Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 192330 November 14, 2012

ARNOLD JAMES M. YSIDORO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

ABAD, J.:

This case is about a municipal mayor charged with illegal diversion of food intended for those suffering from malnutrition to the beneficiaries of
reconsideration projects affecting the homes of victims of calamities.

The Facts and the Case

The Office of the Ombudsman for the Visayas accused Arnold James M. Ysidoro before the Sandiganbayan in Criminal Case 28228 of violation of
illegal use of public propertry (technical malversation) under Article 220 of the Revised Penal Code. 1

The facts show that the Municipal Social Welfare and Development Office (MSWDO) of Leyte, Leyte, operated a Core Shelter Assistance Program
(CSAP) that provided construction materials to indigent calamity victims with which to rebuild their homes. The beneficiaries provided the labor
needed for construction.

On June 15, 2001 when construction for calamity victims in Sitio Luy-a, Barangay Tinugtogan, was 70% done, the beneficiaries stopped reporting for
work for the reason that they had to find food for their families. This worried Lolita Garcia (Garcia), the CSAP Officer-in-Charge, for such construction
stoppage could result in the loss of construction materials particularly the cement. Thus, she sought the help of Cristina Polinio (Polinio), an officer of
the MSWDO in charge of the municipality’s Supplemental Feeding Program (SFP) that rationed food to malnourished children. Polinio told Garcia
that the SFP still had sacks of rice and boxes of sardines in its storeroom. And since she had already distributed food to the mother volunteers, what
remained could be given to the CSAP beneficiaries.

Garcia and Polinio went to petitioner Arnold James M. Ysidoro, the Leyte Municipal Mayor, to seek his approval. After explaining the situation to him,
Ysidoro approved the release and signed the withdrawal slip for four sacks of rice and two boxes of sardines worth P3,396.00 to CSAP.2 Mayor
Ysidoro instructed Garcia and Polinio, however, to consult the accounting department regarding the matter. On being consulted, Eldelissa Elises, the
supervising clerk of the Municipal Accountant’s Office, signed the withdrawal slip based on her view that it was an emergency situation justifying the
release of the goods. Subsequently, CSAP delivered those goods to its beneficiaries. Afterwards, Garcia reported the matter to the MSWDO and to
the municipal auditor as per auditing rules.

On August 27, 2001 Alfredo Doller, former member of the Sangguniang Bayan of Leyte, filed the present complaint against Ysidoro. Nierna Doller,
Alfredo's wife and former MSWDO head, testified that the subject SFP goods were intended for its target beneficiaries, Leyte’s malnourished
children. She also pointed out that the Supplemental Feeding Implementation Guidelines for Local Government Units governed the distribution of
SFP goods.3 Thus, Ysidoro committed technical malversation when he approved the distribution of SFP goods to the CSAP beneficiaries.

In his defense, Ysidoro claims that the diversion of the subject goods to a project also meant for the poor of the municipality was valid since they
came from the savings of the SFP and the Calamity Fund. Ysidoro also claims good faith, believing that the municipality’s poor CSAP beneficiaries
were also in urgent need of food. Furthermore, Ysidoro pointed out that the COA Municipal Auditor conducted a comprehensive audit of their
municipality in 2001 and found nothing irregular in its transactions.

On February 8, 2010 the Sandiganbayan found Ysidoro guilty beyond reasonable doubt of technical malversation. But, since his action caused no
damage or embarrassment to public service, it only fined him P1,698.00 or 50% of the sum misapplied. The Sandiganbayan held that Ysidoro
applied public property to a pubic purpose other than that for which it has been appropriated by law or ordinance. On May 12, 2010 the
Sandiganbayan denied Ysidoro’s motion for reconsideration. On June 8, 2010 Ysidoro appealed the Sandiganbayan Decision to this Court.

The Questions Presented

In essence, Ysidoro questions the Sandiganbayan’s finding that he committed technical malversation. He particularly raises the following questions:

1. Whether or not he approved the diversion of the subject goods to a public purpose different from their originally intended purpose;

2. Whether or not the goods he approved for diversion were in the nature of savings that could be used to augment the other authorized
expenditures of the municipality;

3. Whether or not his failure to present the municipal auditor can be taken against him; and

4. Whether or not good faith is a valid defense for technical malversation.

The Court’s Rulings

One. The crime of technical malversation as penalized under Article 220 of the Revised Penal Code 4 has three elements: a) that the offender is an
accountable public officer; b) that he applies public funds or property under his administration to some public use; and c) that the public use for which
such funds or property were applied is different from the purpose for which they were originally appropriated by law or ordinance. 5 Ysidoro claims
that he could not be held liable for the offense under its third element because the four sacks of rice and two boxes of sardines he gave the CSAP
beneficiaries were not appropriated by law or ordinance for a specific purpose.

But the evidence shows that on November 8, 2000 the Sangguniang Bayan of Leyte enacted Resolution 00-133 appropriating the annual general
fund for 2001.6 This appropriation was based on the executive budget7 which allocated P100,000.00 for the SFP and P113,957.64 for the
Comprehensive and Integrated Delivery of Social Services8 which covers the CSAP housing projects.9 The creation of the two items shows the
Sanggunian’s intention to appropriate separate funds for SFP and the CSAP in the annual budget.

Since the municipality bought the subject goods using SFP funds, then those goods should be used for SFP’s needs, observing the rules prescribed
for identifying the qualified beneficiaries of its feeding programs. The target clientele of the SFP according to its manual 10 are: 1) the moderately and
severely underweight pre-school children aged 36 months to 72 months; and 2) the families of six members whose total monthly income is
P3,675.00 and below.11 This rule provides assurance that the SFP would cater only to the malnourished among its people who are in urgent need of
the government’s limited resources.

Ysidoro disregarded the guidelines when he approved the distribution of the goods to those providing free labor for the rebuilding of their own
homes. This is technical malversation. If Ysidoro could not legally distribute the construction materials appropriated for the CSAP housing
beneficiaries to the SFP malnourished clients neither could he distribute the food intended for the latter to CSAP beneficiaries.

Two. Ysidoro claims that the subject goods already constituted savings of the SFP and that, therefore, the same could already be diverted to the
CSAP beneficiaries. He relies on Abdulla v. People12 which states that funds classified as savings are not considered appropriated by law or
ordinance and can be used for other public purposes. The Court cannot accept Ysidoro’s argument.

The subject goods could not be regarded as savings. The SFP is a continuing program that ran throughout the year. Consequently, no one could say
in mid-June 2001 that SFP had already finished its project, leaving funds or goods that it no longer needed. The fact that Polinio had already
distributed the food items needed by the SFP beneficiaries for the second quarter of 2001 does not mean that the remaining food items in its
storeroom constituted unneeded savings. Since the requirements of hungry mouths are hard to predict to the last sack of rice or can of sardines, the
view that the subject goods were no longer needed for the remainder of the year was quite premature.

In any case, the Local Government Code provides that an ordinance has to be enacted to validly apply funds, already appropriated for a determined
public purpose, to some other purpose. Thus:

SEC. 336. Use of Appropriated Funds and Savings. – Funds shall be available exclusively for the specific purpose for which they have been
appropriated. No ordinance shall be passed authorizing any transfer of appropriations from one item to another. However, the local chief executive or
the presiding officer of the sanggunian concerned may, by ordinance, be authorized to augment any item in the approved annual budget for their
respective offices from savings in other items within the same expense class of their respective appropriations.

The power of the purse is vested in the local legislative body. By requiring an ordinance, the law gives the Sanggunian the power to determine
whether savings have accrued and to authorize the augmentation of other items on the budget with those savings.

Three. Ysidoro claims that, since the municipal auditor found nothing irregular in the diversion of the subject goods, such finding should be
respected. The SB ruled, however, that since Ysidoro failed to present the municipal auditor at the trial, the presumption is that his testimony would
have been adverse if produced. Ysidoro argues that this goes against the rule on the presumption of innocence and the presumption of regularity in
the performance of official functions.

Ysidoro may be right in that there is no basis for assuming that had the municipal auditor testified, his testimony would have been adverse to the
mayor. The municipal auditor’s view regarding the transaction is not conclusive to the case and will not necessarily negate the mayor’s liability if it
happened to be favorable to him. The Court will not, therefore, be drawn into speculations regarding what the municipal auditor would have said had
he appeared and testified.

Four. Ysidoro insists that he acted in good faith since, first, the idea of using the SFP goods for the CSAP beneficiaries came, not from him, but from
Garcia and Polinio; and, second, he consulted the accounting department if the goods could be distributed to those beneficiaries. Having no criminal
intent, he argues that he cannot be convicted of the crime.1âwphi1

But criminal intent is not an element of technical malversation. The law punishes the act of diverting public property earmarked by law or ordinance
for a particular public purpose to another public purpose. The offense is mala prohibita, meaning that the prohibited act is not inherently immoral but
becomes a criminal offense because positive law forbids its commission based on considerations of public policy, order, and convenience.13 It is the
commission of an act as defined by the law, and not the character or effect thereof, that determines whether or not the provision has been violated.
Hence, malice or criminal intent is completely irrelevant.14

Dura lex sed lex. Ysidoro’s act, no matter how noble or miniscule the amount diverted, constitutes the crime of technical malversation. The law and
this Court, however, recognize that his offense is not grave, warranting a mere fine.

WHEREFORE, this Court AFFIRMS in its entirely the assailed Decision of the Sandiganbayan in Criminal Case 28228 dated February 8, 2010.
SO ORDERED.

ROBERTO A. ABAD
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

DIOSDADO M. PERALTA JOSE PORTUGAL PEREZ*

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the
Court’s Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

MARIA LOURDES P. A. SERENO

Chief Justice
 CASE DIGEST

Facts:

The Office of the Ombudsman for the Visayas accused Arnold James M. Ysidoro before the Sandiganbayan in Criminal Case 28228 of violation of
illegal use of public property (technical malversation) under Article 220 of the Revised Penal Code. [1]

The facts show that the Municipal Social Welfare and Development Office (MSWDO) of Leyte, Leyte, operated a Core Shelter Assistance Program
(CSAP) that provided construction materials to indigent calamity victims with which to rebuild their homes. The beneficiaries provided the labor
needed for construction.

On June 15, 2001 when construction for calamity victims in Sitio Luy-a, Barangay Tinugtogan, was 70% done, the beneficiaries stopped reporting
for work for the reason that they had to find food for their families. This worried Lolita Garcia (Garcia), the CSAP Officer-in-Charge, for such
construction stoppage could result in the loss of construction materials particularly the cement. Thus, she sought the help of Cristina Polinio
(Polinio), an officer of the MSWDO in charge of the municipality's Supplemental Feeding Program (SFP) that rationed food to malnourished
children. Polinio told Garcia that the SFP still had sacks of rice and boxes of sardines in its storeroom. And since she had already distributed food to
the mother volunteers, what remained could be given to the CSAP beneficiaries.

Garcia and Polinio went to petitioner Arnold James M. Ysidoro, the Leyte Municipal Mayor, to seek his approval. After explaining the situation to
him, Ysidoro approved the release and signed the withdrawal slip for four sacks of rice and two boxes of sardines worth P3,396.00 to
CSAP.[2] Mayor Ysidoro instructed Garcia and Polinio, however, to consult the accounting department regarding the matter. On being consulted,
Eldelissa Elises, the supervising clerk of the Municipal Accountant's Office, signed the withdrawal slip based on her view that it was an emergency
situation justifying the release of the goods. Subsequently, CSAP delivered those goods to its beneficiaries. Afterwards, Garcia reported the matter
to the MSWDO and to the municipal auditor as per auditing rules.

On August 27, 2001 Alfredo Doller, former member of the Sangguniang Bayan of Leyte, filed the present complaint against Ysidoro. Nierna Doller,
Alfredo's wife and former MSWDO head, testified that the subject SFP goods were intended for its target beneficiaries, Leyte's malnourished
children. She also pointed out that the Supplemental Feeding Implementation Guidelines for Local Government Units governed the distribution of
SFP goods.[3] Thus, Ysidoro committed technical malversation when he approved the distribution of SFP goods to the CSAP beneficiaries.

In his defense, Ysidoro claims that the diversion of the subject goods to a project also meant for the poor of the municipality was valid since they
came from the savings of the SFP and the Calamity Fund. Ysidoro also claims good faith, believing that the municipality's poor CSAP beneficiaries
were also in urgent need of food. Furthermore, Ysidoro pointed out that the COA Municipal Auditor conducted a comprehensive audit of their
municipality in 2001 and found nothing irregular in its transactions.

On February 8, 2010 the Sandiganbayan found Ysidoro guilty beyond reasonable doubt of technical malversation. But, since his action caused no
damage or embarrassment to public service, it only fined him P1,698.00 or 50% of the sum misapplied. The Sandiganbayan held that Ysidoro
applied public property to a pubic purpose other than that for which it has been appropriated by law or ordinance. On May 12, 2010 the
Sandiganbayan denied Ysidoro's motion for reconsideration. On June 8, 2010 Ysidoro appealed the Sandiganbayan Decision to this Court.

ISSUE:

1. Whether or not he approved the diversion of the subject goods to a public purpose different from their originally intended purpose;
2. Whether or not the goods he approved for diversion were in the nature of savings that could be used to augment the other authorized
expenditures of the municipality;
3. Whether or not his failure to present the municipal auditor can be taken against him; and
4. Whether or not good faith is a valid defense for technical malversation.

HELD/RATIONALE:
One. The crime of technical malversation as penalized under Article 220 of the Revised Penal Code [4] has three elements: a) that the offender is an
accountable public officer; b) that he applies public funds or property under his administration to some public use; and c) that the public use for which
such funds or property were applied is different from the purpose for which they were originally appropriated by law or ordinance.[5] Ysidoro claims
that he could not be held liable for the offense under its third element because the four sacks of rice and two boxes of sardines he gave the CSAP
beneficiaries were not appropriated by law or ordinance for a specific purpose.

But the evidence shows that on November 8, 2000 the Sangguniang Bayan of Leyte enacted Resolution 00-133 appropriating the annual general
fund for 2001.[6] This appropriation was based on the executive budget[7] which allocated P100,000.00 for the SFP and P113,957.64 for the
Comprehensive and Integrated Delivery of Social Services[8] which covers the CSAP housing projects.[9] The creation of the two items shows the
Sanggunian's intention to appropriate separate funds for SFP and the CSAP in the annual budget.

Since the municipality bought the subject goods using SFP funds, then those goods should be used for SFP's needs, observing the rules prescribed
for identifying the qualified beneficiaries of its feeding programs. The target clientele of the SFP according to its manual[10]are: 1) the moderately and
severely underweight pre-school children aged 36 months to 72 months; and 2) the families of six members whose total monthly income is
P3,675.00 and below.[11] This rule provides assurance that the SFP would cater only to the malnourished among its people who are in urgent need
of the government's limited resources.

Ysidoro disregarded the guidelines when he approved the distribution of the goods to those providing free labor for the rebuilding of their own
homes. This is technical malversation. If Ysidoro could not legally distribute the construction materials appropriated for the CSAP housing
beneficiaries to the SFP malnourished clients neither could he distribute the food intended for the latter to CSAP beneficiaries.
Two. Ysidoro claims that the subject goods already constituted savings of the SFP and that, therefore, the same could already be diverted to the
CSAP beneficiaries. He relies on Abdulla v. People[12] which states that funds classified as savings are not considered appropriated by law or
ordinance and can be used for other public purposes. The Court cannot accept Ysidoro's argument.

The subject goods could not be regarded as savings. The SFP is a continuing program that ran throughout the year. Consequently, no one could
say in mid-June 2001 that SFP had already finished its project, leaving funds or goods that it no longer needed. The fact that Polinio had already
distributed the food items needed by the SFP beneficiaries for the second quarter of 2001 does not mean that the remaining food items in its
storeroom constituted unneeded savings. Since the requirements of hungry mouths are hard to predict to the last sack of rice or can of sardines, the
view that the subject goods were no longer needed for the remainder of the year was quite premature.

In any case, the Local Government Code provides that an ordinance has to be enacted to validly apply funds, already appropriated for a determined
public purpose, to some other purpose. Thus:

5. SEC. 336. Use of Appropriated Funds and Savings. Funds shall be available exclusively for the specific purpose for which they have been
appropriated. No ordinance shall be passed authorizing any transfer of appropriations from one item to another. However, the local chief
executive or the presiding officer of the sanggunian concerned may, by ordinance, be authorized to augment any item in the approved
annual budget for their respective offices from savings in other items within the same expense class of their respective appropriations.
6.
The power of the purse is vested in the local legislative body. By requiring an ordinance, the law gives the Sanggunian the power to
determine whether savings have accrued and to authorize the augmentation of other items on the budget with those savings.

Three. Ysidoro claims that, since the municipal auditor found nothing irregular in the diversion of the subject goods, such finding should be
respected. The SB ruled, however, that since Ysidoro failed to present the municipal auditor at the trial, the presumption is that his
testimony would have been adverse if produced. Ysidoro argues that this goes against the rule on the presumption of innocence and the
presumption of regularity in the performance of official functions.

Ysidoro may be right in that there is no basis for assuming that had the municipal auditor testified, his testimony would have been adverse
to the mayor. The municipal auditor's view regarding the transaction is not conclusive to the case and will not necessarily negate the
mayor's liability if it happened to be favorable to him. The Court will not, therefore, be drawn into speculations regarding what the
municipal auditor would have said had he appeared and testified.

Four. Ysidoro insists that he acted in good faith since, first, the idea of using the SFP goods for the CSAP beneficiaries came, not from
him, but from Garcia and Polinio; and, second, he consulted the accounting department if the goods could be distributed to those
beneficiaries. Having no criminal intent, he argues that he cannot be convicted of the crime.

But criminal intent is not an element of technical malversation. The law punishes the act of diverting public property earmarked by law or
ordinance for a particular public purpose to another public purpose. The offense is mala prohibita, meaning that the prohibited act is not
inherently immoral but becomes a criminal offense because positive law forbids its commission based on considerations of public policy,
order, and convenience.[13] It is the commission of an act as defined by the law, and not the character or effect thereof, that determines
whether or not the provision has been violated. Hence, malice or criminal intent is completely irrelevant.[14]

Dura lex sed lex. Ysidoro's act, no matter how noble or miniscule the amount diverted, constitutes the crime of technical
malversation. The law and this Court, however, recognize that his offense is not grave, warranting a mere fine.
 THIRD DIVISION

G.R. No. 157171 March 14, 2006

ARSENIA B. GARCIA, Petitioner,

vs.
HON. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, Respondents

DECISION

QUISUMBING, J.:

This petition seeks the review of the judgment of the Court of Appeals in CA-G.R. CR No. 245471that affirmed the conviction of petitioner by the
Regional Trial Court2of Alaminos City, Pangasinan, Branch 54, for violation of Section 27(b) of Republic Act No. 6646. 3

Based on the complaint-affidavit of Aquilino Q. Pimentel, Jr., who ran in the 1995 senatorial elections, an information dated March 30, 1998, was
filed in the Regional Trial Court of Alaminos, charging Herminio R. Romero, Renato R. Viray, Rachel Palisoc and Francisca de Vera, and petitioner,
with violation of Section 27(b). The information reads:

That on or about May 11, 1995, which was within the canvassing period during the May 8, 1995 elections, in the Municipality of Alaminos, Province
of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Election Officer Arsenia B. Garcia,
Municipal Treasurer Herminio R. Romero, Public School District Supervisor Renato R. Viray, Chairman, Vice-Chairman, and Member-Secretary,
respectively, of the Municipal Board of Canvassers of Alaminos, Pangasinan, tabulators Rachel Palisoc and Francisca de Vera, conspiring with,
confederating together and mutually helping each other, did, then and there, willfully, and unlawfully decrease[d] the votes received by senatorial
candidate Aquilino Q. Pimentel, Jr. from six thousand nine hundred ninety-eight (6,998) votes, as clearly disclosed in the total number of votes in the
one hundred fifty-nine (159) precincts of the Statement of Votes by Precincts of said municipality, with Serial Nos. 008417, 008418, 008419, 008420,
008421, 008422 and 008423 to one thousand nine hundred twenty-one (1,921) votes as reflected in the Statement of Votes by Precincts with Serial
No. 008423 and Certificate of Canvass with Serial No. 436156 with a difference of five thousand seventy-seven (5,077) votes.

CONTRARY TO LAW.4

In a Decision dated September 11, 2000, the RTC acquitted all the accused for insufficiency of evidence, except petitioner who was convicted as
follows:

xxx

5. And finally, on the person of Arsenia B. Garcia, the Court pronounces her GUILTY beyond reasonable doubt, of the crime defined under Republic
Act 6646, Section 27 (b) for decreasing the votes of Senator Pimentel in the total of 5,034 and in relation to BP Blg. 881, considering that this finding
is a violation of Election Offense, she is thus sentenced to suffer an imprisonment of SIX (6) YEARS as maximum, but applying the
INDETERMINATE SENTENCE LAW, the minimum penalty is the next degree lower which is SIX (6) MONTHS; however, accused Arsenia B. Garcia
is not entitled to probation; further, she is sentenced to suffer disqualification to hold public office and she is also deprived of her right of suffrage.

The bailbond posted by her is hereby ordered cancelled, and the Provincial Warden is ordered to commit her person to the Bureau of Correctional
Institution for Women, at Metro Manila, until further orders from the court.

No pronouncement as to costs.

IT IS SO ORDERED.5

Petitioner appealed before the Court of Appeals which affirmed with modification the RTC Decision, thus,

WHEREFORE, foregoing considered, the appealed decision is hereby affirmed with modification, increasing the minimum penalty imposed by the
trial court from six (6) months to one (1) year.

SO ORDERED.6

The Court of Appeals likewise denied the motion for reconsideration. Hence, this appeal assigning the following as errors of the appellate court:
I

ON THE FIRST AND SECOND GROUNDS RELIED UPON BY THE RESPONDENT COURT, NAMELY, THAT IT COULD NOT HAVE BEEN
SECRETARY VIRAY WHO DECREASED THE VOTES OF COMPLAINANT PIMENTEL SINCE HE MERELY RELIED ON WHAT THE PETITIONER
DICTATED, AND THAT IT COULD NOT HAVE ALSO BEEN THE TABULATORS BECAUSE PETITIONER WAS THE ONE WHO READ THE
ADDING [MACHINE] TAPE.

II

ON THE THIRD GROUND, NAMELY, THAT PETITIONER DID NOT PRODUCE THE TAPES DURING THE TRIAL BECAUSE IF PRODUCED, IT
IS GOING TO BE ADVERSE TO HER.

III

ON THE FOURTH GROUND, NAMELY, THAT THE PETITIONER WAS THE ONE WHO ENTERED THE REDUCED FIGURE OF 1,921 IN THE
CERTIFICATE OF CANVASS (COC), Exh. "7", WHEN THE DUTY WAS THAT OF THE SECRETARY OF THE BOARD.

IV

THE REDUCTION OF THE VOTES OF CANDIDATE PIMENTEL WAS CLEARLY NOT WILLFUL OR INTENTIONAL. 7

Petitioner contends that (1) the Court of Appeals’ judgment is erroneous, based on speculations, surmises and conjectures, instead of substantial
evidence; and (2) there was no motive on her part to reduce the votes of private complainant.

Respondent on the other hand contends that good faith is not a defense in the violation of an election law, which falls under the class of mala
prohibita.

The main issue is, Is a violation of Section 27(b) of Rep. Act No. 6646, classified under mala in se or mala prohibita? Could good faith and lack of
criminal intent be valid defenses?

Generally, mala in se felonies are defined and penalized in the Revised Penal Code. When the acts complained of are inherently immoral, they are
deemed mala in se, even if they are punished by a special law.8Accordingly, criminal intent must be clearly established with the other elements of the
crime; otherwise, no crime is committed. On the other hand, in crimes that are mala prohibita, the criminal acts are not inherently immoral but
become punishable only because the law says they are forbidden. With these crimes, the sole issue is whether the law has been violated.9Criminal
intent is not necessary where the acts are prohibited for reasons of public policy.10

Section 27(b) of Republic Act No. 664611provides:

SEC. 27. Election Offenses.- In addition to the prohibited acts and election offenses enumerated in Sections 261 and 262 of Batas Pambansa Blg.
881, as amended, the following shall be guilty of an election offense:

xxx

(b) Any member of the board of election inspectors or board of canvassers who tampers, increases, or decreases the votes received by a candidate
in any election or any member of the board who refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered
votes.

xxx

Clearly, the acts prohibited in Section 27(b) are mala in se.12For otherwise, even errors and mistakes committed due to overwork and fatigue would
be punishable. Given the volume of votes to be counted and canvassed within a limited amount of time, errors and miscalculations are bound to
happen. And it could not be the intent of the law to punish unintentional election canvass errors. However, intentionally increasing or decreasing the
number of votes received by a candidate is inherently immoral, since it is done with malice and intent to injure another.

Criminal intent is presumed to exist on the part of the person who executes an act which the law punishes, unless the contrary shall appear.13Thus,
whoever invokes good faith as a defense has the burden of proving its existence.

Records show that the canvassing of votes on May 11, 1995 before the Board of Canvassers of the Municipality of Alaminos, Pangasinan was
conducted as follows:

1. After the votes in the 159 precincts of the municipality of Alaminos were tallied, the results thereof were sealed and forwarded to the
Municipal Board of Canvassers for canvassing;

2. The number of votes received by each candidate in each precinct was then recorded in the Statement of Votes with appellant, in her
capacity as Chairman, reading the figures appearing in the results from the precincts and accused Viray, in his capacity as secretary of the
Board, entering the number in the Statements of Votes as read by the appellant. Six Statements of Votes were filled up to reflect the votes
received by each candidate in the 159 precincts of the Municipality of Alaminos, Pangasinan.

3. After the number of votes received by each candidate for each precincts were entered by accused Viray in the Statements of Votes,
these votes were added by the accused Palisoc and de Vera with the use of electrical adding machines.
 4. After the tabulation by accused Palisoc and de Vera, the corresponding machine tapes were handed to appellant who reads the subtotal
of votes received by each candidate in the precincts listed in each Statement of Votes. Accused Viray [then] records the subtotal in the
proper column in the Statement of Votes.

5. After the subtotals had been entered by accused Viray, tabulators accused Palisoc and de Vera added all the subtotals appearing in all
Statement of Votes.

6. After the computation, the corresponding machine tape on which the grand total was reflected was handed to appellant who reads the
same and accused Viray enters the figure read by appellant in the column for grand total in the Statement of Votes. 14

Neither the correctness of the number of votes entered in the Statement of Votes (SOV) for each precinct, nor of the number of votes entered as
subtotals of votes received in the precincts listed in SOV Nos. 008417 to 008422 was raised as an issue.

At first glance, however, there is a noticeable discrepancy in the addition of the subtotals to arrive at the grand total of votes received by each
candidate for all 159 precincts in SOV No. 008423.15The grand total of the votes for private complainant, Senator Aquilino Pimentel, was only 1,921
instead of 6,921, or 5,000 votes less than the number of votes private complainant actually received. This error is also evident in the Certificate of
Canvass (COC) No. 436156 signed by petitioner, Viray and Romero.16

During trial of this case, petitioner admitted that she was indeed the one who announced the figure of 1,921, which was subsequently entered by
then accused Viray in his capacity as secretary of the board.17Petitioner likewise admitted that she was the one who prepared the COC (Exhibit A-7),
though it was not her duty. To our mind, preparing the COC even if it was not her task, manifests an intention to perpetuate the erroneous entry in
the COC.18

Neither can this Court accept petitioner’s explanation that the Board of Canvassers had no idea how the SOV (Exhibit "6") and the COC reflected
that private complainant had only 1,921 votes instead of 6,921 votes. As chairman of the Municipal Board of Canvassers, petitioner’s concern was to
assure accurate, correct and authentic entry of the votes. Her failure to exercise maximum efficiency and fidelity to her trust deserves not only
censure but also the concomitant sanctions as a matter of criminal responsibility pursuant to the dictates of the law.19

The fact that the number of votes deducted from the actual votes received by private complainant, Sen. Aquilino Pimentel, Jr. was not added to any
senatorial candidate does not relieve petitioner of liability under Section 27(b) of Rep. Act No. 6646. The mere decreasing of the votes received by a
candidate in an election is already punishable under the said provision.20

At this point, we see no valid reason to disturb the factual conclusions of the appellate court. The Court has consistently held that factual findings of
the trial court, as well as of the Court of Appeals are final and conclusive and may not be reviewed on appeal, particularly where the findings of both
the trial court and the appellate court on the matter coincide.21

Public policy dictates that extraordinary diligence should be exercised by the members of the board of canvassers in canvassing the results of the
elections. Any error on their part would result in the disenfranchisement of the voters. The Certificate of Canvass for senatorial candidates and its
supporting statements of votes prepared by the municipal board of canvassers are sensitive election documents whose entries must be thoroughly
scrutinized.22

In our review, the votes in the SOV should total 6,998.23

As between the grand total of votes alleged to have been received by private complainant of 6,921 votes and statement of his actual votes received
of 6,998 is a difference of 77 votes. The discrepancy may be validly attributed to mistake or error due to fatigue. However, a decrease of 5,000 votes
as reflected in the Statement of Votes and Certificate of Canvass is substantial, it cannot be allowed to remain on record unchallenged, especially
when the error results from the mere transfer of totals from one document to another.

WHEREFORE, the instant petition is DENIED. The assailed Decision of the Court of Appeals sustaining petitioner’s conviction but increasing the
minimum penalty in her sentence to one year instead of six months is AFFIRMED.

SO ORDERED.

LEONARDO A. QUISUMBING
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice

CONCHITA CARPIO MORALES DANTE O. TINGA

Associate Justice Asscociate Justice
 ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the
Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ARTEMIO V. PANGANIBAN
Chief Justice
 CASE DIGEST

FACTS: On May 11, 1995, within the canvassing period of 1995 senatiorial elections, Aquilino Pimintel, Jr., was informed that Arsenia Garcia
(Arsenia), along with her co-conspirators, willfully and unlawfully decreased the number of votes of the candidate from 6,998 to 1921 votes.
Pimintel filed a complaint against Asenia and her co-conspirators. All the accused was acquited due to lack of evidence except for Arsenia who was
found guilty of the crime defined under Republic Act 6646, Section 27 (b) for decreasing the votes of Senator Pimentel in the total of 5,034 and in
relation to BP Blg. 881.

Petitioner appealed to CA which also affirmed the decision of the RTC.

Arsenia appealed to SC, contending that the judgment of CA is erroneous and there was no motive on her part to reduce the votes of private
complainant.

Respondent on the other hand contends that good faith is not a defense in the violation of an election law, which falls under the class
of mala prohibita.

ISSUES:
(1) Whether or not a violation of Section 27(b) of Rep. Act No. 6646, classified under mala in se.
(2) Whether or not good faith and lack of criminal intent be valid defenses?

HELD:
(1) YES. Section 27(b) of Republic Act No. 6646 provides: Any member of the board of election inspectors or board of canvassers who tampers,
increases, or decreases the votes received by a candidate in any election or any member of the board who refuses, after proper verification and
hearing, to credit the correct votes or deduct such tampered votes.
Clearly, the acts prohibited in Section 27(b) are mala in se. For otherwise, even errors and mistakes committed due to overwork and fatigue would
be punishable.

(2) NO. Public policy dictates that extraordinary diligence should be exercised by the members of the board of canvassers in canvassing the results
of the elections. Any error on their part would result in the disenfranchisement of the voters. The Certificate of Canvass for senatorial candidates and
its supporting statements of votes prepared by the municipal board of canvassers are sensitive election documents whose entries must be
thoroughly scrutinized.

The instant petition is DENIED. The assailed Decision of the Court of Appeals sustaining petitioners conviction but increasing the minimum penalty in
her sentence to one year instead of six months is AFFIRMED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 75256 January 26, 1989

JOHN PHILIP GUEVARRA, petitioner,

vs.
HONORABLE IGNACIO ALMODOVAR, respondent.

Teresita Dy-Liacco and Roberto Madrid for petitioner.

PARAS, J.:

Presented before Us is a special civil action for certiorari against the Honorable Judge Ignacio Almodovar of the City Court of Legaspi, Branch 1,
Legaspi City, raising beautiful questions of law which We are tasked to resolve. Considering the issues and arguments raised by petitioner, We
impleaded the People of the Philippines as party respondents herein in a resolution dated 17 September 1986 (p. 41, Rollo).

The relevant facts gathered from the records are as follows:

Petitioner John Philip Guevarra, then 11 years old, was playing with his best friend Teodoro Almine, Jr. and three other children in their backyard in
the morning of 29 October 1984. They were target-shooting a bottle cap (tansan) placed around fifteen (15) to twenty (20) meters away with an air
rifle borrowed from a neighbor. In the course of their game, Teodoro was hit by a pellet on his left collar bone which caused his unfortunate death.

After conduct a preliminary investigation, the examining Fiscal exculpated petitioner due to his age and because the unfortunate occurrence
appeared to be an accident. The victim's parents appealed to the Ministry of Justice, which ordered the Fiscal to file a case against petitioner for
Homicide through reckless Imprudence. The information dated 9 October 1985 was consequently filed, which narrated in part:

. . . the above-named accused, who is over 9 years but below 15 years of age and acting with discernment, did then and there,
without taking the necessary precautions to prevent and/or avoid accident or injuries to persons, willfully, unlawfully and
feloniously operate and cause to be fired, in a reckless and imprudent manner, an air rifle with .22 caliber bore with rifling,
oxygen and bolt operated thereby hitting as a result of said carelessness and imprudence one TEODORICO PABLO ALMINE at
the left side of the body with its pellet, causing injuries which directly caused his untimely death; . . . (p. 8, Rollo)

On 25 October 1985, petitioner moved to quash the said information on the following grounds:

THAT THE FACTS CHARGED DO NOT CONSTITUTE OFFENSE.

II

THAT THE INFORMATION CONTAINS AVERMENTS WHICH IF TRUE WOULD CONSTITUTE A LEGAL EXCUSE OR
JUSTIFICATION.

III

THAT THIS HONORABLE COURT HAS NO JURISDICTION OVER THE OFFENSE CHARGED AND THE PERSON OF THE
DEFENDANT. (p. 9, Rollo)

This motion, in an Order dated 4 April 1986, was denied with respect to the first and third grounds relied upon. However, the resolution of the second
ground was deferred until evidence shall have been presented during trial.

On 26 July 1986, this present petition for certiorari was filed, raising two (2) issues, to wit:

WHETHER AN ELEVEN (11) YEAR OLD BOY COULD BE CHARGED WITH THE CRIME OF HOMICIDE THRU RECKLESS
IMPRUDENCE, AND

II

WHETHER THE COURT HAD JURISDICTION OVER THE CASE NOTWITHSTANDING THE FACT THAT IT DID NOT PASS
THRU THE BARANGAY LUPON. (Petition, p. 3, Rollo)
Going through the written arguments of the parties, the surfacing of a corollary controversy with respect to the first issue raised is evident, that is,
whether the term "discernment", as used in Article 12(3) of the Revised Penal Code (RPC) is synonymous with "intent." It is the position of the
petitioner that "discernment" connotes 'intent' (p. 96, Rollo), invoking the unreported case of People vs. Nieto, G.R. No. 11965, 30 April 1958. In that
case We held that the allegation of "with intent to kill . . ." amply meets the requirement that discernment should be alleged when the accused is a
minor between 9 and 15 years old. Petitioner completes his syllogism in saying that:

If discernment is the equivalent of 'with intent', then the allegation in the information that the accused acted with discernment and
willfully unlawfully, and feloniously, operate or cause to be fired in a reckless and imprudent manner an air rifle .22 caliber' is an
inherent contradiction tantamount to failure of the information to allege a cause of action or constitute a legal excuse or
exception. (Memorandum for Petitioner, p. 97, Rollo)

If petitioner's argument is correct, then no minor between the ages of 9 and 15 may be convicted of a quasi-offense under Article 265 of the RPC.

On the contrary, the Solicitor General insists that discernment and intent are two different concepts. We agree with the Solicitor General's view; the
two terms should not be confused.

The word "intent" has been defined as

(a) design; a determination to do a certain things; an aim; the purpose of the mind, including such knowledge as is essential to
such intent;. . .; the design resolve, or determination with which a person acts.' (46 CJS Intent p. 1103.)

It is this intent which comprises the third element of dolo as a means of committing a felony, freedom and intelligence being the other two. On the
other hand, We have defined the term discernment, as used in Article 12(3) of the RPC, in the old case of People vs. Doquena, 68 Phil. 580(1939),
in this wise:

The discernment that constitutes an exception to the exemption from criminal liability of a minor under fifteen years of age but
over nine, who commits an act prohibited by law, is his mental capacity to understand the difference between right and wrong . . .
(Emphasis supplied) p. 583

From the foregoing, it is clear that the terms "intent" and "discernment" convey two distinct thoughts. While both are products of the mental
processes within a person, the former refers to the desired of one's act while the latter relates to the moral significance that person ascribes to the
said act. Hence a person may not intend to shoot another but may be aware of the consequences of his negligent act which may cause injury to the
same person in negligently handling an air rifle. It is not connect, therefore, to argue, as petitioner does, that since a minor above nine years of age
but below fifteen acted with discernment, then he intended such act to be done. He may negligently shoot his friend, thus did not intend to shoot him,
and at the same time recognize the undesirable result of his negligence.

In further outlining the distinction between the words "intent" and "discernment," it is worthy to note the basic reason behind the enactment of the
exempting circumstances embodied in Article 12 of the RPC; the complete absence of intelligence, freedom of action, or intent, or on the absence of
negligence on the part of the accused. 1 In expounding on intelligence as the second element of dolus, Albert 2 has stated:

The second element of dolus is intelligence; without this power, necessary to determine the morality of human acts to distinguish
a licit from an illicit act, no crime can exist, and because ... the infant 3 (has) no intelligence, the law exempts (him) from criminal
liability. (Emphasis supplied)

lt is for this reason, therefore, why minors nine years of age and below are not capable of performing a criminal act. On the other hand, minors above
nine years of appeal but below fifteen are not absolutely exempt. However, they are presumed to be without criminal capacity, but which
presumption may be rebutted if it could be proven that they were "capable of appreciating the nature and criminality of the act, that is, that (they)
acted with discernment. " 4 The preceding discussion shows that "intelligence" as an element of dolo actually embraces the concept of discernment
as used in Article 12 of the RPC and as defined in the aforecited case of People vs. Doquena, supra. It could not therefore be argued that
discernment is equivalent or connotes 'intent' for they refer to two different concepts. Intelligence, which includes discernment, is a distinct element
of dolo as a means of committing an offense.

In evaluating felonies committed by means of culpa, three (3) elements are indispensable, namely, intelligence, freedom of action, and negligence.
Obviously, intent is wanting in such felonies. However, intelligence remains as an essential element, hence, it is necessary that a minor above nine
but below fifteen years of age be possessed with intelligence in committing a negligent act which results in a quasi-offense. For him to be criminally
liable, he must discern the rightness or wrongness of the effects of his negligent act. Indeed, a minor over nine years of age but below fifteen may be
held liable for a quasi-offense under Article 365 of the RPC. A reading of the said Article would reveal such fact as it starts off with the phrase "Any
person. . ." without any distinction or exception made. Ubi lex non distinquit nec nos distinguere debemos.

In his last attempt to justify his position equating the words "intent" and "discernment" used under the law, he cites the case of People vs.
Nieto, supra. However, petitioner failed to present the qualifying sentence preceding the ruling he now invokes, which reads:

That requirement should be deemed amply met with the allegation in the information that she. . ."with the intent to kill, did then
and there wilfully, criminally and feloniously push one Lolita Padilla . . ." into a deep place of the Peñaranda River and as a
consequence thereof Lolita Padilla got drowned and died right then and there.' This allegation clearly conveys the Idea that she
knew what would be the consequence of her unlawful act of pushing her victim into deep water and that she knew it to be
wrong. (Emphasis supplied)

From the above, it is clear that We did not mean to equate the words "intent" and "discernment." What We meant was that the combined effect of the
words used in the information is to express a knowledge, on the part of the accused Nieto, of the wrongness or rightness of her act. Hence, petitioner
may not validly contend that since the information now in question alleged "discernment", it in effect alleged "intent." The former may never embrace
the Idea of the latter; the former expresses the thought of passivity while the latter signifies activity.
Coming now to the second issue of jurisdiction, it is contended by the petitioner that the case against him should have first been brought before the
Lupong Tagapayapa pursuant to Presidential Decree No. 1508, Section 2(3). He submits that, considering his entitlement to a two-degree privileged
mitigating circumstance due to his minority, P.D. 1508 applies to his case because the penalty imposable is reduced to not higher than arresto
menor from an original arresto mayor maximum to prision correccional medium as prescribed in Article 365 of the RPC. This is not correct. The
jurisdiction of a court over a criminal case is determined by the penalty imposable under the law for the offense and not the penalty ultimately
imposed (People vs. Caldito, 72 Phil. 263; People vs. Purisima, 69 SCRA 314; Dioquino vs. Cruz and People vs. Savellano, 116 SCRA 451). The
same principle applies in construing Section 2(3) of P.D. 1508, which states:

xxx xxx xxx

(3) Offense punishable by imprisonment exceeding 30 day , or a fine exceeding P 200.00; ... (emphasis supplied)

Expounding on the above provision, a member of the committee that drafted P.D. 1508 has said:

The law says 'punishable,' not 'punished.' One should therefore consider the penalty provided for by law or ordinance as
distinguished from the penalty actually imposed in particular cases after considering the attendant circumstances affecting
criminal liability. 5

The foregoing finds support in our jurisprudence as above cited. We therefore rule that, in construing Section 2(3) of P.D. 1508, the penalty which
the law defining the offense attaches to the latter should be considered. Hence, any circumstance which may affect criminal liability must not be
considered.

The petitioner, in his arguments, asserts that since P.D. 1508 has not been complied with, the trial court has no jurisdiction over the case. This
erroneous perception has been corrected long before. As intimated in the case of Royales vs. IAC, 127 SCRA 470, and categorically stated in Ebol
vs. Amin, 135 SCRA 438, P.D. 1508 is not jurisdictional.

WHEREFORE, PREMISES CONSIDERED, this petition is hereby DISMISSED for lack of merit and the Temporary Restraining Order effective 17
September 1986 is LIFTED. Let this case be REMANDED to the lower court for trial on the merits. No cost.

SO ORDERED.

Melencio-Herrera, (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.

 CASE DIGEST

Facts:
Petitioner John Philip Guevarra, then 11 years old, was playing with his best friend Teodoro Almine,... They were target-shooting a bottle cap... with
an air rifle borrowed from a neighbor. In the course of their game, Teodoro was hit by a pellet on his left collar bone which caused his unfortunate
death.
examining Fiscal exculpated petitioner due to his age and because the unfortunate occurrence appeared to be an accident. The victim's parents
appealed to the Ministry of Justice, which ordered the Fiscal to file a case... against petitioner for Homicide through Reckless Imprudence.
was consequently filed... petitioner moved to quash the said information on the following grounds:
This motion... as denied

Issues:
WHETHER THE COURT HAD JURISDICTION OVER THE CASE NOTWITHSTANDING THE FACT THAT IT DID NOT PASS THRU THE
BARANGAY LUPON.

Ruling:
No.
This is not correct. The jurisdiction of a court over a criminal case is determined by the penalty imposable under the law for the offense and not the
penalty ultimately imposed
The same principle applies in construing Section 2(3) of P.D. 1508, which states:
(3) Offenses punishable by imprisonment exceeding 30 days, or a fine exceeding P200.00; x x x " (underscoring supplied)
The law says 'punishable,' not 'punished.' One should therefore consider the penalty provided for by law or ordinance as distinguished from the
penalty actually imposed in particular cases after considering the attendant circumstances affecting criminal... liability.
We therefore rule that... the penalty which the law defining the offense attaches to the latter should be considered. Hence, any circumstance which
may affect... criminal liability must not be considered.
 Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 95136 October 3, 1991

RAFAEL BAYLOSIS and BENJAMIN DE VERA, petitioners,

vs.

HON. APOLONIO R. CHAVEZ, JR., RIZAL PROVINCIAL PROSECUTOR MAURO CASTRO, COL. VIRGILIO SALDAJENO, HON. FRANKLIN M.
DRILON, JR., HON. FIDEL V. RAMOS and GEN. RENATO DE VILLA, respondents.

Romeo T. Capulong for Rafael Baylosis.

Arno V. Sanidad for Benjamin de Vera.

Efren H. Mercado for Marco Palo.

NARVASA, J.:

The constitutionality of the third paragraph of Section 1 of Presidential Decree No. 1866 is put at issue in the special action of certiorari,
prohibition and mandamus at bar. That provision punishes with the penalty of reclusion perpetua, 1 any person who unlawfully
manufacturers, deals in, acquires, disposes of, or possesses any firearm, 2 "in furtherance of, or incident to, or in connection with the
crimes of rebellion, insurrection or subversion."

This is the second such attack against the provision. The first was launched sometime in 1988 and eventually repelled in this Court's
decision in Misolas vs. Panga, rendered on January 30, 1990. 3 The Court in that case declined to hold the provision unconstitutional,
overruling such arguments as that —

a) the questioned paragraph is violative of the principle of "substantive due process against arbitrary law ... because it disregards
the overwhelming weight of national as well as international laws and jurisprudence behind the Hernandez (99 Phil 615) and Geronimo
(100 Phil 90) rulings on the doctrine of absorption of common crimes in rebellion;"

b) it has given rise to the practice of charging armed rebels or subversives with "qualified' illegal possession of firearms instead of
subversion or rebellion ... (because) (1) the former is easier to prosecute than the latter, and (2) the former has a higher penalty ...;"

c) it is a bill of attainder; and

d) it allows a second jeopardy.

This second challenge to the constitutionality of said third paragraph of Section 1 of Presidential Decree No. 1866 relies on essentially the
same arguments as those put forth in support of the first, petitioners' insistence to the contrary notwithstanding. Since it does not seem
that the passage of time has infused any validity into those arguments, they shall again be struck down as specious, and the second
constitutional challenge, like the first, repulsed.
The case at bar originated from an information filed in the Regional Trial Court at Pasig charging petitioners Rafael Baylosis and Benjamin
de Vera, together with one Marco Palo, with a violation of PD 1866, 4 committed as follows:

That on or about the 29th day of March, 1988 in the Municipality of San Juan, Metro Manila, Philippines ..., the above named accused, all
known high ranking officers of the Communist Party of the Philippines, and its military arm, the New Peoples Army, conspiring and
confederating together and mutually helping each other, did then and there willfully , unlawfully and feloniously have in their possession,
control and custody, in furtherance of, or incident to, or in connection with the crimes of rebellion/subversion, the following, to wit:

A. Firearms/Ammunition

One (1) AK 47 Automatic Rifle with M22N006726 with magazine and 9 rounds.

B. Explosives

Three (3) pieces fragmentation hand grenades without first securing the necessary license or permit thereof from a competent
government authority.

Baylosis, de Vera, and Palo, filed a motion to quash the information on the following grounds, viz.:

I. THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE BECAUSE THEY ARE FOUNDED ON AN
UNCONSTITUTIONAL/REPEALED STATUTE.

B. FOR THE SAME REASONS, THIS HONORABLE COURT IS DEVOID OF JURISDICTION TO TRY THIS CASE.

After receiving the parties' arguments on the matter, the Trial Court denied the motion to quash, by an extended Resolution dated April 24,
1990. A motion for reconsideration filed by Baylosis, et al. was also denied in an Order dated July 12, 1990.

Baylosis and de Vera thereupon instituted the present action in this Court. Here, they plead for the nullification and setting aside of the
Trial Judge's Orders of April 24, 1990 and July 12, 1990; the dismissal of Criminal Case No. 72705 or, alternatively, that the information
therein be considered as charging only simple rebellion; and that the public officials impleaded as respondents — the Rizal Public
Prosecutor, the Secretary of Justice, the Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines, and the
Special Military Prosecutor — be "restrained from further initiating, filing or prosecuting cases involving common crimes against the
petitioners."

What the petitioners advocate at bottom is that a doctrine laid down by jurisprudence or case law is superior to a statute afterwards
enacted by legislative authority; that decisions construing certain specific provisions of one law are sufficient basis for a declaration of
the unconstitutionality of a subsequently enacted law. More specifically, they contend that the rulings in People vs. Amado Hernandez 5
(reiterated in some ten other subsequent rulings), Enrile vs. Salazar, 6 and Enrile vs. Amin 7 — to the effect that the felony of rebellion
defined and penalized in the Revised Penal Code cannot, in accordance with Article 48 of the same Code, be complexed with the offense
of murder, homicide, arson, or other crimes committed in connection with, or on the occasion or in furtherance of, rebellion — render
invalid, as unconstitutional, Section 1 (3) of Presidential Decree No. 1866, as amended.

The petitioners further posit the unconstitutionality of the challenged provision because "repugnant to the provisions of the 1987
Constitution, which guarantee full respect for human rights, equal protection of the laws, due process, right to bail, protection against
double jeopardy and from cruel, degrading or inhuman punishment, and supremacy of civilian authority over the military."
PD 1866 was enacted on June 29, 1983 8 by the late President Marcos in the exercise of his legislative powers under the 1973
Constitution, with the avowed purpose, indicated in its title, to codify "the laws on illegal/unlawful possession, manufacture, dealing in,
acquisition or disposition, of firearms, ammunition or explosives or instruments used in the manufacture of firearms, ammunition or
explosives; and disposing stiffer penalties for certain violations thereof and for relevant purposes." The section (numbered 1) containing
the allegedly unconstitutional provision 9 reads as follows:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or
Intended to be Used in the Manufacture of Firearms or Ammunition. — The penalty of reclusion temporal in its maximum period to
reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any
firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed.

If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion,
the penalty of death shall be imposed.

The penalty reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the owner, president, manager,
director or other responsible officer of any public or private firm, company, corporation or entity, who shall wilfully or knowingly allow any
of the firearms owned by such firm, company, corporation or entity to be used by any person found guilty of violating the provisions of
the preceding paragraphs.

The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal
authority therefor.

It is worthy of note that under this section —

1) simple possession of firearm without license or lawful authority (or unlawful manufacture, dealing in, acquisition, or disposal of
any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition), without more, is punished by reclusion temporal maximum to reclusion perpetua — a penalty that, to be sure, is heavier
than prision mayor, which is the penalty prescribed for rebellion or insurrection by Article 135 of the Revised Penal Code;

2) indeed, even if the firearm be licensed but is brought by the possessor outside of his residence without authority, the penalty
imposed for the act is prision mayor, the same sanction as for rebellion;

3) the penalty is however increased to death (now reclusion perpetua) 10 if —

a) the unlicensed firearm is used in the commission of murder or homicide, or

b) the unlicensed firearm (or part thereof, or ammunition or machinery, tool or instrument in the manufacture of any firearm or
ammunition) is possessed, dealt in, acquired, disposed of or possessed in furtherance of, or incident to, or in connection with the crimes
of rebellion, insurrection or subversion.

Equally noteworthy is that the same PD 1866, as amended, 11 also defines as a crime punishable by reclusion temporal in its maximum
period to reclusion perpetua, the act of any person —

... who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand-grenade(s), rifle grenade(s), and other
explosives, including but not limited to "philbox bombs (sic)," "molotov cocktail bomb," "firebombs," or other incendiary devices capable
of producing destructive effect on contiguous objects or causing injury or death to any person.
In other words, the mere possession of the weapons (or the unlawful manufacture or assembly thereof, or dealing in, acquisition or
disposal thereof) is also punished by reclusion temporal maximum to reclusion perpetua, a penalty higher than that imposed for rebellion
or insurrection, prision mayor, supra.

But the even higher penalty of death (now reclusion perpetua) is imposed if the aforementioned explosives, detonation agents or
incendiary devices —

1) are used in the commission of any of the crimes defined in the Revised Penal Code, and this results in the death of any person
or persons; or

2) are manufactured, assembled, dealt in, acquired, disposed of or possessed "in furtherance of, or incident to, or in connection
with the crimes of rebellion, insurrection or subversion ..."

It is of no little significance that the petitioners do not condemn these other provisions of Section 1 and 3 — defining crimes also
involving possession or manufacturing and/or use of firearms, ammunition and explosives, and penalizing them by reclusion temporal
maximum to reclusion perpetua, or even by death — as being unconstitutionally infirm because imposing cruel or unusual punishment, or
violative of due process, or otherwise.

What they say is that "laws and jurisprudence on political crimes are intended, and should always be interpreted, as favoring the political
offender" since "political crimes are committed by the best of patriots," a theory that, it is said, runs counter to the Misolas decision 12
and impels re-examination of the latter. What they condemn is the imposition of such heavy penalties on the crime of possession,
manufacture or use of firearms or explosives if committed "in furtherance of, or incident to, or in connection with the crimes of rebellion,
insurrection or subversion," as if by some juridic alchemy, relation to rebellion or subversion works a transformation in the nature of the
crimes in question. The connection, in other words, as the petitioners unabashedly affirm, is that the act of illicitly possessing or using a
firearm is ennobled and mitigated by its being connected with an attempt or a publicly asserted intention to overthrow the Government;
that killers, arsonists, terrorists should not be treated as "common criminals," i.e., condemned and punished as the killers, arsonists or
terrorists that they are, if they commit their acts of violence and destruction in the name of "the Revolution." This is sophistry, totally
unacceptable under the constitutional scheme of things in this country. It is a theory which has never been and should never be
sanctioned by this Court. It is a proposition that is not in essence defensible, specially in the context of contemporary events. 13

The petitioners further theorize that Section 1 (3) of PD 1866 is invalid because it gives the public prosecutor an option not to file a case
for rebellion and instead file as many crimes for murder, frustrated murder, etc. as might have been perpetrated in furtherance of, or
incident to, or in connection with rebellion, insurrection or subversion. The argument is not tenable. The fact is that the Revised Penal
Code treats rebellion or insurrection as a crime distinct from murder, homicide, arson, or other felonies that might conceivably be
committed in the course of a rebellion. It is the Code, therefore, in relation to the evidence in the hands of the public prosecutor, and not
the latter's whim or caprice, which gives the choice. The Code allows, for example, separate prosecutions for either murder or rebellion,
although not for both where the indictment alleges that the former has been committed in furtherance of or in connection with the latter.
Surely, whether people are killed or injured in connection with a rebellion, or not, the deaths or injuries of the victims are no less real, and
the grief of the victims' families no less poignant.

Moreover, it certainly is within the power of the legislature to determine what acts or omissions other than those set out in the Revised
Penal Code or other existing statutes are to be condemned as separate, individual crimes and what penalties should be attached thereto.
The power is not diluted or improperly wielded simply because at some prior time the act or omission was but an element or ingredient of
another offense, or might usually have been connected with another crime.

The interdict laid in Hernandez, Enrile and the other cases cited is against attempts to complex rebellion with the so called "common"
crimes committed in furtherance, or in the course, thereof; this, on the authority alone of the first sentence of Article 48 of the Revised
Penal Code. Stated otherwise, the ratio of said cases is that Article 48 cannot be invoked as the basis for charging and prosecuting the
complex crime of rebellion with murder, etc., for the purpose of obtaining imposition of the penalty for the more serious offense in its
maximum period (in accordance with said Art. 48). Said cases did not — indeed they could not and were never meant to — proscribe the
legislative authority from validly enacting statutes that would define and punish, as offenses sui generis crimes which, in the context of
Hernandez, et al. may be viewed as a complex of rebellion with other offenses. There is no constitutional prohibition against this, and the
Court never said there was. What the Court stated in said cases about rebellion "absorbing" common crimes committed in its course or
furtherance must be viewed in light of the fact that at the time they were decided, there were no penal provisions defining and punishing,
as specific offenses, crimes like murder, etc. committed in the course of as part of a rebellion.
This is no longer true, as far as the present case is concerned, and there being no question that PD 1866 was a valid exercise of the
former President's legislative powers. Thus, Misolas, 14 to the effect that charging the qualified offense of illegal possession of firearms
under PD 1866 does not charge the complex crime of subversion with illegal possession of firearms, and hence does not run counter to
Hernandez, et al., is good and correct rule and is applicable here.

In Enrile vs. Salazar, the Court intimated that the remedy against the perceived lightness of the penalty for rebellion was not to be sought
from the courts, but by legislation. It may not unreasonably be supposed that the purpose of PD 1866 appears to be precisely to remedy
that perceived lenity of the penalty prescribed by the Revised Penal Code for rebellion or insurrection and the legal impossibility,
pronounced by this Court of complexing that felony with other crimes punished by higher penalties in accordance with Article 48 of the
same Code.

It is next argued that the proviso in question is unconstitutional because if inflicts on the convicted felon a cruel or unusual punishment,
considering that the Revised Code penalizes rebellion or subversion only by prision mayor. The penalty fixed in said challenged section
is, it is contended, flagrantly and plainly oppressive, greatly disproportionate to the offense, and shocking to the people's sense of justice.
The result, it is further argued, is that the right to bail is denied under PD 1866 when the act thereby punished is only an ingredient of
simple rebellion or subversion (which are bailable offenses) under the Revised Penal Code.

It is well settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that
determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or
unusual if within statutory limits. 15 As pointed out by a brother in the Court, a noted authority on Constitutional Law, this Court had held
(in People vs. Dionisio, 22 SCRA 1299), "that mere severity does not constitute cruel and unusual punishment. Reiterating the rule first
announced in People vs. Estoista (93 Phil. 674), it declared that it takes more than merely being harsh, excessive, out of proportion, or
severe for a penalty to be obnoxious to the Constitution ... 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.'" 16 The same noted
author further points out that "a penalty not normally proportionate to the offense may be imposed in some instances without violation of
the Constitution. ... (as) for example, where the offense has become so rampant as to require the adoption of a more effective deterrent,
like the stealing of jeeps or coconuts, which is punished by the Revised Penal Code as qualified theft" 17 — or, it may be added, like such
crimes as assassinations, bombings and robberies, which are committed nowadays with frightening frequency and seeming impunity
with the use of high-powered weapons, explosives or similar devices, whether in connection with or in furtherance or pursuance of,
rebellion or subversion, or not.

It bears repeating in this connection that mere possession of a firearm without license or lawful authority, 18 without more, is punished by
reclusion temporal maximum to reclusion perpetua; and that the use of an unlicensed firearm in the commission of murder of homicide is
punished by death (now reclusion perpetua 19 ), yet there is no challenge to these penalties as being cruel or unusual.

The petitioners next proffer the argument that the Revised Penal Code punishes the crime of rebellion or insurrection (including the
"common crimes" of murder, homicide, arson, etc. therein absorbed) only with the penalty of prision mayor. Comparisons, as the saying
goes, are odious; and in this case, the attempt to compare PD 1866 with the Revised Penal Code is unwarranted. That there is a difference
in penalty between the two laws does not necessarily establish that the heavier penalty imposed by one of said laws is excessive,
disproportionate, or "cruel or unusual." For it might be argued, too, and certainly not without more than a modicum of validity, that the
penalty in the Penal Code for rebellion may be regarded as unduly light given the conditions now prevailing in the country. In fact, no lack
of commensuration may be pleaded if the avowed premises of PD 1866 (particularly the first, second and fifth whereas clauses of the
preamble) are taken into account, viz.:

1) there has been an upsurge of crimes vitally affecting public order and safety (including, not to say specially, offenses of
rebellion or subversion) due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives;

2) these criminal acts have resulted in loss of human lives damage to property and destruction of valuable resources of the
country;

3) there are some provisions in ... (the) and laws and presidential decrees which must be updated and revised in order to more
effectively deter violators of the law on firearms, ammunition and explosives.
The existence of rebellious groups in our society today, and of numerous bandits, or irresponsible or deranged individuals, is a reality
that cannot be ignored or belittled. Their activities, the killings and acts of destruction and terrorism that they perpetrate, unfortunately
continue unabated despite the best efforts that the Government authorities are exerting, although it may be true that the insurrectionist
groups of the right or the left no longer pose a genuine threat to the security of the state. The need for more effective measures against
these nefarious activities, including of course more stringent laws and more rigorous law-enforcement, cannot be gainsaid.

It is also argued that PD 1866 offends against the equal protection clause of the Constitution in that government prosecutors may
arbitrarily choose those they want to prosecute under said law and those under Article 135 of the Revised Penal Code (or RA 1700, the
Anti-Subversion Act). The argument is unimpressive. It is not much different from saying that a suspected killer is denied the equal
protection of the laws because the prosecutor charges him with murder, not homicide, both crimes, though essentially consisting in the
taking of human life, being punished with different penalties under separate provisions of the penal code. As already stressed, it is the
prerogative of the legislature of the determine what acts or omissions shall be deemed criminal offenses and what sanctions should
attach to them. Certainly, the public prosecutors should have the option to ascertain which prosecutions should be initiated on the basis
of the evidence at hand. That a criminal act may have elements common to more than one offense does not rob the prosecutor of that
option (or discretion) and mandatorily require him to charge the lesser offense although the evidence before him may warrant prosecution
of the more serious one. Now, if government prosecutors make arbitrary choices of those they would prosecute under a particular law,
excluding from the indictment certain individuals against whom there is the same evidence as those impleaded, the fault is not in the law
but in the prosecutors themselves whose duty it is to file the corresponding information or complaint against all persons who appear to
be liable for the offense involved, 20 a duty that should be performed responsibly, without discrimination, arbitrariness or oppression. If
that duty is not performed evenhandedly, the persons aggrieved are not without remedy. They may avail of the remedy of mandamus of
compel compliance with that duty by the prosecutors concerned. 21

The petitioners' invocation of the doctrine of double jeopardy as an argument against the constitutionality of PD 1866 is equally futile.
They maintain that a person held liable under PD 1866 can still be made to answer subsequently for rebellion. The argument is here
disposed of by simply adverting to the resolution of that self-same contention in Misolas:

The right against double jeopardy is a matter which the accused may raise in a motion to quash (Sec. 3[h], Rule 117). But, precisely,
petitioner's motion to quash filed in the trial court did not raise the issue of double jeopardy because it had not arisen. The Court cannot
anticipated that the opportunity for a second jeopardy will still arise if he is acquitted or convicted as charged under P.D. 1866.

Moreover, even if such a subsequent or second jeopardy does arise, P.D. No. 1866 will not be rendered unconstitutional. That an accused
will be exposed to double jeopardy if he is prosecuted under another law is not a ground to nullify that law. Double jeopardy is merely a
defense that an accused may raise to defeat a subsequent prosecution or conviction for the same offense.

WHEREFORE, the petitioner is DENIED for lack of merit, with costs against petitioners.

SO ORDERED.

Fernan, C.J., Melencio-Herrera, Paras, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea and Davide, Jr., JJ., concur.
Separate Opinions

SARMIENTO, J., dissenting:

I dissent. I would like to point out that I was originally assigned to write the opinion for the majority in Misolas vs. Panga, 1 My opinion
sought to strike down Presidential Decree No. 1866 for three reasons: (1) it is a bill of attainder because it presumes the accused to be
guilty, as well, of the crime of subversion, in addition to "illegal possession;" (2) it is vague; and (3) it violates the rule against double
jeopardy. I take the liberty in restating that opinion, as I originally wrote it:

The petitioner, a detained prisoner, prays that the Court declare "the third paragraph of Section 1 of Presidential Decree No. 1866" 1
unconstitutional in this petition for certiorari.

The petitioner was apprehended by elements of the Philippine Constabulary (244th PC Company) on August 8, 1987, at Forest Village,
Barangay Tagbobog, Pili, Camarines Sur. He was arrested along with two others, Identified only as Ka Donna and Ka Menchie, following
"information" 2 reaching the PC headquarters at Naga City that three "subversive terrorists" 3 were sojourning at an "underground
house" 4 at Forest Village. On further information submitted by "neighbors", 5 that "the real owner (of the house) is in Binanauanan, Pili
and that the occupants ... were strangers," 6 the Constabulary through a raiding team, led a search of the house. Their account is as
follows: "We searched the house and found among their personal belongings, voluminous subversive documents and one gauge
shotgun, commonly as 'sumpak' with serial number 221534 and four (4) live ammos for the same firearm." 7 It was added that "we found
inside three persons one (1) male and two (2) female but the two female [sic] escaped." 8 Thereafter, the petitioner was brought to Naga
City for questioning.

On August 10, 1987, the Constabulary filed a complaint with the Provincial Fiscal. On September 4, 1987, or twenty-six days after the
petitioner's arrest without a warrant, the Fiscal filed the corresponding information, for violation of the third paragraph, of Section 1, of
Presidential Decree No. 1866. But it was only on September 11, 1987, or more than one month after his warrantless apprehension, that a
warrant was issued, and bail for his provisional liberty fixed, in the sum of P170,000.00. No bail apparently has been posted up to now
because he cannot afford it. As a matter of fact, the petitioner is represented by a counsel de oficio and has been allowed by the Court to
litigate as a pauper.

On September 30, 1987, the lower court arraigned the petitioner, who entered a plea of not guilty. On October 14, 1987, he filed a "Motion
to Withdraw Plea." Thereupon, he moved to quash the information, on the grounds as follows: "(1) That the facts charged do not
constitute an offense because the Information does not charge the proper offense; 10 and (2) That the court trying the case had no
jurisdiction over the person of the accused because of violations of his constitutional rights." 11

On January 7, 1988, the court a quo issued an order denying quashal. On February 15, 1988, reconsideration was denied.

As indicated at the outset, the validity of certain provisions of Presidential Decree No. 1866 is primarily questioned in this petition.

Presidential Decree No. 1866, "CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN,
ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF
FIREARMS, AMMUNITIONS OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR
RELEVANT PURPOSES," provides in its Section 1 as follows:

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition of Firearms or Ammunition or Instruments Used or Intended to be Used
in the Manufacture of Firearms or Ammunition. — The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be
imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm,
ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed.
If the violation if this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion,
the penalty of death shall be imposed.

The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the owner, president, manager,
director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow
any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the
provisions of the preceding paragraphs.

The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal
authority therefor. 12

It should be noted that under paragraph 3, of Section 3, punishing "unlawful manufacture, sales, acquisition, disposition or possession of
explosives," the penalty is likewise death if the offense is committed "in furtherance of, or incident to, or in connection with the crime of
rebellion, insurrection or subversion." We quote:

SEC. 3 Unlawful Manufacture, Sales, Acquisition, Disposition or Possession of Explosives. — The penalty of reclusion temporal in its
maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire,
dispose or possess handgrenade(s), rifle grenade(s), and other explosives, including but not limited to "pillbox bombs," "molotov cocktail
bomb," "firebombs," or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death
to any person.

Any person who commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned
explosives, detonation agents or incendiary devices, which results in the death of any person or persons shall be punished with the
penalty of death.

If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion,
the penalty of death shall be imposed.

The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the owner, president, manager,
director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow
any of the explosives owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating
the provisions of the preceding paragraphs. 13

The petitioner has been charged under the third paragraph of Section 1, that is, illegal possession of a firearm and ammunition "in
furtherance of, or incident to, or in connection with rebellion, insurrection, or subversion." He is not being held for rebellion, insurrection,
or subversion, the offenses he precisely maintains are the proper offenses (specifically, subversion).

The Decree does not punish "rebellion, insurrection or subversion" as distinct crimes because rebellion, insurrection, and subversion are
offenses already penalized by existing statutes (Article 134 and 135 of the Revised Penal Code with respect to rebellion or insurrection;
Republic Act No. 1700 as amended by Executive Orders Nos.167 and 276 with respect to subversion). Neither can the Decree be said to be
an amendment to the law, as "amendment" is legally defined, meaning to say, an "alternation or charge" 14 for the purpose of "removing
defects or faults" 15 in the statute. It is not necessarily tantamount to a "repeal" either, because, so it is said, while "an amendment keeps
alive ... a 'repeal' destroys." 16

The Court sees nothing in the Decree that would convey this impression, i.e., to amend, much less repeal, existing legal provisions on
national security and public order. By its explicit and express language, what it makes punishable is the unlawful manufacture,
acquisition, disposition, possession of, and dealing in, firearms and armaments without proper legal sanction, and so makes it punishable
by reclusion perpetua, 17 with the qualification that where such a prohibited act is committed in furtherance of, or incident to, or in
connection with rebellion, insurrection, or subversion offenses against public order and national security, the penalty is increased to
death as if rebellion, insurrection, or subversion were aggravating circumstances. 18
In objecting to the Decree, the petitioner says that it cannot validly consider rebellion, insurrection, or subversion as an attendant
circumstance to qualify the offense of "illegal possession" because, precisely "illegal possession" absorbed by rebellion, etc., on the
strength of the Court's rulings in People vs. Hernandez, 19 People vs. Geronimo, 20 People vs. Rodriguez, 21 and People vs. Lava, 22 As a
consequence, so he avers, "illegal possession" when committed "in furtherance of rebellion, etc." constitutes a non-offense.

The Court finds no necessity in belaboring these objections since the Decree must, in any event, be stricken down for being plainly, a bill
of attainder and an offense against due process.

A bill of attainder has been defined as "a legislative act which inflicts punishment without trial." 23 It is expressly prohibited by the
Constitution, 24 but other than by explicit constitutional mandate, it is essentially repugnant to fundamentals of republicanism enshrined
in the Charter. It has thus been said:

Its essence is the substitution of a legislative for a judicial determination of guilt. The constitutional ban against bills of attainder serves to
implement the principle of separation of powers by confining legislatures to rule-making and thereby forestalling legislative usurpation of
the judicial function. History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, 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 stigmatize a statute as a bill of attainder. 25

As Ferrer indicates, the ban on bills of attainder was meant to implement the principle of separation of powers "by confining legislatures
to rule-making and thereby forestalling legislative usurpation of the judicial function." 26 The term originally applied, however, Congress
prescribing the death penalty to specific individuals or groups, "attaining" the victims, and providing for disinheritance. Where the statute
provides for lesser penalties, it is called a "bill of pains and penalties." 27 In Cummings vs. Missouri, 28 the United States Supreme Court
held that the prohibition covers both bills of attainder and bills of pains and penalties.

The concept of bills of attainder is said to be of American origin, 29 although the Biak-na-Bato Constitution's injunction against
imprisonment "except by virtue of judgment passed by a court of competent authority" 30 vaguely resembled present-day constitutional
aversion to bills of attainder. (Under the Malolos Constitution, it was likewise provided that "[n]o Filipino can become a prisoner unless by
virtue of the mandate of a competent judge." 31 It was in Mckinley's so-called instructions to the Second Philippine Commission, however,
that the ban was specially addressed: "Upon every division and branch of the Government of the Philippines. ... must be imposed these
inviolable rules ... that no bill of attainder or ex post facto law shall be

passed ..." 32 Since, then, the prohibition has devolved over from one organic act to another (Philippine Bill of 1902, Jones Law of 1916,
the 1935 Constitution).

That bills of attainder are repulsive to the doctrine of separation of powers, as they are thought to be today, marks actually a departure
from early opinions about the underlying reasons behind the injunction of the Constitution. Essentially, the inhibition was a response to
acts of oppression and arbitrariness of tyrannies of the ancien regime by simple royal decree, which were central to American experience.
Thus, in Ferrer, this Court spoke of the use of bills of attainder "to suppress unpopular causes and political minorities," 33 which,
pertinently, would have made the ban, based on our own experiences under an authoritarian leadership and as a former colony, relevant
to our jurisdiction in spite of its (the ban's) distinction as a relic from a colonial past.

Beginning with U.S. vs. Brown, 34 however, the Supreme Court of the United States declared that the proscription serves "as an
implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply —
trial by legislature." 35 It provided a new tack to constitutional law analysis because in that event, the presence of punishment would no
longer have been the essence of a bill of attainder but rather, because it would have allowed the legislature to impinge on judicial
prerogatives. According to one authority: "Critically, the Supreme Court had shifted its focus from punishment to trial, and the shift
implied that the ban on bills of attainder was a limitation upon the legislative process rather than simply upon legislative policies." 36

Three reasons are said to underlie the "shift": (1) The need to institutionalize the doctrine in the Constitution by "fractionalizing" power;
37 (2) The need to make the adjudicating process strictly the judge's concern, rather than the lawmaker's, because the legislature, as a
political body, is swayed by popular opinions for which it cannot be said to be "impartial," which a judge is presumed to be; and (3) The
concern to make the legislature disclose its purposes by leaving the construction of its acts to a separate body, which a bill of attainder
cannot achieve as it covers both rule and application at the same time. 38
However it is interpreted, the notion of bills of attainder in this jurisdiction had not been as specifically circumscribed, and has been in
fact invoked in questions involving the equal protection, due process, and presumption of innocence clauses of the Charter. Thus, in
Dumlao vs. COMELEC, 39 this Court struck down Section 4 of Batas Blg. 52, which had barred individuals from running in the local
elections of 1980, "who ha[ve] committed any act of disloyalty to the State, including acts amounting to subversion, insurrection, rebellion
or other similar crimes ... provided, that a judgment of convictions for any of the aforementioned crimes shall be conclusive evidence of
such fact and the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary
investigation shall be prima facie evidence of such fact." We invalidated the provision for repugnancy to the presumption-of-innocence
clause of the Constitution:

xxx xxx xxx

Explicit is the constitutional provision, that in all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel (Article IV, section 19, 1973 Constitution). An accusation, according
to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence,
as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or
military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between
a person convicted of acts of disloyalty and one against whom charges have been filed for such acts, as both of them would be ineligible
to run for public office. A person disqualified to run for public office on the ground that charges have been filed against him is virtually
placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory
penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code). 40

In his concurrence, the Chief Justice Enrique Fernando further provides:

xxx xxx xxx

... I would add that such a provision is moreover tainted with arbitrariness and therefore is violative of the due process clause. Such a
constitutional right, to quote from Luzon Surety Co., Inc. vs. Beson, is "not a mere formality that may be dispensed with at will. Its
disregard is a matter of serious concern. It is a constitutional safeguard of the highest order. It is a response to man's innate sense of
justice." As rightfully stressed in the opinion of the Court, the time element may invariably preclude a full hearing on the charge against
him and thus effectively negate the opportunity of an individual to present himself as a candidate. If, as has been invariably the case, a
prosecutor, whether in a civil court or in a military tribunal, saddled as he is with so many complaints filed on his desk would give to the
all-too-human propensity to take the easy way out and to file charges, then a candidate would be hard put to destroy the presumption. A
sense of realism for me compels a declaration of nullity of a provision which on its face is patently offensive to the Constitution. 41

But clearly, the provision constituted a bill of attainder as well, in its fundamental sense as a legislative declaration of guilt. And while the
provision prescribed no penalty as the term is known in penology, other than employment disability, it nonetheless imposed some
hardship upon the aggrieved party. In Cummings vs. Missouri, 42 we are told that deprivation of one's means of livelihood is tantamount
to punishment.

In referring to the "legislature" we are not closing the coverage of the ban on acts of Congress purely, notwithstanding our
pronouncement in Montenegro vs. Castañeda 43 in which we said that "[t]he prohibition applies only to statutes." 44 In the first place, the
Decree questioned herein is clearly in the nature of a "statute." Secondly, the attainder ban is made on any "law" and perforce, it should
likewise apply to any executive act, if is has the character of law. To that extent, we consider Montenegro vs. Castañeda as pro tanto
modified.

We come to the questioned Decree.

We hold that the same, specially, the second and third paragraphs, of Section one thereof, (and the third paragraph, of Section three
thereof), is a bill of attainder because it presumes one accused under its provisions guilty — as well — of the crimes (murder and
homicide under the second paragraph of Section one; and the rebellion, insurrection, and subversion under the third paragraph of Section
one, and the third paragraph of Section 3) that supposedly aggravate "illegal possession of firearms" (or "unlawful manufacture of
explosives") when the accused has not been tried and found guilty of such crimes in any judicial proceeding.
In the case at bar, the fact that the petitioner has been charged with illegal possession of firearms "in furtherance of subversion" means
that the petitioner has committed subversion notwithstanding the fact that he is not standing trial for subversion, or has been convicted
thereof — because precisely, the Decree does not punish subversion. Otherwise, he should have been indicted under the first paragraph,
defining simple "illegal possession."

The fact that one charged under the challenged provisions of the Decree, as was held in People vs. Ferrer, would still have to be proven to
have committed rebellion, insurrection, or murder or homicide in the course of the commission of the "main offenses" in a judicial trial
would not, to the mind of the Court, salvage the statute. As we said, the Decree does not punish rebellion, insurrection, or rebellion, or
murder or homicide, a fact that should make conviction for such offenses impossible (but which the Decree makes possible, anyway). To
make the accused answer for such crimes at the same time, then, is to make him answer for an offense of which he has not been charged
(violation of either Article 137 of the Revised Penal Code, Republic Act No. 1700, as amended by Executive Orders Nos. 167 and 276, or
Article 248 or 249 of the Code), which cannot be done without doing violence to the right of accused persons "to be informed of the nature
and cause of the accusation against him." 45

At any rate, because the statute itself designates the various crimes abovesaid, including subversion, as "aggravating circumstances,"
conviction thereunder would of necessity carry with it the accompanying stain of such offenses. It would have made the accused guilty, at
the same time, of such offenses notwithstanding the fact that he had been charged with simple illegal possession of firearms or unlawful
manufacture of explosives.

Presidential Decree No. 1866, the Court is of the further opinion, is offensive to due process and the prohibition against double jeopardy.
The Court reiterates that it does not penalize subversion (or rebellion, etc.) and because it does not, it allows the State to pursue a
separate proceeding for the said crimes. But in that case the prosecution need only present the self-same evidence constituting illegal
possession of firearms since illegal possession is one of the means of committing subversion under the Anti-Subversion Act. We quote:

SEC. 4. After the approval of this Act, whoever knowingly, wilfully and by overt acts affiliates himself with, becomes or remains a member
of the Communist Party of the Philippines, and/or its successor or of any subversive association as defined in sections two and three
hereof shall be punished by the penalty of arresto mayor and shall be disqualified permanently from holding any public office, appointive
and elective, and from exercising the right to vote; in case of a second conviction, the principal penalty shall be prision correccional, and
in all subsequent convictions the penalty of prision mayor shall be imposed; and any alien convicted under this Act shall be deported
immediately after he shall have served the sentence imposed upon him; Provided, That if such member is an officer or a ranking leader of
the Communist Party of the Philippines or of any subversive association as defined in sections two and three hereof, or if such member
takes up arms against the government, he shall be punished by prision mayor to reclusion perpetua with all the accessory penalties
provided therefor in the Revised Penal Code: And provided, finally. That one who conspires with any other person to overthrow the
Government of the Republic of the Philippines or the government or any of its political subdivisions by force, violence, deceit, subversion
or other illegal means, shall be punished by prision correccional to prision mayor with all the accessory penalties provided therefor in the
same Code. 46

It shall be noted that under the Act above-quoted, subversion may be committed, among other things, by conspiring in the overthrow of
the Government by "other illegal means." 47 And doubtless, illegal possession of firearms or unlawful manufacture of explosives is an
"illegal means." But because conviction under the Decree does not foreclose a future prosecution under the Anti-Subversion Act, it would
have allowed a subsequent punishment for subversion (arising from illegal possession of firearms) based on the same evidence, when
the accused has already been convicted of an offense that comprises a mere element of subversion. Certainly, it would have put him twice
in jeopardy for the same offense.

While it is true in double jeopardy cases, first jeopardy must have attached and that the accused is under threat of a second one, 48 which
does not obtain here, the fact that the Decree in question allows the possibility of such a succeeding jeopardy makes it, the Decree,
repulsive to the fundamentals of due process.

For the reasons above-stated, we consider our ruling in Lazaro vs. People 49 no longer good law. In that case, which involved a
prosecution for illegal possession of unlicensed firearm used in parricide under the provisions of Presidential Decree No. 9 (Presidential
Decree No. 1866's precursor), we held that "[t]he offense of 'Illegal Possession of Unlicensed Firearm used in Parricide' includes the
lesser offense of Parricide." 50 "We hold that it is no longer good law, in the first place, because in no way may parricide be considered a
"lesser offense" than "illegal possession," for one thing, parricide being an offense punished by the Revised Penal Code and "illegal
possession" being an act penalized by a special law. Secondly, if parricide is deemed included in illegal possession of firearm used in
parricide, it means that a prosecution for one should be an abatement of a proceeding for the other, 51 yet, in Tangan vs. People, 52 a
prosecution for possession of an unlicensed firearm used in the commission of homicide under Presidential Decree No. 1866, it was held
that "the offense charged ... [possession of an unlicensed firearm used in the commission of homicide] ... does not operate to extinguish
his criminal liability for the [other]offense charged [homicide]."
53 Apparently., a subsequent prosecution for those offenses that are supposed to qualify "illegal possession" (or "illegal manufacture")
under Presidential Decree No. 1866 is still possible (as Tangan tells us) but must as apparently, this is where the difficulty arises. For if we
allow a trial for such offenses, we would have placed the accused in double jeopardy (as Lazaro tells us). 54 It is therefore no valid
proposition to say that all talk of double jeopardy is too early pending conviction for the first offense, because that result would be
inevitable (in case of a conviction). We find, as we have said, such a situation offensive to due process of law. The Solicitor General
would, however, say:

Section 1 of P.D. No. 1866 is not unconstitutional. It is similar to Batas Pambansa Blg. 22. B.P. Blg. 22 punishes the issuance of an
unfunded check. The issuance of an unfunded check is the mode or means of commission of estafa under paragraph 2(d), Article 315 of
the Revised Penal Code. Under Section 5 of B.P. Blg. 22, "Prosecution under this Act shall be without prejudice to any liability for any
violation of the Revised Penal Code. Despite these circumstances, this Honorable Court upheld the constitutionality of B.P. Blg. 22
(Lozano vs. Martinez, 146 SCRA 323). Thus a person can be simultaneously prosecuted under B.P. Blg. 22 and paragraph 2(d), Article 315
of the Revised Penal Code. 55

The Court sees no parallel between Batas Blg. 22 and Presidential Decree No. 1866 as to effects and implications. When Batas Blg. 22
allows a separate prosecution for estafa, it does so because the issuance of bad checks, the act punished by it, is a separate act that may
or may not constitute estafa because estafa may be committed in ways other than the issuance of bouncing checks, so long as the act
has been attended by deceit, which is not central to the Bouncing Checks Law. A successful prosecution for violation of Batas Blg. 22
does not give the fiscal any more advantage, nor does it place the accused at a disadvantage, because he, the fiscal, must further
establish deceit, the essence of estafa. 56

In the case at bar, however, the petitioner (the accused) is being held liable for illegal possession of firearms "in furtherance of
subversion" which, in itself, is a fundamental ingredient of the offense of subversion, because as we have indicated, subversion is
committed by "any illegal means." And in that event, the prosecution need not establish — in the separate proceeding for subversion —
any other act constituting subversion as defined by law committed by the accused because the finding alone of illegal possession of
firearms would be enough to support a conviction for subversion. It would have allowed the prosecution to strike two birds with a single
stone in a manner that he would not have been permitted to do so under the due process clause of the Constitution.

There is no doubt that the privilege to arm oneself is subject to State regulation. Regulation, however, should be within rightful and
reasonable limits, and with due regard to the rights and liberties of citizens. Centuries ago, we were told that tyranny begins by the
disarming of the people, so that the people cannot defend themselves against tyranny. In that event, "regulation" would have been a plain
excuse for the oppression of the people.

A final word. Presidential Decree No. 1866 was one of the many presidential issuances which had served the dictatorship, and served it
well, as an instrument of repression during the dictatorial years. Because of it, many courageous freedom fighters had perished or
languished in various places of detention throughout our country. It is unfortunate that this oppressive Presidential Decree had been
allowed to remain in our statute books after the apparatus of dictatorship had been dismantled and sadly, it is still being used as
incessantly as in the previous regime. It is an anachronism in the broad democratic space that obtains today. We must strike it down.

WHEREFORE, the petition is GRANTED. Paragraphs two and three, of Section one, of Presidential Decree No. 1866 as amended, as well as
paragraph three, of Section three thereof, are declared UNCONSTITUTIONAL and of no force and effect. The immediate release of the
petitioner from custody is hereby ORDERED.

IT IS SO ORDERED. 2

I would like to add, insofar as the majority in this case adverts to the "Hernandez doctrine," that Presidential Decree No. 1866 is,
moreover, an invalid exercise of judicial power, and is therefore offensive to the principle of separation of powers prescribed by the
Constitution. In People vs. Hernandez, 3 the Court held that common crimes — such as illegal possession of firearms — are simple
ingredients of the primary offense (rebellion, subversion, etc.), for which separate prosecutions are not possible. The Court has spoken.
The legislature can not reinterpret the law by making mere ingredients of an offense punishable separately. Interpretation of the law is the
sole domain of the Court.
As I said, Presidential Decree No. 1866 is one of the last vestiges of authoritarian rule in the country, whereby the State pounced on its
opponents under rules that offered no sporting chance or hope to the State's opponents. Democracy has however, been restored, in
which the State is called upon to lean favorably toward its opponents (i.e., through favorable penal laws and presumption of innocence). It
is time to wipe the Decree out of our statute books.

Regalado, J., I join Justice Sarmiento in his dissent.

CRUZ, J., dissenting:

If the petitioners are convicted of rebellion under the Revised Penal code and found to have used an illegally possessed firearm in
connection therewith, they will be subject to the penalty of only prision mayor. The illegal possession of firearms is absorbed in the crime
of rebellion and may not be separately punished.

On the other hand, if they are convicted of illegal possession of firearms in connection with the crime of rebellion under P.D. 1866, they
will be subject to the extreme penalty of reclusion perpetua (reduced from death). Conviction of the illegal possession carries with it a
finding that the accused was engaged in rebellion.

I am unable to understand the obvious disparity. In both instances, two circumstances are established, to wit, rebellion and illegal
possession of firearms. Yet the first offense is punished only with prision mayor but the second is punished with reclusion perpetua.

Due process requires as a desideratum of fairness the equivalence of the degree of the offense and the degree of the penalty. A serious
offense deserves a heavy penalty while a light offense authorizes only a mild penalty. Otherwise stated, a light offense cannot be
punished with a heavy penalty, as where, say, littering is penalized with life imprisonment.

It is true, as the ponencia states, that there are cases where an offense not serious per se may be punished with a heavy penalty as a
deterrent to its proliferation or because of some special social purpose that may be justified under the some special social purpose that
may be justified under the police power. But in such cases, it must be established that the offenses are sui generis to justify deviation
from the general rule. Lacking such justification, the disproportionate penalty may be struck down as a cruel or inhuman punishment.

In the cases before us, the law takes an ambivalent position toward the crime of illegal possession of firearms when committed in
connection with rebellion. As the basic offense under PD 1866, it is considered a serious offense and penalized with no less than
reclusion perpetua. However, as a mere attendant circumstance in committing rebellion under the Revised Penal Code, it is not even
separately punished, being deemed absorbed in the main offense.

It seems to me that if it is the intention of the legislature to consider a particular crime a serious offense deserving a heavy penalty, it
should be consistent in the application of such penalty. It cannot punish the offense heavily in one case and practically condone it in
another case.

One might say that this involves a question of policy or wisdom that is resoluble only by Congress and not by this Court. That may be so,
again as a general rule, but not where considerations of due process and equal protection are involved.

Under the laws as they stood when the petitioners were formally indicted, the prosecuting officer was given the choice of the offense he
could charge, depending on his discretion, which could in turn depend on his attitude toward the suspect. This circumstance gave a
dangerous power to the government to discriminate in the prosecution of persons charged with practically the same offense, treating
some of them severely and the others with benign leniency.
It has been held that although a law may be fair and impartial on its face, it must nevertheless be annulled if it gives the administrative
officer the discretion to enforce it with "an evil eye and an uneven hand" (Yick Wo vs. Hopkins, 118 U.S. 356; People vs. Vera, 65 Phil. 56).
That is exactly what PD 1866 empowered the prosecuting officer to do. In fact, at the hearing of this case before this Court, the
government counsel frankly admitted that the petitioners were prosecuted under the decree because it prescribed the heavier penalty
although they could also have been prosecuted for rebellion under the Revised Penal Code.

Mention has been made of RA 6968 which now imposes for simple rebellion under Articles 134 and 135 of the Revised Penal Code the
same penalty for violation of Sec. 1(3) of Sec. 3(3) of PD 1866. The subsequent passage of the amendatory law in 1990 does not, of course,
affect the petitioners in the case at bar because the offense imputed to them were supposedly committed in 1988. Such amendment may
have corrected the injustice inherent in the aforestated provisions of PD 1866, which is thus now relieved of its constitutional infirmity.
However, the decree may still not be applied to the herein petitioners as it was unconstitutional at the time it was made the basis for their
prosecution and the subsequent enactment of RA 6968 did not retroactively validate it.

My vote is to grant the petition. So did I vote in Misolas.

Gutierrez, Jr., J., dissent.

# Separate Opinions

SARMIENTO, J., dissenting:

I dissent. I would like to point out that I was originally assigned to write the opinion for the majority in Misolas vs. Panga, 1 My opinion
sought to strike down Presidential Decree No. 1866 for three reasons: (1) it is a bill of attainder because it presumes the accused to be
guilty, as well, of the crime of subversion, in addition to "illegal possession;" (2) it is vague; and (3) it violates the rule against double
jeopardy. I take the liberty in restating that opinion, as I originally wrote it:

The petitioner, a detained prisoner, prays that the Court declare "the third paragraph of Section 1 of Presidential Decree No. 1866" 1
unconstitutional in this petition for certiorari.

The petitioner was apprehended by elements of the Philippine Constabulary (244th PC Company) on August 8, 1987, at Forest Village,
Barangay Tagbobog, Pili, Camarines Sur. He was arrested along with two others, Identified only as Ka Donna and Ka Menchie, following
"information" 2 reaching the PC headquarters at Naga City that three "subversive terrorists" 3 were sojourning at an "underground
house" 4 at Forest Village. On further information submitted by "neighbors", 5 that "the real owner (of the house) is in Binanauanan, Pili
and that the occupants ... were strangers," 6 the Constabulary through a raiding team, led a search of the house. Their account is as
follows: "We searched the house and found among their personal belongings, voluminous subversive documents and one gauge
shotgun, commonly as 'sumpak' with serial number 221534 and four (4) live ammos for the same firearm." 7 It was added that "we found
inside three persons one (1) male and two (2) female but the two female [sic] escaped." 8 Thereafter, the petitioner was brought to Naga
City for questioning.

On August 10, 1987, the Constabulary filed a complaint with the Provincial Fiscal. On September 4, 1987, or twenty-six days after the
petitioner's arrest without a warrant, the Fiscal filed the corresponding information, for violation of the third paragraph, of Section 1, of
Presidential Decree No. 1866. But it was only on September 11, 1987, or more than one month after his warrantless apprehension, that a
warrant was issued, and bail for his provisional liberty fixed, in the sum of P170,000.00. No bail apparently has been posted up to now
because he cannot afford it. As a matter of fact, the petitioner is represented by a counsel de oficio and has been allowed by the Court to
litigate as a pauper.

On September 30, 1987, the lower court arraigned the petitioner, who entered a plea of not guilty. On October 14, 1987, he filed a "Motion
to Withdraw Plea." Thereupon, he moved to quash the information, on the grounds as follows: "(1) That the facts charged do not
constitute an offense because the Information does not charge the proper offense; 10 and (2) That the court trying the case had no
jurisdiction over the person of the accused because of violations of his constitutional rights." 11
On January 7, 1988, the court a quo issued an order denying quashal. On February 15, 1988, reconsideration was denied.

As indicated at the outset, the validity of certain provisions of Presidential Decree No. 1866 is primarily questioned in this petition.

Presidential Decree No. 1866, "CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN,
ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF
FIREARMS, AMMUNITIONS OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR
RELEVANT PURPOSES," provides in its Section 1 as follows:

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition of Firearms or Ammunition or Instruments Used or Intended to be Used
in the Manufacture of Firearms or Ammunition. — The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be
imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm,
ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed.

If the violation if this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion,
the penalty of death shall be imposed.

The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the owner, president, manager,
director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow
any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the
provisions of the preceding paragraphs.

The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal
authority therefor. 12

It should be noted that under paragraph 3, of Section 3, punishing "unlawful manufacture, sales, acquisition, disposition or possession of
explosives," the penalty is likewise death if the offense is committed "in furtherance of, or incident to, or in connection with the crime of
rebellion, insurrection or subversion." We quote:

SEC. 3 Unlawful Manufacture, Sales, Acquisition, Disposition or Possession of Explosives. — The penalty of reclusion temporal in its
maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire,
dispose or possess handgrenade(s), rifle grenade(s), and other explosives, including but not limited to "pillbox bombs," "molotov cocktail
bomb," "firebombs," or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death
to any person.

Any person who commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned
explosives, detonation agents or incendiary devices, which results in the death of any person or persons shall be punished with the
penalty of death.

If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion,
the penalty of death shall be imposed.

The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the owner, president, manager,
director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow
any of the explosives owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating
the provisions of the preceding paragraphs. 13
The petitioner has been charged under the third paragraph of Section 1, that is, illegal possession of a firearm and ammunition "in
furtherance of, or incident to, or in connection with rebellion, insurrection, or subversion." He is not being held for rebellion, insurrection,
or subversion, the offenses he precisely maintains are the proper offenses (specifically, subversion).

The Decree does not punish "rebellion, insurrection or subversion" as distinct crimes because rebellion, insurrection, and subversion are
offenses already penalized by existing statutes (Article 134 and 135 of the Revised Penal Code with respect to rebellion or insurrection;
Republic Act No. 1700 as amended by Executive Orders Nos.167 and 276 with respect to subversion). Neither can the Decree be said to be
an amendment to the law, as "amendment" is legally defined, meaning to say, an "alternation or charge" 14 for the purpose of "removing
defects or faults" 15 in the statute. It is not necessarily tantamount to a "repeal" either, because, so it is said, while "an amendment keeps
alive ... a 'repeal' destroys." 16

The Court sees nothing in the Decree that would convey this impression, i.e., to amend, much less repeal, existing legal provisions on
national security and public order. By its explicit and express language, what it makes punishable is the unlawful manufacture,
acquisition, disposition, possession of, and dealing in, firearms and armaments without proper legal sanction, and so makes it punishable
by reclusion perpetua, 17 with the qualification that where such a prohibited act is committed in furtherance of, or incident to, or in
connection with rebellion, insurrection, or subversion offenses against public order and national security, the penalty is increased to
death as if rebellion, insurrection, or subversion were aggravating circumstances. 18

In objecting to the Decree, the petitioner says that it cannot validly consider rebellion, insurrection, or subversion as an attendant
circumstance to qualify the offense of "illegal possession" because, precisely "illegal possession" absorbed by rebellion, etc., on the
strength of the Court's rulings in People vs. Hernandez, 19 People vs. Geronimo, 20 People vs. Rodriguez, 21 and People vs. Lava, 22 As a
consequence, so he avers, "illegal possession" when committed "in furtherance of rebellion, etc." constitutes a non-offense.

The Court finds no necessity in belaboring these objections since the Decree must, in any event, be stricken down for being plainly, a bill
of attainder and an offense against due process.

A bill of attainder has been defined as "a legislative act which inflicts punishment without trial." 23 It is expressly prohibited by the
Constitution, 24 but other than by explicit constitutional mandate, it is essentially repugnant to fundamentals of republicanism enshrined
in the Charter. It has thus been said:

Its essence is the substitution of a legislative for a judicial determination of guilt. The constitutional ban against bills of attainder serves to
implement the principle of separation of powers by confining legislatures to rule-making and thereby forestalling legislative usurpation of
the judicial function. History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, 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 stigmatize a statute as a bill of attainder. 25

As Ferrer indicates, the ban on bills of attainder was meant to implement the principle of separation of powers "by confining legislatures
to rule-making and thereby forestalling legislative usurpation of the judicial function." 26 The term originally applied, however, Congress
prescribing the death penalty to specific individuals or groups, "attaining" the victims, and providing for disinheritance. Where the statute
provides for lesser penalties, it is called a "bill of pains and penalties." 27 In Cummings vs. Missouri, 28 the United States Supreme Court
held that the prohibition covers both bills of attainder and bills of pains and penalties.

The concept of bills of attainder is said to be of American origin, 29 although the Biak-na-Bato Constitution's injunction against
imprisonment "except by virtue of judgment passed by a court of competent authority" 30 vaguely resembled present-day constitutional
aversion to bills of attainder. (Under the Malolos Constitution, it was likewise provided that "[n]o Filipino can become a prisoner unless by
virtue of the mandate of a competent judge." 31 It was in Mckinley's so-called instructions to the Second Philippine Commission, however,
that the ban was specially addressed: "Upon every division and branch of the Government of the Philippines. ... must be imposed these
inviolable rules ... that no bill of attainder or ex post facto law shall be

passed ..." 32 Since, then, the prohibition has devolved over from one organic act to another (Philippine Bill of 1902, Jones Law of 1916,
the 1935 Constitution).
That bills of attainder are repulsive to the doctrine of separation of powers, as they are thought to be today, marks actually a departure
from early opinions about the underlying reasons behind the injunction of the Constitution. Essentially, the inhibition was a response to
acts of oppression and arbitrariness of tyrannies of the ancien regime by simple royal decree, which were central to American experience.
Thus, in Ferrer, this Court spoke of the use of bills of attainder "to suppress unpopular causes and political minorities," 33 which,
pertinently, would have made the ban, based on our own experiences under an authoritarian leadership and as a former colony, relevant
to our jurisdiction in spite of its (the ban's) distinction as a relic from a colonial past.

Beginning with U.S. vs. Brown, 34 however, the Supreme Court of the United States declared that the proscription serves "as an
implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply —
trial by legislature." 35 It provided a new tack to constitutional law analysis because in that event, the presence of punishment would no
longer have been the essence of a bill of attainder but rather, because it would have allowed the legislature to impinge on judicial
prerogatives. According to one authority: "Critically, the Supreme Court had shifted its focus from punishment to trial, and the shift
implied that the ban on bills of attainder was a limitation upon the legislative process rather than simply upon legislative policies." 36

Three reasons are said to underlie the "shift": (1) The need to institutionalize the doctrine in the Constitution by "fractionalizing" power;
37 (2) The need to make the adjudicating process strictly the judge's concern, rather than the lawmaker's, because the legislature, as a
political body, is swayed by popular opinions for which it cannot be said to be "impartial," which a judge is presumed to be; and (3) The
concern to make the legislature disclose its purposes by leaving the construction of its acts to a separate body, which a bill of attainder
cannot achieve as it covers both rule and application at the same time. 38

However it is interpreted, the notion of bills of attainder in this jurisdiction had not been as specifically circumscribed, and has been in
fact invoked in questions involving the equal protection, due process, and presumption of innocence clauses of the Charter. Thus, in
Dumlao vs. COMELEC, 39 this Court struck down Section 4 of Batas Blg. 52, which had barred individuals from running in the local
elections of 1980, "who ha[ve] committed any act of disloyalty to the State, including acts amounting to subversion, insurrection, rebellion
or other similar crimes ... provided, that a judgment of convictions for any of the aforementioned crimes shall be conclusive evidence of
such fact and the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary
investigation shall be prima facie evidence of such fact." We invalidated the provision for repugnancy to the presumption-of-innocence
clause of the Constitution:

xxx xxx xxx

Explicit is the constitutional provision, that in all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel (Article IV, section 19, 1973 Constitution). An accusation, according
to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence,
as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or
military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between
a person convicted of acts of disloyalty and one against whom charges have been filed for such acts, as both of them would be ineligible
to run for public office. A person disqualified to run for public office on the ground that charges have been filed against him is virtually
placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory
penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code). 40

In his concurrence, the Chief Justice Enrique Fernando further provides:

xxx xxx xxx

... I would add that such a provision is moreover tainted with arbitrariness and therefore is violative of the due process clause. Such a
constitutional right, to quote from Luzon Surety Co., Inc. vs. Beson, is "not a mere formality that may be dispensed with at will. Its
disregard is a matter of serious concern. It is a constitutional safeguard of the highest order. It is a response to man's innate sense of
justice." As rightfully stressed in the opinion of the Court, the time element may invariably preclude a full hearing on the charge against
him and thus effectively negate the opportunity of an individual to present himself as a candidate. If, as has been invariably the case, a
prosecutor, whether in a civil court or in a military tribunal, saddled as he is with so many complaints filed on his desk would give to the
all-too-human propensity to take the easy way out and to file charges, then a candidate would be hard put to destroy the presumption. A
sense of realism for me compels a declaration of nullity of a provision which on its face is patently offensive to the Constitution. 41
But clearly, the provision constituted a bill of attainder as well, in its fundamental sense as a legislative declaration of guilt. And while the
provision prescribed no penalty as the term is known in penology, other than employment disability, it nonetheless imposed some
hardship upon the aggrieved party. In Cummings vs. Missouri, 42 we are told that deprivation of one's means of livelihood is tantamount
to punishment.

In referring to the "legislature" we are not closing the coverage of the ban on acts of Congress purely, notwithstanding our
pronouncement in Montenegro vs. Castañeda 43 in which we said that "[t]he prohibition applies only to statutes." 44 In the first place, the
Decree questioned herein is clearly in the nature of a "statute." Secondly, the attainder ban is made on any "law" and perforce, it should
likewise apply to any executive act, if is has the character of law. To that extent, we consider Montenegro vs. Castañeda as pro tanto
modified.

We come to the questioned Decree.

We hold that the same, specially, the second and third paragraphs, of Section one thereof, (and the third paragraph, of Section three
thereof), is a bill of attainder because it presumes one accused under its provisions guilty — as well — of the crimes (murder and
homicide under the second paragraph of Section one; and the rebellion, insurrection, and subversion under the third paragraph of Section
one, and the third paragraph of Section 3) that supposedly aggravate "illegal possession of firearms" (or "unlawful manufacture of
explosives") when the accused has not been tried and found guilty of such crimes in any judicial proceeding. In the case at bar, the fact
that the petitioner has been charged with illegal possession of firearms "in furtherance of subversion" means that the petitioner has
committed subversion notwithstanding the fact that he is not standing trial for subversion, or has been convicted thereof — because
precisely, the Decree does not punish subversion. Otherwise, he should have been indicted under the first paragraph, defining simple
"illegal possession."

The fact that one charged under the challenged provisions of the Decree, as was held in People vs. Ferrer, would still have to be proven to
have committed rebellion, insurrection, or murder or homicide in the course of the commission of the "main offenses" in a judicial trial
would not, to the mind of the Court, salvage the statute. As we said, the Decree does not punish rebellion, insurrection, or rebellion, or
murder or homicide, a fact that should make conviction for such offenses impossible (but which the Decree makes possible, anyway). To
make the accused answer for such crimes at the same time, then, is to make him answer for an offense of which he has not been charged
(violation of either Article 137 of the Revised Penal Code, Republic Act No. 1700, as amended by Executive Orders Nos. 167 and 276, or
Article 248 or 249 of the Code), which cannot be done without doing violence to the right of accused persons "to be informed of the nature
and cause of the accusation against him." 45

At any rate, because the statute itself designates the various crimes abovesaid, including subversion, as "aggravating circumstances,"
conviction thereunder would of necessity carry with it the accompanying stain of such offenses. It would have made the accused guilty, at
the same time, of such offenses notwithstanding the fact that he had been charged with simple illegal possession of firearms or unlawful
manufacture of explosives.

Presidential Decree No. 1866, the Court is of the further opinion, is offensive to due process and the prohibition against double jeopardy.
The Court reiterates that it does not penalize subversion (or rebellion, etc.) and because it does not, it allows the State to pursue a
separate proceeding for the said crimes. But in that case the prosecution need only present the self-same evidence constituting illegal
possession of firearms since illegal possession is one of the means of committing subversion under the Anti-Subversion Act. We quote:

SEC. 4. After the approval of this Act, whoever knowingly, wilfully and by overt acts affiliates himself with, becomes or remains a member
of the Communist Party of the Philippines, and/or its successor or of any subversive association as defined in sections two and three
hereof shall be punished by the penalty of arresto mayor and shall be disqualified permanently from holding any public office, appointive
and elective, and from exercising the right to vote; in case of a second conviction, the principal penalty shall be prision correccional, and
in all subsequent convictions the penalty of prision mayor shall be imposed; and any alien convicted under this Act shall be deported
immediately after he shall have served the sentence imposed upon him; Provided, That if such member is an officer or a ranking leader of
the Communist Party of the Philippines or of any subversive association as defined in sections two and three hereof, or if such member
takes up arms against the government, he shall be punished by prision mayor to reclusion perpetua with all the accessory penalties
provided therefor in the Revised Penal Code: And provided, finally. That one who conspires with any other person to overthrow the
Government of the Republic of the Philippines or the government or any of its political subdivisions by force, violence, deceit, subversion
or other illegal means, shall be punished by prision correccional to prision mayor with all the accessory penalties provided therefor in the
same Code. 46
It shall be noted that under the Act above-quoted, subversion may be committed, among other things, by conspiring in the overthrow of
the Government by "other illegal means." 47 And doubtless, illegal possession of firearms or unlawful manufacture of explosives is an
"illegal means." But because conviction under the Decree does not foreclose a future prosecution under the Anti-Subversion Act, it would
have allowed a subsequent punishment for subversion (arising from illegal possession of firearms) based on the same evidence, when
the accused has already been convicted of an offense that comprises a mere element of subversion. Certainly, it would have put him twice
in jeopardy for the same offense.

While it is true in double jeopardy cases, first jeopardy must have attached and that the accused is under threat of a second one, 48 which
does not obtain here, the fact that the Decree in question allows the possibility of such a succeeding jeopardy makes it, the Decree,
repulsive to the fundamentals of due process.

For the reasons above-stated, we consider our ruling in Lazaro vs. People 49 no longer good law. In that case, which involved a
prosecution for illegal possession of unlicensed firearm used in parricide under the provisions of Presidential Decree No. 9 (Presidential
Decree No. 1866's precursor), we held that "[t]he offense of 'Illegal Possession of Unlicensed Firearm used in Parricide' includes the
lesser offense of Parricide." 50 "We hold that it is no longer good law, in the first place, because in no way may parricide be considered a
"lesser offense" than "illegal possession," for one thing, parricide being an offense punished by the Revised Penal Code and "illegal
possession" being an act penalized by a special law. Secondly, if parricide is deemed included in illegal possession of firearm used in
parricide, it means that a prosecution for one should be an abatement of a proceeding for the other, 51 yet, in Tangan vs. People, 52 a
prosecution for possession of an unlicensed firearm used in the commission of homicide under Presidential Decree No. 1866, it was held
that "the offense charged ... [possession of an unlicensed firearm used in the commission of homicide] ... does not operate to extinguish
his criminal liability for the [other]offense charged [homicide]." 53 Apparently., a subsequent prosecution for those offenses that are
supposed to qualify "illegal possession" (or "illegal manufacture") under Presidential Decree No. 1866 is still possible (as Tangan tells us)
but must as apparently, this is where the difficulty arises. For if we allow a trial for such offenses, we would have placed the accused in
double jeopardy (as Lazaro tells us). 54 It is therefore no valid proposition to say that all talk of double jeopardy is too early pending
conviction for the first offense, because that result would be inevitable (in case of a conviction). We find, as we have said, such a situation
offensive to due process of law. The Solicitor General would, however, say:

Section 1 of P.D. No. 1866 is not unconstitutional. It is similar to Batas Pambansa Blg. 22. B.P. Blg. 22 punishes the issuance of an
unfunded check. The issuance of an unfunded check is the mode or means of commission of estafa under paragraph 2(d), Article 315 of
the Revised Penal Code. Under Section 5 of B.P. Blg. 22, "Prosecution under this Act shall be without prejudice to any liability for any
violation of the Revised Penal Code. Despite these circumstances, this Honorable Court upheld the constitutionality of B.P. Blg. 22
(Lozano vs. Martinez, 146 SCRA 323). Thus a person can be simultaneously prosecuted under B.P. Blg. 22 and paragraph 2(d), Article 315
of the Revised Penal Code. 55

The Court sees no parallel between Batas Blg. 22 and Presidential Decree No. 1866 as to effects and implications. When Batas Blg. 22
allows a separate prosecution for estafa, it does so because the issuance of bad checks, the act punished by it, is a separate act that may
or may not constitute estafa because estafa may be committed in ways other than the issuance of bouncing checks, so long as the act
has been attended by deceit, which is not central to the Bouncing Checks Law. A successful prosecution for violation of Batas Blg. 22
does not give the fiscal any more advantage, nor does it place the accused at a disadvantage, because he, the fiscal, must further
establish deceit, the essence of estafa. 56

In the case at bar, however, the petitioner (the accused) is being held liable for illegal possession of firearms "in furtherance of
subversion" which, in itself, is a fundamental ingredient of the offense of subversion, because as we have indicated, subversion is
committed by "any illegal means." And in that event, the prosecution need not establish — in the separate proceeding for subversion —
any other act constituting subversion as defined by law committed by the accused because the finding alone of illegal possession of
firearms would be enough to support a conviction for subversion. It would have allowed the prosecution to strike two birds with a single
stone in a manner that he would not have been permitted to do so under the due process clause of the Constitution.

There is no doubt that the privilege to arm oneself is subject to State regulation. Regulation, however, should be within rightful and
reasonable limits, and with due regard to the rights and liberties of citizens. Centuries ago, we were told that tyranny begins by the
disarming of the people, so that the people cannot defend themselves against tyranny. In that event, "regulation" would have been a plain
excuse for the oppression of the people.
A final word. Presidential Decree No. 1866 was one of the many presidential issuances which had served the dictatorship, and served it
well, as an instrument of repression during the dictatorial years. Because of it, many courageous freedom fighters had perished or
languished in various places of detention throughout our country. It is unfortunate that this oppressive Presidential Decree had been
allowed to remain in our statute books after the apparatus of dictatorship had been dismantled and sadly, it is still being used as
incessantly as in the previous regime. It is an anachronism in the broad democratic space that obtains today. We must strike it down.

WHEREFORE, the petition is GRANTED. Paragraphs two and three, of Section one, of Presidential Decree No. 1866 as amended, as well as
paragraph three, of Section three thereof, are declared UNCONSTITUTIONAL and of no force and effect. The immediate release of the
petitioner from custody is hereby ORDERED.

IT IS SO ORDERED. 2

I would like to add, insofar as the majority in this case adverts to the "Hernandez doctrine," that Presidential Decree No. 1866 is,
moreover, an invalid exercise of judicial power, and is therefore offensive to the principle of separation of powers prescribed by the
Constitution. In People vs. Hernandez, 3 the Court held that common crimes — such as illegal possession of firearms — are simple
ingredients of the primary offense (rebellion, subversion, etc.), for which separate prosecutions are not possible. The Court has spoken.
The legislature can not reinterpret the law by making mere ingredients of an offense punishable separately. Interpretation of the law is the
sole domain of the Court.

As I said, Presidential Decree No. 1866 is one of the last vestiges of authoritarian rule in the country, whereby the State pounced on its
opponents under rules that offered no sporting chance or hope to the State's opponents. Democracy has however, been restored, in
which the State is called upon to lean favorably toward its opponents (i.e., through favorable penal laws and presumption of innocence). It
is time to wipe the Decree out of our statute books.

Regalado, J., I join Justice Sarmiento in his dissent.

CRUZ, J., dissenting:

If the petitioners are convicted of rebellion under the Revised Penal code and found to have used an illegally possessed firearm in
connection therewith, they will be subject to the penalty of only prision mayor. The illegal possession of firearms is absorbed in the crime
of rebellion and may not be separately punished.

On the other hand, if they are convicted of illegal possession of firearms in connection with the crime of rebellion under P.D. 1866, they
will be subject to the extreme penalty of reclusion perpetua (reduced from death). Conviction of the illegal possession carries with it a
finding that the accused was engaged in rebellion.

I am unable to understand the obvious disparity. In both instances, two circumstances are established, to wit, rebellion and illegal
possession of firearms. Yet the first offense is punished only with prision mayor but the second is punished with reclusion perpetua.

Due process requires as a desideratum of fairness the equivalence of the degree of the offense and the degree of the penalty. A serious
offense deserves a heavy penalty while a light offense authorizes only a mild penalty. Otherwise stated, a light offense cannot be
punished with a heavy penalty, as where, say, littering is penalized with life imprisonment.

It is true, as the ponencia states, that there are cases where an offense not serious per se may be punished with a heavy penalty as a
deterrent to its proliferation or because of some special social purpose that may be justified under the some special social purpose that
may be justified under the police power. But in such cases, it must be established that the offenses are sui generis to justify deviation
from the general rule. Lacking such justification, the disproportionate penalty may be struck down as a cruel or inhuman punishment.
In the cases before us, the law takes an ambivalent position toward the crime of illegal possession of firearms when committed in
connection with rebellion. As the basic offense under PD 1866, it is considered a serious offense and penalized with no less than
reclusion perpetua. However, as a mere attendant circumstance in committing rebellion under the Revised Penal Code, it is not even
separately punished, being deemed absorbed in the main offense.

It seems to me that if it is the intention of the legislature to consider a particular crime a serious offense deserving a heavy penalty, it
should be consistent in the application of such penalty. It cannot punish the offense heavily in one case and practically condone it in
another case.

One might say that this involves a question of policy or wisdom that is resoluble only by Congress and not by this Court. That may be so,
again as a general rule, but not where considerations of due process and equal protection are involved.

Under the laws as they stood when the petitioners were formally indicted, the prosecuting officer was given the choice of the offense he
could charge, depending on his discretion, which could in turn depend on his attitude toward the suspect. This circumstance gave a
dangerous power to the government to discriminate in the prosecution of persons charged with practically the same offense, treating
some of them severely and the others with benign leniency.

It has been held that although a law may be fair and impartial on its face, it must nevertheless be annulled if it gives the administrative
officer the discretion to enforce it with "an evil eye and an uneven hand" (Yick Wo vs. Hopkins, 118 U.S. 356; People vs. Vera, 65 Phil. 56).
That is exactly what PD 1866 empowered the prosecuting officer to do. In fact, at the hearing of this case before this Court, the
government counsel frankly admitted that the petitioners were prosecuted under the decree because it prescribed the heavier penalty
although they could also have been prosecuted for rebellion under the Revised Penal Code.

Mention has been made of RA 6968 which now imposes for simple rebellion under Articles 134 and 135 of the Revised Penal Code the
same penalty for violation of Sec. 1(3) of Sec. 3(3) of PD 1866. The subsequent passage of the amendatory law in 1990 does not, of course,
affect the petitioners in the case at bar because the offense imputed to them were supposedly committed in 1988. Such amendment may
have corrected the injustice inherent in the aforestated provisions of PD 1866, which is thus now relieved of its constitutional infirmity.
However, the decree may still not be applied to the herein petitioners as it was unconstitutional at the time it was made the basis for their
prosecution and the subsequent enactment of RA 6968 did not retroactively validate it.

My vote is to grant the petition. So did I vote in Misolas.

Gutierrez, Jr., J., dissent.

 Republic of the Philippines

SUPREME COURT

Manila

SPECIAL THIRD DIVISION

G.R. No. 183891 October 19, 2011

ROMARICO J. MENDOZA, Petitioner,

vs.

PEOPLE OF THE PHILIPPINES, Respondent.

R E SO L U T I O N

BRION, J.:

We resolve the motion for reconsideration filed by petitioner Romarico J. Mendoza seeking the reversal of our Decision dated August 3,
2010. The Decision affirmed the petitioner’s conviction for his failure to remit the Social Security Service (SSS) contributions of his
employees. The petitioner anchors the present motion on his supposed inclusion within the coverage of Republic Act (RA) No. 9903 or the
Social Security Condonation Law of 2009, whose passage the petitioner claims to be a supervening event in his case. He further invokes
the equal protection clause in support of his motion.

In our Decision dated August 3, 2010, we AFFIRMED, with modification, the decree of conviction issued by both the trial and appellate
courts for the petitioner’s violation of Section 22(a) and (d), in relation to Section 28 of RA No. 8282 or the Social Security Act of 1997. To
recall its highlights, our Decision emphasized that the petitioner readily admitted during trial that he did not remit the SSS premium
contributions of his employees at Summa Alta Tierra Industries, Inc. from August 1998 to July 1999, in the amount of ₱239,756.80;
inclusive of penalties, this unremitted amount totaled to ₱421,151.09. The petitioner’s explanation for his failure to remit, which the trial
court disbelieved, was that during this period, Summa Alta Tierra Industries, Inc. shut down as a result of the general decline in the
economy. The petitioner pleaded good faith and lack of criminal intent as his defenses.

We ruled that the decree of conviction was founded on proof beyond reasonable doubt, based on the following considerations: first, the
remittance of employee contributions to the SSS is mandatory under RA No. 8282; and second, the failure to comply with a special law
being malum prohibitum, the defenses of good faith and lack of criminal intent are immaterial.

The petitioner further argued that since he was designated in the Information as a "proprietor," he was without criminal liability since
"proprietors" are not among the corporate officers specifically enumerated in Section 28(f) of RA No. 8282 to be criminally liable for the
violation of its provisions. We rejected this argument based on our ruling in Garcia v. Social Security Commission Legal and Collection.1
We ruled that to sustain the petitioner’s argument would be to allow the unscrupulous to conveniently escape liability merely through the
creative use of managerial titles.

After taking into account the Indeterminate Penalty Law and Article 315 of the Revised Penal Code, we MODIFIED the penalty originally
imposed by the trial court2 and, instead, decreed the penalty of four (4) years and two (2) months of prision correccional, as minimum, to
twenty (20) years of reclusion temporal, as maximum.

In the present motion for reconsideration, the petitioner points out that pending his appeal with the Court of Appeals (CA), he voluntarily
paid the SSS the amount of ₱239,756.80 to settle his delinquency.3 Note that the petitioner also gave notice of this payment to the CA via
a Motion for Reconsideration and a Motion for New Trial. Although the People did not contest the fact of voluntary payment, the CA
nevertheless denied the said motions.
 The present motion for reconsideration rests on the following points:

First. On January 7, 2010, during the pendency of the petitioner’s case before the Court, then President Gloria Macapagal-Arroyo signed
RA No. 9903 into law. RA No. 9903 mandates the effective withdrawal of all pending cases against employers who would remit their
delinquent contributions to the SSS within a specified period, viz., within six months after the law’s effectivity.4 The petitioner claims that
in view of RA No. 9903 and its implementing rules, the settlement of his delinquent contributions in 2007 entitles him to an acquittal. He
invokes the equal protection clause in support of his plea.

Second. The petitioner alternatively prays that should the Court find his above argument wanting, he should still be acquitted since the
prosecution failed to prove all the elements of the crime charged.

Third. The petitioner prays that a fine be imposed, not imprisonment, should he be found guilty.

The Solicitor General filed a Manifestation In Lieu of Comment and claims that the passage of RA No. 9903 constituted a supervening
event in the petitioner’s case that supports the petitioner’s acquittal "[a]fter a conscientious review of the case."5

THE COURT’S RULING

The petitioner’s arguments supporting his prayer for acquittal fail to convince us. However, we find basis to allow waiver of the
petitioner’s liability for accrued penalties.

The petitioner’s liability for the crime is a settled matter

Upfront, we reject the petitioner’s claim that the prosecution failed to prove all the elements of the crime charged. This is a matter that has
been resolved in our Decision, and the petitioner did not raise anything substantial to merit the reversal of our finding of guilt. To reiterate,
the petitioner’s conviction was based on his admission that he failed to remit his employees’ contribution to the SSS.

The petitioner cannot benefit from the terms of RA No. 9903, which condone only employers who pay their delinquencies within six
months from the law’s effectivity

We note that the petitioner does not ask for the reversal of his conviction based on the authority of RA No. 9903; he avoids making a
straightforward claim because this law plainly does not apply to him or to others in the same situation. The clear intent of the law is to
grant condonation only to employers with delinquent contributions or pending cases for their delinquencies and who pay their
delinquencies within the six (6)-month period set by the law. Mere payment of unpaid contributions does not suffice; it is payment within,
and only within, the six (6)-month availment period that triggers the applicability of RA No. 9903.

True, the petitioner’s case was pending with us when RA No. 9903 was passed. Unfortunately for him, he paid his delinquent SSS
contributions in 2007. By paying outside of the availment period, the petitioner effectively placed himself outside the benevolent sphere of
RA No. 9903. This is how the law is written: it condones employers — and only those employers — with unpaid SSS contributions or with
pending cases who pay within the six (6)-month period following the law’s date of effectivity. Dura lex, sed lex.

The petitioner’s awareness that RA No. 9903 operates as discussed above is apparent in his plea for equal protection. In his motion, he
states that
[he] is entitled under the equal protection clause to the dismissal of the case against him since he had already paid the subject delinquent
contributions due to the SSS which accepted the payment as borne by the official receipt it issued (please see Annex "A"). The equal
protection clause requires that similar subjects, [sic] should not be treated differently, so as to give undue favor to some and unjustly
discriminate against others. The petitioner is no more no less in the same situation as the employer who would enjoy freedom from
criminal prosecution upon payment in full of the delinquent contributions due and payable to the SSS within six months from the
effectivity of Republic Act No. 9903.6

The Court cannot amplify the scope of RA No. 9903 on the ground of equal protection, and acquit the petitioner and other delinquent
employers like him; it would in essence be an amendment of RA No. 9903, an act of judicial legislation abjured by the trias politica
principle.7

RA No. 9903 creates two classifications of employers delinquent in remitting the SSS contributions of their employees: (1) those
delinquent employers who pay within the six (6)-month period (the former group), and (2) those delinquent employers who pay outside of
this availment period (the latter group). The creation of these two classes is obvious and unavoidable when Section 2 and the last proviso
of Section 48 of the law are read together. The same provisions show the law’s intent to limit the benefit of condonation to the former
group only; had RA No. 9903 likewise intended to benefit the latter group, which includes the petitioner, it would have expressly declared
so. Laws granting condonation constitute an act of benevolence on the government’s part, similar to tax amnesty laws; their terms are
strictly construed against the applicants. Since the law itself excludes the class of employers to which the petitioner belongs, no ground
exists to justify his acquittal. An implementing rule or regulation must conform to and be consistent with the provisions of the enabling
statute; it cannot amend the law either by abridging or expanding its scope.9

For the same reason, we cannot grant the petitioner’s prayer to impose a fine in lieu of imprisonment; neither RA No. 8282 nor RA No.
9903 authorizes the Court to exercise this option.

On the matter of equal protection, we stated in Tolentino v. Board of Accountancy, et al.10 that the guarantee simply means "that no
person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the
same place and in like circumstances." In People v. Cayat,11 we further summarized the jurisprudence on equal protection in this wise:

It is an established principle of constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation
based on reasonable classification. And the classification, to be reasonable, (1) must rest on substantial distinctions; (2) must be
germane to the purposes of the law; (3) must not be limited to existing conditions only; and (4) must apply equally to all members of the
same class.

The difference in the dates of payment of delinquent contributions provides a substantial distinction between the two classes of
employers. In limiting the benefits of RA No. 9903 to delinquent employers who pay within the six (6)-month period, the legislature refused
to allow a sweeping, non-discriminatory condonation to all delinquent employers, lest the policy behind RA No. 8282 be
undermined.1avvphi1

The petitioner is entitled to a waiver of his accrued penalties

Despite our discussion above, the petitioner’s move to have our Decision reconsidered is not entirely futile. The one benefit the petitioner
can obtain from RA No. 9903 is the waiver of his accrued penalties, which remain unpaid in the amount of ₱181,394.29. This waiver is
derived from the last proviso of Section 4 of RA No. 9903:

Provided, further, That for reason of equity, employers who settled arrears in contributions before the effectivity of this Act shall likewise
have their accrued penalties waived.

This proviso is applicable to the petitioner who settled his contributions long before the passage of the law. Applied to the petitioner,
therefore, RA No. 9903 only works to allow a waiver of his accrued penalties, but not the reversal of his conviction.1avvphi1
 Referral to the Chief Executive for possible exercise of executive clemency

We realize that with the affirmation of the petitioner’s conviction for violation of RA No. 8282, he stands to suffer imprisonment for four (4)
years and two (2) months of prision correccional, as minimum, to twenty (20) years of reclusion temporal, as maximum, notwithstanding
the payment of his delinquent contribution.

Under Article 5 of the Revised Penal Code,12 the courts are bound to apply the law as it is and impose the proper penalty, no matter how
harsh it might be. The same provision, however, gives the Court the discretion to recommend to the President actions it deems
appropriate but are beyond its power when it considers the penalty imposed as excessive. Although the petitioner was convicted under a
special penal law, the Court is not precluded from giving the Revised Penal Code suppletory application in light of Article 1013 of the
same Code and our ruling in People v. Simon.14

WHEREFORE, the Court PARTIALLY GRANTS petitioner Romarico J. Mendoza’s motion for reconsideration. The Court AFFIRMS the
petitioner’s conviction for violation of Section 22(a) and (d), in relation to Section 28 of Republic Act No. 8282, and the petitioner is thus
sentenced to an indeterminate prison term of four (4) years and two (2) months of prision correccional, as minimum, to twenty (20) years
of reclusion temporal, as maximum. In light of Section 4 of Republic Act No. 9903, the petitioner’s liability for accrued penalties is
considered WAIVED. Considering the circumstances of the case, the Court transmits the case to the Chief Executive, through the
Department of Justice, and RECOMMENDS the grant of executive clemency to the petitioner.

SO ORDERED.

ARTURO D. BRION

Associate Justice

WE CONCUR:

DIOSDADO M. PERALTA

Associate Justice

LUCAS P. BERSAMIN

Associate Justice ROBERTO A. ABAD

Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

ARTURO D. BRION

Associate Justice

Chairperson
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is hereby certified that the
conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the
Court’s Division.

RENATO C. CORONA

Chief Justice
 CASE DIGEST

Facts:

Romarico Mendoza (petitioner) is a company boss/employer convicted for violating a special law known as the Social Security Condonation Law of
2009 for non-remittance of the Social Security Service (SSS) contributions to his employees. The offense is criminal in nature. Nevertheless,
Mendoza admitted his fault, as he said, he acted in good faith. But still, the Court has to render judgment and apply the proper penalty how harsh it
may be dura lex sed lex).

The Court sentenced Mendoza to an indeterminate prison term. Considering the circumstances, the court the Court transmitted the case to the Chief
Executive, through the Department of Justice, and RECOMMENDS the grant of executive clemency to the petitioner.

Issue:
W/N the Supreme Court can recommend to the President, the grant of executive clemency to a convict, without separation of powers.

Ruling:

The Court the discretion to recommend to the President actions it deems appropriate but are beyond its power when it considers the penalty
imposed as excessive. It is clearly stated in the Revised Penal Code which provides; “Whenever a court has knowledge of any act which it may
deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the
Department of Justice, the reasons which induce the court to believe that said act should be made the subject of legislation. In the same way, the
court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the
execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty,
taking into consideration the degree of malice and the injury caused by the offense.”
 G.R. No. 162318 October 25, 2004

1LT. JULIUS R. NAVALES, 1LT. EMERSON L. MARGATE, 2LT. RYAN H. QUISAI, TSG. ELMER D. COLON, CAPT. JULIUS W. ESPORO, SGT.
NOLI FORONDA, SGT. GIL P. LOZADA, SGT. RAYMUND DUMAGO and PFC. REGIE A. ALAGABAN, petitioners,

vs.

GEN. NARCISO ABAYA, as Chief of Staff of the Armed Forces of the Philippines (AFP), B.GEN. MARIANO M. SARMIENTO, JR., as Judge
Advocate General (JAG) of the AFP, and OTHER PERSONS ACTING UNDER THEIR AUTHORITY, respondents.

x--------------------------x

G.R. No. 162341 October 25, 2004

IN THE MATTER OF THE PETITION FOR THE HABEAS CORPUS OF CPT. RUPERTO L. REASO, LTSG. NORBERTO E. SANTIAGO, 1LT.
DANNY C. CANAVERAL, 1LT. JULIUS R. NAVALES, 1LT. EMERSON L. MARGATE, 1LT. JEFFREY GAUGUIRAN, LTJG. CEFERINO CHECA,
LTJG. MARCO ANGELO J. ANCHETA, LTJG. ELMER TORRIADO, LTJG. RONALD A. GALICIA, 2LT. LAUREFEL P. DABALES, 2LT. MARY
JAMES A. TAYABAN, 2LT. JASON P. PANALIGAN, 2LT. RYAN QUISAI, 2LT. NESTOR JASON CAMBA, 2LT. ARCHIBALD RANEL, 2LT.
RESINO S. ORTEZA, 2LT. NOEL F. TOMENGLAY, 2LT. LEOPOLDO APELLANES, JR., 2LT. JONATHAN D. COSTALES, 2LT. OSWALD IAN
DIRA, 2LT. SAMSUDIN T. LINTONGAN, 2LT. ALQUIN CANSON, 2LT. JUNIBERT S. TUBO, 2LT. EDWIN DUETAO, 2LT. MARK P. DAMASO,
2LT. JIOVANNI PALLIAN, 2LT. EDGARDO AGUILAR, 2LT. NORMAN SPENCER, 2LT. LARRY S. CENDANA, 2LT. AVELINO SAHLI, 2LT.
LEXINGTON ALONZO, 2LT. FILMORE RULL, ENS. VICTOR ODULLO, ENS. IAN LUIS BADECAO, ENS. RONALD E. DISO, ENS. ARJOHN
ELUMBA, ENS. BRIAN BABANG, ENS. ANTONIO BOSCH, ENS. TED CEREZO, ENS. HAROLD DAVE PRE, ENS. JEFFREY BANGSA, ENS.
JONAH ARUGAY, ENS. JONATHAN J. ADLAWAN, ENS. EMERSON ROSALES, ENS. ELMER CRUZ, ENS. REX P. CALLANO, ENS.
JUVENAL AZURIN, ENS. LYLE ROSOS, ENS. CESAR CARMEL TAMBA, CPO. LEONIDO FERNIN, EM3 RONNIE GUMIA, PO3 ROULEX
MAGISA, TSG. JESUCRAIS SOLEDAD, SSG. NORBERTO MARTINEZ, SSG. BERTING CABANA, SSG. JOERY ROJO, PO2 EDWARD
ABUAC, SSG. LEO GAPAYAO, SSG. ROMAR ARQUERO, SSG. RALLON BEBASA, SSG. LORENZO GLORIOSO, SSG. NOEL AGGALUT,
SSG. PHILIP VITALES, SSG. FRANCISCO BOSI, JR., SSG. BONIFACIO BARRION, SSG. RUBEN SORIANO, SSG. RONALD REYES, SSG.
WILFREDO LEAL, SSG. GUILLERMO LAVITORES, SGT. ALFREDO ALEGADO, JR., SGT. GREGORIO SANDAGON, SGT. JIGGER PACULBA
SGT. JOJO ABANDO, SGT. JUANITO JILBURY, SGT. ERIC CASTINO, SGT. ANTONIO CARABATA, SGT. REYNANTE DANTE ESCATRON.
SGT. NOLI FORONDA, SGT. JERAN TABUJARA, SGT. RESTITUTO DEBORJA, SGT. NILO ENASO, SGT. JULIUS WESFIRO, SGT. ROLDAN
ANDO, SGT. LORENZO CARRANZA, SGT. DANTE SANTOS, SGT. WALTER MANALANSAN, SGT. JUDE ARQUISOLA, SGT. HERMAN
LINDE, SGT. ALEXANDER SICAT, SGT. FLORANTE ROSETTE, SGT. ROMELO SY, SGT. JOEY MEMBREVE, SGT. ADONIS PRADO, PO3
JESSMAR LANDONG, PO3 ROBERTO TRIPULCA, PO3 SONNY MADARANG, PO3 RHOMMEL LORETE, PO3 CARISTOFEIL TIKTIK, PO3
RENATO BUSTILLO,PO3 JERRY ASUNCION, PO3 LUDIVICO CLEMENTE, CPL. REY RUBIOS, CPL. EMMANUEL TIRADOR, CPL. OLIVER
COMBAUCER, CPL. JOEL ABAYA, CPL. RANDEL CENO, CPL. RONALD RETUTA, CPL. JULIUS TANALLON, CPL. FILOMENO RAMIREZ,
CPL. JIGGER ALAMEDA, CPL. RAYMUND DUMAGAO, CPL. EDGAR VELASCO, CPL. RAMONCITO TAMPON, SN1 ALLAN DULAP, SN1
JERRY REGALARIO, SN1 JOEL MASENAS, SN1 JONATHAN PEREZ, S1HM ROMUALDO GANANCIAL, SN1 ROEL GADON, F1EM GARY
PAYOS, SN1 ZANDRIX GACU, SN1 ROMMEL ANONUEVO, SN1 WILLIAM ABLITER, SN1 GERMINIO FERNANDEZ, SN1 ARNEL CAPUNO,
SN1 CLEOFAS PAMIENTA, S1HM TIMOTEO ABARRACOSO, S1CD GERARDO DEDICATORIA, SN1 LEONOR FORTE, JR., CPL. JEOBAL
GONZALES, CPL. ALADIN GOMEZ, CPL. HARDY GLAGARA, CPL. CESAR A. PADILLA, CPL. JERSON ALABATA, CPL. OLIVER GERIO,
CPL. TEDDY ANTONIO, CPL. DENNIS LOPEZ, CPL. RUEL MOLINA, CPL. ALVIN CELESTINO, CPL. BENJAMIN RAMBOYONG, JR., CPL.
GERRY CALINGACION, CPL. ALEXANDER RODRIGUEZ, CPL. JONATHAN DAGOHOY, CPL. CLECARTE DAHAN, CPL. RAYMOND
PASTRETA, CPL. LORENZO BIAO, CPL. ALEX PENA, CPL. ROGUN OLIVIDO, CPL. MONCHITO LUSTERIO, CPL. GEORGE GANADOS, CPL.
MICHAEL BALISTA, PVT. 1ST CLASS MAXINIAR BALANAY, PVT. 1ST CLASS BONIFACIO CAOALO, PVT. 1ST CLASS REGGIE
ALAGABAN, PVT. 1ST CLASS ANGELO MARQUEZ, PVT. 1ST CLASS JOHN GAIHAN, PVT. 1ST CLASS MARCIAL CAISA, PVT. 1ST CLASS
CARLOS FILLIOS, PVT. 1ST CLASS PATROCENIO PATENO, PVT. 1ST CLASS ROLLY BERNAL, PVT. 1ST CLASS NOVIDA RUIZ, PVT. 1ST
CLASS MELCHOR ALOOS, PVT. 1ST CLASS JOEL MALALAY, PVT. 1ST CLASS JULIETO BANAS, JR., PVT. 1ST CLASS ROLAND
BANAAG, PVT. 1ST CLASS NIXON MAGALLIS, PVT. 1ST CLASS RICHARD LARCE, PVT. 1ST CLASS SINDY BONOTAN, PVT. 1ST CLASS
ARNOLD PULPULAAN, PVT. 1ST CLASS ABRAHAM APOSTOL, PFC. CHARLES AGNER, S2RM JULIUS CEAZAR ALFUENTE, PFC. EDILON
ANDALEON, PFC. RONALDO BAYOS, PFC. MARCIAL BAYSA, S2EM ABRAHAM BILLONES, CPL. ABNER BIRAL, PFC. JEFFREY BOLALIN,
SN2 JEFFREY BONCACAS, 1LT PATRICIO BUMIDANG, JR., S2BM JOSEPH BUSCATO, CPT. EINSTEIN CALAOA, JR., PFC. EDWIN
CANETE, SN2 EZRA JERRY CARUMBA, S2PH GLENN CARUMBA, SGT. ARIMATEO B. CEDENO, SN2 ALEX CHAN, PO3 COCARI
GONZALES, FN2 ALEX DEL CALLE, PFC. HANZEL DELA TORRE, SN2 SONNY DELA VEGA, PFC. JOSE DEMONTEVERDE, 1LT. JOSE
ENRICO M. DINGLE, PFC. ALADINO DOGOMEO, ENS. DENNIS DONGA, PFC. RUEL ESPINILLA, PFC. RODRIGO FERNANDEZ, SN2 JULIUS
GARCIA, SGT. ALLAN INOCENCIO. TSQ. JESUCRAIS SOLEDAD, PFC. JERSON LABILLES, CPL. DANILO LAGRIMAS, SN2 ALLAN
LEONOR. 2LT. NORMAN SPENCER LO, S2BM JERIC LORENA, S2DP ANGELITO LOYLOY, PFC. LUIS NOVIDA, SN2 EMMANUEL
LUMACANG, CPL. RIZAL MANIMTIM, PFC. GALIB MOHAMMAD, SSG. GIL MONTOJO. PFC. BENJAMIN NANGGAN, PFC. ARNOLD NIALLA,
SN2 FERNANDO PACARDO, SGT. JOVITO PACLEB. PFC. CHRISTOPHER PEREZ, LTJG. JENNIFER PILI, PFC. CARLOS PILLOS. PFC.
JOCIL REGULACION. S2DC GARY REYES. S2EM VALENTIN SAMAR. LT/SG. NORBERTO SANTIAGO, JR.. FN2 FRANCISCO SEVILLA, JR..
SN2 MIKE SOLAR. SN2 ROMMEL SOLIS. PFC. JOJIT SORIANO. CPT. EDMAR B. SORIOSO. SSG. JUAN TUQUIB. SN2 JOEL TYBACO.
S1BM RONALDO URBANO. S2HM EDGAR VASQUEZ. SGT. IGNACIO VIGAR, ROBERTO RAFAEL ("ROEL") PULIDO, petitioner,
 vs.

GEN. NARCISO ABAYA, as Chief of Staff of the Armed Forces of the Philippines, BRIG. GEN. MARIANO M. SARMIENTO, JR., as AFP
Judge Advocate General, and ALL PERSONS ACTING IN THEIR STEAD AND UNDER THEIR AUTHORITY, respondents.

DECISION

CALLEJO, SR., J.:

Before the Court are two petitions essentially assailing the jurisdiction of the General Court-Martial to conduct the court-martial
proceedings involving several junior officers and enlisted men of the Armed Forces of the Philippines (AFP) charged with violations of the
Articles of War (Commonwealth Act No. 408, as amended) in connection with their participation in the take-over of the Oakwood Premier
Apartments in Ayala Center, Makati City on July 27, 2003.

In G.R. No. 162341, Roberto Rafael Pulido, a lawyer, filed with this Court a Petition for Habeas Corpus seeking the release of his clients,
junior officers and enlisted men of the AFP, who are allegedly being unlawfully detained by virtue of the Commitment Order1 dated August
2, 2003 issued by General Narciso L. Abaya, Chief of Staff of the AFP, pursuant to Article 70 of the Articles of War. Under the said
commitment order, all the Major Service Commanders and the Chief of the Intelligence Service of the Armed Forces of the Philippines
(ISAFP) were directed to take custodial responsibility of all the "military personnel involved in the 27 July 2003 mutiny" belonging to their
respective commands. This included all the junior officers and enlisted men (hereinafter referred to as Capt. Reaso,2 et al.) who are
subject of the instant petition for habeas corpus. The commitment order, however, expressly stated that LtSG. Antonio F. Trillanes, LtSG.
James A. Layug, Capt. Garry C. Alejano, Capt. Milo D. Maestrecampo, Capt. Gerardo O. Gambala, and Capt. Nicanor E. Faeldon would
remain under the custody of the Chief of the ISAFP.3

In G.R. No. 162318, the petitioners (hereinafter referred to as 1Lt. Navales, et al.), seven of the detained junior officers and enlisted men,
filed with this Court a Petition for Prohibition under Rule 65 of the Rules of Court seeking to enjoin the General Court-Martial from
proceeding with the trial of the petitioners and their co-accused for alleged violations of the Articles of War.

Named as respondents in the two petitions are General Narciso Abaya who, as Chief of Staff of the AFP, exercises command and control
over all the members and agencies of the AFP, and Brigadier General Mariano Sarmiento, Jr., the Judge Advocate General of the AFP and
officer in command of the Judge Advocate General Office (JAGO), the agency of the AFP tasked to conduct the court-martial proceedings.

Background4

At past 1:00 a.m. of July 27, 2003, more than three hundred junior officers and enlisted men, mostly from the elite units of the AFP – the
Philippine Army’s Scout Rangers and the Philippine Navy’s Special Warfare Group (SWAG) – quietly entered the premises of the Ayala
Center in Makati City. They disarmed the security guards and took over the Oakwood Premier Apartments (Oakwood). They planted
explosives around the building and in its vicinity. Snipers were posted at the Oakwood roof deck.

The soldiers, mostly in full battle gear and wearing red arm bands, were led by a small number of junior officers, widely known as the
Magdalo Group. The leaders were later identified as including Navy LtSG. Antonio Trillanes IV, Army Capt. Gerardo Gambala, Army Capt.
Milo Maestrecampo, Navy LtSG. James Layug, and Marine Capt. Gary Alejano.

Between 4:00 to 5:00 a.m., the soldiers were able to issue a public statement through the ABS-CBN News (ANC) network. They claimed
that they went to Oakwood to air their grievances against the administration of President Gloria Macapagal Arroyo. Among those
grievances were: the graft and corruption in the military, the sale of arms and ammunition to the "enemies" of the State, the bombings in
Davao City which were allegedly ordered by Brig. Gen. Victor Corpus, Chief of the ISAFP, in order to obtain more military assistance from
the United States government, and the "micro-management" in the AFP by then Department of National Defense (DND) Secretary Angelo
Reyes. They declared their withdrawal of support from the chain of command and demanded the resignation of key civilian and military
leaders of the Arroyo administration.
Around 9:00 a.m., Pres. Arroyo gave the soldiers until 5:00 p.m. to give up their positions peacefully and return to barracks. At about 1:00
p.m., she declared the existence of a "state of rebellion" and issued an order to use reasonable force in putting down the rebellion. A few
hours later, the soldiers again went on television reiterating their grievances. The deadline was extended twice, initially to 7:00 p.m., and
later, indefinitely.

In the meantime, a series of negotiations ensued between the soldiers and the Government team led by Ambassador Roy Cimatu. An
agreement was forged between the two groups at 9:30 p.m. Shortly thereafter, Pres. Arroyo announced that the occupation of Oakwood
was over. The soldiers agreed to return to barracks and were out of the Oakwood premises by 11:00 p.m.

The Filing of Charges

Under the Information5 dated August 1, 2003 filed with the Regional Trial Court (RTC) of Makati City, the Department of Justice (DOJ)
charged 321 of those soldiers who took part in the "Oakwood Incident" with violation of Article 134-A (coup d’etat) of the Revised Penal
Code.6 Among those charged were petitioners 1Lt. Navales, et al. (G.R. No. 162318) and those who are subject of the petition for habeas
corpus Capt. Reaso, et al. (G.R. No. 162341). The case, entitled People v. Capt. Milo Maestrecampo, et al., was docketed as Criminal Case
No. 03-2784 and raffled to Branch 61 presided by Judge Romeo F. Barza.

On September 12, 2003, several (243 in number) of the accused in Criminal Case No. 03-2784 filed with the RTC (Branch 61) an Omnibus
Motion praying that the trial court:

1. [A]ssume jurisdiction over all the charges filed before the military tribunal in accordance with Republic Act No. 7055; and

2. Order the prosecution to present evidence to establish probable cause against 316 of the 321 accused and, should the prosecution fail
to do so, dismiss the case as against the 316 other accused.7

While the said motion was pending resolution, the DOJ issued the Resolution dated October 20, 2003 finding probable cause for coup
d’etat8 against only 31 of the original 321 accused and dismissing the charges against the other 290 for insufficiency of evidence.

Thus, upon the instance of the prosecution, the RTC (Branch 61), in its Order9 dated November 14, 2003, admitted the Amended
Information10 dated October 30, 2003 charging only 31 of the original accused with the crime of coup d’etat defined under Article 134-A of
the Revised Penal Code.11 Only the following were charged under the Amended Information: CPT. MILO D. MAESTRECAMPO, LTSG.
ANTONIO F. TRILLANES IV, CPT. GARY C. ALEJANO, LTSG. JAMES A. LAYUG, CPT. LAURENCE LUIS B. SOMERA, CPT. GERARDO O.
GAMBALA, CPT. NICANOR FAELDON, CPT. ALBERT T. BALOLOY, CPT. SEGUNDINO P. ORFIANO, JR., CPT. JOHN P. ANDRES, CPT.
ALVIN H. EBREO, 1LT. FLORENTINO B. SOMERA, 1LT. CLEO B. DUNGGA-AS, 1LT. SONNY S. SARMIENTO, 1LT. AUDIE S. TOCLOY, 1LT.
VON RIO TAYAB, 1LT. REX C. BOLO, 1LT. LAURENCE R. SAN JUAN, 1LT. WARREN LEE G. DAGUPON, 1LT. NATHANIEL N. RABONZA,
2LT. KRISTOFFER BRYAN M. YASAY, 1LT. JONNEL P. SANGGALANG, 1LT. BILLY S. PASCUA, 1LT. FRANCISCO ACEDILLO, LTSG.
MANUEL G. CABOCHAN, LTSG. EUGENE LOUIE GONZALES, LTSG. ANDY G. TORRATO, LTJG. ARTURO S. PASCUA, JR., ENS. ARMAND
PONTEJOS, PO3 JULIUS J. MESA, PO3 CESAR GONZALES, and several JOHN DOES and JANE DOES. Further, the said Order expressly
stated that the case against the other 290 accused, including petitioners 1Lt. Navales, et al. and those who are subject of the petition for
habeas corpus, Capt. Reaso, et al., was dismissed. In another Order dated November 18, 2003, the RTC (Branch 61) issued commitment
orders against those 31 accused charged under the Amended Information and set their arraignment.

Meanwhile, 1Lt. Navales, et al. and Capt. Reaso, et al., who were earlier dropped as accused in Criminal Case No. 03-2784, were charged
before the General Court-Martial with violations of the Articles of War (AW), particularly: AW 67 (Mutiny), AW 97 (Conduct Prejudicial to
Good Order and Military Discipline), AW 96 (Conduct Unbecoming an Officer and a Gentleman), AW 63 (Disrespect to the President, the
Secretary of Defense, etc.) and AW 64 (Disrespect Towards Superior Officer).12 On the other hand, Capt. Maestrecampo and the 30 others
who remained charged under the Amended Information were not included in the charge sheets for violations of the Articles of War.

Thereafter, Criminal Case No. 03-2784 was consolidated with Criminal Case No. 03-2678, entitled People v. Ramon Cardenas, pending
before Branch 148 of the RTC of Makati City, presided by Judge Oscar B. Pimentel.
On February 11, 2004, acting on the earlier Omnibus Motion filed by the 243 of the original accused under the Information dated August 1,
2003, the RTC (Branch 148) issued an Order, the dispositive portion of which reads:

WHEREFORE, premises considered, in view of the Orders dated November 14 and 18, 2003 of Judge Romeo Barza, the Omnibus Motion
to: 1) Assume jurisdiction over all charges filed before the Military Courts in accordance with R.A. 7055; and 2) Implement the August 7,
2003 Order of the Court requiring the prosecution to produce evidence to establish probable cause are hereby considered MOOT AND
ACADEMIC and, lastly, all charges before the court-martial against the accused (those included in the Order of November 18, 2003) as well
as those former accused (those included in the Order of November 14, 2003) are hereby declared not service-connected, but rather
absorbed and in furtherance to the alleged crime of coup d’etat.13

In the Notice of Hearing dated March 1, 2004, the General Court-Martial set on March 16, 2004 the arraignment/trial of those charged with
violations of the Articles of War in connection with the July 27, 2003 Oakwood Incident.

The present petitions were then filed with this Court. Acting on the prayer for the issuance of temporary restraining order in the petition
for prohibition in G.R. No. 162318, this Court, in the Resolution dated March 16, 2004, directed the parties to observe the status quo
prevailing before the filing of the petition.14

The Petitioners’ Case

In support of the petitions for prohibition and for habeas corpus, the petitioners advance the following arguments:

I. UNDER REPUBLIC ACT NO. 7055, THE RESPONDENTS AND THE GENERAL COURT-MARTIAL ARE WITHOUT ANY JURISDICTION TO
FURTHER CONDUCT PROCEEDINGS AGAINST THE PETITIONERS AND THEIR COLLEAGUES BECAUSE THE REGIONAL TRIAL COURT
HAS ALREADY DETERMINED THAT THE OFFENSES ARE NOT SERVICE-RELATED AND ARE PROPERLY WITHIN THE JURISDICTION OF
THE CIVILIAN COURTS;15 and

II. THE RESPONDENTS HAVE NO AUTHORITY TO FURTHER DETAIN THE JUNIOR OFFICERS AND ENLISTED MEN AS THE CHARGES
FOR COUP D’ETAT BEFORE THE REGIONAL TRIAL COURT HAVE BEEN DISMISSED FOR LACK OF EVIDENCE UPON MOTION OF THE
DEPARTMENT OF JUSTICE.16

Citing Section 117 of Republic Act No. 7055,18 the petitioners theorize that since the RTC (Branch 148), in its Order dated February 11,
2004, already declared that the offenses for which all the accused were charged were not service-connected, but absorbed and in
furtherance of the crime of coup d’etat, the General Court-Martial no longer has jurisdiction over them. As such, respondents Gen. Abaya
and the JAGO have no authority to constitute the General Court-Martial, to charge and prosecute the petitioners and their co-accused for
violations of the Articles of War in connection with the July 27, 2003 Oakwood Incident. The petitioners posit that, as a corollary, there is
no longer any basis for their continued detention under the Commitment Order dated August 2, 2003 issued by Gen. Abaya considering
that the charge against them for coup d’etat had already been dismissed.

In G.R. No. 162318, the petitioners pray that the respondents be enjoined from constituting the General Court-Martial and from further
proceeding with the court-martial of the petitioners and their co-accused for violations of the Articles of War in connection with the
Oakwood Incident of July 27, 2003. In G.R. No. 162341, the petitioner prays that the respondents be ordered to explain why the detained
junior officers and enlisted men subject of the petition for habeas corpus should not be released without delay.

The Respondents’ Arguments

The respondents, through the Office of the Solicitor General, urge the Court to dismiss the petitions. The respondents contend that the
Order dated February 11, 2004 promulgated by the RTC (Branch 148), insofar as it resolved the Omnibus Motion and declared that the
charges against all the accused, including those excluded in the Amended Information, were not service-connected, is null and void. They
aver that at the time that the said motion was resolved, petitioners 1Lt. Navales, et al. and Capt. Reaso, et al. (as movants therein) were no
longer parties in Criminal Case No. 03-2784 as the charge against them was already dismissed by the RTC (Branch 61) in the Order dated
November 14, 2003. Thus, 1Lt. Navales, et al. and Capt. Reaso, et al. no longer had any personality to pursue the Omnibus Motion since
one who has no right or interest to protect cannot invoke the jurisdiction of the court. In other words, the petitioners were not "real parties
in interest" at the time that their Omnibus Motion was resolved by the RTC (Branch 148).
 The respondents further claim denial of due process as they were not given an opportunity to oppose or comment on the Omnibus
Motion. Worse, they were not even given a copy of the Order dated February 11, 2004. As such, the same cannot be enforced against the
respondents, especially because they were not parties to Criminal Case No. 03-2784.

The respondents, likewise, point out a seeming ambiguity in the February 11, 2004 Order as it declared, on one hand, that the charges
filed before the court-martial were not service-connected, but on the other hand, it ruled that the Omnibus Motion was moot and academic.
According to the respondents, these two pronouncements cannot stand side by side. If the Omnibus Motion was already moot and
academic, because the accused who filed the same were no longer being charged with coup d’etat under the Amended Information, then
the trial court did not have any authority to further resolve and grant the same Omnibus Motion.

The respondents maintain that since 1Lt. Navales, et al. and Capt. Reaso, et al. were not being charged with coup d’etat under the
Amended Information, the trial court could not make a finding that the charges filed against them before the General Court-Martial were in
furtherance of coup d’etat. For this reason, the declaration contained in the dispositive portion of the February 11, 2004 Order - that
charges filed against the accused before the court-martial were not service-connected - cannot be given effect.

Similarly invoking Section 1 of Rep. Act No. 7055, the respondents vigorously assert that the charges against 1Lt. Navales, et al. and Capt.
Reaso, et al. filed with the General Court-Martial, i.e., violations of the Articles of War 63, 64, 67, 96 and 97, are, in fact, among those
declared to be service-connected under the second paragraph of this provision. This means that the civil court cannot exercise
jurisdiction over the said offenses, the same being properly cognizable by the General Court-Martial. Thus, the RTC (Branch 148) acted
without or in excess of jurisdiction when it declared in its February 11, 2004 Order that the charges against those accused before the
General Court-Martial were not service-connected, but absorbed and in furtherance of the crime of coup d’etat. Said pronouncement is
allegedly null and void.

The respondents denounce the petitioners for their forum shopping. Apparently, a similar petition (petition for habeas corpus, prohibition
with injunction and prayer for issuance of a temporary restraining order) had been filed by the petitioners’ co-accused with the Court of
Appeals, docketed as CA-G.R. SP No. 82695. The case was resolved against the petitioners therein.

The respondents pray that the petitions be dismissed for lack of merit.

Issue

The sole issue that needs to be resolved is whether or not the petitioners are entitled to the writs of prohibition and habeas corpus.

The Court’s Ruling

We rule in the negative.

We agree with the respondents that the sweeping declaration made by the RTC (Branch 148) in the dispositive portion of its Order dated
February 11, 2004 that all charges before the court-martial against the accused were not service-connected, but absorbed and in
furtherance of the crime of coup d’etat, cannot be given effect. For reasons which shall be discussed shortly, such declaration was made
without or in excess of jurisdiction; hence, a nullity.

The trial court’s declaration was

made when the Omnibus Motion

had already been rendered moot

and academic with respect to

1Lt. Navales, et al. and Capt.

 Reaso, et al. by reason of the

dismissal of the charge of coup

d’etat against them

The Order dated February 11, 2004 was issued purportedly to resolve the Omnibus Motion, which prayed for the trial court to, inter alia,
acquire jurisdiction over all the charges filed before the military courts in accordance with Rep. Act No. 7055. The said Omnibus Motion
was filed on September 12, 2003 by 243 of the original accused under the Information dated August 1, 2003. However, this information was
subsequently superseded by the Amended Information dated October 20, 2003 under which only 31 were charged with the crime of coup
d’etat. In the November 14, 2003 Order of the RTC (Branch 61), the Amended Information was admitted and the case against the 290
accused, including 1Lt. Navales, et al. and Capt. Reaso, et al., was dismissed. The said Order became final and executory since no motion
for reconsideration thereof had been filed by any of the parties.

Thus, when the RTC (Branch 148) eventually resolved the Omnibus Motion on February 11, 2004, the said motion had already been
rendered moot by the November 14, 2003 Order of the RTC (Branch 61) admitting the Amended Information under which only 31 of the
accused were charged and dismissing the case as against the other 290. It had become moot with respect to those whose charge against
them was dismissed, including 1Lt. Navales, et al. and Capt. Reaso, et al., because they were no longer parties to the case. This was
conceded by the RTC (Branch 148) itself as it stated in the body of its February 11, 2004 Order that:

Now, after going over the records of the case, the Court is of the view that the movants’ first concern in their omnibus motion, i.e., assume
jurisdiction over all charges filed before military courts in accordance with R.A. 7055, has been rendered moot and academic by virtue of
the Order dated November 14, 2003 dismissing the case against TSg. Leonel M. Alnas, TSg. Ramon B. Norico, SSg. Eduardo G. Cedeno, et
al. and finding probable cause in the Order dated November 18, 2003 against accused Cpt. Milo D. Maestrecampo, LtSg. Antonio F.
Trillanes IV, et al., issued by Judge Barza.

In view of the Order of Judge Barza dated November 14, 2003 dismissing the case against aforesaid accused, the Court, therefore, can no
longer assume jurisdiction over all charges filed before the military courts and this Court cannot undo nor reverse the Order of November
14, 2003 of Judge Barza, there being no motion filed by the prosecution to reconsider the order or by any of the accused.19

Accordingly, in the dispositive portion of the said Order, the RTC (Branch 148) held that the Omnibus Motion was considered "moot and
academic." And yet, in the same dispositive portion, the RTC (Branch 148) still proceeded to declare in the last clause thereof that "all the
charges before the court-martial against the accused (those included in the Order of November 18, 2003) as well as those former accused
(those included in the Order of November 14, 2003) are hereby declared not service-connected," on its perception that the crimes defined
in and penalized by the Articles of War were committed in furtherance of coup d’etat; hence, absorbed by the latter crime.

As earlier explained, insofar as those whose case against them was dismissed, there was nothing else left to resolve after the Omnibus
Motion was considered moot and academic. Indeed, as they were no longer parties to the case, no further relief could be granted to them.
1Lt. Navales, et al. and Capt. Reaso, et al. could be properly considered as strangers to the proceedings in Criminal Case No. 03-2784. And
in the same manner that strangers to a case are not bound by any judgment rendered by the court,20 any rulings made by the trial court in
Criminal Case No. 03-2784 are no longer binding on 1Lt. Navales, et al. and Capt. Reaso, et al. The RTC (Branch 148) itself recognized this
as it made the statement, quoted earlier, that "in view of the Order of Judge Barza dated November 14, 2003 dismissing the case against
aforesaid accused, the Court, therefore, can no longer assume jurisdiction over all charges filed before the military courts and this Court
cannot undo nor reverse the Order of November 14, 2003 of Judge Barza there being no motion filed by the prosecution to reconsider the
order or by any of the accused."21

Thus, 1Lt. Navales, et al. and Capt. Reaso, et al., who are no longer charged with coup d’etat, cannot find solace in the declaration of the
RTC (Branch 148) that the charges filed before the General Court-Martial against them were not service-connected. The same is a
superfluity and cannot be given effect for having been made by the RTC (Branch 148) without or in excess of its jurisdiction.
 Such declaration was made by the

RTC (Branch 148) in violation of

Section 1, Republic Act No. 7055

Section 1 of Rep. Act No. 7055 reads in full:

Section 1. Members of the Armed Forces of the Philippines and other persons subject to military law, including members of the Citizens
Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code, other special penal laws, or
local government ordinances, regardless of whether or not civilians are co-accused, victims, or offended parties which may be natural or
juridical persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is
service-connected, in which case the offense shall be tried by court-martial: Provided, That the President of the Philippines may, in the
interest of justice, order or direct at any time before arraignment that any such crimes or offenses be tried by the proper civil courts.

As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70, Articles 72 to 92, and
Articles 95 to 97 of Commonwealth Act No. 408, as amended.

In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the penalty prescribed therefor in the
Revised Penal Code, other special laws, or local government ordinances.

The second paragraph of the above provision explicitly specifies what are considered "service-connected crimes or offenses" under
Commonwealth Act No. 408 (CA 408), as amended, also known as the Articles of War, to wit:

Articles 54 to 70:

Art. 54. Fraudulent Enlistment.

Art. 55. Officer Making Unlawful Enlistment.

Art. 56. False Muster.

Art. 57. False Returns.

Art. 58. Certain Acts to Constitute Desertion.

Art. 59. Desertion.

Art. 60. Advising or Aiding Another to Desert.

Art. 61. Entertaining a Deserter.

 Art. 62. Absence Without Leave.

Art. 63. Disrespect Toward the President, Vice-President, Congress of the Philippines, or Secretary of National Defense.

Art. 64. Disrespect Toward Superior Officer.

Art. 65. Assaulting or Willfully Disobeying Superior Officer.

Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer.

Art. 67. Mutiny or Sedition.

Art. 68. Failure to Suppress Mutiny or Sedition.

Art. 69. Quarrels; Frays; Disorders.

Art. 70. Arrest or Confinement.

Articles 72 to 92

Art. 72. Refusal to Receive and Keep Prisoners.

Art. 73. Report of Prisoners Received.

Art. 74. Releasing Prisoner Without Authority.

Art. 75. Delivery of Offenders to Civil Authorities.

Art. 76. Misbehavior Before the Enemy.

Art. 77. Subordinates Compelling Commander to Surrender.

Art. 78. Improper Use of Countersign.

Art. 79. Forcing a Safeguard.

Art. 80. Captured Property to be Secured for Public Service.

Art. 81. Dealing in Captured or Abandoned Property.

 Art. 82. Relieving, Corresponding With, or Aiding the Enemy.

Art. 83. Spies.

Art. 84. Military Property. – Willful or Negligent Loss, Damage or Wrongful Disposition.

Art. 85. Waste or Unlawful Disposition of Military Property Issued to Soldiers.

Art. 86. Drunk on Duty.

Art. 87. Misbehavior of Sentinel.

Art. 88. Personal Interest in Sale of Provisions.

Art. 88-A. Unlawfully Influencing Action of Court.

Art. 89. Intimidation of Persons Bringing Provisions.

Art. 90. Good Order to be Maintained and Wrongs Redressed.

Art. 91. Provoking Speeches or Gestures.

Art. 92. Dueling.

Articles 95 to 97:

Art. 95. Frauds Against the Government.

Art. 96. Conduct Unbecoming an Officer and Gentleman.

Art. 97 General Article.

Further, Section 1 of Rep. Act No. 7055 vests on the military courts the jurisdiction over the foregoing offenses. The following
deliberations in the Senate on Senate Bill No. 1468, which, upon consolidation with House Bill No. 31130, subsequently became Rep. Act
No. 7055, are instructive:

Senator Shahani. I would like to propose an addition to Section 1, but this will have to be on page 2. This will be in line 5, which should be
another paragraph, but still within Section 1. This is to propose a definition of what "service-connected" means, because this appears on
line 8. My proposal is the following:
"SERVICE-CONNECTED OFFENSES SHALL MEAN THOSE COMMITTED BY MILITARY PERSONNEL PURSUANT TO THE LAWFUL ORDER
OF THEIR SUPERIOR OFFICER OR WITHIN THE CONTEXT OF A VALID MILITARY EXERCISE OR MISSION."

I believe this amendment seeks to avoid any confusion as to what "service-connected offense" means. Please note that "service-
connected offense," under this bill, remains within the jurisdiction of military tribunals.

So, I think that is an important distinction, Mr. President.

Senator Tañada. Yes, Mr. President. I would just want to propose to the Sponsor of this amendment to consider, perhaps, defining what
this service-related offenses would be under the Articles of War. And so, I would submit for her consideration the following amendment to
her amendment which would read as follows: AS USED IN THIS SECTION, SERVICE-CONNECTED CRIMES OR OFFENSES SHALL BE
LIMITED TO THOSE DEFINED IN ARTICLES 54 TO 70, ARTICLES 72 TO 75, ARTICLES 76 TO 83 AND ARTICLES 84 TO 92, AND ARTICLES
95 TO 97, COMMONWEALTH ACT NO. 408 AS AMENDED.

This would identify, I mean, specifically, what these service-related or connected offenses or crimes would be.

The President. What will happen to the definition of "service-connected offense" already put forward by Senator Shahani?

Senator Tañada. I believe that would be incorporated in the specification of the Article I have mentioned in the Articles of War.

SUSPENSION OF THE SESSION

The President. Will the Gentleman kindly try to work it out between the two of you? I will suspend the session for a minute, if there is no
objection. [There was none.]

It was 5:02 p.m.

RESUMPTION OF THE SESSION

At 5:06 p.m., the session was resumed.

The President. The session is resumed.

Senator Tañada. Mr. President, Senator Shahani has graciously accepted my amendment to her amendment, subject to refinement and
style.

The President. Is there any objection? [Silence] There being none, the amendment is approved.22

In the same session, Senator Wigberto E. Tañada, the principal sponsor of SB No. 1468, emphasized:

Senator Tañada. Section 1, already provides that crimes of offenses committed by persons subject to military law ... will be tried by the
civil courts, except, those which are service-related or connected. And we specified which would be considered service-related or
connected under the Articles of War, Commonwealth Act No. 408.23
 It is clear from the foregoing that Rep. Act No. 7055 did not divest the military courts of jurisdiction to try cases involving violations of
Articles 54 to 70, Articles 72 to 92 and Articles 95 to 97 of the Articles of War as these are considered "service-connected crimes or
offenses." In fact, it mandates that these shall be tried by the court-martial.

Indeed, jurisdiction is the power and authority of the court to hear, try and decide a case.24 Moreover, jurisdiction over the subject matter
or nature of the action is conferred only by the Constitution or by law.25 It cannot be (1) granted by the agreement of the parties; (2)
acquired, waived, enlarged or diminished by any act or omission of the parties; or (3) conferred by the acquiescence of the courts.26
Once vested by law on a particular court or body, the jurisdiction over the subject matter or nature of the action cannot be dislodged by
any body other than by the legislature through the enactment of a law. The power to change the jurisdiction of the courts is a matter of
legislative enactment which none but the legislature may do. Congress has the sole power to define, prescribe and apportion the
jurisdiction of the courts.27

In view of the clear mandate of Rep. Act No. 7055, the RTC (Branch 148) cannot divest the General Court-Martial of its jurisdiction over
those charged with violations of Articles 63 (Disrespect Toward the President etc.), 64 (Disrespect Toward Superior Officer), 67 (Mutiny or
Sedition), 96 (Conduct Unbecoming an Officer and a Gentleman) and 97 (General Article) of the Articles of War, as these are specifically
included as "service-connected offenses or crimes" under Section 1 thereof. Pursuant to the same provision of law, the military courts
have jurisdiction over these crimes or offenses.

There was no factual and legal basis for the RTC (Branch 148) to rule that violations of Articles 63, 64, 67, 96, and 97 of the Articles of War
were committed in furtherance of coup d’etat and, as such, absorbed by the latter crime. It bears stressing that, after a reinvestigation, the
Panel of Prosecutors found no probable cause for coup d’etat against the petitioners and recommended the dismissal of the case against
them. The trial court approved the recommendation and dismissed the case as against the petitioners. There is, as yet, no evidence on
record that the petitioners committed the violations of Articles 63, 64, 96, and 97 of the Articles of War in furtherance of coup d’etat.

In fine, in making the sweeping declaration that these charges were not service-connected, but rather absorbed and in furtherance of the
crime of coup d’etat, the RTC (Branch 148) acted without or in excess of jurisdiction. Such declaration is, in legal contemplation,
necessarily null and void and does not exist.28

At this point, a review of its legislative history would put in better perspective the raison d’etre of Rep. Act No. 7055. As early as 1938,
jurisdiction over offenses punishable under CA 408, as amended, also known as the Articles of War, committed by "persons subject to
military law" was vested on the military courts. Thereafter, then President Ferdinand E. Marcos promulgated Presidential Decree (PD) Nos.
1822,29 185030 and 1852.31 These presidential decrees transferred from the civil courts to the military courts jurisdiction over all offenses
committed by members of the AFP, the former Philippine Constabulary, the former Integrated National Police, including firemen, jail
guards and all persons subject to military law.

In 1991, after a series of failed coup d’etats, Rep. Act No. 7055 was enacted. In his sponsorship speech, Senator Tañada explained the
intendment of the law, thus:

Senator Tañada. The long and horrible nightmare of the past continues to haunt us to this present day. Its vestiges remain instituted in
our legal and judicial system. Draconian decrees which served to prolong the past dictatorial regime subsist to rule our new-found lives.
Two of these decrees, Presidential Decree No. 1822 and Presidential Decree No. 1850, as amended, remain intact as laws, in spite of the
fact that four years have passed since we regained our democratic freedom.

The late Mr. Chief Justice Claudio Teehankee enunciated in the case of Olaguer vs. Military Commission No. 34 that "the greatest threat to
freedom is the shortness of human memory."

PD No. 1822 and PD No. 1850 made all offenses committed by members of the Armed Forces of the Philippines, the Philippine
Constabulary, the Integrated National Police, including firemen and jail guards, and all persons subject to military law exclusively triable
by military courts though, clearly, jurisdiction over common crimes rightly belongs to civil courts.

Article II, Section 3 of the 1987 Constitution provides that civilian authority is, at all times, supreme over the military. Likewise, Article VIII,
Section 1 declares that "the judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law."
In the case of Anima vs. The Minister of National Defense, (146 Supreme Court Reports Annotated, page 406), the Supreme Court through
Mr. Justice Gutierrez declared:

The jurisdiction given to military tribunals over common crimes at a time when all civil courts were fully operational and freely functioning
constitutes one of the saddest chapters in the history of the Philippine Judiciary.

The downgrading of judicial prestige caused by the glorification of military tribunals ... the many judicial problems spawned by extended
authoritarian rule which effectively eroded judicial independence and self-respect will require plenty of time and determined efforts to
cure.

The immediate return to civil courts of all cases which properly belong to them is only a beginning.

...

Thus, as long as the civil courts in the land remain open and are regularly functioning, military tribunals cannot try and exercise
jurisdiction over military men for criminal offenses committed by them which are properly cognizable by the civil courts. ...32

Clearly, in enacting Rep. Act No. 7055, the lawmakers merely intended to return to the civilian courts the jurisdiction over those offenses
that have been traditionally within their jurisdiction, but did not divest the military courts jurisdiction over cases mandated by the Articles
of War.

Conclusion

The writs of prohibition (G.R. No. 162318) and habeas corpus (G.R. No. 162341) prayed for by the petitioners must perforce fail. As a
general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty is in the custody of an officer
under a process issued by the court which has jurisdiction to do so.33 Further, the writ of habeas corpus should not be allowed after the
party sought to be released had been charged before any court or quasi-judicial body.34 The term "court" necessarily includes the
General Court-Martial. These rules apply to Capt. Reaso, et al., as they are under detention pursuant to the Commitment Order dated
August 2, 2003 issued by respondent Chief of Staff of the AFP pursuant to Article 7035 of the Articles of War.

On the other hand, the office of the writ of prohibition is to prevent inferior courts, corporations, boards or persons from usurping or
exercising a jurisdiction or power with which they have not been vested by law.36 As earlier discussed, the General Court-Martial has
jurisdiction over the charges filed against petitioners 1Lt. Navales, et al. under Rep. Act No. 7055. A writ of prohibition cannot be issued to
prevent it from exercising its jurisdiction.

WHEREFORE, premises considered, the petitions are hereby DISMISSED.

SO ORDERED.

Davide, Jr., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio Morales,
Azcuna*, Tinga, Chico-Nazario, and Garcia, JJ., concur.
G.R. No. 142396 February 11, 2003

KHOSROW MINUCHER, petitioner,

vs.

HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.

DECISION

VITUG, J.:

Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise also known as the "Dangerous Drugs
Act of 1972," was filed against petitioner Khosrow Minucher and one Abbas Torabian with the Regional Trial Court, Branch 151, of Pasig
City. The criminal charge followed a "buy-bust operation" conducted by the Philippine police narcotic agents in the house of Minucher, an
Iranian national, where a quantity of heroin, a prohibited drug, was said to have been seized. The narcotic agents were accompanied by
private respondent Arthur Scalzo who would, in due time, become one of the principal witnesses for the prosecution. On 08 January 1988,
Presiding Judge Eutropio Migrino rendered a decision acquitting the two accused.

On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC), Branch 19, of Manila for damages on
account of what he claimed to have been trumped-up charges of drug trafficking made by Arthur Scalzo. The Manila RTC detailed what it
had found to be the facts and circumstances surrounding the case.

"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to study in the University of the
Philippines in 1974. In 1976, under the regime of the Shah of Iran, he was appointed Labor Attaché for the Iranian Embassies in Tokyo,
Japan and Manila, Philippines. When the Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became a refugee of the United
Nations and continued to stay in the Philippines. He headed the Iranian National Resistance Movement in the Philippines.

"He came to know the defendant on May 13, 1986, when the latter was brought to his house and introduced to him by a certain Jose Iñigo,
an informer of the Intelligence Unit of the military. Jose Iñigo, on the other hand, was met by plaintiff at the office of Atty. Crisanto Saruca,
a lawyer for several Iranians whom plaintiff assisted as head of the anti-Khomeini movement in the Philippines.

"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iñigo, the defendant expressed his interest in
buying caviar. As a matter of fact, he bought two kilos of caviar from plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of
Persian carpets, pistachio nuts and other Iranian products was his business after the Khomeini government cut his pension of over
$3,000.00 per month. During their introduction in that meeting, the defendant gave the plaintiff his calling card, which showed that he is
working at the US Embassy in the Philippines, as a special agent of the Drug Enforcement Administration, Department of Justice, of the
United States, and gave his address as US Embassy, Manila. At the back of the card appears a telephone number in defendant’s own
handwriting, the number of which he can also be contacted.

"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife and the wife of a countryman
named Abbas Torabian. The defendant told him that he [could] help plaintiff for a fee of $2,000.00 per visa. Their conversation, however,
was more concentrated on politics, carpets and caviar. Thereafter, the defendant promised to see plaintiff again.

"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's Restaurant at Makati. He wanted to buy 200
grams of caviar. Plaintiff brought the merchandize but for the reason that the defendant was not yet there, he requested the restaurant
people to x x x place the same in the refrigerator. Defendant, however, came and plaintiff gave him the caviar for which he was paid. Then
their conversation was again focused on politics and business.

"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo, Pasig. The defendant wanted to buy a
pair of carpets which plaintiff valued at $27,900.00. After some haggling, they agreed at $24,000.00. For the reason that defendant did not
yet have the money, they agreed that defendant would come back the next day. The following day, at 1:00 p.m., he came back with his
$24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him the pair of carpets.1awphi1.nét
"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house and directly proceeded to the latter's
bedroom, where the latter and his countryman, Abbas Torabian, were playing chess. Plaintiff opened his safe in the bedroom and
obtained $2,000.00 from it, gave it to the defendant for the latter's fee in obtaining a visa for plaintiff's wife. The defendant told him that he
would be leaving the Philippines very soon and requested him to come out of the house for a while so that he can introduce him to his
cousin waiting in a cab. Without much ado, and without putting on his shirt as he was only in his pajama pants, he followed the defendant
where he saw a parked cab opposite the street. To his complete surprise, an American jumped out of the cab with a drawn high-powered
gun. He was in the company of about 30 to 40 Filipino soldiers with 6 Americans, all armed. He was handcuffed and after about 20 minutes
in the street, he was brought inside the house by the defendant. He was made to sit down while in handcuffs while the defendant was
inside his bedroom. The defendant came out of the bedroom and out from defendant's attaché case, he took something and placed it on
the table in front of the plaintiff. They also took plaintiff's wife who was at that time at the boutique near his house and likewise arrested
Torabian, who was playing chess with him in the bedroom and both were handcuffed together. Plaintiff was not told why he was being
handcuffed and why the privacy of his house, especially his bedroom was invaded by defendant. He was not allowed to use the telephone.
In fact, his telephone was unplugged. He asked for any warrant, but the defendant told him to `shut up.’ He was nevertheless told that he
would be able to call for his lawyer who can defend him.

"The plaintiff took note of the fact that when the defendant invited him to come out to meet his cousin, his safe was opened where he kept
the $24,000.00 the defendant paid for the carpets and another $8,000.00 which he also placed in the safe together with a bracelet worth
$15,000.00 and a pair of earrings worth $10,000.00. He also discovered missing upon his release his 8 pieces hand-made Persian carpets,
valued at $65,000.00, a painting he bought for P30,000.00 together with his TV and betamax sets. He claimed that when he was
handcuffed, the defendant took his keys from his wallet. There was, therefore, nothing left in his house.

"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various newspapers, particularly in Australia,
America, Central Asia and in the Philippines. He was identified in the papers as an international drug trafficker. x x x

In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines, but also in America and in Germany.
His friends in said places informed him that they saw him on TV with said news.

"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed together, where they were detained for
three days without food and water."1

During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and moved for extension of time to file an
answer pending a supposed advice from the United States Department of State and Department of Justice on the defenses to be raised.
The trial court granted the motion. On 27 October 1988, Scalzo filed another special appearance to quash the summons on the ground that
he, not being a resident of the Philippines and the action being one in personam, was beyond the processes of the court. The motion was
denied by the court, in its order of 13 December 1988, holding that the filing by Scalzo of a motion for extension of time to file an answer
to the complaint was a voluntary appearance equivalent to service of summons which could likewise be construed a waiver of the
requirement of formal notice. Scalzo filed a motion for reconsideration of the court order, contending that a motion for an extension of
time to file an answer was not a voluntary appearance equivalent to service of summons since it did not seek an affirmative relief. Scalzo
argued that in cases involving the United States government, as well as its agencies and officials, a motion for extension was peculiarly
unavoidable due to the need (1) for both the Department of State and the Department of Justice to agree on the defenses to be raised and
(2) to refer the case to a Philippine lawyer who would be expected to first review the case. The court a quo denied the motion for
reconsideration in its order of 15 October 1989.

Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023, assailing the denial. In a decision, dated 06
October 1989, the appellate court denied the petition and affirmed the ruling of the trial court. Scalzo then elevated the incident in a
petition for review on certiorari, docketed G.R. No. 91173, to this Court. The petition, however, was denied for its failure to comply with SC
Circular No. 1-88; in any event, the Court added, Scalzo had failed to show that the appellate court was in error in its questioned judgment.

Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in default for his failure to file a
responsive pleading (answer) and (b) setting the case for the reception of evidence. On 12 March 1990, Scalzo filed a motion to set aside
the order of default and to admit his answer to the complaint. Granting the motion, the trial court set the case for pre-trial. In his answer,
Scalzo denied the material allegations of the complaint and raised the affirmative defenses (a) of Minucher’s failure to state a cause of
action in his complaint and (b) that Scalzo had acted in the discharge of his official duties as being merely an agent of the Drug
Enforcement Administration of the United States Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to answer for
attorneys' fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a motion to dismiss the complaint on the
ground that, being a special agent of the United States Drug Enforcement Administration, he was entitled to diplomatic immunity. He
attached to his motion Diplomatic Note No. 414 of the United States Embassy, dated 29 May 1990, addressed to the Department of Foreign
Affairs of the Philippines and a Certification, dated 11 June 1990, of Vice Consul Donna Woodward, certifying that the note is a true and
faithful copy of its original. In an order of 25 June 1990, the trial court denied the motion to dismiss.

On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R. No. 94257 and entitled "Arthur W.
Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the complaint in Civil Case No. 88-45691 be ordered dismissed. The case was
referred to the Court of Appeals, there docketed CA-G.R. SP No. 22505, per this Court’s resolution of 07 August 1990. On 31 October 1990,
the Court of Appeals promulgated its decision sustaining the diplomatic immunity of Scalzo and ordering the dismissal of the complaint
against him. Minucher filed a petition for review with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the
Honorable Court of Appeals, et. al." (cited in 214 SCRA 242), appealing the judgment of the Court of Appeals. In a decision, dated 24
September 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed the decision of the appellate court and
remanded the case to the lower court for trial. The remand was ordered on the theses (a) that the Court of Appeals erred in granting the
motion to dismiss of Scalzo for lack of jurisdiction over his person without even considering the issue of the authenticity of Diplomatic
Note No. 414 and (b) that the complaint contained sufficient allegations to the effect that Scalzo committed the imputed acts in his
personal capacity and outside the scope of his official duties and, absent any evidence to the contrary, the issue on Scalzo’s diplomatic
immunity could not be taken up.

The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court reached a decision; it adjudged:

"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the plaintiff, who successfully established
his claim by sufficient evidence, against the defendant in the manner following:

"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral damages in the sum of P10 million;
exemplary damages in the sum of P100,000.00; attorney's fees in the sum of P200,000.00 plus costs.

`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this judgment to answer for the unpaid
docket fees considering that the plaintiff in this case instituted this action as a pauper litigant.’"2

While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he was a diplomatic agent entitled to
immunity as such, it ruled that he, nevertheless, should be held accountable for the acts complained of committed outside his official
duties. On appeal, the Court of Appeals reversed the decision of the trial court and sustained the defense of Scalzo that he was
sufficiently clothed with diplomatic immunity during his term of duty and thereby immune from the criminal and civil jurisdiction of the
"Receiving State" pursuant to the terms of the Vienna Convention.

Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether or not the doctrine of conclusiveness
of judgment, following the decision rendered by this Court in G.R. No. 97765, should have precluded the Court of Appeals from resolving
the appeal to it in an entirely different manner, and (2) whether or not Arthur Scalzo is indeed entitled to diplomatic immunity.

The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the finality of the prior judgment, 2) a valid
jurisdiction over the subject matter and the parties on the part of the court that renders it, 3) a judgment on the merits, and 4) an identity of
the parties, subject matter and causes of action.3 Even while one of the issues submitted in G.R. No. 97765 - "whether or not public
respondent Court of Appeals erred in ruling that private respondent Scalzo is a diplomat immune from civil suit conformably with the
Vienna Convention on Diplomatic Relations" - is also a pivotal question raised in the instant petition, the ruling in G.R. No. 97765,
however, has not resolved that point with finality. Indeed, the Court there has made this observation -

"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13 June 1990, unequivocally states that
he would present documentary evidence consisting of DEA records on his investigation and surveillance of plaintiff and on his position
and duties as DEA special agent in Manila. Having thus reserved his right to present evidence in support of his position, which is the
basis for the alleged diplomatic immunity, the barren self-serving claim in the belated motion to dismiss cannot be relied upon for a
reasonable, intelligent and fair resolution of the issue of diplomatic immunity."4
Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a signatory, grants him absolute
immunity from suit, describing his functions as an agent of the United States Drugs Enforcement Agency as "conducting surveillance
operations on suspected drug dealers in the Philippines believed to be the source of prohibited drugs being shipped to the U.S., (and)
having ascertained the target, (he then) would inform the Philippine narcotic agents (to) make the actual arrest." Scalzo has submitted to
the trial court a number of documents -

1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;

2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;

3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;

4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and

5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.

6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign Affairs, dated 27 June 1990 forwarding
Embassy Note No. 414 to the Clerk of Court of RTC Manila, Branch 19 (the trial court);

7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and

8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of Foreign Affairs, through Asst. Sec. Emmanuel
Fernandez, addressed to the Chief Justice of this Court.5

The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly advised the Executive Department of
the Philippine Government that Scalzo was a member of the diplomatic staff of the United States diplomatic mission from his arrival in the
Philippines on 14 October 1985 until his departure on 10 August 1988; (2) that the United States Government was firm from the very
beginning in asserting the diplomatic immunity of Scalzo with respect to the case pursuant to the provisions of the Vienna Convention on
Diplomatic Relations; and (3) that the United States Embassy repeatedly urged the Department of Foreign Affairs to take appropriate
action to inform the trial court of Scalzo’s diplomatic immunity. The other documentary exhibits were presented to indicate that: (1) the
Philippine government itself, through its Executive Department, recognizing and respecting the diplomatic status of Scalzo, formally
advised the "Judicial Department" of his diplomatic status and his entitlement to all diplomatic privileges and immunities under the
Vienna Convention; and (2) the Department of Foreign Affairs itself authenticated Diplomatic Note No. 414. Scalzo additionally presented
Exhibits "9" to "13" consisting of his reports of investigation on the surveillance and subsequent arrest of Minucher, the certification of
the Drug Enforcement Administration of the United States Department of Justice that Scalzo was a special agent assigned to the
Philippines at all times relevant to the complaint, and the special power of attorney executed by him in favor of his previous counsel6 to
show (a) that the United States Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member of the diplomatic staff of the
United States diplomatic mission from his arrival in the Philippines on 14 October 1985 until his departure on 10 August 1988, (b) that, on
May 1986, with the cooperation of the Philippine law enforcement officials and in the exercise of his functions as member of the mission,
he investigated Minucher for alleged trafficking in a prohibited drug, and (c) that the Philippine Department of Foreign Affairs itself
recognized that Scalzo during his tour of duty in the Philippines (14 October 1985 up to 10 August 1988) was listed as being an Assistant
Attaché of the United States diplomatic mission and accredited with diplomatic status by the Government of the Philippines. In his Exhibit
12, Scalzo described the functions of the overseas office of the United States Drugs Enforcement Agency, i.e., (1) to provide criminal
investigative expertise and assistance to foreign law enforcement agencies on narcotic and drug control programs upon the request of
the host country, 2) to establish and maintain liaison with the host country and counterpart foreign law enforcement officials, and 3) to
conduct complex criminal investigations involving international criminal conspiracies which affect the interests of the United States.

The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law and, by the time of its ratification on 18
April 1961, its rules of law had long become stable. Among the city states of ancient Greece, among the peoples of the Mediterranean
before the establishment of the Roman Empire, and among the states of India, the person of the herald in time of war and the person of
the diplomatic envoy in time of peace were universally held sacrosanct.7 By the end of the 16th century, when the earliest treatises on
diplomatic law were published, the inviolability of ambassadors was firmly established as a rule of customary international law.8
Traditionally, the exercise of diplomatic intercourse among states was undertaken by the head of state himself, as being the preeminent
embodiment of the state he represented, and the foreign secretary, the official usually entrusted with the external affairs of the state.
Where a state would wish to have a more prominent diplomatic presence in the receiving state, it would then send to the latter a
diplomatic mission. Conformably with the Vienna Convention, the functions of the diplomatic mission involve, by and large, the
representation of the interests of the sending state and promoting friendly relations with the receiving state.9

The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios accredited to the heads of
state,10 (b) envoys,11 ministers or internuncios accredited to the heads of states; and (c) charges d' affairs12 accredited to the ministers
of foreign affairs.13 Comprising the "staff of the (diplomatic) mission" are the diplomatic staff, the administrative staff and the technical
and service staff. Only the heads of missions, as well as members of the diplomatic staff, excluding the members of the administrative,
technical and service staff of the mission, are accorded diplomatic rank. Even while the Vienna Convention on Diplomatic Relations
provides for immunity to the members of diplomatic missions, it does so, nevertheless, with an understanding that the same be
restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested with blanket diplomatic immunity from civil
and criminal suits. The Convention defines "diplomatic agents" as the heads of missions or members of the diplomatic staff, thus
impliedly withholding the same privileges from all others. It might bear stressing that even consuls, who represent their respective states
in concerns of commerce and navigation and perform certain administrative and notarial duties, such as the issuance of passports and
visas, authentication of documents, and administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and
privileges accorded diplomats, mainly for the reason that they are not charged with the duty of representing their states in political
matters. Indeed, the main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the determination of whether or
not he performs duties of diplomatic nature.

Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attaché of the United States diplomatic mission and was
accredited as such by the Philippine Government. An attaché belongs to a category of officers in the diplomatic establishment who may
be in charge of its cultural, press, administrative or financial affairs. There could also be a class of attaches belonging to certain
ministries or departments of the government, other than the foreign ministry or department, who are detailed by their respective ministries
or departments with the embassies such as the military, naval, air, commercial, agricultural, labor, science, and customs attaches, or the
like. Attaches assist a chief of mission in his duties and are administratively under him, but their main function is to observe, analyze and
interpret trends and developments in their respective fields in the host country and submit reports to their own ministries or departments
in the home government.14 These officials are not generally regarded as members of the diplomatic mission, nor are they normally
designated as having diplomatic rank.

In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and 791, all issued post litem motam,
respectively, on 29 May 1990, 25 October 1991 and 17 November 1992. The presentation did nothing much to alleviate the Court's initial
reservations in G.R. No. 97765, viz:

"While the trial court denied the motion to dismiss, the public respondent gravely abused its discretion in dismissing Civil Case No. 88-
45691 on the basis of an erroneous assumption that simply because of the diplomatic note, the private respondent is clothed with
diplomatic immunity, thereby divesting the trial court of jurisdiction over his person.

"x x x x x x x x x

"And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting aside for the moment the issue of
authenticity raised by the petitioner and the doubts that surround such claim, in view of the fact that it took private respondent one (1)
year, eight (8) months and seventeen (17) days from the time his counsel filed on 12 September 1988 a Special Appearance and Motion
asking for a first extension of time to file the Answer because the Departments of State and Justice of the United States of America were
studying the case for the purpose of determining his defenses, before he could secure the Diplomatic Note from the US Embassy in
Manila, and even granting for the sake of argument that such note is authentic, the complaint for damages filed by petitioner cannot be
peremptorily dismissed.

"x x x x x x x x x

"There is of course the claim of private respondent that the acts imputed to him were done in his official capacity. Nothing supports this
self-serving claim other than the so-called Diplomatic Note. x x x. The public respondent then should have sustained the trial court's
denial of the motion to dismiss. Verily, it should have been the most proper and appropriate recourse. It should not have been
overwhelmed by the self-serving Diplomatic Note whose belated issuance is even suspect and whose authenticity has not yet been
proved. The undue haste with which respondent Court yielded to the private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the Office of Protocol of the Department of
Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant Secretary, certifying that "the records of the Department (would) show
that Mr. Arthur W. Scalzo, Jr., during his term of office in the Philippines (from 14 October 1985 up to 10 August 1988) was listed as an
Assistant Attaché of the United States diplomatic mission and was, therefore, accredited diplomatic status by the Government of the
Philippines." No certified true copy of such "records," the supposed bases for the belated issuance, was presented in evidence.

Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the government. In World Health
Organization vs. Aquino,15 the Court has recognized that, in such matters, the hands of the courts are virtually tied. Amidst
apprehensions of indiscriminate and incautious grant of immunity, designed to gain exemption from the jurisdiction of courts, it should
behoove the Philippine government, specifically its Department of Foreign Affairs, to be most circumspect, that should particularly be no
less than compelling, in its post litem motam issuances. It might be recalled that the privilege is not an immunity from the observance of
the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction.16
The government of the United States itself, which Scalzo claims to be acting for, has formulated its standards for recognition of a
diplomatic agent. The State Department policy is to only concede diplomatic status to a person who possesses an acknowledged
diplomatic title and "performs duties of diplomatic nature."17 Supplementary criteria for accreditation are the possession of a valid
diplomatic passport or, from States which do not issue such passports, a diplomatic note formally representing the intention to assign the
person to diplomatic duties, the holding of a non-immigrant visa, being over twenty-one years of age, and performing diplomatic functions
on an essentially full-time basis.18 Diplomatic missions are requested to provide the most accurate and descriptive job title to that which
currently applies to the duties performed. The Office of the Protocol would then assign each individual to the appropriate functional
category.19

But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently established that, indeed, he worked for the
United States Drug Enforcement Agency and was tasked to conduct surveillance of suspected drug activities within the country on the
dates pertinent to this case. If it should be ascertained that Arthur Scalzo was acting well within his assigned functions when he
committed the acts alleged in the complaint, the present controversy could then be resolved under the related doctrine of State Immunity
from Suit.

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary international law then closely
identified with the personal immunity of a foreign sovereign from suit20 and, with the emergence of democratic states, made to attach not
just to the person of the head of state, or his representative, but also distinctly to the state itself in its sovereign capacity.21 If the acts
giving rise to a suit are those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but
acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Suing
a representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded for the benefit of an individual
but for the State, in whose service he is, under the maxim - par in parem, non habet imperium - that all states are sovereign equals and
cannot assert jurisdiction over one another.22 The implication, in broad terms, is that if the judgment against an official would require the
state itself to perform an affirmative act to satisfy the award, such as the appropriation of the amount needed to pay the damages decreed
against him, the suit must be regarded as being against the state itself, although it has not been formally impleaded.23

In United States of America vs. Guinto,24 involving officers of the United States Air Force and special officers of the Air Force Office of
Special Investigators charged with the duty of preventing the distribution, possession and use of prohibited drugs, this Court has ruled -

"While the doctrine (of state immunity) appears to prohibit only suits against the state without its consent, it is also applicable to
complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. x x x. It cannot for a
moment be imagined that they were acting in their private or unofficial capacity when they apprehended and later testified against the
complainant. It follows that for discharging their duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued. x x x As they have acted on behalf of the government, and within
the scope of their authority, it is that government, and not the petitioners personally, [who were] responsible for their acts."25

This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals26 elaborates:

"It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the
rights of the plaintiff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al.
(33 SCRA 368): `Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are
not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for
the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been
said that an action at law or suit in equity against a State officer or the director of a State department on the ground that, while claiming to
act for the State, he violates or invades the personal and property rights of the plaintiff,
under an unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its consent. The rationale for this ruling is that the doctrine of state
immunity cannot be used as an instrument for perpetrating an injustice.

"x x x x x x x x x

"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and
personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the
moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess
of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice and in bad faith or beyond the scope of his authority and
jurisdiction."27

A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be established that he is
acting within the directives of the sending state. The consent of the host state is an indispensable requirement of basic courtesy between
the two sovereigns. Guinto and Shauf both involve officers and personnel of the United States, stationed within Philippine territory, under
the RP-US Military Bases Agreement. While evidence is wanting to show any similar agreement between the governments of the
Philippines and of the United States (for the latter to send its agents and to conduct surveillance and related activities of suspected drug
dealers in the Philippines), the consent or imprimatur of the Philippine government to the activities of the United States Drug Enforcement
Agency, however, can be gleaned from the facts heretofore elsewhere mentioned. The official exchanges of communication between
agencies of the government of the two countries, certifications from officials of both the Philippine Department of Foreign Affairs and the
United States Embassy, as well as the participation of members of the Philippine Narcotics Command in the "buy-bust operation"
conducted at the residence of Minucher at the behest of Scalzo, may be inadequate to support the "diplomatic status" of the latter but
they give enough indication that the Philippine government has given its imprimatur, if not consent, to the activities within Philippine
territory of agent Scalzo of the United States Drug Enforcement Agency. The job description of Scalzo has tasked him to conduct
surveillance on suspected drug suppliers and, after having ascertained the target, to inform local law enforcers who would then be
expected to make the arrest. In conducting surveillance activities on Minucher, later acting as the poseur-buyer during the buy-bust
operation, and then becoming a principal witness in the criminal case against Minucher, Scalzo hardly can be said to have acted beyond
the scope of his official function or duties.

All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States Drug Enforcement Agency allowed
by the Philippine government to conduct activities in the country to help contain the problem on the drug traffic, is entitled to the defense
of state immunity from suit.

WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur
 CASE DIGEST

Facts

Violation of the “Dangerous Drugs Act of 1972,” was filed against Minucher following a “buy-bust operation” conducted by Philippine police narcotic
agents accompanied by Scalzo in the house of Minucher, an Iranian national, where heroin was said to have been seized. Minucher was later
acquitted by the court.

Minucher later on filed for damages due to trumped-up charges of drug trafficking made by Arthur Scalzo.

Scalzo on his counterclaims that he had acted in the discharge of his official duties as being merely an agent of the Drug Enforcement Administration
of the United States Department of Justice.

Scalzo subsequently filed a motion to dismiss the complaint on the ground that, being a special agent of the United States Drug Enforcement
Administration, he was entitled to diplomatic immunity. He attached to his motion Diplomatic Note of the United States Embassy addressed to DOJ
of the Philippines and a Certification of Vice Consul Donna Woodward, certifying that the note is a true and faithful copy of its original. Trial court
denied the motion to dismiss.

ISSUE

Whether or not Arthur Scalzo is indeed entitled to diplomatic immunity.

H/R:

YES.

A foreign agent, operating within a territory, can be cloaked with immunity from suit as long as it can be established that he is acting within the
directives of the sending state.

The consent or imprimatur of the Philippine government to the activities of the United States Drug Enforcement Agency, however, can be gleaned
from the undisputed facts in the case.

The official exchanges of communication between agencies of the government of the two countries

Certifications from officials of both the Philippine Department of Foreign Affairs and the United States Embassy

Participation of members of the Philippine Narcotics Command in the “buy-bust operation” conducted at the residence of Minucher at the behest of
Scalzo

These may be inadequate to support the “diplomatic status” of the latter but they give enough indication that the Philippine government has given its
imprimatur, if not consent, to the activities within Philippine territory of agent Scalzo of the United States Drug Enforcement Agency.

The job description of Scalzo has tasked him to conduct surveillance on suspected drug suppliers and, after having ascertained the target, to inform
local law enforcers who would then be expected to make the arrest.

In conducting surveillance activities on Minucher, later acting as the poseur-buyer during the buy-bust operation, and then becoming a principal
witness in the criminal case against Minucher,

Scalzo hardly can be said to have acted beyond the scope of his official function or duties.
FIRST DIVISION

G.R. No. 125865 January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner,

vs.

PEOPLE OF THE PHILIPPINES, respondent.

YNARES-SANTIAGO, J.:

Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for allegedly uttering defamatory words against
fellow ADB worker Joyce Cabal, he was charged before the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral
defamation docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued by the MeTC. After fixing
petitioner's bail at P2,400.00 per criminal charge, the MeTC released him to the custody of the Security Officer of ADB. The next day, the MeTC
judge received an "office of protocol" from the Department of Foreign Affairs (DFA) stating that petitioner is covered by immunity from legal process
under Section 45 of the Agreement between the ADB and the Philippine Government regarding the Headquarters of the ADB (hereinafter
Agreement) in the country. Based on the said protocol communication that petitioner is immune from suit, the MeTC judge without notice to the
prosecution dismissed the two criminal cases. The latter filed a motion for reconsideration which was opposed by the DFA. When its motion was
denied, the prosecution filed a petition for certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City which set aside the MeTC
rulings and ordered the latter court to enforce the warrant of arrest it earlier issued. After the motion for reconsideration was denied, petitioner
elevated the case to this Court via a petition for review arguing that he is covered by immunity under the Agreement and that no preliminary
investigation was held before the criminal cases were filed in court.1âwphi1.nêt

The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is covered by any immunity. The DFA's
determination that a certain person is covered by immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the DFA's
advice and in motu propio dismissing the two criminal cases without notice to the prosecution, the latter's right to due process was violated. It should
be noted that due process is a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner was acting at
the time of the alleged utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time.1 At any rate, it has
been ruled that the mere invocation of the immunity clause does not ipso facto result in the dropping of the charges.2

Second, under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this Article experts and consultants performing missions for the Bank shall enjoy the
following privileges and immunities:

a.) immunity from legal process with respect to acts performed by them in their official capacity except when the Bank waives the immunity.

the immunity mentioned therein is not absolute, but subject to the exception that the acts was done in "official capacity." It is therefore necessary to
determine if petitioner's case falls within the ambit of Section 45(a). Thus, the prosecution should have been given the chance to rebut the DFA
protocol and it must be accorded the opportunity to present its controverting evidence, should it so desire.

Third, slandering a person could not possibly be covered by the immunity agreement because our laws do not allow the commission of a crime, such
as defamation, in the name of official duty.3 The imputation of theft is ultra vires and cannot be part of official functions. It is well-settled principle of
law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice or in
bad faith or beyond the scope of his authority or jurisdiction.4 It appears that even the government's chief legal counsel, the Solicitor General, does
not support the stand taken by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is such, enjoys immunity from criminal
jurisdiction of the receiving state except in the case of an action relating to any professional or commercial activity exercised by the diplomatic agent
in the receiving state outside his official functions.5 As already mentioned above, the commission of a crime is not part of official duty.

Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that preliminary investigation is not a matter of right
in cases cognizable by the MeTC such as the one at bar.6 Being purely a statutory right, preliminary investigation may be invoked only when
specifically granted by law.7 The rule on the criminal procedure is clear that no preliminary investigation is required in cases falling within the
jurisdiction of the MeTC.8 Besides the absence of preliminary investigation does not affect the court's jurisdiction nor does it impair the validity of the
information or otherwise render it defective.9

WHEREFORE, the petition is DENIED.

SO ORDERED.1âwphi1.nêt

Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

 CASE DIGEST

FACTS:

Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for allegedly uttering defamatory words against
fellow ADB worker Joyce Cabal, he was charged before the MeTC of Mandaluyong City with two counts of oral defamation. Petitioner was arrested
by virtue of a warrant issued by the MeTC. After fixing petitioner’s bail, the MeTC released him to the custody of the Security Officer of ADB. The
next day, the MeTC judge received an “office of protocol” from the DFA stating that petitioner is covered by immunity from legal process under
section 45 of the Agreement between the ADB and the Philippine Government regarding the Headquarters of the ADB in the country. Based on the
said protocol communication that petitioner is immune from suit, the MeTC judge without notice to the prosecution dismissed the criminal cases. The
latter filed a motion for reconsideration which was opposed by the DFA. When its motion was denied, the prosecution filed a petition for certiorari and
mandamus with the RTC of Pasig City which set aside the MeTC rulings and ordered the latter court to enforce the warrant of arrest it earlier issued.
After the motion for reconsideration was denied, the petitioner elevated the case to the SC via a petition for review arguing that he is covered by
immunity under the Agreement and that no preliminary investigation was held before the criminal case.

ISSUES:

(1) Whether or not the petitioner’s case is covered with immunity from legal process with regard to Section 45 of the Agreement between the ADB
and the Philippine Gov’t.

(2) Whether or not the conduct of preliminary investigation was imperative.

HELD:

(1) NO. The petitioner’s case is not covered by the immunity. Courts cannot blindly adhere to the communication from the DFA that the petitioner is
covered by any immunity. It has no binding effect in courts. The court needs to protect the right to due process not only of the accused but also of the
prosecution. Secondly, the immunity under Section 45 of the Agreement is not absolute, but subject to the exception that the acts must be done in
“official capacity”. Hence, slandering a person could not possibly be covered by the immunity agreement because our laws do not allow the
commission of a crime, such as defamation, in the name of official duty.

(2) NO. Preliminary Investigation is not a matter of right in cases cognizable by the MeTC such as this case. Being purely a statutory right,
preliminary investigation may be invoked only when specifically granted by law. The rule on criminal procedure is clear that no preliminary
investigation is required in cases falling within the jurisdiction of the MeTC.

Hence, SC denied the petition.

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-14916 December 29, 1962

BENJAMIN R. ABUBAKAR and HABIB SABRE, petitioners,

vs.

THE HON. FRANCISCO ARCA and GERONIMO R. MARAVE, and ACTING PROVINCIAL FISCAL OF JOLO, SULU, respondents.

Ambrosio Padilla Law Offices for petitioners.

Office of the Solicitor General for respondents.

REYES, J.B.L., J.

Petition for certiorari with preliminary injunction to annul the orders, dated 25 November 1958, and 2 January 1959, of respondent judges, the
Honorable Francisco Arca and his predecessor, the Honorable Geronimo R. Marave, respectively, of the Court of First Instance of Sulu, and to
enjoin them from rendering any new orders in Criminal Case No. 1926 filed in said court pending final termination of the present proceedings.
Ancillary relief was granted by this Court on 26 January 1959 upon petitioners' filing of a bond.

An amended criminal complaint for double murder and multiple frustrated murder was filed on 24 April 1958 by PC Lt. Atilano C. Mercado with the
Justice of the Peace Court of Indanan, Sulu, against herein petitioners together with several co-accused. At the bottom of the complaint was a
verification, signed by Acting Justice of the Peace Peregrino S. Garcia, that "a preliminary investigation has been conducted in this case having
examined the witnesses under oath." On the same day, Atty. A. V. Valbuena, as counsel for the accused Benjamin Abubakar, addressed a letter to
the Acting Justice of the Peace requesting opportunity to be present during the first stage of the preliminary investigation. This letter was presented
to the said judge after three (3) prosecution witnesses had already been examined, and acting on the request, the court set the hearing on 30 April
1958; and later finding no prima facie case against the two accused Benjamin Abubakar and Habib Sabre, the Court on 26 April 1958, dismissed the
case with respect to them. As the other accused waived further preliminary investigation while some others were still at large, the court remanded
the records to the court of first instance, with a reiteration of the previous dismissal of the case with respect to Benjamin Abubakar and Habib Sabre.

On 5 May 1958, the then Secretary of Justice Jesus G. Barrera, pursuant to Section 1679 of the Revised Administrative Code, appointed respondent
Provincial Fiscal of Bukidnon Himerio B. Garcia as Acting Provincial Fiscal of Sulu in the investigation and prosecution, if warranted, of the death of
Board Member Akuk Sangkula and others; whereupon, respondent Acting Provincial Fiscal Garcia conducted another preliminary investigation, and
thereafter filed two (2) informations in the court of first instance, the first, dated 14 August 1958, against Salip Anual and Marajuki Kissai for double
murder with multiple frustrated murder, and the second, on 15 August 1958, against the herein two petitioners, as principals by induction of the crime
charged in the first information. At the bottom of this second information was a verified certification by the respondent fiscal that he had "conducted
the proper preliminary investigation of the above-entitled case under the provisions of Republic Act No. 732, having examined the witnesses under
oath, and that there is reasonable ground to believe that the accused committed the crime charged". Judge Marave thenceforth ordered the arrest of
the herein two (2) petitioners, and, upon Abubakar's filing of a bond, ordered his release.

It appears on record, and it has not been contradicted, that on 24 May 1958 Attys. Rasul and Amin, two lawyers of the accused, addressed a
communication to the respondent fiscal requesting that they be given the opportunity to be present and to submit evidence during the investigation
that the latter would conduct. On 2 June 1958, said counsel appeared at the preliminary investigation, and expressed their conformity thereto.

On 18 August 1958, herein petitioners filed a motion to quash challenging the authority of the fiscal to file the information in the court of first instance
under Republic Act 732, and claiming, as a consequence, lack of jurisdiction of the court. The trial court, in its orders of 25 November 1958 and 2
January 1959, referred to at the beginning of this opinion, denied the motion to quash and the subsequent motion for reconsideration. Not satisfied
with these orders, said accused filed the present petition with this Court.
The theory of the accused centers on the alleged lack of authority, under Republic Act No. 732, of the fiscal in filing the informations in the Court of
First Instance of Sulu after the same case was dismissed by the justice of the peace in a preliminary investigation, and relies solely on a doctrine laid
down in a decision of the Court of Appeals in the case entitled "People vs. Magbanua, et al." No. 19844-R, promulgated on 14 February 1958.

There is no basis for analogy between the present case and the Magbanua case in view of their substantial difference, in that in the cited decision
the accused was denied the right to a preliminary investigation. This did not happen in the present case: a preliminary investigation by the fiscal
actually took place; counsel for the accused, on 24 May 1958, requested the fiscal for the opportunity to be present and to introduce evidence, and
actually appeared in the said preliminary investigation on 2 June 1958.

Petitioners' theory is, likewise, unacceptable, for the reason that the doctrine relied upon is a misinterpretation of a portion of this Court's ruling in the
case of Villanueva, et al. vs. Gonzales, et al., L-9037, 31 July 1956 (52 O.G. 5497). This portion, quoted in the Court of Appeals decision in the
Magbanua case, states:

Republic Act No. 732 governs preliminary investigations conducted by provincial fiscals in cases originally instituted by them in courts of first
instance. It does not apply to cases begun in the justice of the peace courts and, thereafter, forwarded to the corresponding court of first instance,
either after the second phase of the preliminary investigation required in the Rules of Court had been conducted before said justice of the peace
courts, or after a waiver by the accused of their right to said preliminary investigation. The reason is obvious. In those cases the provincial fiscal is
under no obligation to make such preliminary investigation. He may rely upon the evidence introduced in, and the facts found by the justice of the
peace court, at the preliminary investigation there conducted. (Villanueva vs. Gonzales, 52 O.G. 5497).

From the foregoing, the Court of Appeals erroneously concluded in the Magbanua case that —

The complaint by which it was initiated was originally filed with the justice of the peace court of the municipality where the crime charged was
committed. It was not originally filed by the Acting Provincial Fiscal of Davao in the Court of First Instance. It is a case, therefore, in which the
provincial fiscal cannot under the authority granted him by Section 1687 of the Revised Administrative Code, as amended by Republic Act No. 732
conduct by himself a preliminary investigation (People vs. Magbanua, et al., (CA), No. 19844-R, February 14, 1958)lawphil.net

The Villanueva decision neither said, nor meant, that the fiscal's authority was so limited under Republic Act No. 732. It merely elucidated on the
practical fact that the fiscal need not ("is under no obligation") conduct the preliminary investigation when the case is originally instituted in the justice
of the peace court because this court is the one required to conduct the preliminary investigation. It does not mean that just because the case was
originally instituted in the justice of the peace court the fiscal is precluded from conducting another preliminary investigation by himself after the
justice of the peace court has dismissed the case. For certainly no jeopardy has attached by such dismissal. This is not the first time that the specific
issue in the present case has been presented. In the case of People vs. Reginaldo, L-15960, promulgated on 29 April 1961 (reiterating People vs.
Pervez, L-15231, Nov. 29, 1960), this Court explained the Villanueva case, and stated:

Obviously the ruling refers to those cases where the Justice of the Peace conducted the second stage of preliminary investigation, and found a prima
facie, or where the accused waived preliminary investigation therein. In such cases, the Provincial Fiscal may rely on the evidence presented in the
Justice of the Peace, and is under no obligation to conduct an entirely new preliminary investigation. But certainly, there is nothing in said decision to
justify the conclusion that after a previous dismissal by the Justice of the Peace, the Provincial Fiscal may not conduct a separate indefendent
investigation of his own, and this, without the presence of the accused, if the latter did not so request. In fact, the Villanueva case upheld the legality
of the preliminary investigation conducted by the provincial fiscal with respect to one of the accused who was not among those originally investigated
by the Justice of the Peace, and who was not given notice by the provincial fiscal in the own investigation. (People vs. Pervez, L-15231, supra.)

The operative rule, therefore, is now that —

In resume, we reiterate our previous rulings that if the charge for a crime cognizable by the Court of First Instance is filed by a competent party or
officer in the Justice of the Peace Court, and the accused waives preliminary investigation therein, or the Justice of the Peace, after regular
preliminary investigation, finds that a prima facie case exists, and consequently, elevated the records to the Court of First Instance, the Provincial
Fiscal is not called upon to conduct another preliminary investigation, and may forthwith file the information in the Court of First Instance. Republic
Act 732 does not apply in such a case. But if the Justice of the Peace, after due investigation, dismissed the charge, then, the case stands as if no
charge had been made, and the Provincial Fiscal may thereafter conduct his own investigation of the same charge under the aforesaid Republic Act
1799 (amending R.A. 732), making it in the presence of the accused if and when the latter so requests. (People vs. Pervez, supra).
Finding no error in the orders complained of, the instant petition is dismissed and the preliminary injunction lifted. Costs against the petitioners.

Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Dizon, Regala and Makalintal, JJ., concur.

Bengzon, C.J., and Barrera, J., took no part.

Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise
endangering to the property, health, safety, and moral welfare of people inclusive of one's self.

Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes
the punishment and rehabilitation of people who violate such laws. Criminal law varies according to jurisdiction, and differs
from civil law, where emphasis is more on dispute resolution and victim compensation, rather than
on punishment or rehabilitation.

Mala in Se and Mala Prohibita

Mala in se (the singular is malum in se) – it is a term that signifies crime that is considered wrong in and of itself.

Mala in se is a term that signifies crime that is considered wrong in and of itself. The phrase is Latin and literally means
wrong in itself. This class of crime is contrasted by crimes mala prohibita, the Latin term for "wrong because they are
prohibited."
The distinguishing characteristic of crimes mala in se is not their severity, but that the citizenry feels they are morally
wrong in and of themselves, and require no outside reasons to prove or justify their wrongness. For the most part, these
are crimes that directly and visibly harm other people and their property, since it's traditionally these kinds of crimes that
inspire the most fervent moral outrage.