October 18, 1950, members of the Communist Politburo in the
Philippines were apprehended in Manila. Subsequently accused
and convicted of the crime of rebellion, they served their respective
sentences. 16
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The fifties saw a comparative lull in Communist activities, insofar as
peace and order were concerned. Still, on June 20, 1957, Rep. Act
No. 1700, otherwise known as the Anti-Subversion Act, was
approved, upon the ground — stated in the very preamble of said
statute — that.
... the Communist Party of the Philippines,
although purportedly a political party, is in fact an
organized conspiracy to overthrow the
Government of the Republic of the Philippines,
not only by force and violence but also by deceit,
subversion and other illegal means, for the
purpose of establishing in the Philippines a
totalitarian regime subject to alien domination
and control;
... the continued existence and activities of the
Communist Party of the Philippines constitutes
a clear, present and grave danger to the
security of the Philippines; 17 and
... in the face of the organized, systematic and
persistent subversion, national in scope but
international in direction, posed by the
Communist Party of the Philippines and its
activities, there is urgent need for special
legislation to cope with this continuing menace
to the freedom and security of the country....
In the language of the Report on Central Luzon, submitted, on
September 4, 1971, by the Senate Ad Hoc Committee of Seven —
copy of which Report was filed in these cases by the petitioners
herein —
The years following 1963 saw the successive
emergence in the country of several mass
organizations, notably the Lapiang
Manggagawa (now the Socialist Party of the
Philippines) among the workers; the Malayang
Samahan ng mga Magsasaka (MASAKA)
among the peasantry; the Kabataang
Makabayan (KM) among the youth/students;
and the Movement for the Advancement of
Nationalism (MAN) among the
intellectuals/professionals. The PKP has
exerted all-out effort to infiltrate, influence and
utilize these organizations in promoting its
radical brand of
nationalism. 18
Meanwhile, the Communist leaders in the Philippines had been split
into two (2) groups, one of which — composed mainly of young
radicals, constituting the Maoist faction — reorganized the
Communist Party of the Philippines early in 1969 and established a
New People's Army. This faction adheres to the Maoist concept of
the "Protracted People's War" or "War of National Liberation." Its
"Programme for a People's Democratic Revolution" states, inter
alia:
The Communist Party of the Philippines is
determined to implement its general programme
for a people's democratic revolution. All Filipino
communists are ready to sacrifice their lives for
the worthy cause of achieving the new type of
democracy, of building a new Philippines that is
genuinely and completely independent,
democratic, united, just and prosperous ...
xxx xxx xxx
The central task of any revolutionary movement
is to seize political power. The Communist Party
of the Philippines assumes this task at a time
that both the international and national situations
are favorable of asking the road of armed
revolution ... 19
In the year 1969, the NPA had — according to the records of the
Department of National Defense — conducted raids, resorted to
kidnappings and taken part in other violent incidents numbering over
230, in which it inflicted 404 casualties, and, in turn, suffered 243
losses. In 1970, its records of violent incidents was about the same,
but the NPA casualties more than doubled.
At any rate, two (2) facts are undeniable: (a) all Communists,
whether they belong to the traditional group or to the Maoist faction,
believe that force and violence are indispensable to the attainment
of their main and ultimate objective, and act in accordance with such
belief, although they may disagree on the means to be used at a
given time and in a particular place; and (b) there is a New People's
Army, other, of course, that the arm forces of the Republic and
antagonistic thereto. Such New People's Army is per se proof of
the existence of a rebellion, especially considering that its
establishment was announced publicly by the reorganized CPP.
Such announcement is in the nature of a public challenge to the duly
constituted authorities and may be likened to a declaration of war,
sufficient to establish a war status or a condition of belligerency,
even before the actual commencement of hostilities.
We entertain, therefore, no doubts about the existence of a sizeable
group of men who have publicly risen in arms to overthrow the
government and have thus been and still are engaged in rebellion
against the Government of the Philippines.
In fact, the thrust of petitioners' argument is that the New People's
Army proper is too small, compared with the size of the armed forces
of the Government, that the Communist rebellion or insurrection
cannot so endanger public safety as to require the suspension of
the privilege of the writ of habeas corpus. This argument does not
negate, however, the existence of a rebellion, which, from the
constitutional and statutory viewpoint, need not be widespread or
attain the magnitude of a civil war. This is apparent from the very
provision of the Revised Penal Code defining the crime of
rebellion, 20 which may be limited in its scope to "any part" of the
Philippines, and, also, from paragraph (14) of section 1, Article III of
the Constitution, authorizing the suspension of the privilege of the
writ "wherever" — in case of rebellion — "the necessity for such
suspension shall exist." In fact, the case of Barcelon v. Baker
referred to a proclamation suspending the privilege in the provinces
of Cavite and Batangas only. The case of In re Boyle 21 involved a
valid proclamation suspending the privilege in a smaller area — a
country of the state of Idaho.
The magnitude of the rebellion has a bearing on the second
condition essential to the validity of the suspension of the privilege
— namely, that the suspension be required by public safety. Before
delving, however, into the factual bases of the presidential findings
thereon, let us consider the precise nature of the Court's function in
passing upon the validity of Proclamation No. 889, as amended.
Article VII of the Constitution vests in the Executive the power to
suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme
within his own sphere. However, the separation of powers, under
the Constitution, is not absolute. What is more, it goes hand in hand
with the system of checks and balances, under which the Executive
is supreme, as regards the suspension of the privilege, but
only if and when he acts withinthe sphere allotted to him by the
Basic Law, and the authority to determine whether or not he has so
acted is vested in the Judicial Department, which, in this respect, is,
in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court is merely
to check — not to supplant 22 — the Executive, or to ascertain
merely whether he had gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine
the wisdom of his act. To be sure, the power of the Court to
determine the validity of the contested proclamation is far from being
identical to, or even comparable with, its power over ordinary civil or
criminal cases elevated thereto by ordinary appeal from inferior
courts, in which cases the appellate court has all of the powers of
the court of origin.
Under the principle of separation of powers and the system of
checks and balances, the judicial authority to review decisions of
administrative bodies or agencies is much more limited, as regards
findings of fact made in said decisions. Under the English law, the
reviewing court determines only whether there is some evidentiary
basis for the contested administrative findings; no
quantitative examination of the supporting evidence is undertaken.
The administrative findings can be interfered with only if there
is no evidence whatsoever in support thereof, and said finding is,
accordingly, arbitrary, capricious and obviously unauthorized. This
149
view has been adopted by some American courts. It has, likewise,
been adhered to in a number of Philippine cases. Other cases,
in both jurisdictions, have applied the "substantial evidence" rule,
which has been construed to mean "more than a mere scintilla" or
"relevant evidence as a reasonable mind might accept as adequate
to support a conclusion," 23 even if other minds equally reasonable
might conceivably opine otherwise.
Manifestly, however, this approach refers to the review of
administrative determinations involving the exercise of quasi-judicial
functions calling for or entailing the reception of evidence. It does
not and cannot be applied, in its aforesaid form, in testing the validity
of an act of Congress or of the Executive, such as the suspension
of the privilege of the writ of habeas corpus, for, as a general rule,
neither body takes evidence — in the sense in which the term is
used in judicial proceedings — before enacting a legislation or
suspending the writ. Referring to the test of the validity of a statute,
the Supreme Court of the United States, speaking through Mr.
Justice Roberts, expressed, in the leading case of Nebbia v. New
York, 24 the view that:
... If the laws passed are seen to have
a reasonable relation to a proper legislative
purpose, and areneither arbitrary nor
discriminatory, the requirements of due process
are satisfied, and judicial determination to that
effect renders a court functus officio ... With the
wisdom of the policy adopted, with the adequacy
or practically of the law enacted to forward it, the
courts are both incompetent andunauthorized to
deal ...
Relying upon this view, it is urged by the Solicitor General —
... that judicial inquiry into the basis of the
questioned proclamation can go no further than
to satisfy the Court not that the President's
decision is correct and that public safety was
endanger by the rebellion and justified the
suspension of the writ, but that in suspending the
writ, the President did not act arbitrarily.
No cogent reason has been submitted to warrant the rejection of
such test. Indeed, the co-equality of coordinate branches of the
Government, under our constitutional system, seems to demand
that the test of the validity of acts of Congress and of those of the
Executive be, mutatis mutandis, fundamentally the same. Hence,
counsel for petitioner Rogelio Arienda admits that the proper
standard is not correctness, but arbitrariness.
Did public safety require the suspension of the privilege of the writ
of habeas corpus decreed in Proclamation No. 889, as amended?
Petitioners submit a negative answer upon the ground: (a) that there
is no rebellion; (b) that, prior to and at the time of the suspension of
the privilege, the Government was functioning normally, as were the
courts; (c) that no untoward incident, confirmatory of an alleged
July-August Plan, has actually taken place after August 21, 1971;
(d) that the President's alleged apprehension, because of said plan,
is non-existent and unjustified; and (e) that the Communist forces in
the Philippines are too small and weak to jeopardize public safety to
such extent as to require the suspension of the privilege of the writ
of habeas corpus.
As above indicated, however, the existence of a rebellion is obvious,
so much so that counsel for several petitioners herein have admitted
it.
With respect to the normal operation of government, including
courts, prior to and at the time of the suspension of the privilege,
suffice it to say that, if the conditions were such that courts of justice
no longer functioned, a suspension of the privilege would have been
unnecessary, there being no courts to issue the writ of habeas
corpus. Indeed, petitioners' reference to the normal operation of
courts as a factor indicative of the illegality of the contested act of
the Executive stems, perhaps, from the fact that this circumstance
was adverted to in some American cases to justify the invalidation
therein decreed of said act of the Executive. Said cases involved,
however, the conviction by military courts of members of
the civilian population charged with common crimes. It was
manifestly, illegal for military courts to assume jurisdiction over
civilians so charged, when civil courts were functioning normally.
Then, too, the alleged absence of any untoward incident after
August 21, 1971, does not necessarily bear out petitioners' view.
What is more, it may have been due precisely to the suspension of
the privilege. To be sure, one of its logical effects is to compel those
connected with the insurrection or rebellion to go into hiding. In fact,
most of them could not be located by the authorities, after August
21, 1971.
The alleged July-August Plan to terrorize Manila is branded as
incredible, upon the theory that, according to Professor Egbal
Ahman of Cornell University, "guerrilla use of terror ... is sociological
and psychologically selective," and that the indiscriminate resort to
terrorism is bound to boomerang, for it tends to alienate the people's
symphaty and to deprive the dissidents of much needed mass
support. The fact, however, is that the violence used is some
demonstrations held in Manila in 1970 and 1971 tended to terrorize
the bulk of its inhabitants. It would have been highly imprudent,
therefore, for the Executive to discard the possibility of a resort to
terrorism, on a much bigger scale, under the July-August Plan.
We will now address our attention to petitioners' theory to the effect
that the New People's Army of the Communist Party of the
Philippines is too small to pose a danger to public safety of such
magnitude as to require the suspension of the privilege of the writ
of habeas corpus. The flaw in petitioners' stand becomes apparent
when we consider that it assumes that the Armed Forces of the
Philippines have no other task than to fight the New People's Army,
and that the latter is the only threat — and a minor one — to our
security. Such assumption is manifestly erroneous.
The records before Us show that, on or before August 21, 1971, the
Executive had information and reports — subsequently confirmed,
in many respects, by the abovementioned Report of the Senate Ad-
Hoc Committee of Seven 25 — to the effect that the Communist
Party of the Philippines does not merely adhere to Lenin's idea of a
swift armed uprising; that it has, also, adopted Ho Chi Minh's
terrorist tactics and resorted to the assassination of uncooperative
local official; that, in line with this policy, the insurgents have killed
5 mayors, 20 barrio captains and 3 chiefs of police; that there were
fourteen (14) meaningful bombing incidents in the Greater Manila
Area in 1970; that the Constitutional Convention Hall was bombed
on June 12, 1971; that, soon after the Plaza Miranda incident, the
NAWASA main pipe, at the Quezon City-San Juan boundary, was
bombed; that this was followed closely by the bombing of the Manila
City Hall, the COMELEC building, the Congress Building and the
MERALCO substation at Cubao, Quezon City; and that the
respective residences of Senator Jose J. Roy and Congressman
Eduardo Cojuangco were, likewise, bombed, as were the
MERALCO main office premises, along Ortigas Avenue, and the
Doctor's Pharmaceuticals, Inc. Building, in Caloocan City.
Petitioners, similarly, fail to take into account that — as per said
information and reports — the reorganized Communist Party of the
Philippines has, moreover, adopted Mao's concept of protracted
people's war, aimed at the paralyzation of the will to resist of the
government, of the political, economic and intellectual leadership,
and of the people themselves; that conformably to such concept, the
Party has placed special emphasis upon a most extensive and
intensive program of subversion by the establishment of front
organizations in urban centers, the organization of armed city
partisans and the infiltration in student groups, labor unions, and
farmer and professional groups; that the CPP has managed to
infiltrate or establish and control nine (9) major labor organizations;
that it has exploited the youth movement and succeeded in making
Communist fronts of eleven (11) major student or youth
organizations; that there are, accordingly, about thirty (30) mass
organizations actively advancing the CPP interests, among which
are the Malayang Samahan ng Magsasaka (MASAKA), the
Kabataang Makabayan (KM), the Movement for the Advancement
of Nationalism (MAN), the Samahang Demokratiko ng Kabataan
(SDK), the Samahang Molave (SM) and the Malayang Pagkakaisa
ng Kabataang Pilipino(MPKP); that, as of August, 1971, the KM had
two hundred forty-five (245) operational chapters throughout the
Philippines, of which seventy-three (73) were in the Greater Manila
Area, sixty (60) in Northern Luzon, forty-nine (49) in Central Luzon,
forty-two (42) in the Visayas and twenty-one (21) in Mindanao and
Sulu; that in 1970, the Party had recorded two hundred fifty-eight
(258) major demonstrations, of which about thirty-three (33) ended
in violence, resulting in fifteen (15) killed and over five hundred (500)
injured; that most of these actions were organized, coordinated or
led by the aforementioned front organizations; that the violent
demonstrations were generally instigated by a small, but well-
trained group of armed agitators; that the number of demonstrations
heretofore staged in 1971 has already exceeded those of 1970; and
that twenty-four (24) of these demonstrations were violent, and
150
resulted in the death of fifteen (15) persons and the injury of many
more.
Subsequent events — as reported — have also proven that
petitioners' counsel have underestimated the threat to public safety
posed by the New People's Army. Indeed, it appears that, since
August 21, 1971, it had in Northern Luzon six (6) encounters and
staged one (1) raid, in consequence of which seven (7) soldiers lost
their lives and two (2)others were wounded, whereas the insurgents
suffered five (5) casualties; that on August 26, 1971, a well-armed
group of NPA, trained by defector Lt. Victor Corpus, attacked the
very command port of TF LAWIN in Isabela, destroying two (2)
helicopters and one (1) plane, and wounding one (1) soldier; that
the NPA had in Central Luzon a total of four (4) encounters, with two
(2) killed and three (3) wounded on the side of the Government, one
(1) BSDU killed and three (3) NPA casualties; that in an encounter
at Botolan, Zambales, one (1) KM-SDK leader, an unidentified
dissident, and Commander Panchito, leader of the dissident group
were killed; that on August 26, 1971, there was an encounter in the
barrio of San Pedro. Iriga City, Camarines Sur, between the PC and
the NPA, in which a PC and two (2) KM members were killed; that
the current disturbances in Cotabato and the Lanao provinces have
been rendered more complex by the involvement of the CPP/NPA,
for, in mid-1971, a KM group, headed by Jovencio Esparagoza,
contacted the Higa-onan tribes, in their settlement in Magsaysay,
Misamis Oriental, and offered them books, pamphlets and
brochures of Mao Tse Tung, as well as conducted teach-ins in the
reservation; that Esparagoza an operation of the PC in said
reservation; and that there are now two (2) NPA cadres in
Mindanao.
It should, also, be noted that adherents of the CPP and its front
organizations are, according to intelligence findings, definitely
capable of preparing powerful explosives out of locally available
materials; that the bomb used in the Constitutional Convention Hall
was a "clay-more" mine, a powerful explosive device used by the
U.S. Army, believed to have been one of many pilfered from the
Subic Naval Base a few days before; that the President had
received intelligence information to the effect that there was a July-
August Plan involving a wave of assassinations, kidnappings,
terrorism and mass destruction of property and that an extraordinary
occurence would signal the beginning of said event; that the rather
serious condition of peace and order in Mindanao, particularly in
Cotabato and Lanao, demanded the presence therein of forces
sufficient to cope with the situation; that a sizeable part of our armed
forces discharge other functions; and that the expansion of the CPP
activities from Central Luzon to other parts of the country,
particularly Manila and its suburbs, the Cagayan Valley, Ifugao,
Zambales, Laguna, Quezon and Bicol Region, required that the rest
of our armed forces be spread thin over a wide area.
Considering that the President was in possession of the above data
— except those related to events that happened after August 21,
1971 — when the Plaza Miranda bombing took place, the Court is
not prepared to hold that the Executive had acted arbitrarily or
gravely abused his discretion when he then concluded that public
safety and national security required the suspension of the privilege
of the writ, particularly if the NPA were to strike simultaneously with
violent demonstrations staged by the two hundred forty-five (245)
KM chapters, all over the Philippines, with the assistance and
cooperation of the dozens of CPP front organizations, and the
bombing or water mains and conduits, as well as electric power
plants and installations — a possibility which, no matter how remote,
he was bound to forestall, and a danger he was under obligation to
anticipate and arrest.
He had consulted his advisers and sought their views. He had
reason to feel that the situation was critical — as, indeed, it was —
and demanded immediate action. This he took believing in good
faith that public safety required it. And, in the light of the
circumstances adverted to above, he had substantial grounds to
entertain such belief.
Petitioners insist that, nevertheless, the President had no authority
to suspend the privilege in the entire Philippines, even if he may
have been justified in doing so in some provinces or cities thereof.
At the time of the issuance of Proclamation No. 889, he could not
be reasonably certain, however, about the placed to be excluded
from the operation of the proclamation. He needed some time to find
out how it worked, and as he did so, he caused the suspension to
be gradually lifted, first, on September 18, 1971, in twenty-seven
(27) provinces, three (3) sub-provinces and twenty six (26) cities;
then, on September 25, 1971, in order fourteen (14) provinces and
thirteen (13) cities; and, still later, on October 4, 1971, in seven (7)
additional provinces and four (4) cities, or a total of forty-eight (48)
provinces, three (3) sub-provinces and forth-three (43) cities, within
a period of forty-five (45) days from August 21, 1971.
Neither should We overlook the significance of another fact. The
President could have declared a generalsuspension of the privilege.
Instead, Proclamation No. 889 limited the suspension to persons
detained "for crimes of insurrection or rebellion, and all other crimes
and offenses committed by them in furtherance or on the occasion
thereof, or incident thereto, or in connection therewith." Even this
was further limited by Proclamation No. 889-A, which withdrew from
the coverage of the suspension persons detained for other crimes
and offenses committed "on the occasion" of the insurrection or
rebellion, or "incident thereto, in or connection therewith." In fact, the
petitioners in L-33964, L-33982 and L-34004 concede that the
President had acted in good faith.
In case of invasion, insurrection or rebellion or imminent danger
thereof, the President has, under the Constitution, three (3) courses
of action open to him, namely: (a) to call out the armed forces; (b)
to suspend the privilege of the writ of habeas corpus; and (c) to
place the Philippines or any part thereof under martial law. He had,
already, called out the armed forces, which measure, however,
proved inadequate to attain the desired result. Of the two (2)other
alternatives, the suspension of the privilege is the least harsh.
In view of the foregoing, it does not appear that the President has
acted arbitrary in issuing Proclamation No. 889, as amended, nor
that the same is unconstitutional.
III
The next question for determination is whether petitioners herein are
covered by said Proclamation, as amended. In other words, do
petitioners herein belong to the class of persons as to whom
privilege of the writ of habeas corpus has been suspended?
In this connection, it appears that Bayani Alcala, one of the
petitioners in L-33964, Gerardo Tomas, petitioner in L-34004, and
Reynaldo Rimando, petitioner in L-34013, were, on November 13,
1971, released "permanently" — meaning, perhaps, without any
intention to prosecute them — upon the ground that, although there
was reasonable ground to believe that they had committed an
offense related to subversion, the evidence against them is
insufficient to warrant their prosecution; that Teodosio Lansang, one
of the petitioners in L-33964, Rogelio Arienda, petitioner in L-33965,
Nemesio Prudente, petitioner in L-33982, Filomeno de Castro and
Barcelisa C. de Castro, for whose benefit the petition in L-34039
was filed, and Antolin Oreta, Jr., petitioner in L-34265, were, on said
date, "temporarily released"; that Rodolfo del Rosario, one of the
petitioners in
L-33964, Victor Felipe, an intervenor in L-33964, L-33965 and L-
33973, as well as Luzvimindo David, petitioner in L-33973, and Gary
Olivar, petitioner in L-34339, are still under detention and, hence,
deprived of their liberty, they — together with over forty (40) other
persons, who are at large — having been accused, in the Court of
First Instance of Rizal, of a violation of section 4 of Republic Act No.
1700 (Anti-Subversion Act); and that Angelo delos Reyes and
Teresito Sison, intervenors in said L-33964, L-33965 and
L-33973, are, likewise, still detained and have been charged —
together with over fifteen (15) other persons, who are, also, at large
— with another violation of said Act, in a criminal complaint filed with
the City Fiscal's Office of Quezon City.
With respect to Vicente Ilao and Juan Carandang — petitioners in
L-33965 — who were released as early as August 31, 1971, as well
as to petitioners Nemesio Prudente, Teodosio Lansang, Rogelio
Arienda, Antolin Oreta, Jr., Filomeno de Castro, Barcelisa C. de
Castro, Reynaldo Rimando, Gerardo Tomas and Bayani Alcala,
who were released on November 13, 1971, and are no longer
deprived of their liberty, their respective petitions have, thereby,
become moot and academic, as far as their prayer for release is
concerned, and should, accordingly, be dismissed, despite the
opposition thereto of counsel for Nemesio Prudente and Gerardo
Tomas who maintain that, as long as the privilege of the writ remains
suspended, these petitioners might be arrested and detained again,
without just cause, and that, accordingly, the issue raised in their
respective petitions is not moot. In any event, the common
constitutional and legal issues raised in these cases have, in fact,
been decided in this joint decision.
Must we order the release of Rodolfo del Rosario, one of the
petitioners in
151
L-33964, Angelo de los Reyes, Victor Felipe and Teresito Sison, agitation promoted by rallies,
intervenors in L-33964, L-33965 and L-33973, Luzvimindo David, demonstration and strikes
petitioner in L-33973, and Gary Olivar, petitioner in L-34339, who some of them violent in
are still detained? The suspension of the privilege of the writ was nature, intended to create
decreed by Proclamation No. 889, as amended, for persons social discontent, discredit
detained "for the crimes of insurrection or rebellion and other overt those in power and weaken
acts committed by them in furtherance thereof." the people's confidence in
the government; thru
The records shows that petitioners Luzvimindo David, Rodolfo del consistent propaganda by
Rosario, Victor Felipe, Angelo de los Reyes, Teresito Sison and publications, writing, posters,
Gary Olivar are accused in Criminal Case No. Q-1623 of the Court leaflets of similar means;
of First Instance of Rizal with a violation of the Anti-Subversion Act speeches, teach-ins,
messages, lectures or other
and that the similar charge against petitioners Angelo de los Reyes
and Teresito Sison in a criminal complaint, originally filed with the similar means; or thru the
media as the TV, radio or
City Fiscal of Quezon City, has, also, been filed with said court. Do
the offenses so charged constitute one of the crimes or overt acts newspapers, all intended to
mentioned in Proclamation No. 889, as amended? promote the Communist
pattern of subversion;

In the complaint in said Criminal Case No. 1623, it is alleged:

3. Thru urban guerilla
warfare characterized by
That in or about the year 1968 and for sometime assassinations, bombings,
prior thereto and thereafter up to and including sabotage, kidnapping and
August 21, 1971, in the city of Quezon, arson, intended to advertise
Philippines, and elsewhere in the Philippines, the movement, build up its
within the jurisdiction of this Honorable Court, morale and prestige,
the above-named accused knowingly, wilfully discredit and demoralize the
and by overt acts became officers and/or ranking authorities to use harsh and
leaders of the Communist Party of the repressive measures,
Philippines, a subversive association as defined demoralize the people and
by Republic Act No. 1700, which is an organized weaken their confidence in
conspiracy to overthrow the government of the the government and to
Republic of the Philippines by force, violence, weaken the will of the
deceit, subversion and other illegal means, for government to resist.
the purpose of establishing in the Philippines a
communist totalitarian regime subject to alien
domination and control; That the following aggravating circumstances
attended the commission of the offense:

That all the above-named accused, as such

officers and/or ranking leaders of the Communist a. That the offense was committed in contempt
Party of the Philippines conspiring, of and with insult to the public authorities;
confederating and mutual helping one another,
did then and there knowingly, wilfully, and b. That some of the overt acts were committed
feloniously and by overt acts committed in the Palace of the Chief Executive;
subversive acts all intended to overthrow the
government of the Republic of the Philippines, c. That craft, fraud, or disguise was employed;
as follows:

d. That the offense was committed with the aid

1. By rising publicly and
of armed men;
taking arms against the
forces of the government,
engaging in war against the e. That the offense was committed with the aid
forces of the of persons under fifteen(15) years old.
government, destroying
property or committing Identical allegations are made in the complaint filed with the City
serious violence, exacting Fiscal of Quezon City, except that the second paragraph thereof is
contributions or diverting slightly more elaborate than that of the complaint filed with the CFI,
public lands or property from although substantially the same. 26
the law purposes for which
they have been
appropriated; In both complaints, the acts imputed to the defendants herein
constitute rebellion and subversion, of — in the language of the
proclamation — "other overt acts committed ... in furtherance" of
2. By engaging by said rebellion, both of which are covered by the proclamation
subversion thru expansion suspending the privilege of the writ. It is clear, therefore, that the
and requirement activities crime for which the detained petitioners are held and deprived of
not only of the Communist their liberty are among those for which the privilege of the writ
Party of the Philippines but ofhabeas corpus has been suspended.
also of the united front
organizations of the
Communist Party of the Up to this point, the Members of the Court are unanimous on the
Philippines as the legal principles enunciated.
Kabataang Makabayan
(KM), Movement for the After finding that Proclamation No. 889, as amended, is not invalid
Democratic Philippines and that petitioners Luzvimindo David, Victor Felipe, Gary Olivar,
(MDP), Samahang Angelo de los Reyes, Rodolfo del Rosario and Teresito Sison are
Demokratikong Kabataan detained for and actually accused of an offense for which the
(SDK), Students' Alliance for privilege of the writ has been suspended by said proclamation, our
National Democracy next step would have been the following: The Court, or a
(STAND), MASAKA Olalia- commissioner designated by it, would have received evidence on
faction, Student Cultural whether — as stated in respondents' "Answer and Return" — said
Association of the University petitioners had been apprehended and detained "on reasonable
of the Philippines (SCAUP), belief" that they had "participated in the crime of insurrection or
KASAMA, Pagkakaisa ng rebellion."
Magbubukid ng Pilipinas
(PMP) and many others; thru
152
It is so happened, however, that on November 13, 1971 — or two
(2) days before the proceedings relative to the briefing held on
October 28 and 29, 1971, had been completed by the filing 27 of the
summary of the matters then taken up — the aforementioned
criminal complaints were filed against said petitioners. What is
more, the preliminary examination and/or investigation of the
charges contained in said complaints has already begun. The next
question, therefore, is: Shall We now order, in the cases at hand,
the release of said petitioners herein, despite the formal and
substantial validity of the proclamation suspending the privilege,
despite the fact that they are actually charged with offenses covered
by said proclamation and despite the aforementioned criminal
complaints against them and the preliminary examination and/or
investigations being conducted therein?
The Members of the Court, with the exception of Mr. Justice
Fernando, are of the opinion, and, so hold, that, instead of this Court
or its Commissioner taking the evidence adverted to above, it is best
to let said preliminary examination and/or investigation to be
completed, so that petitioners' released could be ordered by the
court of first instance, should it find that there is no probable cause
against them, or a warrant for their arrest could be issued, should a
probable cause be established against them. Such course of action
is more favorable to the petitioners, inasmuch as the preliminary
examination or investigation requires a greater quantum of proof
than that needed to establish that the Executive had not acted
arbitrary in causing the petitioners to be apprehended and detained
upon the ground that they had participated in the commission of the
crime of insurrection or rebellion. And, it is mainly for the reason that
the Court has opted to allow the Court of First Instance of Rizal to
proceed with the determination of the existence of probable cause,
although ordinarily the Court would have merely determined the
existence of the substantial evidence of petitioners' connection with
the crime of rebellion. Besides, the latter alternative would require
the reception of evidence by this Court and thus duplicate the
proceedings now taking place in the court of first instance. What is
more, since the evidence involved in the same proceedings would
be substantially the same and the presentation of such evidence
cannot be made simultaneously, each proceeding would tend
to delay the other.
Mr. Justice Fernando is of the opinion — in line with the view of Mr.
Justice Tuason, in Nava v. Gatmaitan, 28 to the effect that "... if and
when formal complaint is presented, the court steps in and the
executive steps out. The detention ceases to be an executive and
becomes a judicial concern ..." — that the filing of the above-
mentioned complaint against the six (6) detained petitioners herein,
has the effect of the Executive giving up his authority to continue
holding them pursuant to Proclamation No. 889, as amended, even
if he did not so intend, and to place them fully under the authority of
courts of justice, just like any other person, who, as such, cannot be
deprived of his liberty without lawful warrant, which has not, as yet,
been issued against anyone of them, and that, accordingly, We
should order their immediate release. Despite the humanitarian and
libertarian spirit with which this view had been espoused, the other
Members of the Court are unable to accept it because:
(a) If the proclamation suspending the privilege of the writ of habeas
corpus is valid — and We so hold it to be — and the detainee is
covered by the proclamation, the filing of a complaint or information
against him does not affect the suspension of said privilege, and,
consequently, his release may not be ordered by Us;
(b) Inasmuch as the filing of a formal complaint or information does
not detract from the validity and efficacy of the suspension of the
privilege, it would be more reasonable to construe the filing of said
formal charges with the court of first instance as an expression of
the President's belief that there are sufficient evidence to convict the
petitioners so charged and that hey should not be released,
therefore, unless and until said court — after conducting the
corresponding preliminary examination and/or investigation — shall
find that the prosecution has not established the existence of a
probable cause. Otherwise, the Executive would have released said
accused, as were the other petitioners herein;
(c) From a long-range viewpoint, this interpretation — of the act of
the President in having said formal charges filed — is, We believe,
more beneficial to the detainees than that favored by Mr. Justice
Fernando. His view — particularly the theory that the detainees
should be released immediately, without bail, even before the
completion of said preliminary examination and/or investigation —
would tend to induce the Executive to refrain from filing formal
charges as long as it may be possible. Manifestly, We should
encourage the early filing of said charges, so that courts of justice
could assume jurisdiction over the detainees and extend to them
effective protection.
Although some of the petitioners in these cases pray that the Court
decide whether the constitutional right to bail is affected by the
suspension of the privilege of the writ of habeas corpus, We do not
deem it proper to pass upon such question, the same not having
been sufficiently discussed by the parties herein. Besides, there is
no point in settling said question with respect to petitioners herein
who have been released. Neither is necessary to express our view
thereon, as regards those still detained, inasmuch as their release
without bail might still be decreed by the court of first instance,
should it hold that there is no probable cause against them. At any
rate, should an actual issue on the right to bail arise later, the same
may be brought up in appropriate proceedings.
WHEREFORE, judgment is hereby rendered:
1. Declaring that the President did not act arbitrarily in issuing
Proclamation No. 889, as amended, and that, accordingly, the same
is not unconstitutional;
2. Dismissing the petitions in L-33964, L-33965, L-33982, L-34004,
L-34013, L-34039 and L-34265, insofar as petitioners Teodosio
Lansang, Bayani Alcala, Rogelio Arienda, Vicentellao, Juan
Carandang, Nemesio E. Prudente, Gerardo Tomas, Reynaldo
Rimando, Filomeno M. de Castro, Barcelisa C. de Castro and
Antolin Oreta, Jr. are concerned;
3. The Court of First Instance of Rizal is hereby directed to act with
utmost dispatch in conducting the preliminary examination and/or
investigation of the charges for violation of the Anti-Subversion Act
filed against herein petitioners Luzvimindo David, Victor Felipe,
Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and Teresito
Sison, and to issue the corresponding warrants of arrest, if probable
cause is found to exist against them, or, otherwise, to order their
release; and
4. Should there be undue delay, for any reason whatsoever, either
in the completion of the aforementioned preliminary examination
and/or investigation, or in the issuance of the proper orders or
resolution in connection therewith, the parties may by motion seek
in these proceedings the proper relief.
5. Without special pronouncement as to costs. It is so ordered.
[G.R. No. 132852. May 31, 2000]
TEOFILO MARTINEZ, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
BELLOSILLO, J.:
This is a petition for certiorari under Rule 65, erroneously filed as a
petition for review on certiorari under Rule 45. But this procedural
infirmity notwithstanding, we have decided to give it due course to
resolve the question whether the Court of Appeals gravely abused
its discretion in denying petitioner's motion to appeal as a pauper
litigant.[1]
The antecedents: Petitioner was accused of homicide in Crim. Case
No. 5753 before the Regional Trial Court of Butuan City. [2] During
the hearing on 23 June 1994 petitioner represented by Atty. Jesus
G. Chavez of the Public Attorney's Office of Butuan City objected to
petitioner's motion to be allowed to litigate as pauper and moved
instead to strike out the entire testimony of the first witness for the
prosecution on the ground that it was inadmissible for being violative
of the testimonial privilege afforded to children in cases involving
their parents. The Presiding Judge[3] deferred his ruling on the
objection and allowed the testimony to be continued. [4] On 21 July
1994 the trial court issued an order overruling the objection. On 8
August 1994 the court denied the motion for reconsideration. [5] This
prompted petitioner to go to the Court of Appeals by way of a petition
for certiorari alleging that the trial court acted with grave abuse of
discretion amounting to lack of jurisdiction when it issued the
assailed orders.[6]
153
On 23 August 1994 petitioner filed before the Court of Appeals
a Motion to Litigate as Pauper attaching thereto supporting
affidavits executed by petitioner himself and by two (2) ostensibly
disinterested persons attesting to petitioner's eligibility to avail
himself of this privilege.[7] The appellate court subsequently issued
its resolution dated 21 March 1997 denying the motion and directing
petitioner to remit the docketing fees in the total amount of P420.00
within five (5) days from notice.[8] On 7 April 1997 petitioner filed
a Motion for Reconsideration of the order denying his motion to
litigate as a pauper, but this was similarly denied in the resolution of
8 October 1997.[9] Petitioner then filed a Manifestation on 28
October 1997 wherein he stated through counsel that he was
transmitting the docket fees required of his client "under protest" and
that the money remitted was advanced by his counsel, Atty. Jesus
G. Chavez himself.[10]The transmittal of the amount was evidenced
by two (2) postal money orders attached to the Motion to Litigate as
Pauper.[11]
In the assailed Resolution of 10 November 1997 the Court of
Appeals dismissed the petition, citing petitioners failure to pay the
required docket fee.[12] Petitioner moved for reconsideration citing
his compliance with the docket fee requirement as alleged in
his Manifestation adverted to above.[13] However, the Court of
Appeals in the second assailed Resolution of 21 January 1998
denied this latest motion on the ground that, per verification by the
Judicial Records Division, the amount remitted by petitioner as
docket fee was short of 150.00.[14] Msesm
The only issue expressly raised by petitioner is whether a motion to
litigate as pauper can be entertained by an appellate court. When
petitioner filed on 23 August 1994 his original motion to appeal as
pauper before the appellate court the applicable rule was the
second paragraph of Sec. 16, rule 41, of the 1964 Revised Rules of
Court, which provides-
Sec. 16. Appeal by pauper Where a party
desiring to appeal shall establish to the
satisfaction of the trial court that he is a pauper
and unable to pay the expenses of prosecuting
the appeal, and that the case is of such
importance, by reason of the amount involved,
or the nature of the question raised, that it ought
to be reviewed by the appellate court, the trial
judge may enter an order entitling the party to
appeal as pauper. The clerk shall transmit to the
appellate court the entire record of the case,
including the evidence taken on trial and the
record on appeal, and the case shall be heard in
the appellate court upon the original record so
transmitted without printing the same.Esmso
A petition to be allowed to appeal as pauper shall
not be entertained by the appellate court.
Even prior to the adoption of the 1964 Revised Rules of Court, the
Court had uniformly frowned upon appellate courts entertaining
petitions to litigate as pauper, holding that the question of whether
a party-litigant is so poor as to qualify him to litigate as pauper is a
question of fact which is best determined by the trial court. The trial
court is the court which may properly decide or pass upon the
question of fact which may require presentation of evidence whether
the appellant is an indigent and may appeal as such, and whether
the case is of such importance that, by reason not only of the
amount involved but of the nature of the question raised in the court
below, it ought to be reviewed by the appellate court. [15]
When the 1997 Rules of Civil Procedure came into effect on 1 July
1997 the provision abovequoted was not reenacted. Section 21 of
Rule 3, as now worded, outlines the procedure for, as well as the
effects of, the grant of a motion to litigate as pauper -
Sec. 21. Indigent party. - A party may be
authorized to litigate his action, claim or defense
as an indigent if the court, upon an ex
parte application and hearing, is satisfied that
the party is one who has no money or property
sufficient and available for food, shelter and
basic necessities for himself and his family.
Such authority shall include an exemption from
payment of docket and other lawful fees, and of
transcripts of stenographic notes which the court
may order to be furnished him. The amount of
the docket and other lawful fees which the
indigent was exempted from paying shall be a
lien on any judgment rendered in the case
favorable to the indigent, unless the court
otherwise provides. Esmmis
Any adverse party may contest the grant of such
authority at any time before judgment is
rendered by the trial court. If the court should
determine after hearing that the party declared
as an indigent is in fact a person with sufficient
income or property, the proper docket and other
lawful fees shall be assessed and collected by
the clerk of court. If payment is not made within
the time fixed by the court, execution shall issue
or the payment thereof, without prejudice to such
other sanctions as the court may impose.
On the other hand, Sec. 18 of Rule 141 prescribes the evidentiary
requirements for the exemption of pauper litigants from payment of
legal fees -
Sec. 18. Pauper-litigants exempt from payment
of legal fees. - Pauper-litigants (a) whose gross
income and that of their immediate family do not
exceed four thousand (P4,000.00) pesos a
month if residing in Metro Manila, and three
thousand (P3,000.00) pesos a month if residing
outside Metro Manila, and (b) who do not own
real property with an assessed value of more
than fifty thousand (P50,000.00) pesos shall be
exempt from the payment of legal fees. Esmsc
The legal fees shall be a lien on any judgment
rendered in the case favorably to the pauper-
litigant, unless the court otherwise provides.
To be entitled to the exemption herein provided,
the litigant shall execute an affidavit that he and
his immediate family do not earn the gross
income abovementioned, nor do they own any
real property with the assessed value
aforementioned, supported by an affidavit of a
disinterested person attesting to the truth of the
litigant's affidavit.
Any falsity in the affidavit of a litigant or
disinterested person shall be sufficient cause to
strike out the pleading of that party, without
prejudice to whatever criminal liability may have
been incurred. Esm
It cannot be inferred from any of the aforementioned provisions that
the restrictive policy enunciated by Sec. 16, Rule 41, of the 1964
Revised Rules of Court was carried over to the 1997 Rules of Civil
Procedure. Nowhere can we find a provision to the effect that "(a)
petition to be allowed to appeal as pauper shall not be entertained
by the appellate court."
We resolve to apply the present rules on petitioner retrospectively.
Statutes regulating the procedure of the courts will be construed as
applicable to actions pending and undetermined at the time of their
passage. In that sense and to that extent procedural laws are
retroactive.[16] We therefore hold that a motion to litigate as an
indigent can be made even before the appellate courts, either for
the prosecution of appeals, in petitions for review or in special civil
actions. Jksm
We believe that this interpretation of the present rules is more in
keeping with our Bill of Rights, which decrees that, "(f)ree access to
the courts and quasi-judicial bodies and adequate legal assistance
shall not be denied to any person by reason of poverty."[17] Our
espousal of the democratization of appellate remedies is shared by
the United States Supreme Court, speaking through Mr. Justice
Hugo L. Black -
There is no meaningful distinction between a
rule which would deny the poor the right to
defend themselves in a trial court and one which
effectively denies the poor an adequate
appellate review accorded to all who have
money enough to pay the costs in advance x x x
154
 x Such a denial is a misfit in a country dedicated
to affording equal justice to all and special Commander, the Honorable Court of Appeals in Cebu, 18th Division,
privileges to none in the administration of its
criminal law. There can be no equal justice and the spouses Gregorio Sanson and Ma. Lourdes T. Sanson,
where the kind of trial a man gets depends on
respondents.
the amount of money he has.[18]

A perusal of the records shows that petitioner has complied with all
the evidentiary requirements for prosecuting a motion to appear in The petition and its annexes disclose the following
court as a pauper. He has executed an affidavit attesting to the fact
that he and his immediate family do not earn a gross income of more material antecedents:
than P3,000.00 a month, and that their only real property, a hut,
cannot be worth more thanP10,000.00.[19] He has also submitted a
joint affidavit executed by Florencia L. Ongtico and Helen Maur, The private respondents spouses Gregorio Sanson and
both residents of Butuan City, who generally attested to the same
allegations contained in petitioner's own affidavit.[20] Based on this Ma. Lourdes T. Sanson (the private respondents), filed with the Fifth
evidence, the Court finds that petitioner is qualified to litigate as an
indigent. Chief Municipal Circuit Trial Court of Buruanga-Malay, Aklan (the MCTC)

a complaint[3] dated 24 April 2006 for forcible entry and damages

WHEREFORE, the questioned Resolution of the Court of Appeals
dated 10 November 1997 dismissing the petition for certiorari of with a prayer for the issuance of a writ of preliminary mandatory
petitioner Teofilo Martinez and its Resolution dated 21 January 1998
denying reconsideration are SET ASIDE for having been issued with injunction against the petitioners Daniel MasangkayTapuz,
grave abuse of discretion. Accordingly, this case is REMANDED for
appropriate action to the Court of Appeals which is further ordered Aurora Tapuz-Madriaga, Liberty M.
to allow petitioner to litigate as pauper and to return to him the
amount of P420.00 representing the docket fees he paid. Asuncion, Ladylyn Bamos Madriaga, Everly Tapuz Madriaga,

Excel Tapuz, IvanTapuz and Marian Timbas (the petitioners) and

SO ORDERED.
other John Does numbering about 120. The private respondents
DANIEL MASANGKAY TAPUZ, AURORA G.R. No. 182484 alleged in their complaint that: (1) they are the registered owners
TAPUZ-MADRIAGA, LIBERTY M. ASUNCION,
LADYLYN BAMOS MADRIAGA, EVERLY TAPUZ Present: under TCT No. 35813 of a 1.0093-hectare parcel of land located
MADRIAGA, EXCEL TAPUZ, IVAN TAPUZ AND
MARIAN TIMBAS, PUNO, C.J., at SitioPinaungon, Balabag, Boracay, Malay, Aklan (the disputed
Petitioners, QUISUMBING,
land); (2) they were the disputed lands prior possessors when the
YNARES-SANTIAGO,
- versus - CARPIO,
petitioners armed with bolos and carrying suspected firearms and
AUSTRIA-MARTINEZ,
HONORABLE JUDGE ELMO DEL ROSARIO, in CORONA,
his capacity as Presiding Judge of RTC Br. * together with unidentified persons numbering 120 - entered the
CARPIO MORALES,
5Kalibo, SHERIFF NELSON DELA CRUZ, in his AZCUNA,
disputed land by force and intimidation, without the private
capacity as Sheriff of the RTC, THE PHILIPPINE TINGA,
NATIONAL POLICE stationed in BoracayIsland, CHICO-NAZARIO,
respondents permission and against the objections of the private
represented by the PNP STATION * VELASCO, JR.,
COMMANDER, THE HONORABLE COURT OF * NACHURA, respondents security men, and built thereon a nipa and bamboo
APPEALS IN CEBU 18thDIVISION, SPOUSES REYES,
GREGORIO SANSON & MA.LOURDES T. LEONARDO-DEstructure.
CASTRO, and
SANSON, BRION, JJ.
Respondents.
Promulgated:
In their Answer[4] dated 14 May 2006, the petitioners
June 17, 2008
denied the material allegations of the complaint. They essentially
x------------------------------------------------------------------------------------------ x claimed that: (1) they are the actual and prior possessors of the

disputed land; (2) on the contrary, the private respondents are the

intruders; and (3) the private respondents certificate of title to the

RESOLUTION disputed property is spurious. They asked for the dismissal of the

complaint and interposed a counterclaim for damages.

BRION, J.:

The MCTC, after due proceedings, rendered on 2 January

Before us for the determination of sufficiency of form and
2007 a decision[5] in the private respondents favor. It found prior
substance (pursuant to Sections 1 and 4 of Rule 65 of the Revised
possession the key issue in forcible entry cases - in the private
Rules of Court; Sections 1 and 5 of the Rule on the Writ
respondents favor, thus:
of Amparo;[1] and Sections 1 and 6 of the Rule on the Writ of Habeas The key that could unravel the answer
to this question lies in the Amended
Data[2]) is the petition for certiorari and for the issuance of the writs Commissioners Report and Sketch found on
pages 245 to 248 of the records and the
of amparo and habeas data filed by the above-named petitioners evidence the parties have submitted. It is shown
in the Amended Commissioners Report and
against the Honorable Judge Elmo del Rosario [in his capacity as Sketch that the land in question is enclosed by a
concrete and cyclone wire perimeter fence in
presiding judge of RTC Br. 5, Kalibo], Sheriff Nelson de la Cruz [in pink and green highlighter as shown in the
Sketch Plan (p. 248). Said perimeter fence was
his capacity as Sheriff of the RTC], the Philippine National Police
constructed by the plaintiffs 14 years ago. The
stationed in Boracay Island, represented by the PNP Station foregoing findings of the Commissioner in his
report and sketch collaborated the claim of the
155
plaintiffs that after they acquired the land in
question on May 27, 1993 through a Deed of
Sale (Annex A, Affidavit of Gregorio Sanson, p.
276, rec.), they caused the construction of the
perimeter fence sometime in 1993 (Affidavit of
GregorioSanson, pp. 271-275, rec.).
From the foregoing established facts, it
could be safely inferred that the plaintiffs were in
actual physical possession of the whole lot in
question since 1993 when it was interrupted by
the defendants (sic) when on January 4, 2005
claiming to (sic) the Heirs of
AntonioTapuz entered a portion of the land in
question with view of inhabiting the same and
building structures therein prompting plaintiff
Gregorio Sanson to confront them before
BSPU, Police Chief Inspector Jack
L. Wanky and Barangay Captain
Glenn Sacapao. As a result of their
confrontation, the parties signed an Agreement
(Annex D, Complaint p. 20) wherein they agreed
to vacate the disputed portion of the land in
question and agreed not to build any structures
thereon.
The foregoing is the prevailing
situation of the parties after the incident of
January 4, 2005 when the plaintiff posted
security guards, however, sometime on or about
6:30 A.M. of April 19, 2006, the defendants
some with bolos and one carrying a sack
suspected to contain firearms with other John
Does numbering about 120 persons by force
and intimidation forcibly entered the premises
along the road and built a nipa and bamboo
structure (Annex E, Complaint, p. 11) inside the
lot in question which incident was promptly
reported to the proper authorities as shown by
plaintiffs Certification (Annex F, Complaint, p.
12) of the entry in the police blotter and on same
date April 19, 2006, the plaintiffs filed a
complaint with the Office of
the Lupong Tagapamayapa of Barangay Balab
ag, Boracay Island, Malay, Aklanbut no
settlement was reached as shown in their
Certificate to File Action (Annex G, Complaint, p.
13); hence the present action.
Defendants (sic) contend in their
answer that prior to January 4, 2005, they were
already occupants of the property, being
indigenous settlers of the same, under claim of
ownership by open continuous, adverse
possession to the exclusion of other
(sic).(Paragraph 4, Answer, p. 25).
The contention is untenable. As
adverted earlier, the land in question is enclosed
by a perimeter fence constructed by the plaintiffs
sometime in 1993 as noted by the
Commissioner in his Report and reflected in his
Sketch, thus, it is safe to conclude that the
plaintiffs where (sic) in actual physical
possession of the land in question from 1993 up
to April 19, 2006 when they were
ousted therefrom by the defendants by means of
force. Applying by analogy the ruling of the
Honorable Supreme Court in the case of Molina,
et al. vs. De Bacud, 19 SCRA 956, if the land
were in the possession of plaintiffs from 1993 to
April 19, 2006, defendants claims to an older
possession must be rejected as untenable
because possession as a fact cannot be
recognized at the same time in two different
personalities.
Defendants likewise contend that it
was the plaintiffs who forcibly entered the land in
question on April 18, 2006 at about 3:00
oclock in the afternoon as shown in their
Certification (Annex D, Defendants Position
Paper, p. 135, rec.).
The contention is untenable for being
inconsistent with their allegations made to the
commissioner who constituted (sic) the land in
question that they built structures on the land in
question only on April 19, 2006 (Par. D.4,
Commissioners Amended Report, pp. 246 to
247), after there (sic) entry thereto on even date.
Likewise, said contention is
contradicted by the categorical statements of
defendants witnesses,
Rowena Onag, ApolsidaUmambong, Ariel Gac,
Darwin Alvarez and Edgardo Pinaranda, in their
Joint Affidavit (pp. 143- 144, rec.) [sic]
categorically stated that on or about April 19,
2006, a group of armed men entered the
property of our said neighbors and built plastic
roofed tents. These armed men threatened to
drive our said neighbors away from their homes
but they refused to leave and resisted the
intruding armed men.
From the foregoing, it could be safely
inferred that no incident of forcible entry
happened on April 18, 2006 but it was only
onApril 19, 2006 when the defendants
overpowered by their numbers the security
guards posted by the plaintiffs prior to the
controversy.
Likewise, defendants (sic) alleged
burnt and other structures depicted in their
pictures attached as annexes to their position
paper were not noted and reflected in the
amended report and sketch submitted by the
Commissioner, hence, it could be safely inferred
that these structures are built and (sic) situated
outside the premises of the land in question,
accordingly, they are irrelevant to the instant
case and cannot be considered as evidence of
their actual possession of the land in question
prior to April 19, 2006[6].
The petitioners appealed the MCTC decision to the
Regional Trial Court (RTC, Branch 6 of Kalibo, Aklan) then presided
over by Judge Niovady M. Marin (Judge Marin).
On appeal, Judge Marin granted the private respondents
motion for the issuance of a writ of preliminary mandatory
injunctionthrough an Order dated 26 February 2007, with the
issuance conditioned on the private respondents posting of a
bond. The writ[7]authorizing the immediate implementation of the
MCTC decision was actually issued by respondent Judge Elmo
F. del Rosario (therespondent Judge) on 12 March 2007 after the
private respondents had complied with the imposed condition. The
petitioners moved to reconsider the issuance of the writ; the private
respondents, on the other hand, filed a motion for demolition.
The respondent Judge subsequently denied the
petitioners Motion for Reconsideration and to Defer Enforcement of
Preliminary Mandatory Injunction in an Order dated 17 May 2007[8].
Meanwhile, the petitioners opposed the motion for
demolition.[9] The respondent Judge nevertheless issued via a
Special Order[10] a writ of demolition to be implemented fifteen (15)
days after the Sheriffs written notice to the petitioners to voluntarily
demolish their house/s to allow the private respondents to effectively
take actual possession of the land.
156

The petitioners thereafter filed on 2 August 2007 with the
Court of Appeals, Cebu City, a Petition for Review[11] (under Rule 42
of the 1997 Rules of Civil Procedure) of the Permanent Mandatory
Injunction and Order of Demolition of the RTC of Kalibo, Br. 6
in Civil Case No. 7990.
Meanwhile, respondent Sheriff Nelson R. dela Cruz
issued the Notice to Vacate and for Demolition on 19 March 2008.[12]
It was against this factual backdrop that the petitioners
filed the present petition last 29 April 2008. The petition contains
and prays for three remedies, namely: a petition for certiorari under
Rule 65 of the Revised Rules of Court; the issuance of a writ of
habeas data under the Rule on the Writ of Habeas Data; and finally,
the issuance of the writ of amparo under the Rule on the Writ
ofAmparo.
To support the petition and the remedies prayed for, the
petitioners present factual positions diametrically opposed to
theMCTCs findings and legal reasons. Most importantly, the
petitioners maintain their claims of prior possession of the disputed
land and of intrusion into this land by the private respondents. The
material factual allegations of the petition bases as well of the
petition for the issuance of the writ of amparo read:
29. On April 29, 2006 at about 9:20 a.m. armed
men sporting 12 gauge shot guns intruded
into the property of the defendants [the land
in dispute]. They were not in uniform. They fired
their shotguns at the defendants. Later the
following day at 2:00 a.m. two houses of the
defendants were burned to ashes.
30. These armed men [without uniforms]
removed the barbed wire fence put up by
defendants to protect their property from
intruders. Two of the armed men trained their
shotguns at the defendants who resisted their
intrusion. One of them who was identified as
SAMUEL LONGNO y GEGANSO, 19 years old,
single, and a resident of Binun-an, Batad, Iloilo,
fired twice.
31. The armed men torched two houses of
the defendants reducing them to ashes. [...]
32. These acts of TERRORISM and (heinous
crime) of ARSON were reported by one of the
HEIRS OF ANTONIO TAPUZ [...].The
terrorists trained their shotguns and fired at
minors namely IVAN GAJISAN and MICHAEL
MAGBANUA, who resisted their
intrusion. Their act is a blatant violation of
the law penalizing Acts of Violence against
women and children, which is aggravated by
the use of high-powered weapons.
[]
34. That the threats to the life and
security of the poor indigent and unlettered
petitioners continue because the private
respondentsSansons have under their employ
armed men and they are influential with the
police authorities owing to their financial and
political clout.
35. The actual prior occupancy, as well
as the ownership of the lot in dispute by
defendants and the atrocities of the terrorists
[introduced into the property in dispute by the
plaintiffs] are attested by witnesses who are
persons not related to the defendants are
therefore disinterested witnesses in the case
namely: Rowena Onag, Apolsida Umambong,
Ariel Gac, Darwin Alvarez
and EdgardoPenarada. Likewise, the affidavit
of Nemia T. Carmen is submitted to prove that
the plaintiffs resorted to atrocious acts through
hired men in their bid to unjustly evict the
defendants.[13]
The petitioners posit as well that the MCTC has no jurisdiction over
the complaint for forcible entry that the private respondents filed
below. Citing Section 33 of The Judiciary Reorganization Act of
1980, as amended by Republic Act No. 7691,[14] they maintain that
the forcible entry case in fact involves issues of title to or possession
of real property or an interest therein, with the assessed value of the
property involved exceeding P20,000.00; thus, the case should be
originally cognizable by the RTC.Accordingly, the petitioners reason
out that the RTC - to where the MCTC decision was appealed
equally has no jurisdiction to rule on the case on appeal and could
not have validly issued the assailed orders.
OUR RULING
We find the petitions for certiorari and issuance of a writ of
habeas data fatally defective, both in substance and in
form.The petition for the issuance of the writ of amparo, on the
other hand, is fatally defective with respect to content and
substance.
The Petition for Certiorari
We conclude, based on the outlined material antecedents that led
to the petition, that the petition for certiorari to nullify the assailed
RTC orders has been filed out of time. It is not lost on us that the
petitioners have a pending petition with the Court of Appeals (theCA
petition) for the review of the same RTC orders now assailed in the
present petition, although the petitioners never disclosed in the body
of the present petition the exact status of their pending CA
petition. The CA petition, however, was filed with the Court of
Appeals on 2 August 2007, which indicates to us that the assailed
orders (or at the very least, the latest of the interrelated assailed
orders) were received on 1 August 2007 at the latest. The present
petition, on the other hand, was filed on April 29, 2008 or more than
eight months from the time the CA petition was filed. Thus, the
present petition is separated in point of time from the assumed
receipt of the assailed RTC orders by at least eight (8) months, i.e.,
beyond the reglementary period of sixty (60) days[15] from receipt of
the assailed order or orders or from notice of the denial of a
seasonably filed motion for reconsideration.
We note in this regard that the petitioners counsel stated in his
attached Certificate of Compliance with Circular #1-88 of the
Supreme Court[16] (Certificate of Compliance) that in the meantime
the RTC and the Sheriff issued a NOTICE TO VACATE AND FOR
DEMOLITION not served to counsel but to the petitioners who sent
photo copy of the same NOTICE to their counsel on April 18, 2008
by LBC. To guard against any insidious argument that the present
petition is timely filed because of this Notice to Vacate, we feel it
157
best to declare now that the counting of the 60-
day reglementary period under Rule 65 cannot start from the April
18, 2008 date cited by the petitioners counsel. The Notice to Vacate
and for Demolition is not an order that exists independently from the
RTC orders assailed in this petition and in the previously filed CA
petition. It is merely a notice, made in compliance with one of the
assailed orders, and is thus an administrative enforcement medium
that has no life of its own separately from the assailed order on
which it is based. It cannot therefore be the appropriate subject of
an independent petition for certiorari under Rule 65 in the context of
this case. The April 18, 2008 date cannot likewise be the material
date for Rule 65 purposes as the above-mentioned Notice to Vacate
is not even directly assailed in this petition, as the petitions Prayer
patently shows.[17]

Based on the same material antecedents, we find too that

the petitioners have been guilty of willful and deliberate
misrepresentation before this Court and, at the very least, of forum
shopping.

By the petitioners own admissions, they filed a petition with the

Court of Appeals (docketed as CA G.R. SP No. 02859) for the
review of the orders now also assailed in this petition, but brought
the present recourse to us, allegedly because the CA did not act on
the petition up to this date and for the petitioner (sic) to seek relief
in the CA would be a waste of time and would render the case moot
and academic since the CA refused to

158
resolve pending urgent motions and the Sheriff is determined to forum, in an attempt to seek a favorable opinion in another, other
enforce a writ of demolition despite the defect of LACK OF than by appeal or a special civil action for certiorari. Forum shopping
JURISDICTION.[18] trifles with the courts, abuses their processes, degrades the
administration of justice and congest court dockets. Willful and
Interestingly, the petitioners counsel - while making this claim in the deliberate violation of the rule against it is a ground for summary
body of the petition - at the same time represented in his Certificate dismissal of the case; it may also constitute direct contempt. [20]
of Compliance[19] that:
xxx
Additionally, the required verification and certification of non-forum
(e) the petitioners went up to the Court of shopping is defective as one (1) of the seven (7) petitioners -
Appeals to question the WRIT OF
PRELIMINARY INJUNCTION copy of the Ivan Tapuz - did not sign, in violation of Sections 4 and 5 of Rule 7;
petition is attached (sic); Section 3, Rule 46; Section 1, Rule 65; all in relation with Rule 56 of

(f) the CA initially issued a resolution the Revised Rules of Court. Of those who signed, only five (5)
denying the PETITION because it held that exhibited their postal identification cards with the Notary Public.
the ORDER TO VACATE AND FOR
DEMOLITION OF THE HOMES OF
PETITIONERS is not capable of being the In any event, we find the present petition for certiorari, on its face
subject of a PETITION FOR RELIEF, copy of
the resolution of the CA is attached and on the basis of the supporting attachments, to be devoid of
hereto; (underscoring supplied) merit. The MCTC correctly assumed jurisdiction over the private
(g) Petitioners filed a motion for reconsideration respondents complaint, which specifically alleged a cause for
on August 7, 2007 but up to this date the same forcible entry and not as petitioners may have misread
had not been resolved copy of the MR is
attached (sic). or misappreciated a case involving title to or possession of realty or
an interest therein. Under Section 33, par. 2 of The Judiciary
xxx
Reorganization Act, as amended by Republic Act (R.A.) No. 7691,
exclusive jurisdiction over forcible entry and unlawful detainer cases
The difference between the above representations on what
lies with the Metropolitan Trial Courts, Municipal Trial Courts and
transpired at the appellate court level is replete with significance
Municipal Circuit Trial Courts. These first-level courts have had
regarding the petitioners intentions. We discern -- from the
jurisdiction over these cases called accion interdictal even before
petitioners act of misrepresenting in the body of their petition
the R.A. 7691 amendment, based on the issue of
that the CA did not act on the petition up to this date while stating
pure physical possession (as opposed to the right of
the real Court of Appeals action in the Certification of Compliance -
possession). This jurisdiction is regardless of the assessed value of
- the intent to hide the real state of the remedies the petitioners
the property involved; the law established no distinctions based on
sought below in order to mislead us into action on the RTC orders
the assessed value of the property forced into or unlawfully
without frontally considering the action that the Court of Appeals had
detained. Separately
already undertaken.
from accion interdictal are accion publiciana for the recovery of the
right of possession as a plenary action,
At the very least, the petitioners are obviously seeking to obtain from
and accion reivindicacion for the recovery of
us, via the present petition, the same relief that it could not wait for
[21]
ownership. Apparently, these latter actions are the ones the
from the Court of Appeals in CA-G.R. SP No. 02859. The petitioners
petitioners refer to when they cite Section 33, par. 3, in relation with
act of seeking against the same parties the nullification of the same
Section 19, par. 2 of The Judiciary Reorganization Act of 1980, as
RTC orders before the appellate court and before us at the same
amended by Republic Act No. 7691, in which jurisdiction may either
time, although made through different mediums that are both
be with the first-level courts or the regional trial
improperly used, constitutes willful and deliberate forum shopping
courts, depending on the assessed value of the realty subject of the
that can sufficiently serve as basis for the summary dismissal of the
litigation. As the complaint at the MCTC was patently for forcible
petition under the combined application of the fourth and
entry, that court committed no jurisdictional error correctible by
penultimate paragraphs of Section 3, Rule 46; Section 5, Rule 7;
certiorari under the present petition.
Section 1, Rule 65; and Rule 56, all of the Revised Rules of
Court. That a wrong remedy may have been used with the Court of
In sum, the petition for certiorari should be dismissed for the
Appeals and possibly with us will not save the petitioner from a
cited formal deficiencies, for violation of the non-forum
forum-shopping violation where there is identity of parties, involving
shopping rule, for having been filed out of time, and for
the same assailed interlocutory orders, with the recourses existing
substantive deficiencies.
side by side at the same time.

To restate the prevailing rules, forum shopping is the institution of

The Writ of Amparo
two or more actions or proceedings involving the same parties for
the same cause of action, either simultaneously or successively, on
To start off with the basics, the writ of amparo was
the supposition that one or the other court would make a favorable
originally conceived as a response to the extraordinary rise in the
disposition. Forum shopping may be resorted to by any party
number of killings and enforced disappearances, and to the
against whom an adverse judgment or order has been issued in one

159

perceived lack of available and effective remedies to address these
extraordinary concerns. It is intended to address violations of or
threats to the rights to life, liberty or security, as an extraordinary
and independent remedy beyond those available under the
prevailing Rules, or as a remedy supplemental to these Rules. What
it is not, is a writ to protect concerns that are purely property
or commercial. Neither is it a writ that we shall issue on
amorphous and uncertain grounds. Consequently, the Rule on
the Writ of Amparo in line with the extraordinary character of the writ
and the reasonable certainty that its issuance demands requires
that every petition for the issuance of the Pwrit must be supported
by justifying allegations of fact, to wit:
(a) The personal circumstances of the
petitioner;
(b) The name and personal
circumstances of the respondent responsible for
the threat, act or omission, or, if the name is
unknown or uncertain, the respondent may be
described by an assumed appellation;
(c) The right to life, liberty and
security of the aggrieved party violated or
threatened with violation by an unlawful act
or omission of the respondent, and how such
threat or violation is committed with the
attendant circumstances detailed in
supporting affidavits;
(d) The investigation conducted, if
any, specifying the names, personal
circumstances, and addresses of the
investigating authority or individuals, as well
as the manner and conduct of the
investigation, together with any report;
(e) The actions and recourses taken by
the petitioner to determine the fate or
whereabouts of the aggrieved party and the
identity of the person responsible for the threat,
act or omission; and
(f) The relief prayed for.
The petition may include a general
prayer for other just and equitable reliefs.[22]
The writ shall issue if the Court is preliminarily satisfied with
the prima facie existence of the ultimate facts determinable from the
supporting affidavits that detail the circumstances of how and to
what extent a threat to or violation of the rights to life, liberty and
security of the aggrieved party was or is being committed.
The issuance of the writ of amparo in the present case is anchored
on the factual allegations heretofore quoted, [23] that are essentially
repeated in paragraph 54 of the petition. These allegations are
supported by the following documents:
(a) Joint Affidavit dated 23 May 2006 of Rowena
B. Onag, Apolsida Umambong, Ariel Gac,
Darwin Alvarez andEdgardo Pinaranda,
supporting the factual positions of the
petitioners, id., petitioners prior possession,
private respondents intrusion and the illegal acts
committed by the private respondents and their
security guards on 19 April 2006;
(b) Unsubscribed Affidavit of Nemia Carmen
y Tapuz, alleging the illegal acts (firing of guns,
etc.) committed by a security guard against
minors descendants of Antonio Tapuz;
(c) Unsubscribed Affidavit of
Melanie Tapuz y Samindao, essentially
corroborating Nemias affidavit;
(d) Certification dated 23 April 2006 issued by
Police Officer Jackson Jauod regarding the
incident of petitioners intrusion into the disputed
land;
(e) Certification dated 27 April 2006 issued by
Police Officer Allan R. Otis, narrating the
altercation between theTapuz family and the
security guards of the private respondents,
including the gun-poking and shooting incident
involving one of the security guards;
(f) Certification issued by Police Officer Christopher R.
Mendoza, narrating that a house owned
by Josiel Tapuz, Jr., rented by a certain
Jorge Buenavente, was accidentally burned
by a fire.
On the whole, what is clear from these statements - both sworn
and unsworn - is the overriding involvement of property issues as
the petition traces its roots to questions of physical possession of
the property disputed by the private parties. If at all, issues relating
to the right to life or to liberty can hardly be discerned except to the
extent that the occurrence of past violence has been alleged.The
right to security, on the other hand, is alleged only to the extent of
the threats and harassments implied from the presence of armed
men bare to the waist and the alleged pointing and firing of
weapons. Notably, none of the supporting affidavits
compellingly show that the threat to the rights to life, liberty
and security of the petitioners is imminent or is continuing.
A closer look at the statements shows that at least two of them the
statements of Nemia Carreon y Tapuz and Melanie Tapuz are
practically identical and unsworn. The Certification by Police Officer
Jackson Jauod, on the other hand, simply narrates what had been
reported by one Danny Tapuz y Masangkay, and even mentions
that the burning of two residential houses was accidental.
As against these allegations are the cited MCTC factual findings in
its decision in the forcible entry case which rejected all the
petitioners factual claims. These findings are significantly complete
and detailed, as they were made under a full-blown judicial process,
i.e., after examination and evaluation of the contending parties
positions, evidence and arguments and based on the report of a
court-appointed commissioner.
We preliminarily examine these conflicting factual positions under
the backdrop of a dispute (with incidents giving rise to allegations of
violence or threat thereof) that was brought to and ruled upon by the
MCTC; subsequently brought to the RTC on anappeal that is still
pending; still much later brought to the appellate court without
conclusive results; and then brought to us on interlocutory incidents
involving a plea for the issuance of the writ of amparo that, if decided
as the petitioners advocate, may render the pending RTC appeal
moot.
Under these legal and factual situations, we are far from satisfied
with the prima facie existence of the ultimate facts that would justify
the issuance of a writ of amparo. Rather than acts of terrorism that
pose a continuing threat to the persons of the petitioners, the violent
incidents alleged appear to us to be purely property-related and
focused on the disputed land. Thus, if the petitioners wish to seek
160
redress and hold the alleged perpetrators criminally accountable,
the remedy may lie more in the realm of ordinary criminal
prosecution rather than on the use of the extraordinary remedy of
the writ of amparo.
Nor do we believe it appropriate at this time to disturb the MCTC
findings, as our action may carry the unintended effect, not only of
reversing the MCTC ruling independently of the appeal to the RTC
that is now in place, but also of nullifying the ongoing appeal
process. Such effect, though unintended, will obviously wreak havoc
on the orderly administration of justice, an overriding goal that the
Rule on the Writ of Amparo does not intend to weaken or negate.
Separately from these considerations, we cannot fail but consider
too at this point the indicators, clear and patent to us, that the
petitioners present recourse via the remedy of the writ of amparo is
a mere subterfuge to negate the assailed orders that the petitioners
sought and failed to nullify before the appellate court because of the
use of an improper remedial measure. We discern this from the
petitioners misrepresentations pointed out above; from their obvious
act of forum shopping; and from the recourse itself to the
extraordinary remedies of the writs of certiorari and amparo based
on grounds that are far from forthright and sufficiently
compelling. To be sure, when recourses in the ordinary course of
law fail because of deficient legal representation or the use of
improper remedial measures, neither the writ of certiorari nor that
of amparo - extraordinary though they may be - will suffice to serve
as a curative substitute. The writ of amparo, particularly, should not
issue when applied for as a substitute for the appeal or certiorari
process, or when it will inordinately interfere with these processes
the situation obtaining in the present case.
While we say all these, we note too that the Rule on the Writ
of Amparo provides for rules on the institution of separate
[24] [25]
actions, for the effect of earlier-filed criminal actions, and for the
consolidation of petitions for the issuance of a writ of amparo with a
[26]
subsequently filed criminal and civil action. These rules were
adopted to promote an orderly procedure for dealing with petitions
for the issuance of the writ of amparo when the parties resort to
other parallel recourses.
Where, as in this case, there is an ongoing civil process dealing
directly with the possessory dispute and the reported acts of
violence and harassment, we see no point in separately and directly
intervening through a writ of amparo in the absence of any
clear prima facie showing that the right to life, liberty or security
the personal concern that the writ is intended to protect - is
immediately in danger or threatened, or that the danger or threat is
continuing. We see no legal bar, however, to an application for the
issuance of the writ, in a proper case, by motion in a pending case
on appeal or on certiorari, applying by analogy the provisions on the
co-existence of the writ with a separately filed criminal case.
The Writ of Habeas Data
Section 6 of the Rule on the Writ of Habeas Data requires
the following material allegations of ultimate facts in a petition for the
issuance of a writ of habeas data:
(a) The personal circumstances of the petitioner
and the respondent;
(b) The manner the right to privacy is violated
or threatened and how it affects the right to
life, liberty or security of the aggrieved party;
(c) The actions and recourses taken by the
petitioner to secure the data or information;
(d) The location of the files, registers or
databases, the government office, and the
person in charge, in possession or in control
of the data or information, if known;
(e) The reliefs prayed for, which may include the
updating, rectification, suppression or
destruction of the database or information or
files kept by the respondent.
In case of threats, the relief may include a prayer
for an order enjoining the act complained of; and
(f) Such other relevant reliefs as are just and equitable.
Support for the habeas data aspect of the present petition
only alleges that:
1. [ ] Similarly, a petition for a WRIT OF
HABEAS DATA is prayed for so that the PNP
may release the report on the burning of the
homes of the petitioners and the acts of violence
employed against them by the private
respondents, furnishing the Court and the
petitioners with copy of the same;
[]
66. Petitioners apply for a WRIT OF
HABEAS DATA commanding the Philippine
National Police [PNP] to produce the police
report pertaining to the burning of the houses of
the petitioners in the land in dispute and likewise
the investigation report if an investigation was
conducted by the PNP.
These allegations obviously lack what the Rule on Writ of
Habeas Data requires as a minimum, thus rendering the petition
fatally deficient. Specifically, we see no concrete allegations of
unjustified or unlawful violation of the right to privacy related to the
right to life, liberty or security. The petition likewise has not alleged,
much less demonstrated, any need for information under the control
of police authorities other than those it has already set forth as
integral annexes. The necessity or justification for the issuance of
the writ, based on the insufficiency of previous efforts made to
secure information, has not also been shown. In sum, the prayer for
the issuance of a writ of habeas data is nothing more than the fishing
expedition that this Court - in the course of drafting the Rule on
habeas data - had in mind in defining what the purpose of a writ of
habeas data is not. In these lights, the outright denial of the petition
for the issuance of the writ of habeas data is fully in order.
WHEREFORE, premises considered, we
hereby DISMISS the present petition OUTRIGHT for deficiencies of
form and substance patent from its body and attachments.
ARMANDO Q. CANLAS, MIGUEL D. CAPISTRANO, MARRIETA
PIA, petitioners,
vs.
NAPICO HOMEOWNERS ASS’N., I – XIII, INC., ET
AL., respondents.
161
RESOLUTION surmise that these rights and interest had already been threshed out
and settled in the four cases cited above. No writ of amparo may be
REYES, R.T., J.: issued unless there is a clear allegation of the supposed factual and
legal basis of the right sought to be protected.
THE present petition filed on May 26, 2008 seeks the issuance of
a Writ of Amparo upon the following premise: Under Section 6 of the same rules, the court shall issue the writ upon
the filing of the petition, only if on its face, the court ought to issue
Petitioners were deprived of their liberty, freedom and/or rights to
said writ.
shelter enshrined and embodied in our Constitution, as the result of
these nefarious activities of both the Private and Public Section 6. Issuance of the Writ. – Upon the filing of the petition, the
Respondents. This ardent request filed before this Honorable court, justice or judge shall immediately order the issuance of the
Supreme Court is the only solution to this problem via this newly writ if on its face it ought to issue. The clerk of court shall issue the
advocated principles incorporated in the Rules – the "RULE ON writ under the seal of the court; or in case of urgent necessity, the
THE WRIT OF AMPARO."1 justice or the judge may issue the writ under his or her own hand,
and may deputize any officer or person to serve it.
It appears that petitioners are settlers in a certain parcel of land
situated in Barangay Manggahan, Pasig City. Their The writ shall also set the date and time for summary hearing of the
dwellings/houses have either been demolished as of the time of petition which shall not be later than seven (7) days from the date of
filing of the petition, or is about to be demolished pursuant to a court its issuance.
judgment.
Considering that there is no legal basis for its issuance, as in this
While they attempted to focus on issuance of what they claimed to case, the writ will not be issued and the petition will be dismissed
be fraudulent and spurious land titles, to wit: outright.
Petitioners herein are desirous to help the government, the best way This new remedy of writ of amparo which is made available by this
they can, to unearth these so-called "syndicates" clothed with Court is intended for the protection of the highest possible rights of
governmental functions, in cahoots with the "squatting syndicates" any person, which is his or her right to life, liberty and security. The
- - - - the low so defines. If only to give its proper meanings, the Court will not spare any time or effort on its part in order to give
Government must be the first one to cleans (sic) its ranks from these priority to petitions of this nature. However, the Court will also not
unscrupulous political protégées. If unabated would certainly ruin waste its precious time and effort on matters not covered by the writ.
and/or destroy the efficacy of the Torrens System of land
registration in this Country. It is therefore the ardent initiatives of the
herein Petitioners, by way of the said prayer for the issuance of
the Writ of Amparo, that these unprincipled Land Officials be THE SECRETARY OF G.R. No. 180906
summoned to answer their participation in the issuances of NATIONAL DEFENSE, THE
these fraudulent and spurious titles, NOW, in the hands of the CHIEF OF STAFF, ARMED Present:
FORCES OF
Private Respondents. The Courts of Justice, including this
THEPHILIPPINES, PUNO, C.J.,
Honorable Supreme Court, are likewise being made to believe Petitioners, QUISUMBING,
that said titles in the possession of the Private Respondents YNARES-SANTIAGO,
were issued untainted with frauds.2 CARPIO,
AUSTRIA-MARTINEZ,
what the petition ultimately seeks is the reversal of this Court’s CORONA,
dismissal of petitions in G.R. Nos. 177448, 180768, 177701, CARPIO MORALES,
177038, thus: AZCUNA,
- versus - TINGA,
That, Petitioners herein knew before hand that: there can be no CHICO-NAZARIO,
motion for reconsideration for the second or third time to be filed VELASCO, JR.,
before this Honorable Supreme Court. As such therefore, NACHURA,
Petitioners herein are aware of the opinion that this present petition REYES,
should not in any way be treated as such motions fore LEONARDO-DE
reconsideration. Solely, this petition is only for the possible issuance CASTRO, and
of the writ of amparo, although it might affect the previous rulings of RAYMOND MANALO and BRION, JJ.
this Honorable Supreme Court in these cases, G.R. Nos. 177448, REYNALDO MANALO,
180768, 177701 and 177038. Inherent in the powers of the Respondents. Promulgated:
Supreme Court of the Philippines is to modify, reverse and set October 7, 2008
x- - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
aside, even its own previous decision, that can not be thwarted
- - - -x
nor influenced by any one, but, only on the basis of merits and
evidence. This is the purpose of this petition for theWrit of DECISION
Amparo.3

We dismiss the petition. PUNO, C.J.:

The Rule on the Writ of Amparo provides:
While victims of enforced disappearances are separated from the
Section 1. Petition. – The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and security is rest of the world behind secret walls, they are not separated from
violated or threatened with violation by an unlawful act or omission
of a public official or employee, or of a private individual or entity. the constitutional protection of their basic rights. The constitution is

The writ shall cover extralegal killings and enforced disappearances an overarching sky that covers all in its protection. The case at bar
or threats thereof. (Emphasis supplied.)
involves the rights to life, liberty and security in the first petition for
The threatened demolition of a dwelling by virtue of a final judgment
a writ of amparo filed before this Court.
of the court, which in this case was affirmed with finality by this Court
in G.R. Nos. 177448, 180768, 177701, 177038, is not
included among the enumeration of rights as stated in the above- This is an appeal via Petition for Review under Rule 45 of the Rules
quoted Section 1 for which the remedy of a writ of amparo is made
of Court in relation to Section 19[1] of the Rule on the Writ ofAmparo,
available. Their claim to their dwelling, assuming they still have any
despite the final and executory judgment adverse to them, does not seeking to reverse and set aside on both questions of fact and law,
constitute right to life, liberty and security. There is, therefore, no
legal basis for the issuance of the writ of amparo. the Decision promulgated by the Court of Appeals in C.A. G.R.

Besides, the factual and legal basis for petitioners’ claim to the land AMPARO No. 00001, entitled Raymond Manalo and Reynaldo
in question is not alleged in the petition at all. The Court can only
162
Manalo, petitioners, versus The Secretary of National Defense, the
Chief of Staff, Armed Forces of the Philippines, respondents.
This case was originally a Petition for Prohibition, Injunction, and
[2]
Temporary Restraining Order (TRO) filed before this Court by
herein respondents (therein petitioners) on August 23, 2007 to stop
herein petitioners (therein respondents) and/or their officers and
agents from depriving them of their right to liberty and other basic
rights. Therein petitioners also sought ancillary remedies, Protective
Custody Orders, Appointment of Commissioner, Inspection and
Access Orders, and all other legal and equitable reliefs under Article
VIII, Section 5(5)[3] of the 1987 Constitution and Rule 135, Section
6 of the Rules of Court. In our Resolution dated August 24, 2007,
we (1) ordered the Secretary of the Department of National Defense
and the Chief of Staff of the AFP, their agents, representatives, or
persons acting in their stead, including but not limited to the Citizens
Armed Forces Geographical Unit (CAFGU) to submit their
Comment; and (2) enjoined them from causing the arrest of therein
petitioners, or otherwise restricting, curtailing, abridging, or
depriving them of their right to life, liberty, and other basic rights as
guaranteed under Article III, Section 1[4] of the 1987 Constitution.[5]
While the August 23, 2007 Petition was pending, the Rule on the
Writ of Amparo took effect on October 24, 2007. Forthwith, therein
petitioners filed a Manifestation and Omnibus Motion to Treat
Existing Petition as Amparo Petition, to Admit Supporting Affidavits,
and to Grant Interim and Final Amparo Reliefs. They prayed that:
(1) the petition be considered a Petition for the Writ ofAmparo under
Sec. 26[6] of the Amparo Rule; (2) the Court issue the writ
commanding therein respondents to make a verified return within
the period provided by law and containing the specific matter
required by law; (3) they be granted the interim reliefs allowed by
the Amparo Rule and all other reliefs prayed for in the petition but
not covered by the Amparo Rule; (4) the Court, after hearing, render
judgment as required in Sec. 18[7] of the Amparo Rule; and (5) all
other just and equitable reliefs.[8]
On October 25, 2007, the Court resolved to treat the August 23,
2007 Petition as a petition under the Amparo Rule and further
resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be
issued to respondents requiring them to file with
the CA (Court of Appeals) a verified written
return within five (5) working days from service
of the writ. We REMAND the petition to the CA
and designate the Division of Associate Justice
Lucas P. Bersamin to conduct the summary
hearing on the petition on November 8,
2007 at 2:00 p.m. and decide the petition in
accordance with the Rule on the Writ of
Amparo.[9]
On December 26, 2007, the Court of Appeals rendered a
decision in favor of therein petitioners (herein respondents), the
dispositive portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT
OF AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL
DEFENSE and AFP CHIEF OF STAFF are
hereby REQUIRED:
1. To furnish to the petitioners and to this
Court within five days from notice of this
decision all official and unofficial reports of
the investigation undertaken in connection
with their case, except those already on file
herein;
2. To confirm in writing the present places of
official assignment of M/Sgt
Hilario aka Rollie Castillo and Donald
Caigas within five days from notice of this
decision.
3. To cause to be produced to this Court all
medical reports, records and charts, reports
of any treatment given or recommended
and medicines prescribed, if any, to the
petitioners, to include a list of medical and
(sic) personnel (military and civilian) who
attended to them from February 14, 2006
until August 12, 2007 within five days from
notice of this decision.
The compliance with this decision shall be made
under the signature and oath of respondent AFP
Chief of Staff or his duly authorized deputy, the
latters authority to be express and made
apparent on the face of the sworn compliance
with this directive.
SO ORDERED.[10]
Hence, this appeal. In resolving this appeal, we first
unfurl the facts as alleged by herein respondents:
Respondent Raymond Manalo recounted that about one or two
weeks before February 14, 2006, several uniformed and armed
soldiers and members of the CAFGU summoned to a meeting all
the residents of their barangay in San Idelfonso,
Bulacan.Respondents were not able to attend as they were not
informed of the gathering, but Raymond saw some of the soldiers
when he passed by the barangay hall.[11]
On February 14, 2006, Raymond was sleeping in their house in
Buhol na Mangga, San Ildefonso, Bulacan. At past noon, several
armed soldiers wearing white shirts, fatigue pants and army boots,
entered their house and roused him. They asked him if he was
Bestre, but his mother, Ester Manalo, replied that he was Raymond,
not Bestre. The armed soldier slapped him on both cheeks and
nudged him in the stomach. He was then handcuffed, brought to the
rear of his house, and forced to the ground face down. He was
kicked on the hip, ordered to stand and face up to the light, then
forcibly brought near the road. He told his mother to follow him, but
three soldiers stopped her and told her to stay. [12]
163
Among the men who came to take him, Raymond recognized not manhandled. But once they had left, the soldier guards beat him

brothers Michael de la Cruz, Madning de la Cruz, Puti de la Cruz, up.When the guards got drunk, they also manhandled

andPula de la Cruz, who all acted as lookout. They were all respondents. During this time, Raymond was fed only at night,

members of the CAFGU and residing in Manuzon, San Ildefonso, usually with left-over and rotten food.[17]

Bulacan.He also recognized brothers Randy Mendoza and Rudy

On the third week of respondents detention, two men arrived while
Mendoza, also members of the CAFGU. While he was being forcibly
Raymond was sleeping and beat him up. They doused him with
taken, he also saw outside of his house two barangay councilors,
urine and hot water, hit his stomach with a piece of wood, slapped
Pablo Cunanan and Bernardo Lingasa, with some soldiers and
his forehead twice with a .45 pistol, punched him on the mouth, and
armed men.[13]
burnt some parts of his body with a burning wood. When he could

The men forced Raymond into a white L300 van. Once inside, he no longer endure the torture and could hardly breathe, they

was blindfolded. Before being blindfolded, he saw the faces of the stopped. They then subjected Reynaldo to the same ordeal in

soldiers who took him. Later, in his 18 months of captivity, he another room. Before their torturers left, they warned Raymond that

learned their names. The one who drove the van was Rizal Hilario they would come back the next day and kill him. [18]

alias Rollie Castillo, whom he estimated was about 40 years of age

The following night, Raymond attempted to escape. He waited for
or older. The leader of the team who entered his house and
the guards to get drunk, then made noise with the chains put on him
abducted him was Ganata. He was tall, thin, curly-haired and a bit
to see if they were still awake. When none of them came to check
old. Another one of his abductors was George who was tall, thin,
on him, he managed to free his hand from the chains and jumped
white-skinned and about 30 years old.[14]
through the window. He passed through a helipad and firing range

The van drove off, then came to a stop. A person was brought inside and stopped near a fishpond where he used stones to break his

the van and made to sit beside Raymond. Both of them were beaten chains. After walking through a forested area, he came near a river

up. On the road, he recognized the voice of the person beside him and an Iglesia ni Kristo church. He talked to some women who were

as his brother Reynaldos. The van stopped several times until they doing the laundry, asked where he was and the road to Gapan. He

finally arrived at a house. Raymond and Reynaldo were each was told that he was in Fort Magsaysay.[19] He reached the

brought to a different room. With the doors of their rooms left open, highway, but some soldiers spotted him, forcing him to run

Raymond saw several soldiers continuously hitting his brother away. The soldiers chased him and caught up with him.They

Reynaldo on the head and other parts of his body with the butt of brought him to another place near the entrance of what he saw

their guns for about 15 minutes. After which, Reynaldo was brought was Fort Magsaysay. He was boxed repeatedly, kicked, and hit with

to his (Raymonds) room and it was his (Raymonds) turn to be chains until his back bled. They poured gasoline on him. Then a so-

beaten up in the other room. The soldiers asked him if he was a called Mam or Madam suddenly called, saying that she wanted to

member of the New Peoples Army. Each time he said he was not, see Raymond before he was killed. The soldiers ceased the torture

he was hit with the butt of their guns. He was questioned where his and he was returned inside Fort Magsaysay where Reynaldo was

comrades were, how many soldiers he had killed, and how many detained.[20]

NPA members he had helped. Each time he answered none, they

For some weeks, the respondents had a respite from all the
hit him.[15]
torture. Their wounds were treated. When the wounds were almost

In the next days, Raymonds interrogators appeared to be high healed, the torture resumed, particularly when respondents guards

officials as the soldiers who beat him up would salute them, call got drunk.[21]

them sir, and treat them with respect. He was in blindfolds when
Raymond recalled that sometime in April until May 2006, he was
interrogated by the high officials, but he saw their faces when they
detained in a room enclosed by steel bars. He stayed all the time in
arrived and before the blindfold was put on. He noticed that the
that small room measuring 1 x 2 meters, and did everything there,
uniform of the high officials was different from those of the other
including urinating, removing his bowels, bathing, eating and
soldiers. One of those officials was tall and thin, wore white pants,
sleeping. He counted that eighteen people[22] had been detained in
tie, and leather shoes, instead of combat boots. He spoke in
that bartolina, including his brother Reynaldo and himself. [23]
Tagalog and knew much about his parents and family, and a habeas

corpus case filed in connection with the respondents

abduction.[16] While these officials interrogated him, Raymond was

164

For about three and a half months, the respondents were detained
in Fort Magsaysay. They were kept in a small house with two rooms
and a kitchen. One room was made into the bartolina. The house
was near the firing range, helipad and mango trees. At dawn,
soldiers marched by their house. They were also sometimes
detained in what he only knew as the DTU. [24]
At the DTU, a male doctor came to examine respondents. He
checked their body and eyes, took their urine samples and marked
them. When asked how they were feeling, they replied that they had
a hard time urinating, their stomachs were aching, and they felt other
pains in their body. The next day, two ladies in white arrived. They
also examined respondents and gave them medicines, including
orasol, amoxicillin and mefenamic acid. They brought with them the
results of respondents urine test and advised them to drink plenty of
water and take their medicine. The two ladies returned a few more
times. Thereafter, medicines were sent through the master of the
DTU, Master Del Rosario alias Carinyoso at Puti. Respondents
were kept in the DTU for about two weeks. While there, he met a
soldier named Efren who said that Gen. Palparan ordered him to
monitor and take care of them.[25]
One day, Rizal Hilario fetched respondents in a Revo vehicle. They,
along with Efren and several other armed men wearing fatigue suits,
went to a detachment in Pinaud, San Ildefonso,
Bulacan. Respondents were detained for one or two weeks in a big
two-storey house. Hilario and Efren stayed with them. While there,
[26]
Raymond was beaten up by Hilarios men.
From Pinaud, Hilario and Efren brought respondents to Sapang,
San Miguel, Bulacan on board the Revo. They were detained in a
big unfinished house inside the compound of Kapitan for about three
months. When they arrived in Sapang, Gen. Palparan talked to
them. They were brought out of the house to a basketball court in
the center of the compound and made to sit. Gen. Palparan was
already waiting, seated. He was about two arms length away from
respondents. He began by asking if respondents felt well already, to
which Raymond replied in the affirmative. He asked Raymond if he
knew him. Raymond lied that he did not. He then asked Raymond if
he would be scared if he were made to face Gen.
Palparan. Raymond responded that he would not be because he did
not believe that Gen. Palparan was an evil man.[27]
Raymond narrated his conversation with Gen. Palparan in his
affidavit, viz:
Tinanong ako ni Gen. Palparan, Ngayon na
kaharap mo na ako, di ka ba natatakot sa akin?
Sumagot akong, Siyempre po, natatakot din
Sabi ni Gen. Palparan: Sige, bibigyan ko kayo
ng isang pagkakataon na mabuhay, bastat
sundin nyo ang lahat ng sasabihin ko sabihin
mo sa magulang mo huwag pumunta sa mga
rali, sa hearing, sa Karapatan at sa Human
Right dahil niloloko lang kayo. Sabihin sa
magulang at lahat sa bahay na huwag paloko
doon. Tulungan kami na kausapin si Bestre na
sumuko na sa gobyerno.[28]
Respondents agreed to do as Gen. Palparan told them as
they felt they could not do otherwise. At about 3:00 in the morning,
Hilario, Efren and the formers men - the same group that abducted
them - brought them to their parents house. Raymond was shown
to his parents while Reynaldo stayed in the Revo because he still
could not walk. In the presence of Hilario and other soldiers,
Raymond relayed to his parents what Gen. Palparan told him. As
they were afraid, Raymonds parents acceded. Hilario threatened
Raymonds parents that if they continued to join human rights rallies,
they would never see their children again. The respondents were
then brought back to Sapang.[29]
When respondents arrived back in Sapang, Gen.
Palparan was about to leave. He was talking with the four masters
who were there: Arman, Ganata, Hilario and Cabalse. [30] When Gen.
Palparan saw Raymond, he called for him. He was in a big white
vehicle. Raymond stood outside the vehicle as Gen. Palparan told
him to gain back his strength and be healthy and to take the
medicine he left for him and Reynaldo. He said the medicine was
expensive at Php35.00 each, and would make them strong. He also
said that they should prove that they are on the side of the military
and warned that they would not be given another chance. [31] During
his testimony, Raymond identified Gen. Palparan by his picture. [32]
One of the soldiers named Arman made Raymond take the
medicine left by Gen. Palparan. The medicine, named Alive, was
green and yellow. Raymond and Reynaldo were each given a box
of this medicine and instructed to take one capsule a day. Arman
checked if they were getting their dose of the medicine. The Alive
made them sleep each time they took it, and they felt heavy upon
waking up.[33]
After a few days, Hilario arrived again. He took Reynaldo and left
Raymond at Sapang. Arman instructed Raymond that while in
Sapang, he should introduce himself as Oscar, a military trainee
from Sariaya, Quezon, assigned in Bulacan. While there, he saw
again Ganata, one of the men who abducted him from his house,
and got acquainted with other military men and civilians. [34]
After about three months in Sapang, Raymond was brought
to Camp Tecson under the 24th Infantry Battalion. He was fetched
by three unidentified men in a big white vehicle. Efren went with
them. Raymond was then blindfolded. After a 30-minute ride, his
165
blindfold was removed. Chains were put on him and he was kept in
[35]
the barracks.
The next day, Raymonds chains were removed and he was ordered
to clean outside the barracks. It was then he learned that he was in
a detachment of the Rangers. There were many soldiers, hundreds
of them were training. He was also ordered to clean inside the
barracks. In one of the rooms therein, he met Sherlyn Cadapan from
Laguna. She told him that she was a student of the University of
the Philippines and was abducted in Hagonoy, Bulacan. She
confided that she had been subjected to severe torture and
raped. She was crying and longing to go home and be with her
parents. During the day, her chains were removed and she was
made to do the laundry.[36]
After a week, Reynaldo was also brought to Camp Tecson. Two
days from his arrival, two other captives, Karen Empeo and Manuel
Merino, arrived. Karen and Manuel were put in the room with Allan
whose name they later came to know as Donald Caigas, called
master or commander by his men in the 24th Infantry
Battalion. Raymond and Reynaldo were put in the adjoining
room. At times, Raymond and Reynaldo were threatened, and
Reynaldo was beaten up. In the daytime, their chains were
removed, but were put back on at night. They were threatened that
if they escaped, their families would all be killed. [37]
On or about October 6, 2006, Hilario arrived in Camp Tecson. He
told the detainees that they should be thankful they were still alive
and should continue along their renewed life. Before the hearing of
November 6 or 8, 2006, respondents were brought to their parents
to instruct them not to attend the hearing. However, their parents
had already left for Manila. Respondents were brought back
to Camp Tecson. They stayed in that camp from September 2006
to November 2006, and Raymond was instructed to continue using
the name Oscar and holding himself out as a military trainee. He got
acquainted with soldiers of the 24th Infantry Battalion whose names
and descriptions he stated in his affidavit. [38]
On November 22, 2006, respondents, along with Sherlyn, Karen,
and Manuel, were transferred to a camp of the 24th Infantry Battalion
in Limay, Bataan. There were many huts in the camp. They stayed
in that camp until May 8, 2007. Some soldiers of the battalion stayed
with them. While there, battalion soldiers whom Raymond knew as
Mar and Billy beat him up and hit him in the stomach with their
guns. Sherlyn and Karen also suffered enormous torture in the
camp. They were all made to clean, cook, and help in raising
livestock.[39]
Raymond recalled that when Operation Lubog was launched,
Caigas and some other soldiers brought him and Manuel with them
to take and kill all sympathizers of the NPA. They were brought to
Barangay Bayan-bayanan, Bataan where he witnessed the killing of
an old man doing kaingin. The soldiers said he was killed because
he had a son who was a member of the NPA and he coddled NPA
members in his house.[40] Another time, in another Operation Lubog,
Raymond was brought to Barangay Orion in a house where NPA
men stayed. When they arrived, only the old man of the house who
was sick was there. They spared him and killed only his son right
before Raymonds eyes.[41]
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel
were transferred to Zambales, in a safehouse near the sea. Caigas
and some of his men stayed with them. A retired army soldier was
in charge of the house. Like in Limay, the five detainees were made
to do errands and chores. They stayed in Zambales from May 8 or
9, 2007 until June 2007.[42]
In June 2007, Caigas brought the five back to the camp in
Limay. Raymond, Reynaldo, and Manuel were tasked to bring food
to detainees brought to the camp. Raymond narrated what he
witnessed and experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na
matulog na kami. Nakita ko si Donald na inaayos
ang kanyang baril, at nilagyan ng silenser. Sabi ni
Donald na kung mayroon man kaming makita o
marinig, walang nangyari. Kinaumagahan, nakita
naming ang bangkay ng isa sa mga bihag na
dinala sa kampo. Mayroong binuhos sa kanyang
katawan at itoy sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay
and ibinaba ng mga unipormadong sundalo mula
sa 6 x 6 na trak at dinala sa loob ng kampo.May
naiwang mga bakas ng dugo habang hinihila nila
ang mga bangkay. Naamoy ko iyon nang nililinis
ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot
sila na dalawang Ita. Itinali sila sa labas ng kubo,
piniringan, ikinadena at labis na binugbog. Nakita
kong nakatakas ang isa sa kanila at binaril siya ng
sundalo ngunit hindi siya tinamaan. Iyong gabi
nakita kong pinatay nila iyong isang Ita malapit sa
Post 3; sinilaban ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay
ang dinala sa kampo. Ibinaba ang mga bangkay
mula sa pick up trak, dinala ang mga bangkay sa
labas ng bakod. Kinaumagahan nakita kong
mayroong sinilaban, at napakamasangsang ang
amoy.
May nakilala rin akong 1 retiradong koronel at 1
kasama niya. Pinakain ko sila. Sabi nila sa akin
na dinukot sila sa Bataan. Iyong gabi, inilabas sila
at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw,
nilabas ni Lat si Manuel dahil kakausapin daw
siya ni Gen. Palparan. Nakapiring si Manuel,
wala siyang suot pang-itaas,
pinosasan. Nilakasan ng mga sundalo ang
166
 tunog na galing sa istiryo ng sasakyan. Di
nagtagal, narinig ko ang hiyaw o ungol ni he got acquainted with in the 18 months he was detained. When
Manuel. Sumilip ako sa isang haligi ng kamalig
at nakita kong sinisilaban si Manuel. Raymond attempted to escape from Fort Magsaysay, Reynaldo

was severely beaten up and told that they were indeed members of
Kinaumagahan, naka-kadena pa
kami. Tinanggal ang mga kadena mga 3 o 4 na the NPA because Raymond escaped. With a .45 caliber pistol,
araw pagkalipas. Sinabi sa amin na kaya kami
nakakadena ay dahil pinagdedesisyunan pa ng Reynaldo was hit on the back and punched in the face until he could
mga sundalo kung papatayin kami o hindi.
no longer bear the pain.
Tinanggal ang aming kadena. Kinausap kami ni
Donald. Tinanong kami kung ano ang sabi ni
Manuel sa amin. Sabi ni Donald huwag na raw At one point during their detention, when Raymond and Reynaldo
naming hanapin ang dalawang babae at si
were in Sapang, Reynaldo was separated from Raymond and
Manuel, dahil magkakasama na yung tatlo. Sabi
pa ni Donald na kami ni Reynaldo ay brought to Pinaud by Rizal Hilario. He was kept in the house of
magbagong buhay at ituloy namin ni Reynaldo
ang trabaho. Sa gabi, hindi na kami Kapitan, a friend of Hilario, in a mountainous area. He was
kinakadena.[43]
instructed to use the name Rodel and to represent himself as a
On or about June 13, 2007, Raymond and Reynaldo were
military trainee from Meycauayan, Bulacan. Sometimes, Hilario
brought to Pangasinan, ostensibly to raise poultry for Donald
brought along Reynaldo in his trips. One time, he was brought to a
(Caigas). Caigas told respondents to also farm his land, in
market in San Jose, del Monte, Bulacan and made to wait in the
exchange for which, he would take care of the food of their
vehicle while Hilario was buying. He was also brought to
family. They were also told that they could farm a small plot
Tondo, Manila where Hilario delivered boxes of Alive in different
adjoining his land and sell their produce. They were no longer put in
houses.In these trips, Hilario drove a black and red
chains and were instructed to use the names Rommel (for
vehicle. Reynaldo was blindfolded while still in Bulacan, but allowed
Raymond) and Rod (for Reynaldo) and represent themselves as
to remove the blindfold once outside the province. In one of their
cousins from Rizal, Laguna.[44]
trips, they passed by Fort Magsaysay and Camp Tecson where

Respondents started to plan their escape. They could see the Reynaldo saw the sign board, Welcome to Camp Tecson.[46]

highway from where they stayed. They helped farm adjoining lands
Dr. Benito Molino, M.D., corroborated the accounts of respondents
for which they were paid Php200.00 or Php400.00 and they saved
Raymond and Reynaldo Manalo. Dr. Molino specialized in forensic
their earnings. When they had saved Php1,000.00 each, Raymond
medicine and was connected with the Medical Action Group, an
asked a neighbor how he could get a cellular phone as he wanted
organization handling cases of human rights violations, particularly
to exchange text messages with a girl who lived nearby. A phone
cases where torture was involved. He was requested by an NGO to
was pawned to him, but he kept it first and did not use it. They
conduct medical examinations on the respondents after their
earned some more until they had saved Php1,400.00 between
escape. He first asked them about their ordeal, then proceeded with
them.
the physical examination. His findings showed that the scars borne

There were four houses in the compound. Raymond and Reynaldo by respondents were consistent with their account of physical

were housed in one of them while their guards lived in the other injuries inflicted upon them. The examination was conducted

three. Caigas entrusted respondents to Nonong, the head of the on August 15, 2007, two days after respondents escape, and the

guards. Respondents house did not have electricity. They used a results thereof were reduced into writing. Dr. Molino took

lamp. There was no television, but they had a radio. In the evening photographs of the scars. He testified that he followed the Istanbul

of August 13, 2007, Nonong and his cohorts had a drinking Protocol in conducting the examination. [47]

session. At about 1:00 a.m., Raymond turned up the volume of the

Petitioners dispute respondents account of their alleged abduction
radio. When none of the guards awoke and took notice, Raymond
and torture. In compliance with the October 25, 2007 Resolution of
and Reynaldo proceeded towards the highway, leaving behind their
the Court, they filed a Return of the Writ of Amparo admitting the
sleeping guards and barking dogs. They boarded a bus bound
abduction but denying any involvement therein, viz:
for Manila and were thus freed from captivity.[45]
13. Petitioners Raymond and Reynaldo Manalo
were not at any time arrested, forcibly abducted,
Reynaldo also executed an affidavit affirming the contents of detained, held incommunicado, disappeared or
under the custody by the military. This is a
Raymonds affidavit insofar as they related to matters they witnessed settled issue laid to rest in the habeas
corpus case filed in their behalf by petitioners
together. Reynaldo added that when they were taken from their parents before the Court of Appeals in C.A.-G.R.
SP No. 94431 against M/Sgt. Rizal Hilario aka
house on February 14, 2006, he saw the faces of his abductors Rollie Castillo, as head of the 24th Infantry
Battalion; Maj. Gen. Jovito Palparan, as
before he was blindfolded with his shirt. He also named the soldiers
167
 Commander of the 7th Infantry Division in Luzon;
Lt. Gen. Hermogenes Esperon, in his capacity
as the Commanding General of the Philippine
Army, and members of the Citizens Armed
Forces Geographical Unit (CAFGU), namely:
Michael dela Cruz, Puti dela Cruz, Madning dela
Cruz, Pula dela Cruz, Randy Mendoza and Rudy
Mendoza. The respondents therein submitted a
return of the writ On July 4, 2006, the Court of
Appeals dropped as party respondents Lt. Gen.
Hermogenes C. Esperon, Jr., then Commanding
General of the Philippine Army, and on
September 19, 2006, Maj. (sic) Jovito S.
Palparan, then Commanding General,
7th Infantry Division, Philippine Army, stationed
at Fort Magsaysay, Palayan City, Nueva Ecija,
upon a finding that no evidence was introduced
to establish their personal involvement in the
taking of the Manalo brothers. In a Decision
dated June 27, 2007, it exonerated M/Sgt. Rizal
Hilario aka Rollie Castillo for lack of evidence
establishing his involvement in any capacity in
the disappearance of the Manalo brothers,
although it held that the remaining respondents
were illegally detaining the Manalo brothers and
ordered them to release the latter.[48]
Attached to the Return of the Writ was the affidavit of
therein respondent (herein petitioner) Secretary of National
Defense, which attested that he assumed office only on August 8,
2007 and was thus unaware of the Manalo brothers alleged
abduction. He also claimed that:
7. The Secretary of National Defense does
not engage in actual military directional
operations, neither does he undertake
command directions of the AFP units in the
field, nor in any way micromanage the AFP
operations. The principal responsibility of
the Secretary of National Defense is
focused in providing strategic policy
direction to the Department (bureaus and
agencies) including the Armed Forces of
the Philippines;
8. In connection with the Writ
of Amparo issued by the Honorable
Supreme Court in this case, I have directed
the Chief of Staff, AFP to institute immediate
action in compliance with Section 9(d) of
the Amparo Rule and to submit report of
such compliance Likewise, in a personnel if shown to have participated or had
Memorandum Directive also dated October
31, 2007, I have issued a policy directive
addressed to the Chief of Staff, AFP that the
AFP should adopt the following rules of
action in the event the Writ of Amparo is
issued by a competent court against any
members of the AFP:
(1) to verify the identity of the aggrieved
party;
(2) to recover and preserve evidence
related to the death or disappearance
of the person identified in the petition
which may aid in the prosecution of
the person or persons responsible;
(3) to identify witnesses and obtain
statements from them concerning the
death or disappearance;
(4) to determine the cause, manner,
location and time of death or
disappearance as well as any pattern
or practice that may have brought
about the death or disappearance;
(5) to identify and apprehend the person or
persons involved in the death or
disappearance; and
(6) to bring the suspected offenders before
a competent court.[49]
Therein respondent AFP Chief of Staff also submitted his
own affidavit, attached to the Return of the Writ, attesting that he
received the above directive of therein respondent Secretary of
National Defense and that acting on this directive, he did the
following:
3.1. As currently designated Chief of Staff,
Armed Forces of the Philippines (AFP), I have
caused to be issued directive to the units of the
AFP for the purpose of establishing the
circumstances of the alleged disappearance and
the recent reappearance of the petitioners.
3.2. I have caused the immediate investigation
and submission of the result thereof to Higher
headquarters and/or direct the immediate
conduct of the investigation on the matter by the
concerned unit/s, dispatching Radio Message on
November 05, 2007, addressed to the
Commanding General, Philippine Army (Info:
COMNOLCOM, CG, 71D PA and CO 24 IB
PA). A Copy of the Radio Message is attached
as ANNEX 3 of this Affidavit.
3.3. We undertake to provide result of the
investigations conducted or to be conducted by
the concerned unit relative to the circumstances
of the alleged disappearance of the persons in
whose favor the Writ of Amparo has been sought
for as soon as the same has been furnished
Higher headquarters.
3.4. A parallel investigation has been directed to
the same units relative to another Petition for the
Writ of Amparo (G.R. No. 179994) filed at the
instance of relatives of a certain Cadapan and
Empeo pending before the Supreme Court.
3.5. On the part of the Armed Forces, this
respondent will exert earnest efforts to establish
the surrounding circumstances of the
disappearances of the petitioners and to bring
those responsible, including any military
complicity in the commission of the complained
acts, to the bar of justice, when warranted by the
findings and the competent evidence that may be
gathered in the process.[50]
Also attached to the Return of the Writ was the affidavit of
Lt. Col. Felipe Anontado, INF (GSC) PA, earlier filed in G.R. No.
179994, another amparo case in this Court, involving Cadapan,
Empeo and Merino, which averred among others, viz:
10) Upon reading the allegations in the Petition
implicating the 24th Infantry Batallion
detachment as detention area, I immediately
went to the 24th IB detachment in Limay, Bataan
and found no untoward incidents in the area nor
any detainees by the name of Sherlyn Cadapan,
Karen Empeo and Manuel Merino being held
captive;
11) There was neither any reports of any death
of Manuel Merino in the 24th IB in Limay, Bataan;
12) After going to the 24th IB in Limay, Bataan,
we made further inquiries with the Philippine
National Police, Limay, Bataan regarding the
alleged detentions or deaths and were informed
that none was reported to their good office;
168
 13) I also directed Company Commander 1st Lt.
Romeo Publico to inquire into the alleged
beachhouse in Iba, Zambales also alleged to be
a detention place where Sherlyn Cadapan,
Karen Empeo and Manuel Merino were
detained. As per the inquiry, however, no such
beachhouse was used as a detention place
found to have been used by armed men to detain
Cadapan, Empeo and Merino.[51]
It was explained in the Return of the Writ that for lack of sufficient
time, the affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt.
Rizal Hilario aka Rollie Castillo, and other persons implicated by
therein petitioners could not be secured in time for the submission
of the Return and would be subsequently submitted. [52]
Herein petitioners presented a lone witness in the summary
hearings, Lt. Col. Ruben U. Jimenez, Provost Marshall, 7 th Infantry
Division, Philippine Army, based in Fort Magsaysay, Palayan City,
Nueva Ecija. The territorial jurisdiction of this Division covers Nueva
Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a portion of
Pangasinan.[53] The 24th Infantry Battalion is part of the 7th Infantry
Division.[54]
On May 26, 2006, Lt. Col. Jimenez was directed by the
th
Commanding General of the 7 Infantry Division, Maj. Gen. Jovito
Palaran,[55] through his Assistant Chief of Staff,[56] to investigate the
alleged abduction of the respondents by CAFGU auxiliaries under
his unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz,
aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza;
ex-CAA Marcelo de la Cruz aka Madning; and a civilian named Rudy
Mendoza. He was directed to determine: (1) the veracity of the
abduction of Raymond and Reynaldo Manalo by the alleged
elements of the CAFGU auxiliaries; and (2) the administrative
liability of said auxiliaries, if any. [57] Jimenez testified that this
particular investigation was initiated not by a complaint as was the
usual procedure, but because the Commanding General saw news
about the abduction of the Manalo brothers on the television, and
he was concerned about what was happening within his territorial
jurisdiction.[58]
Jimenez summoned all six implicated persons for the purpose of
having them execute sworn statements and conducting an
investigation on May 29, 2006.[59] The investigation started
at 8:00 in the morning and finished at 10:00 in the evening.[60] The
investigating officer, Technical Sgt. Eduardo Lingad, took the
individual sworn statements of all six persons on that day. There
were no other sworn statements taken, not even of the Manalo
family, nor were there other witnesses summoned and
[61]
investigated as according to Jimenez, the directive to him was
only to investigate the six persons.[62]
Jimenez was beside Lingad when the latter took the
[63]
statements. The six persons were not known to Jimenez as it was
in fact his first time to meet them.[64] During the entire time that he
was beside Lingad, a subordinate of his in the Office of the Provost
Marshall, Jimenez did not propound a single question to the six
persons.[65]
Jimenez testified that all six statements were taken on May 29,
2006, but Marcelo Mendoza and Rudy Mendoza had to come back
the next day to sign their statements as the printing of their
statements was interrupted by a power failure. Jimenez testified that
the two signed on May 30, 2006, but the jurats of their statements
indicated that they were signed on May 29, 2006.[66] When the
Sworn Statements were turned over to Jimenez, he personally
wrote his investigation report. He began writing it in the afternoon
ofMay 30, 2006 and finished it on June 1, 2006.[67] He then gave his
report to the Office of the Chief of Personnel. [68]
As petitioners largely rely on Jimenezs Investigation Report
dated June 1, 2006 for their evidence, the report is herein
substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND
MANALO and REYNALDO MANALO who were
forcibly taken from their respective homes in
Brgy. Buhol na Mangga, San Ildefonso, Bulacan
on 14 February 2006 by unidentified armed men
and thereafter were forcibly disappeared. After
the said incident, relatives of the victims filed a
case for Abduction in the civil court against the
herein suspects: Michael dela Cruz, Madning
dela Cruz, Puti Dela Cruz, Pula Dela Cruz,
Randy Mendoza and Rudy Mendoza as alleged
members of the Citizen Armed Forces
Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela
Cruz, aka Pula dated 29 May 2006 in (Exhibit B)
states that he was at Sitio Mozon, Brgy.Bohol na
Mangga, San Ildefonso, Bulacan doing the
concrete building of a church located nearby his
residence, together with some neighbor
thereat. He claims that on 15 February 2006, he
was being informed by Brgy. Kagawad Pablo
Umayan about the abduction of the brothers
Raymond and Reynaldo Manalo. As to the
allegation that he was one of the suspects, he
claims that they only implicated him because he
was a CAFGU and that they claimed that those
who abducted the Manalo brothers are members
of the Military and CAFGU.Subject vehemently
denied any participation or involvement on the
abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz y
Faustino Aka Puti dtd 29 May 2006 in (Exhibit C)
states that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan and a
CAA member based at Biak na Bato
Detachment, San Miguel, Bulacan. He claims
that Raymond and Reynaldo Manalo being his
neighbors are active members/sympathizers of
the CPP/NPA and he also knows their elder
Rolando Manalo @ KA BESTRE of being an
NPA Leader operating in their province. That at
the time of the alleged abduction of the two (2)
brothers and for accusing him to be one of the
169
suspects, he claims that on February 14, 2006,
he was one of those working at the concrete
chapel being constructed nearby his
residence. He claims further that he just came
only to know about the incident on other day (15
Feb 06) when he was being informed by
Kagawad Pablo Kunanan. That subject CAA
vehemently denied any participation about the
incident and claimed that they only implicated
him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y
Lingas dated 29 May 2006 in (Exhibit O) states
that he is a resident of Brgy. Buhol na Mangga,
San Ildefonso, Bulacan and a member of
CAFGU based at Biak na Bato
Detachment. That being a neighbor, he was very
much aware about the background of the two (2)
brothers Raymond and Reynaldo as active
supporters of the CPP NPA in their Brgy. and he
also knew their elder brother KUMANDER
BESTRE TN: Rolando Manalo. Being one of the
accused, he claims that on 14 February 2006,
he was at Brgy. Magmarate, San Miguel,
Bulacan in the house of his aunt and he learned
only about the incident when he arrived home in
their place. He claims further that the only
reason why they implicated him was due to the
fact that his mother has filed a criminal charge
against their brother Rolando Manalo @ KA
BESTRE who is an NPA Commander who killed
his father and for that reason they implicated him
in support of their brother. Subject CAA
vehemently denied any involvement on the
abduction of said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa
dated May 29, 2006 in (Exhibit E) states that he
is a resident of Brgy. Marungko, Angat,
Bulacan. He claims that Raymond and Reynaldo
Manalo are familiar to him being his barriomate
when he was still unmarried and he knew them
since childhood. Being one of the accused, he
claims that on 14 February 2006, he was at his
residence in Brgy. Marungko, Angat,
Bulacan. He claims that he was being informed
only about the incident lately and he was not
aware of any reason why the two (2) brothers
were being abducted by alleged members of the
military and CAFGU. The only reason he knows
why they implicated him was because there are
those people who are angry with their family
particularly victims of summary execution
(killing) done by their brother @ KA Bestre
Rolando Manalo who is an NPA leader. He
claims further that it was their brother @ KA
BESTRE who killed his father and he was living
witness to that incident. Subject civilian
vehemently denied any involvement on the
abduction of the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala
Cruz dated 29 May 2006 in (Exhibit F) states
that he is a resident of Sitio Muzon, Brgy. Buhol
na Mangga, San Ildefonso, Bulacan, a farmer
and a former CAA based at Biak na Bato, San
Miguel, Bulacan. He claims that Raymond and
Reynaldo Manalo are familiar to him being their
barrio mate. He claims further that they are
active supporters of CPP/NPA and that their
brother Rolando Manalo @ KA BESTRE is an
NPA leader. Being one of the accused, he
claims that on 14 February 2006, he was in his
residence at Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan. That he
vehemently denied any participation of the
alleged abduction of the two (2) brothers and
learned only about the incident when rumors
reached him by his barrio mates. He claims that
his implication is merely fabricated because of
his relationship to Roman and Maximo who are
his brothers.
f) Sworn statement of Michael dela Cruz y
Faustino dated 29 May 2006 in (Exhibit G)
states that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan, the
Chief of Brgy. Tanod and a CAFGU member
based at Biak na Bato Detachment, San Miguel,
Bulacan. He claims that he knew very well the
brothers Raymond and Reynaldo Manalo in their
barangay for having been the Tanod Chief for
twenty (20) years. He alleged further that they
are active supporters or sympathizers of the
CPP/NPA and whose elder brother Rolando
Manalo @ KA BESTRE is an NPA leader
operating within the area. Being one of the
accused, he claims that on 14 Feb 2006 he was
helping in the construction of their concrete
chapel in their place and he learned only about
the incident which is the abduction of Raymond
and Reynaldo Manalo when one of the Brgy.
Kagawad in the person of Pablo Cunanan
informed him about the matter. He claims further
that he is truly innocent of the allegation against
him as being one of the abductors and he
considers everything fabricated in order to
destroy his name that remains loyal to his
service to the government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of
respondents in this particular case, the proof of
linking them to the alleged abduction and
disappearance of Raymond and Reynaldo
Manalo that transpired on 14 February 2006 at
Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan, is unsubstantiated. Their
alleged involvement theretofore to that incident
is considered doubtful, hence, no basis to indict
them as charged in this investigation.
Though there are previous grudges between
each families (sic) in the past to quote: the killing
of the father of Randy and Rudy Mendoza by @
KA BESTRE TN: Rolando Manalo, this will not
suffice to establish a fact that they were the ones
who did the abduction as a form of revenge. As
it was also stated in the testimony of other
accused claiming that the Manalos are active
sympathizers/supporters of the CPP/NPA, this
would not also mean, however, that in the first
place, they were in connivance with the
abductors. Being their neighbors and as
members of CAFGUs, they ought to be vigilant
in protecting their village from any intervention
by the leftist group, hence inside their village,
they were fully aware of the activities of
Raymond and Reynaldo Manalo in so far as their
connection with the CPP/NPA is concerned.
V. CONCLUSION
6. Premises considered surrounding this case
shows that the alleged charges of abduction
committed by the above named respondents
has not been established in this
investigation. Hence, it lacks merit to indict them
for any administrative punishment and/or
criminal liability. It is therefore concluded that
they are innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F.
Dela Cruz, Roman dela Cruz, Randy Mendoza,
and two (2) civilians Maximo F. Dela Cruz and
Rudy L. Mendoza be exonerated from the case.
8. Upon approval, this case can be dropped and
closed.[69]
In this appeal under Rule 45, petitioners question the
appellate courts assessment of the foregoing evidence and assail
the December 26, 2007 Decision on the following grounds, viz:
I.
170
 THE COURT OF APPEALS SERIOUSLY AND
GRIEVOUSLY ERRED IN BELIEVING AND arrest, detention or abduction of a person by a government official
GIVING FULL FAITH AND CREDIT TO THE
INCREDIBLE, UNCORROBORATED, or organized groups or private individuals acting with the direct or
CONTRADICTED, AND OBVIOUSLY
indirect acquiescence of the government; the refusal of the State to
SCRIPTED, REHEARSED AND SELF-
SERVING AFFIDAVIT/TESTIMONY OF disclose the fate or whereabouts of the person concerned or a
HEREIN RESPONDENT RAYMOND MANALO.
refusal to acknowledge the deprivation of liberty which places such
II.
persons outside the protection of law.[76]

THE COURT OF APPEALS SERIOUSLY AND

GRIEVOUSLY ERRED IN REQUIRING
RESPONDENTS (HEREIN PETITIONERS) TO:
(A) FURNISH TO THE MANALO BROTHER(S)
AND TO THE COURT OF APPEALS ALL
OFFICIAL AND UNOFFICIAL REPORTS OF
THE INVESTIGATION UNDERTAKEN IN
CONNECTION WITH THEIR CASE, EXCEPT
THOSE ALREADY IN FILE WITH THE COURT;
(B) CONFIRM IN WRITING THE PRESENT
PLACES OF OFFICIAL ASSIGNMENT OF
M/SGT. HILARIO aka ROLLIE CASTILLO AND
DONALD CAIGAS; AND (C) CAUSE TO BE
PRODUCED TO THE COURT OF APPEALS
ALL MEDICAL REPORTS, RECORDS AND
CHARTS, AND REPORTS OF ANY
TREATMENT GIVEN OR RECOMMENDED
AND MEDICINES PRESCRIBED, IF ANY, TO
THE MANALO BROTHERS, TO INCLUDE A
LIST OF MEDICAL PERSONNEL (MILITARY
AND CIVILIAN) WHO ATTENDED TO THEM
FROM FEBRUARY 14, 2006 UNTIL AUGUST
12, 2007.[70]
The case at bar is the first decision on the application of the Rule on
the Writ of Amparo (Amparo Rule). Let us hearken to its beginning.
The writ of amparo originated in Mexico. Amparo literally means
protection in Spanish.[77] In 1837, de Tocquevilles Democracy in
America became available in Mexico and stirred great interest. Its
description of the practice of judicial review in the U.S.appealed to
many Mexican jurists.[78] One of them, Manuel Crescencio Rejn,
drafted a constitutional provision for his native
state,Yucatan,[79] which granted judges the power to protect all
persons in the enjoyment of their constitutional and legal rights. This
idea was incorporated into the national constitution in 1847, viz:
The federal courts shall protect any
inhabitant of the Republic in the exercise and
preservation of those rights granted to him by
this Constitution and by laws enacted pursuant
hereto, against attacks by the Legislative and
Executive powers of the federal or state
governments, limiting themselves to granting
protection in the specific case in litigation,
making no general declaration concerning the
statute or regulation that motivated the
violation.[80]
Since then, the protection has been an important part of

The adoption of the Amparo Rule surfaced as a recurring Mexican constitutionalism.[81] If, after hearing, the judge determines

proposition in the recommendations that resulted from a two-day that a constitutional right of the petitioner is being violated, he orders

National Consultative Summit on Extrajudicial Killings and Enforced the official, or the officials superiors, to cease the violation and to

Disappearances sponsored by the Court on July 16-17, take the necessary measures to restore the petitioner to the full

2007. TheSummit was envisioned to provide a broad and fact- enjoyment of the right in question. Amparo thus combines the

based perspective on the issue of extrajudicial killings and enforced principles of judicial review derived from the U.S. with the limitations

disappearances,[71] hence representatives from all sides of the on judicial power characteristic of the civil law tradition which

political and social spectrum, as well as all the stakeholders in the prevails in Mexico. It enables courts to enforce the constitution by

justice system[72] participated in mapping out ways to resolve the protecting individual rights in particular cases, but prevents them

crisis. from using this power to make law for the entire nation. [82]

On October 24, 2007, the Court promulgated the Amparo Rule in The writ of amparo then spread throughout the Western

light of the prevalence of extralegal killing and enforced Hemisphere, gradually evolving into various forms, in response to

disappearances.[73] It was an exercise for the first time of the Courts the particular needs of each country.[83] It became, in the words of a

expanded power to promulgate rules to protect our peoples justice of the Mexican Federal Supreme Court, one piece ofMexicos

constitutional rights, which made its maiden appearance in the 1987 self-attributed task of conveying to the worlds legal heritage that

Constitution in response to the Filipino experience of the martial law institution which, as a shield of human dignity, her own painful

regime.[74] As the Amparo Rule was intended to address the history conceived.[84] What began as a protection against acts or

intractable problem of extralegal killings and enforced omissions of public authorities in violation of constitutional rights

disappearances, its coverage, in its present form, is confined to later evolved for several purposes: (1) amparo libertad for the

these two instances or to threats thereof. Extralegal killings are protection of personal freedom, equivalent to thehabeas corpus writ;

killings committed without due process of law, i.e., without legal (2) amparo contra leyes for the judicial review of the constitutionality

safeguards or judicial proceedings. [75] On the other hand, enforced of statutes; (3) amparo casacion for the judicial review of the

disappearances are attended by the following characteristics: an constitutionality and legality of a judicial decision; (4) amparo

171
administrativo for the judicial review of administrative actions; and
(5) amparo agrario for the protection of peasants rights derived from
the agrarian reform process.[85]
In Latin American countries, except Cuba, the writ of amparo has
been constitutionally adopted to protect against human rights
abuses especially committed in countries under military juntas. In
general, these countries adopted an all-encompassing writ to
protect the whole gamut of constitutional rights, including socio-
economic rights.[86] Other countries
like Colombia, Chile,Germany and Spain, however, have chosen to
limit the protection of the writ of amparo only to some constitutional
guarantees or fundamental rights.[87]
In the Philippines, while the 1987 Constitution does not explicitly
provide for the writ of amparo, several
above amparoprotections are guaranteed by our charter. The
second paragraph of Article VIII, Section 1 of the 1987 Constitution,
the Grave Abuse Clause, provides for the judicial power to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government. The Clause accords a similar
general protection to human rights extended by the amparo contra
leyes, amparo casacion, and amparo administrativo. Amparo
libertad is comparable to the remedy of habeas corpus found in
several provisions of the 1987 Constitution. [88] The Clause is an
offspring of the U.S. common law tradition of judicial review, which
[89]
finds its roots in the 1803 case of Marbury v. Madison.
While constitutional rights can be protected under the Grave Abuse
Clause through remedies of injunction or prohibition under Rule 65
of the Rules of Court and a petition for habeas corpus under Rule
102,[90] these remedies may not be adequate to address the
pestering problem of extralegal killings and
disappearances. However, with the swiftness required to resolve a
petition for a writ of amparo through summary proceedings and the
availability of appropriate interim and permanent reliefs under
the AmparoRule, this hybrid writ of the common law and civil law
traditions - borne out of the Latin American and Philippine
experience of human rights abuses - offers a better remedy to
extralegal killings and enforced disappearances and threats
thereof. The remedy provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to
make the appropriate reliefs available to the petitioner; it is not an
action to determine criminal guilt requiring proof beyond reasonable
doubt, or liability for damages requiring preponderance of evidence,
or administrative responsibility requiring substantial evidence that
will require full and exhaustive proceedings. [91]
The writ of amparo serves both preventive and curative roles in
addressing the problem of extralegal killings and enforced
disappearances. It is preventive in that it breaks the expectation of
impunity in the commission of these offenses; it is curative in that it
facilitates the subsequent punishment of perpetrators as it will
inevitably yield leads to subsequent investigation and action. In the
long run, the goal of both the preventive and curative roles is to deter
the further commission of extralegal killings and enforced
disappearances.
In the case at bar, respondents initially filed an action for Prohibition,
Injunction, and Temporary Restraining Order [92] to stop petitioners
and/or their officers and agents from depriving the respondents of
their right to liberty and other basic rights on August 23,
2007,[93] prior to the promulgation of the Amparo Rule. They also
of the
sought ancillary remedies including Protective Custody Orders,
Appointment of Commissioner, Inspection and Access Orders and
other legal and equitable remedies under Article VIII, Section 5(5)
of the 1987 Constitution and Rule 135, Section 6 of the Rules of
Court. When the Amparo Rule came into effect onOctober 24, 2007,
they moved to have their petition treated as an amparo petition as it
would be more effective and suitable to the circumstances of the
Manalo brothers enforced disappearance. The Court granted their
motion.
With this backdrop, we now come to the arguments of the
petitioner. Petitioners first argument in disputing the Decision of the
Court of Appeals states, viz:
The Court of Appeals seriously and grievously
erred in believing and giving full faith and credit
to the incredible uncorroborated, contradicted,
and obviously scripted, rehearsed and self-
serving affidavit/testimony of herein respondent
Raymond Manalo.[94]
enforced In delving into the veracity of the evidence, we need to
mine and refine the ore of petitioners cause of action, to determine
whether the evidence presented is metal-strong to satisfy the
degree of proof required.
Section 1 of the Rule on the Writ of Amparo provides for
the following causes of action, viz:
Section 1. Petition. The petition for a writ
of amparo is a remedy available to any person
whose right to life, liberty and security is
violated or threatened with violation by an
unlawful act or omission of a public official or
employee, or of a private individual or entity.
The writ shall cover extralegal killings
and enforced disappearances or threats
thereof. (emphasis supplied)
172

Sections 17 and 18, on the other hand, provide for the degree of
proof required, viz:
Sec. 17. Burden of Proof and Standard of
Diligence Required. The parties shall establish
their claims by substantial evidence.
xxx xxx xxx
Sec. 18. Judgment. If the allegations in the
petition are proven by substantial evidence,
the court shall grant the privilege of the writ and
such reliefs as may be proper and
appropriate; otherwise, the privilege shall
be denied. (emphases supplied)
Substantial evidence has been defined as such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.[95]
After careful perusal of the evidence presented, we affirm the
findings of the Court of Appeals that respondents were abducted
from their houses in Sito Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan on February 14, 2006 and were continuously
detained until they escaped on August 13, 2007. The abduction,
detention, torture, and escape of the respondents were narrated by
respondent Raymond Manalo in a clear and convincing
manner. His account is dotted with countless candid details of
respondents harrowing experience and tenacious will to escape,
captured through his different senses and etched in his memory. A
few examples are the following: Sumilip ako sa isang haligi ng
kamalig at nakita kong sinisilaban si Manuel. [96] (N)ilakasan ng mga
sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal,
narinig ko ang hiyaw o ungol ni Manuel. [97] May naiwang mga bakas
ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon
nang nililinis ang bakas.[98] Tumigil ako sa may palaisdaan kung
saan ginamit ko ang bato para tanggalin ang mga
kadena.[99] Tinanong ko sa isang kapit-bahay kung paano ako
makakakuha ng cell phone; sabi ko gusto kong i-text ang isang
babae na nakatira sa malapit na lugar.[100]
We affirm the factual findings of the appellate court, largely based
on respondent Raymond Manalos affidavit and testimony, viz:
the abduction was perpetrated by armed men who
were sufficiently identified by the petitioners
(herein respondents) to be military personnel and
CAFGU auxiliaries. Raymond recalled that the six
armed men who barged into his house through
the rear door were military men based on their
attire of fatigue pants and army boots, and the
CAFGU auxiliaries, namely: Michael de la Cruz,
Madning de la Cruz, Puti de la Cruz and Pula de
la Cruz, all members of the CAFGU and residents
of Muzon, San Ildefonso, Bulacan, and the
brothers Randy Mendoza and Rudy Mendoza,
also CAFGU members, served as lookouts during
the abduction. Raymond was sure that three of
the six military men were Ganata, who headed the
abducting team, Hilario, who drove the van, and
George. Subsequent incidents of their long
captivity, as narrated by the petitioners, validated
their assertion of the participation of the elements
of the 7th Infantry Division, Philippine Army, and
their CAFGU auxiliaries.
We are convinced, too, that the reason for the
abduction was the suspicion that the petitioners
were either members or sympathizers of the NPA,
considering that the abductors were looking for Ka
Bestre, who turned out to be Rolando, the brother
of petitioners.
The efforts exerted by the Military Command to
look into the abduction were, at best, merely
superficial. The investigation of the Provost
Marshall of the 7th Infantry Division focused on the
one-sided version of the CAFGU auxiliaries
involved. This one-sidedness might be due to the
fact that the Provost Marshall could delve only into
the participation of military personnel, but even
then the Provost Marshall should have refrained
from outrightly exculpating the CAFGU auxiliaries
he perfunctorily investigated
Gen. Palparans participation in the abduction was
also established. At the very least, he was aware
of the petitioners captivity at the hands of men in
uniform assigned to his command. In fact, he or
any other officer tendered no controversion to the
firm claim of Raymond that he (Gen. Palparan)
met them in person in a safehouse in Bulacan and
told them what he wanted them and their parents
to do or not to be doing.Gen. Palparans direct and
personal role in the abduction might not have
been shown but his knowledge of the dire
situation of the petitioners during their long
captivity at the hands of military personnel under
his command bespoke of his indubitable
command policy that unavoidably encouraged
and not merely tolerated the abduction of civilians
without due process of law and without probable
cause.
In the habeas proceedings, the Court, through the
Former Special Sixth Division (Justices Buzon,
chairman; Santiago-Lagman, Sr., member; and
Romilla-Lontok, Jr., member/ponente.) found no
clear and convincing evidence to establish that
M/Sgt. Rizal Hilario had anything to do with the
abduction or the detention. Hilarios involvement
could not, indeed, be then established after
Evangeline Francisco, who allegedly saw Hilario
drive the van in which the petitioners were
boarded and ferried following the abduction, did
not testify. (See the decision of the habeas
proceedings at rollo, p. 52)
However, in this case, Raymond attested that
Hilario drove the white L-300 van in which the
petitioners were brought away from their houses
on February 14, 2006. Raymond also attested
that Hilario participated in subsequent incidents
during the captivity of the petitioners, one of which
was when Hilario fetched them from Fort
Magsaysay on board a Revo and conveyed them
to a detachment in Pinaud, San Ildefonso,
Bulacan where they were detained for at least a
week in a house of strong materials (Exhibit
D, rollo, p. 205) and then Hilario (along with Efren)
brought them to Sapang, San Miguel, Bulacan on
board the Revo, to an unfinished house inside the
compound ofKapitan where they were kept for
more or less three months. (Exhibit D, rollo, p.
205) It was there where the petitioners came face
to face with Gen. Palparan. Hilario and Efren also
brought the petitioners one early morning to the
house of the petitioners parents, where only
Raymond was presented to the parents to relay
the message from Gen. Palparan not to join
anymore rallies. On that occasion, Hilario warned
the parents that they would not again see their
sons should they join any rallies to denounce
human rights violations. (Exhibit D,rollo, pp. 205-
206) Hilario was also among four Master
Sergeants (the others being Arman, Ganata and
Cabalse) with whom Gen. Palparan conversed on
the occasion when Gen. Palparan required
173
 Raymond to take the medicines for his health.
(Exhibit D, rollo, p. 206) There were other or landmarks they can identify in the places where they were
occasions when the petitioners saw that Hilario
had a direct hand in their torture. detained. Where powerful military officers are implicated, the

hesitation of witnesses to surface and testify against them comes

It is clear, therefore, that the participation of
Hilario in the abduction and forced disappearance as no surprise.
of the petitioners was established. The
participation of other military personnel like
Arman, Ganata, Cabalse and Caigas, among We now come to the right of the respondents to the
others, was similarly established.
privilege of the writ of amparo. There is no quarrel that the enforced
xxx xxx xxx
disappearance of both respondents Raymond and Reynaldo
As to the CAFGU auxiliaries, the habeas Court Manalo has now passed as they have escaped from captivity and
found them personally involved in the
abduction. We also do, for, indeed, the evidence surfaced. But while respondents admit that they are no longer in
of their participation is overwhelming.[101]
detention and are physically free, they assert that they are not free
We reject the claim of petitioners that respondent Raymond
in every sense of the word[109] as their movements continue to be
Manalos statements were not corroborated by other independent
restricted for fear that people they have named in their Judicial
and credible pieces of evidence.[102] Raymonds affidavit and
Affidavits and testified against (in the case of Raymond) are still at
testimony were corroborated by the affidavit of respondent
large and have not been held accountable in any way. These
Reynaldo Manalo. The testimony and medical reports prepared by
people are directly connected to the Armed Forces of
forensic specialist Dr. Molino, and the pictures of the scars left by
the Philippines and are, thus, in a position to threaten
the physical injuries inflicted on respondents, [103] also corroborate
respondents rights to life, liberty and security.[110] (emphasis
respondents accounts of the torture they endured while in
supplied) Respondents claim that they are under threat of being
detention.Respondent Raymond Manalos familiarity with the
once again abducted, kept captive or even killed, which
facilities in Fort Magsaysay such as the DTU, as shown in his
constitute a direct violation of their right to security of person.[111]
testimony and confirmed by Lt. Col. Jimenez to be the Division

Training Unit,[104] firms up respondents story that they were Elaborating on the right to security, in
detained for some time in said military facility. general, respondents point out that this right is often associated

with liberty; it is also seen as an expansion of rights based on the

In Ortiz v. Guatemala,[105] a case decided by the Inter-American
prohibition against torture and cruel and unusual
Commission on Human Rights, the Commission considered similar
punishment. Conceding that there is no right to security expressly
evidence, among others, in finding that complainant Sister Diana
mentioned in Article III of the 1987 Constitution, they submit that
Ortiz was abducted and tortured by agents of the Guatemalan
their rights to be kept free from torture and
government. In this case, Sister Ortiz was kidnapped and tortured
[112]
from incommunicado detention and solitary detention places fall
in early November 1989. The Commissions findings of fact were
under the general coverage of the right to security of person under
mostly based on the consistent and credible statements, written and
the writ of Amparo. They submit that the Court ought to give an
oral, made by Sister Ortiz regarding her ordeal. [106] These
expansive recognition of the right to security of person in view of
statements were supported by her recognition of portions of the
the State Policy under Article II of the 1987 Constitution which
route they took when she was being driven out of the military
enunciates that, The State values the dignity of every human
installation where she was detained.[107] She was also examined by
person and guarantees full respect for human rights. Finally, to
a medical doctor whose findings showed that the 111 circular
justify a liberal interpretation of the right to security of person,
second degree burns on her back and abrasions on her cheek
respondents cite the teaching in Moncupa v. Enrile[113] that the
coincided with her account of cigarette burning and torture she
right to liberty may be made more meaningful only if there is no
suffered while in detention.[108]
undue restraint by the State on the exercise of that liberty [114] such

With the secret nature of an enforced disappearance and the torture as a requirement to report under unreasonable restrictions that

perpetrated on the victim during detention, it logically holds that amounted to a deprivation of liberty[115] or being put under

much of the information and evidence of the ordeal will come from monitoring and surveillance.[116]

the victims themselves, and the veracity of their account will depend
In sum, respondents assert that their cause of action consists in
on their credibility and candidness in their written and/or oral
the threat to their right to life and liberty, and a violation of their
statements. Their statements can be corroborated by other
right to security.
evidence such as physical evidence left by the torture they suffered

174
Let us put this right to security under the lens to determine if A closer look at the right to security of person would yield various

it has indeed been violated as respondents assert. The right to permutations of the exercise of this right.

security or the right to security of person finds a textual hook in

First, the right to security of person is freedom from fear. In its
Article III, Section 2 of the 1987 Constitution which provides,viz:
Sec. 2. The right of the people to be secure in whereas clauses, the Universal Declaration of Human
their persons, houses, papers and effects
Rights(UDHR) enunciates that a world in which human beings shall
against unreasonable searches and seizures of
whatever nature and for any purpose shall enjoy freedom of speech and belief and freedom from fear and
be inviolable, and no search warrant or warrant
of arrest shall issue except upon probable cause want has been proclaimed as the highest aspiration of the common
to be determined personally by the judge
people. (emphasis supplied) Some scholars postulate that freedom
At the core of this guarantee is the immunity of ones
from fear is not only an aspirational principle, but essentially an
person, including the extensions of his/her person houses, papers,
individual international human right. [124] It is the right to security of
and effects against government intrusion. Section 2 not only limits
person as the word security itself means freedom from
the states power over a persons home and possessions, but more
fear.[125] Article 3 of the UDHR provides, viz:
importantly, protects the privacy and sanctity of the person
Everyone has the right to life, liberty and security of
himself.[117] The purpose of this provision was enunciated by the person.[126] (emphasis supplied)
In furtherance of this right declared in the UDHR, Article
Court in People v. CFI of Rizal, Branch IX, Quezon City, viz: [118]
9(1) of the International Covenant on Civil and Political
The purpose of the constitutional guarantee Rights(ICCPR) also provides for the right to security of person, viz:
against unreasonable searches and seizures is
to prevent violations of private security in 1. Everyone has the right to liberty and security
person and property and unlawful invasion of the of person. No one shall be subjected to arbitrary
security of the home by officers of the law acting arrest or detention. No one shall be deprived of
under legislative or judicial sanction and to give his liberty except on such grounds and in
remedy against such usurpation when attempted. accordance with such procedure as are
(Adams v. New York, 192 U.S. 858; Alvero v. established by law. (emphasis supplied)
Dizon, 76 Phil. 637 [1946]). The right to privacy is
an essential condition to the dignity and The Philippines is a signatory to both the UDHR and the
happiness and to the peace and security of ICCPR.
every individual, whether it be of home or of
persons and correspondence. (Taada and
Carreon, Political Law of the Philippines, Vol. 2, In the context of Section 1 of the Amparo Rule, freedom
139 [1962]). The constitutional inviolability of this
great fundamental right against unreasonable from fear is the right and any threat to the rights to life, liberty or
searches and seizures must be deemed absolute
as nothing is closer to a mans soul than the security is the actionable wrong. Fear is a state of mind, a
serenity of his privacy and the assurance of
his personal security. Any interference reaction; threat is a stimulus, a cause of action. Fear caused by the
allowable can only be for the best causes and same stimulus can range from being baseless to well-founded as
reasons.[119] (emphases supplied)
people react differently. The degree of fear can vary from one person
While the right to life under Article III, Section
to another with the variation of the prolificacy of their imagination,
1[120] guarantees essentially the right to be alive[121] - upon which the
strength of character or past experience with the stimulus. Thus, in
enjoyment of all other rights is preconditioned - the right to security
the amparo context, it is more correct to say that the right to security
of person is a guarantee of the secure quality of this life, viz:The life
is actually the freedom from threat. Viewed in this light, the
to which each person has a right is not a life lived in fear that his
threatened with violation Clause in the latter part of Section 1 of
person and property may be unreasonably violated by a powerful
the Amparo Rule is a form of violation of the right to security
ruler. Rather, it is a life lived with the assurance that the government
mentioned in the earlier part of the provision. [127]
he established and consented to, will protect the security of his

person and property. The ideal of security in life and property

Second, the right to security of person is a guarantee
pervades the whole history of man. It touches every aspect of mans
of bodily and psychological integrity or security. Article III,
existence.[122] In a broad sense, the right to security of person
Section II of the 1987 Constitution guarantees that, as a general rule,
emanates in a persons legal and uninterrupted enjoyment of his life,
ones body cannot be searched or invaded without a search
his limbs, his body, his health, and his reputation. It includes the
warrant.[128] Physical injuries inflicted in the context of extralegal
right to exist, and the right to enjoyment of life while existing, and it
killings and enforced disappearances constitute more than a search
is invaded not only by a deprivation of life but also of those things
or invasion of the body. It may constitute dismemberment, physical
which are necessary to the enjoyment of life according to the nature,
disabilities, and painful physical intrusion. As the degree of physical
temperament, and lawful desires of the individual. [123]
injury increases, the danger to life itself escalates. Notably, in

criminal law, physical injuries constitute a crime against persons

175
 procedural obligation under Art.3 to conduct an
because they are an affront to the bodily integrity or security of a effective investigation into his
allegations.[131] (emphasis supplied)
person.[129]

Physical torture, force, and violence are a severe invasion of bodily
integrity. When employed to vitiate the free will such as to force the
victim to admit, reveal or fabricate incriminating information, it
constitutes an invasion of both bodily and psychological integrity as
the dignity of the human person includes the exercise of free
will. Article III, Section 12 of the 1987 Constitution more specifically
proscribes bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or
intimidation, or any other means which vitiate the
free will shall be used against him (any person
under investigation for the commission of an
offense). Secret detention places,
solitary, incommunicado or other similar forms
of detention are prohibited.
The U.N. Committee on the Elimination of Discrimination against
Women has also made a statement that the protection of the bodily
integrity of women may also be related to the right to security and
liberty, viz:
gender-based violence which impairs or nullifies
the enjoyment by women of human rights and
fundamental freedoms under general international
law or under specific human rights conventions is
discrimination within the meaning of article 1 of the
Convention (on the Elimination of All Forms of
Discrimination Against Women). These rights and
freedoms include . . . the right to liberty
and security of person.[132]
Third, the right to security of person is a guarantee
of protection of ones rights by the government. In the context

of the writ of amparo, this right is built into the guarantees of the
Parenthetically, under this provision, threat and intimidation that
right to life and liberty under Article III, Section 1 of the 1987
vitiate the free will - although not involving invasion of bodily integrity
Constitution and the right to security of person (as freedom from
- nevertheless constitute a violation of the right to security in the
threat and guarantee of bodily and psychological integrity) under
sense of freedom from threat as afore-discussed.
Article III, Section 2. The right to security of person in this third

sense is a corollary of the policy that the State guarantees full

Article III, Section 12 guarantees freedom from
respect for human rights under Article II, Section 11 of the 1987
dehumanizing abuses of persons under investigation for the
Constitution.[133] As the government is the chief guarantor of order
commission of an offense. Victims of enforced disappearances who
and security, the Constitutional guarantee of the rights to life, liberty
are not even under such investigation should all the more be
and security of person is rendered ineffective if government does
protected from these degradations.
not afford protection to these rights especially when they are under

An overture to an interpretation of the right to security of person threat. Protection includes conducting effective investigations,

as a right against torture was made by the European Court of organization of the government apparatus to extend protection to

Human Rights (ECHR) in the recent case of Popov victims of extralegal killings or enforced disappearances (or threats

v. Russia.[130] In this case, the claimant, who was lawfully detained, thereof) and/or their families, and bringing offenders to the bar of

alleged that the state authorities had physically abused him in justice. The Inter-American Court of Human Rights stressed the

prison, thereby violating his right to security of person. Article 5(1) importance of investigation in the Velasquez Rodriguez

of the European Convention on Human Rights Case,[134] viz:

provides, viz: Everyone has the right to liberty and security of (The duty to investigate) must be undertaken
in a serious manner and not as a mere
person. No one shall be deprived of his liberty save in the following formality preordained to be ineffective. An
investigation must have an objective and
cases and in accordance with a procedure prescribed by law ...
be assumed by the State as its own legal
(emphases supplied)Article 3, on the other hand, provides that (n)o duty, not as a step taken by private interests
that depends upon the initiative of the victim
one shall be subjected to torture or to inhuman or or his family or upon their offer of proof, without
an effective search for the truth by the
degrading treatment or punishment.Although the application failed government.[135]

on the facts as the alleged ill-treatment was found baseless, the

ECHR relied heavily on the concept of security in holding, viz:
...the applicant did not bring his allegations
to the attention of domestic authorities at the
time when they could reasonably have been
expected to take measures in order to ensure
his security and to investigate the
circumstances in question.
xxx xxx xxx
... the authorities failed to ensure
his security in custody or to comply with the
This third sense of the right to security of person as a
guarantee of government protection has been interpreted by the
United Nations Human Rights Committee[136] in not a few cases
involving Article 9[137] of the ICCPR. While the right to security of
person appears in conjunction with the right to liberty under Article
9, the Committee has ruled that the right to security of person can
exist independently of the right to liberty. In other words, there
need not necessarily be a deprivation of liberty for the right to
security of person to be invoked. In Delgado Paez v.
Colombia,[138] a case involving death threats to a religion teacher at
176
a secondary school in Leticia, Colombia, whose social views
differed from those of the Apostolic Prefect of Leticia, the Committee
held, viz:
The first sentence of article 9 does not
stand as a separate paragraph. Its location as a
part of paragraph one could lead to the view that
the right to security arises only in the context of
arrest and detention. The travaux
prparatoires indicate that the discussions of the
first sentence did indeed focus on matters dealt
with in the other provisions of article 9. The
Universal Declaration of Human Rights, in
article 3, refers to the right to life, the right to
liberty and the right to security of the
person. These elements have been dealt with
in separate clauses in the Covenant.
Although in the Covenant the only reference
to the right of security of person is to be
found in article 9, there is no evidence that it
was intended to narrow the concept of the
right to security only to situations of formal
deprivation of liberty. At the same time,
States parties have undertaken to guarantee
the rights enshrined in the Covenant. It
cannot be the case that, as a matter of law,
States can ignore known threats to the life of
persons under their jurisdiction, just
because that he or she is not arrested or
otherwise detained. States parties are under
an obligation to take reasonable and
appropriate measures to protect them. An
interpretation of article 9 which would allow
a State party to ignore threats to the personal
security of non-detained persons within its
jurisdiction would render totally ineffective
the guarantees of the
Covenant.[139] (emphasis supplied)
The Paez ruling was reiterated in Bwalya
[140]
Zambia, which involved a political activist and prisoner of
conscience who continued to be intimidated, harassed, and
restricted in his movements following his release from detention. In
a catena of cases, the ruling of the Committee was of a similar
import: Bahamonde v. Equatorial Guinea,[141] involving
discrimination, intimidation and persecution of opponents of the
ruling party in that state; Tshishimbi v. Zaire,[142] involving the
abduction of the complainants husband who was a supporter of
democratic reform in Zaire; Dias v. Angola,[143] involving
the murder of thecomplainants partner and the harassment he
(complainant) suffered because of his investigation of the murder;
and Chongwe v. Zambia,[144] involving an assassination attempt
on the chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has
interpreted the right to security not only as prohibiting the State from
arbitrarily depriving liberty, but imposing a positive duty on the State
to afford protection of the right to liberty.[145] The ECHR interpreted
the right to security of person under Article 5(1) of the European
Convention of Human Rights in the leading case on disappearance
of persons, Kurt v. Turkey.[146] In this case, the claimants son had
been arrested by state authorities and had not been seen
since. The familys requests for information and investigation
regarding his whereabouts proved futile. The claimant suggested
that this was a violation of her sons right to security of person. The
ECHR ruled, viz:
... any deprivation of liberty must not
only have been effected in conformity with the
substantive and procedural rules of national law
but must equally be in keeping with the very
purpose of Article 5, namely to protect the
individual from arbitrariness... Having assumed
control over that individual it is incumbent on the
authorities to account for his or her
whereabouts. For this reason, Article 5 must
be seen as requiring the authorities to take
effective measures to safeguard against the
risk of disappearance and to conduct a
prompt effective investigation into an
arguable claim that a person has been taken
into custody and has not been seen
since.[147](emphasis supplied)
Applying the foregoing concept of the right to security of
person to the case at bar, we now determine whether there is a
continuing violation of respondents right to security.
First, the violation of the right to security as freedom from
threat to respondents life, liberty and security.
While respondents were detained, they were threatened that if they
escaped, their families, including them, would be killed. In
Raymonds narration, he was tortured and poured with gasoline
after he was caught the first time he attempted to escape
v. from FortMagsaysay. A call from a certain Mam, who wanted to see
him before he was killed, spared him.
This time, respondents have finally escaped. The condition of the
threat to be killed has come to pass. It should be stressed that they
are now free from captivity not because they were released by virtue
of a lawful order or voluntarily freed by their abductors. It ought to
be recalled that towards the end of their ordeal, sometime in June
2007 when respondents were detained in a camp in Limay, Bataan,
respondents captors even told them that they were still deciding
whether they should be executed. Respondent Raymond Manalo
attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa
kami. Tinanggal ang mga kadena mga 3 o 4 na
araw pagkalipas. Sinabi sa amin na kaya kami
nakakadena ay dahil pinagdedesisyunan pa ng
mga sundalo kung papatayin kami o hindi.[148]
The possibility of respondents being executed stared
them in the eye while they were in detention. With their escape, this
continuing threat to their life is apparent, moreso now that they have
surfaced and implicated specific officers in the military not only in
their own abduction and torture, but also in those of other persons
known to have disappeared such as Sherlyn Cadapan,Karen
Empeo, and Manuel Merino, among others.
Understandably, since their escape, respondents have been under
concealment and protection by private citizens because of the
177
threat to their life, liberty and security. The threat vitiates their free directive to the units of the AFP for the purpose of establishing the

will as they are forced to limit their movements or circumstances of the alleged disappearance and the recent

activities.[149] Precisely because respondents are being shielded reappearance of the respondents, and undertook to provide results

from the perpetrators of their abduction, they cannot be expected to of the investigations to respondents.[151] To this day, however,

show evidence of overt acts of threat such as face-to-face almost a year after the policy directive was issued by petitioner

intimidation or written threats to their life, liberty and Secretary of National Defense on October 31, 2007, respondents

security. Nonetheless, the circumstances of respondents have not been furnished the results of the investigation which they

abduction, detention, torture and escape reasonably support a now seek through the instant petition for a writ of amparo.

conclusion that there is an apparent threat that they will again be

Under these circumstances, there is substantial evidence to warrant
abducted, tortured, and this time, even executed. These constitute
the conclusion that there is a violation of respondents right to
threats to their liberty, security, and life, actionable through a
security as a guarantee of protection by the government.
petition for a writ of amparo.

In sum, we conclude that respondents right to security as freedom

Next, the violation of the right to security as protection by the
from threat is violated by the apparent threat to their life, liberty and
government. Apart from the failure of military elements to provide
security of person. Their right to security as a guarantee of
protection to respondents by themselves perpetrating the
protection by the government is likewise violated by the ineffective
abduction, detention, and torture, they also miserably failed in
investigation and protection on the part of the military.
conducting an effective investigation of respondents abduction as

revealed by the testimony and investigation report of petitioners

Finally, we come to the reliefs granted by the Court of Appeals,
own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the
which petitioners question.
7th Infantry Division.

First, that petitioners furnish respondents all official and unofficial

The one-day investigation conducted by Jimenez was very limited,
reports of the investigation undertaken in connection with their
superficial, and one-sided. He merely relied on the Sworn
case, except those already in file with the court.
Statements of the six implicated members of the CAFGU and

civilians whom he met in the investigation for the first time. He was Second, that petitioners confirm in writing the present places of

present at the investigation when his subordinate Lingad was taking official assignment of M/Sgt. Hilario aka Rollie Castillo and

the sworn statements, but he did not propound a single question to Donald Caigas.

ascertain the veracity of their statements or their credibility. He did

Third, that petitioners cause to be produced to the Court of Appeals
not call for other witnesses to test the alibis given by the six
all medical reports, records and charts, and reports of any
implicated persons nor for the family or neighbors of the
treatment given or recommended and medicines prescribed, if
respondents.
any, to the Manalo brothers, to include a list of medical

In his affidavit, petitioner Secretary of National Defense attested personnel (military and civilian) who attended to them from

that in a Memorandum Directive dated October 31, 2007, he issued February 14, 2006 until August 12, 2007.

a policy directive addressed to the AFP Chief of Staff, that the AFP
With respect to the first and second reliefs, petitioners argue that
should adopt rules of action in the event the writ ofamparo is issued
the production order sought by respondents partakes of the
by a competent court against any members of the AFP, which
characteristics of a search warrant. Thus, they claim that the
should essentially include verification of the identity of the aggrieved
requisites for the issuance of a search warrant must be complied
party; recovery and preservation of relevant evidence; identification
with prior to the grant of the production order, namely: (1) the
of witnesses and securing statements from them; determination of
application must be under oath or affirmation; (2) the search warrant
the cause, manner, location and time of death or disappearance;
must particularly describe the place to be searched and the things
identification and apprehension of the person or persons involved
to be seized; (3) there exists probable cause with one specific
in the death or disappearance; and bringing of the suspected
offense; and (4) the probable cause must be personally determined
offenders before a competent court.[150]Petitioner AFP Chief of Staff
by the judge after examination under oath or affirmation of the
also submitted his own affidavit attesting that he received the above
complainant and the witnesses he may produce. [152] In the case at
directive of respondent Secretary of National Defense and that
bar, however, petitioners point out that other than the bare, self-
acting on this directive, he immediately caused to be issued a
178
serving and vague allegations made by respondent Raymond submission of a list of medical personnel, is irrelevant, improper,

Manalo in his unverified declaration and affidavit, the documents immaterial, and unnecessary in the resolution of the petition for a

respondents seek to be produced are only mentioned generally by writ of amparo. They add that it will unnecessarily compromise and

name, with no other supporting details. They also argue that the jeopardize the exercise of official functions and duties of military

relevancy of the documents to be produced must be apparent, but officers and even unwittingly and unnecessarily expose them to

this is not true in the present case as the involvement of petitioners threat of personal injury or even death.

in the abduction has not been shown.

On the contrary, the disclosure of the present places of assignment

Petitioners arguments do not hold water. The production order of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, whom

under the Amparo Rule should not be confused with a search respondents both directly implicated as perpetrators behind their

warrant for law enforcement under Article III, Section 2 of the 1987 abduction and detention, is relevant in ensuring the safety of

Constitution. This Constitutional provision is a protection of the respondents by avoiding their areas of territorial jurisdiction. Such

people from the unreasonable intrusion of the government, not a disclosure would also help ensure that these military officers can be

protection of the government from the demand of the people such served with notices and court processes in relation to any

as respondents. investigation and action for violation of the respondents rights. The

list of medical personnel is also relevant in securing information to

Instead, the amparo production order may be likened to the
create the medical history of respondents and make appropriate
production of documents or things under Section 1, Rule 27 of the
medical interventions, when applicable and necessary.
Rules of Civil Procedure which provides in relevant part, viz:

Section 1. Motion for production or inspection In blatant violation of our hard-won guarantees to life, liberty and
order.
security, these rights are snuffed out from victims of extralegal

Upon motion of any party showing good cause killings and enforced disappearances. The writ of amparo is a tool
therefor, the court in which an action is pending
may (a) order any party to produce and permit the that gives voice to preys of silent guns and prisoners behind secret
inspection and copying or photographing, by or on
behalf of the moving party, of any designated walls.
documents, papers, books of accounts, letters,
photographs, objects or tangible things, not
privileged, which constitute or contain evidence
WHEREFORE, premises considered, the petition
material to any matter involved in the action and
which are in his possession, custody or control
is DISMISSED. The Decision of the Court of Appeals dated

December 26, 2007 is affirmed.

In Material Distributors (Phil.) Inc. v. Judge Natividad,[153] the

respondent judge, under authority of Rule 27, issued asubpoena

duces tecum for the production and inspection of among others, the

books and papers of Material Distributors (Phil.) Inc.The company

questioned the issuance of the subpoena on the ground that it

violated the search and seizure clause. The Court struck down the

argument and held that the subpoena pertained to a civil procedure

that cannot be identified or confused with unreasonable searches

prohibited by the Constitution

Moreover, in his affidavit, petitioner AFP Chief of Staff himself

undertook to provide results of the investigations conducted or to be

conducted by the concerned unit relative to the circumstances of the

alleged disappearance of the persons in whose favor the Writ

of Amparo has been sought for as soon as the same has been

furnished Higher headquarters.

With respect to the second and third reliefs, petitioners assert

that the disclosure of the present places of assignment of M/Sgt.

Hilario aka Rollie Castillo and Donald Caigas, as well as the

179
FATHER ROBERT P. REYES,
APPEALS, SECRETARY RAUL M.
IN HIS CAPACITY AS THE
OF THE DEPARTMENT OF JUSTICE,
SSIONER MARCELINO C. LIBANAN, IN
TY AS THE COMMISSIONER OF THE
IMMIGRATION,
G. R. No. 182161 Commissioner of Immigration to include in the
Hold Departure List of the Bureau of Immigration
and Deportation (BID) the name of petitioner and
Present: 49 others relative to the aforementioned case in
the interest of national security and public safety.
PUNO, C.J.,
CARPIO, On December 2, 2007, after finding
CORONA, probable cause against petitioner and 36 others
CARPIO MORALES, for the crime of Rebellion under Article 134 of the
CHICO-NAZARIO, Revised Penal Code, the DOJ Panel of
VELASCO, JR., Prosecutors filed an Information docketed as I.S.
NACHURA, No. 2007-1045 before the Regional Trial Court,
LEONARDO-DE CASTRO, Branch 150 of Makati City.
BRION,
PERALTA, On December 7, 2007, petitioner filed
BERSAMIN, a Motion for Judicial Determination of Probable
DEL CASTILLO, Cause and Release of the Accused Fr. Reyes
ABAD, and Upon Recognizance asserting that the DOJ
VILLARAMA, JR., JJ. panel failed to produce any evidence indicating
his specific participation in the crime charged;
Promulgated: and that under the Constitution, the
determination of probable cause must be made
December 3, 2009 personally by a judge.

On December 13, 2007, the RTC

issued an Order dismissing the charge for
Rebellion against petitioner and 17 others for
lack of probable cause. The trial court
ratiocinated that the evidence submitted by the
DOJ Panel of Investigating Prosecutors failed to
show that petitioner and the other accused-
civilians conspired and confederated with the
accused-soldiers in taking arms against the
government; that petitioner and other accused-
civilians were arrested because they ignored the
call of the police despite the deadline given to
them to come out from the 2nd Floor of the Hotel
and submit themselves to the police authorities;
that mere presence at the scene of the crime and
expressing ones sentiments on electoral and
x--------------------------------------------------------------------------------------------x political reforms did not make them conspirators
absent concrete evidence that the accused-
civilians knew beforehand the intent of the
DECISION
accused-soldiers to commit rebellion; and that
the cooperation which the law penalizes must be
LEONARDO-DE CASTRO, J.: one that is knowingly and intentionally rendered.

On December 18, 2007, petitioners

counsel Atty. Francisco L. Chavez wrote the
For resolution is the petition for review under Rule 45 of DOJ Secretary requesting the lifting of HDO No.
45 in view of the dismissal of Criminal Case No.
the Rules of Court, assailing the February 4, 2008 Decision [1] of the 07-3126.

Court of Appeals (CA) in CA-G.R. No. 00011 which dismissed the On even date, Secretary Gonzales
replied to petitioners letter stating that the DOJ
petition for the issuance of the writ of amparo under A.M. No. 07-9- could not act on petitioners request until Atty.
12-SC, as amended. It also assails the CAs Resolution dated March Chavezs right to represent petitioner is settled in
view of the fact that a certain Atty. J. V. Bautista
25, 2008, denying petitioners motion for reconsideration of the representing himself as counsel of petitioner had
also written a letter to the DOJ.
aforesaid February 4, 2008 Decision.
On January 3, 2008, petitioner filed the
instant petition claiming that despite the
dismissal of the rebellion case against petitioner,
The undisputed facts as found by the CA are as follows: HDO No. 45 still subsists; that on December 19,
2007, petitioner was held by BID officials at the
NAIA as his name is included in the Hold
Petitioner was among those arrested Departure List; that had it not been for the timely
in the Manila Peninsula Hotel siege on intervention of petitioners counsel, petitioner
November 30, 2007. In the morning of would not have been able to take his scheduled
November 30, 2007, petitioner together with fifty flight to Hong Kong; that on December 26, 2007,
(50) others, were brought to Camp Crame to petitioner was able to fly back to the Philippines
await inquest proceedings. In the evening of the from Hong Kong but every time petitioner would
same day, the Department of Justice (DOJ) present himself at the NAIA for his flights
Panel of Prosecutors, composed of Emmanuel abroad, he stands to be detained and
Y. Velasco, Phillip L. Dela Cruz and Aristotle M. interrogated by BID officers because of the
Reyes, conducted inquest proceedings to continued inclusion of his name in the Hold
ascertain whether or not there was probable Departure List; and that the Secretary of Justice
cause to hold petitioner and the others for trial has not acted on his request for the lifting of
on charges of Rebellion and/or Inciting to HDO No. 45. Petitioner further maintained that
Rebellion. immediate recourse to the Supreme Court for
the availment of the writ is exigent as the
On December 1, 2007, upon the continued restraint on petitioners right to travel
request of the Department of Interior and Local is illegal.
Government (DILG), respondent DOJ Secretary
Raul Gonzales issued Hold Departure Order On January 24, 2008, respondents
(HDO) No. 45 ordering respondent represented by the Office of the Solicitor
180
 General (OSG) filed the Return of the Writ
raising the following affirmative defenses: 1) that Petitioners Motion for Reconsideration[5] thereon was also
the Secretary of Justice is authorized to issue
Hold Departure Orders under the DOJ Circulars denied in the assailed Resolution[6] dated March 25, 2008.
No. 17, Series of 1998[2] and No. 18 Series of
2007[3] pursuant to his mandate under the
Administrative Code of 1987 as ahead of the Hence, the present petition which is based on the following
principal law agency of the government; 2) that
HDO No. 45 dated December 1, 2007 was grounds:
issued by the Sec. Gonzales in the course of the
preliminary investigation of the case against
herein petitioner upon the request of the DILG; I.
3) that the lifting of HDO No. 45 is premature in
view of public respondents pending Motion for THE DOJ SECRETARYS
Reconsideration dated January 3, 2008 filed by ARROGATION OF POWER AND
the respondents of the Order dated December USURPATION OF AUTHORITY TO ISSUE A
13, 2007 of the RTC dismissing Criminal Case HOLD DEPARTURE ORDER CANNOT BE
No. 07-3126 for Rebellion for lack of probable JUSTIFIED THROUGH A RATIONALE THAT IT
cause; 4) that petitioner failed to exhaust HAS SUPPOSEDLY BEEN REGULARLY
administrative remedies by filing a motion to lift EXERCISED IN THE PAST OR HAS NEVER
HDO No. 45 before the DOJ; and 5) that the BEEN QUESTIONED (IN THE PAST).
constitutionality of Circulars No. 17 and 18 can
not be attacked collaterally in
an amparo proceeding. II.

During the hearing on January 25, THE DOJ HAS CLAIMED A POWER
2008 at 10:00 a.m. at the Paras Hall of the Court TO ISSUE AN HDO INDEPENDENT OF THAT
of Appeals, counsels for both parties OF THE REGIONAL TRIAL COURTS, HENCE,
appeared.Petitioners counsel Atty. Francisco PETITIONER CANNOT MERELY RELY ON
Chavez manifested that petitioner is currently in THE RESIDUAL POWER OF THE
Hong Kong; that every time petitioner would RTC MAKATI IN CRIMINAL CASE NO. 07-3126
leave and return to the country, the immigration TO ASSAIL SUCH CLAIMED POWER.
officers at the NAIA detain and interrogate him
for several minutes because of the existing III.
HDO; that the power of the DOJ Secretary to
issue HDO has no legal basis; and that petitioner THE UTMOST EXIGENCY OF THE
did not file a motion to lift the HDO before the PETITION IS EXEMPLIFIED BY THE
RTC nor the DOJ because to do so would be CONTINUING
tantamount to recognizing the power of the DOJ ACTUAL RESTRAINT ONPETITIONERS
Secretary to issue HDO. RIGHT TO TRAVEL THROUGH
THE MAINTENANCE OF HIS NAME IN THE
For respondents part, the Office of the HDO LIST AND DOES NOT
Solicitor-General (OSG) maintained that the SIMPLY HINGE ON THE QUESTION OF
Secretary of the DOJs power to issue HDO WHETHER OR NOT PETITIONER WAS ABLE
springs from its mandate under the TO TRAVEL DESPITE SUCH A RESTRAINT.
Administrative Code to investigate and
prosecute offenders as the principal law agency IV.
of the government; that in its ten-year existence,
the constitutionality of DOJ Circular No. 17 has DOJ CIRCULAR 17 SERIES OF 1998
not been challenged except now; and that on PROVIDES NO STATUTORY BASIS FOR THE
January 3, 2008, the DOJ Panel of Investigating DOJ SECRETARYS CLAIMED POWER TO
Prosecutors had filed a Motion for ISSUE AN HDO FOR IT IS NOT A
Reconsideration of the Order of Dismissal of the STATUTE. THE CIRCULAR ITSELF APPEARS
trial court. NOT TO BE BASED ON ANY STATUTE,
HENCE, IT DOES NOT HAVE THE FORCE OF
On February 1, 2008, petitioner filed a LAW AND NEED NOT BE ATTACKED IN A
Manifestation attaching thereto a copy of the DIRECT PROCEEDING.[7]
Order dated January 31, 2008 of the trial court
denying respondent DOJs Motion for
Reconsideration for utter lack of merit. The trial
court also observed that the said Motion should Petitioner maintains that the writ of amparo does not only
be dismissed outright for being filed out of
time. [4] exclusively apply to situations of extrajudicial killings and enforced

disappearances but encompasses the whole gamut of liberties

The petition for a writ of amparo is anchored on the ground protected by the Constitution. Petitioner argues that [liberty]

that respondents violated petitioners constitutional right to includes the right to exist and the right to be free from arbitrary

travel.Petitioner argues that the DOJ Secretary has no power to personal restraint or servitude and includes the right of the citizens

issue a Hold Departure Order (HDO) and the subject HDO No. 45 to be free to use his faculties in all lawful ways. Part of the right to

has no legal basis since Criminal Case No. 07-3126 has already liberty guaranteed by the Constitution is the right of a person to

been dismissed. travel.

On February 4, 2008, the CA rendered the assailed In their Comment,[8] both respondents Secretary Gonzalez

Decision dismissing the petition and denying the privilege of the writ and Commissioner Libanan argue that: 1) HDO No. 45 was validly

ofamparo. issued by the Secretary of Justice in accordance with Department

of Justice Circular No. 17, Series of 1998, [9] and Circular No. 18,

181
 perceived lack of available and effective
Series of 2007,[10] which were issued pursuant to said Secretarys remedies to address these extraordinary
concerns.It is intended to address violations of
mandate under the Administrative Code of 1987, as head of the or threats to the rights to life, liberty or
security, as an extraordinary and
principal law agency of the government, to investigate the
independent remedy beyond those available
commission of crimes, prosecute offenders, and provide under the prevailing Rules, or as a remedy
supplemental to these Rules. What it is not, is a
immigration regulatory services; and; 2) the issue of the writ to protect concerns that are purely property
or commercial. Neither is it a writ that we shall
constitutionality of the DOJ Secretarys authority to issue hold issue on amorphous and uncertain
grounds.Consequently, the Rule on the Writ of
departure orders under DOJ Circulars Nos. 17 and 18 is not within Amparo in line with the extraordinary character
of the writ and the reasonable certainty that its
the ambit of a writ of amparo. issuance demands requires that every petition
for the issuance of the writ must be supported by
justifying allegations of fact, to wit:
The case hinges on the issue as to whether or not
(a) The personal
petitioners right to liberty has been violated or threatened with circumstances of the
petitioner;
violation by the issuance of the subject HDO, which would entitle
(b) The name and
him to the privilege of the writ of amparo. personal circumstances of
the respondent responsible
for the threat, act or
omission, or, if the name is
The petition must fail. unknown or uncertain, the
respondent may be
described by an assumed
Section 1 of the Rule on the Writ of Amparo provides: appellation;

(c) The right to life,

SECTION 1. Petition. The petition for liberty and security of the
a writ of amparo is a remedy available to any aggrieved party violated or
person whose right to life, liberty and threatened with violation by
security is violated or threatened with violation an unlawful act or omission
by an unlawful act or omission of a public official of the respondent, and how
or employee, or of a private individual or entity. such threat or violation is
committed with the attendant
The writ shall cover extralegal killings circumstances detailed in
and enforced disappearances or threats thereof. supporting affidavits;

(d) The
investigation conducted, if
any, specifying the names,
The Court, in Secretary of National Defense et al. v.
personal circumstances, and
Manalo et al.,[11] made a categorical pronouncement that addresses of the
investigating authority or
the AmparoRule in its present form is confined to these two individuals, as well as the
manner and conduct of the
instances of extralegal killings and enforced disappearances, or to investigation, together with
any report;
threats thereof, thus:
(e) The actions and
recourses taken by the
x x x As the Amparo Rule was intended to petitioner to determine the
address the intractable problem of extralegal fate or whereabouts of the
killings and enforced disappearances, its aggrieved party and the
coverage, in its present form, is confined to identity of the person
these two instances or to threats responsible for the threat, act
thereof. Extralegal killings are killings committed or omission; and
without due process of law, i.e., without legal
safeguards or judicial proceedings. On the other (f) The relief
hand, enforced disappearances are attended by prayed for.
the following characteristics: an arrest, detention
or abduction of a person by a government official The petition may include a
or organized groups or private individuals acting general prayer for other just
with the direct or indirect acquiescence of the and equitable reliefs.[14]
government; the refusal of the State to disclose
the fate or whereabouts of the person concerned The writ shall issue if the Court is
or a refusal to acknowledge the deprivation of preliminarily satisfied with the prima
liberty which places such persons outside the facie existence of the ultimate facts
protection of law.[12] determinable from the supporting affidavits that
detail the circumstances of how and to what
extent a threat to or violation of the rights to life,
liberty and security of the aggrieved party was or
is being committed. (Emphasis supplied)
In Tapuz v. Del Rosario,[13] the Court laid down the basic

principle regarding the rule on the writ of amparo as follows:

Here, petitioner invokes this extraordinary remedy of

To start off with the basics, the writ of
amparo was originally conceived as a response the writ of amparo for the protection of his right to travel. He insists
to the extraordinary rise in the number of killings
and enforced disappearances, and to the thathe is entitled to the protection covered by the Rule on the Writ

182

of Amparo because the HDO is a continuing actual restraint on his
right to travel. The Court is thus called upon to rule whether or not the
right to travel is covered by the Rule on the Writ of Amparo.
The rights that fall within the protective mantle of the Writ
of Amparo under Section 1 of the Rules thereon are the following: (1)
right to life; (2) right to liberty; and (3) right to security.
In Secretary of National Defense et al. v. Manalo et
al.,[15] the Court explained the concept of right to life in this wise:
While the right to life under Article III,
Section 1 guarantees essentially the right to be
alive- upon which the enjoyment of all other
rights is preconditioned - the right to security of
person is a guarantee of the secure quality of
this life, viz: The life to which each person has a
right is not a life lived in fear that his person and
property may be unreasonably violated by a
powerful ruler. Rather, it is a life lived with the
assurance that the government he established
and consented to, will protect the security of his
person and property. The ideal of security in life
and property pervades the whole history of
man. It touches every aspect of mans
existence. In a broad sense, the right to security
of person emanates in a persons legal and
uninterrupted enjoyment of his life, his limbs, his
body, his health, and his reputation. It includes
the right to exist, and the right to enjoyment of
life while existing, and it is invaded not only by a
deprivation of life but also of those things which
are necessary to the enjoyment of life according
to the nature, temperament, and lawful desires
of the individual.[16]
The right to liberty, on the other hand, was defined in
the City of Manila, et al. v. Hon. Laguio, Jr.,[17] in this manner:
Liberty as guaranteed by the
Constitution was defined by Justice Malcolm to
include the right to exist and the right to be free
from arbitrary restraint or servitude. The term
cannot be dwarfed into mere freedom from
physical restraint of the person of the citizen, but
is deemed to embrace the right of man to enjoy
the facilities with which he has been endowed by
his Creator, subject only to such restraint as are
necessary for the common welfare. x x x
Secretary of National Defense et al. v. Manalo et
[18]
al. thoroughly expounded on the import of the right
security, thus:
A closer look at the right to security of
person would yield various permutations of the
exercise of this right.
First, the right to security of person is
freedom from fear. In its whereas clauses,
the Universal Declaration of Human
Rights(UDHR) enunciates that a world in which
human beings shall enjoy freedom of speech
and belief and freedom from fear and want has
been proclaimed as the highest aspiration of the
common people. (emphasis supplied) Some
scholars postulate that freedom from fear is not
only an aspirational principle, but essentially an
individual international human right. It is the right
to security of person as the word security itself
means freedom from fear. Article 3 of the UDHR
provides, viz:
Everyone has the
right to life, liberty
and security of person.
xxx
The Philippines is a signatory to both
the UDHR and the ICCPR.
In the context of Section 1 of
the Amparo Rule, freedom from fear is the right
and any threat to the rights to life, liberty or
security is the actionable wrong. Fear is a
state of mind, a reaction; threat is a stimulus,
a cause of action. Fear caused by the same
stimulus can range from being baseless to well-
founded as people react differently. The degree
of fear can vary from one person to another with
the variation of the prolificacy of their
imagination, strength of character or past
experience with the stimulus. Thus, in
the amparocontext, it is more correct to say that
the right to security is actually the freedom from
threat. Viewed in this light, the threatened with
violation Clause in the latter part of Section 1 of
the Amparo Rule is a form of violation of the right
to security mentioned in the earlier part of the
provision.
Second, the right to security of
person is a guarantee of bodily and
psychological integrity or security. Article III,
Section II of the 1987 Constitution guarantees
that, as a general rule, ones body cannot be
searched or invaded without a search
warrant. Physical injuries inflicted in the context
of extralegal killings and enforced
disappearances constitute more than a search
or invasion of the body. It may constitute
dismemberment, physical disabilities, and
painful physical intrusion. As the degree of
physical injury increases, the danger to life itself
escalates. Notably, in criminal law, physical
injuries constitute a crime against persons
because they are an affront to the bodily integrity
or security of a person.
xxx
Third, the right to security of person
is a guarantee of protection of ones rights by
the government. In the context of the writ
of amparo, this right is built into the
guarantees of the right to life and
liberty under Article III, Section 1 of the 1987
Constitution and the right to security of
person (as freedom from threat and guarantee
of bodily and psychological integrity) under
Article III, Section 2.The right to security of
person in this third sense is a corollary of the
policy that the State guarantees full respect for
human rights under Article II, Section 11 of the
1987 Constitution. As the government is the
chief guarantor of order and security, the
to Constitutional guarantee of the rights to life,
liberty and security of person is rendered
ineffective if government does not afford
protection to these rights especially when they
are under threat. Protection includes conducting
effective investigations, organization of the
government apparatus to extend protection to
victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their
families, and bringing offenders to the bar of
justice. x x x (emphasis supplied) [19]
The right to travel refers to the right to move from one
place to another.[20] As we have stated
[21]
in Marcos v. Sandiganbayan, xxx a persons right to travel is
subject to the usual constraints imposed by the very necessity of
safeguarding the system of justice. In such cases, whether the
183

accused should be permitted to leave the jurisdiction for
humanitarian reasons is a matter of the courts sound discretion. [22]
Here, the restriction on petitioners right to travel as a
consequence of the pendency of the criminal case filed against him
was not unlawful. Petitioner has also failed to establish that his right
to travel was impaired in the manner and to the extent that it
amounted to a serious violation of his right to life, liberty and
security, for which there exists no readily available legal recourse or
remedy.
In Canlas et al. v. Napico Homeowners Association I XIII,
Inc. et al.,[23] this Court ruled that:
This new remedy of writ of
amparo which is made available by this Court is
intended for the protection of the highest
possible rights of any person, which is his or her
right to life, liberty and security. The Court will
not spare any time or effort on its part in order to
give priority to petitions of this nature. However,
the Court will also not waste its precious time
and effort on matters not covered by the writ.
We find the direct recourse to this Court inappropriate,
considering the provision of Section 22 of the Rule on the Writ of
Amparo which reads:
Section 22. Effect of Filing of a
Criminal Action. When a criminal action has
been commenced, no separate petition for the
writ shall be filed. The reliefs under the writ shall
be available by motion in the criminal case.
The procedure under this Rule shall
govern the disposition of the reliefs available
under the writ of amparo.
Pursuant to the aforementioned Section 22, petitioner
should have filed with the RTC-Makati a motion to lift HDO No. 45
in Criminal Case No. 07-3126. Petitioner, however, did not file in the
RTC-Makati a motion to lift the DOJs HDO, as his co-accused did in
the same criminal case. Petitioner argues that it was not the RTC-
Makati but the DOJ that issued the said HDO, and that it is his
intention not to limit his remedy to the lifting of the HDO but also to
question before this Court the constitutionality of the power of the
DOJ Secretary to issue an HDO.[24] We quote with approval the CAs
ruling on this matter:
The said provision [Section 22] is an
affirmation by the Supreme Court of its
pronouncement in Crespo v. Mogul[25] that once
a complaint or information is filed in court, any
disposition of the case such as its dismissal or
its continuation rests on the sound discretion of
the court. Despite the denial of respondents MR
of the dismissal of the case against petitioner,
the trial court has not lost control over Criminal
Case No. 07-3126 which is still pending before
it. By virtue of its residual power, the court a
quo retains the authority to entertain incidents in
the instant case to the exclusion of even this
Court. The relief petitioner seeks which is the
lifting of the HDO was and is available by motion
in the criminal case. (Sec. 22, Rule on the Writ
of amparo, supra).[26]
Even in civil cases pending before the trial courts, the
Court has no authority to separately and directly intervene through
the writ of amparo, as elucidated in Tapuz v. Del Rosario,[27] thus:
Where, as in this case, there is an
ongoing civil process dealing directly with the
possessory dispute and the reported acts of
violence and harassment, we see no point in
separately and directly intervening through a writ
of amparo in the absence of any clear prima
facie showing that the right to life, liberty or
security the personal concern that the writ is
intended to protect is immediately in danger or
threatened, or that the danger or threat is
continuing. We see no legal bar, however, to an
application for the issuance of the writ, in
aproper case, by motion in a pending case on
appeal or on certiorari, applying by analogy the
provisions on the co-existence of the writ with a
separately filed criminal case.
Additionally, petitioner is seeking the extraordinary writ
of amparo due to his apprehension that the DOJ may deny his
motion to lift the HDO.[28] Petitioners apprehension is at best merely
speculative. Thus, he has failed to show any clear threat to his right
to liberty actionable through a petition for a writ of amparo. The
absence of an actual controversy also renders it unnecessary for us
on this occasion to pass upon the constitutionality of DOJ Circular
No. 17, Series of 1998 (Prescribing Rules and Regulations
Governing the Issuance of Hold Departure Orders); and Circular No.
18, Series of 2007 (Prescribing Rules and Regulations Governing
the Issuance and Implementation of Watchlist Orders and for Other
Purposes).
WHEREFORE, the petition is DISMISSED. The assailed
Decision of the CA dated February 4, 2008 in CA-G.R. No. 00011 is
hereby AFFIRMED.
DAVID E. SO, on behalf of his daughter MARIA G.R. No. 19
ELENA SO GUISANDE,
Petitioner,
- versus -
HON. ESTEBAN A. TACLA, JR., Regional Trial Court
of Mandaluyong City, Branch 208; and DR.
BERNARDO A. VICENTE, National Center for Mental
Health,
Respondents.
x ------------------------------------------------x
HON. ESTEBAN A. TACLA, JR., Presiding Judge of
the Regional Trial Court, Mandaluyong City, Branch
208; and PEOPLE OF THE PHILIPPINES,
Petitioners, G.R. No. 19
Present:
CORONA, C
CARPIO,
184
 CARPIO MORALES,*
VELASCO, that
JR.,the former was confined at MMC for Bipolar Mood Disorder and
- versus - NACHURA,
that she
LEONARDO-DE was not ready for discharge, as certified by her personal
CASTRO,
BRION,
psychiatrist, Dr. Ma. Cecilia Tan.
PERALTA,
BERSAMIN,*
DEL CASTILLO,
ABAD,* Acting on the prosecutions Urgent Motion to Refer Accuseds Illness
DAVID E. SO, on behalf of his daughter MARIA VILLARAMA, JR.,
ELENA SO GUISANDE, PEREZ, to a Government Hospital, Judge Tacla ordered Guisandes referral
Respondent. MENDOZA, and
to the NCMH for an independent forensic assessment of Guisandes
SERENO, JJ.
mental health to determine if she would be able to stand arraignment
Promulgated:

October 19,and undergo trial for Qualified Theft.

2010
x---------------------------------------------------------------------------------------
--x
Subsequently, Judge Tacla, upon motion of the NCMH, ordered that
RESOLUTION accused Guisande be physically brought to the NCMH, with NCMH

NACHURA, J.: Chief Dr. Vicente to have temporary legal custody of the accused,

and thereafter, Judge Tacla would issue the corresponding order of

Before us are consolidated petitions: confinement of Guisande in a regular jail facility upon the NCMHs

determination that she was ready for trial.

(1) A petition for the writs of habeas

corpus and amparo against Judge Esteban A. Tacla, Jr. (Judge Accused Guisande was confined at the NCMH Payward, Pavilion 6-

Tacla) of the Regional Trial Court (RTC), Branch 208, Mandaluyong I-E, instead of Pavilion 35, Forensic Psychiatric Section, where

City, and Dr. Bernardo A. Vicente (Dr. Vicente) of the National female court case patients are usually confined at the NCMH. In

Center for Mental Health (NCMH), docketed as G.R. No. 190108; connection therewith, Dr. Vicente issued a special Memorandum on

and November 9, 2009, reiterating existing hospital policies on the

handling of court case patients undergoing evaluation procedures

(2) G.R. No. 190473, which is a petition for review to foreclose any possibility of malingering[2] on the patients part,

on certiorari under Rule 45 of the Rules of Court filed by the Office specifically patients accused of a non-bailable crime.

of the Solicitor General (OSG) on behalf of Judge Tacla and Dr.

Vicente of the NCMH, assailing the Resolution[1] of the Court of Eventually, claiming life-threatening circumstances surrounding her

Appeals (CA) rendered in open court on December 3, 2009, in the confinement at the NCMH which supposedly worsened her mental

case docketed as CA-G.R. SP No. 00039. condition and violated her constitutional rights against solitary

detention and assistance of counsel, accused Guisande and her

The antecedents are: father simultaneously, albeit separately, filed a Motion for Relief

from Solitary Confinement before the RTC Mandaluyong City, and

Petitioner David E. So (So) in G.R. No. 190108 filed the the present petition in G.R. No. 190108 for the issuance of the writs

petition for the writs of habeas corpus and amparo on behalf of his of habeas corpus and amparo.

daughter, Ma. Elena So Guisande (Guisande), accused of Qualified

Theft in the criminal case pending before Judge Tacla. Petitioner So On the Motion for Relief filed with RTC Mandaluyong City, Judge

alleged, among others, that Guisande was under a life-threatening Tacla issued the following Order:

situation while confined at the NCMH, the government hospital

The Court rules to Grant accuseds [Guisandes]
ordered by the RTC Mandaluyong City to ascertain the actual motion subject to the condition that only the
accuseds counsel and the accused physician on
psychological state of Guisande, who was being charged with a her hypothyroid condition are allowed to visit the
accused in coordination with the respective
non-bailable offense. psychiatrist/doctor of the NCMH taking charge of
the psychiatric examination upon accused.[3]

Prior to the institution of the criminal proceedings before On the petition for habeas corpus and amparo, this Court issued a

the RTC, Guisande was committed by So for psychiatric treatment Resolution on November 24, 2009, to wit:

and care at the Makati Medical Center (MMC). Thus, the return of
G.R. No. 190108 (David E. So, in Behalf of his
the warrant for the arrest of Guisande, issued by Judge Tacla, stated Daughter Maria Elena So Guisande vs. Hon.

185
 Esteban A. Tacla, Jr., Regional Trial Court of
Mandaluyong, Branch 208, Dr. Bernardo A.
Vicente, National Center for Mental Health).
Acting on the Petition for Writs of Habeas
Corpus and Amparo, the Court Resolved to
(a) ISSUE a JOINT WRIT OF HABEAS
CORPUS AND AMPARO;
(b) REFER the petition to the Court of Appeals,
Manila, for (i) IMMEDIATE RAFFLE among the
Members of the said Court; (ii)HEARING on
December 3, 2009, Thursday, at 10:00 a.m.; and
(iii) DECISION within ten (10) days after its
submission for decision; and
(c) ORDER the respondents to make a
verified RETURN of the Joint Writ of Habeas
Corpus and Amparo before the Court of
Appeals, Manila, on December 1, 2009, and
to COMMENT on the petition before said date.[4]
As directed by this Court, Judge Tacla and Dr. Vicente appeared
before the CA on December 1, 2009 and, in the afternoon, filed their
Consolidated Return of the Writ.
On December 3, 2009, the NCMH submitted its Evaluation Report
to the RTC Mandaluyong City:
ASSESSMENT AND REMARKS:
Review of the history and clinical reports
from Makati Medical Center revealed that Ma.
Elena So-Guisande was diagnosed and
managed as Bipolar I Disorder. On the other
hand, based on a series of mental status
examinations and observations at our center,
she is found not manifesting signs and
symptoms of psychosis at the present time.
Neither a manic episode nor a severe
depressive episode was manifested during her
confinement at our center, despite voluntarily not
taking her medication is. Although she is
complaining of mood symptoms, these are not
severe enough to impair her fitness to stand trial.
Ms. Guisande does have sufficient
understanding of the nature and objective of the
court proceedings and the possible
consequences of her cases. She is likewise
capable of communicating with her counsels.
She is therefore deemed COMPETENT to
stand the rigors of court trial. (Emphasis
supplied.)
On even date, pursuant to the directive of this Court, the
CAs Special Seventeenth Division held a hearing. Thereafter,
Justice Normandie B. Pizarro (Justice Pizarro), to whom the petition
was raffled, disposed, in this wise:
JUSTICE PIZARRO:
The essence of the deliberation this
morning is on the proceedings that
obtained pursuant to the September
22, 2009 Order of the Regional Trial
Court, Branch 208, Mandaluyong City.
The parties heard the arguments of the
Petitioner on the right of the subject
patient, Ma. Elena, to avail of extended
medical treatment citing the
Constitution and the Geneva
Convention on Human Rights.
In the course of the proceedings this
morning, Judge Tacla, Jr., informed
this Court that the NCMH submitted to
him a report consisting of eight (8)
pages at about 8:46 this morning. The
parties, specifically the petitioner, were
shown the said report. Afterwards,
Judge Taclas opinion on the matter
was heard and he did not interpose
any objection thereto. The Accused,
subject of this case, Ma. Elena So-
Guisande, may now be discharged
from the custody of the NCMH and is
considered fit for the rigors of trial. The
parties were heard on the matter and
all of them were in accord with the
dispositive portion of the aforesaid
report.
After a prolonged discussion on the
matter, and without objection on the
part of the parties, as the Accused
should now proceed to trial in
accordance with law, and at the same
time recognizing the right of the
Accused to avail of further medication,
this Court decrees the following set up
that should cover this
proceedings: The trial of this case
shall resume and the arraignment at
the Court a quo shall push through
as originally scheduled on February
2, 2010. To balance the situation,
the right to seek medical treatment
of the subject is hereby recognized
by all and the patient shall be
confined at the St. Clares Medical
Center, 1838 Dian St., Palanan,
Makati City, her hospital of choice,
under the headship of Dr. Yat,
subject to the twenty-four (24) hour
custodial control of the NBI.
xxxx
JUSTICE PIZARRO:
Dr. Yat is directed to submit, again by
agreement of the parties, a periodic
report every fifteen days to the RTC,
Branch 208, for its evaluation. The first
report shall be submitted on or before
December 18, 2009.
In this regard, the Director Nestor M.
Mantaring of NBI is
politely DIRECTED to cause the
transfer from NCMH to the St.
ClaresMedical Center of the subject
Accused, Ma. Elena So-Guisande,
and to provide two (2) or three (3)
security personnel to the Accused after
making the proper coordination with
the RTC, Branch 208. Director
Mantaring is to submit a one (1) page
compliance on the matter within three
(3) days from receipt of this Resolution
furnishing Judge Tacla, Jr. a copy
thereof.
xxxx
It is understood that the case pending
before RTC, Branch 208, involves a
non-bailable offense where normally
the Accused should have been
confined in jail. But considering the
peculiarities of this case, the parties
have all agreed to the set up as
provided in this Order. It is also
understood by the parties that
henceforth the control of the trial
proceedings as well as the control over
186
 the custody of the accused/patient be DISMISSED for having been rendered moot
shall be in the hands of the Regional and academic.
Trial Court, Branch
208, Mandaluyong City.
Petitioner So filed a Comment[7] refuting the OSGs motion
STATE SOL. DE VERA:
to dismiss G.R. Nos. 190108 and 190473. Through counsel, and
Your honor, the Hospital fees to be
using strong words, he vehemently opposed the dismissal of the
settled before the transfer, Your
Honor. petitions because they had filed criminal complaints and an
JUSTICE PIZARRO: administrative case against respondents Judge Tacla and Dr.

As committed in open-Court, Atty. Vicente, as well as the NCMH and an attending doctor thereat, for
Carpio shall insure the settlement of
the fees for the confinement of purported violations of accused Guisandes rights during her
Accused/patient at the NCMH, as a
pre-condition for her release confinement at the NCMH. Adding to the flurry of cases, petitioner
therefrom.
So filed a Verified Petition to cite Judge Tacla and Dr. Vicente in
WHEREFORE, the foregoing contempt before the CA for their supposed submission of an altered
considering considered, this petition
for Habeas Corpus and Amparo is and falsified document, which was attached to, and formed an
considered CLOSE andTERMINATE
D. All parties are notified in open court integral part of, their Consolidated Return of the Writ.
of this Order.

xxxx
Posthaste, and even without us requiring the OSG to file
JUSTICE PIZARRO:
one, it filed a Motion to Admit Reply[8] with its Reply[9] to the
Let copies of this Order be furnished
Comment of petitioner So attached thereto. The OSG clarified and
the RTC, Br. 208, Mandaluyong City,
the Director of the National Bureau of denied outright petitioner Sos allegation in the Comment that the
Investigation as well as the Supreme
Court, and all the parties. criminal case for Qualified Theft against accused Guisande was a

SO ORDERED.[5] prevarication and concoction of private complainant [10] and that

Judge Tacla had conspired to falsely accuse petitioner Sos

Hence, the petition for review on certiorari, docketed as G.R. No. daughter, Guisande. In all, the OSG reiterated that GR. Nos.

190473, filed by the OSG, which was consolidated with G.R. No. 190108 and 190473 had been rendered moot and academic with

190108. the dismissal of the criminal case for Qualified Theft against

Guisande.

During the pendency of these consolidated cases, various events

occurred which ultimately led to the incident before this Court, i.e.,a Significantly, on August 25, 2010, the OSG filed another

Manifestation and Motion[6] dated March 11, 2010, filed by the OSG Manifestation and Motion[11] informing this Court of the following:

on behalf of public respondents, Judge Tacla and Dr. Vicente, to wit:

(1) Resolution dated June 7, 2010 issued by Assistant City
1. On February 4, 2010, acting on the City
Prosecutors January 25, 2010 Motion to Prosecutor Teresa D. Escobar-Pilares (Assistant City Prosecutor
Withdraw Information, public respondent Judge
Escobar-Pilares), dismissing the charge of petitioner So against
ordered the dismissal of Criminal Case No.
MC019-12281. Hence, their Urgent Prayer for Judge Tacla and Dr. Vicente and their counsels for Falsification
Issuance of a Temporary Restraining Order
(TRO) before this Honorable Court has been under Article 171 and 172 of the Revised Penal Code, docketed as
rendered moot and academic. A copy of the
February 4, 2010 Order dismissing Criminal I.S. No. XV-07-INV-10B-01371, for insufficiency of evidence;[12] and
Case No. MC019-12281 is attached herewith
as Annex A.

2. Furthermore, in view of the dismissal of (2) Resolution dated July 27, 2010 of the CA in CA-G.R.
Criminal Case No. MC019-12281 from which the
Petition for Writ of Habeas Corpus and Writ of SP No. 00039, where petitioner Sos verified petition for contempt
Amparo (docketed before the Supreme Court as was dismissed for lack of merit, and where the CA ordered the
G.R. No. 190108 and Court of Appeals as CA-
G.R. SP No. 00039) and the Petition for Review petition for habeas corpus/writ of amparo closed and
(docketed as G.R. No. 190473) stemmed from,
these cases and pending incidents thereon terminated.[13]
should be dismissed for having been rendered
moot and academic.

WHEREFORE, it is respectfully prayed that the Likewise, the OSG reiterated its motion to dismiss the instant
Petition for Writ of Habeas Corpus and Writ
of Amparo (docketed before the Supreme Court consolidated petitions.
as G.R. No. 190108 and Court of Appeals as
CA-G.R. SP No. 00039) and the Petition for
Review (docketed as G.R. No. 190473) and all
other pending incidents thereon
187
 We completely agree with the OSG. Accordingly, we deny
the petitions in G.R. Nos. 190108 and 190473 for having been
rendered moot and academic by the dismissal of Criminal Case No.
MC09-12281 for Qualified Theft pending before
the RTCMandaluyong City.
As correctly pointed out by the OSG, the petition for the
writs of habeas corpus and amparo was based on the criminal case
for Qualified Theft against petitioner Sos daughter, Guisande. To
recall, petitioner So claimed that the conditions and circumstances
of his daughters, accused Guisandes, confinement at the NCMH
was life threatening; although Guisande was accused of a non-
bailable offense, the NCMH could not adequately treat Guisandes
mental condition. Thus, to balance the conflicting right of an
accused to medical treatment and the right of the prosecution to
subject to court processes an accused charged with a non-bailable
offense, the CA directed the transfer of Guisande from the NCMH
to St. Clares Medical Center, while noting that because of the
peculiarities of this case, there was a deviation from the regular
course of procedure, since accused Guisande should have been
confined in jail because she was charged with a non-bailable
offense.
Notably, nowhere in the transcript of the CA hearing on
December 3, 2009, nor in the Order recited in open court by Justice
Pizarro, is there an affirmation of petitioner Sos claim that the
confinement of accused Guisande at the NCMH was illegal. Neither
were the respective acts performed by respondents Judge Tacla
and Dr. Vicente in ascertaining the mental condition of accused
Guisande to withstand trial declared unlawful. On the contrary, the
NCMH, a well-reputed government forensic facility, albeit not held
in high regard by petitioner Sos and accused Guisandes family, had
assessed Guisande fit for trial.
The Rules on the Writs of Habeas
Corpus and Amparo are clear; the act or omission or the threatened
act or omission complained of - confinement and custody for habeas
corpus and violations of, or threat to violate, a persons life, liberty,
and security for amparo cases - should be illegal or unlawful.
Rule 102 of the Rules of Court on Habeas
Corpus provides:
Sec. 1. To what habeas corpus extends. Except
as otherwise expressly provided by law, the writ
of habeas corpus shall extend to all cases of
illegal confinement or detention by which any
person is deprived of his liberty, or by which the
rightful custody of any person is withheld from
the person entitled thereto.
while the Rule on the Writ of Amparo states:
Section 1. Petition. The petition for a writ
of amparo is a remedy available to any person
whose right to life, liberty and security is violated
or threatened with violation by an unlawful act or
omission of a public official or employee, or of a
private individual or entity.
The writ shall cover extralegal killings and
enforced disappearances or threats thereof.
Our decisions on the propriety of the issuance of these writs
reiterate the foregoing rules. In Lourdes D. Rubrico, Jean Rubrico
Apruebo, and Mary Joy Rubrico Carbonel v. Gloria Macapagal-
Arroyo, Gen. Hermogenes Esperon, P/Dir. Gen. Avelino Razon,
Maj. Darwin Sy a.k.a Darwin Reyes, Jimmy Santana, Ruben Alfaro,
Capt. Angelo Cuaresma, a certain Jonathan, P/Supt. Edgar B.
Roquero, Arsenio C. Gomez, and Office of the Ombudsman, [14] we
qualified:
The privilege of the writ of amparo is
envisioned basically to protect and guarantee
the rights to life, liberty, and security of persons,
free from fears and threats that vitiate the quality
of this life. It is an extraordinary writ
conceptualized and adopted in light of and in
response to the prevalence of extra-legal killings
and enforced disappearances. Accordingly,
the remedy ought to be resorted to and
granted judiciously, lest the ideal sought by
the Amparo Rule be diluted and undermined
by the indiscriminate filing of amparo
petitions for purposes less than the desire to
secure amparo reliefs and protection and/or
on the basis of unsubstantiated
allegations.[15]
In the recent Nurhida Juhuri Ampatuan v. Judge Virgilio V.
Macaraig, RTC, Manila, Branch 37, Director General Avelino
Razon, Jr., Director Geary Barias, PSSupt. Co Yee M. Co, Jr., and
Police Chief Inspector Agapito Quimson,[16] we intoned:
The most basic criterion for the issuance of the
writ, therefore, is that the individual seeking such
relief is illegally deprived of his freedom of
movement or place under some form of illegal
restraint. If an individuals liberty is
restrainted via some legal process, the writ
of habeas corpus is unavailing. Fundamentally,
in order to justify the grant of the writ of habeas
corpus, the restraint of liberty must be in the
nature of an illegal and involuntary deprivation of
freedom of action.
In general, the purpose of the writ of habeas
corpus is to determine whether or not a
particular person is legally held. A prime
specification of an application for a writ
of habeas corpus, in fact, is an actual and
effective, and not merely nominal or moral,
illegal restraint of liberty. The writ of habeas
corpus was devised and exists as a speedy and
effectual remedy to relieve persons from
unlawful restraint, and as the best and only
sufficient defense of personal freedom. xxx The
essential object and purpose of the writ
of habeas corpus is to inquire into all manner of
188
 involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if
such restraint is illegal. Any restraint which will
preclude freedom of action is sufficient.
In passing upon a petition for habeas corpus, a
court or judge must first inquire into whether the
petitioner is being restrained of his liberty. If he
is not, the writ will be refused. Inquiry into the
cause of detention will proceed only where such
restraint exists. If the alleged cause is thereafter
found to be unlawful, then the writ should be
granted and the petitioner discharged. Needless
to state, if otherwise, again the writ will be
refused.
While habeas corpus is a writ of right, it will
not issue as a matter of course or as a mere
perfunctory operation on the filing of the
petition. Judicial discretion is called for in its
issuance and it must be clear to the judge to
whom the petition is presented that,prima
facie, the petitioner is entitled to the writ. It is
only if the court is satisfied that a person is
being unlawfully restrained of his liberty will
the petition for habeas corpus be granted. If
the respondents are not detaining or
restraining the applicant of the person in
whose behalf the petition is filed, the petition
should be dismissed.[17]
In the cases at bar, the question before the CA was correctly limited
to which hospital, the NCMH or a medical facility of accuseds own
choosing, accused Guisande should be referred for treatment of a
supposed mental condition.[18] In addition, we note that it was
procedurally proper for the RTC to ask the NCMH for a separate
opinion on accuseds mental fitness to be arraigned and stand trial.
Be that as it may, the CA allowed the transfer of accused to St.
Clares Medical Center under the custody of Dr. Rene Yat, who was
required periodically to report on his evaluation, every fifteen (15)
days, to the RTC Mandaluyong City, although in the same breath,
the CA also ordered the continuation of the arraignment and trial of
the accused for Qualified Theft before the same trial court. In other
words, Guisande remained in custody of the law to answer for the
non-bailable criminal charge against her, and was simply allowed to
pursue medical treatment in the hospital and from a doctor of her
choice.
Certainly, with the dismissal of the non-bailable case against
accused Guisande, she is no longer under peril to be confined in a
jail facility, much less at the NCMH. Effectively, accused Guisandes
person, and treatment of any medical and mental malady she may
or may not have, can no longer be subjected to the lawful processes
of the RTC Mandaluyong City. In short, the cases have now been
rendered moot and academic which, in the often cited David v.
Macapagal-Arroyo,[19] is defined as one that ceases to present a
justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value.
Finally, the Resolutions of the CA and Assistant City Prosecutor
Escobar-Pilares, unmistakably foreclose the justiciability of the
petitions before this Court.
In CA-G.R. SP No. 00039, the CA said:
We are also not swayed by [David Sos]
argument that [petitioners] advanced lies to this
Court when they stated in their petition that
Elena was facing two (2) non-bailable offenses.
During the hearing on the petition for habeas
corpus/writ of amparo, the counsel for [David So]
stated that Elena was facing only one (1) non-
bailable offense to which [petitioners] did not
anymore object. Besides, the number of non-
bailable offenses is not even material in the
instant case for habeas corpus/writ of amparo as
the only issue to be determined here was
whether or not Elenas confinement at NCMH
was lawful.
Finally, the issue in the verified petition, of
whether [petitioners] were in contempt of court,
is rendered moot and academic considering that
this Court had already rendered its open
court Order on December 8, 2009, which was
favorable to [David So], and it was only later that
the latter raised the issue of contempt.
Finding no merit in [David Sos] verified
petition for contempt against [Judge Tacla, Dr.
Vicente and the NCMH], and there being no
other objections made by the parties against Our
March 17, 2010 Resolution, the instant petition
for habeas corpus/writ of amparo is
declared CLOSED and TERMINATED.
SO ORDERED.[20]
In XV-07-INV-10B-01371 for Falsification under Articles 171 and
172 of the Revised Penal Code, the Assistant City Prosecutor made
the following findings:
x x x [T]he undersigned finds no probable cause
that respondents committed the charges filed
against them.
Examination of the Contract of Confinement
which was claimed to have been falsified reveals
that it was merely a photocopy. The supposed
full photocopy of the original copy of the subject
contract did not contain any alteration (change)
or intercalation (insertion) that could have
changed its meaning or that could have made it
speak of something false. The contents of the
contract depicting that [Guisandes] yaya (Ms.
Galleto) was indeed confined at the NCMH as
claimed by respondents to accompany
[Guisande], [Sos] daughter who was confined
thereat remained the same. Respondents
explained that they were unaware of the
inadvertent partial reproduction of the document
and supported the same with an affidavit of good
faith executed by an NCMH clerk explaining why
it was only partially reproduced.
Likewise, respondents statement that
[Guisande] is facing non-bailable offenses is not
absolutely false. Respondents satisfactorily
explained that at the time of the filing of their
pleading, they believed in good faith that she
was facing more than one non-bailable offenses
(sic) as she was charged with Qualified Theft
before the Mandaluyong City RTC, Branch 208
and Syndicated Estafa before the San Juan
Prosecutors office. While it may be true that
[Guisande] has only one (1) non-bailable offense
pending in court, respondents proved with their
189
 evidence that she had others pending at the time
in other forum.
WHEREFORE, premises considered, it is
respectfully recommended that the charges for
Falsification under Articles 171 and 172 of the
Revised Penal Code filed against all
respondents namely: (1) Judge Esteban A.
Tacla, Jr., (2) Dr. Bernardino A. Vicente, (3) ASG
General Magtanggol M. Castro, SSS Diana H.
Castaeda-de Vera, SS Charina A. Soria and AS
Jefferson C. Secillano, be DISMISSED for
insufficiency of evidence.[21]
WHEREFORE, in light of the foregoing disquisition, the petitions in
G.R. Nos. 190108 and 190473 for the Writs of Habeas
Corpus and Amparo, and review on certiorari under Rule 45 of the
Rules of Court are DENIED for being moot and academic. No costs.
G.R. No. 184769 October 5, 2010
MANILA ELECTRIC COMPANY, ALEXANDER S.
DEYTO and RUBEN A. SAPITULA, Petitioners,
vs.
ROSARIO GOPEZ LIM, Respondent.
DECISION
CARPIO MORALES, J.:
The Court is once again confronted with an opportunity to define the
evolving metes and bounds of the writ of habeas data. May an
employee invoke the remedies available under such writ where an
employer decides to transfer her workplace on the basis of copies
of an anonymous letter posted therein ─ imputing to her disloyalty
to the company and calling for her to leave, which imputation it
investigated but fails to inform her of the details thereof?
Rosario G. Lim (respondent), also known as Cherry Lim, is an
administrative clerk at the Manila Electric Company (MERALCO).
On June 4, 2008, an anonymous letter was posted at the door of the
Metering Office of the Administration building of MERALCO Plaridel,
Bulacan Sector, at which respondent is assigned, denouncing
respondent. The letter reads:
Cherry Lim:
MATAPOS MONG LAMUNIN LAHAT NG BIYAYA NG MERALCO,
NGAYON NAMAN AY GUSTO MONG PALAMON ANG BUONG
KUMPANYA SA MGA BUWAYA NG GOBYERNO. KAPAL NG
MUKHA MO, LUMAYAS KA RITO, WALANG UTANG NA LOOB….1
Copies of the letter were also inserted in the lockers of MERALCO
linesmen. Informed about it, respondent reported the matter on June
5, 2008 to the Plaridel Station of the Philippine National Police. 2
By Memorandum3 dated July 4, 2008, petitioner Alexander Deyto,
Head of MERALCO’s Human Resource Staffing, directed the
transfer of respondent to MERALCO’s Alabang Sector in Muntinlupa
as "A/F OTMS Clerk," effective July 18, 2008 in light of the receipt
of "… reports that there were accusations and threats directed
against [her] from unknown individuals and which could possibly
compromise [her] safety and security."
Respondent, by letter of July 10, 2008 addressed to petitioner
Ruben A. Sapitula, Vice-President and Head of MERALCO’s
Human Resource Administration, appealed her transfer and
requested for a dialogue so she could voice her concerns and
misgivings on the matter, claiming that the "punitive" nature of the
transfer amounted to a denial of due process. Citing the grueling
travel from her residence in Pampanga to Alabang and back entails,
and violation of the provisions on job security of their Collective
Bargaining Agreement (CBA), respondent expressed her thoughts
on the alleged threats to her security in this wise:
xxxx
I feel that it would have been better . . . if you could have intimated
to me the nature of the alleged accusations and threats so that at
least I could have found out if these are credible or even serious.
But as you stated, these came from unknown individuals and the
way they were handled, it appears that the veracity of these
accusations and threats to be [sic] highly suspicious, doubtful or are
just mere jokes if they existed at all.
Assuming for the sake of argument only, that the alleged threats
exist as the management apparently believe, then my transfer to an
unfamiliar place and environment which will make me a "sitting
duck" so to speak, seems to betray the real intent of management
which is contrary to its expressed concern on my security and
safety . . . Thus, it made me think twice on the rationale for
management’s initiated transfer. Reflecting further, it appears to me
that instead of the management supposedly extending favor to me,
the net result and effect of management action would be a punitive
one.4 (emphasis and underscoring supplied)
Respondent thus requested for the deferment of the implementation
of her transfer pending resolution of the issues she raised.
No response to her request having been received, respondent filed
a petition5 for the issuance of a writ of habeas data against
petitioners before the Regional Trial Court (RTC) of Bulacan,
docketed as SP. Proc. No. 213-M-2008.
By respondent’s allegation, petitioners’ unlawful act and
omission consisting of their continued failure and refusalto provide
her with details or information about the alleged report which
MERALCO purportedly receivedconcerning threats to her safety
and security amount to a violation of her right to privacy in life, liberty
and security, correctible by habeas data. Respondent thus prayed
for the issuance of a writ commanding petitioners to file a written
return containing the following:
a) a full disclosure of the data or information about respondent in
relation to the report purportedly received by petitioners on the
alleged threat to her safety and security; the nature of such data and
the purpose for its collection;
b) the measures taken by petitioners to ensure the confidentiality of
such data or information; and
c) the currency and accuracy of such data or information obtained.
Additionally, respondent prayed for the issuance of a Temporary
Restraining Order (TRO) enjoining petitioners from effecting her
transfer to the MERALCO Alabang Sector.
By Order6 of August 29, 2008, Branch 7 of the Bulacan RTC
directed petitioners to file their verified written return. And by Order
of September 5, 2008, the trial court granted respondent’s
application for a TRO.
Petitioners moved for the dismissal of the petition and recall of the
TRO on the grounds that, inter alia, resort to a petition for writ of
habeas data was not in order; and the RTC lacked jurisdiction over
the case which properly belongs to the National Labor Relations
Commission (NLRC).7
By Decision8 of September 22, 2008, the trial court granted the
prayers of respondent including the issuance of a writ of preliminary
injunction directing petitioners to desist from implementing
respondent’s transfer until such time that petitioners comply with the
disclosures required.
The trial court justified its ruling by declaring that, inter alia, recourse
to a writ of habeas data should extend not only to victims of extra-
legal killings and political activists but also to ordinary citizens, like
respondent whose rights to life and security are jeopardized by
petitioners’ refusal to provide her with information or data on the
reported threats to her person.
Hence, the present petition for review under Rule 45 of 1997 Rules
of Civil Procedure and the Rule on the Writ of Habeas
Data9 contending that 1) the RTC lacked jurisdiction over the case
and cannot restrain MERALCO’s prerogative as employer to
transfer the place of work of its employees, and 2) the issuance of
the writ is outside the parameters expressly set forth in the Rule on
the Writ of Habeas Data.101avvphi1
Maintaining that the RTC has no jurisdiction over what they contend
is clearly a labor dispute, petitioners argue that "although
ingeniously crafted as a petition for habeas data, respondent is
essentially questioning the transfer of her place of work by her
employer"11 and the terms and conditions of her employment which
arise from an employer-employee relationship over which the NLRC
and the Labor Arbiters under Article 217 of the Labor Code have
jurisdiction.
Petitioners thus maintain that the RTC had no authority to restrain
the implementation of the Memorandum transferring respondent’s
place of work which is purely a management prerogative, and that
OCA-Circular No. 79-200312 expressly prohibits the issuance of
TROs or injunctive writs in labor-related cases.
190
Petitioners go on to point out that the Rule on the Writ of Habeas RODOLFO NOEL LOZADA, G.R. Nos. 184379-80
Data directs the issuance of the writ only against public officials or JR., VIOLETA LOZADA and
employees, or private individuals or entities engaged in the
ARTURO LOZADA, Present:
gathering, collecting or storing of data or information regarding an
aggrieved party’s person, family or home; and that MERALCO (or Petitioners,
CORONA, C.J.,
its officers) is clearly not engaged in such activities. CARPIO,
The petition is impressed with merit. VELASCO, JR.,
Respondent’s plea that she be spared from complying with LEONARDO-DE CASTRO,
MERALCO’s Memorandum directing her reassignment to the BRION,
Alabang Sector, under the guise of a quest for information or data PERALTA,
allegedly in possession of petitioners, does not fall within the BERSAMIN,
DEL CASTILLO,
province of a writ of habeas data.
- versus - ABAD,
Section 1 of the Rule on the Writ of Habeas Data provides: VILLARAMA, JR.,
Section 1. Habeas Data. – The writ of habeas data is a remedy PEREZ,
available to any person whose right to privacy in life, liberty or MENDOZA,
security is violated or threatened by an unlawful act or SERENO,
omission of a public official or employee or of a private individual REYES, and
or entity engaged in the gathering, collecting or storing of data PERLAS-BERNABE, JJ.
or information regarding the person, family, home and PRESIDENT GLORIA
correspondence of the aggrieved party. (emphasis and Promulgated:
MACAPAGAL ARROYO,
underscoring supplied)
EDUARDO ERMITA,
The habeas data rule, in general, is designed to protect by means April 24, 2012
of judicial complaint the image, privacy, honor, information, and AVELINO RAZON, ANGEL
freedom of information of an individual. It is meant to provide a forum ATUTUBO and SPO4
*
to enforce one’s right to the truth and to informational privacy, thus ROGER VALEROSO,
safeguarding the constitutional guarantees of a person’s right to life, Respondents.
liberty and security against abuse in this age of information x------------------------------------------------
technology. - - -x
It bears reiteration that like the writ of amparo, habeas data was
conceived as a response, given the lack of effective and available
remedies, to address the extraordinary rise in the number of killings DECISION
and enforced disappearances. Its intent is to address violations of
or threats to the rights to life, liberty or security as a remedy
independently from those provided under prevailing Rules.13 SERENO, J.:
Castillo v. Cruz14 underscores the emphasis laid down in Tapuz v.
del Rosario15 that the writs of amparo and habeas data will NOT
issue to protect purely property or commercial concerns nor when
What the Court decides today has nothing to do with the
the grounds invoked in support of the petitions therefor are vague
or doubtful.16 Employment constitutes a property right under the substance or merits surrounding the aborted deal of the Philippine
context of the due process clause of the Constitution.17 It is evident government with the National Broadband Network and ZTE
that respondent’s reservations on the real reasons for her transfer -
a legitimate concern respecting the terms and conditions of one’s Corporation, or any allegation of petitioner Rodolfo Noel June
employment - are what prompted her to adopt the extraordinary Lozada, Jr., (Lozada) regarding the same. There is only one issue
remedy of habeas data. Jurisdiction over such concerns is
inarguably lodged by law with the NLRC and the Labor Arbiters. that we decide today whether circumstances are adequately alleged
In another vein, there is no showing from the facts presented that and proven by petitioner Lozada to entitle him to the protection of
petitioners committed any unjustifiable or unlawful violation of
respondent’s right to privacy vis-a-vis the right to life, liberty or the writ of amparo. Before us is a Petition for Review on Certiorari
security. To argue that petitioners’ refusal to disclose the contents of the Decision dated 12 September 2008 of the Court of Appeals
of reports allegedly received on the threats to respondent’s safety
(CA), dismissing the Petition for the Issuance of a Writ of Amparo.[1]
amounts to a violation of her right to privacy is at best speculative.
Respondent in fact trivializes these threats and accusations from
unknown individuals in her earlier-quoted portion of her July 10,
2008 letter as "highly suspicious, doubtful or are just mere jokes if Petitioner Lozada was the former President and Chief
they existed at all."18 And she even suspects that her transfer to
another place of work "betray[s] the real intent of management]" and Executive Officer of the Philippine Forest Corporation (PFC), a
could be a "punitive move." Her posture unwittingly concedes that government-owned- and -controlled corporation under the
the issue is labor-related.
Department of Environment and Natural Resources
WHEREFORE, the petition is GRANTED. The assailed September
22, 2008 Decision of the Bulacan RTC, Branch 7 in SP. Proc. No. (DENR).[2]Petitioner Violeta Lozada (Violeta) is his wife, while
213-M-2008 is hereby REVERSED and SET ASIDE. SP. Proc. No.
petitioner Arturo Lozada (Arturo) is his brother.
213-M-2008 is, accordingly, DISMISSED.
No costs.
SO ORDERED.
At the time the Petition for the Writ of Amparo was filed,
respondent former President Gloria Macapagal Arroyo (former
President Arroyo) was the incumbent President of the Philippines.
Meanwhile, Eduardo Ermita (ES Ermita) was then the Executive
Secretary; Avelino Razon (Razon), the Director General of the
Philippine National Police (PNP); Angel Atutubo (Atutubo), the
Assistant General Manager for Security and Emergency Services of

191
the Manila International Airport Authority; and Rodolfo Valeroso
(Valeroso), an agent of the Aviation Security Group (ASG) of the PNP.
Antecedent Facts
The instant Petition stems from the alleged corruption
scandal precipitated by a transaction between the Philippine
government, represented by the National Broadband Network
(NBN), and ZTE Corporation (ZTE), a Chinese manufacturer of
telecommunications equipment.[3] Former National Economic
Development Authority (NEDA) Secretary Romulo Neri (Sec. Neri)
sought the services of Lozada as an unofficial consultant in the ZTE-
NBN deal.[4] The latter avers that during the course of his
engagement, he discovered several anomalies in the said
transaction involving certain public officials. [5] These events
impelled the Senate of the Philippines Blue Ribbon Committee (Blue
[6]
Ribbon Committee) to conduct an investigation thereon, for which
it issued a subpoena directing Lozada to appear and testify on 30
[7]
January 2008.
On that date, instead of appearing before the Blue Ribbon
Committee, Lozada left the country for a purported official trip to
London, as announced by then DENR Secretary Lito Atienza (Sec.
Atienza).[8] In the Petition, Lozada alleged that his failure to appear
at the scheduled hearing was upon the instructions of then
Executive Assistant Undersecretary Manuel Gaite (Usec.
[9]
Gaite). Consequently, the Senate issued an Order dated 30
January 2008: (a) citing Lozada for contempt; (b) ordering his arrest
and detention; and (c) directing the Senate Sergeant-at-Arms to
implement the Order and make a return thereon. [10]
While overseas, Lozada asked Sec. Atienza whether the
[11]
former could be allowed to go back to the Philippines. Upon the
approval of Sec. Atienza, Lozada informed his family that he was
returning from Hong Kong on 5 February 2008 on board Cathay
Pacific Flight No. 919, bound to arrive in Manila at 4:40 p.m. on the
same day.[12]
In the Petition, Lozada claims that, upon disembarking
from the aircraft, several men held his arms and took his bag.
Although he allegedly insisted on meeting with his family, he later
realized that it was wiser to just follow them, especially when he
overheard from their handheld radio: [H]wag kayong dumaan diyan
sir nandyan ang mga taga senado.[13]
Lozada asked if he could go to the comfort room, an
opportunity he used to call up his brother, petitioner Arturo, and
inform him of his situation.[14] The men thereafter led him through
the departure area of the airport and into a car waiting for
them.[15]They made him sit alone at the back of the vehicle, while a
man, whom he later discovered to be respondent Valeroso, took the
passenger seat and was always in contact with other
[16]
individuals. Lozada observed that other cars tailed their
[17]
vehicle.
Sec. Atienza then phoned Lozada, assuring the latter that
he was with people from the government, and that the former was
going to confer with ES and Ma[a]m. Lozada surmised that these
individuals referred to ES Ermita and former President Arroyo,
respectively.[18] Sec. Atienza also purportedly instructed Lozada to
pacify his wife, petitioner Violeta, who was making public statements
asking for her husbands return.[19]
The vehicle traversed the South Luzon Expressway and
drove towards the direction of Laguna. [20] Along the way, the men
asked Lozada to draft an antedated letter requesting police
protection.[21]
Lozada requested that he be brought home to Pasig, but
the men were allegedly compelled to deny his request on account
of unidentified security risks.[22] Eventually, however, the vehicle
turned around and drove to Libis, Quezon City. The group stopped
at The Outback restaurant to meet with certain individuals, who
turned out to be Atty. Antonio Bautista (Atty. Bautista) and Colonel
Paul Mascarinas (Col. Mascarinas) of the Police Special Protection
Office (PSPO). At the restaurant, Lozada claimed that he was made
to fill in the blanks of a prepared affidavit. [23]
After the meeting, the men informed Lozada that they
were going to billet him in a hotel for a night, but he suggested that
they take him to La Salle Green Hills instead. The men
acquiesced.[24]
Upon arriving in La Salle Green Hills, Lozada was met by
Violeta and his sister, Carmen Lozada (Carmen). [25] He observed
that the perimeter was guarded by policemen, purportedly
restraining his liberty and threatening not only his security, but also
that of his family and the De La Salle brothers.[26]
On 6 February 2008, at around 10:00 a.m., Col.
Mascarinas supposedly brought Lozada to the office of Atty.
Bautista to finalize and sign an affidavit.[27]
At about 1:00 p.m., Violeta filed before this Court a Petition
for Habeas Corpus, docketed as G.R. No. 181342 (the Habeas
Corpus case).[28] Arturo likewise filed before this Court a Petition for
a Writ of Amparo, docketed as G.R. No. 181356 (theAmparo case),
192
and prayed for the issuance of (a) the writ of amparo; (b) a
Temporary Protection Order (TPO); and (c) Inspection and
Production Orders as regards documents related to the authority
ordering custody over Lozada, as well as any other document that
would show responsibility for his alleged abduction.[29]
At around the same time that Arturo filed the Petition for a
Writ of Amparo, Col. Mascarinas drove Lozada back to La Salle
Green Hills.[30] Lozada was then made to sign a typewritten,
antedated letter requesting police protection. [31] Thereafter, former
Presidential Spokesperson Michael Defensor (Sec. Defensor)
supposedly came and requested Lozada to refute reports that the
latter was kidnapped and to deny knowledge of alleged anomalies
in the NBN-ZTE deal. Sec. Defensor then purportedly gave
LozadaP50,000 for the latters expenses.[32]
On 7 February 2008, Lozada decided to hold a press
conference and contact the Senate Sergeant-at-Arms, who served
the warrant of arrest on him.[33] Lozada claimed that after his press
conference and testimony in the Senate, he and his family were
since then harassed, stalked and threatened. [34]
On the same day, this Court issued a Resolution (a)
consolidating the Habeas Corpus case and the Amparo case; (b)
requiring respondents in the Habeas Corpus case to comment on
the Petition; (c) issuing a Writ of Amparo; (d) ordering respondents
in theAmparo case to file their verified Return; (e) referring the
consolidated Petitions to the CA; and (f) directing the CA to set the
cases for hearing on 14 February 2008.[35] Accordingly, the court a
quo set both cases for hearing on 14 February 2008. [36]
During the initial hearing on 14 February 2008, Lozada
and Violeta ratified the Petition in the Amparo case[41] to comply with
Section 2 of the Rule on the Writ of Amparo, [42] which imposes an
order to be followed by those who can sue for the writ. [43]The CA
also dismissed the Habeas Corpus case in open court for being
moot and academic, as Lozada was physically present and was not
confined or detained by any of the respondents.[44] Considering that
petitioners failed to question the dismissal of theHabeas
Corpus case, the said dismissal had lapsed into finality, leaving only
the Amparo case open for disposition.
Thereafter, Lozada filed a Motion for Temporary
Protection Order and Production of Documents,[45] while Arturo filed
a Motion for Production of Documents. [46] Additionally, Arturo also
filed a Motion for the Issuance of Subpoena Ad Testificandumand
Presentation of Hostile Witnesses and Adverse Parties Romulo
Neri, Benjamin Abalos, [Sr.], Rodolfo Valeroso, Jaime the Driver
and Other Respondents. Respondents opposed these
motions.[47] The CA denied the Motion for the Issuance
of Subpoenaon the ground that the alleged acts and statements
attributed to Sec. Neri and Benjamin Abalos (Abalos) were irrelevant
to theAmparo case, and that to require them to testify would only
result in a fishing expedition.[48] The CA likewise denied Arturos
subsequent Motion for Reconsideration.[49]
In its Resolution dated 5 March 2008, the CA dropped
former President Arroyo as a respondent on the ground that at the
time the Petition in the Amparo case was filed, she was still the
incumbent President enjoying immunity from suit. [50] Arturo filed a
Motion for Reconsideration,[51] which the CA denied in its Resolution
dated 25 March 2008.[52]

On 12 February 2008, respondents filed before the CA a

On 12 September 2008, the CA rendered its Decision
Manifestation and Motion, praying for the dismissal of the Habeas
denying petitioners the privilege of the Writ of Amparo and
Corpus case.[37] They asserted that Lozada was never illegally
dismissing the Petition.[53] The CA found that petitioners were
deprived of his liberty and was, at that time, no longer in their
unable to prove through substantial evidence that respondents
custody. They likewise averred that, beginning 8 February 2008,
violated, or threatened with violation, the right to life, liberty and
Lozada had already been under the supervision of the Senate and,
security of Lozada.
from then on, had been testifying before it. [38]

Petitioners thus filed the instant Petition, praying for: (a)

In their verified Return, respondents claimed that Sec.
the reversal of the assailed CA Decision; (b) the issuance of the
Atienza had arranged for the provision of a security team to be
TPO; and (c) the accreditation of the Association of Major Religious
assigned to Lozada, who was then fearful for his safety. [39] In effect,
Superiors of the Philippines and the De La Salle Brothers as the
respondents asserted that Lozada had knowledge and control of the
sanctuaries of Lozada and his family.[54] In the alternative,
events that took place on 5 February 2008, voluntarily entrusted
petitioners pray that this Court remand the case to the CA for further
himself to their company, and was never deprived of his liberty.
hearings and reverse the latters Orders: (a) denying the Motion to
Hence, respondents prayed for the denial of the interim reliefs and
Issue a Subpoena Ad Testificandum and (b) dropping former
the dismissal of the Petition.[40]
President Arroyo as a respondent. Petitioners raise the following
issues:

193
 (1) Whether the Court a [q]uo
erred in ruling to dismiss the petition for a writ of Issues
amparo and deny Petitioners prayer for a
Temporary Protection Order, inter alia, because
there is no substantial evidence to prove that the
right to life, liberty or security of Jun Lozada was In ruling on whether the CA committed reversible error in
violated or threatened with violation. This rule is
issuing its assailed Decision, three issues must be discussed:
not in accord with the rule on the writ of amparo
and Supreme Court jurisprudence on substantial
evidence[.]

(2) Whether the Ponencia I. Whether the CA committed an error in

erred and gravely abused its discretion by dropping former President Arroyo as a
prematurely ruling that the testimony of
witnesses which Petitioners sought to present respondent in the Amparo case.
and who are subject of the Motion for Issuance
of Subpoena ad testificandum were irrelevant to
the Petition for a Writ of Amparo in a way not in II. Whether the CA committed an error in
accord with the Rules of Court and Supreme
Court decisions. denying petitioners Motion for the Issuance of a
Subpoena Ad Testificandum.
(3) Whether the Court a quo
erred in using and considering the affidavits of
respondents in coming up with the questioned III. Whether petitioners should be granted the
decision when these were not offered as
evidence and were not subjected to cross- privilege of the writ of amparo.
examination. This ruling is not in accord with the
Rules of Court and jurisprudence.

(4) Whether the Court a [q]uo Discussion

erred in dropping as respondent Pres. Gloria
Arroyo despite her failure to submit a verified
return and personally claim presidential
immunity in a way not in accord with the Rule on The writ of amparo is an independent and summary
the Writ of Amparo.[55]
remedy that provides rapid judicial relief to protect the peoples right
to life, liberty and security.[62] Having been originally intended as a
response to the alarming cases of extrajudicial killings and enforced
The Office of the Solicitor General (OSG) asserts that
disappearances in the country, it serves both preventive and
petitioners failed to adduce substantial evidence, as the allegations
curative roles to address the said human rights violations. It is
they propounded in support of their Petition were largely
preventive in that it breaks the expectation of impunity in the
hearsay.[56] The OSG also maintains that it was proper for the CA to
commission of these offenses, and it is curative in that it facilitates
have dropped former President Arroyo as respondent on account of
the subsequent punishment of perpetrators by inevitably leading to
her presidential immunity from suit.[57]
subsequent investigation and action.[63]

Respondent Atutubo also alleges, among others, that: (a)

As it stands, the writ of amparo is confined only to cases
Lozada voluntarily asked for security and protection; (b) Lozada
of extrajudicial killings and enforced disappearances, or to threats
willingly submitted himself to the company of the police escorts; (c)
thereof.[64] Considering that this remedy is aimed at addressing
Atutubo merely accompanied him to pass through the contingency
these serious violations of or threats to the right to life, liberty and
route customarily provided to VIP passengers, public figures,
security, it cannot be issued on amorphous and uncertain
foreign dignitaries, and the like; and (d) Atutubo only performed his
grounds,[65] or in cases where the alleged threat has ceased and
job to ensure security and maintain order at the airport upon the
is no longer imminent or continuing.[66] Instead, it must be
arrival of Lozada.[58]
granted judiciously so as not to dilute the extraordinary and remedial
character of the writ, thus:
In the face of these assertions by respondents, petitioners
nevertheless insist that while they have sufficiently established that
The privilege of the writ of amparo is
Lozada was taken against his will and was put under restraint, envisioned basically to protect and guarantee
the rights to life, liberty, and security of persons,
respondents have failed to discharge their own burden to prove that free from fears and threats that vitiate the quality
of this life. It is an extraordinary writ
they exercised extraordinary diligence as public
conceptualized and adopted in light of and in
officials.[59] Petitioners also maintain that it was erroneous for the CA response to the prevalence of extra-legal killings
and enforced disappearances. Accordingly, the
to have denied their motion for subpoena ad testificandum for being remedy ought to be resorted to and granted
judiciously, lest the ideal sought by
irrelevant, given that the relevancy of evidence must be examined the Amparo Rule be diluted and undermined
after it is offered, and not before.[60] Finally, petitioners contend that by the indiscriminate filing
of amparopetitions for purposes less than
the presidential immunity from suit cannot be invoked the desire to secure amparo reliefs and
[61]
protection and/or on the basis of
in amparoactions.

194
 unsubstantiated allegations.[67] (Emphasis
supplied.)
Using this perspective as the working framework for
evaluating the assailed CA decision and the evidence adduced by
the parties, this Court denies the Petition.
First
issue:
Presiden
tial
immunit
y from
suit
It is settled in jurisprudence that the President enjoys
immunity from suit during his or her tenure of office or actual
incumbency.[68] Conversely, this presidential privilege of immunity
cannot be invoked by a non-sitting president even for acts
committed during his or her tenure.[69]
In the case at bar, the events that gave rise to the present
action, as well as the filing of the original Petition and the issuance
of the CA Decision, occurred during the incumbency of former
President Arroyo. In that respect, it was proper for the court a quo to
have dropped her as a respondent on account of her presidential
immunity from suit.
It must be underscored, however, that since her tenure of
office has already ended, former President Arroyo can no longer
invoke the privilege of presidential immunity as a defense to evade
judicial determination of her responsibility or accountability for the
alleged violation or threatened violation of the right to life, liberty and
security of Lozada.
Nonetheless, examining the merits of the case still results
in the denial of the Petition on the issue of former President Arroyos
alleged responsibility or accountability. A thorough examination of the
allegations postulated and the evidence adduced by petitioners
reveals their failure to sufficiently establish any unlawful act or
omission on her part that violated, or threatened with violation, the
right to life, liberty and security of Lozada. Except for the bare claims
that: (a) Sec. Atienza mentioned a certain Ma[a]m,[70] whom Lozada
speculated to have referred to her, and (b) Sec. Defensor told Lozada
that the President was hurting from all the media frenzy,[71] there is
nothing in the records that would sufficiently establish the link of
former President Arroyo to the events that transpired on 5-6 February
2010, as well as to the subsequent threats that Lozada and his family
purportedly received.
Second
issue:
Denial of
the
issuanc
e of a
subpoen
a ad
testifica
ndum
This Court, in Roco v. Contreras,[72] ruled that for a
subpoena to issue, it must first appear that the person or documents
sought to be presented are prima facie relevant to the issue subject
of the controversy, to wit:
A subpoena is a process directed to a
person requiring him to attend and to testify at
the hearing or trial of an action or at any
investigation conducted under the laws of the
Philippines, or for the taking of his deposition.
In this jurisdiction, there are two (2)
kinds of subpoena, to wit: subpoena ad
testificandum and subpoena duces tecum. The
first is used to compel a person to testify, while
the second is used to compel the production of
books, records, things or documents therein
specified. As characterized in H.C. Liebenow vs.
The Philippine Vegetable Oil Company:
The
subpoena duces tecum is,
in all respects, like the
ordinary subpoena ad
testificandum with the
exception that it concludes
with an injunction that the
witness shall bring with him
and produce at the
examination the books,
documents, or things
described in the subpoena.
Well-settled is the rule that before a
subpoena duces tecum may issue, the court
must first be satisfied that the following
requisites are present: (1) the books, documents
or other things requested must appear prima
facie relevant to the issue subject of the
controversy (test of relevancy); and (2) such
books must be reasonably described by the
parties to be readily identified (test of
definiteness).[73](Emphasis supplied.)
In the present case, the CA correctly denied petitioners
Motion for the Issuance of Subpoena Ad Testificandum on the
ground that the testimonies of the witnesses sought to be presented
during trial were prima facie irrelevant to the issues of the case. The
court a quo aptly ruled in this manner:
The alleged acts and statements
attributed by the petitioner to Neri and Abalos
are not relevant to the instant Amparo Petition
where the issue involved is whether or not
Lozadas right to life, liberty and security was
threatened or continues to be threatened with
violation by the unlawful act/s of the
respondents. Evidence, to be relevant, must
have such a relation to the fact in issue as to
induce belief in its existence or nonexistence.
Further, Neri, Abalos and a certain driver Jaime
are not respondents in this Amparo Petition and
the vague allegations averred in the Motion with
respect to them do not pass the test of
relevancy. To Our mind, petitioner appears to be
195
 embarking on a fishing expedition. Petitioner
should present the aggrieved party [Lozada],
who has been regularly attending the hearings,
to prove the allegations in the Amparo Petition,
instead of dragging the names of other people
into the picture. We have repeatedly reminded
the parties, in the course of the proceedings,
that the instant Amparo Petition does not
involve the investigation of the ZTE-[NBN]
contract. Petitioner should focus on the fact in
issue and not embroil this Court into said ZTE-
NBN contract, which is now being investigated
by the Senate Blue Ribbon Committee and the
Office of the Ombudsman.[74] (Emphasis
supplied.)
All the references of petitioners to either Sec. Neri or
Abalos were solely with respect to the ZTE-NBN deal, and not to the
events that transpired on 5-6 February 2008, or to the ensuing
threats that petitioners purportedly received. Although the present
action is rooted from the involvement of Lozada in the said
government transaction, the testimonies of Sec. Neri or Abalos are
nevertheless not prima facie relevant to the main issue of whether
there was an unlawful act or omission on the part of respondents
In cases where the violation of the right to life, liberty or
security has already ceased, it is necessary for the petitioner in
anamparo action to prove the existence of a continuing
threat.[78] Thus, this Court held in its Resolution in Razon v.
Tagitis:[79]
Manalo is different from Tagitis in
terms of their factual settings, as enforced
disappearance was no longer a problem in
that case. The enforced disappearance of the
brothers Raymond and Reynaldo Manalo
effectively ended when they escaped from
captivity and surfaced, while Tagitis is still
nowhere to be found and remains missing more
than two years after his reported
disappearance. An Amparo situation
subsisted in Manalo, however, because of
the continuing threat to the brothers right to
security; the brothers claimed that since the
persons responsible for their enforced
disappearance were still at large and had not
been held accountable, the former were still
under the threat of being once again abducted,
kept captive or even killed, which threat
constituted a direct violation of their right to
security of person.[80] (Emphasis supplied.)

that violated the right to life, liberty and security of Lozada. Thus,
the CA did not commit any reversible error in denying the Motion for
the Issuance of Subpoena Ad Testificandum. In the present case, the totality of the evidence adduced
by petitioners failed to meet the threshold of substantial evidence.
Sifting through all the evidence and allegations presented, the crux
Third
issue: of the case boils down to assessing the veracity and credibility of
Grant of
the the parties diverging claims as to what actually transpired on 5-6
privilege
of the February 2008. In this regard, this Court is in agreement with the
writ factual findings of the CA to the extent that Lozada was not illegally
of ampar
o deprived of his liberty from the point when he disembarked from the
aircraft up to the time he was led to the departure area of the

A. Alle airport,[81] as he voluntarily submitted himself to the custody of

ged
viol respondents:
atio
n of
or
thre [Lozada] was one of the first few
at to passengers to get off the plane because he was
the instructed by Secretary Atienza, th[r]ough a
righ phone call on the night of 04 February 2008,
t to while he was still in Hong Kong, to proceed
life, directly to the Bureau of Immigration so that
liber few people would notice him and he could be
ty facilitated in going out of the airport without
and any hassle from the people of the Senate
sec Sergeant-at-Arms. Again, [Lozada] stated that
urit he wanted to get away from the Senate people.
y of [Lozada] even went to the mens room of the
Loz airport, after he was allegedly grabbed, where
ada he made a call to his brother Arturo, using his
Globe phone, and he was not prevented from
making said call, and was simply advised by the
person who met him at the tube to (sic) sir,
bilisan mo na. When they proceeded out of the
Sections 17 and 18 of the Rule on the Writ tube and while walking, [Lozada] heard from the
radio track down, wag kayo dyan, sir, nandyan
of Amparo requires the parties to establish their claims by yong mga taga Senado, so they took a detour
and went up to the departure area, did not go out
substantial evidence,[75] or such relevant evidence as a reasonable
of the normal arrival area, and proceeded
mind might accept as adequate to support a conclusion.[76] The use towards the elevator near the Duty Free Shop
and then down towards the tarmac. Since
of this evidentiary threshold reveals the clear intent of the framers [Lozada] was avoiding the people from the
Office of the Senate Sergeant-at-Arms, said
of the Rule on the Writ of Amparo to have the equivalent of an
detour appears to explain why they did not
administrative proceeding, albeit judicially conducted, in get out at the arrival area, where [Lozada]
could have passed through immigration so that
addressing amparo situations.[77] his passport could be properly stamped.
196
 This Court does not find any
evidence on record that [Lozada] struggled
or made an outcry for help when he was
allegedly grabbed or abducted at the airport.
[Lozada] even testified that nobody held him,
and they were not hostile to him nor shouted
at him. With noon day clarity, this Court finds
that the reason why [Lozada] was fetched at the
airport was to help him avoid the Senate
contingent, who would arrest and detain him at
the Office of the Senate Sergeant-at-Arms, until
such time that he would appear and give his
testimony, pursuant to the Order of the Senate
on the NBN-ZTE Project. [Lozada] clearly
knew this because at that time, it was still his
decision not to testify before the Senate. He
agreed with that plan.[82] (Emphases supplied.)
The foregoing statements show that Lozada personally
sought the help of Sec. Atienza to avoid the Senate personnel, and
thus knew that the men who met him at the airport were there to aid
him in such objective. Surely, the actions of Lozada evinced
knowledge and voluntariness, uncharacteristic of someone who
claims to have been forcibly abducted.
However, these mens subsequent acts of directing
Lozada to board the vehicle and driving him around, without
disclosing the exact purpose thereof, appear to be beyond what he
had consented to and requested from Sec. Atienza. These men
neither informed him of where he was being transported nor
provided him complete liberty to contact his family members to
assure them of his safety. These acts demonstrated that he lacked
absolute control over the situation, as well as an effective capacity
to challenge their instructions.
Nevertheless, it must be emphasized that if Lozada had in
fact been illegally restrained, so much so that his right to liberty and
security had been violated, the acts that manifested this restraint
had already ceased and has consequently rendered the grant of
the privilege of the writ of amparo moot. Whether or not Lozada was
deprived of his liberty from the point when he was led inside the
vehicle waiting for him at the airport up to the time he was taken to
sufficiently establish their case by the required evidentiary standard,
La Salle Green Hills, petitioners assertions that Lozada and his
respondents failed to discharge their burden to prove their defenses
family continue to suffer various threats from respondents remain
by substantial evidence and to show that respondents exercised
unproven. The CA correctly found as follows:
extraordinary diligence as required by the Rule on the Writ
of Amparo.[84] This Court has squarely passed upon this contention
The supposed announcement of
inYano v. Sanchez,[85] to wit:
General Razon over the radio that [Lozada]
was in the custody of the PNP can neither be
construed as a threat to [Lozadas] life, liberty
and security. Certainly, no person in his right
mind would make that kind of media
announcement if his intent was indeed to
threaten somebodys life, liberty and security.
xxx xxx xxx
He claims that he is threatened by the
alleged presence of armed men riding in
motorcycle passing outside the De La Salle
premises where he and his family are staying
and by alleged threats of armed men around him
at places where he went to. Again, these alleged
threats were not proven by any evidence at
all, as having originated from any of the
respondents.
[Lozada] also considers
the installation of the surveillance camera at
the De La Salle and at St. Scholastica as
indirect threat to his right to life, liberty and
security. He claims that these are spy cameras.
However, save for [Lozadas] self-serving claim,
he simplyfailed to prove that they were
installed or ordered installed by the
respondents for the purpose of threatening his
right to life, liberty and security.
[Lozada] further maintains that there is
an alleged trend, i.e., wherever he goes, there is
a bomb threat. There were bomb threats in the
places where he went to like in [the Polytechnic
University of the Philippines], Dagupan, Cebu
and Bohol. However, [Lozada] himself testified
that he did not try to ascertain where the bomb
threats emanated. Plainly, there is no evidence
on record that the bomb threats were made
by the respondents or done upon their
instigation.
Moreover, [Lozada] views the
pronouncement of the Secretary of Justice that
he was put on the watch list of the Bureau of
Immigration as a threat to his life, liberty and
security. This alleged threat is again
unsupported by evidence, as in fact, [Lozada]
testified that he did not ascertain from the
Bureau of Immigration whether his name was
actually in the official watch list of the
Bureau. At any rate, the Secretary of Justice is
not one of the respondents in
the amparo petition, and there is no showing in
the record that it was the respondents who
ordered the same for the purpose of threatening
him.
[Lozada] harps on the filing of
alleged frivolous cases against him and his
family as threat to his life, liberty and security.
xxx However, [Lozada] himself testified that
he does not know whether the respondents
or any of the respondents ordered the filing
of these cases against him. In any event, said
purported cases are to be determined based
on their own merits and are clearly beyond
the realm of the instant amparo petition filed
against the respondents.[83] (Emphasis
supplied.)
Finally, petitioners insist that while they were able to
The failure to establish that the public
official observed extraordinary diligence in the
performance of duty does not result in the
automatic grant of the privilege of
the amparo writ. It does not relieve the petitioner
from establishing his or her claim by substantial
evidence.
197
 a criminal action have, in the meanwhile, been
Thus, in amparo actions, petitioners must establish their commenced. The succeeding Sec. 23, on the
claims by substantial evidence, and they cannot merely rely on the other hand, provides that when the criminal suit
is filed subsequent to a petition foramparo, the
supposed failure of respondents to prove either their defenses or petition shall be consolidated with the criminal
action where the Amparo Rule shall
their exercise of extraordinary diligence. In this case, the totality of nonetheless govern the disposition of the relief
under the Rule. Under the terms of said Sec. 22,
the evidence presented by petitioners fails to meet the requisite
the present petition ought to have been
evidentiary threshold, and the privilege of the writ of amparo has dismissed at the outset. But as things stand, the
outright dismissal of the petition by force of that
already been rendered moot and academic by the cessation of the section is no longer technically feasible in light of
the interplay of the following factual mix: (1) the
restraint to Lozadas liberty.
Court has, pursuant to Sec. 6 of the Rule,
already issued ex parte the writ of amparo; (2)
the CA, after a summary hearing, has dismissed
B. Prop the petition, but not on the basis of Sec. 22; and
riety (3) the complaint in OMB-P-C-O7-0602-E
of named as respondents only those believed to be
the the actual abductors of Lourdes, while the
privi instant petition impleaded, in addition, those
lege tasked to investigate the kidnapping and
of detention incidents and their superiors at the top.
the Yet, the acts and/or omissions subject of the
writ criminal complaint and theamparo petition are
of a so linked as to call for the consolidation of both
mpa proceedings to obviate the mischief inherent in a
ro a multiplicity-of-suits situation.
nd
its Given the above perspective and to
inte fully apply the beneficial nature of the writ
rim of amparo as an inexpensive and effective tool
relie to protect certain rights violated or threatened to
fs be violated, the Court hereby adjusts to a degree
the literal application of Secs. 22 and 23 of
the Amparo Rule to fittingly address the situation
obtaining under the premises. Towards this end,
As previously discussed, there is no basis to grant Lozada two things are at once indicated: (1) the
consolidation of the probe and fact-finding
the privilege of the writ of amparo, considering that the illegal aspects of the instant petition with the
restraint alleged in this case had already ceased and there is no investigation of the criminal complaint before the
OMB; and (2) the incorporation in the same
imminent or continuing restriction on his liberty. In Castillo v. criminal complaint of the allegations in this
petition bearing on the threats to the right to
Cruz,[86] this Court held as follows: security. Withal, the OMB should be furnished
copies of the investigation reports to aid that
body in its own investigation and eventual
Although respondents release from resolution of OMB-P-C-O7-0602-E. Then, too,
confinement does not necessarily hinder the OMB shall be given easy access to all
supplication for the writ of amparo, absent any pertinent documents and evidence, if any,
evidence or even an allegation in the petition adduced before the CA. Necessarily, Lourdes,
that there is undue and continuing restraint as complainant in OMB-P-C-O7-0602-E, should
on their liberty, and/or that there exists threat be allowed, if so minded, to amend her basic
or intimidation that destroys the efficacy of their criminal complaint if the consolidation of cases
right to be secure in their persons, the issuance is to be fully effective. (Emphasis supplied.)
of the writ cannot be justified. (Emphasis
supplied.)

Thus, if the Complaint filed before the DOJ had already

Further, it appears that Lozada had already filed before progressed into a criminal case, then the latter action can more
the Department of Justice (DOJ) a Complaint charging respondents adequately dispose of the allegations made by petitioners. After all,
with kidnapping and attempted murder, docketed as I.S. No. 2008- one of the ultimate objectives of the writ of amparo as a curative
[87] [88]
467. In this regard, this Courts ruling in Rubrico v. Arroyo is remedy is to facilitate the subsequent punishment of
worth considering: perpetrators. [89]
On the other hand, if there is no actual criminal case

First, a criminal complaint for lodged before the courts, then the denial of the Petition is without
kidnapping and, alternatively, for arbitrary prejudice to the filing of the appropriate administrative, civil or
detention rooted in the same acts and
incidents leading to the filing of the criminal case, if applicable, against those individuals whom Lozada
subject amparo petition has been instituted
with the OMB, docketed as OMB-P-C-O7- deems to have unduly restrained his liberty.
0602-E. The usual initial steps to determine the
existence of a prima facie case against the five
(5) impleaded individuals suspected to be
actually involved in the detention of Lourdes Finally, with respect to the interim reliefs sought by
have been set in motion. It must be pointed out,
though, that the filing of the OMB complaint petitioners, this Court, in Yano v. Sanchez,[90] declined to grant the
came before the effectivity of the Amparo Rule prayer for the issuance of a TPO, as well as Inspection and
on October 24, 2007.
Production Orders, upon a finding that the implicated public officials
Second, Sec. 22 of the Amparo Rule were not accountable for the disappearance subject of that case.
proscribes the filing of an amparo petition should
198

Analogously, it would be incongruous to grant herein petitioners
prayer for a TPO and Inspection and Production Orders and at the
same time rule that there no longer exists any imminent or
continuing threat to Lozadas right to life, liberty and security. Thus,
there is no basis on which a prayer for the issuance of these interim
same or] give information on the fate or whereabouts of [said
missing] persons.[3]
This petition for review on certiorari[4] filed in relation to Section 19
of A.M. No. 07-9-12-SC[5] challenges the July 24, 2008 Decision[6] of
the Regional Trial Court (RTC), Branch 20, Malolos City which
granted the Petition for Writ of Amparo[7] filed by herein respondent
against the petitioners.

reliefs can be anchored. Factual Antecedents

WHEREFORE, the instant petition is DENIED for being On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land
Strategies Corporation[8] (Asian Land) arrived at the house of Lolita
moot and academic. The Court of Appeals denial of the privilege of M. Lapore (Lolita) located at 7A Lot 9, Block 54, Grand Royale
the writ of amparo is hereby AFFIRMED. Subdivision, Barangay Lugam, Malolos City. The arrival of the
vehicle awakened Lolitas son, Enrique Lapore (Bong), and Benhur
Pardico (Ben), who were then both staying in her house. When
EDGARDO G.R. No. 184467 Lolita went out to investigate, she saw two uniformed guards
NAVIA,[1] RUBEN disembarking from the vehicle. One of them immediately asked
Lolita where they could find her son Bong. Before Lolita could
DIO,[2] and ANDREW answer, the guard saw Bong and told him that he and Ben should
BUISING, go with them to the security office of AsianLand because a
complaint was lodged against them for theft of electric wires and
Petitioners,
lamps in the subdivision.[9]
Present:

Shortly thereafter, Bong, Lolita and Ben were in the office of the
CARPIO, security department of Asian Land also located in Grand Royale
Subdivision.[10] The supervisor of the security guards, petitioner
VELASCO, JR., Edgardo Navia (Navia), also arrived thereat.

LEONARDO-DE
CASTRO,
As to what transpired next, the parties respective versions diverge.
BRION,

PERALTA,
Version of the Petitioners
- versus - BERSAMIN,

DEL CASTILLO,
Petitioners alleged that they invited Bong and Ben to their office
ABAD, because they received a report from a certain Mrs. Emphasis, a
resident of Grand Royale Subdivision, that she saw Bong and Ben
VILLARAMA, JR., removing a lamp from a post in said subdivision.[11] The reported
unauthorized taking of the lamp was relayed thru radio to petitioners
PEREZ, Ruben Dio (Dio) and Andrew Buising (Buising), who both work as
MENDOZA, security guards at the Asian Land security department. Following
their departments standard operating procedure, Dio and Buising
SERENO, entered the report in their logbook and proceeded to the house of
Mrs. Emphasis. It was there where Dio and Buising were able to
REYES, and confirm who the suspects were. They thus repaired to the house of
Lolita where Bong and Ben were staying to invite the two suspects
VIRGINIA PARDICO, for PERLAS-BERNABE, JJ. to their office. Bong and Ben voluntarily went with them.
and in

behalf and in
representation of At the security office, Dio and Buising interviewed Bong and
Ben. The suspects admitted that they took the lamp but clarified that
BENHUR V. PARDICO Promulgated: they were only transferring it to a post nearer to the house of
Lolita.[12] Soon, Navia arrived and Buising informed him that the
Respondent. June 19, 2012
complainant was not keen in participating in the investigation. Since
x------------------------------------------------ there was no complainant, Navia ordered the release of Bong and
--------x Ben. Bong then signed a statement to the effect that the guards
released him without inflicting any harm or injury to him.[13] His
mother Lolita also signed the logbook below an entry which states
that she will never again harbor or entertain Ben in her
DECISION house. Thereafter, Lolita and Bong left the security office.

DEL CASTILLO, J.:
For the protective writ of amparo to issue in enforced disappearance
cases, allegation and proof that the persons subject thereof are
missing are not enough. It must also be shown by the required
quantum of proof that their disappearance was carried out by, or
with the authorization, support or acquiescence of, [the government]
or a political organization, followed by a refusal to acknowledge [the
Ben was left behind as Navia was still talking to him about those
who might be involved in the reported loss of electric wires and
lamps within the subdivision. After a brief discussion though, Navia
allowed Ben to leave. Ben also affixed his signature on the logbook
to affirm the statements entered by the guards that he was released
unharmed and without any injury.[14]
Upon Navias instructions, Dio and Buising went back to the house
of Lolita to make her sign the logbook as witness that they indeed
released Ben from their custody. Lolita asked Buising to read aloud

199
that entry in the logbook where she was being asked to sign, to
which Buising obliged. Not contented, Lolita put on her reading
glasses and read the entry in the logbook herself before affixing her
signature therein. After which, the guards left.
Subsequently, petitioners received an invitation[15] from the Malolos
City Police Station requesting them to appear thereat on April 17,
2008 relative to the complaint of Virginia Pardico (Virginia) about her
missing husband Ben. In compliance with the invitation, all three
petitioners appeared at the Malolos City Police Station. However,
since Virginia was not present despite having received the same
invitation, the meeting was reset to April 22, 2008.[16]
In the course of the investigation on Bens disappearance, it dawned
upon Lolita that petitioners took advantage of her poor eyesight and
naivete. They made her sign the logbook as a witness that they
already released Ben when in truth and in fact she never witnessed
his actual release. The last time she saw Ben was when she left him
in petitioners custody at the security office. [27]
Exasperated with the mysterious disappearance of her
husband, Virginia filed a Petition for Writ of Amparo[28] before the
RTC of Malolos City. Finding the petition sufficient in form and
substance, the amparo court issued an Order[29] dated June 26,
2008 directing, among others, the issuance of a writ of amparo and
the production of the body of Ben before it on June 30, 2008. Thus:

On April 22, 2008, Virginia attended the investigation. Petitioners

informed her that they released Ben and that they have no WHEREFORE, conformably with Section 6 of the Supreme Court
information as to his present whereabouts.[17] They Resolution [in] A.M. No. 07-[9]-12-SC, also known as The Rule On
assured Virginia though that they will cooperate and help in the The Writ Of Amparo, let a writ of amparo be issued, as follows:
investigation of her missing husband.[18]

(1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and

Version of the Respondent Andrew Buising of the Asian Land Security Agency to produce
before the Court the body of aggrieved party Benhur Pardico, on
Monday, June 30, 2008, at 10:30 a.m.;
According to respondent, Bong and Ben were not merely
invited. They were unlawfully arrested, shoved into
the Asian Land vehicle and brought to the security office for (2) ORDERING the holding of a summary hearing of the
investigation. Upon seeing Ben at the security office, Navia lividly petition on the aforementioned date and time, and DIRECTING the
grumbled Ikaw na naman?[19] and slapped him while he was still [petitioners] to personally appear thereat;
seated. Ben begged for mercy, but his pleas were met with a flurry
of punches coming from Navia hitting him on different parts of his
body.[20] Navia then took hold of his gun, looked at Bong, and
(3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio
said, Wala kang nakita at wala kang narinig, papatayin ko na si
and Andrew Buising to file, within a non-extendible period of
Ben.[21]
seventy-two (72) hours from service of the writ, a verified written
return with supporting affidavits which shall, among other things,
contain the following:
Bong admitted that he and Ben attempted to take the lamp. He
explained that the area where their house is located is very dark and
his father had long been asking the administrator of Grand Royale
a) The lawful defenses to show that the [petitioners] did not violate
Subdivision to install a lamp to illumine their area. But since nothing
or threaten with violation the right to life, liberty and security of the
happened, he took it upon himself to take a lamp from one of the
aggrieved party, through any act or omission;
posts in the subdivision and transfer it to a post near their
house. However, the lamp Bong got was no longer working. Thus,
he reinstalled it on the post from which he took it and no longer
pursued his plan. [22] b) The steps or actions taken by the [petitioners] to
determine the fate or whereabouts of the aggrieved party and the
person or persons responsible for the threat, act or omission; and
Later on, Lolita was instructed to sign an entry in the guards logbook
where she undertook not to allow Ben to stay in her house
anymore.[23] Thereafter, Navia again asked Lolita to sign the c) All relevant information in the possession of the
logbook. Upon Lolitas inquiry as to why she had to sign again, Navia [petitioners] pertaining to the threat, act or omission against the
explained that they needed proof that they released her son Bong aggrieved party.
unharmed but that Ben had to stay as the latters case will be
forwarded to the barangay.Since she has poor eyesight, Lolita
obligingly signed the logbook without reading it and then left with
(4) GRANTING, motu proprio, a Temporary Protection Order
Bong.[24] At that juncture, Ben grabbed Bong and pleaded not to be
prohibiting the [petitioners], or any persons acting for and in their
left alone. However, since they were afraid of Navia, Lolita and Bong
behalf, under pain of contempt, from threatening, harassing or
left the security office at once leaving Ben behind. [25]
inflicting any harm to [respondent], his immediate family and any
[member] of his household.

Moments after Lolita and Bong reached their house, Buising arrived
and asked Lolita to sign the logbook again. Lolita asked Buising why
The Branch Sheriff is directed to immediately serve personally on
she had to sign again when she already twice signed the logbook at
the [petitioners], at their address indicated in the petition, copies of
the headquarters. Buising assured her that what she was about to
the writ as well as this order, together with copies of the petition and
sign only pertains to Bongs release. Since it was dark and she has
its annexes.[30]
poor eyesight, Lolita took Buisings word and signed the logbook
without, again, reading what was written in it. [26]

The following morning, Virginia went to the Asian Land security

office to visit her husband Ben, but only to be told that petitioners
had already released him together with Bong the night before. She
then looked for Ben, asked around, and went to the barangay. Since
she could not still find her husband, Virginia reported the matter to
the police.
A Writ of Amparo[31] was accordingly issued and served on the
petitioners on June 27, 2008.[32] On June 30, 2008, petitioners filed
their Compliance[33] praying for the denial of the petition for lack of
merit.

200
A summary hearing was thereafter conducted. Petitioners
presented the testimony of Buising, while Virginia submitted the
sworn statements[34] of Lolita and Enrique which the two affirmed on
the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged
Decision[35] granting the petition. It disposed as follows:
WHEREFORE, the Court hereby grants the privilege of the writ of
amparo, and deems it proper and appropriate, as follows:
(a) To hereby direct the National Bureau of Investigation (NBI)
to immediately conduct a deep and thorough investigation of the
[petitioners] Edgardo Navia, Ruben Dio and Andrew Buising in
connection with the circumstances surrounding the disappearance
of [Benhur] Pardico, utilizing in the process, as part of the
investigation, the documents forming part of the records of this case;
(b) To hereby direct the NBI to extend to the family of [Benhur]
Pardico and the witnesses who testified in this case protection as it
may deem necessary to secure their safety and security; and
(c) To hereby direct the Office of the Provincial Prosecutor of
Bulacan to investigate the circumstances concerning the legality of
the arrest of [Benhur] Pardico by the [petitioners] in this case,
utilizing in the process, as part of said investigation, the pertinent
documents and admissions forming part of the record of this case,
and take whatever course/s of action as may be warranted.
Furnish immediately copies of this decision to the NBI, through the
Office of Director Nestor Mantaring, and to the Provincial Prosecutor
of Bulacan.
SO ORDERED.[36]
Petitioners filed a Motion for Reconsideration [37] which was denied
by the trial court in an Order[38] dated August 29, 2008.
Hence, this petition raising the following issues for our
consideration:
4.1. WHETHER X X X THE HONORABLE TRIAL COURT
GRAVELY ERRED IN RULING THAT RESPONDENT IS
ENTITLED TO THE PRIVILEGE OF THE WRIT OF AMPARO.
4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO
ESTABLISH THAT PETITIONERS HAVE COMMITTED OR ARE
COMMITTING ACTS IN VIOLATION OF HER HUSBANDS RIGHT
TO LIFE, LIBERTY, OR SECURITY.
4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY
ESTABLISHED THE FACT OF THE DISAPPEARANCE OF
BENHUR PARDICO.
4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO
ESTABLISH THAT THE ALLEGED DISAPPEARANCE OF
BENHUR PARDICO WAS AT THE INSTANCE OF HEREIN
PETITIONERS.[39]
Petitioners Arguments
Petitioners essentially assail the sufficiency of
the amparo petition. They contend that the writ of amparo is
available only in cases where the factual and legal bases of the
violation or threatened violation of the aggrieved partys right to life,
liberty and security are clear.Petitioners assert that in the case at
bench, Virginia miserably failed to establish all these. First, the
petition is wanting on its face as it failed to state with some degree
of specificity the alleged unlawful act or omission of the petitioners
constituting a violation of or a threat to Bens right to life, liberty and
security. And second, it cannot be deduced from the
evidence Virginia adduced that Ben is missing; or that petitioners
had a hand in his alleged disappearance. On the other hand, the
entries in the logbook which bear the signatures of Ben and Lolita
are eloquent proof that petitioners released Ben on March 31, 2008
at around 10:30 p.m. Petitioners thus posit that the trial court erred
in issuing the writ and in holding them responsible for Bens
disappearance.
Our Ruling
Virginias Petition for Writ of Amparo is fatally defective and must
perforce be dismissed, but not for the reasons adverted to by the
petitioners.
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was
promulgated to arrest the rampant extralegal killings and enforced
disappearances in the country. Its purpose is to provide an
expeditious and effective relief to any person whose right to life,
liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a
private individual or entity. [40]
Here, Bens right to life, liberty and security is firmly settled as the
parties do not dispute his identity as the same person summoned
and questioned at petitioners security office on the night of March
31, 2008. Such uncontroverted fact ipso facto established Bens
inherent and constitutionally enshrined right to life, liberty and
security. Article 6[41] of the International Covenant on Civil and
Political Rights[42]recognizes every human beings inherent right to
life, while Article 9[43] thereof ordains that everyone has the right to
liberty and security. The right to life must be protected by law while
the right to liberty and security cannot be impaired except on
grounds provided by and in accordance with law. This overarching
command against deprivation of life, liberty and security without due
process of law is also embodied in our fundamental law. [44]
The pivotal question now that confronts us is whether Bens
disappearance as alleged in Virginias petition and proved during the
summary proceedings conducted before the court a quo, falls within
the ambit of A.M. No. 07-9-12-SC and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1. Petition. The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission
of a public official or employee, or of a private individual or entity.
201
The writ shall cover extralegal killings and enforced disappearances
or threats thereof. (Emphasis ours.)
While Section 1 provides A.M. No. 07-9-12-SCs coverage, said
Rules does not, however, define extralegal killings and enforced
disappearances. This omission was intentional as the Committee on
Revision of the Rules of Court which drafted A.M. No. 07-9-12-SC
chose to allow it to evolve through time and jurisprudence and
through substantive laws as may be promulgated by
Congress.[45] Then, the budding jurisprudence
on amparo blossomed in Razon, Jr. v. Tagitis[46] when this Court
defined enforced disappearances. The Court in that case applied
the generally accepted principles of international law and adopted
the International Convention for the Protection of All Persons from
Enforced Disappearances definition of enforced disappearances, as
the arrest, detention, abduction or any other form of deprivation of
libertyby agents of the State or by persons or groups of persons
acting with the authorization, support or acquiescence of the State,
followed by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person,
which place such a person outside the protection of the law. [47]
Not long thereafter, another significant development affecting A.M.
No. 07-9-12-SC came about after Congress enacted Republic Act
(RA) No. 9851[48] on December 11, 2009. Section 3(g) thereof
defines enforced or involuntary disappearances as follows:
(g) "Enforced or involuntary disappearance of persons" means the
arrest, detention, or abduction of persons by, or with the
authorization, support or acquiescence of, a State or a political
organization followed by a refusal to acknowledge that deprivation
of freedom or to give information on the fate or whereabouts of those
persons, with the intention of removing from the protection of the
law for a prolonged period of time.
Then came Rubrico v. Macapagal-Arroyo[49] where Justice Arturo D.
Brion wrote in his Separate Opinion that with the enactment of RA
No. 9851, the Rule on the Writ of Amparo is now a procedural law
anchored, not only on the constitutional rights to the rights to life,
liberty and security, but on a concrete statutory definition as well of
what an enforced or involuntary disappearance is.[50] Therefore,
A.M. No. 07-9-12-SCs reference to enforced disappearances
should be construed to mean the enforced or involuntary
disappearance of persons contemplated in Section 3(g) of RA No.
9851. Meaning, in probing enforced disappearance cases, courts
should read A.M. No. 07-9-12-SC in relation to RA No. 9851.
From the statutory definition of enforced disappearance, thus, we
can derive the following elements that constitute it:
(a) that there be an arrest, detention, abduction or any form of
deprivation of liberty;
(b) that it be carried out by, or with the authorization, support
or acquiescence of, the State or a political organization;
(c) that it be followed by the State or political organizations
refusal to acknowledge or give information on the fate or
whereabouts of the person subject of the amparo petition; and,
(d) that the intention for such refusal is to remove subject
person from the protection of the law for a prolonged period of time.
As thus dissected, it is now clear that for the protective writ
of amparo to issue, allegation and proof that the persons subject
thereof are missing are not enough. It must also be shown and
proved by substantial evidence that the disappearance was carried
out by, or with the authorization, support or acquiescence of, the
State or a political organization, followed by a refusal to
acknowledge the same or give information on the fate or
whereabouts of said missing persons, with the intention of removing
them from the protection of the law for a prolonged period of
time. Simply put, the petitioner in an amparo case has the burden of
proving by substantial evidence the indispensable element of
government participation.
In the present case, we do not doubt Bongs testimony that Navia
had a menacing attitude towards Ben and that he slapped and
inflicted fistic blows upon him. Given the circumstances and the
pugnacious character of Navia at that time, his threatening
statement, Wala kang nakita at wala kang narinig, papatayin ko na
si Ben, cannot be taken lightly. It unambiguously showed his
predisposition at that time. In addition, there is nothing on record
which would support petitioners assertion that they released Ben on
the night of March 31, 2008 unscathed from their wrath. Lolita
sufficiently explained how she was prodded into affixing her
signatures in the logbook without reading the entries therein. And
so far, the information petitioners volunteered are sketchy at best,
like the alleged complaint of Mrs. Emphasis who was never
identified or presented in court and whose complaint was never
reduced in writing.
But lest it be overlooked, in an amparo petition, proof of
disappearance alone is not enough. It is likewise essential to
establish that such disappearance was carried out with the direct or
indirect authorization, support or acquiescence of the
government. This indispensable element of State participation is not
present in this case. The petition does not contain any allegation of
State complicity, and none of the evidence presented tend to show
that the government or any of its agents orchestrated Bens
disappearance. In fact, none of its agents, officials, or employees
were impleaded or implicated in Virginias amparo petition whether
as responsible or accountable persons. [51] Thus, in the absence of
an allegation or proof that the government or its agents had a hand
in Bens disappearance or that they failed to exercise extraordinary
diligence in investigating his case, the Court
will definitely not hold the government or its agents either as respo
nsible or
accountable persons.
We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ
of amparo may lie against a private individual or entity. But even if
the person sought to be held accountable or responsible in
an amparo petition is a private individual or entity, still, government
involvement in the disappearance remains an indispensable
element. Here, petitioners are mere security guards at Grand
Royale Subdivision in Brgy. Lugam,Malolos City and their principal,
the Asian Land, is a private entity. They do not work for the
government and nothing has been presented that would link or
connect them to some covert police, military or governmental
operation. As discussed above, to fall within the ambit of A.M. No.
07-9-12-SC in relation to RA No. 9851, the disappearance must be
attended by some governmental involvement. This hallmark of State
participation differentiates an enforced disappearance case from an
ordinary case of a missing person.
WHEREFORE, the July 24, 2008 Decision of the Regional Trial
Court, Branch 20, Malolos City, is REVERSED and SET
ASIDE. The Petition for Writ of Amparo filed by Virginia Pardico is
hereby DISMISSED.
202
G.R. No. 183533 September 25, 2012
IN THE MATTER OF THE PETITION FOR THE WRIT OF
AMPARO AND THE WRIT OF HABEAS DATA IN FAVOR OF
FRANCIS SAEZ, Petitioner,
vs.
GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES
ESPERON, P/DIR. GEN. AVELINO RAZON, 22ND MICO, CAPT.
LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL
GUTIERREZ, CAPT. JAKE OBLIGADO, CPL. ROMAN ITO
QUINT ANA, PVT. JERICO DUQUIL, CPL. ARIEL FONTANILLA,
A CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST SERGEANT,
PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL.
JAMES, A CERTAIN JOEL, RODERICK CLANZA and JEFFREY
GOMEZ, Respondents.
1
For action by the Court is the Motion for Reconsideration dated
September 26, 2010 filed by petitioner Francis Saez of our
Resolution2 dated August 31, 2010 denying the Petition for
Review3 he filed on July 21, 2008.
The Office of the Solicitor General (OSG) filed its Comment4 thereon
stating that it does not find cogent grounds to warrant setting aside
our decision.
Antecedent Facts
On March 6, 2008, the petitioner filed with the Court a petition to be
granted the privilege of the writs of amparo and habeas data with
prayers for temporary protection order, inspection of place and
production of documents.5 In the petition, he expressed his fear of
being abducted and killed; hence, he sought that he be placed in a
sanctuary appointed by the Court. He likewise prayed for the military
to cease from further conducting surveillance and monitoring of his
activities and for his name to be excluded from the order of battle
and other government records connecting him to the Communist
Party of the Philippines (CPP).
Without necessarily giving due course to the petition, the Court
issued the writ of amparo commanding the respondents to make a
verified return, and referred the case to the Court of Appeals (CA)
for hearing and decision.The case before the CA was docketed as
CA-G.R. SP No. 00024 WOA.
In the Return of the Writ,6 the respondents denied the assignment
in the units of Captains Lawrence Banaag and Rommel Gutierrez
and Corporal Ariel Fontanilla. The respondents also alleged that the
names and descriptions of "Capt. Alcaydo," "a certain First
Sergeant," "Cpl. James," "Pfc. Sonny," and "Joel" were insufficient
to properly identify some of the persons sought to be included as
among the respondents in the petition.
On the other hand, respondents General Hermogenes Esperon, Jr.
(Gen. Esperon), Capt. Jacob Thaddeus Obligado, Pvt. Rizaldy A.
Osio (Pvt. Osio), Pfc. Romanito C. Quintana, Jr. and Pfc. Jerico
Duquil submitted their affidavits.
The CA conducted hearings with an intent to clarify what actually
transpired and to determine specific acts which threatened the
petitioner’s right to life, liberty or security.
During the hearings, the petitioner narrated that starting April 16,
2007, he noticed that he was always being followed by a certain
"Joel," a former colleague at Bayan Muna. "Joel" pretended
peddling pandesal in the vicinity of the petitioner’s store. Three days
before the petitioner was apprehended, "Joel" approached and
informed him of his marital status and current job as a baker in
Calapan, Mindoro Oriental. "Joel" inquired if the petitioner was still
involved with ANAKPAWIS. When asked by the CA justices during
the hearing if the petitioner had gone home to Calapan after having
filed the petition, he answered in the negative explaining that he was
afraid of Pvt. Osio who was always at the pier.
CA-G.R. SP No. 00024 WOA
On July 9, 2008, the CA rendered its Decision, 7 denying on formal
and substantial grounds the reliefs prayed for in the petition and
dropping former President Gloria Macapagal Arroyo as a
respondent. The CA ratiocinated:
There was no attempt at all to clarify how petitioner came to know
about Zaldy Osio’s presence at their pier if the former had not gone
home since the petition was filed and what Zaldy Osio was doing
there to constitute violation or threat to violate petitioner’s right to
life, liberty or security. This Court cannot just grant the privilege of
the writs without substantial evidence to establish petitioner’s
entitlement thereto. This Court cannot grant the privilege of the writs
applied for on mere speculation or conjecture. This Court is
convinced that the Supreme Court did not intend it to be so when
the rules on the writs of Amparo and Habeas Data were adopted. It
is the impression of this Court that the privilege of the writs herein
prayed for should be considered as extraordinary remedies
available to address the specific situations enumerated in the rules
and no other.
xxxx
Not only did the petition and the supporting affidavit x x x fail to
allege how the supposed threat or violation of petitioner’s [right to]
life, liberty and security is committed. Neither is there any narration
of any circumstances attendant to said supposed violation or threat
to violatepetitioner’s right to life, liberty or security to warrant
entitlement to the privilege of the writs prayed for.
xxxx
A reading of the petition will show that the allegations therein do not
comply with the aforestated requirements of Section 6 Rule on the
Writ of Habeas Data of the pertinent rule. The petition is bereft of
any allegation stating with specific definiteness as to how
petitioner’s right to privacy was violated or threatened to be violated.
He did not include any allegation as to what recourses he availed of
to obtain the alleged documents from respondents. Neither did
petitioner allege what specific documents he prays for and from
whom or [sic] from what particular office of the government he prays
to obtain them. The petition prays "to order respondents to produce
any documents submitted to any of them in the matter of any report
on the case of FRANCIS SAEZ, including all military intelligence
reports."
xxxx
Both the rules on the writs of Amparo and Habeas Data (Section 17,
A.M. No. 07-9-12-SC and Section 16, A.M. No. 08-1-16-SC) provide
that the parties shall establish their claims by substantial evidence.
Not only was petitioner unable to establish his entitlement to the
privilege of the writs applied for, the exigency thereof was negated
by his own admission that nothing happened between him and Joel
after July 21, 2007. The filing of the petition appears to have been
precipitated by his fear that something might happen to him, not
because of any apparent violation or visible threat to violate his right
to life, liberty or security. Petitioner was, in fact, unable to establish
likewise who among the respondents committed specific acts
defined under the rules on both writs to constitute violation or threat
to violate petitioner’s rights to life, liberty or security or his right to
privacy thereof.
xxxx
x x x The ruling in David, et al. vs. Gloria Macapagal Arroyo, et al.
(G.R. No. 171396, May 3, 2006, 489 SCRA 160, 224) is aptly
instructive:
"Settled is the doctrine that the President, during his tenure of office
or actual incumbency, may not be sued in any civil or criminal case,
and there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of
State, if he can be dragged into court litigations while serving as
such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to
the performance of his official duties and functions. x x x."
xxxx
IV. The petition lacks proper verification in violation of Section 12,
2004 Rules on Notarial Practice.8
On July 21, 2008, Petition for Review was filed assailing the
foregoing CA decision with the following issues submitted for
resolution:
203
WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR
IN DISMISSING THE PETITION AND DROPPING GLORIA
MACAPAGAL ARROYO AS PARTY RESPONDENT.
WHETHER OR NOT THE NOTARIAL OFFICER’S OMISSION OF
REQUIRING FROM THE PETITIONER IDENTIFICATION CARDS
RELATIVE TO THE LATTER’S EXECUTION OF THE
VERIFICATION AND CERTIFICATION OF NON-FORUM
SHOPPING JUSTIFIES THE DENIAL OF THE PETITION.
WHETHER OR NOT THE CA COMMITTED GROSS ABUSE OF
DISCRETION WHEN IT FAILED TO CONCLUDE FROM THE
EVIDENCE OFFERED BY THE PETITIONER THE FACT THAT BY
BEING PLACED IN THE ORDER OF BATTLE LIST, THREATS
AND VIOLATIONS TO THE LATTER’S LIFE, LIBERTY AND
SECURITY WERE ACTUALLY COMMITTED BY THE
RESPONDENTS.9
Court’s Resolution dated August 31, 2010
On August 31, 2010, the Court issued the Resolution10 denying the
petition for review for the following reasons, viz:
A careful perusal of the subject petition shows that the CA correctly
found that the petition was bereft of any allegation as to what
particular acts or omission of respondents violated or threatened
petitioner’s right to life, liberty and security. His claim that he was
incommunicado lacks credibility as he was given a cellular phone
and allowed to go back to Oriental Mindoro. The CA also correctly
held that petitioner failed to present substantial evidence that his
right to life, liberty and security were violated, or how his right to
privacy was threatened by respondents. He did not specify the
particular documents to be secured, their location or what particular
government office had custody thereof, and who has possession or
control of the same. He merely prayed that the respondents be
ordered "to produce any documents submitted to any of them in the
matter of any report on the case of FRANCIS SAEZ, including all
military intelligence reports."
Petitioner assails the CA in failing to appreciate that in his Affidavit
and Fact Sheet, he had specifically detailed the violation of his right
to privacy as he was placed in the Order of Battle and promised to
have his record cleared if he would cooperate and become a military
asset. However, despite questions propounded by the CA Associate
Justices during the hearing, he still failed to enlighten the appellate
court as to what actually transpired to enable said court to determine
whether his right to life, liberty or security had actually been violated
or threatened. Records bear out the unsubstantiated claims of
petitioner which justified the appellate court’s dismissal of the
petition.
As to petitioner’s argument that the CA erred in deleting the
President as party-respondent, we find the same also to be without
merit. The Court has already made it clear in David v. Macapagal-
Arroyo that the President, during his or her tenure of office or actual
incumbency, may not be sued in any civil or criminal case, and there
is no need to provide for it in the Constitution or law. It will degrade
the dignity of the high office of the President, the Head of State, if
the President can be dragged into court litigations while serving as
such. Furthermore, it is important that the President be freed from
any form of harassment, hindrance or distraction to enable the
President to fully attend to the performance of official duties and
functions.11 (Citation omitted)
Hence, the petitioner filed the instant motion for reconsideration. 12
Petitioner’s Arguments
Contrary to the CA’s findings, it had been shown by substantial
evidence and even by the respondents’ own admissions that the
petitioner’s life, liberty and security were threatened. Military
personnel, whom the petitioner had named and described, knew
where to get him and they can do so with ease. He also became a
military asset, but under duress, as the respondents had documents
allegedly linking him to the CPP and including him in the order of
battle. The petitioner claims that the foregoing circumstances were
not denied by the respondents.
The petitioner likewise challenges the CA’s finding that he was not
rendered incommunicado as he was even provided with a cellular
phone. The petitioner argues that the phone was only given to him
for the purpose of communicating with the respondents matters
relative to his infiltration activities of target legal organizations.
The petitioner cites Secretary of National Defense v.
Manalo,13 which pronounced that "in the amparo context, it is more
correct to say that the ‘right to security’ is actually the ‘freedom from
threat’".14 According to the petitioner, his freedom from fear was
undoubtedly violated, hence, to him pertains a cause of action.
Anent the quantum of proof required in a petition for the issuance of
the writ of amparo, mere substantial evidence is sufficient. The
petition "is not an action to determine criminal guilt requiring proof
beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative responsibility
requiring substantial evidence that will require full and exhaustive
proceedings".15
Sadly, in the petitioner’s case, the court not only demanded a
greater quantum of proof than what the rules require, but it also
accorded special preference for the respondents’ evidence.
The petitioner also cites a speech delivered in Siliman University by
former Chief Justice Reynato Puno who expressed that "the remedy
of habeas data can be used by any citizen against any governmental
agency or register to find out what information is held about his or
her person." The person can likewise "request the rectification or
even the destruction of erroneous data gathered and kept against
him or her." In the petitioner’s case, he specifically sought the
production of the order of battle, which allegedly included his name,
and other records which supposedly contain erroneous data relative
to his involvement with the CPP.
OSG’s Comment
In the respondents’ comment16 filed by the OSG, it is generally
claimed that the petitioner advances no cogent grounds to justify the
reversal of the Court’s Resolution dated August 31, 2010.
The Court’s Disquisition
While the issuance of the writs sought by the petitioner cannot be
granted, the Court nevertheless finds ample grounds to modify the
Resolution dated August 31, 2010.
The petition conforms to the
requirements of the Rules on the
Writs of Amparo and Habeas Data
Section 517 of A.M. No. 07-9-12-SC (Rule on the Writ of Amparo)
and Section 618 of A.M. 08-1-16-SC (Rule on the Writ of Habeas
Data) provide for what the said petitions should contain.
In the present case, the Court notes that the petition for the issuance
of the privilege of the writs of amparo and habeas data is sufficient
as to its contents. The petitioner made specific allegations relative
to his personal circumstances and those of the respondents. The
petitioner likewise indicated particular acts, which are allegedly
violative of his rights and the participation of some of the
respondents in their commission. As to the pre-requisite conduct
and result of an investigation prior to the filing of the petition, it was
explained that the petitioner expected no relief from the military,
which he perceived as his oppressors, hence, his request for
assistance from a human rights organization, then a direct resort to
the court. Anent the documents sought to be the subject of the writ
of habeas data prayed for, the Court finds the requirement of
specificity to have been satisfied. The documents subject of the
petition include the order of battle, those linking the petitioner to the
CPP and those he signed involuntarily, and military intelligence
reports making references to him. Although the exact locations and
the custodians of the documents were not identified, this does not
render the petition insufficient. Section 6(d) of the Rule on the Writ
of Habeas Data is clear that the requirement of specificity arises
only when the exact locations and identities of the custodians are
known. The Amparo Rule was not promulgated with the intent to
make it a token gesture of concern for constitutional rights. 19 Thus,
despite the lack of certain contents, which the Rules on the Writs of
Amparo and Habeas Data generally require, for as long as their
absence under exceptional circumstances can be reasonably
justified, a petition should not be susceptible to outright dismissal.
From the foregoing, the Court holds that the allegations stated in the
petition for the privilege of the writs of amparo and habeas data filed
conform to the rules. However, they are mere allegations, which the
204
Court cannot accept "hook, line and sinker", so to speak, and
whether substantial evidence exist to warrant the granting of the
petition is a different matter altogether.
No substantial evidence exists to
prove the petitioner’s claims
The Court has ruled that in view of the recognition of the evidentiary
difficulties attendant to the filing of a petition for the privilege of the
writs of amparo and habeas data, not only direct evidence, but
circumstantial evidence, indicia, and presumptions may be
considered, so long as they lead to conclusions consistent with the
admissible evidence adduced.20
With the foregoing in mind, the Court still finds that the CA did not
commit a reversible error in declaring that no substantial evidence
exist to compel the grant of the reliefs prayed for by the petitioner.
The Court took a second look on the evidence on record and finds
no reason to reconsider the denial of the issuance of the writs
prayed for.
In the hearing before the CA, it was claimed that "Joel" once inquired
from the petitioner if the latter was still involved with ANAKPAWIS.
By itself, such claim cannot establish with certainty that the
petitioner was being monitored. The encounter happened once and
the petitioner, in his pleadings, nowhere stated that subsequent to
the time he was asked about his involvement with ANAKPAWIS, he
still noticed "Joel" conducting surveillance operations on him. He
alleged that he was brought to the camp of the 204th Infantry
Brigade in Naujan, Oriental Mindoro but was sent home at 5:00 p.m.
The petitioner and the respondents have conflicting claims about
what transpired thereafter. The petitioner insisted that he was
brought against his will and was asked to stay by the respondents
in places under the latter’s control. The respondents, on the other
hand, averred that it was the petitioner who voluntarily offered his
service to be a military asset, but was rejected as the former still
doubted his motives and affiliations.
Section 19 of both the Rules on the Writ of Amparo and Habeas
Data is explicit that questions of fact and law can be raised before
the Court in a petition for review on certiorari under Rule 45. As a
rule then, the Court is not bound by the factual findings made by the
appellate court which rendered the judgment in a petition for the
issuance of the writs of amparo and habeas data. Be that as it may,
in the instant case, the Court agrees with the CA that the petitioner
failed to discharge the burden of proof imposed upon him by the
rules to establish his claims. It cannot be overemphasized that
Section 1 of both the Rules on the Writ of Amparo and Habeas Data
expressly include in their coverage even threatened violations
against a person’s right to life, liberty or security. Further, threat and
intimidation that vitiate the free will – although not involving invasion
of bodily integrity – nevertheless constitute a violation of the right to
security in the sense of "freedom from threat". 21
It must be stressed, however, that such "threat" must find rational
basis on the surrounding circumstances of the case. In this case,
the petition was mainly anchored on the alleged threats against his
life, liberty and security by reason of his inclusion in the military’s
order of battle, the surveillance and monitoring activities made on
him, and the intimidation exerted upon him to compel him to be a
military asset. While as stated earlier, mere threats fall within the
mantle of protection of the writs of amparo and habeas data, in the
petitioner’s case, the restraints and threats allegedly made
allegations lack corroborations, are not supported by independent
and credible evidence, and thus stand on nebulous grounds.
The Court is cognizant of the evidentiary difficulties attendant to a
petition for the issuance of the writs. Unlike, however, the unique
nature of cases involving enforced disappearances or extra-judicial
killings that calls for flexibility in considering the gamut of evidence
presented by the parties, this case sets a different scenario and a
significant portion of the petitioner’s testimony could have been
easily corroborated. In his Sinumpaang Salaysay22dated March 5,
2008 and the Fact Sheet dated December 9, 200723 executed
before the Alliance for the Advancement of People’s Rights-
Southern Tagalog (KARAPATAN-ST), the petitioner stated that
when he was invited and interrogated at the military camp in Naujan,
Oriental Mindoro, he brought with him his uncle Norberto Roxas,
Barangay Captain Mario Ilagan and two of his bodyguards, and
Edwardo Estabillo – five witnesses who can attest and easily
corroborate his statement – but curiously, the petitioner did not
present any piece of evidence, whether documentary or testimonial,
to buttress such claim nor did he give any reason for their non-
presentation.This could have made a difference in light of the
denials made by the respondents as regards the petitioner’s claims.
The existence of an order of battle and inclusion of the petitioner’s
name in it is another allegation by the petitioner that does not find
support on the evidence adduced. The Court notes that such
allegation was categorically denied by respondent Gen. Avelino I.
Razon, Jr. who, in his Affidavit dated March 31, 2008, stated that he
"does not have knowledge about any Armed Forces of the
Philippines (AFP) ‘order of battle’ which allegedly lists the petitioner
as a member of the CPP."24 This was also denied by Pvt. Osio, who
the petitioner identified as the one who told him that he was included
in the order of battle.25 The 2nd Infantry (Jungle Fighter) Division of
the Philippine Army also conducted an investigation pursuant to the
directive of AFP Chief of Staff Gen. Esperon, 26 and it was shown
that the persons identified by the petitioners who allegedly
committed the acts complained of were not connected or assigned
to the 2nd Infantry Division.27
Moreover, the evidence showed that the petitioner’s mobility was
never curtailed. From the time he was allegedly brought to Batangas
in August of 2007 until the time he sought the assistance of
KARAPATAN-ST, there was no restraint upon the petitioner to go
home, as in fact, he went home to Mindoro on several instances.
And while he may have been wary of Pvt. Osio’s presence at the
pier, there was no claim by the petitioner that he was threatened or
prevented by Pvt. Osio from boarding any vehicle that may transport
him back home. The petitioner also admitted that he had a mobile
phone; hence, he had unhampered access to communication and
can readily seek assistance from non-governmental organizations
and even government agencies.
The respondents also belied the petitioner’s claim that they forced
him to become a military informant and instead, alleged that it was
the petitioner who volunteered to be one. Thus, in his Sinumpaang
Salaysay28 executed on March 25, 2008, Pvt. Osio admitted that he
actually knew the petitioner way back in 1998 when they were still
students. He also stated that when he saw the petitioner again in
2007, the latter manifested his intention to become a military
informant in exchange for financial and other forms of assistance.
The petitioner also harps on the alleged "monitoring" activities being
conducted by a certain "Joel", e.g., the latter’s alleged act of
following him, pretending to peddle pandesal and asking him about
his personal circumstances. Such allegation by the petitioner,
however, is, at best, a conclusion on his part, a mere impression
that the petitioner had, based on his personal assessment of the
circumstances. The petitioner even admitted in his testimony before
the CA that when he had a conversation with "Joel" sometime in
July 2007, the latter merely asked him whether he was still
connected with ANAKPAWIS, but he was not threatened "with
anything" and no other incident occurred between them since
then.29 There is clearly nothing on record which shows that "Joel"
committed overt acts that will unequivocally lead to the conclusion
arrived at by the petitioner, especially since the alleged acts
committed by "Joel" are susceptible of different interpretations.
Given that the totality of the evidence presented by the petitioner
failed to support his claims, the reliefs prayed for, therefore, cannot
be granted. The liberality accorded to amparo and habeas data
cases does not mean that a claimant is dispensed with the onus of
proving his case. "Indeed, even the liberal standard of substantial
evidence demands some adequate evidence."30
The President cannot be
automatically dropped as a
respondent pursuant to the doctrine
of command responsibility
In Noriel Rodriguez v. Gloria Macapagal Arroyo, et al.,31 the Court
stated:
a. Command responsibility of the President
Having established the applicability of the doctrine of command
responsibility in amparo proceedings, it must now be resolved
whether the president, as commander-in-chief of the military, can be
held responsible or accountable for extrajudicial killings and
enforced disappearances. We rule in the affirmative.
To hold someone liable under the doctrine of command
responsibility, the following elements must obtain:
205
 a. the existence of a superior-subordinate relationship
between the accused as superior and the perpetrator of
the crime as his subordinate;
b. the superior knew or had reason to know that the crime
was about to be or had been committed; and
c. the superior failed to take the necessary and reasonable
measures to prevent the criminal acts or punish the
perpetrators thereof.
The president, being the commander-in-chief of all armed forces,
necessarily possesses control over the military that qualifies him as
a superior within the purview of the command responsibility
doctrine.
On the issue of knowledge, it must be pointed out that although
international tribunals apply a strict standard of knowledge, i.e.,
actual knowledge, such may nonetheless be established through
circumstantial evidence. In the Philippines, a more liberal view is
adopted and superiors may be charged with constructive
knowledge. This view is buttressed by the enactment of Executive
Order No. 226, otherwise known as the Institutionalization of the
Doctrine of ‘Command Responsibility’ in all Government Offices,
particularly at all Levels of Command in the
Philippine National Police and other Law Enforcement Agencies
(E.O. 226). Under E.O. 226, a government official may be held liable
for neglect of duty under the doctrine of command responsibility if
he has knowledge that a crime or offense shall be committed, is
being committed, or has been committed by his subordinates, or by
others within his area of responsibility and, despite such knowledge,
he did not take preventive or corrective action either before, during,
or immediately after its commission. Knowledge of the commission
of irregularities, crimes or offenses is presumed when (a) the acts
are widespread within the government official’s area of jurisdiction;
(b) the acts have been repeatedly or regularly committed within his
area of responsibility; or (c) members of his immediate staff or office
personnel are involved.
Meanwhile, as to the issue of failure to prevent or punish, it is
important to note that as the commander-in-chief of the armed
forces, the president has the power to effectively command, control
and discipline the military. (Citations omitted)
Pursuant to the doctrine of command responsibility, the President,
as the Commander-in-Chief of the AFP, can be held liable for affront
against the petitioner’s rights to life, liberty and security as long as
substantial evidence exist to show that he or she had exhibited
involvement in or can be imputed with knowledge of the violations,
or had failed to exercise necessary and reasonable diligence in
conducting the necessary investigations required under the
rules.1âwphi1
The Court also stresses that rule that the presidential immunity from
suit exists only in concurrence with the president’s incumbency. 32
Conversely, this presidential privilege of immunity cannot be
invoked by a non-sitting president even for acts committed during
his or her tenure.33 Courts look with disfavor upon the presidential
privilege of immunity, especially when it impedes the search for truth
or impairs the vindication of a right.34
The petitioner, however, is not exempted from the burden of proving
by substantial evidence his allegations against the President to
make the latter liable for either acts or omissions violative of rights
against life, liberty and security. In the instant case, the petitioner
merely included the President’s name as a party respondent without
any attempt at all to show the latter’s actual involvement in, or
knowledge of the alleged violations. Further, prior to the filing of the
petition, there was no request or demand for any investigation that
was brought to the President’s attention. Thus, while the President
cannot be completely dropped as a respondent in a petition for the
privilege of the writs of amparo and habeas data merely on the basis
of the presidential immunity from suit, the petitioner in this case
failed to establish accountability of the President, as commander-in-
chief, under the doctrine of command responsibility.
Compliance with technical rules of
procedure is ideal but it cannot be
accorded primacy
Among the grounds cited by the CA in denying the petition for the
issuance of the writs of amparo and habeas data was the defective
verification which was attached to the petition. In
Tagitis,35 supporting affidavits required under Section 5(c) of the
Rule on the Writ of Amparo were not submitted together with the
petition and it was ruled that the defect was fully cured when the
petitioner and the witness personally testified to prove the truth of
their allegations in the hearings held before the CA. In the instant
case, the defective verification was not the sole reason for the CA’s
denial of the petition for the issuance of the writs of amparo and
habeas data. Nonetheless, it must be stressed that although rules
of procedure play an important rule in effectively administering
justice, primacy should not be accorded to them especially in the
instant case where there was at least substantial compliance with
the requirements and where petitioner himself testified in the
hearings to attest to the veracity of the claims which he stated in his
petition.
To conclude, compliance with technical rules of procedure is ideal
but it cannot be accorded primacy. In the proceedings before the
CA, the petitioner himself testified to prove the veracity of his
allegations which he stated in the petition. Hence, the defect in the
verification attached to the petition. Hence, the defect in the
verification attached to the petition was deemed cured.
WHEREFORE, premises considered, the petitioner's motion for
reconsideration is DENIED WITH FINALITY.
SO ORDERED.
G.R. No. 204528 February 19, 2013
SECRETARY LEILA M. DE LIMA, DIRECTOR NONNATUS R.
ROJAS and DEPUTY DIRECTOR REYNALDO 0.
ESMERALDA, Petitioners,
vs.
MAGTANGGOL B. GATDULA, Respondent.
RESOLUTION
LEONEN, J.:
Submitted for our resolution is a prayer for the issuance of a
temporary restraining order and/or writ of preliminary injunction to
enjoin "the Regional Trial Court, Branch 26, in Manila from
implementing its Decision x x x in Civil Case No. 12-127405 granting
respondent's application for the issuance of inspection and
production orders x x x."1 This is raised through a Petition for
Review on Certiorari under Rule 45 from the "Decision" rendered by
the Regional Trial Court dated 20 March 2012.
From the records, it appears that on 27 February 2012, respondent
Magtanggol B. Gatdula filed a Petition for the Issuance of a Writ of
Amparo in the Regional Trial Court of Manila. 2 This case was
docketed as In the Matter of the Petition for Issuance of Writ of
Amparo of Atty. Magtanggol B. Gatdula, SP No. 12-127405. It was
raffled to the sala of Judge Silvino T. Pampilo, Jr. on the same day.
The Amparo was directed against petitioners Justice Secretary
Leila M. De Lima, Director Nonnatus R. Rojas and Deputy Director
Reynaldo O. Esmeralda of the National Bureau of Investigation (DE
LIMA, ET AL. for brevity). Gatdula wanted De Lima, et al. "to cease
and desist from framing up Petitioner [Gatdula] for the fake ambush
incident by filing bogus charges of Frustrated Murder against
Petitioner [Gatdula] in relation to the alleged ambush incident."3
Instead of deciding on whether to issue a Writ of Amparo, the judge
issued summons and ordered De Lima, et al. to file an Answer.4 He
also set the case for hearing on 1 March 2012. The hearing was
held allegedly for determining whether a temporary protection order
may be issued. During that hearing, counsel for De Lima, et al.
manifested that a Return, not an Answer, is appropriate
for Amparo cases.5
In an Order dated 2 March 2012,6 Judge Pampilo insisted that
"[s]ince no writ has been issued, return is not the required pleading
but answer".7 The judge noted that the Rules of Court apply
suppletorily in Amparo cases.8 He opined that the Revised Rules of
Summary Procedure applied and thus required an Answer. 9
206
Judge Pampilo proceeded to conduct a hearing on the main case
on 7 March 2012.10 Even without a Return nor an Answer, he
ordered the parties to file their respective memoranda within five (5)
working days after that hearing. Since the period to file an Answer
had not yet lapsed by then, the judge also decided that the
memorandum of De Lima, et al. would be filed in lieu of their
Answer.11
On 20 March 2012, the RTC rendered a "Decision" granting the
issuance of the Writ of Amparo. The RTC also granted the interim
reliefs prayed for, namely: temporary protection, production and
inspection orders. The production and inspection orders were in
relation to the evidence and reports involving an on-going
investigation of the attempted assassination of Deputy Director
Esmeralda. It is not clear from the records how these pieces of
evidence may be related to the alleged threat to the life, liberty or
security of the respondent Gatdula.
In an Order dated 8 October 2012, the RTC denied the Motion for
Reconsideration dated 23 March 2012 filed by De Lima, et al.
Petitioners Sec. De Lima, et al. thus came to this Court assailing the
RTC "Decision" dated 20 March 2012 through a Petition for Review
on Certiorari (With Very Urgent Application for the Issuance of a
Temporary Restraining Order/Writ of Preliminary Injunction) via
Rule 45, as enunciated in Section 19 of the Rule on the Writ
of Amparo(A.M. No. 07-9- 12-SC, 25 September 2007), viz:
SEC. 19. Appeal. – Any party may appeal from the final
judgment or order to the Supreme Court under Rule 45. The
appeal may raise questions of fact or law or both. x x x (Emphasis
supplied).
It is the Court’s view that the "Decision" dated 20 March 2012
granting the writ of Amparo is not the judgment or final order
contemplated under this rule. Hence, a Petition for Review under
Rule 45 may not yet be the proper remedy at this time.
The RTC and the Parties must understand the nature of the remedy
of Amparo to put its procedures in the proper context.
The remedy of the Writ of Amparo is an equitable and extraordinary
remedy to safeguard the right of the people to life, liberty 12 and
security13 as enshrined in the 1987 Constitution.14 The Rule on the
Writ of Amparo was issued as an exercise of the Supreme Court's
power to promulgate rules concerning the protection and
enforcement of constitutional rights.15 It aims to address concerns
such as, among others, extrajudicial killings and enforced
disappearances.16
Due to the delicate and urgent nature of these controversies, the
procedure was devised to afford swift but decisive relief. 17 It is
initiated through a petition18 to be filed in a Regional Trial Court,
Sandiganbayan, the Court of Appeals, or the Supreme Court. 19 The
judge or justice then makes an "immediate" evaluation20 of the facts
as alleged in the petition and the affidavits submitted "with the
attendant circumstances detailed".21 After evaluation, the judge has
the option to issue the Writ of Amparo22 or immediately dismiss the
case. Dismissal is proper if the petition and the supporting affidavits
do not show that the petitioner's right to life, liberty or security is
under threat or the acts complained of are not unlawful. On the other
hand, the issuance of the writ itself sets in motion presumptive
judicial protection for the petitioner. The court compels the
respondents to appear before a court of law to show whether the
grounds for more permanent protection and interim reliefs are
necessary.
The respondents are required to file a Return23 after the issuance
of the writ through the clerk of court. The Return serves as the
responsive pleading to the petition.24 Unlike an Answer, the Return
has other purposes aside from identifying the issues in the case.
Respondents are also required to detail the actions they had taken
to determine the fate or whereabouts of the aggrieved party.
If the respondents are public officials or employees, they are also
required to state the actions they had taken to: (i) verify the identity
of the aggrieved party; (ii) recover and preserve evidence related to
the death or disappearance of the person identified in the petition;
(iii) identify witnesses and obtain statements concerning the death
or disappearance; (iv) determine the cause, manner, location, and
time of death or disappearance as well as any pattern or practice
that may have brought about the death or disappearance; and (vi)
bring the suspected offenders before a competent court.25 Clearly
these matters are important to the judge so that s/he can calibrate
the means and methods that will be required to further the
protections, if any, that will be due to the petitioner.
There will be a summary hearing26 only after the Return is filed to
determine the merits of the petition and whether interim reliefs are
warranted. If the Return is not filed, the hearing will be done ex
parte.27 After the hearing, the court will render the judgment within
ten (10) days from the time the petition is submitted for decision. 28
If the allegations are proven with substantial evidence, the court
shall grant the privilege of the writ and such reliefs as may be proper
and appropriate.29 The judgment should contain measures which
the judge views as essential for the continued protection of the
petitioner in the Amparo case. These measures must be detailed
enough so that the judge may be able to verify and monitor the
actions taken by the respondents. It is this judgment that could be
subject to appeal to the Supreme Court via Rule 45.30 After the
measures have served their purpose, the judgment will be satisfied.
In Amparo cases, this is when the threats to the petitioner’s life,
liberty and security cease to exist as evaluated by the court that
renders the judgment. Parenthetically, the case may also be
terminated through consolidation should a subsequent case be filed
– either criminal or civil.31 Until the full satisfaction of the judgment,
the extraordinary remedy of Amparo allows vigilant judicial
monitoring to ensure the protection of constitutional rights.
The "Decision" dated 20 March 2012 assailed by the
petitioners could not be the judgment or final order that is
appealable under Section 19 of the Rule on the Writ of Amparo. This
is clear from the tenor of the dispositive portion of the "Decision", to
wit:
The Branch Clerk of Court of Court [sic] is hereby DIRECTED to
issue the Writ of Amparo.
Likewise, the Branch Clerk of Court is hereby DIRECTED to effect
the service of the Writ of Amparo in an expeditious manner upon all
concerned, and for this purpose may call upon the assistance of any
military or civilian agency of the government.
This "Decision" pertained to the issuance of the writ under Section
6 of the Rule on the Writ of Amparo, not thejudgment under Section
18. The "Decision" is thus an interlocutory order, as suggested by
the fact that temporary protection, production and inspection orders
were given together with the decision. The temporary protection,
production and inspection orders are interim reliefs that may be
granted by the court upon filing of the petition butbefore final
judgment is rendered.32
The confusion of the parties arose due to the procedural
irregularities in the RTC.
First, the insistence on filing of an Answer was inappropriate. It is
the Return that serves as the responsive pleading for petitions for
the issuance of Writs of Amparo. The requirement to file an Answer
is contrary to the intention of the Court to provide a speedy remedy
to those whose right to life, liberty and security are violated or are
threatened to be violated. In utter disregard of the Rule on the Writ
of Amparo, Judge Pampilo insisted on issuing summons and
requiring an Answer.
Judge Pampilo’s basis for requiring an Answer was mentioned in
his Order dated 2 March 2012:
Under Section 25 of the same rule [on the Writ of Amparo], the
Rules of Court shall apply suppletorily insofar as it is not inconsistent
with the said rule.
Considering the summary nature of the petition, Section 5 of the
Revised Rules of Summary Procedure shall apply.
Section 5. Answer – Within ten (10) days from service of summons,
the defendant shall file his Answer to the complaint and serve a copy
thereof on the plaintiff. x x x
WHEREFORE, based on the foregoing, the respondents are
required to file their Answer ten (days) from receipt of this Order. 33
207
The 1991 Revised Rules of Summary Procedure is a special rule
that the Court has devised for the following circumstances:
SECTION 1. Scope. – This rule shall govern the summary
procedure in the Metropolitan Trial Courts, the Municipal Trial
Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit
Trial Courts in the following cases falling within their jurisdiction:
A. Civil Cases:
(1) All cases of forcible entry and unlawful
detainer, x x x.
(2) All other cases, except probate proceedings,
where the total amount of the plaintiff’s claim
does not exceed x x x.
B. Criminal Cases:
(1) Violations of traffic laws, rules and
regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding six months, or a
fine not exceeding one thousand pesos
(P1,000.00), or both, x x x.
xxxx
It is clear from this rule that this type of summary procedure only
applies to MTC/MTCC/MCTCs. It is mind-boggling how this rule
could possibly apply to proceedings in an RTC. Aside from that, this
Court limited the application of summary procedure to
certain civil and criminal cases. A writ of Amparo is a special
proceeding. It is a remedy by which a party seeks to establish a
status, a right or particular fact.34 It is not a civil nor a criminal action,
hence, the application of the Revised Rule on Summary Procedure
is seriously misplaced.
The second irregularity was the holding of a hearing on the main
case prior to the issuance of the writ and the filing of a Return.
Without a Return, the issues could not have been properly joined.
Worse, is the trial court’s third irregularity: it required a
memorandum in lieu of a responsive pleading (Answer) of De Lima,
et al.
The Return in Amparo cases allows the respondents to frame the
issues subject to a hearing. Hence, it should be done prior to the
hearing, not after. A memorandum, on the other hand, is a synthesis
of the claims of the party litigants and is a final pleading usually
required before the case is submitted for decision. One cannot
substitute for the other since these submissions have different
functions in facilitating the suit.
More importantly, a memorandum is a prohibited pleading under the
Rule on the Writ of Amparo.35
The fourth irregularity was in the "Decision" dated 20 March 2012
itself. In the body of its decision, the RTC stated:
"Accordingly this court GRANTS the privilege of the writ and
the interim reliefs prayed for by the petitioner." (Emphasis
supplied).
This gives the impression that the decision was the judgment since
the phraseology is similar to Section 18 of the Rule on the Writ
of Amparo:
"SEC. 18. Judgment. — The court shall render judgment within ten
(10) days from the time the petition is submitted for decision. If the
allegations in the petition are proven by substantial evidence, the
court shall grant the privilege of the writ and such reliefs as may
be proper and appropriate; otherwise, the privilege shall be denied."
(Emphasis supplied).
The privilege of the Writ of Amparo should be distinguished from
the actual order called the Writ of Amparo. The privilege includes
availment of the entire procedure outlined in A.M. No. 07-9-12-SC,
the Rule on the Writ ofAmparo. After examining the petition and its
attached affidavits, the Return and the evidence presented in the
summary hearing, the judgment should detail the required acts from
the respondents that will mitigate, if not totally eradicate, the
violation of or the threat to the petitioner's life, liberty or security.
A judgment which simply grants "the privilege of the writ" cannot be
executed.1âwphi1 It is tantamount to a failure of the judge to
intervene and grant judicial succor to the petitioner. Petitions filed to
avail of the privilege of the Writ ofAmparo arise out of very real and
concrete circumstances. Judicial responses cannot be as tragically
symbolic or ritualistic as "granting the privilege of the Writ
of Amparo."
The procedural irregularities in the RTC affected the mode of appeal
that petitioners used in elevating the matter to this Court.
It is the responsibility of counsels for the parties to raise issues using
the proper procedure at the right time. Procedural rules are meant
to assist the parties and courts efficiently deal with the substantive
issues pertaining to a case. When it is the judge himself who
disregards the rules of procedure, delay and confusion result.
The Petition for Review is not the proper remedy to assail the
interlocutory order denominated as "Decision" dated 20 March
2012. A Petition for Certiorari, on the other hand, is
prohibited.36 Simply dismissing the present petition, however, will
cause grave injustice to the parties involved. It undermines the
salutary purposes for which the Rule on the Writ of Amparo were
promulgated.
In many instances, the Court adopted a policy of liberally construing
its rules in order to promote a just, speedy and inexpensive
disposition of every action and proceeding. 37 The rules can be
suspended on the following grounds: (1) matters of life, liberty,
honor or property, (2) the existence of special or compelling
circumstances, (3) the merits of the case, (4) a cause not entirely
attributable to the fault or negligence of the party favored by the
suspension of the rules, (5) a lack of any showing that the review
sought is merely frivolous and dilatory, and (6) the other party will
not be unjustly prejudiced thereby.38
WHEREFORE, in the interest of justice, as a prophylactic to the
irregularities committed by the trial court judge, and by virtue of its
powers under Article VIII, Section 5 (5) of the Constitution, the
Court RESOLVES to:
(1) NULLIFY all orders that are subject of
this Resolution issued by Judge Silvino T. Pampilo, Jr.
after respondent Gatdula filed the Petition for the Issuance
of a Writ of Amparo;
(2) DIRECT Judge Pampilo to determine within forty-eight
(48) hours from his receipt of this Resolutionwhether the
issuance of the Writ of Amparo is proper on the basis of
the petition and its attached affidavits.
The Clerk of Court is DIRECTED to cause the personal service of
this Resolution on Judge Silvino T. Pampilo, Jr. of Branch 26 of the
Regional Trial Court of Manila for his proper guidance together with
a WARNING that further deviation or improvisation from the
procedure set in A.M. No. 07-9-12-SC shall be meted with severe
consequences.
SO ORDERED.
G.R. No. 183460 March 12, 2013
Spouses NERIO and SOLEDAD PADOR and REY
PADOR, Petitioners,
vs.
Barangay Captain BERNABE ARCAYAN, Barangay Tanod
CHIEF ROMEO PADOR, Barangay Tanods ALBERTO ALIVIO,
CARMELO REVALES, ROBERTO ALIMORIN, WINELO
208
ARCAYAN, CHRISTOPHER ALIVIO & BIENVENIDO ARCAYAN,
all of Barangay Tabunan, Cebu City, Respondents.
DECISION
SERENO, J.:
This Petition for Review on Certiorari1 assails the Resolution2 of the
Regional Trial Court (RTC), Branch 17, Cebu City, in Spec. Proc.
No. 16061-CEB. The RTC Resolution denied the Petition for a Writ
of Amparo filed by petitioner-spouses Nerio and Soledad Pador and
Rey Pador against respondents - Barangay Captain Bernabe
Arcayan, Barangay Tanod Chief Romeo Pador, and Barangay
Tanods Alberto Alivio, Carmela Revales, Roberto Alimorin, Winelo
Arcayan, Christopher Alivio and Bienvenido Arcayan.
On 22 March 2008, petitioners filed with the RTC a Verified Petition
for the Issuance of a Writ of Amparo.3
Petitioners alleged that in February 2008, rumors circulated that
petitioner Nerio Pador was a marijuana planter in Barangay
Tabunan, Cebu City.4 On 17 March 2008, respondents Alberto
Alivio, Carmelo Revales and Roberto Alimorin raided their ampalaya
farm to search for marijuana plants, but found none.5 After the raid,
petitioners Nerio and Rey Pador received invitation letters for a
conference from respondent Barangay Captain Arcayan. 6 They
referred the invitation letters to their counsel, who advised them not
to attend and, instead, send a letter-reply to Barangay Captain
Arcayan. When the latter received the letter-reply, he allegedly read
its contents, got one copy, and refused to sign a receipt of the
document.7 Petitioners then concluded that the conduct of the raid,
the sending of the invitation letters, the refusal of respondent
barangay captain to receive their letter-reply – as well as the
possibility of more harassment cases, false accusations, and
possible violence from respondents – gravely threatened their right
to life, liberty and security and necessitated the issuance of a writ of
amparo.8
After examining the contents of the petition and the affidavits
attached to it, the RTC issued the Writ and directed respondents to
make a verified return.9
In compliance with the RTC’s directive, respondents filed their
Verified Return and/or Comment.10 In their counter-statement of
facts, they alleged that on 16 March 2008, respondent Winelo
Arcayan received a report regarding the alleged existence of a
marijuana plantation in a place called Sitio Gining in Barangay
Tabunan.11 He then referred the matter to Barangay Tanod Chief
Romeo Pador and Barangay Captain Arcayan, who commenced to
organize a patrol.12
On the morning of 17 March 2008, while the barangay tanods were
having a final briefing, Carmelo Revales left the place to take his
breakfast.13 While he was taking his breakfast, Nerio Pador, who
was riding a motorcycle, stopped and accused the former of
uprooting the marijuana plants.14 Carmelo denied any knowledge
about the incident, and Nerio thereafter threatened to have him
killed. Carmelo promptly reported this threat to the other barangay
tanods.15
Respondents recounted that, notwithstanding Nerio’s actions, they
proceeded to patrol the area.16 When they passed by the house of
Nerio, he angrily uttered in Cebuano, "If I will be informed who
reported the matter to the police, I will attack the informant."
Carmelo then asked him, "Who reported to you?" Nerio replied, "I
will tell you later once I will be captured by police authorities. All of
us will be dead this afternoon. I want a shoot out!"17
Respondents thereafter commenced their patrol of a place owned
by a certain David Quintana, but their rounds yielded a negative
result.18
Later that evening, while respondent Alberto Alivio was passing by
the house of Nerio, the latter threatened to kill him, saying, "I want
to kill now!"19 Alberto then asked him, "Who reported to you so that
the truth will come out?" Nerio then punched the door of his house
and said, "I will tell you later when I will be captured by the police
authorities!" Alberto then left the place and reported the matter to
respondent Barangay Captain Arcayan.20
In response to the reports, Barangay Captain Arcayan stated that
he ordered his secretary to prepare invitation letters for petitioners
Nerio and Rey Pador, as the allegations of threats and intimidation
made by Nerio against some of the barangay tanods were serious.
Barangay Captain Arcayan explained that he no longer signed a
copy of petitioners’ letter-reply, as he had already been given a copy
of it.21
The RTC then heard the Petition. On 3 July 2008, it issued the
assailed Resolution22 finding that petitioners’ claims were based
merely on hearsay, speculations, surmises and conjectures, and
that respondents had sufficiently explained the reason behind the
issuance of the letters of invitation. It thereafter proceeded to deny
petitioners the privilege of the writ of amparo. 23
Dissatisfied with the ruling of the RTC, petitioners filed the instant
Petition for Review24 before this Court, ascribing grave and serious
error on the part of the trial court.25
The Court’s Ruling
We uphold the RTC’s Resolution and deny the instant Petition.
Section 1 of the Rule on the Writ of Amparo26 provides for the
grounds that may be relied upon in a petition therefor, as follows:
SEC. 1. Petition. – The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission
of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances
or threats thereof.
Thus, to be entitled to the privilege of the writ, petitioners must prove
by substantial evidence27 that their rights to life, liberty and security
are being violated or threatened by an unlawful act or omission.
A closer look at the instant Petition shows that it is anchored on the
following allegations: first, that respondents conducted a raid on the
property of petitioner based on information that the latter were
cultivators of marijuana; second, that respondent barangay captain
sent them invitation letters without stating the purpose of the
invitation; third, that respondent barangay captain refused to receive
petitioners’ letter-reply; and fourth, that petitioners anticipate the
possibility of more harassment cases, false accusations, and
potential violence from respondents.
All these allegations are insufficient bases for a grant of the privilege
of the writ.
On the first allegation, we find that the supposed raid on petitioners’
ampalaya farm was sufficiently controverted by respondents.
Respondents alleged, and the trial court found, that a roving patrol
was conducted, not on the ampalaya farm of Nerio Pador, but on an
area locally called Sitio Gining, which was beside the lot possessed
by David Quintana.28
Assuming, however, that respondents had in fact entered the
ampalaya farm, petitioner Rey Pador himself admitted that they had
done so with his permission, as stated in his affidavit:
5. Around 8:00 a.m., I saw Tabunan barangay tanod Roberto
Alimorin. I greeted him good morning. He told me that there are
reports that marijuana plants were grown at our ampalaya farm and
that there is already a raid.
6. Being innocent and nothing to hide, I allowed Mr. Alimorin to
search the ampalaya farm for marijuana plants. 29
Finally, even assuming that the entry was done without petitioners’
permission, we cannot grant the privilege of the writ of amparo
based upon a trespass on their ampalaya farm. Granting that the
intrusion occurred, it was merely a violation of petitioners’ property
rights. In Tapuz v. Del Rosario,30 we ruled that the writ of amparo
does not envisage the protection of concerns that are purely
property or commercial in nature, as follows:
209
The writ of amparo was originally conceived as a response to the
extraordinary rise in the number of killings and enforced
disappearances, and to the perceived lack of available and effective
remedies to address these extraordinary concerns. It is intended to
address violations of or threats to the rights to life, liberty or security,
as an extraordinary and independent remedy beyond those
available under the prevailing Rules, or as a remedy supplemental
to these Rules. What it is not, is a writ to protect concerns that are
purely property or commercial. Neither is it a writ that we shall issue
on amorphous and uncertain grounds.31 x x x. (Emphasis in the
original)
We therefore rule that the alleged intrusion upon petitioners’
ampalaya farm is an insufficient ground to grant the privilege of the
writ of amparo.
On petitioners’ second and third allegations, we find that the
barangay captain’s act of sending invitation letters to petitioners and
failure to sign the receiving copy of their letter-reply did not violate
or threaten their constitutional right to life, liberty or security. The
records show that Barangay Captain Arcayan sufficiently explained
the factual basis for his actions. Moreover, the records are bereft of
any evidence that petitioners were coerced to attend the conference
through the use of force or intimidation. On the contrary, they had
full freedom to refuse to attend the conference, as they have in fact
done in this case.1âwphi1
The fourth allegation of petitioner – that, following these events, they
can anticipate more harassment cases, false accusations and
possible violence from respondents – is baseless, unfounded, and
grounded merely on pure speculations and conjectures. As such,
this allegation does not warrant the consideration of this Court.
On a final note, we reiterate that the privilege of the writ of amparo
is an extraordinary remedy adopted to address the special concerns
of extra-legal killings and enforced disappearances. "Accordingly,
the remedy ought to be resorted to and granted judiciously, lest the
ideal sought by the Amparo Rule be diluted and undermined by the
indiscriminate filing of amparo petitions for purposes less than the
desire to secure amparo reliefs and protection and/or on the basis
of unsubstantiated allegations."32
WHEREFORE, premises considered, the instant Petition for Review
is DENIED. The 3 July 2008 Resolution of the Regional Trial Court,
Branch 17, Cebu City, in Spec. Proc. No. 16061-CEB is AFFIRMED.
SO ORDERED.
G.R. No. 191805 April 16, 2013
IN THE MATTER OF THE PETITION FOR THE WRIT OF
AMPARO AND HABEAS DATA IN FAVOR OF NORIEL
RODRIGUEZ, NORIEL RODRIGUEZ, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO,
PDG JESUS AME VERSOZA, LT. GEN. DELFIN BANGIT, MAJ.
GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO,
P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, an
officer named MATUTINA, LT. COL. MINA, CALOG, GEORGE
PALACPAC under the name "HARRY," ANTONIO CRUZ,
ALDWIN "BONG" PASICOLAN and VINCENT
CALLAGAN,Respondents.
x-----------------------x
G.R. No. 193160
IN THE MATTER OF THE PETITION FOR THE WRIT OF
AMPARO AND HABEAS DATA IN FAVOR OF NORIEL
RODRIGUEZ, POLICE DIR. GEN. JESUS A. VERSOZA,
P/SSUPT. JUDE W. SANTOS, BGEN. REMEGIO M. DE VERA,
1ST LT. RYAN S. MATUTINA, LT. COL. LAURENCE E. MINA,
ANTONIO C. CRUZ, ALDWIN C. PASICOLAN and VICENTE A.
CALLAGAN, Petitioners,
vs.
NORIEL H. RODRIGUEZ, Respondent.
RESOLUTION
SERENO, CJ.:
On 15 November 2011, the Court promulgated its Decision in the
present case, the dispositive portion of which reads:
WHEREFORE, we resolve to GRANT the Petition for Partial Review
in G.R. No. 191805 and DENY the Petition for Review in G.R. No.
193160. The Decision of the Court of Appeals is hereby AFFIRMED
WITH MODIFICATION.
The case is dismissed with respect to respondents former President
Gloria Macapagal-Arroyo, P/CSupt. Ameto G. Tolentino, and
P/SSupt. Jude W. Santos, Calog, George Palacpac, Antonio Cruz,
Aldwin Pasicolan and Vincent Callagan for lack of merit.
This Court directs the Office of the Ombudsman (Ombudsman) and
the Department of Justice (DOJ) to take the appropriate action with
respect to any possible liability or liabilities, within their respective
legal competence, that may have been incurred by respondents
Gen. Victor lbrado, PDG. Jesus Verzosa, Lt. Gen. Delfin Bangit,
Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio De Vera, 1st Lt. Ryan
Matutina, and Lt. Col. Laurence Mina. The Ombudsman and the
DOJ are ordered to submit to this Court the results of their action
within a period of six months from receipt of this Decision.
In the event that herein respondents no longer occupy their
respective posts, the directives mandated in this Decision and in the
Court of Appeals are enforceable against the incumbent officials
holding the relevant positions. Failure to comply with the foregoing
shall constitute contempt of court.
SO ORDERED.
After a careful examination of the records, the Court was convinced
that the Court of Appeals correctly found sufficient evidence proving
that the soldiers of the 17th Infantry Battalion, 5th Infantry Division
of the military abducted petitioner Rodriguez on 6 September 2009,
and detained and tortured him until 17 September 2009.
Pursuant to the Decision ordering the Office of the Ombudsman to
take further action, Ombudsman Conchita Carpio Morales sent this
Court a letter dated 23 May 2012, requesting an additional two-
month period, or until 24 July 2012, within which to submit a report.
The Ombudsman stated that Noriel Rodriguez (Rodriguez) and his
family refused to cooperate with the investigation for security
reasons.
On 6 January 2012, respondents filed their Motion for
Reconsideration,1 arguing that the soldiers belonging to the 17th
Infantry Battalion, 5th Infantry Division of the military cannot be held
accountable for authoring the abduction and torture of petitioner.
Their arguments revolve solely on the claim that respondents were
never specifically mentioned by name as having performed,
permitted, condoned, authorized, or allowed the commission of any
act or incurrence omission which would violate or threaten with
violation the rights to life, liberty, and security of petitioner-
respondent and his family.2
On 18 January 2013, the Ombudsman submitted the Investigation
Report, as compliance with the Court’s directive to take appropriate
action with respect to possible liabilities respondents may have
incurred. The exhaustive report detailed the steps taken by the Field
Investigation Office (FIO) of the Office of the Ombudsman,
concluding that no criminal, civil, or administrative liabilities may be
imputed to the respondents. It was reflected therein that the lawyers
for the Rodriguezes had manifested to the FIO that the latter are
hesitant to appear before them for security reasons, viz:
Karapatan (a non-governmental organization that provides legal
assistance to victims of human rights violations and their families)
could not locate Noriel and Rodel. As of this writing, the Rodriguezes
refused to participate in the present fact-finding investigation ‘for
security reasons.’ Atty. Yambot disclosed (through a Manifestation
dated March 30, 2012 that despite efforts to convince Noriel to
participate in the present proceedings, the latter ‘remains
unconvinced and unwilling to this date.’
210
Recent information, however, revealed that Noriel and his family are
no longer interested in participating in the present case.
Instead of appearing before this Office for a conference under oath,
SPO1 Robert B. Molina submitted an Affidavit dated June 13, 2012
stating that on September 15, 2009, at around 11:00 o’clock in the
morning, Wilma H. Rodriguez appeared before the Gonzaga Police
Station and requested to enter into the blotter that her son, Noriel,
was allegedly missing in Sitio Comunal, Gonzaga, Cagayan.
Thereupon, he gathered information relative to Wilma’s report "but
the community residence failed to reveal anything". 3
The other accounts – specifically that of respondent Antonino C.
Cruz, Special Investigator II of the Commission on Human Rights
(CHR), as well as the claims of respondents Mina and De Vera that
they had disclosed to the CHR that Noriel had become an agent
("asset") of the 17th Infantry Battalion – have been thoroughly
evaluated and ruled upon in our Decision. The OMB further laments,
"If only he (Noriel) could be asked to verify the circumstances under
which he executed these subsequent affidavits, his inconsistent
claims will finally be settled," and that "(I)f there is one person who
can attest on whether detention and torture were indeed committed
by any of the Subjects herein, it is Noriel Rodriguez himself, the
supposed victim."4
The purported unwillingness of the petitioner to appear or participate
at this stage of the proceedings due to security reasons does not
affect the rationale of the writ granted by the CA, as affirmed by this
Court. In any case, the issue of the existence of criminal, civil, or
administrative liability which may be imputed to the respondents is
not the province of amparo proceedings -- rather, the writ serves
both preventive and curative roles in addressing the problem of
extrajudicial killings and enforced disappearances. It is preventive
in that it breaks the expectation of impunity in the commission of
these offenses, and it is curative in that it facilitates the subsequent
punishment of perpetrators by inevitably leading to subsequent
investigation and action.5 In this case then, the thrust of ensuring
that investigations are conducted and the rights to life, liberty, and
security of the petitioner, remains.
We deny the motion for reconsideration.
The writ of amparo partakes of a summary proceeding that requires
only substantial evidence to make the appropriate interim and
permanent reliefs available to the petitioner. As explained in the
Decision, it is not an action to determine criminal guilt requiring proof
beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or even administrative responsibility
requiring substantial evidence. The totality of evidence as a
standard for the grant of the writ was correctly applied by this Court,
as first laid down in Razon v. Tagitis:
The fair and proper rule, to our mind, is to consider all the pieces of
evidence adduced in their totality, and to consider any evidence
otherwise inadmissible under our usual rules to be admissible if it is
consistent with the admissible evidence adduced. In other words,
we reduce our rules to the most basic test of reason – i.e., to the
relevance of the evidence to the issue at hand and its consistency
with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum
test.6 (Emphasis supplied.)
No reversible error may be attributed to the grant of the privilege of
the writ by the CA, and the present motion for reconsideration raises
no new issues that would convince us otherwise.
Respondents’ claim that they were not competently identified as the
soldiers who abducted and detained the petitioner, or that there was
no mention of their names in the documentary evidence, is
baseless. The CA rightly considered Rodriguez’s Sinumpaang
Salaysay7 as a meticulous and straightforward account of his
horrific ordeal with the military, detailing the manner in which he was
captured and maltreated on account of his suspected membership
in the NPA.8
Petitioner narrated that at dawn on 9 September 2009, he noticed a
soldier with the name tag "Matutina," who appeared to be an official
because the other soldiers addressed him as "sir."9 He saw
Matutina again at 11:00 p.m. on 15 September 2009, when his
abductors took him to a military operation in the mountains. His
narration of his suffering included an exhaustive description of his
physical surroundings, personal circumstances, and perceived
observations. He likewise positively identified respondents 1st Lt.
Matutina and Lt. Col. Mina to be present during his abduction,
detention and torture.10 These facts were further corroborated by
Hermie Antonio Carlos in his Sinumpaang Salaysay dated 16
September 2009,11 wherein he recounted in detail the
circumstances surrounding the victim’s capture.
Respondents’ main contention in their Return of the Writ was
correctly deemed illogical and contradictory by the CA. They claim
that Rodriguez had complained of physical ailments due to activities
in the CPP-NPA, yet nevertheless signified his desire to become a
double-agent for the military. The CA stated:
In the Return of the Writ, respondent AFP members alleged that
petitioner confided to his military handler, Cpl. Navarro, that
petitioner could no longer stand the hardships he experienced in the
wilderness, and that he wanted to become an ordinary citizen again
because of the empty promises of the CPP-NPA. However, in the
same Return, respondents state that petitioner agreed to become a
double agent for the military and wanted to re-enter the CPP-NPA,
so that he could get information regarding the movement directly
from the source. If petitioner was tired of life in the wilderness and
desired to become an ordinary citizen again, it defies logic that he
would agree to become an undercover agent and work alongside
soldiers in the mountains – or the wilderness he dreads – to locate
the hideout of his alleged NPA comrades.12 (Emphasis supplied.)
Respondents conveniently neglect to address the findings of both
the CA and this Court that aside from the abduction of Rodriguez,
respondents, specifically 1st Lt. Matutina, had violated and
threatened the former’s right to security when they made a visual
recording of his house, as well as the photos of his relatives. The
CA found that the soldiers even went as far as taking videos of the
photos of petitioner’s relatives hung on the wall of the house, and
the innermost portions of the house.13 There is no reasonable
justification for this violation of the right to privacy and security of
petitioner’s abode, which strikes at the very heart and rationale of
the Rule on the Writ of Amparo. More importantly, respondents also
neglect to address our ruling that the failure to conduct a fair and
effective investigation similarly amounted to a violation of, or threat
to Rodriguez’s rights to life, liberty, and security. 14
The writ’s curative role is an acknowledgment that the violation of
the right to life, liberty, and security may be caused not only by a
public official’s act, but also by his omission. Accountability may
attach to respondents who are imputed with knowledge relating to
the enforced disappearance and who carry the burden of disclosure;
or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced
disappearance.15 The duty to investigate must be undertaken in a
serious manner and not as a mere formality preordained to be
ineffective.16
The CA found that respondents Gen. Ibrado, PDG Verzosa, LT.
Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera, and Lt. Col. Mina
conducted a perfunctory investigation which relied solely on the
accounts of the military. Thus, the CA correctly held that the
investigation was superficial, one-sided, and depended entirely on
the report prepared by 1st Lt. Johnny Calub. No efforts were
undertaken to solicit petitioner’s version of the incident, and no
witnesses were questioned regarding it. 17 The CA also took into
account the palpable lack of effort from respondent Versoza, as the
chief of the Philippine National Police.
WHEREFORE, in view of the foregoing, the Motion for
Reconsideration is hereby DENIED with FINALITY. Let a copy of
this Resolution be furnished the Ombudsman for whatever
appropriate action she may still take under circumstances.
SO ORDERED.
G.R. No. 193636 July 24, 2012
211
MARYNETTE R. GAMBOA, Petitioner,
vs.
P/SSUPT. MARLOU C. CHAN, in his capacity as the PNP-
Provincial Director of Ilocos Norte, and P/SUPT. WILLIAM 0.
FANG, in his capacity as Chief, Intelligence Division, PNP
Provincial Office, Ilocos Norte,Respondents.
DECISION
SERENO, J.:
Before this Court is an Appeal by Certiorari (Under Rule 45 of the
Rules of Court) filed pursuant to Rule 191 of the Rule on the Writ of
Habeas Data,2 seeking a review of the 9 September 2010 Decision
in Special Proc. No. 14979 of the Regional Trial Court, First Judicial
Region, Laoag City, Branch 13 (RTC Br. 13). 3 The questioned
Decision denied petitioner the privilege of the writ of habeas data.4
At the time the present Petition was filed, petitioner Marynette R.
Gamboa (Gamboa) was the Mayor of Dingras, Ilocos
Norte.5 Meanwhile, respondent Police Senior Superintendent
(P/SSUPT.) Marlou C. Chan was the Officer-in-Charge, and
respondent Police Superintendent (P/SUPT.) William O. Fang was
the Chief of the Provincial Investigation and Detective Management
Branch, both of the Ilocos Norte Police Provincial Office. 6
On 8 December 2009, former President Gloria Macapagal-Arroyo
issued Administrative Order No. 275 (A.O. 275), "Creating an
Independent Commission to Address the Alleged Existence of
Private Armies in the Country."7 The body, which was later on
referred to as the Zeñarosa Commission,8 was formed to investigate
the existence of private army groups (PAGs) in the country with a
view to eliminating them before the 10 May 2010 elections and
dismantling them permanently in the future. 9 Upon the conclusion of
its investigation, the Zeñarosa Commission released and submitted
to the Office of the President a confidential report entitled "A Journey
Towards H.O.P.E.: The Independent Commission Against Private
Armies’ Report to the President" (the Report). 10
Gamboa alleged that the Philippine National Police in Ilocos Norte
(PNP–Ilocos Norte) conducted a series of surveillance operations
against her and her aides,11 and classified her as someone who
keeps a PAG.12Purportedly without the benefit of data verification,
PNP–Ilocos Norte forwarded the information gathered on her to the
Zeñarosa Commission,13 thereby causing her inclusion in the
Report’s enumeration of individuals maintaining PAGs. 14 More
specifically, she pointed out the following items reflected therein:
(a) The Report cited the PNP as its source for the portion
regarding the status of PAGs in the Philippines. 15
(b) The Report stated that "x x x the PNP organized one
dedicated Special Task Group (STG) for each private
armed group (PAG) to monitor and counteract their
activities."16
(c) Attached as Appendix "F" of the Report is a tabulation
generated by the PNP and captioned as "Status of PAGs
Monitoring by STGs as of April 19, 2010," which classifies
PAGs in the country according to region, indicates their
identity, and lists the prominent personalities with whom
these groups are associated.17 The first entry in the table
names a PAG, known as the Gamboa Group, linked to
herein petitioner Gamboa.18
(d) Statistics on the status of PAGs were based on data
from the PNP, to wit:
The resolutions were the subject of a national press
conference held in Malacañang on March 24, 2010 at
which time, the Commission was also asked to comment
on the PNP report that out of one hundred seventeen
(117) partisan armed groups validated, twenty-four (24)
had been dismantled with sixty-seven (67) members
apprehended and more than eighty-six (86) firearms
confiscated.
Commissioner Herman Basbaño qualified that said
statistics were based on PNP data but that the more
significant fact from his report is that the PNP has been
vigilant in monitoring the activities of these armed groups
and this vigilance is largely due to the existence of the
Commission which has continued communicating with the
Armed Forces of the Philippines (AFP) and PNP
personnel in the field to constantly provide data on the
activities of the PAGs. Commissioner Basbaño stressed
that the Commission’s efforts have preempted the
formation of the PAGs because now everyone is aware
that there is a body monitoring the PAGs movement
through the PNP. Commissioner Lieutenant General
Edilberto Pardo Adan also clarified that the PAGs are
being destabilized so that their ability to threaten and sow
fear during the election has been considerably
weakened.19
(e) The Report briefly touched upon the validation system
of the PNP:
Also, in order to provide the Commission with accurate data which
is truly reflective of the situation in the field, the PNP complied with
the Commission’s recommendation that they revise their validation
system to include those PAGs previously listed as dormant. In the
most recent briefing provided by the PNP on April 26, 2010, there
are one hundred seven (107) existing PAGs. Of these groups, the
PNP reported that seven (7) PAGs have been reorganized. 20
On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news
program the portion of the Report naming Gamboa as one of the
politicians alleged to be maintaining a PAG.21 Gamboa averred that
her association with a PAG also appeared on print media. 22 Thus,
she was publicly tagged as someone who maintains a PAG on the
basis of the unverified information that the PNP-Ilocos Norte
gathered and forwarded to the Zeñarosa Commission.23 As a result,
she claimed that her malicious or reckless inclusion in the
enumeration of personalities maintaining a PAG as published in the
Report also made her, as well as her supporters and other people
identified with her, susceptible to harassment and police
surveillance operations.24
Contending that her right to privacy was violated and her reputation
maligned and destroyed, Gamboa filed a Petition dated 9 July 2010
for the issuance of a writ of habeas data against respondents in their
capacities as officials of the PNP-Ilocos Norte.25 In her Petition, she
prayed for the following reliefs: (a) destruction of the unverified
reports from the PNP-Ilocos Norte database; (b) withdrawal of all
information forwarded to higher PNP officials; (c) rectification of the
damage done to her honor; (d) ordering respondents to refrain from
forwarding unverified reports against her; and (e) restraining
respondents from making baseless reports.26
The case was docketed as Special Proc. No. 14979 and was raffled
to RTC Br. 13, which issued the corresponding writ on 14 July 2010
after finding the Petition meritorious on its face.27 Thus, the trial
court (a) instructed respondents to submit all information and
reports forwarded to and used by the Zeñarosa Commission as
basis to include her in the list of persons maintaining PAGs; (b)
directed respondents, and any person acting on their behalf, to
cease and desist from forwarding to the Zeñarosa Commission, or
to any other government entity, information that they may have
gathered against her without the approval of the court; (c) ordered
respondents to make a written return of the writ together with
supporting affidavits; and (d) scheduled the summary hearing of the
case on 23 July 2010.28
In their Return of the Writ, respondents alleged that they had acted
within the bounds of their mandate in conducting the investigation
and surveillance of Gamboa.29 The information stored in their
database supposedly pertained to two criminal cases in which she
was implicated, namely: (a) a Complaint for murder and frustrated
murder docketed as NPS DOC No. 1-04-INQ-091-00077, and (b) a
Complaint for murder, frustrated murder and direct assault upon a
person in authority, as well as indirect assault and multiple
attempted murder, docketed as NPS DOCKET No. 1-04-INV-10-A-
00009.30
212
Respondents likewise asserted that the Petition was incomplete for
failing to comply with the following requisites under the Rule on the
Writ of Habeas Data: (a) the manner in which the right to privacy
was violated or threatened with violation and how it affected the right
to life, liberty or security of Gamboa; (b) the actions and recourses
she took to secure the data or information; and (c) the location of
the files, registers or databases, the government office, and the
person in charge, in possession or in control of the data or
information.31 They also contended that the Petition for Writ of
Habeas Data, being limited to cases of extrajudicial killings and
enforced disappearances, was not the proper remedy to address
the alleged besmirching of the reputation of Gamboa. 32
RTC Br. 13, in its assailed Decision dated 9 September 2010,
dismissed the Petition.33 The trial court categorically ruled that the
inclusion of Gamboa in the list of persons maintaining PAGs, as
published in the Report, constituted a violation of her right to privacy,
to wit:
In this light, it cannot also be disputed that by her inclusion in the list
of persons maintaining PAGs, Gamboa’s right to privacy indubitably
has been violated. The violation understandably affects her life,
liberty and security enormously. The untold misery that comes with
the tag of having a PAG could even be insurmountable. As she
essentially alleged in her petition, she fears for her security that at
any time of the day the unlimited powers of respondents may likely
be exercised to further malign and destroy her reputation and to
transgress her right to life.
By her inclusion in the list of persons maintaining PAGs, it is likewise
undisputed that there was certainly intrusion into Gamboa’s
activities. It cannot be denied that information was gathered as basis
therefor. After all, under Administrative Order No. 275, the Zeñarosa
Commission was tasked to investigate the existence of private
armies in the country, with all the powers of an investigative body
under Section 37, Chapter 9, Book I of the Administrative Code of
1987.
xxx xxx xxx
By her inclusion in the list of persons maintaining PAGs, Gamboa
alleged as she accused respondents, who are public officials, of
having gathered and provided information that made the Zeñarosa
Commission to include her in the list. Obviously, it was this gathering
and forwarding of information supposedly by respondents that
petitioner barks at as unlawful. x x x.34
Despite the foregoing findings, RTC Br. 13 nevertheless dismissed
the Petition on the ground that Gamboa failed to prove through
substantial evidence that the subject information originated from
respondents, and that they forwarded this database to the Zeñarosa
Commission without the benefit of prior verification. 35 The trial court
also ruled that even before respondents assumed their official
positions, information on her may have already been
acquired.36 Finally, it held that the Zeñarosa Commission, as the
body tasked to gather information on PAGs and authorized to
disclose information on her, should have been impleaded as a
necessary if not a compulsory party to the Petition.37
Gamboa then filed the instant Appeal by Certiorari dated 24
September 2010,38 raising the following assignment of errors:
1. The trial court erred in ruling that the Zeñarosa
Commission be impleaded as either a necessary or
indispensable party;
2. The trial court erred in declaring that Gamboa failed to
present sufficient proof to link respondents as the
informant to [sic] the Zeñarosa Commission;
3. The trial court failed to satisfy the spirit of Habeas Data;
4. The trial court erred in pronouncing that the reliance of
the Zeñarosa Commission to [sic] the PNP as alleged by
Gamboa is an assumption;
5. The trial court erred in making a point that respondents
are distinct to PNP as an agency.39
On the other hand, respondents maintain the following arguments:
(a) Gamboa failed to present substantial evidence to show that her
right to privacy in life, liberty or security was violated, and (b) the trial
court correctly dismissed the Petition on the ground that she had
failed to present sufficient proof showing that respondents were the
source of the report naming her as one who maintains a PAG. 40
Meanwhile, Gamboa argues that although A.O. 275 was a lawful
order, fulfilling the mandate to dismantle PAGs in the country should
be done in accordance with due process, such that the gathering
and forwarding of unverified information on her must be considered
unlawful.41 She also reiterates that she was able to present
sufficient evidence showing that the subject information originated
from respondents.42
In determining whether Gamboa should be granted the privilege of
the writ of habeas data, this Court is called upon to, first, unpack the
concept of the right to privacy; second, explain the writ of habeas
data as an extraordinary remedy that seeks to protect the right to
informational privacy; and finally, contextualize the right to privacy
vis-à-vis the state interest involved in the case at bar.
The Right to Privacy
The right to privacy, as an inherent concept of liberty, has long been
recognized as a constitutional right. This Court, in Morfe v.
Mutuc,43 thus enunciated:
The due process question touching on an alleged deprivation of
liberty as thus resolved goes a long way in disposing of the
objections raised by plaintiff that the provision on the periodical
submission of a sworn statement of assets and liabilities is violative
of the constitutional right to privacy. There is much to be said for this
view of Justice Douglas: "Liberty in the constitutional sense must
mean more than freedom from unlawful governmental restraint; it
must include privacy as well, if it is to be a repository of freedom.
The right to be let alone is indeed the beginning of all freedom." As
a matter of fact, this right to be let alone is, to quote from Mr. Justice
Brandeis "the most comprehensive of rights and the right most
valued by civilized men."
The concept of liberty would be emasculated if it does not likewise
compel respect for his personality as a unique individual whose
claim to privacy and interference demands respect. xxx.
xxx xxx xxx
x x x In the leading case of Griswold v. Connecticut, Justice
Douglas, speaking for five members of the Court, stated: "Various
guarantees create zones of privacy. The right of association
contained in the penumbra of the First Amendment is one, as we
have seen. The Third Amendment in its prohibition against the
quartering of soldiers ‘in any house’ in time of peace without the
consent of the owner is another facet of that privacy. The Fourth
Amendment explicitly affirms the ‘right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures.’ The Fifth Amendment in its Self-
Incrimination Clause enables the citizen to create a zone of privacy
which government may not force him to surrender to his detriment.
The Ninth Amendment provides: ‘The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." After referring to various
American Supreme Court decisions, Justice Douglas continued:
"These cases bear witness that the right of privacy which presses
for recognition is a legitimate one."
xxx xxx xxx
So it is likewise in our jurisdiction. The right to privacy as such is
accorded recognition independently of its identification with liberty;
in itself, it is fully deserving of constitutional protection. The
language of Prof. Emerson is particularly apt: "The concept of
limited government has always included the idea that governmental
powers stop short of certain intrusions into the personal life of the
213
citizen. This is indeed one of the basic distinctions between absolute
and limited government. Ultimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the absolute
state. In contrast, a system of limited government, safeguards a
private sector, which belongs to the individual, firmly distinguishing
it from the public sector, which the state can control. Protection of
this private sector — protection, in other words, of the dignity and
integrity of the individual — has become increasingly important as
modern society has developed. All the forces of a technological age
— industrialization, urbanization, and organization — operate to
narrow the area of privacy and facilitate intrusion into it. In modern
terms, the capacity to maintain and support this enclave of private
life marks the difference between a democratic and a totalitarian
society."44 (Emphases supplied)
In Ople v. Torres,45 this Court traced the constitutional and statutory
bases of the right to privacy in Philippine jurisdiction, to wit:
Indeed, if we extend our judicial gaze we will find that the right of
privacy is recognized and enshrined in several provisions of our
Constitution. It is expressly recognized in section 3 (1) of the Bill of
Rights:
Sec. 3. (1) The privacy of communication and correspondence shall
be inviolable except upon lawful order of the court, or when public
safety or order requires otherwise as prescribed by law.
Other facets of the right to privacy are protected in various
provisions of the Bill of Rights, viz:
Sec. 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
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.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired except
in the interest of national security, public safety, or public health as
may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those employed in the
public and private sectors, to form unions, associations, or societies
for purposes not contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against
himself.
Zones of privacy are likewise recognized and protected in our laws.
The Civil Code provides that "every person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other
persons" and punishes as actionable torts several acts by a person
of meddling and prying into the privacy of another. It also holds a
public officer or employee or any private individual liable for
damages for any violation of the rights and liberties of another
person, and recognizes the privacy of letters and other private
communications. The Revised Penal Code makes a crime the
violation of secrets by an officer, the revelation of trade and
industrial secrets, and trespass to dwelling. Invasion of privacy is an
offense in special laws like the Anti-Wiretapping Law, the Secrecy
of Bank Deposits Act and the Intellectual Property Code. The Rules
of Court on privileged communication likewise recognize the privacy
of certain information.
Unlike the dissenters, we prescind from the premise that the right to
privacy is a fundamental right guaranteed by the Constitution,
hence, it is the burden of government to show that A.O. No. 308 is
justified by some compelling state interest and that it is narrowly
drawn. x x x.46 (Emphases supplied)
Clearly, the right to privacy is considered a fundamental right that
must be protected from intrusion or constraint. However, in
Standard Chartered Bank v. Senate Committee on Banks, 47 this
Court underscored that the right to privacy is not absolute, viz:
With respect to the right of privacy which petitioners claim
respondent has violated, suffice it to state that privacy is not an
absolute right. While it is true that Section 21, Article VI of the
Constitution, guarantees respect for the rights of persons affected
by the legislative investigation, not every invocation of the right to
privacy should be allowed to thwart a legitimate congressional
inquiry. In Sabio v. Gordon, we have held that the right of the people
to access information on matters of public concern generally
prevails over the right to privacy of ordinary financial transactions.
In that case, we declared that the right to privacy is not absolute
where there is an overriding compelling state interest. Employing
the rational basis relationship test, as laid down in Morfe v. Mutuc,
there is no infringement of the individual’s right to privacy as the
requirement to disclosure information is for a valid purpose, in this
case, to ensure that the government agencies involved in regulating
banking transactions adequately protect the public who invest in
foreign securities. Suffice it to state that this purpose constitutes a
reason compelling enough to proceed with the assailed legislative
investigation.48
Therefore, when the right to privacy finds tension with a competing
state objective, the courts are required to weigh both notions. In
these cases, although considered a fundamental right, the right to
privacy may nevertheless succumb to an opposing or overriding
state interest deemed legitimate and compelling.
The Writ of Habeas Data
The writ of habeas data is an independent and summary remedy
designed to protect the image, privacy, honor, information, and
freedom of information of an individual, and to provide a forum to
enforce one’s right to the truth and to informational privacy.49 It
seeks to protect a person’s right to control information regarding
oneself, particularly in instances in which such information is being
collected through unlawful means in order to achieve unlawful
ends.50 It must be emphasized that in order for the privilege of the
writ to be granted, there must exist a nexus between the right to
privacy on the one hand, and the right to life, liberty or security on
the other. Section 1 of the Rule on the Writ of Habeas Data reads:
Habeas data. – The writ of habeas data is a remedy available to any
person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data information regarding the
person, family, home and correspondence of the aggrieved party.
The notion of informational privacy is still developing in Philippine
law and jurisprudence. Considering that even the Latin American
habeas data, on which our own Rule on the Writ of Habeas Data is
rooted, finds its origins from the European tradition of data
protection,51 this Court can be guided by cases on the protection of
personal data decided by the European Court of Human Rights
(ECHR). Of particular note is Leander v. Sweden,52 in which the
ECHR balanced the right of citizens to be free from interference in
their private affairs with the right of the state to protect its national
security. In this case, Torsten Leander (Leander), a Swedish citizen,
worked as a temporary replacement museum technician at the
Naval Museum, which was adjacent to a restricted military security
zone.53He was refused employment when the requisite personnel
control resulted in an unfavorable outcome on the basis of
information in the secret police register, which was kept in
accordance with the Personnel Control Ordinance and to which he
was prevented access.54 He claimed, among others, that this
procedure of security control violated Article 8 of the European
Convention of Human Rights55 on the right to privacy, as nothing in
214
his personal or political background would warrant his classification
in the register as a security risk.56
The ECHR ruled that the storage in the secret police register of
information relating to the private life of Leander, coupled with the
refusal to allow him the opportunity to refute the same, amounted to
an interference in his right to respect for private life. 57 However, the
ECHR held that the interference was justified on the following
grounds: (a) the personnel control system had a legitimate aim,
which was the protection of national security, 58 and (b) the
Personnel Control Ordinance gave the citizens adequate indication
as to the scope and the manner of exercising discretion in the
collection, recording and release of information by the
authorities.59 The following statements of the ECHR must be
emphasized:
58. The notion of necessity implies that the interference
corresponds to a pressing social need and, in particular,
that it is proportionate to the legitimate aim pursued (see,
inter alia, the Gillow judgment of 24 November 1986,
Series A no. 109, p. 22, § 55).
59. However, the Court recognises that the national
authorities enjoy a margin of appreciation, the scope of
which will depend not only on the nature of the legitimate
aim pursued but also on the particular nature of the
interference involved. In the instant case, the interest of
the respondent State in protecting its national security
must be balanced against the seriousness of the
interference with the applicant’s right to respect for his
private life.
There can be no doubt as to the necessity, for the purpose of
protecting national security, for the Contracting States to have laws
granting the competent domestic authorities power, firstly, to collect
and store in registers not accessible to the public information on
persons and, secondly, to use this information when assessing the
suitability of candidates for employment in posts of importance for
national security.
Admittedly, the contested interference adversely affected Mr.
Leander’s legitimate interests through the consequences it had on
his possibilities of access to certain sensitive posts within the public
service. On the other hand, the right of access to public service is
not as such enshrined in the Convention (see, inter alia, the Kosiek
judgment of 28 August 1986, Series A no. 105, p. 20, §§ 34-35),
and, apart from those consequences, the interference did not
constitute an obstacle to his leading a private life of his own
choosing.
In these circumstances, the Court accepts that the margin of
appreciation available to the respondent State in assessing the
pressing social need in the present case, and in particular in
choosing the means for achieving the legitimate aim of protecting
national security, was a wide one.
xxx xxx xxx
66. The fact that the information released to the military authorities
was not communicated to Mr. Leander cannot by itself warrant the
conclusion that the interference was not "necessary in a democratic
society in the interests of national security", as it is the very absence
of such communication which, at least partly, ensures the efficacy
of the personnel control procedure (see, mutatis mutandis, the
above-mentioned Klass and Others judgment, Series A no. 28, p.
27, § 58).
The Court notes, however, that various authorities consulted before
the issue of the Ordinance of 1969, including the Chancellor of
Justice and the Parliamentary Ombudsman, considered it desirable
that the rule of communication to the person concerned, as
contained in section 13 of the Ordinance, should be effectively
applied in so far as it did not jeopardise the purpose of the control
(see paragraph 31 above).
67. The Court, like the Commission, thus reaches the conclusion
that the safeguards contained in the Swedish personnel control
system meet the requirements of paragraph 2 of Article 8 (art. 8-2).
Having regard to the wide margin of appreciation available to it, the
respondent State was entitled to consider that in the present case
the interests of national security prevailed over the individual
interests of the applicant (see paragraph 59 above). The
interference to which Mr. Leander was subjected cannot therefore
be said to have been disproportionate to the legitimate aim pursued.
(Emphases supplied)
Leander illustrates how the right to informational privacy, as a
specific component of the right to privacy, may yield to an overriding
legitimate state interest. In similar fashion, the determination of
whether the privilege of the writ of habeas data, being an
extraordinary remedy, may be granted in this case entails a delicate
balancing of the alleged intrusion upon the private life of Gamboa
and the relevant state interest involved.
The collection and forwarding of information by the PNP vis-à-vis
the interest of the state to dismantle private armies.
The Constitution explicitly mandates the dismantling of private
armies and other armed groups not recognized by the duly
constituted authority.60 It also provides for the establishment of one
police force that is national in scope and civilian in character, and is
controlled and administered by a national police commission. 61
Taking into account these constitutional fiats, it is clear that the
issuance of A.O. 275 articulates a legitimate state aim, which is to
investigate the existence of PAGs with the ultimate objective of
dismantling them permanently.
To enable the Zeñarosa Commission to achieve its goals, A.O. 275
clothed it with the powers of an investigative body, including the
power to summon witnesses, administer oaths, take testimony or
evidence relevant to the investigation and use compulsory
processes to produce documents, books, and records.62 A.O. 275
likewise authorized the Zeñarosa Commission to deputize the
Armed Forces of the Philippines, the National Bureau of
Investigation, the Department of Justice, the PNP, and any other
law enforcement agency to assist the commission in the
performance of its functions.63
Meanwhile, the PNP, as the national police force, is empowered by
law to (a) enforce all laws and ordinances relative to the protection
of lives and properties; (b) maintain peace and order and take all
necessary steps to ensure public safety; and (c) investigate and
prevent crimes.64
Pursuant to the state interest of dismantling PAGs, as well as the
foregoing powers and functions accorded to the Zeñarosa
Commission and the PNP, the latter collected information on
individuals suspected of maintaining PAGs, monitored them and
counteracted their activities.65 One of those individuals is herein
petitioner Gamboa.
This Court holds that Gamboa was able to sufficiently establish that
the data contained in the Report listing her as a PAG coddler came
from the PNP. Contrary to the ruling of the trial court, however, the
forwarding of information by the PNP to the Zeñarosa Commission
was not an unlawful act that violated or threatened her right to
privacy in life, liberty or security.
The PNP was rationally expected to forward and share intelligence
regarding PAGs with the body specifically created for the purpose
of investigating the existence of these notorious groups. Moreover,
the Zeñarosa Commission was explicitly authorized to deputize the
police force in the fulfillment of the former’s mandate, and thus had
the power to request assistance from the latter.
Following the pronouncements of the ECHR in Leander, the fact that
the PNP released information to the Zeñarosa Commission without
prior communication to Gamboa and without affording her the
opportunity to refute the same cannot be interpreted as a violation
or threat to her right to privacy since that act is an inherent and
crucial component of intelligence-gathering and
investigation.1âwphi1 Additionally, Gamboa herself admitted that
the PNP had a validation system, which was used to update
215
information on individuals associated with PAGs and to ensure that
the data mirrored the situation on the field.66 Thus, safeguards were
put in place to make sure that the information collected maintained
its integrity and accuracy.
Pending the enactment of legislation on data protection, this Court
declines to make any further determination as to the propriety of
sharing information during specific stages of intelligence gathering.
To do otherwise would supplant the discretion of investigative
bodies in the accomplishment of their functions, resulting in an
undue encroachment on their competence.
However, to accord the right to privacy with the kind of protection
established in existing law and jurisprudence, this Court
nonetheless deems it necessary to caution these investigating
entities that information-sharing must observe strict confidentiality.
Intelligence gathered must be released exclusively to the authorities
empowered to receive the relevant information. After all, inherent to
the right to privacy is the freedom from "unwarranted exploitation of
one’s person or from intrusion into one’s private activities in such a
way as to cause humiliation to a person’s ordinary sensibilities."67
In this case, respondents admitted the existence of the Report, but
emphasized its confidential nature.1âwphi1 That it was leaked to
third parties and the media was regrettable, even warranting
reproach. But it must be stressed that Gamboa failed to establish
that respondents were responsible for this unintended disclosure. In
any event, there are other reliefs available to her to address the
purported damage to her reputation, making a resort to the
extraordinary remedy of the writ of habeas data unnecessary and
improper.
Finally, this Court rules that Gamboa was unable to prove through
substantial evidence that her inclusion in the list of individuals
maintaining PAGs made her and her supporters susceptible to
harassment and to increased police surveillance. In this regard,
respondents sufficiently explained that the investigations conducted
against her were in relation to the criminal cases in which she was
implicated. As public officials, they enjoy the presumption of
regularity, which she failed to overcome.
It is clear from the foregoing discussion that the state interest of
dismantling PAGs far outweighs the alleged intrusion on the private
life of Gamboa, especially when the collection and forwarding by the
PNP of information against her was pursuant to a lawful mandate.
Therefore, the privilege of the writ of habeas data must be denied.
WHEREFORE, the instant petition for review is DENIED. The
assailed Decision in Special Proc. No. 14979 dated 9 September
2010 of the Regional Trial Court, Laoag City, Br. 13, insofar as it
denies Gamboa the privilege of the writ of habeas data, is
AFFIRMED.
SO ORDERED.
G.R. No. 183533 September 25, 2012
IN THE MATTER OF THE PETITION FOR THE WRIT OF
AMPARO AND THE WRIT OF HABEAS DATA IN FAVOR OF
FRANCIS SAEZ, Petitioner,
vs.
GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES
ESPERON, P/DIR. GEN. AVELINO RAZON, 22ND MICO, CAPT.
LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL
GUTIERREZ, CAPT. JAKE OBLIGADO, CPL. ROMAN ITO
QUINT ANA, PVT. JERICO DUQUIL, CPL. ARIEL FONTANILLA,
A CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST SERGEANT,
PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL.
JAMES, A CERTAIN JOEL, RODERICK CLANZA and JEFFREY
GOMEZ, Respondents.
For action by the Court is the Motion for Reconsideration1 dated
September 26, 2010 filed by petitioner Francis Saez of our
Resolution2 dated August 31, 2010 denying the Petition for
Review3 he filed on July 21, 2008.
The Office of the Solicitor General (OSG) filed its Comment4 thereon
stating that it does not find cogent grounds to warrant setting aside
our decision.
Antecedent Facts
On March 6, 2008, the petitioner filed with the Court a petition to be
granted the privilege of the writs of amparo and habeas data with
prayers for temporary protection order, inspection of place and
production of documents.5 In the petition, he expressed his fear of
being abducted and killed; hence, he sought that he be placed in a
sanctuary appointed by the Court. He likewise prayed for the military
to cease from further conducting surveillance and monitoring of his
activities and for his name to be excluded from the order of battle
and other government records connecting him to the Communist
Party of the Philippines (CPP).
Without necessarily giving due course to the petition, the Court
issued the writ of amparo commanding the respondents to make a
verified return, and referred the case to the Court of Appeals (CA)
for hearing and decision.The case before the CA was docketed as
CA-G.R. SP No. 00024 WOA.
In the Return of the Writ,6 the respondents denied the assignment
in the units of Captains Lawrence Banaag and Rommel Gutierrez
and Corporal Ariel Fontanilla. The respondents also alleged that the
names and descriptions of "Capt. Alcaydo," "a certain First
Sergeant," "Cpl. James," "Pfc. Sonny," and "Joel" were insufficient
to properly identify some of the persons sought to be included as
among the respondents in the petition.
On the other hand, respondents General Hermogenes Esperon, Jr.
(Gen. Esperon), Capt. Jacob Thaddeus Obligado, Pvt. Rizaldy A.
Osio (Pvt. Osio), Pfc. Romanito C. Quintana, Jr. and Pfc. Jerico
Duquil submitted their affidavits.
The CA conducted hearings with an intent to clarify what actually
transpired and to determine specific acts which threatened the
petitioner’s right to life, liberty or security.
During the hearings, the petitioner narrated that starting April 16,
2007, he noticed that he was always being followed by a certain
"Joel," a former colleague at Bayan Muna. "Joel" pretended
peddling pandesal in the vicinity of the petitioner’s store. Three days
before the petitioner was apprehended, "Joel" approached and
informed him of his marital status and current job as a baker in
Calapan, Mindoro Oriental. "Joel" inquired if the petitioner was still
involved with ANAKPAWIS. When asked by the CA justices during
the hearing if the petitioner had gone home to Calapan after having
filed the petition, he answered in the negative explaining that he was
afraid of Pvt. Osio who was always at the pier.
CA-G.R. SP No. 00024 WOA
On July 9, 2008, the CA rendered its Decision, 7 denying on formal
and substantial grounds the reliefs prayed for in the petition and
dropping former President Gloria Macapagal Arroyo as a
respondent. The CA ratiocinated:
There was no attempt at all to clarify how petitioner came to know
about Zaldy Osio’s presence at their pier if the former had not gone
home since the petition was filed and what Zaldy Osio was doing
there to constitute violation or threat to violate petitioner’s right to
life, liberty or security. This Court cannot just grant the privilege of
the writs without substantial evidence to establish petitioner’s
entitlement thereto. This Court cannot grant the privilege of the writs
applied for on mere speculation or conjecture. This Court is
convinced that the Supreme Court did not intend it to be so when
the rules on the writs of Amparo and Habeas Data were adopted. It
is the impression of this Court that the privilege of the writs herein
prayed for should be considered as extraordinary remedies
available to address the specific situations enumerated in the rules
and no other.
xxxx
216
Not only did the petition and the supporting affidavit x x x fail to
allege how the supposed threat or violation of petitioner’s [right to]
life, liberty and security is committed. Neither is there any narration
of any circumstances attendant to said supposed violation or threat
to violatepetitioner’s right to life, liberty or security to warrant
entitlement to the privilege of the writs prayed for.
xxxx
A reading of the petition will show that the allegations therein do not
comply with the aforestated requirements of Section 6 Rule on the
Writ of Habeas Data of the pertinent rule. The petition is bereft of
any allegation stating with specific definiteness as to how
petitioner’s right to privacy was violated or threatened to be violated.
He did not include any allegation as to what recourses he availed of
to obtain the alleged documents from respondents. Neither did
petitioner allege what specific documents he prays for and from
whom or [sic] from what particular office of the government he prays
to obtain them. The petition prays "to order respondents to produce
any documents submitted to any of them in the matter of any report
on the case of FRANCIS SAEZ, including all military intelligence
reports."
xxxx
Both the rules on the writs of Amparo and Habeas Data (Section 17,
A.M. No. 07-9-12-SC and Section 16, A.M. No. 08-1-16-SC) provide
that the parties shall establish their claims by substantial evidence.
Not only was petitioner unable to establish his entitlement to the
privilege of the writs applied for, the exigency thereof was negated
by his own admission that nothing happened between him and Joel
after July 21, 2007. The filing of the petition appears to have been
precipitated by his fear that something might happen to him, not
because of any apparent violation or visible threat to violate his right
to life, liberty or security. Petitioner was, in fact, unable to establish
likewise who among the respondents committed specific acts
defined under the rules on both writs to constitute violation or threat
to violate petitioner’s rights to life, liberty or security or his right to
privacy thereof.
xxxx
x x x The ruling in David, et al. vs. Gloria Macapagal Arroyo, et al.
(G.R. No. 171396, May 3, 2006, 489 SCRA 160, 224) is aptly
instructive:
"Settled is the doctrine that the President, during his tenure of office
or actual incumbency, may not be sued in any civil or criminal case,
and there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of
State, if he can be dragged into court litigations while serving as
such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to
the performance of his official duties and functions. x x x."
xxxx
IV. The petition lacks proper verification in violation of Section 12,
2004 Rules on Notarial Practice.8
On July 21, 2008, Petition for Review was filed assailing the
foregoing CA decision with the following issues submitted for
resolution:
WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR
IN DISMISSING THE PETITION AND DROPPING GLORIA
MACAPAGAL ARROYO AS PARTY RESPONDENT.
WHETHER OR NOT THE NOTARIAL OFFICER’S OMISSION OF
REQUIRING FROM THE PETITIONER IDENTIFICATION CARDS
RELATIVE TO THE LATTER’S EXECUTION OF THE
VERIFICATION AND CERTIFICATION OF NON-FORUM
SHOPPING JUSTIFIES THE DENIAL OF THE PETITION.
WHETHER OR NOT THE CA COMMITTED GROSS ABUSE OF
DISCRETION WHEN IT FAILED TO CONCLUDE FROM THE
EVIDENCE OFFERED BY THE PETITIONER THE FACT THAT BY
BEING PLACED IN THE ORDER OF BATTLE LIST, THREATS
AND VIOLATIONS TO THE LATTER’S LIFE, LIBERTY AND
SECURITY WERE ACTUALLY COMMITTED BY THE
RESPONDENTS.9
Court’s Resolution dated August 31, 2010
On August 31, 2010, the Court issued the Resolution10 denying the
petition for review for the following reasons, viz:
A careful perusal of the subject petition shows that the CA correctly
found that the petition was bereft of any allegation as to what
particular acts or omission of respondents violated or threatened
petitioner’s right to life, liberty and security. His claim that he was
incommunicado lacks credibility as he was given a cellular phone
and allowed to go back to Oriental Mindoro. The CA also correctly
held that petitioner failed to present substantial evidence that his
right to life, liberty and security were violated, or how his right to
privacy was threatened by respondents. He did not specify the
particular documents to be secured, their location or what particular
government office had custody thereof, and who has possession or
control of the same. He merely prayed that the respondents be
ordered "to produce any documents submitted to any of them in the
matter of any report on the case of FRANCIS SAEZ, including all
military intelligence reports."
Petitioner assails the CA in failing to appreciate that in his Affidavit
and Fact Sheet, he had specifically detailed the violation of his right
to privacy as he was placed in the Order of Battle and promised to
have his record cleared if he would cooperate and become a military
asset. However, despite questions propounded by the CA Associate
Justices during the hearing, he still failed to enlighten the appellate
court as to what actually transpired to enable said court to determine
whether his right to life, liberty or security had actually been violated
or threatened. Records bear out the unsubstantiated claims of
petitioner which justified the appellate court’s dismissal of the
petition.
As to petitioner’s argument that the CA erred in deleting the
President as party-respondent, we find the same also to be without
merit. The Court has already made it clear in David v. Macapagal-
Arroyo that the President, during his or her tenure of office or actual
incumbency, may not be sued in any civil or criminal case, and there
is no need to provide for it in the Constitution or law. It will degrade
the dignity of the high office of the President, the Head of State, if
the President can be dragged into court litigations while serving as
such. Furthermore, it is important that the President be freed from
any form of harassment, hindrance or distraction to enable the
President to fully attend to the performance of official duties and
functions.11 (Citation omitted)
Hence, the petitioner filed the instant motion for reconsideration. 12
Petitioner’s Arguments
Contrary to the CA’s findings, it had been shown by substantial
evidence and even by the respondents’ own admissions that the
petitioner’s life, liberty and security were threatened. Military
personnel, whom the petitioner had named and described, knew
where to get him and they can do so with ease. He also became a
military asset, but under duress, as the respondents had documents
allegedly linking him to the CPP and including him in the order of
battle. The petitioner claims that the foregoing circumstances were
not denied by the respondents.
The petitioner likewise challenges the CA’s finding that he was not
rendered incommunicado as he was even provided with a cellular
phone. The petitioner argues that the phone was only given to him
for the purpose of communicating with the respondents matters
relative to his infiltration activities of target legal organizations.
The petitioner cites Secretary of National Defense v.
Manalo,13 which pronounced that "in the amparo context, it is more
correct to say that the ‘right to security’ is actually the ‘freedom from
threat’".14 According to the petitioner, his freedom from fear was
undoubtedly violated, hence, to him pertains a cause of action.
217
Anent the quantum of proof required in a petition for the issuance of
the writ of amparo, mere substantial evidence is sufficient. The
petition "is not an action to determine criminal guilt requiring proof
beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative responsibility
requiring substantial evidence that will require full and exhaustive
proceedings".15
Sadly, in the petitioner’s case, the court not only demanded a
greater quantum of proof than what the rules require, but it also
accorded special preference for the respondents’ evidence.
The petitioner also cites a speech delivered in Siliman University by
former Chief Justice Reynato Puno who expressed that "the remedy
of habeas data can be used by any citizen against any governmental
agency or register to find out what information is held about his or
her person." The person can likewise "request the rectification or
even the destruction of erroneous data gathered and kept against
him or her." In the petitioner’s case, he specifically sought the
production of the order of battle, which allegedly included his name,
and other records which supposedly contain erroneous data relative
to his involvement with the CPP.
OSG’s Comment
In the respondents’ comment16 filed by the OSG, it is generally
claimed that the petitioner advances no cogent grounds to justify the
reversal of the Court’s Resolution dated August 31, 2010.
The Court’s Disquisition
While the issuance of the writs sought by the petitioner cannot be
granted, the Court nevertheless finds ample grounds to modify the
Resolution dated August 31, 2010.
The petition conforms to the
requirements of the Rules on the
Writs of Amparo and Habeas Data
Section 517 of A.M. No. 07-9-12-SC (Rule on the Writ of Amparo)
and Section 618 of A.M. 08-1-16-SC (Rule on the Writ of Habeas
Data) provide for what the said petitions should contain.
In the present case, the Court notes that the petition for the issuance
of the privilege of the writs of amparo and habeas data is sufficient
as to its contents. The petitioner made specific allegations relative
to his personal circumstances and those of the respondents. The
petitioner likewise indicated particular acts, which are allegedly
violative of his rights and the participation of some of the
respondents in their commission. As to the pre-requisite conduct
and result of an investigation prior to the filing of the petition, it was
explained that the petitioner expected no relief from the military,
which he perceived as his oppressors, hence, his request for
assistance from a human rights organization, then a direct resort to
the court. Anent the documents sought to be the subject of the writ
of habeas data prayed for, the Court finds the requirement of
specificity to have been satisfied. The documents subject of the
petition include the order of battle, those linking the petitioner to the
CPP and those he signed involuntarily, and military intelligence
reports making references to him. Although the exact locations and
the custodians of the documents were not identified, this does not
render the petition insufficient. Section 6(d) of the Rule on the Writ
of Habeas Data is clear that the requirement of specificity arises
only when the exact locations and identities of the custodians are
known. The Amparo Rule was not promulgated with the intent to
make it a token gesture of concern for constitutional rights. 19 Thus,
despite the lack of certain contents, which the Rules on the Writs of
Amparo and Habeas Data generally require, for as long as their
absence under exceptional circumstances can be reasonably
justified, a petition should not be susceptible to outright dismissal.
From the foregoing, the Court holds that the allegations stated in the
petition for the privilege of the writs of amparo and habeas data filed
conform to the rules. However, they are mere allegations, which the
Court cannot accept "hook, line and sinker", so to speak, and
whether substantial evidence exist to warrant the granting of the
petition is a different matter altogether.
No substantial evidence exists to
prove the petitioner’s claims
The Court has ruled that in view of the recognition of the evidentiary
difficulties attendant to the filing of a petition for the privilege of the
writs of amparo and habeas data, not only direct evidence, but
circumstantial evidence, indicia, and presumptions may be
considered, so long as they lead to conclusions consistent with the
admissible evidence adduced.20
With the foregoing in mind, the Court still finds that the CA did not
commit a reversible error in declaring that no substantial evidence
exist to compel the grant of the reliefs prayed for by the petitioner.
The Court took a second look on the evidence on record and finds
no reason to reconsider the denial of the issuance of the writs
prayed for.
In the hearing before the CA, it was claimed that "Joel" once inquired
from the petitioner if the latter was still involved with ANAKPAWIS.
By itself, such claim cannot establish with certainty that the
petitioner was being monitored. The encounter happened once and
the petitioner, in his pleadings, nowhere stated that subsequent to
the time he was asked about his involvement with ANAKPAWIS, he
still noticed "Joel" conducting surveillance operations on him. He
alleged that he was brought to the camp of the 204th Infantry
Brigade in Naujan, Oriental Mindoro but was sent home at 5:00 p.m.
The petitioner and the respondents have conflicting claims about
what transpired thereafter. The petitioner insisted that he was
brought against his will and was asked to stay by the respondents
in places under the latter’s control. The respondents, on the other
hand, averred that it was the petitioner who voluntarily offered his
service to be a military asset, but was rejected as the former still
doubted his motives and affiliations.
Section 19 of both the Rules on the Writ of Amparo and Habeas
Data is explicit that questions of fact and law can be raised before
the Court in a petition for review on certiorari under Rule 45. As a
rule then, the Court is not bound by the factual findings made by the
appellate court which rendered the judgment in a petition for the
issuance of the writs of amparo and habeas data. Be that as it may,
in the instant case, the Court agrees with the CA that the petitioner
failed to discharge the burden of proof imposed upon him by the
rules to establish his claims. It cannot be overemphasized that
Section 1 of both the Rules on the Writ of Amparo and Habeas Data
expressly include in their coverage even threatened violations
against a person’s right to life, liberty or security. Further, threat and
intimidation that vitiate the free will – although not involving invasion
of bodily integrity – nevertheless constitute a violation of the right to
security in the sense of "freedom from threat".21
It must be stressed, however, that such "threat" must find rational
basis on the surrounding circumstances of the case. In this case,
the petition was mainly anchored on the alleged threats against his
life, liberty and security by reason of his inclusion in the military’s
order of battle, the surveillance and monitoring activities made on
him, and the intimidation exerted upon him to compel him to be a
military asset. While as stated earlier, mere threats fall within the
mantle of protection of the writs of amparo and habeas data, in the
petitioner’s case, the restraints and threats allegedly made
allegations lack corroborations, are not supported by independent
and credible evidence, and thus stand on nebulous grounds.
The Court is cognizant of the evidentiary difficulties attendant to a
petition for the issuance of the writs. Unlike, however, the unique
nature of cases involving enforced disappearances or extra-judicial
killings that calls for flexibility in considering the gamut of evidence
presented by the parties, this case sets a different scenario and a
significant portion of the petitioner’s testimony could have been
easily corroborated. In his Sinumpaang Salaysay22dated March 5,
2008 and the Fact Sheet dated December 9, 200723 executed
before the Alliance for the Advancement of People’s Rights-
Southern Tagalog (KARAPATAN-ST), the petitioner stated that
when he was invited and interrogated at the military camp in Naujan,
Oriental Mindoro, he brought with him his uncle Norberto Roxas,
Barangay Captain Mario Ilagan and two of his bodyguards, and
Edwardo Estabillo – five witnesses who can attest and easily
corroborate his statement – but curiously, the petitioner did not
present any piece of evidence, whether documentary or testimonial,
218
to buttress such claim nor did he give any reason for their non-
presentation.This could have made a difference in light of the
denials made by the respondents as regards the petitioner’s claims.
The existence of an order of battle and inclusion of the petitioner’s
name in it is another allegation by the petitioner that does not find
support on the evidence adduced. The Court notes that such
allegation was categorically denied by respondent Gen. Avelino I.
Razon, Jr. who, in his Affidavit dated March 31, 2008, stated that he
"does not have knowledge about any Armed Forces of the
Philippines (AFP) ‘order of battle’ which allegedly lists the petitioner
as a member of the CPP."24 This was also denied by Pvt. Osio, who
the petitioner identified as the one who told him that he was included
in the order of battle.25 The 2nd Infantry (Jungle Fighter) Division of
the Philippine Army also conducted an investigation pursuant to the
directive of AFP Chief of Staff Gen. Esperon, 26 and it was shown
that the persons identified by the petitioners who allegedly
committed the acts complained of were not connected or assigned
to the 2nd Infantry Division.27
Moreover, the evidence showed that the petitioner’s mobility was
never curtailed. From the time he was allegedly brought to Batangas
in August of 2007 until the time he sought the assistance of
KARAPATAN-ST, there was no restraint upon the petitioner to go
home, as in fact, he went home to Mindoro on several instances.
And while he may have been wary of Pvt. Osio’s presence at the
pier, there was no claim by the petitioner that he was threatened or
prevented by Pvt. Osio from boarding any vehicle that may transport
him back home. The petitioner also admitted that he had a mobile
phone; hence, he had unhampered access to communication and
can readily seek assistance from non-governmental organizations
and even government agencies.
The respondents also belied the petitioner’s claim that they forced
him to become a military informant and instead, alleged that it was
the petitioner who volunteered to be one. Thus, in his Sinumpaang
Salaysay28 executed on March 25, 2008, Pvt. Osio admitted that he
actually knew the petitioner way back in 1998 when they were still
students. He also stated that when he saw the petitioner again in
2007, the latter manifested his intention to become a military
informant in exchange for financial and other forms of assistance.
The petitioner also harps on the alleged "monitoring" activities being
conducted by a certain "Joel", e.g., the latter’s alleged act of
following him, pretending to peddle pandesal and asking him about
his personal circumstances. Such allegation by the petitioner,
however, is, at best, a conclusion on his part, a mere impression
that the petitioner had, based on his personal assessment of the
circumstances. The petitioner even admitted in his testimony before
the CA that when he had a conversation with "Joel" sometime in
July 2007, the latter merely asked him whether he was still
connected with ANAKPAWIS, but he was not threatened "with
anything" and no other incident occurred between them since
then.29 There is clearly nothing on record which shows that "Joel"
committed overt acts that will unequivocally lead to the conclusion
arrived at by the petitioner, especially since the alleged acts
committed by "Joel" are susceptible of different interpretations.
Given that the totality of the evidence presented by the petitioner
failed to support his claims, the reliefs prayed for, therefore, cannot
be granted. The liberality accorded to amparo and habeas data
cases does not mean that a claimant is dispensed with the onus of
proving his case. "Indeed, even the liberal standard of substantial
evidence demands some adequate evidence."30
The President cannot be
automatically dropped as a Conversely, this presidential privilege of immunity cannot be
respondent pursuant to the doctrine
of command responsibility
In Noriel Rodriguez v. Gloria Macapagal Arroyo, et al.,31 the Court
stated:
a. Command responsibility of the President
Having established the applicability of the doctrine of command
responsibility in amparo proceedings, it must now be resolved
whether the president, as commander-in-chief of the military, can be
held responsible or accountable for extrajudicial killings and
enforced disappearances. We rule in the affirmative.
To hold someone liable under the doctrine of command
responsibility, the following elements must obtain:
a. the existence of a superior-subordinate relationship
between the accused as superior and the perpetrator of
the crime as his subordinate;
b. the superior knew or had reason to know that the crime
was about to be or had been committed; and
c. the superior failed to take the necessary and reasonable
measures to prevent the criminal acts or punish the
perpetrators thereof.
The president, being the commander-in-chief of all armed forces,
necessarily possesses control over the military that qualifies him as
a superior within the purview of the command responsibility
doctrine.
On the issue of knowledge, it must be pointed out that although
international tribunals apply a strict standard of knowledge, i.e.,
actual knowledge, such may nonetheless be established through
circumstantial evidence. In the Philippines, a more liberal view is
adopted and superiors may be charged with constructive
knowledge. This view is buttressed by the enactment of Executive
Order No. 226, otherwise known as the Institutionalization of the
Doctrine of ‘Command Responsibility’ in all Government Offices,
particularly at all Levels of Command in the
Philippine National Police and other Law Enforcement Agencies
(E.O. 226). Under E.O. 226, a government official may be held liable
for neglect of duty under the doctrine of command responsibility if
he has knowledge that a crime or offense shall be committed, is
being committed, or has been committed by his subordinates, or by
others within his area of responsibility and, despite such knowledge,
he did not take preventive or corrective action either before, during,
or immediately after its commission. Knowledge of the commission
of irregularities, crimes or offenses is presumed when (a) the acts
are widespread within the government official’s area of jurisdiction;
(b) the acts have been repeatedly or regularly committed within his
area of responsibility; or (c) members of his immediate staff or office
personnel are involved.
Meanwhile, as to the issue of failure to prevent or punish, it is
important to note that as the commander-in-chief of the armed
forces, the president has the power to effectively command, control
and discipline the military. (Citations omitted)
Pursuant to the doctrine of command responsibility, the President,
as the Commander-in-Chief of the AFP, can be held liable for affront
against the petitioner’s rights to life, liberty and security as long as
substantial evidence exist to show that he or she had exhibited
involvement in or can be imputed with knowledge of the violations,
or had failed to exercise necessary and reasonable diligence in
conducting the necessary investigations required under the
rules.1âwphi1
The Court also stresses that rule that the presidential immunity from
suit exists only in concurrence with the president’s incumbency. 32
invoked by a non-sitting president even for acts committed during
his or her tenure.33 Courts look with disfavor upon the presidential
privilege of immunity, especially when it impedes the search for truth
or impairs the vindication of a right. 34
The petitioner, however, is not exempted from the burden of proving
by substantial evidence his allegations against the President to
make the latter liable for either acts or omissions violative of rights
against life, liberty and security. In the instant case, the petitioner
merely included the President’s name as a party respondent without
any attempt at all to show the latter’s actual involvement in, or
219
knowledge of the alleged violations. Further, prior to the filing of the
petition, there was no request or demand for any investigation that
was brought to the President’s attention. Thus, while the President
cannot be completely dropped as a respondent in a petition for the
privilege of the writs of amparo and habeas data merely on the basis
of the presidential immunity from suit, the petitioner in this case
failed to establish accountability of the President, as commander-in-
chief, under the doctrine of command responsibility.
Compliance with technical rules of
procedure is ideal but it cannot be
accorded primacy
Among the grounds cited by the CA in denying the petition for the
issuance of the writs of amparo and habeas data was the defective
verification which was attached to the petition. In
Tagitis,35 supporting affidavits required under Section 5(c) of the
Rule on the Writ of Amparo were not submitted together with the
petition and it was ruled that the defect was fully cured when the
petitioner and the witness personally testified to prove the truth of
their allegations in the hearings held before the CA. In the instant
case, the defective verification was not the sole reason for the CA’s
denial of the petition for the issuance of the writs of amparo and
habeas data. Nonetheless, it must be stressed that although rules
of procedure play an important rule in effectively administering
justice, primacy should not be accorded to them especially in the
instant case where there was at least substantial compliance with
the requirements and where petitioner himself testified in the
hearings to attest to the veracity of the claims which he stated in his
petition.
To conclude, compliance with technical rules of procedure is ideal
but it cannot be accorded primacy. In the proceedings before the
CA, the petitioner himself testified to prove the veracity of his
allegations which he stated in the petition. Hence, the defect in the
verification attached to the petition. Hence, the defect in the
verification attached to the petition was deemed cured.
WHEREFORE, premises considered, the petitioner's motion for
reconsideration is DENIED WITH FINALITY.
SO ORDERED.
G.R. No. 191805 April 16, 2013
IN THE MATTER OF THE PETITION FOR THE WRIT OF
AMPARO AND HABEAS DATA IN FAVOR OF NORIEL
RODRIGUEZ, NORIEL RODRIGUEZ, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO,
PDG JESUS AME VERSOZA, LT. GEN. DELFIN BANGIT, MAJ.
GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO,
P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, an
officer named MATUTINA, LT. COL. MINA, CALOG, GEORGE
PALACPAC under the name "HARRY," ANTONIO CRUZ,
ALDWIN "BONG" PASICOLAN and VINCENT
CALLAGAN,Respondents.
x-----------------------x
G.R. No. 193160
IN THE MATTER OF THE PETITION FOR THE WRIT OF
AMPARO AND HABEAS DATA IN FAVOR OF NORIEL
RODRIGUEZ, POLICE DIR. GEN. JESUS A. VERSOZA,
P/SSUPT. JUDE W. SANTOS, BGEN. REMEGIO M. DE VERA,
1ST LT. RYAN S. MATUTINA, LT. COL. LAURENCE E. MINA,
ANTONIO C. CRUZ, ALDWIN C. PASICOLAN and VICENTE A.
CALLAGAN, Petitioners,
vs.
NORIEL H. RODRIGUEZ, Respondent.
RESOLUTION
SERENO, CJ.:
On 15 November 2011, the Court promulgated its Decision in the
present case, the dispositive portion of which reads:
WHEREFORE, we resolve to GRANT the Petition for Partial Review
in G.R. No. 191805 and DENY the Petition for Review in G.R. No.
193160. The Decision of the Court of Appeals is hereby AFFIRMED
WITH MODIFICATION.
The case is dismissed with respect to respondents former President
Gloria Macapagal-Arroyo, P/CSupt. Ameto G. Tolentino, and
P/SSupt. Jude W. Santos, Calog, George Palacpac, Antonio Cruz,
Aldwin Pasicolan and Vincent Callagan for lack of merit.
This Court directs the Office of the Ombudsman (Ombudsman) and
the Department of Justice (DOJ) to take the appropriate action with
respect to any possible liability or liabilities, within their respective
legal competence, that may have been incurred by respondents
Gen. Victor lbrado, PDG. Jesus Verzosa, Lt. Gen. Delfin Bangit,
Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio De Vera, 1st Lt. Ryan
Matutina, and Lt. Col. Laurence Mina. The Ombudsman and the
DOJ are ordered to submit to this Court the results of their action
within a period of six months from receipt of this Decision.
In the event that herein respondents no longer occupy their
respective posts, the directives mandated in this Decision and in the
Court of Appeals are enforceable against the incumbent officials
holding the relevant positions. Failure to comply with the foregoing
shall constitute contempt of court.
SO ORDERED.
After a careful examination of the records, the Court was convinced
that the Court of Appeals correctly found sufficient evidence proving
that the soldiers of the 17th Infantry Battalion, 5th Infantry Division
of the military abducted petitioner Rodriguez on 6 September 2009,
and detained and tortured him until 17 September 2009.
Pursuant to the Decision ordering the Office of the Ombudsman to
take further action, Ombudsman Conchita Carpio Morales sent this
Court a letter dated 23 May 2012, requesting an additional two-
month period, or until 24 July 2012, within which to submit a report.
The Ombudsman stated that Noriel Rodriguez (Rodriguez) and his
family refused to cooperate with the investigation for security
reasons.
On 6 January 2012, respondents filed their Motion for
Reconsideration,1 arguing that the soldiers belonging to the 17th
Infantry Battalion, 5th Infantry Division of the military cannot be held
accountable for authoring the abduction and torture of petitioner.
Their arguments revolve solely on the claim that respondents were
never specifically mentioned by name as having performed,
permitted, condoned, authorized, or allowed the commission of any
act or incurrence omission which would violate or threaten with
violation the rights to life, liberty, and security of petitioner-
respondent and his family.2
On 18 January 2013, the Ombudsman submitted the Investigation
Report, as compliance with the Court’s directive to take appropriate
action with respect to possible liabilities respondents may have
incurred. The exhaustive report detailed the steps taken by the Field
Investigation Office (FIO) of the Office of the Ombudsman,
concluding that no criminal, civil, or administrative liabilities may be
imputed to the respondents. It was reflected therein that the lawyers
for the Rodriguezes had manifested to the FIO that the latter are
hesitant to appear before them for security reasons, viz:
Karapatan (a non-governmental organization that provides legal
assistance to victims of human rights violations and their families)
could not locate Noriel and Rodel. As of this writing, the Rodriguezes
refused to participate in the present fact-finding investigation ‘for
security reasons.’ Atty. Yambot disclosed (through a Manifestation
dated March 30, 2012 that despite efforts to convince Noriel to
participate in the present proceedings, the latter ‘remains
unconvinced and unwilling to this date.’
Recent information, however, revealed that Noriel and his family are
no longer interested in participating in the present case.
Instead of appearing before this Office for a conference under oath,
SPO1 Robert B. Molina submitted an Affidavit dated June 13, 2012
stating that on September 15, 2009, at around 11:00 o’clock in the
220
morning, Wilma H. Rodriguez appeared before the Gonzaga Police
Station and requested to enter into the blotter that her son, Noriel,
was allegedly missing in Sitio Comunal, Gonzaga, Cagayan.
Thereupon, he gathered information relative to Wilma’s report "but
the community residence failed to reveal anything". 3
The other accounts – specifically that of respondent Antonino C.
Cruz, Special Investigator II of the Commission on Human Rights
(CHR), as well as the claims of respondents Mina and De Vera that
they had disclosed to the CHR that Noriel had become an agent
("asset") of the 17th Infantry Battalion – have been thoroughly
evaluated and ruled upon in our Decision. The OMB further laments,
"If only he (Noriel) could be asked to verify the circumstances under
which he executed these subsequent affidavits, his inconsistent
claims will finally be settled," and that "(I)f there is one person who
can attest on whether detention and torture were indeed committed
by any of the Subjects herein, it is Noriel Rodriguez himself, the
supposed victim."4
The purported unwillingness of the petitioner to appear or participate
at this stage of the proceedings due to security reasons does not
affect the rationale of the writ granted by the CA, as affirmed by this
Court. In any case, the issue of the existence of criminal, civil, or
administrative liability which may be imputed to the respondents is
not the province of amparo proceedings -- rather, the writ serves
both preventive and curative roles in addressing the problem of
extrajudicial killings and enforced disappearances. It is preventive
in that it breaks the expectation of impunity in the commission of
these offenses, and it is curative in that it facilitates the subsequent
punishment of perpetrators by inevitably leading to subsequent
investigation and action.5 In this case then, the thrust of ensuring
that investigations are conducted and the rights to life, liberty, and
security of the petitioner, remains.
We deny the motion for reconsideration.
The writ of amparo partakes of a summary proceeding that requires
only substantial evidence to make the appropriate interim and
permanent reliefs available to the petitioner. As explained in the
Decision, it is not an action to determine criminal guilt requiring proof
beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or even administrative responsibility
requiring substantial evidence. The totality of evidence as a
standard for the grant of the writ was correctly applied by this Court,
as first laid down in Razon v. Tagitis:
The fair and proper rule, to our mind, is to consider all the pieces of
evidence adduced in their totality, and to consider any evidence
otherwise inadmissible under our usual rules to be admissible if it is
consistent with the admissible evidence adduced. In other words,
we reduce our rules to the most basic test of reason – i.e., to the
relevance of the evidence to the issue at hand and its consistency
with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum
test.6 (Emphasis supplied.)
No reversible error may be attributed to the grant of the privilege of
the writ by the CA, and the present motion for reconsideration raises
no new issues that would convince us otherwise.
Respondents’ claim that they were not competently identified as the
soldiers who abducted and detained the petitioner, or that there was
no mention of their names in the documentary evidence, is
baseless. The CA rightly considered Rodriguez’s Sinumpaang
Salaysay7 as a meticulous and straightforward account of his
horrific ordeal with the military, detailing the manner in which he was
captured and maltreated on account of his suspected membership
in the NPA.8
Petitioner narrated that at dawn on 9 September 2009, he noticed a
soldier with the name tag "Matutina," who appeared to be an official
because the other soldiers addressed him as "sir."9 He saw
Matutina again at 11:00 p.m. on 15 September 2009, when his
abductors took him to a military operation in the mountains. His
narration of his suffering included an exhaustive description of his
physical surroundings, personal circumstances, and perceived
observations. He likewise positively identified respondents 1st Lt.
Matutina and Lt. Col. Mina to be present during his abduction,
detention and torture.10 These facts were further corroborated by
Hermie Antonio Carlos in his Sinumpaang Salaysay dated 16
September 2009,11 wherein he recounted in detail the
circumstances surrounding the victim’s capture.
Respondents’ main contention in their Return of the Writ was
correctly deemed illogical and contradictory by the CA. They claim
that Rodriguez had complained of physical ailments due to activities
in the CPP-NPA, yet nevertheless signified his desire to become a
double-agent for the military. The CA stated:
In the Return of the Writ, respondent AFP members alleged that
petitioner confided to his military handler, Cpl. Navarro, that
petitioner could no longer stand the hardships he experienced in the
wilderness, and that he wanted to become an ordinary citizen again
because of the empty promises of the CPP-NPA. However, in the
same Return, respondents state that petitioner agreed to become a
double agent for the military and wanted to re-enter the CPP-NPA,
so that he could get information regarding the movement directly
from the source. If petitioner was tired of life in the wilderness and
desired to become an ordinary citizen again, it defies logic that he
would agree to become an undercover agent and work alongside
soldiers in the mountains – or the wilderness he dreads – to locate
the hideout of his alleged NPA comrades.12 (Emphasis supplied.)
Respondents conveniently neglect to address the findings of both
the CA and this Court that aside from the abduction of Rodriguez,
respondents, specifically 1st Lt. Matutina, had violated and
threatened the former’s right to security when they made a visual
recording of his house, as well as the photos of his relatives. The
CA found that the soldiers even went as far as taking videos of the
photos of petitioner’s relatives hung on the wall of the house, and
the innermost portions of the house.13 There is no reasonable
justification for this violation of the right to privacy and security of
petitioner’s abode, which strikes at the very heart and rationale of
the Rule on the Writ of Amparo. More importantly, respondents also
neglect to address our ruling that the failure to conduct a fair and
effective investigation similarly amounted to a violation of, or threat
to Rodriguez’s rights to life, liberty, and security. 14
The writ’s curative role is an acknowledgment that the violation of
the right to life, liberty, and security may be caused not only by a
public official’s act, but also by his omission. Accountability may
attach to respondents who are imputed with knowledge relating to
the enforced disappearance and who carry the burden of disclosure;
or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced
disappearance.15 The duty to investigate must be undertaken in a
serious manner and not as a mere formality preordained to be
ineffective.16
The CA found that respondents Gen. Ibrado, PDG Verzosa, LT.
Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera, and Lt. Col. Mina
conducted a perfunctory investigation which relied solely on the
accounts of the military. Thus, the CA correctly held that the
investigation was superficial, one-sided, and depended entirely on
the report prepared by 1st Lt. Johnny Calub. No efforts were
undertaken to solicit petitioner’s version of the incident, and no
witnesses were questioned regarding it. 17 The CA also took into
account the palpable lack of effort from respondent Versoza, as the
chief of the Philippine National Police.
WHEREFORE, in view of the foregoing, the Motion for
Reconsideration is hereby DENIED with FINALITY. Let a copy of
this Resolution be furnished the Ombudsman for whatever
appropriate action she may still take under circumstances.
SO ORDERED.
221