Republic of the Philippines Having been approached by petitioner on his predicament, who fully
SUPREME COURT bared that he had no sufficient funds to buy the equipment needed, the
Manila
SECOND DIVISION
G.R. No. 96132 June 26, 1992
ORIEL MAGNO, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
PARAS, J.:
This is an appeal by certiorari under Rule 45 of the Revised Rules of
Court, from the decision* of the respondent Court of Appeals which
affirmed in toto the decision of the Regional Trial Court of Quezon City,
Branch 104 finding the accused petitioner, guilty of violations of Batas
Pambansa Blg. 22, in Criminal Cases Q-35693 to 35696 before they
were elevated on appeal to the respondent appellate Court under CA-
G.R. CR No. 04889.
The antecedent facts and circumstances of the four (4) counts of the
offense charged, have been clearly illustrated, in the Comment of the
Office of the Solicitor General as official counsel for the public
respondent, thus:
Petitioner was in the process of putting up a car repair shop sometime in
April 1983, but a did not have complete equipment that could make his
venture workable. He also had another problem, and that while he was
going into this entrepreneurship, he lacked funds with which to purchase
the necessary equipment to make such business operational. Thus,
petitioner, representing Ultra Sources International Corporation,
approached Corazon Teng, (private complainant) Vice President of
Mancor Industries (hereinafter referred to as Mancor) for his needed car
repair service equipment of which Mancor was a distributor, (Rollo, pp.
40-41)
former (Corazon Teng) referred Magno to LS Finance and Management
Corporation (LB Finance for brevity) advising its Vice-President, Joey
Gomez, that Mancor was willing and able to supply the pieces of
equipment needed if LS Finance could accommodate petitioner and
provide him credit facilities. (Ibid., P. 41)
The arrangement went through on condition that petitioner has to put up
a warranty deposit equivalent to thirty per centum (30%) of the total value
of the pieces of equipment to be purchased, amounting to P29,790.00.
Since petitioner could not come up with such amount, he requested Joey
Gomez on a personal level to look for a third party who could lend him
the equivalent amount of the warranty deposit, however, unknown to
petitioner, it was Corazon Teng who advanced the deposit in question, on
condition that the same would be paid as a short term loan at 3% interest
(Ibid., P. 41)
The specific provision in the Leasing Agreement, reads:
1.1. WARRANTY DEPOSIT — Before or upon delivery of
each item of Equipment, the Lessee shall deposit with the
Lessor such sum or sums specified in Schedule A to
serve as security for the faithful performance of its
obligations.
This deposit shall be refunded to the Lessee upon the
satisfactory completion of the entire period of Lease,
subject to the conditions of clause 1.12 of this Article.
(Ibid., p. 17)
As part of the arrangement, petitioner and LS Finance entered into a
leasing agreement whereby LS Finance would lease the garage
equipments and petitioner would pay the corresponding rent with the
option to buy the same. After the documentation was completed, the
equipment were delivered to petitioner who in turn issued a postdated
check and gave it to Joey Gomez who, unknown to the petitioner,
delivered the same to Corazon Teng. When the check matured,
Petitioner requested through Joey Gomez not to deposit the check as he
(Magno) was no longer banking with Pacific Bank.
To replace the first check issued, petitioner issued another set of six (6)
postdated checks. Two (2) checks dated July 29, 1983 were deposited
and cleared while the four (4) others, which were the subject of the four
counts of the aforestated charges subject of the petition, were held
momentarily by Corazon Teng, on the request of Magno as they were not
covered with sufficient funds. These checks were a) Piso Bank Check
Nos. 006858, dated August 15, 1983, 006859 dated August 28, 1983 and
006860 dated September 15, 1983, all in the amount of P5,038.43 and
No. 006861 dated September 28, 1983, in the amount of P10,076.87.
(Ibid., pp. 42 & 43).
Subsequently, petitioner could not pay LS Finance the monthly rentals,
thus it pulled out the garage equipments. It was then on this occasion that
petitioner became aware that Corazon Teng was the one who advanced
the warranty deposit. Petitioner with his wife went to see Corazon Teng
and promised to pay the latter but the payment never came and when the
four (4) checks were deposited they were returned for the reason
"account closed." (Ibid., p. 43)
After joint trial before the Regional Trial Court of Quezon City, Branch
104, the accused-petitioner was convicted for violations of BP Blg. 22 on
the four (4) cases, as follows:
. . . finding the accused-appellant guilty beyond
reasonable doubt of the offense of violations of B.P. Blg.
22 and sentencing the accused to imprisonment for one
year in each Criminal Case Nos. Q-35693, Q-35695 and
Q-35696 and to pay to complainant the respective
amounts reflected in subject checks. (Ibid., pp. 25, 27)
Reviewing the above and the affirmation of the above-stated decision of
the court a quo, this Court is intrigued about the outcome of the checks
subject of the cases which were intended by the parties, the petitioner on
the one hand and the private complainant on the other, to cover the
"warranty deposit" equivalent to the 30% requirement of the financing
company. Corazon Teng is one of the officers of Mancor, the supplier of
the equipment subject of the Leasing Agreement subject of the high
financing scheme undertaken by the petitioner as lessee of the repair
service equipment, which was arranged at the instance of Mrs. Teng from
the very beginning of the transaction.
By the nature of the "warranty deposit" amounting to P29,790.00
corresponding to 30% of the "purchase/lease" value of the equipments
subject of the transaction, it is obvious that the "cash out" made by Mrs.
Teng was not used by petitioner who was just paying rentals for the
equipment. It would have been different if petitioner opted to purchase
the pieces of equipment on or about the termination of the lease-
purchase agreement in which case he had to pay the additional amount
of the warranty deposit which should have formed part of the purchase
price. As the transaction did not ripen into a purchase, but remained a
lease with rentals being paid for the loaned equipment, which were pulled
out by the Lessor (Mancor) when the petitioner failed to continue paying
possibly due to economic constraints or business failure, then it is lawful
and just that the warranty deposit should not be charged against the
petitioner.
To charge the petitioner for the refund of a "warranty deposit" which he
did not withdraw as it was not his own account, it having remained with
LS Finance, is to even make him pay an unjust "debt", to say the least,
since petitioner did not receive the amount in question. All the while, said
amount was in the safekeeping of the financing company, which is
managed, supervised and operated by the corporation officials and
employees of LS Finance. Petitioner did not even know that the checks
he issued were turned over by Joey Gomez to Mrs. Teng, whose
operation was kept from his knowledge on her instruction. This fact alone
evoke suspicion that the transaction is irregular and immoral per se,
hence, she specifically requested Gomez not to divulge the source of the
"warranty deposit".
It is intriguing to realize that Mrs. Teng did not want the petitioner to know
that it was she who "accommodated" petitioner's request for Joey
Gomez, to source out the needed funds for the "warranty deposit". Thus it
unfolds the kind of transaction that is shrouded with mystery, gimmickry
and doubtful legality. It is in simple language, a scheme whereby Mrs.
Teng as the supplier of the equipment in the name of her corporation,
Mancor, would be able to "sell or lease" its goods as in this case, and at
the same time, privately financing those who desperately need petty
accommodations as this one. This modus operandi has in so many
instances victimized unsuspecting businessmen, who likewise need
protection from the law, by availing of the deceptively called "warranty
deposit" not realizing that they also fall prey to leasing equipment under
the guise of a lease-purchase agreement when it is a scheme designed
to skim off business clients.
This maneuvering has serious implications especially with respect to the
threat of the penal sanction of the law in issue, as in this case. And, with
a willing court system to apply the full harshness of the special law in
question, using the "mala prohibitia" doctrine, the noble objective of the
law is tainted with materialism and opportunism in the highest, degree.
This angle is bolstered by the fact that since the petitioner or lessee
referred to above in the lease agreement knew that the amount of
P29,790.00 subject of the cases, were mere accommodation-
arrangements with somebody thru Joey Gomez, petitioner did not even
attempt to secure the refund of said amount from LS Finance,
notwithstanding the agreement provision to the contrary. To argue that
after the termination of the lease agreement, the warranty deposit should
be refundable in full to Mrs. Teng by petitioner when he did not cash out
the "warranty deposit" for his official or personal use, is to stretch the
nicety of the alleged law (B.P. No, 22) violated.
For all intents and purposes, the law was devised to safeguard the
interest of the banking system and the legitimate public checking account
user. It did not intend to shelter or favor nor encourage users of the
system to enrich themselves through manipulations and circumvention of
the noble purpose and objective of the law. Least should it be used also
as a means of jeopardizing honest-to-goodness transactions with some
color of "get-rich" scheme to the prejudice of well-meaning businessmen
who are the pillars of society.
Under the utilitarian theory, the "protective theory" in criminal law, "affirms
that the primary function of punishment is the protective (sic) of
society against actual and potential wrongdoers." It is not clear whether
petitioner could be considered as having actually committed the wrong
sought to be punished in the offense charged, but on the other hand, it
can be safely said that the actuations of Mrs. Carolina Teng amount to
that of potential wrongdoers whose operations should also be clipped at
some point in time in order that the unwary public will not be failing prey
to such a vicious transaction (Aquino, The Revised Penal Code, 1987
Edition, Vol. I, P. 11)
Corollary to the above view, is the application of the theory that "criminal
law is founded upon that moral disapprobation . . . of actions which are
immoral, i.e., which are detrimental (or dangerous) to those conditions
upon which depend the existence and progress of human society. This
disappropriation is inevitable to the extent that morality is generally
founded and built upon a certain concurrence in the moral opinions of all.
. . . That which we call punishment is only an external means of
emphasizing moral disapprobation the method of punishment is in reality
the amount of punishment," (Ibid., P. 11, citing People v. Roldan
Zaballero, CA 54 O.G. 6904, Note also Justice Pablo's view in People v.
Piosca and Peremne, 86 Phil. 31).
Thus, it behooves upon a court of law that in applying the punishment
imposed upon the accused, the objective of retribution of a wronged
society, should be directed against the "actual and potential wrongdoers."
In the instant case, there is no doubt that petitioner's four (4) checks were
used to collateralize an accommodation, and not to cover the receipt of
an actual "account or credit for value" as this was absent, and therefore
petitioner should not be punished for mere issuance of the checks in
question. Following the aforecited theory, in petitioner's stead the
"potential wrongdoer", whose operation could be a menace to society,
should not be glorified by convicting the petitioner.
While in case of doubt, the case should have been resolved in favor of
the accused, however, by the open admission of the appellate court
below, oven when the ultimate beneficiary of the "warranty deposit" is of
doubtful certainty, the accused was convicted, as shown below:
Nor do We see any merit in appellant's claim that the
obligation of the accused to complainant had been
extinguished by the termination of the leasing agreement
— by the terms of which the warranty deposit advanced
by complainant was refundable to the accused as lessee
— and that as the lessor L.S. Finance neither made any
liquidation of said amount nor returned the same to the
accused, it may he assumed that the amount was already
returned to the complainant. For these allegations, even if
true, do not change the fact, admitted by appellant and
established by the evidence, that the four checks were
originally issued on account or for value. And as We have
already observed, in order that there may be a conviction
under the from paragraph of Section 2 of B.P. Blg 22 —
with respect to the element of said offense that the check
should have been made and issued on account or for
value — it is sufficient, all the other elements of the
offense being present, that the check must have been
drawn and issued in payment of an obligation.
Moreover, even granting, arguendo, that the
extinguishment, after the issuance of the checks, of the
obligation in consideration of which the checks were
issued, would have resulted in placing the case at bar
beyond the purview of the prohibition in Section 1 of BP
Blg. 22, there is no satisfactory proof that there was such
an extinguishment in the present case. Appellee aptly
points out that appellant had not adduced any direct
 evidence to prove that the amount advanced by the
complainant to cover the warranty deposit must already
have been returned to her. (Rollo, p. 30)
It is indubitable that the respondent Court of Appeals even disregarded
the cardinal rule that the accused is presumed innocent until proven guilty
beyond reasonable doubt. On the contrary, the same court even
expected the petitioner-appellant to adduce evidence to show that he was
not guilty of the crime charged. But how can be produce documents
showing that the warranty deposit has already been taken back by Mrs.
Teng when she is an officer of Mancor which has interest in the
transaction, besides being personally interested in the profit of her side-
line. Thus, even if she may have gotten back the value of the
accommodation, she would still pursue collecting from the petitioner since
she had in her possession the checks that "bounced".
That the court a quo merely relied on the law, without looking into the real
nature of the warranty deposit is evident from the following
pronouncement:
And the trail court concluded that there is no question that
the accused violated BP Blg. 22, which is a special
statutory law, violations of which are mala prohibita. The
court relied on the rule that in cases ofmala prohibita, the
only inquiry is whether or not the law had been violated,
proof of criminal intent not being necessary for the
conviction of the accused, the acts being prohibited for
reasons of public policy and the defenses of good faith
and absence of criminal intent being unavailing in
prosecutions for said offenses." (Ibid., p. 26)
The crux of the matter rests upon the reason for the drawing of the
postdated checks by the petitioner, i.e., whether they were drawn or
issued "to apply on account or for value", as required under Section 1 of
B.P. Blg, 22. When viewed against the following definitions of the catch-
terms "warranty" and "deposit", for which the postdated checks were
issued or drawn, all the more, the alleged crime could not have been
committed by petitioner:
a) Warranty — A promise that a proposition of fact is true.
A promise that certain facts are truly as they are
represented to be and that they will remain so: . . .
(Black's Law Dictionary, Fifth Edition, (1979) p. 1423)
A cross-reference to the following term shows:
Fitness for Particular Purpose: —
Where the seller at the time of contracting has reason to
know any particular purpose for which the goods are
required and that the buyer is relying on the seller's skill
or judgment to select or furnish suitable goods, there is,
unless excluded or modified, an implied warranty that the
goods shall be fit for such purpose, (Ibid., p. 573)
b) Deposit: — Money lodged with a person as an earnest
or security for the performance of some contract, to be
forfeited if the depositor fails in his undertaking. It may be
deemed to be part payment and to that extent may
constitute the purchaser the actual owner of the estate.
To commit to custody, or to lay down; to place; to put. To
lodge for safe- keeping or as a pledge to intrust to the
care of another.
The act of placing money in the custody of a bank or
banker, for safety or convenience, to be withdrawn at the
will of the depositor or under rules and regulations agreed
on. Also, the money so deposited, or the credit which the
depositor receives for it. Deposit, according to its
commonly accepted and generally understood among
bankers and by the public, includes not only deposits
payable on demand and for which certificates, whether
interest-bearing or not, may be issued, payable on
demand, or on certain notice or at a fixed future time.
(Ibid., pp. 394-395)
Furthermore, the element of "knowing at the time of issue that he does
not have sufficient funds in or credit with the drawee bank for the
payment of such check in full upon its presentment, which check is
subsequently dishonored by the drawee bank for insufficiency of funds or
credit or would have been dishonored for the same reason . . . is
inversely applied in this case. From the very beginning, petitioner never
hid the fact that he did not have the funds with which to put up the
warranty deposit and as a matter of fact, he openly intimated this to the
vital conduit of the transaction, Joey Gomez, to whom petitioner was
introduced by Mrs. Teng. It would have been different if this predicament
was not communicated to all the parties he dealt with regarding the lease
agreement the financing of which was covered by L.S. Finance
Management.
WHEREFORE, the appealed decision is REVERSED and the accused-
petitioner is hereby ACQUITTED of the crime charged.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 122641 January 20, 1997
BAYANI SUBIDO, JR. and RENE PARINA, petitioners,
vs.
THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE
PHILIPPINES, respondents.
DAVIDE, JR., J.:
In this petition for certiorari under Rule 65 of the Rules of Court, the
petitioners seek to set aside, on ground of grave abuse of discretion
amounting to lack of jurisdiction, the following acts of the respondent
Sandiganbayan in Criminal Case No. 22825: (a) the Resolution 1 of 25
October 1995 which denied the petitioners' Motion to Quash of 28 August
1995 and Supplementary Motion to Quash of 7 October 1995; (b) the
Order 2 of 10 November 1995 which denied the petitioners' motion for
reconsideration; and (c) the Orders3 of 10 November 1995 which entered
a plea of not guilty for the petitioners and set pre-trial on 12 January
1996.
In Criminal Case No. 22825, the petitioners were charged with Arbitrary
Detention, defined and penalized by Article 124 of the Revised Penal
Code (RPC), under an information dated 17 July 1995 (but filed on 28
July 1995), the accusatory portion of which reads as follows:
That on or about June 25, 1992, or sometime subsequent
thereto, in Mandaluyong, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-
named accused, Bayani Subido, Jr., being then a
Commissioner of the Bureau of Immigration and
Deportation (BID) and accused Rene Parina, being then a
BID Special Agent, while in the performance of their
official functions, and conspiring and confederating with
each other, did then and there wilfully, unlawfully and
feloniously cause the issuance and implementation of a
warrant of arrest dated June 25, 1992 against James J.
Maksimuk, said accused knowing fully well that the BID
Decision dated June 6, 1991, requiring Maksimuk's
deportation has not as yet become final and executory
considering the pendency of a Motion for
Reconsideration, resulting in the detention of the latter for
a period of forty-three (43) days and, thus, causing him
undue injury.
CONTRARY TO LAW. 4
The arraignment was originally set for 28 August 1995. 5
On 28 August 1995, however, the petitioners filed a Motion to
Quash, 6 contending that in view of the effectivity of R.A. No. 7975 7 on 6
May 1995, amending §4 of P.D. No. 1606, 8 the Sandiganbayan had no
jurisdiction over both the offense charged and the persons of the
accused. They argued that: (1) Arbitrary Detention did not fall within
Chapter II, §2, Title VII of the RPC, but within §1, Chapter 1, Title II
(Crimes Against the Fundamental Laws of the State), hence, not covered
by R.A. No. 7975 and, therefore, the case should have been filed with the
Regional Trial Court (RTC) of Manila; (2) R.A. No. 7975 should be given
prospective application and at the time the case was filed, petitioner
Subido was already a private person since he was separated from the
service on 28 February 1995; while petitioner Parina did not hold a
position corresponding to salary grade "27"; and (3) penal laws must be
strictly construed against the State.
In compliance with the order of the Sandiganbayan, the prosecution filed
its Opposition to the Motion to Quash 9 on 28 September 1995. It
contended that it was clear from §4(b) of R.A. No. 7975 that the
Sandiganbayan had jurisdiction over both the offense charged and the
persons of the accused considering that "the basis of its jurisdiction . . . is
the position of the accused in the government service when the offense
charged was committed and not the nature of the offense charged,
provided the said offense committed by the accused was in the exercise
of his duties and in relation to his office." The fact then that accused
Subido was already a private individual was of no moment.
In a Supplement to the Motion to Quash 10 filed on 9 October 1995, the
petitioners further asserted that: (1) the allegations in the information
were vague; (2) under §1, Rule VIII of Memorandum Order (MO) No. 04-
92 (Rules of Procedure to Govern Deportation Proceedings), the grant or
denial of bail to an alien in a deportation proceeding was discretionary
upon the Commissioner, hence could not be subject to a charge of
arbitrary detention; (3) petitioner Subido was separated from the service
before the effectivity of R.A. No. 7975, hence retroactive application
thereof would be prejudicial to him; and (4) at the time the information
was filed, petitioner Parina was not occupying a position corresponding to
salary grade "27" or higher, as prescribed by R.A. No. 6758. 11
In its Rejoinder 12 filed on 20 October 1995, the prosecution maintained
that with §4 of MO No. 04-92, Salazar v.Achacoso, 13 and Gatchalian v.
CID, 14 the only instance when an alien facing deportation proceedings
could be arrested by virtue of a warrant of arrest was when the
Commissioner issued the warrant to carry out a final order of deportation,
which was absent in this case due to the pendency of the motion for
reconsideration timely filed. It further reiterated that the basis of the
Sandiganbayan's jurisdiction over the case was the position of the
accused when the crime was committed, not when the information was
filed; in any event, petitioner Subido's position as a Commissioner of the
Bureau of Immigration was classified even higher than grade "27" under
the Compensation and Classification Act of 1989.
In its Resolution15 of 25 October 1995, the Sandiganbayan denied the
petitioners' Motion to Quash and the Supplement thereto, ruling:
1. [T]he jurisdiction of the Sandiganbayan remains not
only over the specific offenses enumerated in Sec. 4 of
P.D. 1606 as Amended by R.A. 7975 but over offenses
committed in relation to their office, regardless of the
penalty provided that the salary of the accused is at
Grade 27 under [R.A. 6758] or that he is occupying any of
the position described in Sec. 4(a)e of the law, which
includes the position of Deputy Commissioner.
2. [A]t this time the position of the prosecution in response
to this Court's misgivings stated in its Order of August 28,
1995, appears to be that aliens may not be arrested
except upon execution of a deportation order, a matter
which can be taken up at further proceedings after the
arraignment of the accused.
It likewise set arraignment on 10 November 1995. To abort
arraignment, the petitioners filed on 9 November 1995 a motion
for reconsideration 16 and submitted that under the vast power of
the Commissioner of the Department of Immigration, he could
authorize the arrest and detention of an alien even though a
deportation order had not yet become final, in light of the
preventive, not penal, nature of a deportation order. 17
On 10 November 1995, the Sandiganbayan issued an Order 18 denying
the petitioners' motion for reconsideration, and a second Order 19 entering
a plea of not guilty in favor of the petitioners since they objected to
arraignment, setting pre-trial on 12 January 1996, and making of record
that arraignment was conducted with the reservation of the petitioners to
seek redress with this Court from the denial of their motion for
reconsideration.
Hence, this special civil action, where the parties, in the main, reiterate
the arguments they raised before the Sandiganbayan. In due time, we
resolved to give clue course to the petition and required the parties to file
their respective memoranda, which they subsequently complied with.
The petition must be dismissed.
Sections 2 and 7 of R.A. No. 7975 pertinently provide as follows:
Sec. 2. Section 4 of [P.D. No. 1606] is hereby further
amended to read as follows:
Sec. 4. Jurisdiction. — The
Sandiganbayan shall exercise original
jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as
amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic
Act No. 1379, and Chapter II, Section 2,
Title VII of the Revised Penal Code, where
one or more of the principal accused are
officials occupying the following positions
in the government, whether in a
permanent, acting or interim capacity, at
the time of the commission of the offense:
(1) Officials of the
executive branch
occupying the positions of
regional director and
higher, otherwise classified
as grade 27 and higher, of
the Compensation and
Position Classification Act
of 1989 (Republic Act No.
6758), specifically
including:
xxx xxx xxx
(5) All other national and
local officials classified as
Grade "27" and higher
under the Compensation
and Position Classification
Act of 1989.
b. Other offenses or felonies committed by
the public officials and employees
mentioned in subsection (a) of this section
in relation to their office.
c. Civil and criminal cases filed pursuant
to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A..
In cases where none of the principal
accused are occupying positions
corresponding to salary grade "27" or
higher, as prescribed in said Republic Act
No. 6758, or PNP officers occupying the
rank of superintendent or higher, or their
equivalent, exclusive jurisdiction thereof
shall be vested in the proper Regional
Trial Court, Metropolitan Trial Court,
Municipal Trial Court, and Municipal
Circuit Trial Court, as the case may be,
pursuant to their respective jurisdiction as
provided in Batas Pambansa Blg. 129.
Sec. 7. Upon the effectivity of this Act, all criminal cases
in which trial has not begun in the Sandiganbayan shall
be referred to the proper courts.
R.A. No. 7975 took effect on 16 May 1995, 20 or one year, ten months and
twenty-one days after the alleged commission of the crime charged in
Criminal Case No. 22825 before the Sandiganbayan. The provisions of
§4 of P.D. No. 1606, as amended by E.O. No. 184, but prior to their
further amendment by R.A. No. 7975, are then the applicable provisions,
§4 of P.D. No. 1606 then pertinently provided as follows:
Sec. 4. Jurisdiction. — The Sandiganbayan shall
exercise:
(a) Exclusive appellate jurisdiction in all cases involving:
(1) violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title VII
of the Revised Penal Code;
(2) other offenses or felonies committed by public officers
and employees in relation to their office, including those
employed in government-owned or controlled
corporations, whether simple or complexed with other
crimes, where the penalty prescribed by law is higher
than prision correccional or imprisonment for six (6) years,
or a fine of P6,000.00: PROVIDED, HOWEVER, that
offenses or felonies mentioned in this paragraph where
the penalty prescribed by law does not exceed prision
correccional or imprisonment of six (6) years or a fine of
 P6,000.00 shall be tried by the proper Regional Trial
Court, Metropolitan Trial Court, Municipal Trial Court and
Municipal Circuit Trial Court.
In Aguinaldo v. Domagas, 21 and subsequently in Sanchez v.
Demetriou, 22 Natividad v. Felix, 23 and Republic v. Asuncion, 24 we ruled
that for the Sandiganbayan to have exclusive original jurisdiction over
offenses or felonies committed by public officers or employees under the
aforementioned §4(a)(2), it was not enough that the penalty prescribed
therefor was higher than prision correccionalor imprisonment for six
years, or a fine of P6,000.00; it was likewise necessary that the offenses
or felonies were committed in relation to their office. 25
The information in Criminal Case No. 22825 before the Sandiganbayan
charged the petitioners with the crime of arbitrary detention which was
committed "while in the performance of their official functions," or,
evidently, in relation to their office. As the detention allegedly lasted for a
period of 43 days, the prescribed penalty is prision mayor, 26with a
duration of six years and one day to twelve years. Indisputably, the
Sandiganbayan has jurisdiction over the offense charged in Criminal
Case No. 22825.
The petitioners, however, urge us to apply §4 of P.D. No. 1606, as
amended by R.A. No. 7975, the law in force at the time of the filing of the
information in Criminal Case No. 22825. They submit that under the new
law, the Sandiganbayan has no jurisdiction over the offense charged and
their persons because at the time of the filing of the information, petitioner
Subido was already a private individual, while the classification of
petitioner Parina's position was lower than grade "27."
We are not persuaded. The petitioners overlook the fact that for purposes
of §4 of P.D. No. 1606, as amended, the reckoning point is the time of the
commission of the crime. This is plain from the last clause of the opening
sentence of paragraph (a), §4 of P.D. No. 1606, as further amended by
R.A. No. 7975.
Petitioner Subido never denied the respondents' claim that as
"commissioner of Immigration and Deportation [now Bureau of
Immigration] at the time of the commission of the crime [he was]
classified as having a position even higher than grade 27." 27 Both parties
are, however, agreed that at such time petitioner Parina was holding a
position with a classification much lower than salary grade "27." There
can, therefore, be no doubt that the Sandiganbayan had jurisdiction over
the crime allegedly committed by Subido.
That petitioner Parina held a position with a salary grade of less than "27"
at the time of the commission of the alleged arbitrary detention is of no
moment. He is prosecuted as a co-conspirator of petitioner Subido, a
principal accused, who held a position higher than grade "27." The
following provision of §4 of P.D. No. 1606, as amended by R.A. No. 7975,
then applies:
In cases where none of the principal accused are
occupying the positions corresponding to salary grade
"27" or higher, as prescribed in the said Republic Act No.
6758 . . . exclusive jurisdiction therefor shall be vested in
the proper Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court, and Municipal Circuit Trial Court, as
the case may be, pursuant to their respective jurisdiction
as provided in Batas Pambansa Blg. 129.
Finally, the petitioners' invocation of the prohibition against the
retroactivity of penal laws is misplaced. Simply put, R.A. No. 7975 is not a
penal law. Penal laws or statutes are those acts of the Legislature which
prohibit certain acts and establish penalties for their violation; 28 or those
that define crimes, treat of their nature, and provide for their
punishment. 29 R.A. No. 7975, in further amending P.D. No. 1606 as
regards the Sandiganbayan's jurisdiction, mode of appeal, and other
procedural matters, is clearly a procedural law, i.e., one which prescribes
rules and forms of procedure of enforcing rights or obtaining redress for
their invasion, or those which refer to rules of procedure by which courts
applying laws of all kinds can properly administer justice. 30 Moreover, the
petitioners even suggest that it is likewise a curative or remedial statute:
one which cures defects and adds to the means of enforcing existing
obligations. 31 As noted by the petitioners, previous to the enactment of
R.A. No. 7975:
As before, not [sic] matter what kind of offense, so long as
it is alleged that the crime is committed in relation to the
office of the public official, the Sandiganbayan had
jurisdiction to try and hear the case, such that in many
cases accused persons even from the far away parts of
the country, Mindanao, Visayas and the northern parts of
Luzon had to come personally to Manila to attend and
appear for cases filed against them, considering that the
Sandiganbayan has its office/court in Manila.
 The said R.A. No. 7975 changed this lamentable
situation. For no as so provided in the said law, there
ha[s] been a modification that benefits [the] accused . . .
in the sense that now where none of the principal accused
are occupying positions corresponding to salary grade
"27" or higher as prescribed by Republic Act No. 6758 . . .
exclusive jurisdiction there shall be vested now in the
proper Regional Trial and Metropolitan Trial Court and
Municipal Circuit Trial Court, as the case may be . . . 32
All told, as a procedural and curative statute, R.A. No. 7975 may
validly be given retroactive effect, there being no impairment of
contractual or vested rights. 33
WHEREFORE, the instant petition is DISMISSED, and the questioned
resolution and orders of the respondent Sandiganbayan are AFFIRMED.
Costs against the petitioners.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 151258 February 1, 2012
ARTEMIO VILLAREAL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x-----------------------x
G.R. No. 154954
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
The HONORABLE COURT OF APPEALS, ANTONIO MARIANO
ALMEDA, DALMACIO LIM, Jr., JUNEL ANTHONY AMA, ERNESTO
JOSE MONTECILLO, VINCENT TECSON, ANTONIO GENERAL,
SANTIAGO RANADA III, NELSON VICTORINO, JAIME MARIA
FLORES II, ZOSIMO MENDOZA, MICHAEL MUSNGI, VICENTE
VERDADERO, ETIENNE GUERRERO, JUDE FERNANDEZ, AMANTE
PURISIMA II, EULOGIO SABBAN, PERCIVAL BRIGOLA, PAUL
ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR.,
ADEL ABAS, JOSEPH LLEDO, and RONAN DE
GUZMAN, Respondents.
x-----------------------x
G.R. No. 155101
FIDELITO DIZON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x-----------------------x
G.R. Nos. 178057 & 178080
GERARDA H. VILLA, Petitioner,
vs.
MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN
RAMOS, CRISANTO CRUZ SARUCA, Jr., and ANSELMO
ADRIANO, Respondents.
DECISION
SERENO, J.:
The public outrage over the death of Leonardo "Lenny" Villa – the victim
in this case – on 10 February 1991 led to a very strong clamor to put an
end to hazing.1 Due in large part to the brave efforts of his mother,
petitioner Gerarda Villa, groups were organized, condemning his
senseless and tragic death. This widespread condemnation prompted
Congress to enact a special law, which became effective in 1995, that
would criminalize hazing.2 The intent of the law was to discourage
members from making hazing a requirement for joining their sorority,
fraternity, organization, or association.3 Moreover, the law was meant to
counteract the exculpatory implications of "consent" and "initial innocent
act" in the conduct of initiation rites by making the mere act of hazing
punishable or mala prohibita.4
Sadly, the Lenny Villa tragedy did not discourage hazing activities in the
country.5 Within a year of his death, six more cases of hazing-related
deaths emerged – those of Frederick Cahiyang of the University of
Visayas in Cebu; Raul Camaligan of San Beda College; Felipe Narne of
Pamantasan ng Araullo in Cabanatuan City; Dennis Cenedoza of the
Cavite Naval Training Center; Joselito Mangga of the Philippine Merchant
Marine Institute; and Joselito Hernandez of the University of the
Philippines in Baguio City.6
Although courts must not remain indifferent to public sentiments, in this
case the general condemnation of a hazing-related death, they are still
bound to observe a fundamental principle in our criminal justice system –
"[N]o act constitutes a crime… unless it is made so by law."7 Nullum
crimen, nulla poena sine lege. Even if an act is viewed by a large section
of the populace as immoral or injurious, it cannot be considered a crime,
absent any law prohibiting its commission. As interpreters of the law,
judges are called upon to set aside emotion, to resist being swayed by
strong public sentiments, and to rule strictly based on the elements of the
offense and the facts allowed in evidence.
Before the Court are the consolidated cases docketed as G.R. No.
151258 (Villareal v. People), G.R. No. 154954 (People v. Court of
Appeals), G.R. No. 155101 (Dizon v. People), and G.R. Nos. 178057 and
178080 (Villa v. Escalona).
Facts
The pertinent facts, as determined by the Court of Appeals (CA)8 and the
trial court,9 are as follows:
In February 1991, seven freshmen law students of the Ateneo de Manila
University School of Law signified their intention to join the Aquila Legis
Juris Fraternity (Aquila Fraternity). They were Caesar "Bogs" Asuncion,
Samuel "Sam" Belleza, Bienvenido "Bien" Marquez III, Roberto Francis
"Bert" Navera, Geronimo "Randy" Recinto, Felix Sy, Jr., and Leonardo
"Lenny" Villa (neophytes).
On the night of 8 February 1991, the neophytes were met by some
members of the Aquila Fraternity (Aquilans) at the lobby of the Ateneo
Law School. They all proceeded to Rufo’s Restaurant to have dinner.
Afterwards, they went to the house of Michael Musngi, also an Aquilan,
who briefed the neophytes on what to expect during the initiation rites.
The latter were informed that there would be physical beatings, and that
they could quit at any time. Their initiation rites were scheduled to last for
three days. After their "briefing," they were brought to the Almeda
Compound in Caloocan City for the commencement of their initiation.
Even before the neophytes got off the van, they had already received
threats and insults from the Aquilans. As soon as the neophytes alighted
from the van and walked towards the pelota court of the Almeda
compound, some of the Aquilans delivered physical blows to them. The
neophytes were then subjected to traditional forms of Aquilan "initiation
rites." These rites included the "Indian Run," which required the
neophytes to run a gauntlet of two parallel rows of Aquilans, each row
delivering blows to the neophytes; the "Bicol Express," which obliged the
neophytes to sit on the floor with their backs against the wall and their
legs outstretched while the Aquilans walked, jumped, or ran over their
legs; the "Rounds," in which the neophytes were held at the back of their
pants by the "auxiliaries" (the Aquilans charged with the duty of lending
assistance to neophytes during initiation rites), while the latter were being
hit with fist blows on their arms or with knee blows on their thighs by two
Aquilans; and the "Auxies’ Privilege Round," in which the auxiliaries were
given the opportunity to inflict physical pain on the neophytes. During this
time, the neophytes were also indoctrinated with the fraternity principles.
They survived their first day of initiation.
On the morning of their second day – 9 February 1991 – the neophytes
were made to present comic plays and to play rough basketball. They
were also required to memorize and recite the Aquila Fraternity’s
principles. Whenever they would give a wrong answer, they would be hit
on their arms or legs. Late in the afternoon, the Aquilans revived the
initiation rites proper and proceeded to torment them physically and
psychologically. The neophytes were subjected to the same manner of
hazing that they endured on the first day of initiation. After a few hours,
the initiation for the day officially ended.
After a while, accused non-resident or alumni fraternity members10 Fidelito
Dizon (Dizon) and Artemio Villareal (Villareal) demanded that the rites be
reopened. The head of initiation rites, Nelson Victorino (Victorino), initially
refused. Upon the insistence of Dizon and Villareal, however, he
reopened the initiation rites. The fraternity members, including Dizon and
Villareal, then subjected the neophytes to "paddling" and to additional
rounds of physical pain. Lenny received several paddle blows, one of
which was so strong it sent him sprawling to the ground. The neophytes
heard him complaining of intense pain and difficulty in breathing. After
their last session of physical beatings, Lenny could no longer walk. He
had to be carried by the auxiliaries to the carport. Again, the initiation for
the day was officially ended, and the neophytes started eating dinner. 14. Paul Angelo Santos (Santos)
They then slept at the carport.
15. Ronan de Guzman (De Guzman)
After an hour of sleep, the neophytes were suddenly roused by Lenny’s
shivering and incoherent mumblings. Initially, Villareal and Dizon 16. Antonio General (General)
dismissed these rumblings, as they thought he was just overacting. When
they realized, though, that Lenny was really feeling cold, some of the 17. Jaime Maria Flores II (Flores)
Aquilans started helping him. They removed his clothes and helped him
through a sleeping bag to keep him warm. When his condition worsened,
18. Dalmacio Lim, Jr. (Lim)
the Aquilans rushed him to the hospital. Lenny was pronounced dead on
arrival.
19. Ernesto Jose Montecillo (Montecillo)
Consequently, a criminal case for homicide was filed against the following
35 Aquilans: 20. Santiago Ranada III (Ranada)

In Criminal Case No. C-38340(91) 21. Zosimo Mendoza (Mendoza)

1. Fidelito Dizon (Dizon) 22. Vicente Verdadero (Verdadero)

2. Artemio Villareal (Villareal) 23. Amante Purisima II (Purisima)

3. Efren de Leon (De Leon) 24. Jude Fernandez (J. Fernandez)

4. Vincent Tecson (Tecson) 25. Adel Abas (Abas)

5. Junel Anthony Ama (Ama) 26. Percival Brigola (Brigola)

6. Antonio Mariano Almeda (Almeda) In Criminal Case No. C-38340

7. Renato Bantug, Jr. (Bantug) 1. Manuel Escalona II (Escalona)

8. Nelson Victorino (Victorino) 2. Crisanto Saruca, Jr. (Saruca)

9. Eulogio Sabban (Sabban) 3. Anselmo Adriano (Adriano)

10. Joseph Lledo (Lledo) 4. Marcus Joel Ramos (Ramos)

11. Etienne Guerrero (Guerrero) 5. Reynaldo Concepcion (Concepcion)

12. Michael Musngi (Musngi) 6. Florentino Ampil (Ampil)

13. Jonas Karl Perez (Perez) 7. Enrico de Vera III (De Vera)
 8. Stanley Fernandez (S. Fernandez)
9. Noel Cabangon (Cabangon)
Twenty-six of the accused Aquilans in Criminal Case No. C-
38340(91) were jointly tried.11 On the other hand, the trial against the
remaining nine accused in Criminal Case No. C-38340 was held in
abeyance due to certain matters that had to be resolved first.12
On 8 November 1993, the trial court rendered judgment in Criminal Case
No. C-38340(91), holding the 26 accused guilty beyond reasonable doubt
of the crime of homicide, penalized with reclusion temporal under Article
249 of the Revised Penal Code.13 A few weeks after the trial court
rendered its judgment, or on 29 November 1993, Criminal Case No. C-
38340 against the remaining nine accused commenced anew.14
On 10 January 2002, the CA in (CA-G.R. No. 15520)15 set aside the
finding of conspiracy by the trial court in Criminal Case No. C-38340(91)
and modified the criminal liability of each of the accused according to
individual participation. Accused De Leon had by then passed away, so
the following Decision applied only to the remaining 25 accused, viz:
1. Nineteen of the accused-appellants – Victorino, Sabban, Lledo,
Guerrero, Musngi, Perez, De Guzman, Santos, General, Flores,
Lim, Montecillo, Ranada, Mendoza, Verdadero, Purisima,
Fernandez, Abas, and Brigola (Victorino et al.) – were acquitted,
as their individual guilt was not established by proof beyond
reasonable doubt.
2. Four of the accused-appellants – Vincent Tecson, Junel
Anthony Ama, Antonio Mariano Almeda, and Renato Bantug, Jr.
(Tecson et al.) – were found guilty of the crime of slight physical
injuries and sentenced to 20 days of arresto menor. They were
also ordered to jointly pay the heirs of the victim the sum of ₱
30,000 as indemnity.
3. Two of the accused-appellants – Fidelito Dizon and Artemio
Villareal – were found guilty beyond reasonable doubt of the
crime of homicide under Article 249 of the Revised Penal Code.
Having found no mitigating or aggravating circumstance, the CA
sentenced them to an indeterminate sentence of 10 years of
prision mayor to 17 years of reclusion temporal. They were also
ordered to indemnify, jointly and severally, the heirs of Lenny Villa
in the sum of ₱ 50,000 and to pay the additional amount of ₱
1,000,000 by way of moral damages.
On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed
the charge against accused Concepcion on the ground of violation of his
right to speedy trial.16 Meanwhile, on different dates between the years
2003 and 2005, the trial court denied the respective Motions to Dismiss of
accused Escalona, Ramos, Saruca, and Adriano.17 On 25 October 2006,
the CA in CA-G.R. SP Nos. 89060 & 9015318 reversed the trial court’s
Orders and dismissed the criminal case against Escalona, Ramos,
Saruca, and Adriano on the basis of violation of their right to speedy
trial.19
From the aforementioned Decisions, the five (5) consolidated Petitions
were individually brought before this Court.
G.R. No. 151258 – Villareal v. People
The instant case refers to accused Villareal’s Petition for Review on
Certiorari under Rule 45. The Petition raises two reversible errors
allegedly committed by the CA in its Decision dated 10 January 2002 in
CA-G.R. No. 15520 – first, denial of due process; and, second, conviction
absent proof beyond reasonable doubt.20
While the Petition was pending before this Court, counsel for petitioner
Villareal filed a Notice of Death of Party on 10 August 2011. According to
the Notice, petitioner Villareal died on 13 March 2011. Counsel thus
asserts that the subject matter of the Petition previously filed by petitioner
does not survive the death of the accused.
G.R. No. 155101 – Dizon v. People
Accused Dizon filed a Rule 45 Petition for Review on Certiorari,
questioning the CA’s Decision dated 10 January 2002 and Resolution
dated 30 August 2002 in CA-G.R. No. 15520.21 Petitioner sets forth two
main issues – first, that he was denied due process when the CA
sustained the trial court’s forfeiture of his right to present evidence; and,
second, that he was deprived of due process when the CA did not apply
to him the same "ratio decidendi that served as basis of acquittal of the
other accused."22
As regards the first issue, the trial court made a ruling, which forfeited
Dizon’s right to present evidence during trial. The trial court expected
Dizon to present evidence on an earlier date since a co-accused, Antonio
General, no longer presented separate evidence during trial. According to
Dizon, his right should not have been considered as waived because he
was justified in asking for a postponement. He argues that he did not ask
for a resetting of any of the hearing dates and in fact insisted that he was
ready to present evidence on the original pre-assigned schedule, and not
on an earlier hearing date.
Regarding the second issue, petitioner contends that he should have
likewise been acquitted, like the other accused, since his acts were also
part of the traditional initiation rites and were not tainted by evil
motives.23 He claims that the additional paddling session was part of the
official activity of the fraternity. He also points out that one of the
neophytes admitted that the chairperson of the initiation rites "decided
that [Lenny] was fit enough to undergo the initiation so Mr. Villareal
proceeded to do the paddling…."24 Further, petitioner echoes the
argument of the Solicitor General that "the individual blows inflicted by
Dizon and Villareal could not have resulted in Lenny’s death."25 The
Solicitor General purportedly averred that, "on the contrary, Dr. Arizala
testified that the injuries suffered by Lenny could not be considered fatal if
taken individually, but if taken collectively, the result is the violent death of
the victim."26
Petitioner then counters the finding of the CA that he was motivated by ill
will. He claims that Lenny’s father could not have stolen the parking
space of Dizon’s father, since the latter did not have a car, and their
fathers did not work in the same place or office. Revenge for the loss of
the parking space was the alleged ill motive of Dizon. According to
petitioner, his utterances regarding a stolen parking space were only part
of the "psychological initiation." He then cites the testimony of Lenny’s co-
neophyte – witness Marquez – who admitted knowing "it was not true and
that he was just making it up…."27
Further, petitioner argues that his alleged motivation of ill will was
negated by his show of concern for Villa after the initiation rites. Dizon
alludes to the testimony of one of the neophytes, who mentioned that the
former had kicked the leg of the neophyte and told him to switch places
with Lenny to prevent the latter’s chills. When the chills did not stop,
Dizon, together with Victorino, helped Lenny through a sleeping bag and
made him sit on a chair. According to petitioner, his alleged ill motivation
is contradicted by his manifestation of compassion and concern for the
victim’s well-being.
G.R. No. 154954 – People v. Court of Appeals
This Petition for Certiorari under Rule 65 seeks the reversal of the CA’s
Decision dated 10 January 2002 and Resolution dated 30 August 2002 in
CA-G.R. No. 15520, insofar as it acquitted 19 (Victorino et al.) and
convicted 4 (Tecson et al.) of the accused Aquilans of the lesser crime of
slight physical injuries.28 According to the Solicitor General, the CA erred
in holding that there could have been no conspiracy to commit hazing, as
hazing or fraternity initiation had not yet been criminalized at the time
Lenny died.
In the alternative, petitioner claims that the ruling of the trial court should
have been upheld, inasmuch as it found that there was conspiracy to
inflict physical injuries on Lenny. Since the injuries led to the victim’s
death, petitioner posits that the accused Aquilans are criminally liable for
the resulting crime of homicide, pursuant to Article 4 of the Revised Penal
Code.29 The said article provides: "Criminal liability shall be incurred… [b]y
any person committing a felony (delito) although the wrongful act done be
different from that which he intended."
Petitioner also argues that the rule on double jeopardy is inapplicable.
According to the Solicitor General, the CA acted with grave abuse of
discretion, amounting to lack or excess of jurisdiction, in setting aside the
trial court’s finding of conspiracy and in ruling that the criminal liability of
all the accused must be based on their individual participation in the
commission of the crime.
G.R. Nos. 178057 and 178080 – Villa v. Escalona
Petitioner Villa filed the instant Petition for Review on Certiorari, praying
for the reversal of the CA’s Decision dated 25 October 2006 and
Resolution dated 17 May 2007 in CA-G.R. S.P. Nos. 89060 and
90153.30 The Petition involves the dismissal of the criminal charge filed
against Escalona, Ramos, Saruca, and Adriano.
Due to "several pending incidents," the trial court ordered a separate trial
for accused Escalona, Saruca, Adriano, Ramos, Ampil, Concepcion, De
Vera, S. Fernandez, and Cabangon (Criminal Case No. C-38340) to
commence after proceedings against the 26 other accused in Criminal
Case No. C-38340(91) shall have terminated. On 8 November 1993, the
trial court found the 26 accused guilty beyond reasonable doubt. As a
result, the proceedings in Criminal Case No. C-38340 involving the nine
other co-accused recommenced on 29 November 1993. For "various
reasons," the initial trial of the case did not commence until 28 March
2005, or almost 12 years after the arraignment of the nine accused.
Petitioner Villa assails the CA’s dismissal of the criminal case involving 4
of the 9 accused, namely, Escalona, Ramos, Saruca, and Adriano. She
argues that the accused failed to assert their right to speedy trial within a
reasonable period of time. She also points out that the prosecution
cannot be faulted for the delay, as the original records and the required
evidence were not at its disposal, but were still in the appellate court.
We resolve herein the various issues that we group into five.
Issues
1. Whether the forfeiture of petitioner Dizon’s right to present
evidence constitutes denial of due process;
2. Whether the CA committed grave abuse of discretion,
amounting to lack or excess of jurisdiction when it dismissed the
case against Escalona, Ramos, Saruca, and Adriano for violation
of the right of the accused to speedy trial;
3. Whether the CA committed grave abuse of discretion,
amounting to lack or excess of jurisdiction, when it set aside the
finding of conspiracy by the trial court and adjudicated the liability
of each accused according to individual participation;
4. Whether accused Dizon is guilty of homicide; and
5. Whether the CA committed grave abuse of discretion when it
pronounced Tecson, Ama, Almeda, and Bantug guilty only of
slight physical injuries.
Discussion
Resolution on Preliminary Matters
G.R. No. 151258 – Villareal v. People
In a Notice dated 26 September 2011 and while the Petition was pending
resolution, this Court took note of counsel for petitioner’s Notice of Death
of Party.
According to Article 89(1) of the Revised Penal Code, criminal liability for
personal penalties is totally extinguished by the death of the convict. In
contrast, criminal liability for pecuniary penalties is extinguished if the
offender dies prior to final judgment. The term "personal penalties" refers
to the service of personal or imprisonment penalties,31while the term
"pecuniary penalties" (las pecuniarias) refers to fines and
costs,32 including civil liability predicated on the criminal offense
complained of (i.e., civil liability ex delicto).33 However, civil liability based
on a source of obligation other than the delict survives the death of the
accused and is recoverable through a separate civil action.34
Thus, we hold that the death of petitioner Villareal extinguished his
criminal liability for both personal and pecuniary penalties, including his
civil liability directly arising from the delict complained of. Consequently,
his Petition is hereby dismissed, and the criminal case against him
deemed closed and terminated.
G.R. No. 155101 (Dizon v. People)
In an Order dated 28 July 1993, the trial court set the dates for the
reception of evidence for accused-petitioner Dizon on the 8th, 15th, and
22nd of September; and the 5th and 12 of October 1993.35 The Order
likewise stated that "it will not entertain any postponement and that all the
accused who have not yet presented their respective evidence should be
ready at all times down the line, with their evidence on all said dates.
Failure on their part to present evidence when required shall therefore be
construed as waiver to present evidence."36
However, on 19 August 1993, counsel for another accused manifested in
open court that his client – Antonio General – would no longer present
separate evidence. Instead, the counsel would adopt the testimonial
evidence of the other accused who had already testified.37 Because of this
development and pursuant to the trial court’s Order that the parties
"should be ready at all times down the line," the trial court expected Dizon
to present evidence on the next trial date – 25 August 1993 – instead of
his originally assigned dates. The original dates were supposed to start
two weeks later, or on 8 September 1993.38 Counsel for accused Dizon
was not able to present evidence on the accelerated date. To address the
situation, counsel filed a Constancia on 25 August 1993, alleging that he
had to appear in a previously scheduled case, and that he would be
ready to present evidence on the dates originally assigned to his
clients.39 The trial court denied the Manifestation on the same date and
treated the Constancia as a motion for postponement, in violation of the
three-day-notice rule under the Rules of Court.40 Consequently, the trial
court ruled that the failure of Dizon to present evidence amounted to a
waiver of that right.41
Accused-petitioner Dizon thus argues that he was deprived of due
process of law when the trial court forfeited his right to present evidence.
According to him, the postponement of the 25 August 1993 hearing
should have been considered justified, since his original pre-assigned
trial dates were not supposed to start until 8 September 1993, when he
was scheduled to present evidence. He posits that he was ready to
present evidence on the dates assigned to him. He also points out that he
did not ask for a resetting of any of the said hearing dates; that he in fact
insisted on being allowed to present evidence on the dates fixed by the
trial court. Thus, he contends that the trial court erred in accelerating the
schedule of presentation of evidence, thereby invalidating the finding of
his guilt.
The right of the accused to present evidence is guaranteed by no less
than the Constitution itself.42 Article III, Section 14(2) thereof, provides that
"in all criminal prosecutions, the accused … shall enjoy the right to be
heard by himself and counsel…" This constitutional right includes the
right to present evidence in one’s defense,43 as well as the right to be
present and defend oneself in person at every stage of the proceedings.44
In Crisostomo v. Sandiganbayan,45 the Sandiganbayan set the hearing of
the defense’s presentation of evidence for 21, 22 and 23 June 1995. The
21 June 1995 hearing was cancelled due to "lack of quorum in the regular
membership" of the Sandiganbayan’s Second Division and upon the
agreement of the parties. The hearing was reset for the next day, 22 June
1995, but Crisostomo and his counsel failed to attend. The
Sandiganbayan, on the very same day, issued an Order directing the
issuance of a warrant for the arrest of Crisostomo and the confiscation of
his surety bond. The Order further declared that he had waived his right
to present evidence because of his nonappearance at "yesterday’s and
today’s scheduled hearings." In ruling against the Order, we held thus:
Under Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of
Court, Crisostomo’s non-appearance during the 22 June 1995 trial was
merely a waiver of his right to be present for trial on such date only and
not for the succeeding trial dates…
xxx xxx xxx
Moreover, Crisostomo’s absence on the 22 June 1995 hearing should not
have been deemed as a waiver of his right to present evidence. While
constitutional rights may be waived, such waiver must be clear and must
be coupled with an actual intention to relinquish the right. Crisostomo did
not voluntarily waive in person or even through his counsel the right to
present evidence. The Sandiganbayan imposed the waiver due to the
agreement of the prosecution, Calingayan, and Calingayan's counsel.
In criminal cases where the imposable penalty may be death, as in the
present case, the court is called upon to see to it that the accused is
personally made aware of the consequences of a waiver of the right to
present evidence. In fact, it is not enough that the accused is simply
warned of the consequences of another failure to attend the succeeding
hearings. The court must first explain to the accused personally in clear
terms the exact nature and consequences of a waiver. Crisostomo was
not even forewarned. The Sandiganbayan simply went ahead to deprive
Crisostomo of his right to present evidence without even allowing
Crisostomo to explain his absence on the 22 June 1995 hearing.
Clearly, the waiver of the right to present evidence in a criminal case
involving a grave penalty is not assumed and taken lightly. The presence
of the accused and his counsel is indispensable so that the court could
personally conduct a searching inquiry into the waiver x x x.46 (Emphasis
supplied)
The trial court should not have deemed the failure of petitioner to present
evidence on 25 August 1993 as a waiver of his right to present evidence.
On the contrary, it should have considered the excuse of counsel
justified, especially since counsel for another accused – General – had
made a last-minute adoption of testimonial evidence that freed up the
succeeding trial dates; and since Dizon was not scheduled to testify until
two weeks later. At any rate, the trial court pre-assigned five hearing
dates for the reception of evidence. If it really wanted to impose its Order
strictly, the most it could have done was to forfeit one out of the five days
set for Dizon’s testimonial evidence. Stripping the accused of all his pre-
assigned trial dates constitutes a patent denial of the constitutionally
guaranteed right to due process.
Nevertheless, as in the case of an improvident guilty plea, an invalid
waiver of the right to present evidence and be heard does not per se
work to vacate a finding of guilt in the criminal case or to enforce an
automatic remand of the case to the trial court.47 In People v. Bodoso, we
ruled that where facts have adequately been represented in a criminal
case, and no procedural unfairness or irregularity has prejudiced either
the prosecution or the defense as a result of the invalid waiver, the rule is
that a guilty verdict may nevertheless be upheld if the judgment is
supported beyond reasonable doubt by the evidence on record.48
We do not see any material inadequacy in the relevant facts on record to
resolve the case at bar. Neither can we see any "procedural unfairness or
irregularity" that would substantially prejudice either the prosecution or
the defense as a result of the invalid waiver. In fact, the arguments set
forth by accused Dizon in his Petition corroborate the material facts
relevant to decide the matter. Instead, what he is really contesting in his
Petition is the application of the law to the facts by the trial court and the
CA. Petitioner Dizon admits direct participation in the hazing of Lenny
Villa by alleging in his Petition that "all actions of the petitioner were part
of the traditional rites," and that "the alleged extension of the initiation
rites was not outside the official activity of the fraternity."49 He even argues
that "Dizon did not request for the extension and he participated only after
the activity was sanctioned."50
For one reason or another, the case has been passed or turned over
from one judge or justice to another – at the trial court, at the CA, and
even at the Supreme Court. Remanding the case for the reception of the
evidence of petitioner Dizon would only inflict further injustice on the
parties. This case has been going on for almost two decades. Its
resolution is long overdue. Since the key facts necessary to decide the
case have already been determined, we shall proceed to decide it.
G.R. Nos. 178057 and 178080 (Villa v. Escalona)
Petitioner Villa argues that the case against Escalona, Ramos, Saruca,
and Adriano should not have been dismissed, since they failed to assert
their right to speedy trial within a reasonable period of time. She points
out that the accused failed to raise a protest during the dormancy of the
criminal case against them, and that they asserted their right only after
the trial court had dismissed the case against their co-accused
Concepcion. Petitioner also emphasizes that the trial court denied the
respective Motions to Dismiss filed by Saruca, Escalona, Ramos, and
Adriano, because it found that "the prosecution could not be faulted for
the delay in the movement of this case when the original records and the
evidence it may require were not at its disposal as these were in the
Court of Appeals."51
The right of the accused to a speedy trial has been enshrined in Sections
14(2) and 16, Article III of the 1987 Constitution.52 This right requires that
there be a trial free from vexatious, capricious or oppressive delays.53 The
right is deemed violated when the proceeding is attended with unjustified
postponements of trial, or when a long period of time is allowed to elapse
without the case being tried and for no cause or justifiable motive.54 In
determining the right of the accused to speedy trial, courts should do
more than a mathematical computation of the number of postponements
of the scheduled hearings of the case.55 The conduct of both the
prosecution and the defense must be weighed.56 Also to be considered
are factors such as the length of delay, the assertion or non-assertion of
the right, and the prejudice wrought upon the defendant.57
We have consistently ruled in a long line of cases that a dismissal of the
case pursuant to the right of the accused to speedy trial is tantamount to
acquittal.58 As a consequence, an appeal or a reconsideration of the
dismissal would amount to a violation of the principle of double
jeopardy.59 As we have previously discussed, however, where the
dismissal of the case is capricious, certiorari lies.60 The rule on double
jeopardy is not triggered when a petition challenges the validity of the
order of dismissal instead of the correctness thereof.61 Rather, grave
abuse of discretion amounts to lack of jurisdiction, and lack of jurisdiction
prevents double jeopardy from attaching.62
We do not see grave abuse of discretion in the CA’s dismissal of the case
against accused Escalona, Ramos, Saruca, and Adriano on the basis of
the violation of their right to speedy trial. The court held thus:
An examination of the procedural history of this case would reveal that
the following factors contributed to the slow progress of the proceedings
in the case below:
xxx xxx xxx
5) The fact that the records of the case were elevated to the Court of
Appeals and the prosecution’s failure to comply with the order of the court
a quo requiring them to secure certified true copies of the same.
xxx xxx xxx
While we are prepared to concede that some of the foregoing factors that
contributed to the delay of the trial of the petitioners are justifiable, We
nonetheless hold that their right to speedy trial has been utterly violated
in this case x x x.
xxx xxx xxx
[T]he absence of the records in the trial court [was] due to the fact that
the records of the case were elevated to the Court of Appeals, and the
prosecution’s failure to comply with the order of the court a quo requiring
it to secure certified true copies of the same. What is glaring from the
records is the fact that as early as September 21, 1995, the court a quo
already issued an Order requiring the prosecution, through the
Department of Justice, to secure the complete records of the case from
the Court of Appeals. The prosecution did not comply with the said Order
as in fact, the same directive was repeated by the court a quo in an Order
dated December 27, 1995. Still, there was no compliance on the part of
the prosecution. It is not stated when such order was complied with. It
appears, however, that even until August 5, 2002, the said records were
still not at the disposal of the trial court because the lack of it was made
the basis of the said court in granting the motion to dismiss filed by co-
accused Concepcion x x x.
xxx xxx xxx
It is likewise noticeable that from December 27, 1995, until August 5,
2002, or for a period of almost seven years, there was no action at all on
the part of the court a quo. Except for the pleadings filed by both the
prosecution and the petitioners, the latest of which was on January 29,
1996, followed by petitioner Saruca’s motion to set case for trial on
August 17, 1998 which the court did not act upon, the case remained
dormant for a considerable length of time. This prolonged inactivity
whatsoever is precisely the kind of delay that the constitution frowns upon
x x x.63(Emphasis supplied)
This Court points out that on 10 January 1992, the final amended
Information was filed against Escalona, Ramos, Saruca, Ampil, S.
Fernandez, Adriano, Cabangon, Concepcion, and De Vera.64 On 29
November 1993, they were all arraigned.65 Unfortunately, the initial trial of
the case did not commence until 28 March 2005 or almost 12 years after
arraignment.66
As illustrated in our ruling in Abardo v. Sandiganbayan, the unexplained
interval or inactivity of the Sandiganbayan for close to five years since the
arraignment of the accused amounts to an unreasonable delay in the
disposition of cases – a clear violation of the right of the accused to a
speedy disposition of cases.67 Thus, we held:
The delay in this case measures up to the unreasonableness of the delay
in the disposition of cases in Angchangco, Jr. vs. Ombudsman, where the
Court found the delay of six years by the Ombudsman in resolving the
criminal complaints to be violative of the constitutionally guaranteed right
to a speedy disposition of cases; similarly, in Roque vs. Office of the
Ombudsman, where the Court held that the delay of almost six years
disregarded the Ombudsman's duty to act promptly on complaints before
him; and in Cervantes vs. Sandiganbayan, where the Court held that the
Sandiganbayan gravely abused its discretion in not quashing the
information which was filed six years after the initiatory complaint was
filed and thereby depriving petitioner of his right to a speedy disposition of
the case. So it must be in the instant case, where the reinvestigation by
the Ombudsman has dragged on for a decade already.68 (Emphasis
supplied)
From the foregoing principles, we affirm the ruling of the CA in CA-G.R.
SP No. 89060 that accused Escalona et al.’s right to speedy trial was
violated. Since there is nothing in the records that would show that the
subject of this Petition includes accused Ampil, S. Fernandez, Cabangon,
and De Vera, the effects of this ruling shall be limited to accused
Escalona, Ramos, Saruca, and Adriano.
G.R. No. 154954 (People v. Court of Appeals)
The rule on double jeopardy is one of the pillars of our criminal justice
system. It dictates that when a person is charged with an offense, and the
case is terminated – either by acquittal or conviction or in any other
manner without the consent of the accused – the accused cannot again
be charged with the same or an identical offense.69This principle is
founded upon the law of reason, justice and conscience.70 It is embodied
in the civil law maxim non bis in idem found in the common law of
England and undoubtedly in every system of jurisprudence.71 It found
expression in the Spanish Law, in the Constitution of the United States,
and in our own Constitution as one of the fundamental rights of the
citizen,72 viz:
Article III – Bill of Rights
Section 21. No person shall be twice put in jeopardy of punishment for
the same offense. If an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to another
prosecution for the same act.
Rule 117, Section 7 of the Rules of Court, which implements this
particular constitutional right, provides as follows:73
SEC. 7. Former conviction or acquittal; double jeopardy. — When an
accused has been convicted or acquitted, or the case against him
dismissed or otherwise terminated without his express consent by a court
of competent jurisdiction, upon a valid complaint or information or other
formal charge sufficient in form and substance to sustain a conviction and
after the accused had pleaded to the charge, the conviction or acquittal of
the accused or the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any attempt to commit the
same or frustration thereof, or for any offense which necessarily includes
or is necessarily included in the offense charged in the former complaint
or information.
The rule on double jeopardy thus prohibits the state from appealing the
judgment in order to reverse the acquittal or to increase the penalty
imposed either through a regular appeal under Rule 41 of the Rules of
Court or through an appeal by certiorari on pure questions of law under
Rule 45 of the same Rules.74 The requisites for invoking double jeopardy
are the following: (a) there is a valid complaint or information; (b) it is filed
before a competent court; (c) the defendant pleaded to the charge; and
(d) the defendant was acquitted or convicted, or the case against him or
her was dismissed or otherwise terminated without the defendant’s
express consent.75
As we have reiterated in People v. Court of Appeals and Galicia, "[a]
verdict of acquittal is immediately final and a reexamination of the merits
of such acquittal, even in the appellate courts, will put the accused in
jeopardy for the same offense. The finality-of-acquittal doctrine has
several avowed purposes. Primarily, it prevents the State from using its
criminal processes as an instrument of harassment to wear out the
accused by a multitude of cases with accumulated trials. It also serves
the additional purpose of precluding the State, following an acquittal, from
successively retrying the defendant in the hope of securing a conviction.
And finally, it prevents the State, following conviction, from retrying the
defendant again in the hope of securing a greater penalty."76 We further
stressed that "an acquitted defendant is entitled to the right of repose as
a direct consequence of the finality of his acquittal."77
This prohibition, however, is not absolute. The state may challenge the
lower court’s acquittal of the accused or the imposition of a lower penalty
on the latter in the following recognized exceptions: (1) where the
prosecution is deprived of a fair opportunity to prosecute and prove its
case, tantamount to a deprivation of due process;78 (2) where there is a
finding of mistrial;79 or (3) where there has been a grave abuse of
discretion.80
The third instance refers to this Court’s judicial power under Rule 65 to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government.81 Here, the party asking for the review
must show the presence of a whimsical or capricious exercise of
judgment equivalent to lack of jurisdiction; a patent and gross abuse of
discretion amounting to an evasion of a positive duty or to a virtual refusal
to perform a duty imposed by law or to act in contemplation of law; an
exercise of power in an arbitrary and despotic manner by reason of
passion and hostility;82 or a blatant abuse of authority to a point so grave
and so severe as to deprive the court of its very power to dispense
justice.83 In such an event, the accused cannot be considered to be at risk
of double jeopardy.84
The Solicitor General filed a Rule 65 Petition for Certiorari, which seeks
the reversal of (1) the acquittal of Victorino et al. and (2) the conviction of
Tecson et al. for the lesser crime of slight physical injuries, both on the
basis of a misappreciation of facts and evidence. According to the
Petition, "the decision of the Court of Appeals is not in accordance with
law because private complainant and petitioner were denied due process
of law when the public respondent completely ignored the a) Position
Paper x x x b) the Motion for Partial Reconsideration x x x and c) the
petitioner’s Comment x x x."85 Allegedly, the CA ignored evidence when it
adopted the theory of individual responsibility; set aside the finding of
conspiracy by the trial court; and failed to apply Article 4 of the Revised
Penal Code.86 The Solicitor General also assails the finding that the
physical blows were inflicted only by Dizon and Villareal, as well as the
appreciation of Lenny Villa’s consent to hazing.87
In our view, what the Petition seeks is that we reexamine, reassess, and
reweigh the probative value of the evidence presented by the parties.88 In
People v. Maquiling, we held that grave abuse of discretion cannot be
attributed to a court simply because it allegedly misappreciated the facts
and the evidence.89 Mere errors of judgment are correctible by an appeal
or a petition for review under Rule 45 of the Rules of Court, and not by an
application for a writ of certiorari.90 Therefore, pursuant to the rule on
double jeopardy, we are constrained to deny the Petition contra Victorino
et al. – the 19 acquitted fraternity members.
We, however, modify the assailed judgment as regards Tecson, Ama,
Almeda, and Bantug – the four fraternity members convicted of slight
physical injuries.
Indeed, we have ruled in a line of cases that the rule on double jeopardy
similarly applies when the state seeks the imposition of a higher penalty
against the accused.91 We have also recognized, however, that certiorari
may be used to correct an abusive judgment upon a clear demonstration
that the lower court blatantly abused its authority to a point so grave as to
deprive it of its very power to dispense justice.92 The present case is one
of those instances of grave abuse of discretion.
In imposing the penalty of slight physical injuries on Tecson, Ama,
Almeda, and Bantug, the CA reasoned thus:
Based on the medical findings, it would appear that with the exclusion of
the fatal wounds inflicted by the accused Dizon and Villareal, the injuries
sustained by the victim as a result of the physical punishment heaped on
him were serious in nature. However, by reason of the death of the
victim, there can be no precise means to determine the duration of the
incapacity or the medical attendance required. To do so, at this stage
would be merely speculative. In a prosecution for this crime where the
category of the offense and the severity of the penalty depend on the
period of illness or incapacity for labor, the length of this period must
likewise be proved beyond reasonable doubt in much the same manner
as the same act charged [People v. Codilla, CA-G.R. No. 4079-R, June
26, 1950]. And when proof of the said period is absent, the crime
committed should be deemed only as slight physical injuries [People v.
De los Santos, CA, 59 O.G. 4393, citing People v. Penesa, 81 Phil. 398].
As such, this Court is constrained to rule that the injuries inflicted by the
appellants, Tecson, Ama, Almeda and Bantug, Jr., are only slight and not
serious, in nature.93 (Emphasis supplied and citations included)
The appellate court relied on our ruling in People v. Penesa94 in finding
that the four accused should be held guilty only of slight physical injuries.
According to the CA, because of "the death of the victim, there can be no
precise means to determine the duration of the incapacity or medical
attendance required."95 The reliance on Penesa was utterly misplaced. A
review of that case would reveal that the accused therein was guilty
merely of slight physical injuries, because the victim’s injuries neither
caused incapacity for labor nor required medical
attendance.96Furthermore, he did not die.97 His injuries were not even
serious.98 Since Penesa involved a case in which the victim allegedly
suffered physical injuries and not death, the ruling cited by the CA was
patently inapplicable.
On the contrary, the CA’s ultimate conclusion that Tecson, Ama, Almeda,
and Bantug were liable merely for slight physical injuries grossly
contradicts its own findings of fact. According to the court, the four
accused "were found to have inflicted more than the usual punishment
undertaken during such initiation rites on the person of Villa."99 It then
adopted the NBI medico-legal officer’s findings that the antecedent cause
of Lenny Villa’s death was the "multiple traumatic injuries" he suffered
from the initiation rites.100 Considering that the CA found that the "physical
punishment heaped on [Lenny Villa was] serious in nature,"101 it was
patently erroneous for the court to limit the criminal liability to slight
physical injuries, which is a light felony.
Article 4(1) of the Revised Penal Code dictates that the perpetrator shall
be liable for the consequences of an act, even if its result is different from
that intended. Thus, once a person is found to have committed an initial
felonious act, such as the unlawful infliction of physical injuries that
results in the death of the victim, courts are required to automatically
apply the legal framework governing the destruction of life. This rule is
mandatory, and not subject to discretion.
The CA’s application of the legal framework governing physical injuries –
punished under Articles 262 to 266 for intentional felonies and Article 365
for culpable felonies – is therefore tantamount to a whimsical, capricious,
and abusive exercise of judgment amounting to lack of jurisdiction.
According to the Revised Penal Code, the mandatory and legally
imposable penalty in case the victim dies should be based on the
framework governing the destruction of the life of a person, punished
under Articles 246 to 261 for intentional felonies and Article 365 for
culpable felonies, and not under the aforementioned provisions. We
emphasize that these two types of felonies are distinct from and legally
inconsistent with each other, in that the accused cannot be held criminally
liable for physical injuries when actual death occurs.102
Attributing criminal liability solely to Villareal and Dizon – as if only their
acts, in and of themselves, caused the death of Lenny Villa – is contrary
to the CA’s own findings. From proof that the death of the victim was the
cumulative effect of the multiple injuries he suffered,103 the only logical
conclusion is that criminal responsibility should redound to all those who
have been proven to have directly participated in the infliction of physical
injuries on Lenny. The accumulation of bruising on his body caused him
to suffer cardiac arrest. Accordingly, we find that the CA committed grave
abuse of discretion amounting to lack or excess of jurisdiction in finding
Tecson, Ama, Almeda, and Bantug criminally liable for slight physical
injuries. As an allowable exception to the rule on double jeopardy, we
therefore give due course to the Petition in G.R. No. 154954.
 Resolution on Ultimate Findings
According to the trial court, although hazing was not (at the time)
punishable as a crime, the intentional infliction of physical injuries on Villa
was nonetheless a felonious act under Articles 263 to 266 of the Revised
Penal Code. Thus, in ruling against the accused, the court a quo found
that pursuant to Article 4(1) of the Revised Penal Code, the accused
fraternity members were guilty of homicide, as it was the direct, natural
and logical consequence of the physical injuries they had intentionally
inflicted.104
The CA modified the trial court’s finding of criminal liability. It ruled that
there could have been no conspiracy since the neophytes, including
Lenny Villa, had knowingly consented to the conduct of hazing during
their initiation rites. The accused fraternity members, therefore, were
liable only for the consequences of their individual acts. Accordingly, 19
of the accused – Victorino et al. – were acquitted; 4 of them – Tecson et
al. – were found guilty of slight physical injuries; and the remaining 2 –
Dizon and Villareal – were found guilty of homicide.
The issue at hand does not concern a typical criminal case wherein the
perpetrator clearly commits a felony in order to take revenge upon, to
gain advantage over, to harm maliciously, or to get even with, the victim.
Rather, the case involves an ex ante situation in which a man – driven by
his own desire to join a society of men – pledged to go through physically
and psychologically strenuous admission rituals, just so he could enter
the fraternity. Thus, in order to understand how our criminal laws apply to
such situation absent the Anti-Hazing Law, we deem it necessary to
make a brief exposition on the underlying concepts shaping intentional
felonies, as well as on the nature of physical and psychological initiations
widely known as hazing.
Intentional Felony and Conspiracy
Our Revised Penal Code belongs to the classical school of thought.105 The
classical theory posits that a human person is essentially a moral
creature with an absolute free will to choose between good and evil.106 It
asserts that one should only be adjudged or held accountable for
wrongful acts so long as free will appears unimpaired.107 The basic
postulate of the classical penal system is that humans are rational and
calculating beings who guide their actions with reference to the principles
of pleasure and pain.108 They refrain from criminal acts if threatened with
punishment sufficient to cancel the hope of possible gain or advantage in
committing the crime.109 Here, criminal liability is thus based on the free
will and moral blame of the actor.110 The identity of mens rea – defined as
a guilty mind, a guilty or wrongful purpose or criminal intent – is the
predominant consideration.111 Thus, it is not enough to do what the law
prohibits.112 In order for an intentional felony to exist, it is necessary that
the act be committed by means of dolo or "malice."113
The term "dolo" or "malice" is a complex idea involving the elements of
freedom, intelligence, and intent.114 The first element, freedom, refers to an
act done with deliberation and with power to choose between two
things.115 The second element, intelligence, concerns the ability to
determine the morality of human acts, as well as the capacity to
distinguish between a licit and an illicit act.116 The last element, intent,
involves an aim or a determination to do a certain act.117
The element of intent – on which this Court shall focus – is described as
the state of mind accompanying an act, especially a forbidden act.118 It
refers to the purpose of the mind and the resolve with which a person
proceeds.119 It does not refer to mere will, for the latter pertains to the act,
while intent concerns the result of the act.120 While motive is the "moving
power" that impels one to action for a definite result, intent is the
"purpose" of using a particular means to produce the result.121 On the
other hand, the term "felonious" means, inter alia, malicious, villainous,
and/or proceeding from an evil heart or purpose.122 With these elements
taken together, the requirement of intent in intentional felony must refer to
malicious intent, which is a vicious and malevolent state of mind
accompanying a forbidden act. Stated otherwise, intentional felony
requires the existence of dolus malus – that the act or omission be done
"willfully," "maliciously," "with deliberate evil intent," and "with malice
aforethought."123 The maxim is actus non facit reum, nisi mens sit rea – a
crime is not committed if the mind of the person performing the act
complained of is innocent.124 As is required of the other elements of a
felony, the existence of malicious intent must be proven beyond
reasonable doubt.125
In turn, the existence of malicious intent is necessary in order for
conspiracy to attach. Article 8 of the Revised Penal Code – which
provides that "conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit
it" – is to be interpreted to refer only to felonies committed by means of
dolo or malice. The phrase "coming to an agreement" connotes the
existence of a prefaced "intent" to cause injury to another, an element
present only in intentional felonies. In culpable felonies or criminal
negligence, the injury inflicted on another is unintentional, the wrong done
being simply the result of an act performed without malice or criminal
design.126 Here, a person performs an initial lawful deed; however, due to
negligence, imprudence, lack of foresight, or lack of skill, the deed results
in a wrongful act.127 Verily, a deliberate intent to do an unlawful act, which
is a requisite in conspiracy, is inconsistent with the idea of a felony
committed by means of culpa.128
The presence of an initial malicious intent to commit a felony is thus a
vital ingredient in establishing the commission of the intentional felony of
homicide.129 Being mala in se, the felony of homicide requires the
existence of malice or dolo130 immediately before or simultaneously with
the infliction of injuries.131 Intent to kill – or animus interficendi – cannot
and should not be inferred, unless there is proof beyond reasonable
doubt of such intent.132 Furthermore, the victim’s death must not have
been the product of accident, natural cause, or suicide.133 If death resulted
from an act executed without malice or criminal intent – but with lack of
foresight, carelessness, or negligence – the act must be qualified as
reckless or simple negligence or imprudence resulting in homicide.134
Hazing and other forms of initiation rites
The notion of hazing is not a recent development in our society.135 It is said
that, throughout history, hazing in some form or another has been
associated with organizations ranging from military groups to indigenous
tribes.136 Some say that elements of hazing can be traced back to the
Middle Ages, during which new students who enrolled in European
universities worked as servants for upperclassmen.137 It is believed that
the concept of hazing is rooted in ancient Greece,138 where young men
recruited into the military were tested with pain or challenged to
demonstrate the limits of their loyalty and to prepare the recruits for
battle.139 Modern fraternities and sororities espouse some connection to
these values of ancient Greek civilization.140 According to a scholar, this
concept lends historical legitimacy to a "tradition" or "ritual" whereby
prospective members are asked to prove their worthiness and loyalty to
the organization in which they seek to attain membership through
hazing.141
Thus, it is said that in the Greek fraternity system, custom requires a
student wishing to join an organization to receive an invitation in order to
be a neophyte for a particular chapter.142 The neophyte period is usually
one to two semesters long.143 During the "program," neophytes are
required to interview and to get to know the active members of the
chapter; to learn chapter history; to understand the principles of the
organization; to maintain a specified grade point average; to participate in
the organization’s activities; and to show dignity and respect for their
fellow neophytes, the organization, and its active and alumni
members.144 Some chapters require the initiation activities for a recruit to
involve hazing acts during the entire neophyte stage.145
Hazing, as commonly understood, involves an initiation rite or ritual that
serves as prerequisite for admission to an organization.146 In hazing, the
"recruit," "pledge," "neophyte," "initiate," "applicant" – or any other term
by which the organization may refer to such a person – is generally
placed in embarrassing or humiliating situations, like being forced to do
menial, silly, foolish, or other similar tasks or activities.147 It encompasses
different forms of conduct that humiliate, degrade, abuse, or physically
endanger those who desire membership in the organization.148 These acts
usually involve physical or psychological suffering or injury.149
The concept of initiation rites in the country is nothing new. In fact, more
than a century ago, our national hero – Andres Bonifacio – organized a
secret society named Kataastaasan Kagalanggalangang Katipunan ng
mga Anak ng Bayan (The Highest and Most Venerable Association of the
Sons and Daughters of the Nation).150 The Katipunan, or KKK, started as a
small confraternity believed to be inspired by European Freemasonry, as
well as by confraternities or sodalities approved by the Catholic
Church.151 The Katipunan’s ideology was brought home to each member
through the society’s initiation ritual.152 It is said that initiates were brought
to a dark room, lit by a single point of illumination, and were asked a
series of questions to determine their fitness, loyalty, courage, and
resolve.153 They were made to go through vigorous trials such as
"pagsuot sa isang lungga" or "[pagtalon] sa balon."154 It would seem
that they were also made to withstand the blow of "pangherong
bakal sa pisngi" and to endure a "matalas na punyal."155 As a final
step in the ritual, the neophyte Katipunero was made to sign
membership papers with the his own blood.156
It is believed that the Greek fraternity system was transported by the
Americans to the Philippines in the late 19th century. As can be seen in
the following instances, the manner of hazing in the United States was
jarringly similar to that inflicted by the Aquila Fraternity on Lenny Villa.
Early in 1865, upperclassmen at West Point Academy forced the fourth
classmen to do exhausting physical exercises that sometimes resulted in
permanent physical damage; to eat or drink unpalatable foods; and in
various ways to humiliate themselves.157 In 1901, General Douglas
MacArthur got involved in a congressional investigation of hazing at the
academy during his second year at West Point.158
In Easler v. Hejaz Temple of Greenville, decided in 1985, the candidate-
victim was injured during the shriner’s hazing event, which was part of the
initiation ceremonies for Hejaz membership.159 The ritual involved what
was known as the "mattress-rotating barrel trick."160 It required each
candidate to slide down an eight to nine-foot-high metal board onto
connected mattresses leading to a barrel, over which the candidate was
required to climb.161Members of Hejaz would stand on each side of the
mattresses and barrel and fun-paddle candidates en route to the barrel.162
In a video footage taken in 1991, U.S. Marine paratroopers in Camp
Lejeune, North Carolina, were seen performing a ceremony in which they
pinned paratrooper jump wings directly onto the neophyte paratroopers’
chests.163 The victims were shown writhing and crying out in pain as others
pounded the spiked medals through the shirts and into the chests of the
victims.164
In State v. Allen, decided in 1995, the Southeast Missouri State
University chapter of Kappa Alpha Psi invited male students to enter into
a pledgeship program.165 The fraternity members subjected the pledges to
repeated physical abuse including repeated, open-hand strikes at the
nape, the chest, and the back; caning of the bare soles of the feet and
buttocks; blows to the back with the use of a heavy book and a cookie
sheet while the pledges were on their hands and knees; various kicks
and punches to the body; and "body slamming," an activity in which
active members of the fraternity lifted pledges up in the air and dropped
them to the ground.166 The fraternity members then put the pledges
through a seven-station circle of physical abuse.167
In Ex Parte Barran, decided in 1998, the pledge-victim went through
hazing by fraternity members of the Kappa Alpha Order at the Auburn
University in Alabama.168 The hazing included the following: (1) having to
dig a ditch and jump into it after it had been filled with water, urine, feces,
dinner leftovers, and vomit; (2) receiving paddlings on the buttocks; (3)
being pushed and kicked, often onto walls or into pits and trash cans; (4)
eating foods like peppers, hot sauce, butter, and "yerks" (a mixture of hot
sauce, mayonnaise, butter, beans, and other items); (5) doing chores for
the fraternity and its members, such as cleaning the fraternity house and
yard, being designated as driver, and running errands; (6) appearing
regularly at 2 a.m. "meetings," during which the pledges would be hazed
for a couple of hours; and (7) "running the gauntlet," during which the
pledges were pushed, kicked, and hit as they ran down a hallway and
descended down a flight of stairs.169
In Lloyd v. Alpha Phi Alpha Fraternity, decided in 1999, the victim –
Sylvester Lloyd – was accepted to pledge at the Cornell University
chapter of the Alpha Phi Alpha Fraternity.170 He participated in initiation
activities, which included various forms of physical beatings and torture,
psychological coercion and embarrassment.171
In Kenner v. Kappa Alpha Psi Fraternity, decided in 2002, the initiate-
victim suffered injuries from hazing activities during the fraternity’s
initiation rites.172 Kenner and the other initiates went through psychological
and physical hazing, including being paddled on the buttocks for more
than 200 times.173
In Morton v. State, Marcus Jones – a university student in Florida –
sought initiation into the campus chapter of the Kappa Alpha Psi
Fraternity during the 2005-06 academic year.174 The pledge’s efforts to join
the fraternity culminated in a series of initiation rituals conducted in four
nights. Jones, together with other candidates, was blindfolded, verbally
harassed, and caned on his face and buttocks.175 In these rituals
described as "preliminaries," which lasted for two evenings, he received
approximately 60 canings on his buttocks.176 During the last two days of
the hazing, the rituals intensified.177 The pledges sustained roughly 210
cane strikes during the four-night initiation.178 Jones and several other
candidates passed out.179
The purported raison d’être behind hazing practices is the proverbial
"birth by fire," through which the pledge who has successfully withstood
the hazing proves his or her worth.180 Some organizations even believe
that hazing is the path to enlightenment. It is said that this process
enables the organization to establish unity among the pledges and,
hence, reinforces and ensures the future of the organization.181 Alleged
benefits of joining include leadership opportunities; improved academic
performance; higher self-esteem; professional networking opportunities;
and the esprit d’corp associated with close, almost filial, friendship and
common cause.182
Anti-Hazing laws in the U.S.
The first hazing statute in the U.S. appeared in 1874 in response to
hazing in the military.183 The hazing of recruits and plebes in the armed
services was so prevalent that Congress prohibited all forms of military
hazing, harmful or not.184 It was not until 1901 that Illinois passed the first
state anti-hazing law, criminalizing conduct "whereby any one sustains an
injury to his [or her] person therefrom."185
However, it was not until the 1980s and 1990s, due in large part to the
efforts of the Committee to Halt Useless College Killings and other similar
organizations, that states increasingly began to enact legislation
prohibiting and/or criminalizing hazing.186 As of 2008, all but six states had
enacted criminal or civil statutes proscribing hazing.187 Most anti-hazing
laws in the U.S. treat hazing as a misdemeanor and carry relatively light
consequences for even the most severe situations.188 Only a few states
with anti-hazing laws consider hazing as a felony in case death or great
bodily harm occurs.189
Under the laws of Illinois, hazing is a Class A misdemeanor, except
hazing that results in death or great bodily harm, which is a Class 4
felony.190 In a Class 4 felony, a sentence of imprisonment shall be for a
term of not less than one year and not more than three years.191 Indiana
criminal law provides that a person who recklessly, knowingly, or
intentionally performs hazing that results in serious bodily injury to a
person commits criminal recklessness, a Class D felony.192
The offense becomes a Class C felony if committed by means of a
deadly weapon.193 As an element of a Class C felony – criminal
recklessness – resulting in serious bodily injury, death falls under the
category of "serious bodily injury."194 A person who commits a Class C
felony is imprisoned for a fixed term of between two (2) and eight (8)
years, with the advisory sentence being four (4) years.195 Pursuant to
Missouri law, hazing is a Class A misdemeanor, unless the act creates a
substantial risk to the life of the student or prospective member, in which
case it becomes a Class C felony.196 A Class C felony provides for an
imprisonment term not to exceed seven years.197
In Texas, hazing that causes the death of another is a state jail
felony.198 An individual adjudged guilty of a state jail felony is punished by
confinement in a state jail for any term of not more than two years or not
less than 180 days.199 Under Utah law, if hazing results in serious bodily
injury, the hazer is guilty of a third-degree felony.200 A person who has
been convicted of a third-degree felony may be sentenced to
imprisonment for a term not to exceed five years.201 West Virginia law
provides that if the act of hazing would otherwise be deemed a felony, the
hazer may be found guilty thereof and subject to penalties provided
therefor.202 In Wisconsin, a person is guilty of a Class G felony if hazing
results in the death of another.203 A Class G felony carries a fine not to
exceed $25,000 or imprisonment not to exceed 10 years, or both.204
In certain states in the U.S., victims of hazing were left with limited
remedies, as there was no hazing statute.205 This situation was
exemplified in Ballou v. Sigma Nu General Fraternity, wherein Barry
Ballou’s family resorted to a civil action for wrongful death, since there
was no anti-hazing statute in South Carolina until 1994.206
The existence of animus interficendi or intent to kill not proven beyond
reasonable doubt
The presence of an ex ante situation – in this case, fraternity initiation
rites – does not automatically amount to the absence of malicious intent
or dolus malus. If it is proven beyond reasonable doubt that the
perpetrators were equipped with a guilty mind – whether or not there is a
contextual background or factual premise – they are still criminally liable
for intentional felony.
The trial court, the CA, and the Solicitor General are all in agreement that
– with the exception of Villareal and Dizon – accused Tecson, Ama,
Almeda, and Bantug did not have the animus interficendi or intent to kill
Lenny Villa or the other neophytes. We shall no longer disturb this
finding.
As regards Villareal and Dizon, the CA modified the Decision of the trial
court and found that the two accused had the animus interficendi or intent
to kill Lenny Villa, not merely to inflict physical injuries on him. It justified
its finding of homicide against Dizon by holding that he had apparently
been motivated by ill will while beating up Villa. Dizon kept repeating that
his father’s parking space had been stolen by the victim’s father.207 As to
Villareal, the court said that the accused suspected the family of
Bienvenido Marquez, one of the neophytes, to have had a hand in the
death of Villareal’s brother.208 The CA then ruled as follows:
The two had their own axes to grind against Villa and Marquez. It was
very clear that they acted with evil and criminal intent. The evidence on
this matter is unrebutted and so for the death of Villa,
appellants Dizon and Villarealmust and should face the consequence of
their acts, that is, to be held liable for the crime of homicide.209 (Emphasis
supplied)
We cannot subscribe to this conclusion.
The appellate court relied mainly on the testimony of Bienvenido Marquez
to determine the existence of animus interficendi. For a full appreciation
of the context in which the supposed utterances were made, the Court
deems it necessary to reproduce the relevant portions of witness
Marquez’s testimony:
Witness We were brought up into [Michael Musngi’s] room and we were
briefed as to what to expect during the next three days and we were told
the members of the fraternity and their batch and we were also told about
the fraternity song, sir.
xxx xxx xxx
Witness We were escorted out of [Michael Musngi’s] house and we were
made to ride a van and we were brought to another place in Kalookan
City which I later found to be the place of Mariano Almeda, sir.
xxx xxx xxx
Witness Upon arrival, we were instructed to bow our head down and to
link our arms and then the driver of the van and other members of the
Aquilans who were inside left us inside the van, sir.
xxx xxx xxx
Witness We heard voices shouted outside the van to the effect, "Villa akin
ka," "Asuncion Patay ka" and the people outside pound the van, rock the
van, sir.
Atty. Tadiar Will you please recall in what tone of voice and how strong a
voice these remarks uttered upon your arrival?
Witness Some were almost shouting, you could feel the sense of
excitement in their voices, sir.
xxx xxx xxx
Atty. Tadiar During all these times that the van was being rocked through
and through, what were the voices or utterances that you heard?
Witness "Villa akin ka," "Asuncion patay ka," "Recinto patay ka sa amin,"
etc., sir.
Atty. Tadiar And those utterances and threats, how long did they continue
during the rocking of the van which lasted for 5 minutes?
xxx xxx xxx
Witness Even after they rocked the van, we still kept on hearing voices,
sir.
xxx xxx xxx
Atty. Tadiar During the time that this rounds [of physical beating] were
being inflicted, was there any utterances by anybody?
Witness Yes sir. Some were piercing, some were discouraging, and
some were encouraging others who were pounding and beating us, it
was just like a fiesta atmosphere, actually some of them enjoyed looking
us being pounded, sir.
Atty. Tadiar Do you recall what were those voices that you heard?
Witness One particular utterance always said was, they asked us
whether "matigas pa yan, kayang-kaya pa niyan."
Atty. Tadiar Do you know who in particular uttered those particular words
that you quote?
Witness I cannot particularly point to because there were utterances
simultaneously, I could not really pin point who uttered those words, sir.
xxx xxx xxx
Atty. Tadiar Were there any utterances that you heard during the conduct
of this Bicol Express?
Witness Yes, sir I heard utterances.
Atty. Tadiar Will you please recall to this Honorable Court what were the
utterances that you remember?
Witness For example, one person particularly Boyet Dizon stepped on my
thigh, he would say that and I quote "ito, yung pamilya nito ay pinapatay
yung kapatid ko," so that would in turn sort of justifying him in inflicting
more serious pain on me. So instead of just walking, he would jump on
my thighs and then after on was Lenny Villa. He was saying to the effect
that "this guy, his father stole the parking space of my father," sir. So,
that’s why he inflicted more pain on Villa and that went on, sir.
Atty. Tadiar And you were referring to which particular accused?
Witness Boyet Dizon, sir.
Atty. Tadiar When Boyet Dizon at that particular time was accusing you of
having your family have his brother killed, what was your response?
Witness Of course, I knew sir that it was not true and that he was just
making it up sir. So he said that I knew nothing of that incident. However,
he just in fact after the Bicol Express, he kept on uttering those
words/statements so that it would in turn justify him and to give me harder
blows, sir.
xxx xxx xxx
Atty. Tadiar You mentioned about Dizon in particular mentioning that
Lenny Villa’s father stole the parking space allotted for his father, do you
recall who were within hearing distance when that utterance was made?
Witness Yes, sir. All of the neophytes heard that utterance, sir.
xxx xxx xxx
Witness There were different times made this accusation so there were
different people who heard from time to time, sir.
xxx xxx xxx
Atty. Tadiar Can you tell the Honorable Court when was the next
accusation against Lenny Villa’s father was made?
Witness When we were line up against the wall, Boyet Dizon came near
to us and when Lenny Villa’s turn, I heard him uttered those statements,
sir.
Atty. Tadiar What happened after he made this accusation to Lenny
Villa’s father?
Witness He continued to inflict blows on Lenny Villa.
Atty. Tadiar How were those blows inflicted?
Witness There were slaps and he knelt on Lenny Villa’s thighs and
sometime he stand up and he kicked his thighs and sometimes jumped at
it, sir.
xxx xxx xxx
Atty. Tadiar We would go on to the second day but not right now. You
mentioned also that accusations made by Dizon "you or your family had
his brother killed," can you inform this Honorable Court what exactly were
the accusations that were charged against you while inflicting blows upon
you in particular?
Witness While he was inflicting blows upon me, he told me in particular if
I knew that his family who had his brother killed, and he said that his
brother was an NPA, sir so I knew that it was just a story that he made up
and I said that I knew nothing about it and he continued inflicting blows
on me, sir. And another incident was when a talk was being given, Dizon
was on another part of the pelota court and I was sort of looking and we
saw that he was drinking beer, and he said and I quote: "Marquez,
Marquez, ano ang tinitingin-tingin mo diyan, ikaw yung pamilya mo ang
nagpapatay sa aking kapatid, yari ka sa akin," sir.
Atty. Tadiar What else?
Witness That’s all, sir.
Atty. Tadiar And on that first night of February 8, 1991, did ever a doctor
or a physician came around as promised to you earlier?
Witness No, sir.210 (Emphasis supplied)
On cross-examination, witness Bienvenido Marquez testified thus:
Judge Purisima When you testified on direct examination Mr. Marquez,
have you stated that there was a briefing that was conducted immediately
before your initiation as regards to what to expect during the initiation, did
I hear you right?
Witness Yes, sir.
Judge Purisima Who did the briefing? Judge Purisima Now, will you admit Mr. Marquez that much of the
initiation procedures is psychological in nature?
Witness Mr. Michael Musngi, sir and Nelson Victorino.
Witness Combination, sir.211 (Emphasis supplied)
Judge Purisima Will you kindly tell the Honorable Court what they told
you to expect during the initiation? xxx xxx xxx

Witness They told us at the time we would be brought to a particular Atty. Jimenez The initiation that was conducted did not consist only of
place, we would be mocked at, sir. physical initiation, meaning body contact, is that correct?

Judge Purisima So, you expected to be mocked at, ridiculed, humiliated Witness Yes, sir.
etc., and the likes?
Atty. Jimenez Part of the initiation was the so-called psychological
Witness Yes, sir. initiation, correct?

Judge Purisima You were also told beforehand that there would be Witness Yes, sir.
physical contact?
Atty. Jimenez And this consisted of making you believe of things
Witness Yes, sir at the briefing. calculated to terrify you, scare you, correct?

xxx xxx xxx Witness Yes, sir.

Witness Yes, sir, because they informed that we could immediately go
back to school. All the bruises would be limited to our arms and legs, sir.
So, if we wear the regular school uniforms like long sleeves, it would be
covered actually so we have no thinking that our face would be slapped,
sir.
Atty. Jimenez In other words, the initiating masters made belief situation
intended to, I repeat, terrify you, frighten you, scare you into perhaps
quitting the initiation, is this correct?
Witness Sometimes sir, yes.

Judge Purisima So, you mean to say that beforehand that you would Atty. Jimenez You said on direct that while Mr. Dizon was initiating you,
have bruises on your body but that will be covered? he said or he was supposed to have said according to you that your
family were responsible for the killing of his brother who was an NPA, do
Witness Yes, sir. you remember saying that?

JudgePurisima So, what kind of physical contact or implements that you Witness Yes, sir.
expect that would create bruises to your body?
Atty. Jimenez You also said in connection with that statement said to you
Witness At that point I am already sure that there would be hitting by a by Dizon that you did not believe him because that is not true, correct?
paddling or paddle, sir.
Witness Yes, sir.
xxx xxx xxx
Atty. Jimenez In other words, he was only psychologizing you perhaps,
the purpose as I have mentioned before, terrifying you, scaring you or
frightening you into quitting the initiation, this is correct?
Witness No, sir, perhaps it is one but the main reason, I think, why he
was saying those things was because he wanted to inflict injury.
Atty. Jimenez He did not tell that to you. That is your only perception,
correct?
Witness No, sir, because at one point, while he was telling this to
Villareal, he was hitting me.
Atty. Jimenez But did you not say earlier that you [were] subjected to the
same forms of initiation by all the initiating masters? You said that earlier,
right?
Witness Yes, sir.
Atty. Jimenez Are you saying also that the others who jumped on you or
kicked you said something similar as was told to you by Mr. Dizon?
Witness No, sir.
Atty. Jimenez But the fact remains that in the Bicol Express for instance,
the masters would run on your thighs, right?
Witness Yes, sir.
Atty. Jimenez This was the regular procedure that was followed by the
initiating masters not only on you but also on the other neophytes?
Witness Yes, sir.
Atty. Jimenez In other words, it is fair to say that whatever forms of
initiation was administered by one master, was also administered by one
master on a neophyte, was also administered by another master on the
other neophyte, this is correct?
Witness Yes, sir.212 (Emphasis supplied)
According to the Solicitor General himself, the ill motives attributed by the
CA to Dizon and Villareal were "baseless,"213 since the statements of the
accused were "just part of the psychological initiation calculated to instill
fear on the part of the neophytes"; that "[t]here is no element of truth in it
as testified by Bienvenido Marquez"; and that the "harsh words uttered by
Petitioner and Villareal are part of ‘tradition’ concurred and accepted by
all the fraternity members during their initiation rites."214
We agree with the Solicitor General.
The foregoing testimony of witness Marquez reveals a glaring mistake of
substantial proportion on the part of the CA – it mistook the utterances of
Dizon for those of Villareal. Such inaccuracy cannot be tolerated,
especially because it was the CA’s primary basis for finding that Villarreal
had the intent to kill Lenny Villa, thereby making Villareal guilty of the
intentional felony of homicide. To repeat, according to Bienvenido
Marquez’s testimony, as reproduced above, it was Dizon who uttered
both "accusations" against Villa and Marquez; Villareal had no
participation whatsoever in the specific threats referred to by the CA. It
was "Boyet Dizon [who] stepped on [Marquez’s] thigh"; and who told
witness Marquez, "[I]to, yung pamilya nito ay pinapatay yung kapatid ko."
It was also Dizon who jumped on Villa’s thighs while saying, "[T]his guy,
his father stole the parking space of my father." With the testimony
clarified, we find that the CA had no basis for concluding the existence of
intent to kill based solely thereon.
As to the existence of animus interficendi on the part of Dizon, we refer to
the entire factual milieu and contextual premise of the incident to fully
appreciate and understand the testimony of witness Marquez. At the
outset, the neophytes were briefed that they would be subjected to
psychological pressure in order to scare them. They knew that they would
be mocked, ridiculed, and intimidated. They heard fraternity members
shout, "Patay ka, Recinto," "Yari ka, Recinto," "Villa, akin ka," "Asuncion,
gulpi ka," "Putang ina mo, Asuncion," "Putang ina nyo, patay kayo sa
amin," or some other words to that effect.215 While beating the neophytes,
Dizon accused Marquez of the death of the former’s purported NPA
brother, and then blamed Lenny Villa’s father for stealing the parking
space of Dizon’s father. According to the Solicitor General, these
statements, including those of the accused Dizon, were all part of the
psychological initiation employed by the Aquila Fraternity.216
Thus, to our understanding, accused Dizon’s way of inflicting
psychological pressure was through hurling make-believe accusations at
the initiates. He concocted the fictitious stories, so that he could "justify"
giving the neophytes harder blows, all in the context of fraternity initiation
and role playing. Even one of the neophytes admitted that the
accusations were untrue and made-up.
The infliction of psychological pressure is not unusual in the conduct of
hazing. In fact, during the Senate deliberations on the then proposed
Anti-Hazing Law, former Senator Lina spoke as follows:
Senator Lina. -- so as to capture the intent that we conveyed during the
period of interpellations on why we included the phrase "or psychological
pain and suffering."
xxx xxx xxx
So that if no direct physical harm is inflicted upon the neophyte or the
recruit but the recruit or neophyte is made to undergo certain acts which I
already described yesterday, like playing the Russian roulette extensively
to test the readiness and the willingness of the neophyte or recruit to
continue his desire to be a member of the fraternity, sorority or similar
organization or playing and putting a noose on the neck of the neophyte
or recruit, making the recruit or neophyte stand on the ledge of the fourth
floor of the building facing outside, asking him to jump outside after
making him turn around several times but the reality is that he will be
made to jump towards the inside portion of the building – these are the
mental or psychological tests that are resorted to by these organizations,
sororities or fraternities. The doctors who appeared during the public
hearing testified that such acts can result in some mental aberration, that
they can even lead to psychosis, neurosis or insanity. This is what we
want to prevent.217 (Emphasis supplied)
Thus, without proof beyond reasonable doubt, Dizon’s behavior must not
be automatically viewed as evidence of a genuine, evil motivation to kill
Lenny Villa. Rather, it must be taken within the context of the fraternity’s
psychological initiation. This Court points out that it was not even
established whether the fathers of Dizon and Villa really had any
familiarity with each other as would lend credence to the veracity of
Dizon’s threats. The testimony of Lenny’s co-neophyte, Marquez, only
confirmed this view. According to Marquez, he "knew it was not true and
that [Dizon] was just making it up…."218 Even the trial court did not give
weight to the utterances of Dizon as constituting intent to kill: "[T]he
cumulative acts of all the accused were not directed toward killing Villa,
but merely to inflict physical harm as part of the fraternity initiation rites x
x x."219 The Solicitor General shares the same view.
Verily, we cannot sustain the CA in finding the accused Dizon guilty of
homicide under Article 249 of the Revised Penal Code on the basis of the
existence of intent to kill. Animus interficendi cannot and should not be
inferred unless there is proof beyond reasonable doubt of such
intent.220 Instead, we adopt and reinstate the finding of the trial court in
part, insofar as it ruled that none of the fraternity members had the
specific intent to kill Lenny Villa.221
The existence of animus iniuriandi or malicious intent to injure not proven
beyond reasonable doubt
The Solicitor General argues, instead, that there was an intent to inflict
physical injuries on Lenny Villa. Echoing the Decision of the trial court,
the Solicitor General then posits that since all of the accused fraternity
members conspired to inflict physical injuries on Lenny Villa and death
ensued, all of them should be liable for the crime of homicide pursuant to
Article 4(1) of the Revised Penal Code.
In order to be found guilty of any of the felonious acts under Articles 262
to 266 of the Revised Penal Code,222 the employment of physical injuries
must be coupled with dolus malus. As an act that is mala in se, the
existence of malicious intent is fundamental, since injury arises from the
mental state of the wrongdoer – iniuria ex affectu facientis consistat. If
there is no criminal intent, the accused cannot be found guilty of an
intentional felony. Thus, in case of physical injuries under the Revised
Penal Code, there must be a specific animus iniuriandi or malicious
intention to do wrong against the physical integrity or well-being of a
person, so as to incapacitate and deprive the victim of certain bodily
functions. Without proof beyond reasonable doubt of the required animus
iniuriandi, the overt act of inflicting physical injuries per se merely
satisfies the elements of freedom and intelligence in an intentional felony.
The commission of the act does not, in itself, make a man guilty unless
his intentions are.223
Thus, we have ruled in a number of instances224 that the mere infliction of
physical injuries, absent malicious intent, does not make a person
automatically liable for an intentional felony. In Bagajo v. People,225 the
accused teacher, using a bamboo stick, whipped one of her students
behind her legs and thighs as a form of discipline. The student suffered
lesions and bruises from the corporal punishment. In reversing the trial
court’s finding of criminal liability for slight physical injuries, this Court
stated thus: "Independently of any civil or administrative responsibility …
[w]e are persuaded that she did not do what she had done with criminal
intent … the means she actually used was moderate and that she was
not motivated by ill-will, hatred or any malevolent intent." Considering the
applicable laws, we then ruled that "as a matter of law, petitioner did not
incur any criminal liability for her act of whipping her pupil." In People v.
Carmen,226 the accused members of the religious group known as the
Missionaries of Our Lady of Fatima – under the guise of a "ritual or
treatment" – plunged the head of the victim into a barrel of water, banged
his head against a bench, pounded his chest with fists, and stabbed him
on the side with a kitchen knife, in order to cure him of "nervous
breakdown" by expelling through those means the bad spirits possessing
him. The collective acts of the group caused the death of the victim.
Since malicious intent was not proven, we reversed the trial court’s
finding of liability for murder under Article 4 of the Revised Penal Code
and instead ruled that the accused should be held criminally liable for
reckless imprudence resulting in homicide under Article 365 thereof.
Indeed, the threshold question is whether the accused’s initial acts of
inflicting physical pain on the neophytes were attended by animus
iniuriandi amounting to a felonious act punishable under the Revised
Penal Code, thereby making it subject to Article 4(1) thereof. In People v.
Regato, we ruled that malicious intent must be judged by the action,
conduct, and external acts of the accused.227 What persons do is the best
index of their intention.228 We have also ruled that the method employed,
the kind of weapon used, and the parts of the body on which the injury
was inflicted may be determinative of the intent of the perpetrator.229 The
Court shall thus examine the whole contextual background surrounding
the death of Lenny Villa.
Lenny died during Aquila’s fraternity initiation rites. The night before the
commencement of the rites, they were briefed on what to expect. They
were told that there would be physical beatings, that the whole event
would last for three days, and that they could quit anytime. On their first
night, they were subjected to "traditional" initiation rites, including the
"Indian Run," "Bicol Express," "Rounds," and the "Auxies’ Privilege
Round." The beatings were predominantly directed at the neophytes’
arms and legs.
In the morning of their second day of initiation, they were made to present
comic plays and to play rough basketball. They were also required to
memorize and recite the Aquila Fraternity’s principles. Late in the
afternoon, they were once again subjected to "traditional" initiation rituals.
When the rituals were officially reopened on the insistence of Dizon and
Villareal, the neophytes were subjected to another "traditional" ritual –
paddling by the fraternity.
During the whole initiation rites, auxiliaries were assigned to the
neophytes. The auxiliaries protected the neophytes by functioning as
human barriers and shielding them from those who were designated to
inflict physical and psychological pain on the initiates.230 It was their
regular duty to stop foul or excessive physical blows; to help the
neophytes to "pump" their legs in order that their blood would circulate; to
facilitate a rest interval after every physical activity or "round"; to serve
food and water; to tell jokes; to coach the initiates; and to give them
whatever they needed.
These rituals were performed with Lenny’s consent.231 A few days before
the "rites," he asked both his parents for permission to join the Aquila
Fraternity.232 His father knew that Lenny would go through an initiation
process and would be gone for three days.233 The CA found as follows:
It is worth pointing out that the neophytes willingly and voluntarily
consented to undergo physical initiation and hazing. As can be gleaned
from the narration of facts, they voluntarily agreed to join the initiation
rites to become members of the Aquila Legis Fraternity. Prior to the
initiation, they were given briefings on what to expect. It is of common
knowledge that before admission in a fraternity, the neophytes will
undergo a rite of passage. Thus, they were made aware that traditional
methods such as mocking, psychological tests and physical punishment
would take place. They knew that the initiation would involve beatings
and other forms of hazing. They were also told of their right and
opportunity to quit at any time they wanted to. In fact, prosecution witness
Navera testified that accused Tecson told him that "after a week, you can
already play basketball." Prosecution witness Marquez for his part,
admitted that he knew that the initiates would be hit "in the arms and
legs," that a wooden paddle would be used to hit them and that he
expected bruises on his arms and legs…. Indeed, there can be no
fraternity initiation without consenting neophytes.234 (Emphasis supplied)
Even after going through Aquila’s grueling traditional rituals during the
first day, Lenny continued his participation and finished the second day of
initiation.
Based on the foregoing contextual background, and absent further proof
showing clear malicious intent, we are constrained to rule that the specific
animus iniuriandi was not present in this case. Even if the specific acts of
punching, kicking, paddling, and other modes of inflicting physical pain
were done voluntarily, freely, and with intelligence, thereby satisfying the
elements of freedom and intelligence in the felony of physical injuries, the
fundamental ingredient of criminal intent was not proven beyond
reasonable doubt. On the contrary, all that was proven was that the acts
were done pursuant to tradition. Although the additional "rounds" on the
second night were held upon the insistence of Villareal and Dizon, the
initiations were officially reopened with the consent of the head of the
initiation rites; and the accused fraternity members still participated in the
rituals, including the paddling, which were performed pursuant to
tradition. Other than the paddle, no other "weapon" was used to inflict
injuries on Lenny. The targeted body parts were predominantly the legs
and the arms. The designation of roles, including the role of auxiliaries,
which were assigned for the specific purpose of lending assistance to and
taking care of the neophytes during the initiation rites, further belied the
presence of malicious intent. All those who wished to join the fraternity
went through the same process of "traditional" initiation; there is no proof
that Lenny Villa was specifically targeted or given a different treatment.
We stress that Congress itself recognized that hazing is uniquely different
from common crimes.235 The totality of the circumstances must therefore
be taken into consideration.
The underlying context and motive in which the infliction of physical
injuries was rooted may also be determined by Lenny’s continued
participation in the initiation and consent to the method used even after
the first day. The following discussion of the framers of the 1995 Anti-
Hazing Law is enlightening:
Senator Guingona. Most of these acts, if not all, are already punished
under the Revised Penal Code.
Senator Lina. That is correct, Mr. President.
Senator Guingona. If hazing is done at present and it results in death, the
charge would be murder or homicide.
Senator Lina. That is correct, Mr. President.
Senator Guingona. If it does not result in death, it may be frustrated
homicide or serious physical injuries.
Senator Lina. That is correct, Mr. President.
Senator Guingona. Or, if the person who commits sexual abuse does so
it can be penalized under rape or acts of lasciviousness.
Senator Lina. That is correct, Mr. President.
Senator Guingona. So, what is the rationale for making a new offense
under this definition of the crime of hazing?
Senator Lina. To discourage persons or group of persons either
composing a sorority, fraternity or any association from making this
requirement of initiation that has already resulted in these specific acts or
results, Mr. President.
That is the main rationale. We want to send a strong signal across the
land that no group or association can require the act of physical initiation
before a person can become a member without being held criminally
liable.
xxx xxx xxx
Senator Guingona. Yes, but what would be the rationale for that
imposition? Because the distinguished Sponsor has said that he is not
punishing a mere organization, he is not seeking the punishment of an
initiation into a club or organization, he is seeking the punishment of
certain acts that resulted in death, et cetera as a result of hazing which
are already covered crimes.
The penalty is increased in one, because we would like to discourage
hazing, abusive hazing, but it may be a legitimate defense for invoking
two or more charges or offenses, because these very same acts are
already punishable under the Revised Penal Code.
That is my difficulty, Mr. President.
Senator Lina. x x x
Another point, Mr. President, is this, and this is a very telling difference:
When a person or group of persons resort to hazing as a requirement for
gaining entry into an organization, the intent to commit a wrong is not
visible or is not present, Mr. President. Whereas, in these specific crimes,
Mr. President, let us say there is death or there is homicide, mutilation, if
one files a case, then the intention to commit a wrong has to be proven.
But if the crime of hazing is the basis, what is important is the result from
the act of hazing.
To me, that is the basic difference and that is what will prevent or deter
the sororities or fraternities; that they should really shun this activity
called "hazing." Because, initially, these fraternities or sororities do not
even consider having a neophyte killed or maimed or that acts of
lasciviousness are even committed initially, Mr. President.
So, what we want to discourage is the so-called initial innocent act. That
is why there is need to institute this kind of hazing. Ganiyan po ang
nangyari. Ang fraternity o ang sorority ay magre-recruit. Wala talaga
silang intensiyong makamatay. Hindi ko na babanggitin at buhay pa iyong
kaso. Pero dito sa anim o pito na namatay nitong nakaraang taon,
walang intensiyong patayin talaga iyong neophyte. So, kung maghihintay
pa tayo, na saka lamang natin isasakdal ng murder kung namatay na, ay
after the fact ho iyon. Pero, kung sasabihin natin sa mga kabataan na:
"Huwag ninyong gagawin iyong hazing. Iyan ay kasalanan at kung
mamatay diyan, mataas ang penalty sa inyo."
xxx xxx xxx
Senator Guingona. I join the lofty motives, Mr. President, of the
distinguished Sponsor. But I am again disturbed by his statement that the
prosecution does not have to prove the intent that resulted in the death,
that resulted in the serious physical injuries, that resulted in the acts of
lasciviousness or deranged mind. We do not have to prove the willful
intent of the accused in proving or establishing the crime of hazing. This
seems, to me, a novel situation where we create the special crime
without having to go into the intent, which is one of the basic elements of
any crime.
If there is no intent, there is no crime. If the intent were merely to initiate,
then there is no offense. And even the distinguished Sponsor admits that
the organization, the intent to initiate, the intent to have a new society or
a new club is, per se, not punishable at all. What are punishable are the
acts that lead to the result. But if these results are not going to be proven
by intent, but just because there was hazing, I am afraid that it will disturb
the basic concepts of the Revised Penal Code, Mr. President.
Senator Lina. Mr. President, the act of hazing, precisely, is being
criminalized because in the context of what is happening in the sororities
and fraternities, when they conduct hazing, no one will admit that their
intention is to maim or to kill. So, we are already criminalizing the fact of
inflicting physical pain. Mr. President, it is a criminal act and we want it
stopped, deterred, discouraged.
If that occurs, under this law, there is no necessity to prove that the
masters intended to kill or the masters intended to maim. What is
important is the result of the act of hazing. Otherwise, the masters or
those who inflict the physical pain can easily escape responsibility and
say, "We did not have the intention to kill. This is part of our initiation
rites. This is normal. We do not have any intention to kill or maim."
This is the lusot, Mr. President. They might as well have been charged
therefore with the ordinary crime of homicide, mutilation, et cetera, where
the prosecution will have a difficulty proving the elements if they are
separate offenses.
xxx xxx xxx
Senator Guingona. Mr. President, assuming there was a group that
initiated and a person died. The charge is murder. My question is: Under
this bill if it becomes a law, would the prosecution have to prove
conspiracy or not anymore?
Senator Lina. Mr. President, if the person is present during hazing x x x
Senator Guingona. The persons are present. First, would the prosecution
have to prove conspiracy? Second, would the prosecution have to prove
intent to kill or not?
Senator Lina. No more. As to the second question, Mr. President, if that
occurs, there is no need to prove intent to kill.
Senator Guingona. But the charge is murder.
Senator Lina. That is why I said that it should not be murder. It should be
hazing, Mr. President. 236 (Emphasis supplied)
During a discussion between Senator Biazon and Senator Lina on the
issue of whether to include sodomy as a punishable act under the Anti-
Hazing Law, Senator Lina further clarified thus:
Senator Biazon. Mr. President, this Representation has no objection to
the inclusion of sodomy as one of the conditions resulting from hazing as
necessary to be punished. However, the act of sodomy can be committed
by two persons with or without consent.
To make it clearer, what is being punished here is the commission of
sodomy forced into another individual by another individual. I move, Mr.
President, that sodomy be modified by the phrase "without consent" for
purposes of this section.
Senator Lina. I am afraid, Mr. President, that if we qualify sodomy with
the concept that it is only going to aggravate the crime of hazing if it is
done without consent will change a lot of concepts here. Because the
results from hazing aggravate the offense with or without consent. In fact,
when a person joins a fraternity, sorority, or any association for that
matter, it can be with or without the consent of the intended victim. The
fact that a person joins a sorority or fraternity with his consent does not
negate the crime of hazing.
This is a proposed law intended to protect the citizens from the
malpractices that attend initiation which may have been announced with
or without physical infliction of pain or injury, Mr. President. Regardless of
whether there is announcement that there will be physical hazing or
whether there is none, and therefore, the neophyte is duped into joining a
fraternity is of no moment. What is important is that there is an infliction of
physical pain.
The bottom line of this law is that a citizen even has to be protected from
himself if he joins a fraternity, so that at a certain point in time, the State,
the individual, or the parents of the victim can run after the perpetrators of
the crime, regardless of whether or not there was consent on the part of
the victim.
xxx xxx xxx
Senator Lina. Mr. President, I understand the position taken by the
distinguished Gentleman from Cavite and Metro Manila. It is correct that
society sometimes adopts new mores, traditions, and practices.
In this bill, we are not going to encroach into the private proclivities of
some individuals when they do their acts in private as we do not take a
peek into the private rooms of couples. They can do their thing if they
want to make love in ways that are not considered acceptable by the
mainstream of society. That is not something that the State should
prohibit.
But sodomy in this case is connected with hazing, Mr. President. Such
that the act may even be entered into with consent. It is not only sodomy.
The infliction of pain may be done with the consent of the neophyte. If the
law is passed, that does not make the act of hazing not punishable
because the neophyte accepted the infliction of pain upon himself.
If the victim suffers from serious physical injuries, but the initiator said,
"Well, he allowed it upon himself. He consented to it." So, if we allow that
reasoning that sodomy was done with the consent of the victim, then we
would not have passed any law at all. There will be no significance if we
pass this bill, because it will always be a defense that the victim allowed
the infliction of pain or suffering. He accepted it as part of the initiation
rites.
But precisely, Mr. President that is one thing that we would want to
prohibit. That the defense of consent will not apply because the very act
of inflicting physical pain or psychological suffering is, by itself, a
punishable act. The result of the act of hazing, like death or physical
injuries merely aggravates the act with higher penalties. But the defense
of consent is not going to nullify the criminal nature of the act.
So, if we accept the amendment that sodomy can only aggravate the
offense if it is committed without consent of the victim, then the whole
foundation of this proposed law will collapse.
Senator Biazon. Thank you, Mr. President.
Senator Lina. Thank you very much.
The President. Is there any objection to the committee amendment?
(Silence.) The Chair hears none; the same is approved.237
(Emphasis supplied)
Realizing the implication of removing the state’s burden to prove intent,
Senator Lina, the principal author of the Senate Bill, said:
I am very happy that the distinguished Minority Leader brought out the
idea of intent or whether there it is mala in seor mala prohibita. There can
be a radical amendment if that is the point that he wants to go to.
If we agree on the concept, then, maybe, we can just make this a special
law on hazing. We will not include this anymore under the Revised Penal
Code. That is a possibility. I will not foreclose that suggestion, Mr.
President.238(Emphasis supplied)
Thus, having in mind the potential conflict between the proposed law and
the core principle of mala in se adhered to under the Revised Penal
Code, Congress did not simply enact an amendment thereto. Instead, it
created a special law on hazing, founded upon the principle of mala
prohibita. This dilemma faced by Congress is further proof of how the
nature of hazing – unique as against typical crimes – cast a cloud of
doubt on whether society considered the act as an inherently wrong
conduct or mala in se at the time. It is safe to presume that Lenny’s
parents would not have consented239 to his participation in Aquila
Fraternity’s initiation rites if the practice of hazing were considered by
them as mala in se.
Furthermore, in Vedaña v. Valencia (1998), we noted through Associate
Justice (now retired Chief Justice) Hilario Davide that "in our nation’s very
recent history, the people have spoken, through Congress, to deem
conduct constitutive of … hazing, [an] act[] previously considered
harmless by custom, as criminal."240 Although it may be regarded as a
simple obiter dictum, the statement nonetheless shows recognition that
hazing – or the conduct of initiation rites through physical and/or
psychological suffering – has not been traditionally criminalized. Prior to
the 1995 Anti-Hazing Law, there was to some extent a lacuna in the law;
hazing was not clearly considered an intentional felony. And when there
is doubt on the interpretation of criminal laws, all must be resolved in
favor of the accused. In dubio pro reo.
For the foregoing reasons, and as a matter of law, the Court is
constrained to rule against the trial court’s finding of malicious intent to
inflict physical injuries on Lenny Villa, there being no proof beyond
reasonable doubt of the existence of malicious intent to inflict physical
injuries or animus iniuriandi as required in mala in se cases, considering
the contextual background of his death, the unique nature of hazing, and
absent a law prohibiting hazing.
The accused fraternity members guilty of reckless imprudence resulting
in homicide
The absence of malicious intent does not automatically mean, however,
that the accused fraternity members are ultimately devoid of criminal
liability. The Revised Penal Code also punishes felonies that are
committed by means of fault (culpa). According to Article 3 thereof, there
is fault when the wrongful act results from imprudence, negligence, lack
of foresight, or lack of skill.
Reckless imprudence or negligence consists of a voluntary act done
without malice, from which an immediate personal harm, injury or
material damage results by reason of an inexcusable lack of precaution
or advertence on the part of the person committing it.241 In this case, the
danger is visible and consciously appreciated by the actor.242In contrast,
simple imprudence or negligence comprises an act done without grave
fault, from which an injury or material damage ensues by reason of a
mere lack of foresight or skill.243 Here, the threatened harm is not
immediate, and the danger is not openly visible. 244
The test245 for determining whether or not a person is negligent in doing an
act is as follows: Would a prudent man in the position of the person to
whom negligence is attributed foresee harm to the person injured as a
reasonable consequence of the course about to be pursued? If so, the
law imposes on the doer the duty to take precaution against the
mischievous results of the act. Failure to do so constitutes negligence.246
As we held in Gaid v. People, for a person to avoid being charged with
recklessness, the degree of precaution and diligence required varies with
the degree of the danger involved.247 If, on account of a certain line of
conduct, the danger of causing harm to another person is great, the
individual who chooses to follow that particular course of conduct is
bound to be very careful, in order to prevent or avoid damage or
injury.248 In contrast, if the danger is minor, not much care is required.249 It is
thus possible that there are countless degrees of precaution or diligence
that may be required of an individual, "from a transitory glance of care to
the most vigilant effort."250 The duty of the person to employ more or less
degree of care will depend upon the circumstances of each particular
case.251
There was patent recklessness in the hazing of Lenny Villa.
According to the NBI medico-legal officer, Lenny died of cardiac failure
secondary to multiple traumatic injuries.252The officer explained that
cardiac failure refers to the failure of the heart to work as a pump and as
part of the circulatory system due to the lack of blood.253 In the present
case, the victim’s heart could no longer work as a pumping organ,
because it was deprived of its requisite blood and oxygen.254 The
deprivation was due to the "channeling" of the blood supply from the
entire circulatory system – including the heart, arteries, veins, venules,
and capillaries – to the thigh, leg, and arm areas of Lenny, thus causing
the formation of multiple hematomas or blood clots.255 The multiple
hematomas were wide, thick, and deep,256 indicating that these could have
resulted mainly from injuries sustained by the victim from fist blows, knee
blows, paddles, or the like.257 Repeated blows to those areas caused the
blood to gradually ooze out of the capillaries until the circulating blood
became so markedly diminished as to produce death. 258 The officer also
found that the brain, liver, kidney, pancreas, intestines, and all other
organs seen in the abdominals, as well as the thoracic organ in the lungs,
were pale due to the lack of blood, which was redirected to the thighs and
forearms.259 It was concluded that there was nothing in the heart that
would indicate that the victim suffered from a previous cardiac arrest or
disease.260
The multiple hematomas or bruises found in Lenny Villa’s arms and
thighs, resulting from repeated blows to those areas, caused the loss of
blood from his vital organs and led to his eventual death. These
hematomas must be taken in the light of the hazing activities performed
on him by the Aquila Fraternity. According to the testimonies of the co-
neophytes of Lenny, they were punched, kicked, elbowed, kneed,
stamped on; and hit with different objects on their arms, legs, and
thighs.261 They were also "paddled" at the back of their thighs or
legs;262 and slapped on their faces.263 They were made to play rough
basketball.264 Witness Marquez testified on Lenny, saying: "[T]inamaan
daw sya sa spine."265 The NBI medico-legal officer explained that the
death of the victim was the cumulative effect of the multiple injuries
suffered by the latter.266 The relevant portion of the testimony is as follows:
Atty. Tadiar Doctor, there was, rather, it was your testimony on various
cross examinations of defense counsels that the injuries that you have
enumerated on the body of the deceased Lenny Villa previously marked
as Exhibit "G-1" to "G-14" individually by themselves would not cause the
death of the victim. The question I am going to propound to you is what is
the cumulative effect of all of these injuries marked from Exhibit "G-1" to
"G-14"?
Witness All together nothing in concert to cause to the demise of the
victim. So, it is not fair for us to isolate such injuries here because we are
talking of the whole body. At the same manner that as a car would not
run minus one (1) wheel. No, the more humane in human approach is to
interpret all those injuries in whole and not in part.267
There is also evidence to show that some of the accused fraternity
members were drinking during the initiation rites.268
Consequently, the collective acts of the fraternity members were
tantamount to recklessness, which made the resulting death of Lenny a
culpable felony. It must be remembered that organizations owe to their
initiates a duty of care not to cause them injury in the process.269 With the
foregoing facts, we rule that the accused are guilty of reckless
imprudence resulting in homicide. Since the NBI medico-legal officer
found that the victim’s death was the cumulative effect of the injuries
suffered, criminal responsibility redounds to all those who directly
participated in and contributed to the infliction of physical injuries.
It appears from the aforementioned facts that the incident may have been
prevented, or at least mitigated, had the alumni of Aquila Fraternity –
accused Dizon and Villareal – restrained themselves from insisting on
reopening the initiation rites. Although this point did not matter in the end,
as records would show that the other fraternity members participated in
the reopened initiation rites – having in mind the concept of "seniority" in
fraternities – the implication of the presence of alumni should be seen as
a point of review in future legislation. We further note that some of the
fraternity members were intoxicated during Lenny’s initiation rites. In this
light, the Court submits to Congress, for legislative consideration, the
amendment of the Anti-Hazing Law to include the fact of intoxication and
the presence of non-resident or alumni fraternity members during hazing
as aggravating circumstances that would increase the applicable
penalties.
It is truly astonishing how men would wittingly – or unwittingly –impose
the misery of hazing and employ appalling rituals in the name of
brotherhood. There must be a better way to establish "kinship." A
neophyte admitted that he joined the fraternity to have more friends and
to avail himself of the benefits it offered, such as tips during bar
examinations.270 Another initiate did not give up, because he feared being
looked down upon as a quitter, and because he felt he did not have a
choice.271 Thus, for Lenny Villa and the other neophytes, joining the Aquila
Fraternity entailed a leap in the dark. By giving consent under the
circumstances, they left their fates in the hands of the fraternity members.
Unfortunately, the hands to which lives were entrusted were barbaric as
they were reckless.
Our finding of criminal liability for the felony of reckless imprudence
resulting in homicide shall cover only accused Tecson, Ama, Almeda,
Bantug, and Dizon. Had the Anti-Hazing Law been in effect then, these
five accused fraternity members would have all been convicted of the
crime of hazing punishable by reclusion perpetua (life
imprisonment).272 Since there was no law prohibiting the act of hazing
when Lenny died, we are constrained to rule according to existing laws at
the time of his death. The CA found that the prosecution failed to prove,
beyond reasonable doubt, Victorino et al.’s individual participation in the
infliction of physical injuries upon Lenny Villa.273 As to accused Villareal,
his criminal liability was totally extinguished by the fact of his death,
pursuant to Article 89 of the Revised Penal Code.
Furthermore, our ruling herein shall be interpreted without prejudice to
the applicability of the Anti-Hazing Law to subsequent cases.
Furthermore, the modification of criminal liability from slight physical
injuries to reckless imprudence resulting in homicide shall apply only with
respect to accused Almeda, Ama, Bantug, and Tecson.
The accused liable to pay damages
The CA awarded damages in favor of the heirs of Lenny Villa in the
amounts of ₱ 50,000 as civil indemnity ex delicto and ₱ 1,000,000 as
moral damages, to be jointly and severally paid by accused Dizon and
Villareal. It also awarded the amount of ₱ 30,000 as indemnity to be
jointly and severally paid by accused Almeda, Ama, Bantug, and
Tecson. 1âwphi1
Civil indemnity ex delicto is automatically awarded for the sole fact of
death of the victim.274 In accordance with prevailing jurisprudence,275 we
sustain the CA’s award of indemnity in the amount of ₱ 50,000.
The heirs of the victim are entitled to actual or compensatory damages,
including expenses incurred in connection with the death of the victim, so
long as the claim is supported by tangible documents.276 Though we are
prepared to award actual damages, the Court is prevented from granting
them, since the records are bereft of any evidence to show that actual
expenses were incurred or proven during trial. Furthermore, in the
appeal, the Solicitor General does not interpose any claim for actual
damages.277
The heirs of the deceased may recover moral damages for the grief
suffered on account of the victim’s death.278 This penalty is pursuant to
Article 2206(3) of the Civil Code, which provides that the "spouse,
legitimate and illegitimate descendants and the ascendants of the
deceased may demand moral damages for mental anguish by reason of
the death of the deceased."279 Thus, we hereby we affirm the CA’s award
of moral damages in the amount of ₱ 1,000,000.
WHEREFORE, the appealed Judgment in G.R. No. 155101 finding
petitioner Fidelito Dizon guilty of homicide is hereby MODIFIED and set
aside IN PART. The appealed Judgment in G.R. No. 154954 – finding
Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and
Vincent Tecson guilty of the crime of slight physical injuries – is also
MODIFIED and set aside in part. Instead, Fidelito Dizon, Antonio Mariano
Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson
are found guilty beyond reasonable doubt of reckless imprudence
resulting in homicide defined and penalized under Article 365 in relation
to Article 249 of the Revised Penal Code. They are hereby sentenced to
suffer an indeterminate prison term of four (4) months and one (1) day of
arresto mayor, as minimum, to four (4) years and two (2) months of
prision correccional, as maximum. In addition, accused are ORDERED
jointly and severally to pay the heirs of Lenny Villa civil indemnity ex
delicto in the amount of ₱ 50,000, and moral damages in the amount of ₱
1,000,000, plus legal interest on all damages awarded at the rate of 12%
from the date of the finality of this Decision until satisfaction.280 Costs de
oficio.
The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is
hereby affirmed. The appealed Judgments in G.R. Nos. 178057 &
178080, dismissing the criminal case filed against Escalona, Ramos,
Saruca, and Adriano, are likewise affirmed. Finally, pursuant to Article
89(1) of the Revised Penal Code, the Petition in G.R. No. 151258 is
hereby dismissed, and the criminal case against Artemio Villareal
deemed closed and TERMINATED.
Let copies of this Decision be furnished to the Senate President and the
Speaker of the House of Representatives for possible consideration of
the amendment of the Anti-Hazing Law to include the fact of intoxication
and the presence of non-resident or alumni fraternity members during
hazing as aggravating circumstances that would increase the applicable
penalties.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 187912-14 January 31, 2011
JOEY P. MARQUEZ, Petitioner,
vs.
THE SANDIGANBAYAN 5th DIVISION and THE OFFICE OF THE
SPECIAL PROSECUTOR, Respondents.
DECISION
MENDOZA, J.:
Through this petition for certiorari, prohibition and mandamus with prayer
for the issuance of temporary restraining order and/or writ of preliminary
injunction,1 petitioner Joey P. Marquez (Marquez) assails the 1] February
11, 2009 Resolution2 of the 5th Division of the Sandiganbayan (SB-5th
Division) in Criminal Case Nos. 27903, 27904 and 27905; and its 2] May
20, 2009 Resolution3 denying his motion for reconsideration.
In the assailed issuances, the SB-5th Division denied Marquez’s Motion
to Refer Prosecution’s Evidence for Examination by the Questioned
Documents Section of the National Bureau of Investigation (NBI).
From the records, it appears that as a result of the Report on the Audit of
Selected Transactions and Walis Ting-ting for the City of Parañaque for
the years 1996 to 1998, conducted by the Special Audit Team of the
Commission on Audit (COA), several anomalies were discovered
involving Marquez, then City Mayor and Chairman of the Bids and
Awards committee of Parañaque City; and Ofelia C. Caunan (Caunan),
Head of the General Services Office of said city.
It was found that, through personal canvass and without public bidding,
Marquez and Caunan secured the procurement of several thousand
rounds of bullets of different calibers that were grossly overpriced from
VMY Trading, a company not registered as an arms and ammunitions
dealer with either the Firearms and Explosives Division of the Philippine
National Police (PNP) or the Department of Trade and Industry (DTI).
Finding the transactions anomalous, the COA Special Audit Team issued
Notices of Disallowances for the overpriced ammunitions. Marquez and
Caunan sought reconsideration of the findings of the team, but their plea
was denied. Aggrieved, they elevated the matter to the COA but their
appeal was denied.
At the Office of the Ombudsman (OMB), in answer to the charges filed
against them, Marquez and Caunan filed their Joint Counter
Affidavit4 with the Evaluation and Preliminary Investigation Bureau of said
office. In the said affidavit, the two insisted on the propriety of the
transactions and raised the pendency of their appeal with the COA.
Having found probable cause to indict them for violation of Section 3 (e)
of Republic Act (R.A.) No. 3019, the OMB, through the Office of the
Special Prosecutor (OSP), filed three (3) informations5 against Marquez
and Caunan. The cases were raffled to the Fourth Division of the
Sandiganbayan (SB-4th Division).
Before arraignment, on November 24, 2003, alleging discovery of the
forged signatures, Marquez sought referral of the disbursement vouchers,
purchase requests and authorization requests to the NBI and the
reinvestigation of the cases against him.6 These were denied by the OSP.
Before the SB-4th Division, to prove its case, the prosecution presented
five (5) witnesses, namely: 1] COA State Auditor IV Fatima Valera
Bermudez; 2] Elenita Pracale, Chief, Business Permit and Licensing
Office, Parañaque City; 3] Benjamin Cruz; 4] P/Insp. Rolando C.
Columna, Legal Officer, PNP Firearms and Explosive Division; and 5]
Emerito L. Lejano, President, Guns Empire. Documentary evidence
consisting of disbursement vouchers, purchase requests and
authorization requests were also adduced.
On January 13, 2006, the prosecution filed its Formal Offer of Evidence
consisting of Exhibits "A" to "FFFF," and their sub-markings. All of the
evidence offered were admitted by the anti-graft court on March 22, 2006.
After the prosecution rested, Caunan testified and partly presented
evidence for her defense.
Marquez, on the other hand, in his Omnibus Motion dated April 1, 2008,
moved, among others, for the inhibition of Associate Justice Gregory
Ong (Justice Ong) and Associate Justice Jose Hernandez (Justice
Hernandez) and for the referral of the disbursement vouchers, purchase
requests and authorization to the NBI. Associate Justice Hernandez and
Associate Justice Ong inhibited themselves but the request of Marquez
that the questioned documents be referred to the NBI was not acted
upon.
On May 20, 2008, Justice Ong and Justice Hernandez recused
themselves from further participating in the cases. The cases were then
raffled to the SB-5th Division.
Thereafter, on July 4, 2008, Marquez filed the subject Motion to Refer
Prosecution’s Evidence for Examination by the Questioned Documents
Section of the National Bureau of Investigation. In his motion, he again
insisted that his purported signatures on the vouchers were forged.
By way of Comment/Opposition to the motion, the prosecution argued
that its documentary exhibits had already been formally offered in
January 2006 and had been duly admitted by the anti-graft court. The
prosecution added that, when confronted with the questioned
transactions during the COA audit investigation, Marquez never raised
the defense of forgery. Instead, he insisted on the propriety of the
transactions. He did not claim forgery either when he filed his Joint
Counter-Affidavit with the OMB. Also, in his verified Motion for
Reconsideration dated May 29, 2003 and Supplemental Motion dated
July 1, 2003 filed with the COA, no allegation of forgery was made.
The prosecution pointed to Section 4, Rule 129 of the Revised Rules of
Court7 and posited that since Marquez alleged in his pleadings that he
had relied on the competence of his subordinates, there could be no
"palpable mistake," thus, he was estopped from alleging that his
signatures on the subject documents were forged. The prosecution
accused Marquez of filing the motion merely to delay the proceedings.8
In his Reply, Marquez insisted that he never admitted that his signatures
on the disbursement vouchers, purchase requests and authorization
requests were his and that his motion was not intended to delay the
proceedings.
In its Rejoinder, the prosecution reiterated its earlier arguments and
added that Caunan testified and identified the signatures of Marquez in
the subject vouchers. It further noted that Marquez moved to refer the
documents to the NBI only two and a half (2 ½) years after the formal
offer of said documents.
In the subject February 11, 2009 Resolution, the anti-graft court denied
the motion of Marquez. Citing Section 22 of Rule 132 of the Rules of
Court,9 it was of the view that while resort to the expert opinion of
handwriting experts would be helpful in the examination of alleged forged
documents, the same was neither mandatory nor indispensable, since
the court can determine forgery from its own independent examination.
The motion for reconsideration of Marquez was likewise denied.
Aggrieved, Marquez interposed this petition for certiorari raising this lone
ISSUE
THAT THE PUBLIC RESPONDENT SANDIGANBAYAN - 5th
DIVISION COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN
IT ISSUED ITS RESOLUTIONS RESPECTIVELY DATED
FEBRUARY 11, 2009 AND MAY 20, 2009 DENYING THE
PETITIONER’S MOTION TO REFER PROSECUTION’S
EVIDENCE FOR EXAMINATION BY THE QUESTIONED
DOCUMENTS SECTION OF THE NATIONAL BUREAU OF
INVESTIGATION WHICH DENIAL IS IN VIOLATION OF HIS
RIGHT TO PRESENT EVIDENCE AND HIS TWIN
CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EQUAL
PROTECTION OF LAW.
Those availing of the remedy of certiorari must clearly show that the trial
court acted without jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction. By grave abuse of discretion,
it means such capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be patent
and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation
of law as where the power is exercised in an arbitrary and despotic
manner by reason of passion and hostility. In sum, for the extraordinary
writ of certiorari to lie, there must be capricious, arbitrary or whimsical
exercise of power.10
Such circumstance exists in this case.
One of the most vital and precious rights accorded to an accused by the
Constitution is due process, which includes a fair and impartial trial and a
reasonable opportunity to present one’s defense. Under Section 14,
Article III of the 1987 Constitution, it is provided that:
(1) No person shall be held to answer for a criminal offense
without due process of law.
(2) 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, to be informed of the nature
and cause of the accusation against him, to have a speedy,
 impartial, and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding
the absence of the accused provided that he has been duly
notified and his failure to appear is unjustifiable. (emphasis
supplied)
In this connection, it is well settled that due process in criminal
proceedings requires that (a) the court or tribunal trying the case is
properly clothed with judicial power to hear and determine the matter
before it; (b) that jurisdiction is lawfully acquired by it over the person of
the accused; (c) that the accused is given an opportunity to be heard;
and (d) that judgment is rendered only upon lawful hearing.
While the Constitution does not specify the nature of this opportunity, by
necessary implication, it means that the accused should be allowed
reasonable freedom to present his defense if the courts are to give form
and substance to this guaranty. Should the trial court fail to accord an
accused reasonable opportunity to submit evidence in his defense, the
exercise by the Court of its certiorari jurisdiction is warranted as this
amounts to a denial of due process.
In this case, the defense interposed by the accused Marquez was that his
signatures in the disbursement vouchers, purchase requests and
authorizations were forged. It is hornbook rule that as a rule, forgery
cannot be presumed and must be proved by clear, positive and
convincing evidence11 and the burden of proof lies on the party alleging
forgery.12
Thus, Marquez bears the burden of submitting evidence to prove the fact
that his signatures were indeed forged. In order to be able to discharge
his burden, he must be afforded reasonable opportunity to present
evidence to support his allegation. This opportunity is the actual
examination of the signatures he is questioning by no less than the
country’s premier investigative force – the NBI. If he is denied such
opportunity, his only evidence on this matter is negative testimonial
evidence which is generally considered as weak. And, he cannot submit
any other examination result because the signatures are on the original
documents which are in the control of either the prosecution or the graft
court.
At any rate, any finding of the NBI will not be binding on the graft court. It
will still be subject to its scrutiny and evaluation in line with Section 22 of
Rule 132. Nevertheless, Marquez should not be deprived of his right to
present his own defense. How the prosecution, or even the court,
perceives his defense to be is irrelevant. To them, his defense may seem
feeble and his strategy frivolous, but he should be allowed to adduce
evidence of his own choice. The court should not control how he will
defend himself as long as the steps to be taken will not be in violation of
the rules.
Contrary to the assertion of the prosecution, this move of Marquez is not
a mere afterthought to delay the prosecution of the case. From the
records, it appears that as early as November 24, 2003, even before
arraignment, upon his alleged discovery of the forged signatures,
Marquez already sought referral of the disbursement vouchers, purchase
requests and authorization requests to the NBI and reinvestigation of the
cases against him.13 At that stage, his plea was already denied by the
OSP.
Apparently, he did not abandon his quest. In his Omnibus Motion dated
April 1, 2008 filed with the SB-4th Division, Marquez did not only move for
the inhibition of Justice Ong and Justice Hernandez, but also moved for
the referral of the disbursement vouchers, purchase requests and
authorization to the NBI. Since the latter was not acted upon, he filed the
subject Motion to Refer Prosecution’s Evidence for Examination by the
Questioned Documents Section of the National Bureau of Investigation
reiterating his plea, this time with the SB-5th Division.
If this case has been delayed, it is because of the denial of the simple
request of Marquez. If it was granted in the first instance, the trial of the
case would have proceeded smoothly and would have been over by now.
If the Court were to deny this petition and Marquez would be convicted
for having failed to prove forgery, he could not be prevented from crying
that he was prevented from presenting evidence in his defense.
The fact that Marquez did not raise this issue with the COA is immaterial
and irrelevant. His failure or omission to do so may affect the
1âwphi 1
appreciation and weight of his defense, but it should not bar him from
insisting on it during his turn to adduce evidence.
In denying said motion, the SB-5th Division offered no valid explanation
other than the fact that, being the trial court, it may validly determine
forgery from its own independent examination of the documentary
evidence. While it is true that the appreciation of whether the signatures SO ORDERED.
of Marquez are genuine or not is subject to the discretion of the graft
court, this discretion, by the very nature of things, may rightly be G.R. No. 148560 November 19, 2001
exercised only after the evidence is submitted to the court at the hearing.
Evidence cannot properly be weighed if not exhibited or produced before JOSEPH EJERCITO ESTRADA, petitioner,
the court.14 Only after evidence is offered and admitted that the court can vs.
appreciate and evaluate it. The prosecution had already offered its SANDIGANBAYAN (Third Division) and PEOPLE OF THE
evidence on the matter. The court should not deny the same right to the PHILIPPINES, respondents.
defense.
DECISION
The fact that the documentary exhibits were already formally offered and
duly admitted by the anti-graft court cannot preclude an examination of
BELLOSILLO, J.:
the signatures thereon by the defense. With proper handling by court
personnel, this can easily be accomplished by the NBI expert examiners.
JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of
his pen in defense of the rights of the individual from the vast powers of
In the conduct of its proceedings, a court is given discretion in
the State and the inroads of societal pressure. But even as he draws a
maintaining the delicate balance between the demands of due process
sacrosanct line demarcating the limits on individuality beyond which the
and the strictures of speedy trial on the one hand, and the right of the
State cannot tread - asserting that "individual spontaneity" must be
State to prosecute crimes and rid society of criminals on the other.
allowed to flourish with very little regard to social interference - he
Indeed, both the State and the accused are entitled to due process.
veritably acknowledges that the exercise of rights and liberties is imbued
However, the exercise of such discretion must be exercised judiciously,
with a civic obligation, which society is justified in enforcing at all cost,
bearing in mind the circumstances of each case, and the interests of
against those who would endeavor to withhold fulfillment. Thus he says -
substantial justice.
The sole end for which mankind is warranted, individually or collectively,
Thus, for having denied Marquez the opportunity to be heard and to
in interfering with the liberty of action of any of their number, is self-
produce evidence of his choice in his defense, the SB-5th Division
protection. The only purpose for which power can be rightfully exercised
committed grave abuse of discretion warranting intervention from the
over any member of a civilized community, against his will, is to prevent
Court. The anti-graft court should allow him to refer the evidence of the
harm to others.
prosecution to the Questioned Documents Section of the NBI for
examination at the soonest time possible and for the latter to immediately
conduct such examination and to submit the results to the court within a Parallel to individual liberty is the natural and illimitable right of the State
reasonable time. to self-preservation. With the end of maintaining the integrity and
cohesiveness of the body politic, it behooves the State to formulate a
system of laws that would compel obeisance to its collective wisdom and
WHEREFORE, the petition is GRANTED. The February 11, 2009 and
inflict punishment for non-observance.
May 20, 2009 Resolutions of the 5th Division of the Sandiganbayan in
Criminal Case Nos. 27903, 27904 and 27905 are hereby REVERSED
and SET ASIDE. The 5th Division of the Sandiganbayan is hereby The movement from Mill's individual liberalism to unsystematic
ordered to allow the petitioner Joey P. Marquez to refer the evidence of collectivism wrought changes in the social order, carrying with it a new
the prosecution to the Questioned Documents Section of the National formulation of fundamental rights and duties more attuned to the
Bureau of Investigation for examination as soon as possible and, after imperatives of contemporary socio-political ideologies. In the process, the
submission of the results to the court and proper proceedings, to act on web of rights and State impositions became tangled and obscured,
the case with dispatch. enmeshed in threads of multiple shades and colors, the skein irregular
and broken. Antagonism, often outright collision, between the law as the
expression of the will of the State, and the zealous attempts by its
members to preserve their individuality and dignity, inevitably followed. It
is when individual rights are pitted against State authority that judicial
conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be
prosecuted under RA 7080 (An Act Defining and Penalizing the Crime of
Plunder),1 as amended by RA 7659,2 wishes to impress upon us that the
assailed law is so defectively fashioned that it crosses that thin but
distinct line which divides the valid from the constitutionally infirm. He
therefore makes a stringent call for this Court to subject the Plunder Law
to the crucible of constitutionality mainly because, according to him, (a) it
suffers from the vice of vagueness; (b) it dispenses with the "reasonable
doubt" standard in criminal prosecutions; and, (c) it abolishes the element
of mens rea in crimes already punishable under The Revised Penal
Code, all of which are purportedly clear violations of the fundamental
rights of the accused to due process and to be informed of the nature and
cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to
have transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4
which are reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property,
business, enterprise or material possession of any person within the
purview of Section Two (2) hereof, acquired by him directly or indirectly
through dummies, nominees, agents, subordinates and/or business
associates by any combination or series of the following means or similar
schemes:
(1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury;
(2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the
public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
agencies or instrumentalities, or government owned or controlled
corporations and their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or
participation including the promise of future employment in any
business enterprise or undertaking;
(5) By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or
special interests; or
(6) By taking advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at
the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public
officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates
or other persons, amasses, accumulates or acquires ill-gotten wealth
through a combination or series of overt or criminal acts as described
in Section 1 (d) hereof, in the aggregate amount or total value of at least
fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder
and shall be punished by reclusion perpetua to death. Any person who
participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances as provided by
the Revised Penal Code shall be considered by the court. The court shall
declare any and all ill-gotten wealth and their interests and other incomes
and assets including the properties and shares of stocks derived from the
deposit or investment thereof forfeited in favor of the State (underscoring
supplied).
Section 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal
acts indicative of the overall unlawful scheme or
conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed before the
Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim.
Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b)
Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par.
(a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and
Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for
violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical
Standards for Public Officials and Employees); (d) Crim. Case No. 26564,
for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case
No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA
6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the
case to the Ombudsman for preliminary investigation with respect to
specification "d" of the charges in the Information in Crim. Case No.
26558; and, for reconsideration/reinvestigation of the offenses under
specifications "a," "b," and "c" to give the accused an opportunity to file
counter-affidavits and other documents necessary to prove lack of
probable cause. Noticeably, the grounds raised were only lack of
preliminary investigation, reconsideration/reinvestigation of offenses, and
opportunity to prove lack of probable cause. The purported ambiguity of
the charges and the vagueness of the law under which they are charged
were never raised in that Omnibus Motion thus indicating the explicitness
and comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution
in Crim. Case No. 26558 finding that "a probable cause for the offense of
PLUNDER exists to justify the issuance of warrants for the arrest of the
accused." On 25 June 2001 petitioner's motion for reconsideration was
denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim.
Case No. 26558 on the ground that the facts alleged therein did not
constitute an indictable offense since the law on which it was based was
unconstitutional for vagueness, and that the Amended Information for
Plunder charged more than one (1) offense. On 21 June 2001 the
Government filed its Opposition to the Motion to Quash, and five (5) days
later or on 26 June 2001 petitioner submitted his Reply to the Opposition.
On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18
September 2001, the issues for resolution in the instant petition for
certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b)
The Plunder Law requires less evidence for proving the predicate crimes
of plunder and therefore violates the rights of the accused to due
process; and, (c) Whether Plunder as defined in RA 7080 is a malum
prohibitum, and if so, whether it is within the power of Congress to so
classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity
of legislation is predicated on the basic principle that a legislative
measure is presumed to be in harmony with the Constitution.3 Courts
invariably train their sights on this fundamental rule whenever a
legislative act is under a constitutional attack, for it is the postulate of
constitutional adjudication. This strong predilection for constitutionality
takes its bearings on the idea that it is forbidden for one branch of the
government to encroach upon the duties and powers of another. Thus it
has been said that the presumption is based on the deference the judicial
branch accords to its coordinate branch - the legislature.
If there is any reasonable basis upon which the legislation may firmly
rest, the courts must assume that the legislature is ever conscious of the
borders and edges of its plenary powers, and has passed the law with full
knowledge of the facts and for the purpose of promoting what is right and
advancing the welfare of the majority. Hence in determining whether the
acts of the legislature are in tune with the fundamental law, courts should
proceed with judicial restraint and act with caution and forbearance.
Every intendment of the law must be adjudged by the courts in favor of its
constitutionality, invalidity being a measure of last resort. In construing
therefore the provisions of a statute, courts must first ascertain whether
an interpretation is fairly possible to sidestep the question of
constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon4 we held that as long as
there is some basis for the decision of the court, the constitutionality of
the challenged law will not be touched and the case will be decided on
other available grounds. Yet the force of the presumption is not sufficient
to catapult a fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and palpably
transgresses the hallowed domain of the organic law, it must be struck
down on sight lest the positive commands of the fundamental law be
unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on
the party challenging the validity of the statute. He must demonstrate
beyond any tinge of doubt that there is indeed an infringement of the
constitution, for absent such a showing, there can be no finding of
unconstitutionality. A doubt, even if well-founded, will hardly suffice. As
tersely put by Justice Malcolm, "To doubt is to sustain."5 And petitioner
has miserably failed in the instant case to discharge his burden and
overcome the presumption of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and
well-defined parameters which would enable the accused to determine
the nature of his violation. Section 2 is sufficiently explicit in its description
of the acts, conduct and conditions required or forbidden, and prescribes
the elements of the crime with reasonable certainty and particularity.
Thus -
1. That the offender is a public officer who acts by himself or in
connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other
persons;
2. That he amassed, accumulated or acquired ill-gotten wealth
through a combination or series of the following overt or criminal
acts: (a) through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury; (b) by
receiving, directly or indirectly, any commission, gift, share,
percentage, kickback or any other form of pecuniary benefits from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the
public officer; (c) by the illegal or fraudulent conveyance or
disposition of assets belonging to the National Government or
any of its subdivisions, agencies or instrumentalities of
Government owned or controlled corporations or their
subsidiaries; (d) by obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other form of interest
or participation including the promise of future employment in any
business enterprise or undertaking; (e) by establishing
agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders
intended to benefit particular persons or special interests; or (f) by
taking advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at
the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten
wealth amassed, accumulated or acquired is at least
₱50,000,000.00.
As long as the law affords some comprehensible guide or rule that would
inform those who are subject to it what conduct would render them liable
to its penalties, its validity will be sustained. It must sufficiently guide the
judge in its application; the counsel, in defending one charged with its
violation; and more importantly, the accused, in identifying the realm of
the proscribed conduct. Indeed, it can be understood with little difficulty
that what the assailed statute punishes is the act of a public officer in
amassing or accumulating ill-gotten wealth of at least ₱50,000,000.00
through a series or combination of acts enumerated in Sec. 1, par. (d), of
the Plunder Law.
In fact, the amended Information itself closely tracks the language of the
law, indicating with reasonable certainty the various elements of the
offense which petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB,
Office of the Ombudsman, hereby accuses former PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a.
'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose
'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T.
Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio
Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES &
Jane Does, of the crime of Plunder, defined and penalized under R.A.
No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as
follows:
That during the period from June, 1998 to January 2001, in the
Philippines, and within the jurisdiction of this Honorable Court, accused
Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY with his co-
accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY
AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES,
SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE
ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY,
RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there
willfully, unlawfully and criminally amass, accumulate and acquire BY
HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the
aggregate amount or TOTAL VALUE of FOUR BILLION NINETY
SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (₱4,097,804,173.17), more or less, THEREBY UNJUSTLY
ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO
THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF
THE PHILIPPINES, through ANY OR A combination OR Aseries of
overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described
as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL
INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE
HUNDRED FORTY-FIVE MILLION PESOS (₱545,000,000.00),
MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM
OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM
OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection
with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy'
Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN
DOES AND JANE DOES, in consideration OF TOLERATION OR
PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY, for HIS
OR THEIR PERSONAL gain and benefit, public funds in the
amount of ONE HUNDRED THIRTY MILLION PESOS
(₱130,000,000.00), more or less, representing a portion of
the TWO HUNDRED MILLION PESOS
(₱200,000,000.00) tobacco excise tax share allocated for the
province of Ilocos Sur under R.A. No. 7171, by himself and/or in
connivance with co-accused Charlie 'Atong' Ang, Alma
Alfaro, JOHN DOE a.k.a.Eleuterio Ramos Tan or Mr. Uy, Jane
Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE
DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL
GAIN AND BENEFIT, the Government Service Insurance System
(GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS,
MORE OR LESS, and the Social Security System (SSS),
329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS
ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED
SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND
FIFTY CENTAVOS (₱1,102,965,607.50) AND MORE OR LESS
SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED
TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS
(₱744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE
OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN
MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY
SEVEN PESOS AND FIFTY CENTAVOS (₱1,847,578,057.50);
AND BY COLLECTING OR RECEIVING, DIRECTLY OR
INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH
JOHN DOES AND JANE DOES, COMMISSIONS OR
PERCENTAGES BY REASON OF SAID PURCHASES OF
SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED
EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND
PESOS (₱189,700,000.00) MORE OR LESS, FROM THE
BELLE CORPORATION WHICH BECAME PART OF THE
DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE
ACCOUNT NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS,
SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF
PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES
AND JANE DOES, in the amount of MORE OR LESS THREE
BILLION TWO HUNDRED THIRTY THREE MILLION ONE
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN CENTAVOS
(₱3,233,104,173.17) AND DEPOSITING THE SAME UNDER
HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-
PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous - as there
is obviously none - that will confuse petitioner in his defense. Although
subject to proof, these factual assertions clearly show that the elements
of the crime are easily understood and provide adequate contrast
between the innocent and the prohibited acts. Upon such unequivocal
assertions, petitioner is completely informed of the accusations against
him as to enable him to prepare for an intelligent defense.
Petitioner, however, bewails the failure of the law to provide for the
statutory definition of the terms "combination" and "series" in the key
phrase "a combination or series of overt or criminal acts" found in Sec. 1,
par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions,
according to petitioner, render the Plunder Law unconstitutional for being
impermissibly vague and overbroad and deny him the right to be
informed of the nature and cause of the accusation against him, hence,
violative of his fundamental right to due process.
The rationalization seems to us to be pure sophistry. A statute is not
rendered uncertain and void merely because general terms are used
therein, or because of the employment of terms without defining
them;6 much less do we have to define every word we use. Besides, there
is no positive constitutional or statutory command requiring the legislature
to define each and every word in an enactment. Congress is not
restricted in the form of expression of its will, and its inability to so define
the words employed in a statute will not necessarily result in the
vagueness or ambiguity of the law so long as the legislative will is clear,
or at least, can be gathered from the whole act, which is distinctly
expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal hermeneutics that words of
a statute will be interpreted in their natural, plain and ordinary acceptation
and signification,7 unless it is evident that the legislature intended a
technical or special legal meaning to those words.8 The intention of the
lawmakers - who are, ordinarily, untrained philologists and lexicographers
- to use statutory phraseology in such a manner is always presumed.
Thus, Webster's New Collegiate Dictionary contains the following
commonly accepted definition of the words "combination" and "series:"
Combination - the result or product of combining; the act or process of
combining. To combine is to bring into such close relationship as to
obscure individual characters.
Series - a number of things or events of the same class coming one after
another in spatial and temporal succession.
That Congress intended the words "combination" and "series" to be
understood in their popular meanings is pristinely evident from the
legislative deliberations on the bill which eventually became RA 7080 or
the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7
May 1991
REP. ISIDRO: I am just intrigued again by our definition of plunder. We
say THROUGH A COMBINATION OR SERIES OF OVERT OR
CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now
when we say combination, we actually mean to say, if there are two or
more means, we mean to say that number one and two or number one
and something else are included, how about a series of the same act?
For example, through misappropriation, conversion, misuse, will these be
included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the
enumerated means not twice of one enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say combination, we
mean, two different acts. It cannot be a repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series.
REP. ISIDRO: That’s not series. Its a combination. Because when we say
combination or series, we seem to say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That
is why, I said, that is a very good suggestion because if it is only one act,
it may fall under ordinary crime but we have here a combination or series
of overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term "series?"
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination.
Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes "one"
or maybe even "two" acts may already result in such a big amount, on
line 25, would the Sponsor consider deleting the words "a series of overt
or," to read, therefore: "or conspiracy COMMITTED by criminal acts such
as." Remove the idea of necessitating "a series." Anyway, the criminal
acts are in the plural.
SENATOR TANADA: That would mean a combination of two or more of
the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because "a series" implies several or many;
two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted
under the particular crime. But when we say "acts of plunder" there
should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing
laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at
least two (2) acts falling under different categories of enumeration
provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1,
par. (d), subpar. (1), and fraudulent conveyance of assets belonging to
the National Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more
overt or criminal acts falling under the same category of enumeration
found in Sec. 1, par. (d), say, misappropriation, malversation and raids on
the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1).
Verily, had the legislature intended a technical or distinctive meaning for
"combination" and "series," it would have taken greater pains in
specifically providing for it in the law.
As for "pattern," we agree with the observations of the
Sandiganbayan9 that this term is sufficiently defined in Sec. 4, in relation
to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a
combination or series of overt or criminal acts enumerated in subsections
(1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the
pattern of overt or criminal acts is directed towards a common purpose or
goal which is to enable the public officer to amass, accumulate or acquire
ill-gotten wealth. And thirdly, there must either be an 'overall unlawful
scheme' or 'conspiracy' to achieve said common goal. As commonly
understood, the term 'overall unlawful scheme' indicates a 'general plan
of action or method' which the principal accused and public officer and
others conniving with him follow to achieve the aforesaid common goal.
In the alternative, if there is no such overall scheme or where the
schemes or methods used by multiple accused vary, the overt or criminal
acts must form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair
warning and sufficient notice of what it seeks to penalize. Under the
circumstances, petitioner's reliance on the "void-for-vagueness" doctrine
is manifestly misplaced. The doctrine has been formulated in various
ways, but is most commonly stated to the effect that a statute
establishing a criminal offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can understand what
conduct is prohibited by the statute. It can only be invoked against that
specie of legislation that is utterly vague on its face, i.e., that which
cannot be clarified either by a saving clause or by construction.
A statute or act may be said to be vague when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its
meaning and differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects - it violates due process
for failure to accord persons, especially the parties targeted by it, fair
notice of what conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing
of the Government muscle.10 But the doctrine does not apply as against
legislations that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or to those
that are apparently ambiguous yet fairly applicable to certain types of
activities. The first may be "saved" by proper construction, while no
challenge may be mounted as against the second whenever directed
against such activities.11 With more reason, the doctrine cannot be
invoked where the assailed statute is clear and free from ambiguity, as in
this case.
The test in determining whether a criminal statute is void for uncertainty is
whether the language conveys a sufficiently definite warning as to the
proscribed conduct when measured by common understanding and
practice.12It must be stressed, however, that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the statute to be
upheld - not absolute precision or mathematical exactitude, as petitioner
seems to suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions, especially
where, because of the nature of the act, it would be impossible to provide
all the details in advance as in all other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr.
Justice Vicente V. Mendoza during the deliberations of the Court that the
allegations that the Plunder Law is vague and overbroad do not justify a
facial review of its validity -
The void-for-vagueness doctrine states that "a statute which either forbids
or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law."13 The
overbreadth doctrine, on the other hand, decrees that "a governmental
purpose may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms."14
A facial challenge is allowed to be made to a vague statute and to one
which is overbroad because of possible "chilling effect" upon protected
speech. The theory is that "[w]hen statutes regulate or proscribe speech
and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent value
to all society of constitutionally protected expression is deemed to justify
allowing attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could not be
regulated by a statute drawn with narrow specificity."15 The possible harm
to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be
deterred and perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free
speech.
The overbreadth and vagueness doctrines then have special application
only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the
limited context of the First Amendment."16 In Broadrick v. Oklahoma,17 the
Court ruled that "claims of facial overbreadth have been entertained in
cases involving statutes which, by their terms, seek to regulate only
spoken words" and, again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct." For this reason, it has been
held that "a facial challenge to a legislative act is the most difficult
challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid."18 As
for the vagueness doctrine, it is said that a litigant may challenge a
statute on its face only if it is vague in all its possible applications. "A
plaintiff who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of
others."19
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law, First Amendment
cases. They cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the established rule is that
"one to whom application of a statute is constitutional will not be heard to
attack the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its application might
be unconstitutional."20 As has been pointed out, "vagueness challenges in
the First Amendment context, like overbreadth challenges typically
produce facial invalidation, while statutes found vague as a matter of due
process typically are invalidated [only] 'as applied' to a particular
defendant."21 Consequently, there is no basis for petitioner's claim that this
Court review the Anti-Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the
Court whose activities are constitutionally protected.22 It constitutes a
departure from the case and controversy requirement of the Constitution
and permits decisions to be made without concrete factual settings and in
sterile abstract contexts.23 But, as the U.S. Supreme Court pointed out
in Younger v. Harris24
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put into
effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on
the legislative process of the relief sought, and above all the speculative
and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
For these reasons, "on its face" invalidation of statutes has been
described as "manifestly strong medicine," to be employed "sparingly and
only as a last resort,"25 and is generally disfavored.26 In determining the
constitutionality of a statute, therefore, its provisions which are alleged to
have been violated in a case must be examined in the light of the conduct
with which the defendant is charged.27
In light of the foregoing disquisition, it is evident that the purported
ambiguity of the Plunder Law, so tenaciously claimed and argued at
length by petitioner, is more imagined than real. Ambiguity, where none
exists, cannot be created by dissecting parts and words in the statute to
furnish support to critics who cavil at the want of scientific precision in the
law. Every provision of the law should be construed in relation and with
reference to every other part. To be sure, it will take more than nitpicking
to overturn the well-entrenched presumption of constitutionality and
validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of
what the Plunder Law is all about. Being one of the Senators who voted
for its passage, petitioner must be aware that the law was extensively
deliberated upon by the Senate and its appropriate committees by reason
of which he even registered his affirmative vote with full knowledge of its
legal implications and sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan28 must be mentioned if
only to illustrate and emphasize the point that courts are loathed to
declare a statute void for uncertainty unless the law itself is so imperfect
and deficient in its details, and is susceptible of no reasonable
construction that will support and give it effect. In that case,
petitioners Gallego and Agoncillo challenged the constitutionality of Sec.
3, par. (e), of The Anti-Graft and Corrupt Practices Actfor being vague.
Petitioners posited, among others, that the term "unwarranted" is highly
imprecise and elastic with no common law meaning or settled definition
by prior judicial or administrative precedents; that, for its vagueness, Sec.
3, par. (e), violates due process in that it does not give fair warning or
sufficient notice of what it seeks to penalize. Petitioners further argued
that the Information charged them with three (3) distinct offenses, to wit:
(a) giving of "unwarranted" benefits through manifest partiality; (b) giving
of "unwarranted" benefits through evident bad faith; and, (c) giving of
"unwarranted" benefits through gross inexcusable negligence while in the
discharge of their official function and that their right to be informed of the
nature and cause of the accusation against them was violated because
they were left to guess which of the three (3) offenses, if not all, they
were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-
Graft and Corrupt Practices Act does not suffer from the constitutional
defect of vagueness. The phrases "manifest partiality," "evident bad
faith," and "gross and inexcusable negligence" merely describe the
different modes by which the offense penalized in Sec. 3, par. (e), of the
statute may be committed, and the use of all these phrases in the same
Information does not mean that the indictment charges three (3) distinct
offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or
official support; unjustified; unauthorized (Webster, Third International
Dictionary, p. 2514); or without justification or adequate reason
(Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F.
Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A
1978, Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act
consider a corrupt practice and make unlawful the act of the public officer
in:
x x x or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as
amended).
It is not at all difficult to comprehend that what the aforequoted penal
provisions penalize is the act of a public officer, in the discharge of his
official, administrative or judicial functions, in giving any private party
benefits, advantage or preference which is unjustified, unauthorized or
without justification or adequate reason, through manifest partiality,
evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or
ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The
Anti-Graft and Corrupt Practices Act, which was understood in its primary
and general acceptation. Consequently, in that case, petitioners'
objection thereto was held inadequate to declare the section
unconstitutional.
On the second issue, petitioner advances the highly stretched theory that
Sec. 4 of the Plunder Law circumvents the immutable obligation of the
prosecution to prove beyond reasonable doubt the predicate acts
constituting the crime of plunder when it requires only proof of a pattern
of overt or criminal acts showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind.
In a criminal prosecution for plunder, as in all other crimes, the accused
always has in his favor the presumption of innocence which is
guaranteed by the Bill of Rights, and unless the State succeeds in
demonstrating by proof beyond reasonable doubt that culpability lies, the
accused is entitled to an acquittal.29 The use of the "reasonable doubt"
standard is indispensable to command the respect and confidence of the
community in the application of criminal law. It is critical that the moral
force of criminal law be not diluted by a standard of proof that leaves
people in doubt whether innocent men are being condemned. It is also
important in our free society that every individual going about his ordinary
affairs has confidence that his government cannot adjudge him guilty of a
criminal offense without convincing a proper factfinder of his guilt with
utmost certainty. This "reasonable doubt" standard has acquired such
exalted stature in the realm of constitutional law as it gives life to the Due
Process Clause which protects the accused against conviction except
upon proof beyond reasonable doubt of every fact necessary to constitute
the crime with which he is charged.30 The following exchanges between
Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the
deliberations in the floor of the House of Representatives are elucidating -
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA
7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law
that what is alleged in the information must be proven beyond reasonable
doubt. If we will prove only one act and find him guilty of the other acts
enumerated in the information, does that not work against the right of the
accused especially so if the amount committed, say, by falsification is
less than ₱100 million, but the totality of the crime committed is ₱100
million since there is malversation, bribery, falsification of public
document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information
needs to be proved beyond reasonable doubt. What is required to be
proved beyond reasonable doubt is every element of the crime charged.
For example, Mr. Speaker, there is an enumeration of the things taken by
the robber in the information – three pairs of pants, pieces of jewelry.
These need not be proved beyond reasonable doubt, but these will not
prevent the conviction of a crime for which he was charged just because,
say, instead of 3 pairs of diamond earrings the prosecution proved two.
Now, what is required to be proved beyond reasonable doubt is the
element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in
the crime of plunder the totality of the amount is very important, I feel that
such a series of overt criminal acts has to be taken singly. For instance,
in the act of bribery, he was able to accumulate only ₱50,000 and in the
crime of extortion, he was only able to accumulate ₱1 million. Now, when
we add the totality of the other acts as required under this bill through the
interpretation on the rule of evidence, it is just one single act, so how can
we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an
essential element of the crime, there is a need to prove that element
beyond reasonable doubt. For example, one essential element of the
crime is that the amount involved is ₱100 million. Now, in a series of
defalcations and other acts of corruption in the enumeration the total
amount would be ₱110 or ₱120 million, but there are certain acts that
could not be proved, so, we will sum up the amounts involved in those
transactions which were proved. Now, if the amount involved in these
transactions, proved beyond reasonable doubt, is ₱100 million, then
there is a crime of plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature did not in any
manner refashion the standard quantum of proof in the crime of plunder.
The burden still remains with the prosecution to prove beyond any iota of
doubt every fact or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every
component of the crime suffers from a dismal misconception of the import
of that provision. What the prosecution needs to prove beyond
reasonable doubt is only a number of acts sufficient to form a
combination or series which would constitute a pattern and involving an
amount of at least ₱50,000,000.00. There is no need to prove each and
every other act alleged in the Information to have been committed by the
accused in furtherance of the overall unlawful scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing
that the accused is charged in an Information for plunder with having
committed fifty (50) raids on the public treasury. The prosecution need
not prove all these fifty (50) raids, it being sufficient to prove by pattern at
least two (2) of the raids beyond reasonable doubt provided only that they
amounted to at least ₱50,000,000.00.31
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical
conclusion that "pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy" inheres in the very acts of accumulating,
acquiring or amassing hidden wealth. Stated otherwise, such pattern
arises where the prosecution is able to prove beyond reasonable doubt
the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-
product of the proof of the predicate acts. This conclusion is consistent
with reason and common sense. There would be no other explanation for
a combination or series of
overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme
or conspiracy to amass, accumulate or acquire ill gotten wealth." The
prosecution is therefore not required to make a deliberate and conscious
effort to prove pattern as it necessarily follows with the establishment of a
series or combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is his
submission that "pattern" is "a very important element of the crime of
plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of
evidence and a substantive element of the crime," such that without it the
accused cannot be convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be convicted
under the Plunder Law without applying Section 4 on the Rule of
Evidence if there is proof beyond reasonable doubt of the commission of
the acts complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes
enumerated in the Revised Penal Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime
are proved beyond reasonable doubt without applying Section 4, can you
not have a conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4
in convicting an accused charged for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a
substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4
when there is proof beyond reasonable doubt on the acts charged
constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it
contains a rule of evidence and it contains a substantive element of the
crime of plunder. So, there is no way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt
insofar as the predicate crimes charged are concerned that you do not
have to go that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a
very important element of the crime of plunder and that cannot be
avoided by the prosecution.32
We do not subscribe to petitioner's stand. Primarily, all the essential
elements of plunder can be culled and understood from its definition in
Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them.
Moreover, the epigraph and opening clause of Sec. 4 is clear and
unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder x x x x
It purports to do no more than prescribe a rule of procedure for the
prosecution of a criminal case for plunder. Being a purely procedural
measure, Sec. 4 does not define or establish any substantive right in
favor of the accused but only operates in furtherance of a remedy. It is
only a means to an end, an aid to substantive law. Indubitably, even
without invoking Sec. 4, a conviction for plunder may be had, for what is
crucial for the prosecution is to present sufficient evidence to engender
that moral certitude exacted by the fundamental law to prove the guilt of
the accused beyond reasonable doubt. Thus, even granting for the sake
of argument that Sec. 4 is flawed and vitiated for the reasons advanced
by petitioner, it may simply be severed from the rest of the provisions
without necessarily resulting in the demise of the law; after all, the
existing rules on evidence can supplant Sec. 4 more than enough.
Besides, Sec. 7 of RA 7080 provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this Act or the
application thereof to any person or circumstance is held invalid, the
remaining provisions of this Act and the application of such provisions to
other persons or circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being
declared invalid as a result of the nullity of some of its provisions,
assuming that to be the case although it is not really so, all the provisions
thereof should accordingly be treated independently of each other,
especially if by doing so, the objectives of the statute can best be
achieved.
As regards the third issue, again we agree with Justice Mendoza that
plunder is a malum in se which requires proof of criminal intent. Thus, he
says, in his Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se the
element of mens rea must be proven in a prosecution for plunder. It is
noteworthy that the amended information alleges that the crime of
plunder was committed "willfully, unlawfully and criminally." It thus alleges
guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement
of mens rea and that is the reason he claims the statute is void, petitioner
cites the following remarks of Senator Tañada made during the
deliberation on S.B. No. 733:
SENATOR TAÑADA . . . And the evidence that will be required to convict
him would not be evidence for each and every individual criminal act but
only evidence sufficient to establish the conspiracy or scheme to commit
this crime of plunder.33
However, Senator Tañada was discussing §4 as shown by the
succeeding portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is
contained in Section 4, Rule of Evidence, which, in the Gentleman's view,
would provide for a speedier and faster process of attending to this kind
of cases?
SENATOR TAÑADA: Yes, Mr. President . . .34
Senator Tañada was only saying that where the charge is conspiracy to
commit plunder, the prosecution need not prove each and every criminal
act done to further the scheme or conspiracy, it being enough if it proves
beyond reasonable doubt a pattern of overt or ciminal acts indicative of
the overall unlawful scheme or conspiracy. As far as the acts constituting
the pattern are concerned, however, the elements of the crime must be
proved and the requisite mens rea must be shown.
Indeed, §2 provides that -
Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, shall be
considered by the court.
The application of mitigating and extenuating circumstances in the
Revised Penal Code to prosecutions under the Anti-Plunder Law
indicates quite clearly that mens rea is an element of plunder since the
degree of responsibility of the offender is determined by his criminal
intent. It is true that §2 refers to "any person who participates with the
said public officer in the commission of an offense contributing to the
crime of plunder." There is no reason to believe, however, that it does not
apply as well to the public officer as principal in the crime. As Justice
Holmes said: "We agree to all the generalities about not supplying
criminal laws with what they omit, but there is no canon against using
common sense in construing laws as saying what they obviously mean."35
Finally, any doubt as to whether the crime of plunder is a malum in
se must be deemed to have been resolved in the affirmative by the
decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are
punished with death as a straight penalty in R.A. No. 7659. Referring to
these groups of heinous crimes, this Court held in People v. Echegaray:36
The evil of a crime may take various forms. There are crimes that are, by
their very nature, despicable, either because life was callously taken or
the victim is treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her growth as a human
being . . . . Seen in this light, the capital crimes of kidnapping and serious
illegal detention for ransom resulting in the death of the victim or the
victim is raped, tortured, or subjected to dehumanizing acts; destructive
arson resulting in death; and drug offenses involving minors or resulting
in the death of the victim in the case of other crimes; as well as murder,
rape, parricide, infanticide, kidnapping and serious illegal detention,
where the victim is detained for more than three days or serious physical
injuries were inflicted on the victim or threats to kill him were made or the
victim is a minor, robbery with homicide, rape or intentional mutilation,
destructive arson, and carnapping where the owner, driver or occupant of
the carnapped vehicle is killed or raped, which are penalized by reclusion
perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the
significance and implications of the subject criminal acts in the scheme of
the larger socio-political and economic context in which the state finds
itself to be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt tyrannical rule
that bankrupted the government and impoverished the population, the
Philippine Government must muster the political will to dismantle the
culture of corruption, dishonesty, greed and syndicated criminality that so
deeply entrenched itself in the structures of society and the psyche of the
populace. [With the government] terribly lacking the money to provide
even the most basic services to its people, any form of misappropriation
or misapplication of government funds translates to an actual threat to the
very existence of government, and in turn, the very survival of the people
it governs over. Viewed in this context, no less heinous are the effects
and repercussions of crimes like qualified bribery, destructive arson
resulting in death, and drug offenses involving government officials,
employees or officers, that their perpetrators must not be allowed to
cause further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous
offense implies that it is a malum in se. For when the acts punished are
inherently immoral or inherently wrong, they are mala in se37 and it does
not matter that such acts are punished in a special law, especially since
in the case of plunder the predicate crimes are mainly mala in se. Indeed,
it would be absurd to treat prosecutions for plunder as though they are
mere prosecutions for violations of the Bouncing Check Law (B.P. Blg.
22) or of an ordinance against jaywalking, without regard to the inherent
wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the
amendatory law of RA 7080, on constitutional grounds. Suffice it to say
however that it is now too late in the day for him to resurrect this long
dead issue, the same having been eternally consigned by People v.
Echegaray38 to the archives of jurisprudential history. The declaration of
this Court therein that RA 7659 is constitutionally valid stands as a
declaration of the State, and becomes, by necessary effect, assimilated
in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene
profligacy of officials in high places which have shaken its very
foundation. The anatomy of graft and corruption has become more
elaborate in the corridors of time as unscrupulous people relentlessly
contrive more and more ingenious ways to bilk the coffers of the
government. Drastic and radical measures are imperative to fight the
increasingly sophisticated, extraordinarily methodical and economically
catastrophic looting of the national treasury. Such is the Plunder Law,
especially designed to disentangle those ghastly tissues of grand-scale
corruption which, if left unchecked, will spread like a malignant tumor and
ultimately consume the moral and institutional fiber of our nation. The
Plunder Law, indeed, is a living testament to the will of the legislature to
ultimately eradicate this scourge and thus secure society against the
avarice and other venalities in public office.
These are times that try men's souls. In the checkered history of this
nation, few issues of national importance can equal the amount of
interest and passion generated by petitioner's ignominious fall from the
highest office, and his eventual prosecution and trial under a virginal
statute. This continuing saga has driven a wedge of dissension among
our people that may linger for a long time. Only by responding to the
clarion call for patriotism, to rise above factionalism and prejudices, shall
we emerge triumphant in the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise
known as the Plunder Law, as amended by RA 7659, is
CONSTITUTIONAL. Consequently, the petition to declare the law
unconstitutional is DISMISSED for lack of merit.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 167011 April 30, 2008
SPOUSES CARLOS S. ROMUALDEZ and ERLINDA R.
ROMUALDEZ, petitioners,
vs.
COMMISSION ON ELECTIONS and DENNIS GARAY, respondents.
DECISION
CHICO-NAZARIO, J.:
This treats of the Petition for Review on Certiorari with a prayer for the
issuance of a Temporary Restraining Order and/or Writ of Preliminary
Injunction filed by petitioners Spouses Carlos S. Romualdez and Erlinda
R. Romualdez seeking to annul and set aside the Resolutions, dated 11
June 20041 and 27 January 20052 of the Commission on Elections
(COMELEC) in E.O. Case No. 2000-36. In the Resolution of 11 June
2004, the COMELEC En Bancdirected the Law Department to file the
appropriate Information with the proper court against petitioners Carlos S.
Romualdez and Erlinda Romualdez for violation of Section 10(g) and
(j)3 in relation to Section 45(j)4 of Republic Act No. 8189, otherwise known
as The Voter’s Registration Act of 1996.5 Petitioners’ Motion for
Reconsideration thereon was denied.
The factual antecedents leading to the instant Petition are presented
hereunder:
On 12 July 2000, private respondent Dennis Garay, along with Angelino
Apostol6 filed a Complaint-Affidavit7 with the COMELEC thru the Office of
the Election Officer in Burauen, Leyte, charging petitioners with violation
of Section 261(y)(2)8 and Section 261(y)(5)9 of the Omnibus Election
Code, similarly referred to as Batas Pambansa Blg. 881; and Section
1210 of Republic Act No. 8189.
Private respondent deposed, inter alia, that: petitioners are of legal ages
and residents of 113 Mariposa Loop, Mariposa Street, Bagong Lipunan
ng Crame, Quezon City; on 9 May 2000 and 11 May 2000, petitioners
Carlos S. Romualdez and Erlinda R. Romualdez, applied for registration
as new voters with the Office of the Election Officer of Burauen, Leyte, as
evidenced by Voter Registration Record Nos. 42454095 and 07902952,
respectively; in their sworn applications, petitioners made false and
untruthful representations in violation of Section 1011 of Republic Act Nos.
8189, by indicating therein that they are residents of 935 San Jose Street,
Burauen, Leyte, when in truth and in fact, they were and still are residents
of 113 Mariposa Loop, Mariposa Street, Bagong Lipunan ng Crame,
Quezon City, and registered voters of Barangay Bagong Lipunan ng
Crame, District IV, Quezon City, Precinct No. 4419-A, as evidenced by
Voter Registration Record Nos. 26195824 and 26195823; and that
petitioners, knowing fully well said truth, intentionally and willfully, did not
fill the blank spaces in said applications corresponding to the length of
time which they have resided in Burauen, Leyte. In fine, private
respondent charged petitioners, to wit:
Respondent-spouses, Carlos Sison Romualdez and Erlinda
Reyes Romualdez committed and consummated election
 offenses in violation of our election laws, specifically, Sec. 261,
paragraph (y), subparagraph (2), for knowingly making any false
or untruthful statements relative to any data or information
required in the application for registration, and of Sec. 261,
paragraph (y), subparagraph (5), committed by any person who,
being a registered voter, registers anew without filing an
application for cancellation of his previous registration, both of the
Omnibus Election Code (BP Blg. 881), and of Sec. 12, RA 8189
(Voter Registration Act) for failure to apply for transfer of
registration records due to change of residence to another city or
municipality."12
The Complaint-Affidavit contained a prayer that a preliminary
investigation be conducted by the COMELEC, and if the evidence so
warrants, the corresponding Information against petitioners be filed
before the Regional Trial Court (RTC) for the prosecution of the same.
Petitioners filed a Joint Counter-Affidavit with Motion to Dismiss13 dated 2
April 2001. They contended therein that they did not make any false or
untruthful statements in their application for registration. They avowed
that they intended to reside in Burauen, Leyte, since the year 1989. On 9
May 2000, they took actual residence in Burauen, Leyte, by leasing for
five (5) years, the house of Juanito and Fe Renomeron at No. 935, San
Jose Street in Burauen, Leyte. On even date, the Barangay District III
Council of Burauen passed a Resolution of Welcome, expressing therein
its gratitude and appreciation to petitioner Carlos S. Romualdez for
choosing the Barangay as his official residence.14
On 28 November 2003, Atty. Maria Norina S. Tangaro-Casingal,
COMELEC Investigating Officer, issued a Resolution, recommending to
the COMELEC Law Department (Investigation and Prosecution Division),
the filing of the appropriate Information against petitioners, disposing,
thus:
PREMISES CONSIDERED, the Law Department (Investigation
and Prosecution Division), RECOMMENDS to file the necessary
information against Carlos Sison Romualdez before the proper
Regional Trial Court for violation of Section 10 (g) and (j) in
relation to Section 45 (j) of Republic Act 8189 and to authorize
the Director IV of the Law Department to designate a Comelec
Prosecutor to handle the prosecution of the case with the duty to
submit periodic report after every hearing of the case.15
On 11 June 2004, the COMELEC En Banc found no reason to depart
from the recommendatory Resolution of 28 November 2003, and
ordered, viz:
WHEREFORE, premises considered, the Law Department is
hereby directed to file the appropriate information with the proper
court against respondents CARLOS S. ROMUALDEZ AND
ERLINDA ROMUALDEZ for violation of Section 10 (g) and (j) in
relation to Section 45 (j) of the Republic Act No. 8189.16
Petitioners filed a Motion for Reconsideration thereon.
Acting on the Motion, the COMELEC found no cogent reason to disturb
the assailed En Banc Resolution of 11 June 2004,17 rationalizing, thus:
However, perusal of the records reveal (sic) that the arguments
and issues raised in the Motion for Reconsideration are merely a
rehash of the arguments advanced by the Respondents in [their]
Memorandum received by the Law Department on 17 April 2001,
the same [w]as already considered by the Investigating Officer
and was discussed in her recommendation which eventually was
made as the basis for the En Banc’s resolution.
As aptly observed by the Investigating Officer, the filing of request
for the cancellation and transfer of Voting Registration Record
does not automatically cancel the registration records. The fact
remains that at the time of application for registration as new
voter of the herein Respondents on May 9 and 11, 2001 in the
Office of Election Officer of Burauen, Leyte their registration in
Barangay 4419-A, Barangay Bagong Lipunan ng Crame Quezon
City was still valid and subsisting.18
On 12 January 2006, Alioden D. Dalaig, Director IV, Law Department of
the COMELEC filed with the RTC, Burauen, Leyte, separate Informations
against petitioner Carlos S. Romualdez19 for violation of Section 10(g), in
relation to Section 45(j) of Republic Act No. 8189, and against petitioner
Erlinda R. Romualdez20 for violation of Section 10(g), in relation to
Section 45(j) of Republic Act No. 8189, subsequently docketed as Crim.
Case No. BN-06-03-4185 and Crim. Case No. BN-06-03-4183,
respectively. Moreover, separate Informations for violation of Section
10(j), in relation to Section 45(j) of Republic Act No. 8189 were filed
against petitioners.21
Hence, petitioners come to us via the instant Petition, submitting the
following arguments:
I petitioners are of the view that they were not accorded due process of
RESPONDENT COMMISSION ON ELECTIONS GRAVELY
ABUSED ITS DISCRETION AMOUNTING TO LACK OF OR IN
EXCESS OF ITS JURISDICTION; and
II
COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT
PREMISED ITS RESOLUTION ON A MISAPPREHENSION OF
FACTS AND FAILED TO CONSIDER CERTAIN RELEVANT
FACTS THAT WOULD JUSTIFY A DIFFERENT
CONCLUSION.22
On 4 May 2006, petitioners filed a Motion Reiterating Prayer for Issuance
of Writ of Preliminary Injunction and to Cite for Indirect
Contempt,23 alleging that two separate Informations, both dated 12
January 2006, were filed with the RTC by the COMELEC against
petitioner Carlos S. Romualdez for violation of Section 10(j), in relation to
Section 45(j) of Republic Act No. 8189, in Criminal Case No. BN-06-03-
9184; and for violation of Section 10(g), in relation to Section 45(j) of
Republic Act No. 8189, in Criminal Case No. BN-06-03-9185. Similarly,
the Motion alleged that the COMELEC filed with the RTC, two separate
Informations, both dated 12 January 2006, against petitioner Erlinda R.
Romualdez, charging her with the same offenses as those charged
against petitioner Carlos S. Romualdez, and thereafter, docketed as
Criminal Case No. BN-06-03-9182, and No. BN-06-03-9183.
On 20 June 2006, this Court issued a Resolution24 denying for lack of
merit petitioners’ Motion Reiterating Prayer for Issuance of Writ of
Preliminary Injunction and to Cite for Indirect Contempt.
We shall now resolve, in seriatim, the arguments raised by petitioners.
Petitioners contend that the election offenses for which they are charged
by private respondent are entirely different from those which they stand to
be accused of before the RTC by the COMELEC. According to
petitioners, private respondent’s complaint charged them for allegedly
violating, to wit: 1) Section 261(y)(2) and Section 261(y)(5) of the
Omnibus Election Code, and 2) Section 12 of the Voter’s Registration
Act; however, the COMELEC En Bancdirected in the assailed
Resolutions, that they be charged for violations of Section 10(g) and (j), in
relation to Section 45(j) of the Voter’s Registration Act. Essentially,
law. Specifically, their right to refute or submit documentary evidence
against the new charges which COMELEC ordered to be filed against
them. Moreover, petitioners insist that Section 45(j) of the Voter’s
Registration Act is vague as it does not refer to a definite provision of the
law, the violation of which would constitute an election offense; hence, it
runs contrary to Section 14(1)25 and Section 14(2),26 Article III of the 1987
Constitution.
We are not persuaded.
First. The Complaint-Affidavit filed by private respondent with the
COMELEC is couched in a language which embraces the allegations
necessary to support the charge for violation of Section 10(g) and (j), in
relation to Section 45(j) of Republic Act No. 8189.
A reading of the relevant laws is in order, thus:
Section 10(g) and Section 10(j) of Republic Act No. 8189, provide as
follows:
SEC. 10 – Registration of Voters. - A qualified voter shall be
registered in the permanent list of voters in a precinct of the city
or municipality wherein he resides to be able to vote in any
election. To register as a voter, he shall personally accomplish an
application form for registration as prescribed by the Commission
in three (3) copies before the Election Officer on any date during
office hours after having acquired the qualifications of a voter.
The application shall contain the following data:
xxxx
(g) Periods of residence in the Philippines and in the place of
registration;
xxxx
(j) A statement that the application is not a registered voter of any
precinct;
 The application for registration shall contain three (3) specimen
signatures of the applicant, clear and legible rolled prints of his
left and right thumbprints, with four identification size copies of his
latest photograph, attached thereto, to be taken at the expense of
the Commission.
Before the applicant accomplishes his application for registration,
the Election Officer shall inform him of the qualifications and
disqualifications prescribed by law for a voter, and thereafter, see
to it that the accomplished application contains all the data
therein required and that the applicant’s specimen signatures,
fingerprints, and photographs are properly affixed in all copies of
the voter’s application.
Moreover, Section 45(j) of the same Act, recites, thus:
SEC. 45. Election Offense. – The following shall be considered
election offenses under this Act:
xxxx
(j) Violation of any of the provisions of this Act.
Significantly, the allegations in the Complaint-Affidavit which was filed
with the Law Department of the COMELEC, support the charge directed
by the COMELEC En Banc to be filed against petitioners with the RTC.
Even a mere perusal of the Complaint-Affidavit would readily show that
Section 10 of Republic Act No. 8189 was specifically mentioned therein.
On the matter of the acts covered by Section 10(g) and (j), the Complaint-
Affidavit, spells out the following allegations, to wit:
5. Respondent-spouses made false and untruthful
representations in their applications (Annexes "B" and "C") in
violation of the requirements of Section 10, RA 8189 (The Voter’s
Registration Act):
5.1 Respondent-spouses, in their sworn applications
(Annexes "B" and "C", claimed to be residents of 935 San
Jose [S]treet, Burauen, Leyte, when in truth and in fact,
they were and still are residents of 113 Mariposa Loop,
Mariposa [S]treet, Bagong Lipunan ng Crame, Quezon
City and registered voters of Barangay Bagong Lipunan
ng Crame, District IV, Quezon City, Precinct No. 4419-A,
a copy of the Certification issued by Hon. Emmanuel V.
Gozon, Punong Barangay, Bagong Lipunan ng Crame,
Quezon City is hereto attached and made an integral part
hereof, as Annex "D";
5.2 Respondent-spouses knowing fully well said truth,
intentionally and willfully, did not fill the blank spaces in
their applications (Annexes "B" and "C") corresponding to
the length of time they have resided in Burauen, Leyte;
6. Respondent-spouses, in (sic) all intents and purposes, were
and still are residents and registered voters of Quezon City, as
evidenced by Voter Registration Record Nos. 26195824 and
26195823, respectively; photocopies of which are hereto attached
as Annexes "E" and "F"[.] Likewise, attached is a "Certification"
(Annex "G") of Ms. Evelyn B. Bautista, Officer-in-Charge of the
Office of the Election Officer, Fourth District, Quezon City, dated
May 31, 2000, together with a certified copy of the computer print-
out of the list of voters of Precinct No. 4419-A (Annex "G-1" )
containing the names of voters Carlos Romualdez and Erlinda
Reyes Romualdez. The Certification reads as follows:
"THIS IS TO CERTIFY that as per office record MR.
CARLOS ROMUALDEZ and MS. ERLINDA REYES
ROMUALDEZ are registered voters of Barangay Bagong
Lipunan ng Crame, District IV, Quezon City, Precinct
Number 4419A with voters affidavit serial nos. 26195824
and 26195823, respectively.
This certification is issued for whatever legal purpose it
may serve."
7. Respondent-spouses, registered as new voters of the
Municipality of Burauen, Leyte, [in spite of] the fact that they were
and still are, registered voters of Quezon City as early as June
22, 1997;
7.1 That, Double Registration is an election offense.
A person qualified as a voter is only allowed to register
once.
 If a person registers anew as a voter in spite of a
subsisting registration, the new application for registration
will be disapproved. The registrant is also liable not only
for an election offense of double registration, but also for
another election offense of knowingly making any false or
untruthful statement relative to any data or information
required in the application for registration.
In fact, when a person applies for registration as a voter,
he or she fills up a Voter Registration Record form in his
or her own handwriting, which contains a Certification
which reads:
"I do solemnly swear that the above statements regarding
my person are true and correct; that I possess all the
qualifications and none of the disqualifications of a voter;
that the thumbprints, specimen signatures and
photographs appearing herein are mine; and that I am not
registered as a voter in any other precinct."27
Petitioners cannot be said to have been denied due process on the claim
that the election offenses charged against them by private respondent
are entirely different from those for which they stand to be accused of
before the RTC, as charged by the COMELEC. In the first place, there
appears to be no incongruity between the charges as contained in the
Complaint-Affidavit and the Informations filed before the RTC,
notwithstanding the denomination by private respondent of the alleged
violations to be covered by Section 261(y)(2) and Section 261(y)(5) of the
Omnibus Election Code and Section 12 of Republic Act No. 8189.
Evidently, the Informations directed to be filed by the COMELEC against
petitioners, and which were, in fact, filed with the RTC, were based on the
same set of facts as originally alleged in the private respondent’s
Complaint-Affidavit.
Petitioners buttress their claim of lack of due process by relying on the
case of Lacson v. Executive Secretary.28Citing Lacson, petitioners argue
that the real nature of the criminal charge is determined by the actual
recital of facts in the Complaint or Information; and that the object of such
written accusations was to furnish the accused with such a description of
the charge against him, as will enable him to make his defense. Let it be
said that, in Lacson, this court resolved the issue of whether under the
allegations in the subject Informations therein, it is the Sandiganbayan or
the Regional Trial Court which has jurisdiction over the multiple murder
case against therein petitioner and intervenors. In Lacson, we
underscored the elementary rule that the jurisdiction of a court is
determined by the allegations in the Complaint or Information, and not by
the evidence presented by the parties at the trial.29 Indeed, in Lacson, we
articulated that the real nature of the criminal charge is determined not
from the caption or preamble of the Information nor from the specification
of the provision of law alleged to have been violated, they being
conclusions of law, but by the actual recital of facts in the Complaint or
Information.30
Petitioners’ reliance on Lacson, however, does not support their claim of
lack of due process because, as we have said, the charges contained in
private respondent’s Complaint-Affidavit and the charges as directed by
the COMELEC to be filed are based on the same set of facts. In fact, the
nature of the criminal charges in private respondent’s Complaint-Affidavit
and that of the charges contained in the Informations filed with the RTC,
pursuant to the COMELEC Resolution En Banc are the same, such that,
petitioners cannot claim that they were not able to refute or submit
documentary evidence against the charges that the COMELEC filed with
the RTC. Petitioners were afforded due process because they were
granted the opportunity to refute the allegations in private respondent’s
Complaint-Affidavit. On 2 April 2001, in opposition to the Complaint-
Affidavit, petitioners filed a Joint Counter-Affidavit with Motion to Dismiss
with the Law Department of the COMELEC. They similarly filed a
Memorandum before the said body. Finding that due process was not
dispensed with under the circumstances in the case at bar, we agree with
the stance of the Office of the Solicitor General that petitioners were
reasonably apprised of the nature and description of the charges against
them. It likewise bears stressing that preliminary investigations were
conducted whereby petitioners were informed of the complaint and of the
evidence submitted against them. They were given the opportunity to
adduce controverting evidence for their defense. In all these stages,
petitioners actively participated.
The instant case calls to our minds Orquinaza v. People,31 wherein the
concerned police officer therein designated the offense charged as
sexual harassment; but, the prosecutor found that there was no
transgression of the anti-sexual harassment law, and instead, filed an
Information charging therein petitioner with acts of lasciviousness. On a
claim that there was deprivation of due process, therein petitioner argued
that the Information for acts of lasciviousness was void as the preliminary
investigation conducted was for sexual harassment. The court held that
the designation by the police officer of the offense is not conclusive as it
is within the competence of the prosecutor to assess the evidence
submitted and determine therefrom the appropriate offense to be
charged.
Accordingly, the court pronounced that the complaint contained all the
allegations to support the charge of acts of lasciviousness under the
Revised Penal Code; hence, the conduct of another preliminary
investigation for the offense of acts of lasciviousness would be a futile
exercise because the complainant would only be presenting the same
facts and evidence which have already been studied by the
prosecutor.32 The court frowns upon such superfluity which only serves to
delay the prosecution and disposition of the criminal complaint.33
Second. Petitioners would have this court declare Section 45(j) of
Republic Act No. 8189 vague, on the ground that it contravenes the fair
notice requirement of the 1987 Constitution, in particular, Section 14(1)
and Section 14(2), Article III of thereof. Petitioners submit that Section
45(j) of Republic Act No. 8189 makes no reference to a definite provision
of the law, the violation of which would constitute an election offense.
We are not convinced.
The void-for-vagueness doctrine holds that a law is facially invalid if men
of common intelligence must necessarily guess at its meaning and differ
as to its application.34 However, this Court has imposed certain limitations
by which a criminal statute, as in the challenged law at bar, may be
scrutinized. This Court has declared that facial invalidation35 or an "on-its-
face" invalidation of criminal statutes is not appropriate.36 We have so
enunciated in no uncertain terms in Romualdez v.
Sandiganbayan, 37 thus:
In sum, the doctrines of strict scrutiny, overbreadth, and
vagueness are analytical tools developed for testing "on their
faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to
do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that 'one to whom
application of a statute is constitutional will not be heard to attack
the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its
application might be unconstitutional.' As has been pointed out,
'vagueness challenges in the First Amendment context, like
overbreadth challenges typically produce facial invalidation, while
statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant.'"
(underscoring supplied)
"To this date, the Court has not declared any penal law
unconstitutional on the ground of ambiguity." While mentioned in
passing in some cases, the void-for-vagueness concept has yet
to find direct application in our jurisdiction. In Yu Cong Eng v.
Trinidad, the Bookkeeping Act was found unconstitutional
because it violated the equal protection clause, not because it
was vague. Adiong v. Comelec decreed as void a mere Comelec
Resolution, not a statute. Finally, Santiago v. Comelec held that a
portion of RA 6735 was unconstitutional because of undue
delegation of legislative powers, not because of vagueness.
Indeed, an "on-its-face" invalidation of criminal statutes
would result in a mass acquittal of parties whose cases may
not have even reached the courts. Such invalidation would
constitute a departure from the usual requirement of "actual
case and controversy" and permit decisions to be made in a
sterile abstract context having no factual concreteness.
In Younger v. Harris, this evil was aptly pointed out by the U.S.
Supreme Court in these words:
"[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task
for the judiciary. The combination of the relative remoteness of
the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of
the required line-by-line analysis of detailed statutes, x x x
ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be
decided."
For this reason, generally disfavored is an on-its-face
invalidation of statutes, described as a "manifestly strong
medicine" to be employed "sparingly and only as a last
resort." In determining the constitutionality of a statute,
therefore, its provisions that have allegedly been violated
must be examined in the light of the conduct with which the
defendant has been charged. (Emphasis supplied.)
At the outset, we declare that under these terms, the opinions of the
dissent which seek to bring to the fore the purported ambiguities of a long
list of provisions in Republic Act No. 8189 can be deemed as a facial
challenge. An appropriate "as applied" challenge in the instant Petition
should be limited only to Section 45 (j) in relation to Sections 10 (g) and
(j) of Republic Act No. 8189—the provisions upon which petitioners are
charged. An expanded examination of the law covering provisions which
are alien to petitioners’ case would be antagonistic to the rudiment that
for judicial review to be exercised, there must be an existing case or
controversy that is appropriate or ripe for determination, and not
conjectural or anticipatory.
We further quote the relevant ruling in David v. Arroyo on the proscription
anent a facial challenge:38
Moreover, the overbreadth doctrine is not intended for testing the
validity of a law that "reflects legitimate state interest in
maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection
and rebellion are considered "harmful" and "constitutionally
unprotected conduct." In Broadrick v. Oklahoma, it was held:
It remains a matter of no little difficulty to determine when a law
may properly be held void on its face and when such summary
action is inappropriate. But the plain import of our cases is, at
the very least, that facial overbreadth adjudication is an
exception to our traditional rules of practice and that its
function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to
sanction moves from pure speech toward conduct and that
conduct even if expressive falls within the scope of
otherwise valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases
involving statutes which, by their terms, seek to regulate only
"spoken words" and again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to
protected conduct." Here, the incontrovertible fact remains that
PP 1017 pertains to a spectrum of conduct, not free speech,
which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly
strong medicine," to be used "sparingly and only as a last
resort," and is "generally disfavored;" The reason for this is
obvious. Embedded in the traditional rules governing
constitutional adjudication is the principle that a person to whom a
law may be applied will not be heard to challenge a law on the
ground that it may conceivably be applied unconstitutionally to
others, i.e., in other situations not before the Court. A writer
and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is
that it marks an exception to some of the usual rules of
constitutional litigation. Ordinarily, a particular litigant claims
that a statute is unconstitutional as applied to him or her; if
the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its
improper applications on a case to case basis. Moreover,
challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court
invalidates the entire statute "on its face," not merely "as applied
for" so that the overbroad law becomes unenforceable until a
properly authorized court construes it more narrowly. The factor
that motivates courts to depart from the normal adjudicatory rules
is the concern with the "chilling;" deterrent effect of the overbroad
statute on third parties not courageous enough to bring suit. The
Court assumes that an overbroad laws "very existence may
cause others not before the court to refrain from constitutionally
protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those
third parties.
In other words, a facial challenge using the overbreadth doctrine
will require the Court to examine PP 1017 and pinpoint its flaws
and defects, not on the basis of its actual operation to petitioners,
but on the assumption or prediction that its very existence may
cause others not before the Court to refrain from
constitutionally protected speech or expression.
Xxx xxx xxx
And third, a facial challenge on the ground of overbreadth is the
most difficult challenge to mount successfully, since the
 challenger must establish that there can be no instance when
the assailed law may be valid. Here, petitioners did not even
attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the
ground of vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness
doctrine" which holds that "a law is facially invalid if men of
common intelligence must necessarily guess at its meaning
and differ as to its application." It is subject to the same
principles governing overbreadth doctrine. For one, it is also an
analytical tool for testing "on their faces" statutes in free speech
cases. And like overbreadth, it is said that a litigant may
challenge a statute on its face only if it is vague in all its
possible applications.
Be that as it may, the test in determining whether a criminal statute is
void for uncertainty is whether the language conveys a sufficiently definite
warning as to the proscribed conduct when measured by common
understanding and practice.39 This Court has similarly stressed that the
vagueness doctrine merely requires a reasonable degree of certainty for
the statute to be upheld - not absolute precision or mathematical
exactitude.40
As structured, Section 4541 of Republic Act No. 8189 makes a recital of
election offenses under the same Act. Section 45(j) is, without doubt,
crystal in its specification that a violation of any of the provisions of
Republic Act No. 8189 is an election offense. The language of Section
45(j) is precise. The challenged provision renders itself to no other
interpretation. A reading of the challenged provision involves no
guesswork. We do not see herein an uncertainty that makes the same
vague.
Notably, herein petitioners do not cite a word in the challenged provision,
the import or meaning of which they do not understand. This is in stark
contrast to the case of Estrada v. Sandiganbayan42 where therein
petitioner sought for statutory definition of particular words in the
challenged statute. Even then, the Court in Estrada rejected the
argument.
This Court reasoned:
The rationalization seems to us to be pure sophistry. A statute is
not rendered uncertain and void merely because general
terms are used therein, or because of the employment of
terms without defining them; much less do we have to define
every word we use. Besides, there is no positive
constitutional or statutory command requiring the legislature
to define each and every word in an enactment.Congress is
not restricted in the form of expression of its will, and its inability
to so define the words employed in a statute will not necessarily
result in the vagueness or ambiguity of the law so long as the
legislative will is clear, or at least, can be gathered from the whole
act, which is distinctly expressed in the Plunder Law."
Moreover, it is a well-settled principle of legal hermeneutics
that words of a statute will be interpreted in their natural,
plain and ordinary acceptation and signification, unless it is
evident that the legislature intended a technical or special
legal meaning to those words. The intention of the lawmakers
who are, ordinarily, untrained philologists and lexicographers to
use statutory phraseology in such a manner is always presumed.
Perforce, this Court has underlined that an act will not be held invalid
merely because it might have been more explicit in its wordings or
detailed in its provisions, especially where, because of the nature of the
act, it would be impossible to provide all the details in advance as in all
other statutes.43
The evident intent of the legislature in including in the catena of election
offenses the violation of any of the provisions of Republic Act No. 8189, is
to subsume as punishable, not only the commission of proscribed acts,
but also the omission of acts enjoined to be observed. On this score, the
declared policy of Republic Act No. 8189 is illuminating. The law
articulates the policy of the State to systematize the present method of
registration in order to establish a clean, complete, permanent and
updated list of voters. A reading of Section 45 (j) conjointly with the
provisions upon which petitioners are charged, i.e., Sections 10 (g) and
(j) would reveal that the matters that are required to be set forth under the
aforesaid sections are crucial to the achievement of a clean, complete,
permanent and updated list of voters. The factual information required by
the law is sought not for mere embellishment.
There is a definitive governmental purpose when the law requires that
such facts should be set forth in the application. The periods of residence
in the Philippines and in the place of registration delve into the matter of
residency, a requisite which a voter must satisfy to be deemed a qualified
voter and registered in the permanent list of voters in a precinct of the city
or municipality wherein he resides. Of even rationality exists in the case
of the requirement in Section 10 (j), mandating that the applicant should
state that he/she is not a registered voter of any precinct. Multiple voting
by so-called flying voters are glaring anomalies which this country strives
to defeat. The requirement that such facts as required by Section 10 (g)
and Section 10 (j) be stated in the voter’s application form for registration
is directly relevant to the right of suffrage, which the State has the right to
regulate.
It is the opportune time to allude to the case of People v.
Gatchalian44 where the therein assailed law contains a similar provision
as herein assailed before us. Republic Act No. 602 also penalizes any
person who willfully violates any of the provisions of the Act. The Court
dismissed the challenged, and declared the provision constitutional. The
Court in Gatchalian read the challenged provision, "any of the provisions
of this [A]ct" conjointly with Section 3 thereof which was the pertinent
portion of the law upon which therein accused was prosecuted.
Gatchalian considered the terms as all-embracing; hence, the same must
include what is enjoined in Section 3 thereof which embodies the very
fundamental purpose for which the law has been adopted. This Court
ruled that the law by legislative fiat intends to punish not only those
expressly declared unlawful but even those not so declared but are
clearly enjoined to be observed to carry out the fundamental purpose of
the law.45 Gatchalian remains good law, and stands unchallenged.
It also does not escape the mind of this Court that the phraseology in
Section 45(j) is employed by Congress in a number of our laws.46 These
provisions have not been declared unconstitutional.
Moreover, every statute has in its favor the presumption of validity.47 To
justify its nullification, there must be a clear and unequivocal breach of
the Constitution, and not one that is doubtful, speculative or
argumentative.48 We hold that petitioners failed to overcome the heavy
presumption in favor of the law. Its constitutionality must be upheld in the
absence of substantial grounds for overthrowing the same.
A salient point. Courts will refrain from touching upon the issue of
constitutionality unless it is truly unavoidable and is the very lis mota. In
the case at bar, the lis mota is the alleged grave abuse of discretion of
the COMELEC in finding probable cause for the filing of criminal charges
against petitioners.
Third. Petitioners maintain that the COMELEC En Banc, premised its
finding on a misapprehension of facts, and committed grave abuse of
discretion in directing the filing of Informations against them with the
RTC.
We are once again unimpressed.
The constitutional grant of prosecutorial power in the COMELEC finds
statutory expression under Section 26549 of Batas Pambansa Blg. 881,
otherwise known as the Omnibus Election Code.50 The task of the
COMELEC whenever any election offense charge is filed before it is to
conduct the preliminary investigation of the case, and make a
determination of probable cause. Under Section 8(b), Rule 34 of the
COMELEC Rules of Procedure, the investigating officer makes a
determination of whether there is a reasonable ground to believe that a
crime has been committed.51 In Baytan v. COMELEC,52 this Court,
sufficiently elucidated on the matter of probable cause in the prosecution
of election offenses, viz:
It is also well-settled that the finding of probable cause in the
prosecution of election offenses rests in the COMELEC's sound
discretion. The COMELEC exercises the constitutional authority
to investigate and, where appropriate, prosecute cases for
violation of election laws, including acts or omissions constituting
election frauds, offense and malpractices. Generally, the Court
will not interfere with such finding of the COMELEC absent a
clear showing of grave abuse of discretion. This principle
emanates from the COMELEC's exclusive power to conduct
preliminary investigation of all election offenses punishable under
the election laws and to prosecute the same, except as may
otherwise be provided by law.53
It is succinct that courts will not substitute the finding of probable
cause by the COMELEC in the absence of grave abuse of discretion.
The abuse of discretion must be so patent and gross as to amount
to an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law as where the
power is exercised in an arbitrary and despotic manner by reason of
passion or hostility.54
According to the COMELEC En Banc, the investigating officer, in the
case at bar, held that there was sufficient cause for the filing of criminal
charges against petitioners, and found no reason to depart therefrom.
Without question, on May 9 and 11 of 2001, petitioners applied for
registration as new voters with the Office of the Election Officer of
Burauen, Leyte, notwithstanding the existence of petitioners’ registration
records as registered voters of Precinct No. 4419-A of Barangay Bagong
Lipunan ng Crame, District IV, Quezon City. The directive by the
COMELEC which affirmed the Resolution55 of 28 November 2000 of
Investigating Officer Atty. Tangaro-Casingal does not appear to be
wanting in factual basis, such that a reasonably prudent man would
conclude that there exists probable cause to hold petitioners for trial.
Thus, in the aforesaid Resolution, the Investigating Officer, found:
A violation therefore of Section 10 of Republic Act No. 8189 is an
election offense.
In the instant case, when respondents Carlos Romualdez and
Erlinda Romualdez filed their respective applications for
registration as new voters with the Office of the Election Officer of
Burauen, Leyte on May 9 and 11, 2001, respectively, they stated
under oath that they are not registered voters in other precinct
(VRR Nos. 42454095 and 07902941). However, contrary to their
statements, records show they are still registered voters of
Precinct No. 4419-A, barangay Bagong Lipunan ng Crame,
District IV, Quezon City, as per VRR Nos. 26195825 and
26195823. In other words, respondents’ registration records in
Quezon City is (sic) still in existence.
While it may be true that respondents had written the City
Election Officer of District IV, Quezon City for cancellation of their
voter’s registration record as voter’s (sic) therein, they cannot
presume that the same will be favorably acted upon. Besides, RA
8189 provides for the procedure in cases of transfer of residence
to another city/municipality which must be complied with, to wit:
"Section 12. Change of Residence to Another City or Municipality.
– Any registered voter who has transferred residence to another
city or municipality may apply with the Election Officer of his new
residence for the transfer of his registration records.
The application for transfer of registration shall be subject to the
requirements of notice and hearing and the approval of the
Election Registration Board, in accordance with this Act. Upon
approval, of the application for transfer, and after notice of such
approval to the Election Officer of their former residence of the
voter, said Election Officer shall transmit by registered mail the
voter’s registration record to the Election Officer of the voter’s
new residence."
They cannot claim ignorance of the abovestated provision on the
procedure for transfer of registration records by reason of
transferred new residence to another municipality. Based on the
affidavit executed by one Eufemia S. Cotoner, she alleged that
the refusal of the Assistant Election Officer Ms. Estrella Perez to
accept the letter of respondents was due to improper procedure
because respondents should have filed the required request for
transfer with the Election Officer of Burauen, Leyte. Despite this
knowledge, however, they proceeded to register as new voters of
Burauen, Leyte, notwithstanding the existence of their previous
registrations in Quezon City.
In their subsequent affidavit of Transfer of Voters Registration
under Section 12 of Republic Act 8189, respondents admitted
that they erroneously filed an application as a new voter (sic) with
the office of the Election Officer of Burauen, Leyte, by reason of
an honest mistake, which they now desire to correct.
(underscoring ours).
Respondents lose sight of the fact that a statutory offense, such
as violation of election law, is mala prohibita. Proof of criminal
intent is not necessary. Good faith, ignorance or lack of malice is
beside the point. Commission of the act is sufficient. It is the act
itself that is punished.
xxxx
In view of the foregoing, the Law Department respectfully submits
that there is probable cause to hold respondents Carlos
Romualdez and Erlinda Romualdez for trial in violation of Section
10(g) and (j) in relation to Section 45(j) of Republic Act No. 8189.
There is no doubt that they applied for registration as new voters
of Burauen, Leyte consciously, freely and voluntarily.56
We take occasion to reiterate that the Constitution grants to the
COMELEC the power to prosecute cases or violations of election laws.
Article IX (C), Section 2 (6) of the 1987 Constitution, provides:
 (6) File, upon a verified complaint, or on its own initiative,
petitions in court for inclusion or exclusion of voters; investigate
and where appropriate, prosecute cases or violations of election
laws, including acts or omissions constituting election frauds,
offenses, and malpractices.
This power to prosecute necessarily involves the power to determine who
shall be prosecuted, and the corollary right to decide whom not to
prosecute.57 Evidently, must this power to prosecute also include the right
to determine under which laws prosecution will be pursued. The courts
cannot dictate the prosecution nor usurp its discretionary powers. As a
rule, courts cannot interfere with the prosecutor’s discretion and control of
the criminal prosecution.58Its rationale cannot be doubted. For the
business of a court of justice is to be an impartial tribunal, and not to get
involved with the success or failure of the prosecution to
prosecute.59 Every now and then, the prosecution may err in the selection
of its strategies, but such errors are not for neutral courts to rectify, any
more than courts should correct the blunders of the defense.60
Fourth. In People v. Delgado,61 this Court said that when the COMELEC,
through its duly authorized law officer, conducts the preliminary
investigation of an election offense and upon a prima facie finding of a
probable cause, files the Information in the proper court, said court
thereby acquires jurisdiction over the case. Consequently, all the
subsequent disposition of said case must be subject to the approval of
the court. The records show that Informations charging petitioners with
violation of Section 10(g) and (j), in relation to Section 45(j) of Republic
Act No. 8189 had been filed with the RTC. The case must, thus, be
allowed to take its due course.
It may be recalled that petitioners prayed for the issuance of a Temporary
Restraining Order or Writ of Preliminary Injunction before this Court to
restrain the COMELEC from executing its Resolutions of 11 June 2004
and 27 January 2005. In a Resolution dated 20 June 2006, this Court En
Banc denied for lack of merit petitioners’ Motion Reiterating Prayer for
Issuance of Writ of Preliminary Injunction and to Cite for Indirect
Contempt. Logically, the normal course of trial is expected to have
continued in the proceedings a quo.
WHEREFORE, the Petition is DENIED. The assailed Resolutions, dated
11 June 2004 and 27 January 2005 of the COMELEC En
Banc are AFFIRMED. Costs against petitioners.
SO ORDERED.
G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD
LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER
R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES,
CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND
COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO
ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL
ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL
POLICE, Respondents.
x-------------------------------------x
G.R. No. 171409 May 3, 2006
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO.,
INC., Petitioners,
vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE
DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485 May 3, 2006
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO,
TEODORO A. CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA,
SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO
ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J.
VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO B.
MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ, DARLENE
ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G.
VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA,
FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-BARAQUEL,
IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER
COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL
LIBERTIES REPRESENTED BY AMADO GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ,
JR., SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG,
GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO,
CHIEF PNP, Respondents.
x-------------------------------------x
G.R. No. 171483 May 3, 2006
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON
ELMER C. LABOG AND SECRETARY GENERAL JOEL
MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS –
KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS
NATIONAL PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C.
PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO,
THE HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA,
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO
LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171400 May 3, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN.
GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO
LOMIBAO, Respondents.
G.R. No. 171489 May 3, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.
RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL,
FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C.
BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF,
AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY
AS PNP CHIEF, Respondents.
x-------------------------------------x
G.R. No. 171424 May 3, 2006
LOREN B. LEGARDA, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT
AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS
CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE
NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY
AS CHIEF OF STAFF OF THE ARMED FORCES OF THE
PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid
formula are necessary.1 Superior strength – the use of force – cannot
make wrongs into rights. In this regard, the courts should be vigilant in
safeguarding the constitutional rights of the citizens, specifically their
liberty.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most
relevant. He said: "In cases involving liberty, the scales of justice
should weigh heavily against government and in favor of the poor,
the oppressed, the marginalized, the dispossessed and the weak."
Laws and actions that restrict fundamental rights come to the courts "with
a heavy presumption against their constitutional validity."2
These seven (7) consolidated petitions for certiorari and prohibition allege
that in issuing Presidential Proclamation No. 1017 (PP 1017) and
General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo
committed grave abuse of discretion. Petitioners contend that respondent
officials of the Government, in their professed efforts to defend and
preserve democratic institutions, are actually trampling upon the very
freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern and sabotaging the people’s confidence in government and their
problem. How does the Constitution of a free people combine the degree faith in the future of this country;
of liberty, without which, law becomes tyranny, with the degree of law,
without which, liberty becomes license?3 WHEREAS, these actions are adversely affecting the economy;

On February 24, 2006, as the nation celebrated the 20th Anniversary of WHEREAS, these activities give totalitarian forces of both the
the Edsa People Power I, President Arroyo issued PP 1017 declaring a extreme Left and extreme Right the opening to intensify their
state of national emergency, thus: avowed aims to bring down the democratic Philippine State;

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the WHEREAS, Article 2, Section 4 of the our Constitution makes the
Republic of the Philippines and Commander-in-Chief of the Armed defense and preservation of the democratic institutions and the State the
Forces of the Philippines, by virtue of the powers vested upon me by primary duty of Government;
Section 18, Article 7 of the Philippine Constitution which states that: "The
President. . . whenever it becomes necessary, . . . may call out (the) WHEREAS, the activities above-described, their consequences,
armed forces to prevent or suppress. . .rebellion. . .," and in my capacity ramifications and collateral effects constitute a clear and present
as their Commander-in-Chief, do hereby command the Armed Forces danger to the safety and the integrity of the Philippine State and of the
of the Philippines, to maintain law and order throughout the Filipino people;
Philippines, prevent or suppress all forms of lawless violence as
well as any act of insurrection or rebellion and to enforce obedience
On the same day, the President issued G. O. No. 5 implementing PP
to all the laws and to all decrees, orders and regulations
1017, thus:
promulgated by me personally or upon my direction; and as
provided in Section 17, Article 12 of the Constitution do hereby
declare a State of National Emergency. WHEREAS, over these past months, elements in the political opposition
have conspired with authoritarians of the extreme Left, represented by
the NDF-CPP-NPA and the extreme Right, represented by military
She cited the following facts as bases:
adventurists - the historical enemies of the democratic Philippine State –
and who are now in a tactical alliance and engaged in a concerted and
WHEREAS, over these past months, elements in the political systematic conspiracy, over a broad front, to bring down the duly-
opposition have conspired with authoritarians of the extreme Left constituted Government elected in May 2004;
represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists – the historical enemies of the
WHEREAS, these conspirators have repeatedly tried to bring down our
democratic Philippine State – who are now in a tactical alliance and
republican government;
engaged in a concerted and systematic conspiracy, over a broad front, to
bring down the duly constituted Government elected in May 2004;
WHEREAS, the claims of these elements have been recklessly magnified
by certain segments of the national media;
WHEREAS, these conspirators have repeatedly tried to bring down the
President;
WHEREAS, these series of actions is hurting the Philippine State by
obstructing governance, including hindering the growth of the economy
WHEREAS, the claims of these elements have been recklessly
and sabotaging the people’s confidence in the government and their faith
magnified by certain segments of the national media;
in the future of this country;
WHEREAS, this series of actions is hurting the Philippine State – by
WHEREAS, these actions are adversely affecting the economy;
obstructing governance including hindering the growth of the economy
WHEREAS, these activities give totalitarian forces; of both the extreme
Left and extreme Right the opening to intensify their avowed aims to
bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense
and preservation of the democratic institutions and the State the primary
duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger
to the safety and the integrity of the Philippine State and of the Filipino
people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued
declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of
the powers vested in me under the Constitution as President of the
Republic of the Philippines, and Commander-in-Chief of the Republic of
the Philippines, and pursuant to Proclamation No. 1017 dated February
24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP)
and the Philippine National Police (PNP), to prevent and suppress acts of
terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as
well as the officers and men of the AFP and PNP, to immediately carry
out the necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of
national emergency and after all these petitions had been filed, the
President lifted PP 1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII
of the Constitution, Proclamation No. 1017 dated February 24, 2006, was
issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February
24, 2006, which were issued on the basis of Proclamation No. 1017, the
Armed Forces of the Philippines (AFP) and the Philippine National Police
(PNP), were directed to maintain law and order throughout the
Philippines, prevent and suppress all form of lawless violence as well as
any act of rebellion and to undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed
and quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of
the Republic of the Philippines, by virtue of the powers vested in me by
law, hereby declare that the state of national emergency has ceased
to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5,
respondents stated that the proximate cause behind the executive
issuances was the conspiracy among some military officers, leftist
insurgents of the New People’s Army (NPA), and some members of the
political opposition in a plot to unseat or assassinate President
Arroyo.4 They considered the aim to oust or assassinate the President
and take-over the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General
specified the facts leading to the issuance of PP 1017 and G.O. No.
5. Significantly, there was no refutation from petitioners’ counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity
of calling out the armed forces. He emphasized that none of the
petitioners has shown that PP 1017 was without factual bases. While he
explained that it is not respondents’ task to state the facts behind the
questioned Proclamation, however, they are presenting the same,
narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants
Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members
of the Magdalo Group indicted in the Oakwood mutiny, escaped their
detention cell in Fort Bonifacio, Taguig City. In a public statement, they
vowed to remain defiant and to elude arrest at all costs. They called upon
the people to "show and proclaim our displeasure at the sham regime.
Let us demonstrate our disgust, not only by going to the streets in protest,
but also by wearing red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled
"Oplan Hackle I " which detailed plans for bombings and attacks during
the Philippine Military Academy Alumni Homecoming in Baguio City. The
plot was to assassinate selected targets including some cabinet members
and President Arroyo herself.6 Upon the advice of her security, President
Arroyo decided not to attend the Alumni Homecoming. The next day, at
the height of the celebration, a bomb was found and detonated at the
PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist
safehouse in Batangas province. Found in his possession were two (2)
flash disks containing minutes of the meetings between members of the
Magdalo Group and the National People’s Army (NPA), a tape recorder,
audio cassette cartridges, diskettes, and copies of subversive
documents.7 Prior to his arrest, Lt. San Juan announced through DZRH
that the "Magdalo’s D-Day would be on February 24, 2006, the 20th
Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information
that members of the PNP- Special Action Force were planning to defect.
Thus, he immediately ordered SAF Commanding General Marcelino
Franco, Jr. to "disavow" any defection. The latter promptly obeyed and
issued a public statement: "All SAF units are under the effective control of
responsible and trustworthy officers with proven integrity and
unquestionable loyalty."
On the same day, at the house of former Congressman Peping
Cojuangco, President Cory Aquino’s brother, businessmen and mid-level
government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor
Saycon, longtime Arroyo critic, called a U.S. government official about his
group’s plans if President Arroyo is ousted. Saycon also phoned a man
code-named Delta. Saycon identified him as B/Gen. Danilo Lim,
Commander of the Army’s elite Scout Ranger. Lim said "it was all
systems go for the planned movement against Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided
to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the
Philippines (AFP), that a huge number of soldiers would join the rallies to
provide a critical mass and armed component to the Anti-Arroyo protests
to be held on February 24, 2005. According to these two (2) officers,
there was no way they could possibly stop the soldiers because they too,
were breaking the chain of command to join the forces foist to unseat the
President. However, Gen. Senga has remained faithful to his
Commander-in-Chief and to the chain of command. He immediately took
custody of B/Gen. Lim and directed Col. Querubin to return to the
Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and
revolutionary work within the military and the police establishments in
order to forge alliances with its members and key officials. NPA
spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party
and revolutionary movement and the entire people look forward to the
possibility in the coming year of accomplishing its immediate task of
bringing down the Arroyo regime; of rendering it to weaken and unable to
rule that it will not take much longer to end it."9
On the other hand, Cesar Renerio, spokesman for the National
Democratic Front (NDF) at North Central Mindanao, publicly announced:
"Anti-Arroyo groups within the military and police are growing rapidly,
hastened by the economic difficulties suffered by the families of AFP
officers and enlisted personnel who undertake counter-insurgency
operations in the field." He claimed that with the forces of the national
democratic movement, the anti-Arroyo conservative political parties,
coalitions, plus the groups that have been reinforcing since June 2005, it
is probable that the President’s ouster is nearing its concluding stage in
the first half of 2006.
Respondents further claimed that the bombing of telecommunication
towers and cell sites in Bulacan and Bataan was also considered as
additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is
the raid of an army outpost in Benguet resulting in the death of three (3)
soldiers. And also the directive of the Communist Party of the Philippines
ordering its front organizations to join 5,000 Metro Manila radicals and
25,000 more from the provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security
advisers and several cabinet members to assess the gravity of the
fermenting peace and order situation. She directed both the AFP and the
PNP to account for all their men and ensure that the chain of command
remains solid and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the President
suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the
issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all
programs and activities related to the 20th anniversary celebration
of Edsa People Power I; and revoked the permits to hold rallies issued
earlier by the local governments. Justice Secretary Raul Gonzales stated
that political rallies, which to the President’s mind were organized for
purposes of destabilization, are cancelled.Presidential Chief of Staff
Michael Defensor announced that "warrantless arrests and take-over of
facilities, including media, can already be implemented."11
Undeterred by the announcements that rallies and public assemblies
would not be allowed, groups of protesters (members of Kilusang Mayo
Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo
Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the
intention of converging at the EDSA shrine. Those who were already near
the EDSA site were violently dispersed by huge clusters of anti-riot
police. The well-trained policemen used truncheons, big fiber glass
shields, water cannons, and tear gas to stop and break up the marching
groups, and scatter the massed participants. The same police action was
used against the protesters marching forward to Cubao, Quezon City and
to the corner of Santolan Street and EDSA. That same evening,
hundreds of riot policemen broke up an EDSA celebration rally held along
Ayala Avenue and Paseo de Roxas Street in Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as
the ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested was his companion,
Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of
the Criminal Investigation and Detection Group (CIDG) of the PNP, on
the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in
Manila. The raiding team confiscated news stories by reporters,
documents, pictures, and mock-ups of the Saturday issue. Policemen
from Camp Crame in Quezon City were stationed inside the editorial and
business offices of the newspaper; while policemen from the Manila
Police District were stationed outside the building.13
A few minutes after the search and seizure at the Daily Tribune offices,
the police surrounded the premises of another pro-opposition paper,
Malaya, and its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor,
is "meant to show a ‘strong presence,’ to tell media outlets not to connive
or do anything that would help the rebels in bringing down this
government." The PNP warned that it would take over any media
organization that would not follow "standards set by the government
during the state of national emergency." Director General Lomibao stated
that "if they do not follow the standards – and the standards are - if they
would contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will
recommend a ‘takeover.’" National Telecommunications’ Commissioner
Ronald Solis urged television and radio networks to "cooperate" with the
government for the duration of the state of national emergency. He asked
for "balanced reporting" from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that
his agency will not hesitate to recommend the closure of any broadcast
outfit that violates rules set out for media coverage when the national
security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin
Beltran, representing the Anakpawis Party and Chairman of Kilusang
Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police
showed a warrant for his arrest dated 1985. Beltran’s lawyer explained
that the warrant, which stemmed from a case of inciting to rebellion filed
during the Marcos regime, had long been quashed. Beltran, however, is
not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran,
they were told they could not be admitted because of PP 1017 and G.O.
No. 5. Two members were arrested and detained, while the rest were
dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the
police went after him during a public forum at the Sulo Hotel in Quezon
City. But his two drivers, identified as Roel and Art, were taken into
custody.
Retired Major General Ramon Montaño, former head of the Philippine
Constabulary, was arrested while with his wife and golfmates at the
Orchard Golf and Country Club in Dasmariñas, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro
Casiño and Gabriela Representative Liza Maza. Bayan
Muna Representative Josel Virador was arrested at the PAL Ticket Office
in Davao City. Later, he was turned over to the custody of the House of
Representatives where the "Batasan 5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in
these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the
state of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of
PP 1017 and G.O. No. 5 were filed with this Court against the above-
named respondents. Three (3) of these petitions impleaded President
Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017
on the grounds that (1) it encroaches on the emergency powers of
Congress; (2) itis a subterfuge to avoid the constitutional requirements for
the imposition of martial law; and (3) it violates the constitutional
guarantees of freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares
and Tribune Publishing Co., Inc. challenged the CIDG’s act of raiding
the Daily Tribune offices as a clear case of "censorship" or "prior
restraint." They also claimed that the term "emergency" refers only to
tsunami, typhoon, hurricane and similar occurrences, hence, there is
"absolutely no emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis
Joseph G. Escudero, and twenty one (21) other members of the House of
Representatives, including Representatives Satur Ocampo, Rafael
Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted
that PP 1017 and G.O. No. 5 constitute "usurpation of legislative powers";
"violation of freedom of expression" and "a declaration of martial law."
They alleged that President Arroyo "gravely abused her discretion in
calling out the armed forces without clear and verifiable factual basis of
the possibility of lawless violence and a showing that there is necessity to
do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members
averred that PP 1017 and G.O. No. 5 are unconstitutional
because (1) they arrogate unto President Arroyo the power to enact laws
and decrees; (2) their issuance was without factual basis; and (3) they
violate freedom of expression and the right of the people to peaceably
assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI)
alleged that PP 1017 and G.O. No. 5 are unconstitutional because they
violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article
III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the
Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that
PP 1017 is an "arbitrary and unlawful exercise by the President of her
Martial Law powers." And assuming that PP 1017 is not really a
declaration of Martial Law, petitioners argued that "it amounts to an
exercise by the President of emergency powers without congressional
approval." In addition, petitioners asserted that PP 1017 "goes beyond
the nature and function of a proclamation as defined under the Revised
Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained
that PP 1017 and G.O. No. 5 are "unconstitutional for being violative of
the freedom of expression, including its cognate rights such as freedom
of the press and the right to access to information on matters of public
concern, all guaranteed under Article III, Section 4 of the 1987
Constitution." In this regard, she stated that these issuances prevented
her from fully prosecuting her election protest pending before the
Presidential Electoral Tribunal.
In respondents’ Consolidated Comment, the Solicitor General countered
that: first, the petitions should be dismissed for being
moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda),
171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.)
have no legal standing; third, it is not necessary for petitioners to implead
President Arroyo as respondent; fourth, PP 1017 has constitutional and
legal basis; and fifth, PP 1017 does not violate the people’s right to free
expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the
parties on the above interlocking issues which may be summarized as
follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot
and academic.
 2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.),
and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual bases of PP
1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country
is the concept of judicial review enunciated in Marbury v. Madison.21 This
concept rests on the extraordinary simple foundation --
The Constitution is the supreme law. It was ordained by the people, the
ultimate source of all political authority. It confers limited powers on the
national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve
inviolate the will of the people as expressed in the Constitution. This
power the courts exercise. This is the beginning and the end of the
theory of judicial review.22
But the power of judicial review does not repose upon the courts a "self-
starting capacity."23 Courts may exercise such power only when the
following requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at the
earliest opportunity; and fourth, the decision of the constitutional question
must be necessary to the determination of the case itself.24
Respondents maintain that the first and second requisites are absent,
hence, we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an
opposite legal claims susceptible of judicial resolution. It is "definite and
concrete, touching the legal relations of parties having adverse legal
interest;" a real and substantial controversy admitting of specific
relief.25 The Solicitor General refutes the existence of such actual case or
controversy, contending that the present petitions were rendered "moot
and academic" by President Arroyo’s issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events,26so that a declaration
thereon would be of no practical use or value.27 Generally, courts decline
jurisdiction over such case28 or dismiss it on ground of mootness.29
The Court holds that President Arroyo’s issuance of PP 1021 did not
render the present petitions moot and academic. During the eight (8)
days that PP 1017 was operative, the police officers, according to
petitioners, committed illegal acts in implementing it. Are PP 1017 and
G.O. No. 5 constitutional or valid? Do they justify these alleged
illegal acts? These are the vital issues that must be resolved in the
present petitions. It must be stressed that "an unconstitutional act is
not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative."30
The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if: first, there is a grave violation of
the Constitution;31second, the exceptional character of the situation and
the paramount public interest is involved;32 third, when constitutional
issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public;33and fourth, the case is capable of
repetition yet evading review.34
All the foregoing exceptions are present here and justify this Court’s
assumption of jurisdiction over the instant petitions. Petitioners alleged
that the issuance of PP 1017 and G.O. No. 5 violates the Constitution.
There is no question that the issues being raised affect the public’s
interest, involving as they do the people’s basic rights to freedom of
expression, of assembly and of the press. Moreover, the Court has the
duty to formulate guiding and controlling constitutional precepts, doctrines
or rules. It has the symbolic function of educating the bench and the bar,
and in the present petitions, the military and the police, on the extent of
the protection given by constitutional guarantees.35 And lastly,
respondents’ contested actions are capable of repetition. Certainly, the
petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents
cited Chief Justice Artemio V. Panganiban’s Separate Opinion
in Sanlakas v. Executive Secretary.36 However, they failed to take into
account the Chief Justice’s very statement that an otherwise "moot" case
may still be decided "provided the party raising it in a proper case has
been and/or continues to be prejudiced or damaged as a direct result of
its issuance." The present case falls right within this exception to the
mootness rule pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the
Court deems it imperative to have a more than passing discussion on
legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a
given question."37 In private suits, standing is governed by the "real-
parties-in interest" rule as contained in Section 2, Rule 3 of the 1997
Rules of Civil Procedure, as amended. It provides that "every action
must be prosecuted or defended in the name of the real party in
interest." Accordingly, the "real-party-in interest" is "the party who
stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit."38 Succinctly put, the plaintiff’s
standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a
person who is affected no differently from any other person. He could be
suing as a "stranger," or in the category of a "citizen," or ‘taxpayer." In
either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a "citizen" or
"taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down
in Beauchamp v. Silk,39 where it was held that the plaintiff in a taxpayer’s
suit is in a different category from the plaintiff in a citizen’s suit. In the
former, the plaintiff is affected by the expenditure of public funds,
while in the latter, he is but the mere instrument of the public
concern. As held by the New York Supreme Court in People ex rel Case
v. Collins:40 "In matter of mere public right, however…the people are
the real parties…It is at least the right, if not the duty, of every
citizen to interfere and see that a public offence be properly pursued
and punished, and that a public grievance be remedied." With respect
to taxpayer’s suits, Terr v. Jordan41 held that "the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use
of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with, and
thus hinders the activities of governmental agencies engaged in public
service, the United State Supreme Court laid down the more stringent
"direct injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v.
Ullman.43 The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result
of that action, and it is not sufficient that he has a general interest
common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People
v. Vera,44 it held that the person who impugns the validity of a statute
must have "a personal and substantial interest in the case such that
he has sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such as, Custodio v.
President of the Senate,45 Manila Race Horse Trainers’ Association v. De
la Fuente,46 Pascual v. Secretary of Public Works47 and Anti-Chinese
League of the Philippines v. Felix.48
However, being a mere procedural technicality, the requirement of locus
standi may be waived by the Court in the exercise of its discretion. This
was done in the 1949 Emergency Powers Cases, Araneta v.
Dinglasan,49 where the "transcendental importance" of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec,50 this Court resolved to pass upon the
issues raised due to the "far-reaching implications" of the petition
notwithstanding its categorical statement that petitioner therein had no
personality to file the suit. Indeed, there is a chain of cases where this
liberal policy has been observed, allowing ordinary citizens, members of
Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.51
Thus, the Court has adopted a rule that even where the petitioners have
failed to show direct injury, they have been allowed to sue under the
principle of "transcendental importance." Pertinent are the following
cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled
that the enforcement of the constitutional right to information
and the equitable diffusion of natural resources are matters
of transcendental importance which clothe the petitioner
with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the
Court held that "given the transcendental importance of the
issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack
of direct injury to the parties seeking judicial review" of the
Visiting Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a
showing that "Balikatan 02-01" involves the exercise of Congress’
taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,55that in cases of
transcendental importance, the cases must be settled
promptly and definitely and standing requirements may be
relaxed.
By way of summary, the following rules may be culled from the cases
decided by this Court. Taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue, provided that the following
requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the
validity of the election law in question;
(4) for concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must be
settled early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court’s
attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status
of Kilosbayan as a people’s organization does not give it the requisite
personality to question the validity of the on-line lottery contract, more so
where it does not raise any issue of constitutionality. Moreover, it cannot
sue as a taxpayer absent any allegation that public funds are being
misused. Nor can it sue as a concerned citizen as it does not allege any
specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc.
v. Comelec,57 the Court reiterated the "direct injury" test with respect to
concerned citizens’ cases involving constitutional issues. It held that
"there must be a showing that the citizen personally suffered some actual
or threatened injury arising from the alleged illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the
petitioners who are members of Congress have standing to sue, as they
claim that the President’s declaration of a state of rebellion is a
usurpation of the emergency powers of Congress, thus impairing
their legislative powers. As to petitioners Sanlakas, Partido
Manggagawa, and Social Justice Society, the Court declared them to be
devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and
Llamas, is beyond doubt. The same holds true with petitioners in G.R.
No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They
alleged "direct injury" resulting from "illegal arrest" and "unlawful search"
committed by police operatives pursuant to PP 1017. Rightly so, the
Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was
usurpation of legislative powers. They also raised the issue of whether or
not the concurrence of Congress is necessary whenever the alarming
powers incident to Martial Law are used. Moreover, it is in the interest of
justice that those affected by PP 1017 can be represented by their
Congressmen in bringing to the attention of the Court the alleged
violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule
in Philconsa v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners
in the Philippines, Inc. v. Secretary of Agrarian Reform,62 Basco v.
Philippine Amusement and Gaming Corporation,63 and Tañada v.
Tuvera,64 that when the issue concerns a public right, it is sufficient that
the petitioner is a citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5
violated its right to peaceful assembly may be deemed sufficient to give it
legal standing. Organizations may be granted standing to assert the
rights of their members.65 We take judicial notice of the announcement
by the Office of the President banning all rallies and canceling all permits
for public assemblies following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of
the Integrated Bar of the Philippines (IBP) have no legal standing, having
failed to allege any direct or potential injury which the IBP as an institution
or its members may suffer as a consequence of the issuance of PP No.
1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,66 the
Court held that the mere invocation by the IBP of its duty to preserve the
rule of law and nothing more, while undoubtedly true, is not sufficient to
clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that petitioner
have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to
file the instant petition as there are no allegations of illegal disbursement
of public funds. The fact that she is a former Senator is of no
consequence. She can no longer sue as a legislator on the allegation that
her prerogatives as a lawmaker have been impaired by PP 1017 and
G.O. No. 5. Her claim that she is a media personality will not likewise aid
her because there was no showing that the enforcement of these
issuances prevented her from pursuing her occupation. Her submission
that she has pending electoral protest before the Presidential Electoral
Tribunal is likewise of no relevance. She has not sufficiently shown that
PP 1017 will affect the proceedings or result of her case. But considering
once more the transcendental importance of the issue involved, this
Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This
is the underlying legal tenet of the "liberality doctrine" on legal standing. It
cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the Filipino people.
To paraphrase Justice Laurel, the whole of Philippine society now waits
with bated breath the ruling of this Court on this very critical matter. The
petitions thus call for the application of the "transcendental importance"
doctrine, a relaxation of the standing requirements for the petitioners in
the "PP 1017 cases." 1avvphil.net
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent.
Settled is the doctrine that the President, during his tenure of office or
actual incumbency,67 may not be sued in any civil or criminal case, and
there is no need to provide for it in the Constitution or law. It will degrade
the dignity of the high office of the President, the Head of State, if he can
be dragged into court litigations while serving as such. Furthermore, it is
important that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the operation
of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to
the people68 but he may be removed from office only in the mode
provided by law and that is by impeachment.69
B. SUBSTANTIVE
 I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
"necessary" for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the
President’s exercise of his Commander-in-Chief power has reached its
distilled point - from the indulgent days of Barcelon v.
Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v.
Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-
war always cuts across the line defining "political questions," particularly
those questions "in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the
government."75 Barcelon and Montenegro were in unison in declaring that
the authority to decide whether an exigency has arisen belongs to
the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the
Court were unanimous in the conviction that the Court has the authority
to inquire into the existence of factual bases in order to determine their
constitutional sufficiency. From the principle of separation of powers,
it shifted the focus to the system of checks and balances, "under
which the President is supreme, x x x only if and when he acts
within the sphere allotted to him by the Basic Law, and the authority
to determine whether or not he has so acted is vested in the Judicial
Department, which in this respect, is, in turn,
constitutionally supreme."76 In 1973, the unanimous Court
of Lansang was divided in Aquino v. Enrile.77 There, the Court was almost
evenly divided on the issue of whether the validity of the imposition of
Martial Law is a political or justiciable question.78 Then came Garcia-
Padilla v. Enrile which greatly diluted Lansang. It declared that there is a
need to re-examine the latter case, ratiocinating that "in times of war or
national emergency, the President must be given absolute control
for the very life of the nation and the government is in great peril.
The President, it intoned, is answerable only to his conscience, the
People, and God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most
pertinent to these cases at bar -- echoed a principle similar
to Lansang. While the Court considered the President’s "calling-out"
power as a discretionary power solely vested in his wisdom, it stressed
that "this does not prevent an examination of whether such power
was exercised within permissible constitutional limits or whether it
was exercised in a manner constituting grave abuse of
discretion."This ruling is mainly a result of the Court’s reliance on
Section 1, Article VIII of 1987 Constitution which fortifies the authority of
the courts to determine in an appropriate action the validity of the acts of
the political departments. Under the new definition of judicial power, the
courts are authorized not only "to settle actual controversies involving
rights which are legally demandable and enforceable," but also "to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government." The latter part of the
authority represents a broadening of judicial power to enable the courts of
justice to review what was before a forbidden territory, to wit, the
discretion of the political departments of the government.81 It speaks of
judicial prerogative not only in terms of power but also of duty.82
As to how the Court may inquire into the President’s exercise of
power, Lansang adopted the test that "judicial inquiry can go no
further than to satisfy the Court not that the President’s decision
is correct," but that "the President did not act arbitrarily." Thus, the
standard laid down is not correctness, but arbitrariness.83 In Integrated
Bar of the Philippines, this Court further ruled that "it is incumbent upon
the petitioner to show that the President’s decision is totally bereft
of factual basis" and that if he fails, by way of proof, to support his
assertion, then "this Court cannot undertake an independent
investigation beyond the pleadings."
Petitioners failed to show that President Arroyo’s exercise of the calling-
out power, by issuing PP 1017, is totally bereft of factual basis. A reading
of the Solicitor General’s Consolidated Comment and Memorandum
shows a detailed narration of the events leading to the issuance of PP
1017, with supporting reports forming part of the records. Mentioned are
the escape of the Magdalo Group, their audacious threat of the Magdalo
D-Day, the defections in the military, particularly in the Philippine
Marines, and the reproving statements from the communist leaders.
There was also the Minutes of the Intelligence Report and Security Group
of the Philippine Army showing the growing alliance between the NPA
and the military. Petitioners presented nothing to refute such events.
Thus, absent any contrary allegations, the Court is convinced that the
President was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was
not expected to simply fold her arms and do nothing to prevent or
suppress what she believed was lawless violence, invasion or rebellion.
However, the exercise of such power or duty must not stifle liberty.
 II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject -- the power of the
President in times of emergency. A glimpse at the various political
theories relating to this subject provides an adequate backdrop for our
ensuing discussion.
John Locke, describing the architecture of civil government, called upon
the English doctrine of prerogative to cope with the problem of
emergency. In times of danger to the nation, positive law enacted by the
legislature might be inadequate or even a fatal obstacle to the
promptness of action necessary to avert catastrophe. In these situations,
the Crown retained a prerogative "power to act according to discretion
for the public good, without the proscription of the law and
sometimes even against it."84 But Locke recognized that this moral
restraint might not suffice to avoid abuse of prerogative powers. Who
shall judge the need for resorting to the prerogative and how may
its abuse be avoided? Here, Locke readily admitted defeat, suggesting
that "the people have no other remedy in this, as in all other cases
where they have no judge on earth, but to appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary
suspension of democratic processes of government in time of
emergency. According to him:
The inflexibility of the laws, which prevents them from adopting
themselves to circumstances, may, in certain cases, render them
disastrous and make them bring about, at a time of crisis, the ruin of the
State…
It is wrong therefore to wish to make political institutions as strong as to
render it impossible to suspend their operation. Even Sparta allowed its
law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an
obstacle to their preservation, the method is to nominate a supreme
lawyer, who shall silence all the laws and suspend for a moment the
sovereign authority. In such a case, there is no doubt about the general
will, and it clear that the people’s first intention is that the State shall not
perish.86
Rosseau did not fear the abuse of the emergency dictatorship or
"supreme magistracy" as he termed it. For him, it would more likely be
cheapened by "indiscreet use." He was unwilling to rely upon an "appeal
to heaven." Instead, he relied upon a tenure of office of prescribed
duration to avoid perpetuation of the dictatorship.87
John Stuart Mill concluded his ardent defense of representative
government: "I am far from condemning, in cases of extreme
necessity, the assumption of absolute power in the form of a
temporary dictatorship."88
Nicollo Machiavelli’s view of emergency powers, as one element in the
whole scheme of limited government, furnished an ironic contrast to the
Lockean theory of prerogative. He recognized and attempted to bridge
this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to
extra –constitutional measures; for although they may for a time be
beneficial, yet the precedent is pernicious, for if the practice is once
established for good objects, they will in a little while be disregarded
under that pretext but for evil purposes. Thus, no republic will ever be
perfect if she has not by law provided for everything, having a remedy for
every emergency and fixed rules for applying it.89
Machiavelli – in contrast to Locke, Rosseau and Mill – sought to
incorporate into the constitution a regularized system of standby
emergency powers to be invoked with suitable checks and controls in
time of national danger. He attempted forthrightly to meet the problem of
combining a capacious reserve of power and speed and vigor in its
application in time of emergency, with effective constitutional restraints.90
Contemporary political theorists, addressing themselves to the problem of
response to emergency by constitutional democracies, have employed
the doctrine of constitutional dictatorship.91 Frederick M. Watkins saw "no
reason why absolutism should not be used as a means for the
defense of liberal institutions," provided it "serves to protect
established institutions from the danger of permanent injury in a
period of temporary emergency and is followed by a prompt return
to the previous forms of political life."92 He recognized the two (2) key
elements of the problem of emergency governance, as well as all
constitutional governance: increasing administrative powers of the
executive, while at the same time "imposing limitation upon that
power."93Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a
dictatorship: "The period of dictatorship must be relatively
short…Dictatorship should always be strictly legitimate in
character…Final authority to determine the need for dictatorship in
any given case must never rest with the dictator himself…"94 and the
objective of such an emergency dictatorship should be "strict political
conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.95 "It
is a problem of concentrating power – in a government where power has
consciously been divided – to cope with… situations of unprecedented
magnitude and gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such powers, when, for
how long, and to what end."96 Friedrich, too, offered criteria for judging
the adequacy of any of scheme of emergency powers, to wit: "The
emergency executive must be appointed by constitutional means –
i.e., he must be legitimate; he should not enjoy power to determine
the existence of an emergency; emergency powers should be
exercised under a strict time limitation; and last, the objective of
emergency action must be the defense of the constitutional order."97
Clinton L. Rossiter, after surveying the history of the employment of
emergency powers in Great Britain, France, Weimar, Germany and the
United States, reverted to a description of a scheme of "constitutional
dictatorship" as solution to the vexing problems presented by
emergency.98 Like Watkins and Friedrich, he stated a priori the conditions
of success of the "constitutional dictatorship," thus:
1) No general regime or particular institution of constitutional
dictatorship should be initiated unless it is necessary or even
indispensable to the preservation of the State and its
constitutional order…
2) …the decision to institute a constitutional dictatorship should
never be in the hands of the man or men who will constitute the
dictator…
3) No government should initiate a constitutional dictatorship
without making specific provisions for its termination…
4) …all uses of emergency powers and all readjustments in the
organization of the government should be effected in pursuit of
constitutional or legal requirements…
5) … no dictatorial institution should be adopted, no right invaded,
no regular procedure altered any more than is absolutely
necessary for the conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a
constitutional dictatorship should never be permanent in
character or effect…
7) The dictatorship should be carried on by persons
representative of every part of the citizenry interested in the
defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action
taken under a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the
decision to institute one should never be in the hands of the man
or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the
termination of the crisis for which it was instituted…
11) …the termination of the crisis must be followed by a complete
return as possible to the political and governmental conditions
existing prior to the initiation of the constitutional dictatorship…99
Rossiter accorded to legislature a far greater role in the oversight
exercise of emergency powers than did Watkins. He would secure to
Congress final responsibility for declaring the existence or termination of
an emergency, and he places great faith in the effectiveness of
congressional investigating committees.100
Scott and Cotter, in analyzing the above contemporary theories in light of
recent experience, were one in saying that, "the suggestion that
democracies surrender the control of government to an
authoritarian ruler in time of grave danger to the nation is not based
upon sound constitutional theory." To appraise emergency power in
terms of constitutional dictatorship serves merely to distort the problem
and hinder realistic analysis. It matters not whether the term "dictator" is
used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering emergency
powers. However used, "constitutional dictatorship" cannot be divorced
from the implication of suspension of the processes of constitutionalism.
Thus, they favored instead the "concept of constitutionalism" articulated
by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of
problems of emergency powers, and which is consistent with the findings
of this study, is that formulated by Charles H. McIlwain. While it does not
by any means necessarily exclude some indeterminate limitations upon
the substantive powers of government, full emphasis is placed
upon procedural limitations, and political responsibility. McIlwain
clearly recognized the need to repose adequate power in government.
And in discussing the meaning of constitutionalism, he insisted that
the historical and proper test of constitutionalism was the existence
of adequate processes for keeping government responsible. He
refused to equate constitutionalism with the enfeebling of government by
an exaggerated emphasis upon separation of powers and substantive
limitations on governmental power. He found that the really effective
checks on despotism have consisted not in the weakening of government
but, but rather in the limiting of it; between which there is a great and
very significant difference. In associating constitutionalism with
"limited" as distinguished from "weak" government, McIlwain meant
government limited to the orderly procedure of law as opposed to
the processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the
legal limits to arbitrary power and a complete political responsibility
of government to the governed.101
In the final analysis, the various approaches to emergency of the above
political theorists –- from Lock’s "theory of prerogative," to Watkins’
doctrine of "constitutional dictatorship" and, eventually, to McIlwain’s
"principle of constitutionalism" --- ultimately aim to solve one real problem
in emergency governance, i.e., that of allotting increasing areas of
discretionary power to the Chief Executive, while insuring that such
powers will be exercised with a sense of political responsibility and
under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters
of a repressive regime, the 1986 Constitutional Commission, in drafting
the 1987 Constitution, endeavored to create a government in the concept
of Justice Jackson’s "balanced power structure."102 Executive, legislative,
and judicial powers are dispersed to the President, the Congress, and the
Supreme Court, respectively. Each is supreme within its own sphere. But
none has the monopoly of power in times of emergency. Each
branch is given a role to serve as limitation or check upon the
other. This system does not weaken the President, it just limits his
power, using the language of McIlwain. In other words, in times of
emergency, our Constitution reasonably demands that we repose a
certain amount of faith in the basic integrity and wisdom of the Chief
Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its
"overbreadth." They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled
for.
First and foremost, the overbreadth doctrine is an analytical tool
developed for testing "on their faces" statutes in free speech cases, also
known under the American Law as First Amendment cases.103
A plain reading of PP 1017 shows that it is not primarily directed to
speech or even speech-related conduct. It is actually a call upon the AFP
to prevent or suppress all forms of lawless violence. In United States v.
Salerno,104the US Supreme Court held that "we have not recognized an
‘overbreadth’ doctrine outside the limited context of the First
Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity
of a law that "reflects legitimate state interest in maintaining
comprehensive control over harmful, constitutionally unprotected
conduct." Undoubtedly, lawless violence, insurrection and rebellion are
considered "harmful" and "constitutionally unprotected conduct."
In Broadrick v. Oklahoma,105 it was held:
It remains a ‘matter of no little difficulty’ to determine when a law may
properly be held void on its face and when ‘such summary action’ is
inappropriate. But the plain import of our cases is, at the very least,
that facial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a limited one at the
outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from ‘pure speech’ toward
conduct and that conduct –even if expressive – falls within the
scope of otherwise valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving
statutes which, by their terms, seek to regulate only "spoken words"
and again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct."106 Here, the
incontrovertible fact remains that PP 1017 pertains to a spectrum
of conduct, not free speech, which is manifestly subject to state
regulation.
Second, facial invalidation of laws is considered as "manifestly strong
medicine," to be used "sparingly and only as a last resort," and is
"generally disfavored;"107 The reason for this is obvious. Embedded in
the traditional rules governing constitutional adjudication is the principle
that a person to whom a law may be applied will not be heard to
challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the
Court.108 A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it
marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights
of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court invalidates
the entire statute "on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts to depart
from the normal adjudicatory rules is the concern with the "chilling;"
deterrent effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad law’s "very
existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third
parties.
In other words, a facial challenge using the overbreadth doctrine will
require the Court to examine PP 1017 and pinpoint its flaws and defects,
not on the basis of its actual operation to petitioners, but on the
assumption or prediction that its very existence may cause others not
before the Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris,109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put into
effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact
on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line
analysis of detailed statutes,...ordinarily results in a kind of case that
is wholly unsatisfactory for deciding constitutional questions, whichever
way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most
difficult challenge to mount successfully, since the challenger must
establish that there can be no instance when the assailed law may be
valid. Here, petitioners did not even attempt to show whether this
situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of
vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine"
which holds that "a law is facially invalid if men of common
intelligence must necessarily guess at its meaning and differ as to
its application."110 It is subject to the same principles governing
overbreadth doctrine. For one, it is also an analytical tool for testing "on
their faces" statutes in free speech cases. And like overbreadth, it is
said that a litigant may challenge a statute on its face only if it is vague in
all its possible applications. Again, petitioners did not even attempt
to show that PP 1017 is vague in all its application. They also failed to
establish that men of common intelligence cannot understand the
meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important
provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII … do
hereby command the Armed Forces of the Philippines, to maintain law
and order throughout the Philippines, prevent or suppress all forms of
lawless violence as well any act of insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby
declare a State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the President’s calling-out power.
In Sanlakas v. Executive Secretary,111 this Court, through Mr. Justice
Dante O. Tinga, held that Section 18, Article VII of the Constitution
reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may
call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least
a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside
by the President. Upon the initiative of the President, the Congress may,
in the same manner, extend such proclamation or suspension for a
period to be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual bases of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days from
its filing.
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies,
nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated
powers. From the most to the least benign, these are: the calling-out
power, the power to suspend the privilege of the writ of habeas corpus,
and the power to declare Martial Law. Citing Integrated Bar of the
Philippines v. Zamora,112 the Court ruled that the only criterion for the
exercise of the calling-out power is that "whenever it becomes
necessary," the President may call the armed forces "to prevent or
suppress lawless violence, invasion or rebellion." Are these
conditions present in the instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it necessary to
issue PP 1017. Owing to her Office’s vast intelligence network, she is in
the best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed
forces to aid him in suppressing lawless violence, invasion and
rebellion. This involves ordinary police action. But every act that goes
beyond the President’s calling-out power is considered illegal or ultra
vires. For this reason, a President must be careful in the exercise of his
powers. He cannot invoke a greater power when he wishes to act under a
lesser power. There lies the wisdom of our Constitution, the greater the
power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the
President’s authority to declare a "state of rebellion" (in Sanlakas) and
the authority to proclaim a state of national emergency. While President
Arroyo’s authority to declare a "state of rebellion" emanates from her
powers as Chief Executive, the statutory authority cited in Sanlakas was
Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987,
which provides:
SEC. 4. – Proclamations. – Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force
of an executive order.
President Arroyo’s declaration of a "state of rebellion" was merely an act
declaring a status or condition of public moment or interest, a declaration
allowed under Section 4 cited above. Such declaration, in the words
of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of
national emergency, President Arroyo did not only rely on Section 18,
Article VII of the Constitution, a provision calling on the AFP to prevent or
suppress lawless violence, invasion or rebellion. She also relied on
Section 17, Article XII, a provision on the State’s extraordinary power to
take over privately-owned public utility and business affected with public
interest. Indeed, PP 1017 calls for the exercise of an awesome power.
Obviously, such Proclamation cannot be deemed harmless, without legal
significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a
declaration of Martial Law. It is no so. What defines the character of PP
1017 are its wordings. It is plain therein that what the President invoked
was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military
power has been called upon by the executive to assist in the
maintenance of law and order, and that, while the emergency lasts, they
must, upon pain of arrest and punishment, not commit any acts which will
in any way render more difficult the restoration of order and the
enforcement of law."113
In his "Statement before the Senate Committee on Justice" on March 13,
2006, Mr. Justice Vicente V. Mendoza,114an authority in constitutional law,
said that of the three powers of the President as Commander-in-Chief,
the power to declare Martial Law poses the most severe threat to civil
liberties. It is a strong medicine which should not be resorted to lightly. It
cannot be used to stifle or persecute critics of the government. It is
placed in the keeping of the President for the purpose of enabling him to
secure the people from harm and to restore order so that they can enjoy
their individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies,
nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial
Law. It is no more than a call by the President to the armed forces to
prevent or suppress lawless violence. As such, it cannot be used to justify
acts that only under a valid declaration of Martial Law can be done. Its
use for any other purpose is a perversion of its nature and scope, and
any act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) take-over of
news media and agencies and press censorship; and (d) issuance of
Presidential Decrees, are powers which can be exercised by the
President as Commander-in-Chief only where there is a valid declaration
of Martial Law or suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a
declaration of Martial Law. It is merely an exercise of President
Arroyo’s calling-out power for the armed forces to assist her in
preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure
that the laws be faithfully executed. This is based on Section 17, Article
VII which reads:
SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed.
As the Executive in whom the executive power is vested,115 the primary
function of the President is to enforce the laws as well as to formulate
policies to be embodied in existing laws. He sees to it that all laws are
enforced by the officials and employees of his department. Before
assuming office, he is required to take an oath or affirmation to the effect
that as President of the Philippines, he will, among others, "execute its
laws."116 In the exercise of such function, the President, if needed, may
employ the powers attached to his office as the Commander-in-Chief of
all the armed forces of the country,117 including the Philippine National
Police118 under the Department of Interior and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero,
Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel
Virador argue that PP 1017 is unconstitutional as it arrogated upon
President Arroyo the power to enact laws and decrees in violation of
Section 1, Article VI of the Constitution, which vests the power to enact
laws in Congress. They assail the clause "to enforce obedience to all
the laws and to all decrees, orders and regulations promulgated by
me personally or upon my direction."
\
Petitioners’ contention is understandable. A reading of PP 1017 operative
clause shows that it was lifted120 from Former President Marcos’
Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article VII, Section
10, Paragraph (2) of the Constitution, do hereby place the entire
Philippines as defined in Article 1, Section 1 of the Constitution under
martial law and, in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of
lawless violence as well as any act of insurrection or rebellion and
to enforce obedience to all the laws and decrees, orders and
regulations promulgated by me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos
legislative power. Its enabling clause states: "to enforce obedience to
all the laws and decrees, orders and regulations promulgated by me
personally or upon my direction." Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce obedience
to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws
and decrees x x x promulgated by me personally or upon my
direction."
The President is granted an Ordinance Power under Chapter 2, Book III
of Executive Order No. 292 (Administrative Code of 1987). She may
issue any of the following:
Sec. 2. Executive Orders. — Acts of the President providing for rules of a
general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive
orders.
Sec. 3. Administrative Orders. — Acts of the President which relate to
particular aspect of governmental operations in pursuance of his duties
as administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. — Acts of the President fixing a date or declaring
a status or condition of public moment or interest, upon the existence of
which the operation of a specific law or regulation is made to depend,
shall be promulgated in proclamations which shall have the force of an
executive order.
Sec. 5. Memorandum Orders. — Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only
concern a particular officer or office of the Government shall be embodied
in memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters
relating to internal administration, which the President desires to bring to
the attention of all or some of the departments, agencies, bureaus or
offices of the Government, for information or compliance, shall be
embodied in memorandum circulars.
Sec. 7. General or Special Orders. — Acts and commands of the
President in his capacity as Commander-in-Chief of the Armed Forces of
the Philippines shall be issued as general or special orders.
President Arroyo’s ordinance power is limited to the foregoing issuances.
She cannot issue decrees similar to those issued by Former President
Marcos under PP 1081. Presidential Decrees are laws which are of the
same category and binding force as statutes because they were issued
by the President in the exercise of his legislative power during the period
of Martial Law under the 1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional
insofar as it grants President Arroyo the authority to promulgate
"decrees." Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that "[t]he
legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives." To
be sure, neither Martial Law nor a state of rebellion nor a state of
emergency can justify President Arroyo’s exercise of legislative power by
issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through
the military?
As this Court stated earlier, President Arroyo has no authority to enact
decrees. It follows that these decrees are void and, therefore, cannot be
enforced. With respect to "laws," she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She
can only order the military, under PP 1017, to enforce laws pertinent to its
duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders,
and regulations promulgated by me personally or upon my direction; and
as provided in Section 17, Article XII of the Constitution do hereby
declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of
national emergency under PP 1017, can call the military not only to
enforce obedience "to all the laws and to all decrees x x x" but also to act
pursuant to the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable
terms prescribed by it, temporarily take over or direct the operation of any
privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above
provision when she issued PP 1017?
The answer is simple. During the existence of the state of national
emergency, PP 1017 purports to grant the President, without any
authority or delegation from Congress, to take over or direct the operation
of any privately-owned public utility or business affected with public
interest.
This provision was first introduced in the 1973 Constitution, as a product
of the "martial law" thinking of the 1971 Constitutional Convention.122 In
effect at the time of its approval was President Marcos’ Letter of
Instruction No. 2 dated September 22, 1972 instructing the Secretary of
National Defense to take over "the management, control and operation of
the Manila Electric Company, the Philippine Long Distance Telephone
Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila (and)
Filipinas Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the present national
emergency."
Petitioners, particularly the members of the House of Representatives,
claim that President Arroyo’s inclusion of Section 17, Article XII in PP
1017 is an encroachment on the legislature’s emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President’s authority
to declare "a state of national emergency" and to exercise emergency
powers. To the first, as elucidated by the Court, Section 18, Article VII
grants the President such power, hence, no legitimate constitutional
objection can be raised. But to the second, manifold constitutional issues
arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint
session assembled, voting separately, shall have the sole power to
declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper
to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next
adjournment thereof.
It may be pointed out that the second paragraph of the above provision
refers not only to war but also to "other national emergency." If the
intention of the Framers of our Constitution was to withhold from the
President the authority to declare a "state of national emergency"
pursuant to Section 18, Article VII (calling-out power) and grant it to
Congress (like the declaration of the existence of a state of war), then the
Framers could have provided so. Clearly, they did not intend that
Congress should first authorize the President before he can declare a
"state of national emergency." The logical conclusion then is that
President Arroyo could validly declare the existence of a state of national
emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of
privately owned public utility or business affected with public interest, is a
different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to
be construed together. Otherwise stated, different clauses, sections, and
provisions of a constitution which relate to the same subject matter will be
construed together and considered in the light of each
other.123 Considering that Section 17 of Article XII and Section 23 of
Article VI, previously quoted, relate to national emergencies, they must
be read together to determine the limitation of the exercise of emergency
powers.
Generally, Congress is the repository of emergency powers. This is
evident in the tenor of Section 23 (2), Article VI authorizing it to delegate
such powers to the President. Certainly, a body cannot delegate a
power not reposed upon it. However, knowing that during grave
emergencies, it may not be possible or practicable for Congress to meet
and exercise its powers, the Framers of our Constitution deemed it wise
to allow Congress to grant emergency powers to the President, subject to
certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the
Congress may prescribe.
(4) The emergency powers must be exercised to carry out a
national policy declared by Congress.124
Section 17, Article XII must be understood as an aspect of the
emergency powers clause. The taking over of private business affected
with public interest is just another facet of the emergency powers
generally reposed upon Congress. Thus, when Section 17 states that the
"the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any
privately owned public utility or business affected with public
interest," it refers to Congress, not the President. Now, whether or not
the President may exercise such power is dependent on whether
Congress may delegate it to him pursuant to a law prescribing the
reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v.
Sawyer,125 held:
It is clear that if the President had authority to issue the order he did, it
must be found in some provision of the Constitution. And it is not claimed
that express constitutional language grants this power to the President.
The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is
placed on provisions in Article II which say that "The executive Power
shall be vested in a President . . . .;" that "he shall take Care that the
Laws be faithfully executed;" and that he "shall be Commander-in-Chief
of the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the President’s
military power as Commander-in-Chief of the Armed Forces. The
Government attempts to do so by citing a number of cases upholding
broad powers in military commanders engaged in day-to-day fighting in a
theater of war. Such cases need not concern us here. Even though
"theater of war" be an expanding concept, we cannot with
faithfulness to our constitutional system hold that the Commander-
in-Chief of the Armed Forces has the ultimate power as such to take
possession of private property in order to keep labor disputes from
stopping production. This is a job for the nation’s lawmakers, not
for its military authorities.
Nor can the seizure order be sustained because of the several
constitutional provisions that grant executive power to the
President. In the framework of our Constitution, the President’s
power to see that the laws are faithfully executed refutes the idea
that he is to be a lawmaker. The Constitution limits his functions in
the lawmaking process to the recommending of laws he thinks wise
and the vetoing of laws he thinks bad. And the Constitution is
neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that
"All legislative Powers herein granted shall be vested in a Congress
of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term "emergency"
under Section 17, Article XII refers to "tsunami," "typhoon,"
"hurricane"and"similar occurrences." This is a limited view of
"emergency."
Emergency, as a generic term, connotes the existence of conditions
suddenly intensifying the degree of existing danger to life or well-being
beyond that which is accepted as normal. Implicit in this definitions are
the elements of intensity, variety, and perception.127 Emergencies, as
perceived by legislature or executive in the United Sates since 1933,
have been occasioned by a wide range of situations, classifiable under
three (3) principal heads: a)economic,128 b) natural
disaster,129 and c) national security.130
"Emergency," as contemplated in our Constitution, is of the same
breadth. It may include rebellion, economic crisis, pestilence or epidemic,
typhoon, flood, or other similar catastrophe of nationwide proportions or
effect.131 This is evident in the Records of the Constitutional Commission,
thus:
MR. GASCON. Yes. What is the Committee’s definition of "national
emergency" which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over
or direct the operation of any privately owned public utility or business
affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What
about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
"national emergency."
MR. BENGZON. Unless they are of such proportions such that they
would paralyze government service.132
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency" refers
to military national emergency or could this be economic
emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic
dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress may
not be able to convene and, therefore, unable to delegate to the
President the power to take over privately-owned public utility or business
affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative power,
through which extraordinary measures are exercised, remains in
Congress even in times of crisis.
"x x x
After all the criticisms that have been made against the efficiency of the
system of the separation of powers, the fact remains that the Constitution
has set up this form of government, with all its defects and shortcomings,
in preference to the commingling of powers in one man or group of men.
The Filipino people by adopting parliamentary government have given
notice that they share the faith of other democracy-loving peoples in this
system, with all its faults, as the ideal. The point is, under this framework
of government, legislation is preserved for Congress all the time, not
excepting periods of crisis no matter how serious. Never in the history of
the United States, the basic features of whose Constitution have been
copied in ours, have specific functions of the legislative branch of
enacting laws been surrendered to another department – unless we
regard as legislating the carrying out of a legislative policy according to
prescribed standards; no, not even when that Republic was fighting a
total war, or when it was engaged in a life-and-death struggle to preserve
the Union. The truth is that under our concept of constitutional
government, in times of extreme perils more than in normal
circumstances ‘the various branches, executive, legislative, and judicial,’
given the ability to act, are called upon ‘to perform the duties and
discharge the responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by
President Arroyo in issuing PP 1017, this Court rules that such
Proclamation does not authorize her during the emergency to temporarily
take over or direct the operation of any privately owned public utility or
business affected with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to
take over privately-owned public utility or business affected with public
interest. The President cannot decide whether exceptional circumstances
exist warranting the take over of privately-owned public utility or business
affected with public interest. Nor can he determine when such
exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types of
businesses affected with public interest that should be taken over. In
short, the President has no absolute authority to exercise all the powers
of the State under Section 17, Article VII in the absence of an emergency
powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains
to security, is that military necessity and the guaranteed rights of the
individual are often not compatible. Our history reveals that in the crucible
of conflict, many rights are curtailed and trampled upon. Here, the right
against unreasonable search and seizure; the right against
warrantless arrest; and the freedom of speech, of expression, of the
press, and of assembly under the Bill of Rights suffered the greatest
blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on
February 24, 2006, they were arrested without warrants on their way to
EDSA to celebrate the 20th Anniversary of People Power I. The arresting
officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing
Co., Inc. claimed that on February 25, 2006, the CIDG operatives "raided
and ransacked without warrant" their office. Three policemen were
assigned to guard their office as a possible "source of destabilization."
Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged
that their members were "turned away and dispersed" when they went to
EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary
of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners
shows that they resulted from the implementation, pursuant to G.O. No.
5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on
the basis of these illegal acts? In general, does the illegal implementation
of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused135 and may
afford an opportunity for abuse in the manner of application.136 The
validity of a statute or ordinance is to be determined from its general
purpose and its efficiency to accomplish the end desired, not from its
effects in a particular case.137 PP 1017 is merely an invocation of the
President’s calling-out power. Its general purpose is to command the AFP
to suppress all forms of lawless violence, invasion or rebellion. It had
accomplished the end desired which prompted President Arroyo to issue
PP 1021. But there is nothing in PP 1017 allowing the police, expressly or
impliedly, to conduct illegal arrest, search or violate the citizens’
constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the
ground that its implementor committed illegal acts? The answer is no.
The criterion by which the validity of the statute or ordinance is to be
measured is the essential basis for the exercise of power, and not a
mere incidental result arising from its exertion.138 This is logical. Just
imagine the absurdity of situations when laws maybe declared
unconstitutional just because the officers implementing them have acted
arbitrarily. If this were so, judging from the blunders committed by
policemen in the cases passed upon by the Court, majority of the
provisions of the Revised Penal Code would have been declared
unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of
PP 1017. General orders are "acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines."
They are internal rules issued by the executive officer to his subordinates
precisely for the proper and efficientadministration of law. Such rules
and regulations create no relation except between the official who issues
them and the official who receives them.139 They are based on and are
the product of, a relationship in which power is their source, and
obedience, their object.140 For these reasons, one requirement for these
rules to be valid is that they must be reasonable, not arbitrary or
capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
"necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our
statutes and the Constitution, and which is invariably associated with
"invasion, insurrection or rebellion," the phrase "acts of terrorism" is still
an amorphous and vague concept. Congress has yet to enact a law
defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed
definition of terrorism" confronts not only our country, but the international
community as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against
terrorism" has become one of the basic slogans when it comes to the
justification of the use of force against certain states and against groups
operating internationally. Lists of states "sponsoring terrorism" and of
terrorist organizations are set up and constantly being updated according
to criteria that are not always known to the public, but are clearly
determined by strategic interests.
The basic problem underlying all these military actions – or threats of the
use of force as the most recent by the United States against Iraq –
consists in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of
acts of violence either by states, by armed groups such as liberation
movements, or by individuals.
The dilemma can by summarized in the saying "One country’s terrorist is
another country’s freedom fighter." The apparent contradiction or lack of
consistency in the use of the term "terrorism" may further be
demonstrated by the historical fact that leaders of national liberation
movements such as Nelson Mandela in South Africa, Habib Bourgouiba
in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were
originally labeled as terrorists by those who controlled the territory at the
time, but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts – the differentia
specifica distinguishing those acts from eventually legitimate acts of
national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has
been trying in vain to reach a consensus on the basic issue of definition.
The organization has intensified its efforts recently, but has been unable
to bridge the gap between those who associate "terrorism" with any
violent act by non-state groups against civilians, state functionaries or
infrastructure or military installations, and those who believe in the
concept of the legitimate use of force when resistance against foreign
occupation or against systematic oppression of ethnic and/or religious
groups within a state is concerned.
The dilemma facing the international community can best be illustrated by
reference to the contradicting categorization of organizations and
movements such as Palestine Liberation Organization (PLO) – which is a
terrorist group for Israel and a liberation movement for Arabs and
Muslims – the Kashmiri resistance groups – who are terrorists in the
perception of India, liberation fighters in that of Pakistan – the earlier
Contras in Nicaragua – freedom fighters for the United States, terrorists
for the Socialist camp – or, most drastically, the Afghani Mujahedeen
(later to become the Taliban movement): during the Cold War period they
were a group of freedom fighters for the West, nurtured by the United
States, and a terrorist gang for the Soviet Union. One could go on and on
in enumerating examples of conflicting categorizations that cannot be
reconciled in any way – because of opposing political interests that are at
the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions
and evaluations of one and the same group and its actions be explained?
In our analysis, the basic reason for these striking inconsistencies lies in
the divergent interest of states. Depending on whether a state is in the
position of an occupying power or in that of a rival, or adversary, of an
occupying power in a given territory, the definition of terrorism will
"fluctuate" accordingly. A state may eventually see itself as protector of
the rights of a certain ethnic group outside its territory and will therefore
speak of a "liberation struggle," not of "terrorism" when acts of violence
by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on
the definition of terrorism exactly because of these conflicting interests of
sovereign states that determine in each and every instance how a
particular armed movement (i.e. a non-state actor) is labeled in regard to
the terrorists-freedom fighter dichotomy. A "policy of double standards"
on this vital issue of international affairs has been the unavoidable
consequence.
This "definitional predicament" of an organization consisting of sovereign
states – and not of peoples, in spite of the emphasis in the Preamble to
the United Nations Charter! – has become even more serious in the
present global power constellation: one superpower exercises the
decisive role in the Security Council, former great powers of the Cold War
era as well as medium powers are increasingly being marginalized; and
the problem has become even more acute since the terrorist attacks of
11 September 2001 I the United States.141
The absence of a law defining "acts of terrorism" may result in abuse and
oppression on the part of the police or military. An illustration is when a
group of persons are merely engaged in a drinking spree. Yet the military
or the police may consider the act as an act of terrorism and immediately
arrest them pursuant to G.O. No. 5. Obviously, this is abuse and
oppression on their part. It must be remembered that an act can only be
considered a crime if there is a law defining the same as such and
imposing the corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in
P.D. No. 1835 dated January 16, 1981 enacted by President Marcos
during the Martial Law regime. This decree is entitled "Codifying The
Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations." The word "terrorism" is
mentioned in the following provision: "That one who conspires with any
other person for the purpose of overthrowing the Government of the
Philippines x x x by force, violence, terrorism, x x x shall be punished
by reclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the
Communist Party of the Philippines) enacted by President Corazon
Aquino on May 5, 1985. These two (2) laws, however, do not define "acts
of terrorism." Since there is no law defining "acts of terrorism," it is
President Arroyo alone, under G.O. No. 5, who has the discretion to
determine what acts constitute terrorism. Her judgment on this aspect is
absolute, without restrictions. Consequently, there can be indiscriminate
arrest without warrants, breaking into offices and residences, taking over
the media enterprises, prohibition and dispersal of all assemblies and
gatherings unfriendly to the administration. All these can be effected in
the name of G.O. No. 5. These acts go far beyond the calling-out power
of the President. Certainly, they violate the due process clause of the
Constitution. Thus, this Court declares that the "acts of terrorism" portion
of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or
police to commit acts beyond what are necessary and appropriate to
suppress and prevent lawless violence, the limitation of their authority
in pursuing the Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in
their persons, houses, papers and effects against unreasonable search
and seizure of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized."142 The plain import of
the language of the Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a validly issued search
warrant or warrant of arrest. Thus, the fundamental protection given by
this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue
search warrants or warrants of arrest.143
In the Brief Account144 submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP
operatives arrested him on the basis of PP 1017; third, he was brought at
Camp Karingal, Quezon City where he was fingerprinted, photographed
and booked like a criminal suspect; fourth,he was treated brusquely by
policemen who "held his head and tried to push him" inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa Bilang No.
880145 and Inciting to Sedition; sixth, he was detained for seven (7)
hours; and seventh,he was eventually released for insufficiency of
evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure
provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense.
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of facts
or circumstances that the person to be arrested has committed it;
and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner
David’s warrantless arrest. During the inquest for the charges of inciting
to sedition and violation of BP 880, all that the arresting officers could
invoke was their observation that some rallyists were wearing t-shirts with
the invective "Oust Gloria Now" and their erroneous assumption that
petitioner David was the leader of the rally.146 Consequently, the Inquest
Prosecutor ordered his immediate release on the ground of insufficiency
of evidence. He noted that petitioner David was not wearing the subject t-
shirt and even if he was wearing it, such fact is insufficient to charge him
with inciting to sedition. Further, he also stated that there is insufficient
evidence for the charge of violation of BP 880 as it was not even known
whether petitioner David was the leader of the rally.147
But what made it doubly worse for petitioners David et al. is that not only
was their right against warrantless arrest violated, but also their right to
peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression,
or of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably
for consultation in respect to public affairs. It is a necessary consequence
of our republican institution and complements the right of speech. As in
the case of freedom of expression, this right is not to be limited, much
less denied, except on a showing of a clear and present danger of a
substantive evil that Congress has a right to prevent. In other words, like
other rights embraced in the freedom of expression, the right to assemble
is not subject to previous restraint or censorship. It may not be
conditioned upon the prior issuance of a permit or authorization from the
government authorities except, of course, if the assembly is intended to
be held in a public place, a permit for the use of such place, and not for
the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while
they were exercising their right to peaceful assembly. They were not
committing any crime, neither was there a showing of a clear and present
danger that warranted the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to sedition and violation of BP
880 were mere afterthought. Even the Solicitor General, during the oral
argument, failed to justify the arresting officers’ conduct. In De Jonge v.
Oregon,148 it was held that peaceable assembly cannot be made a crime,
thus:
Peaceable assembly for lawful discussion cannot be made a crime. The
holding of meetings for peaceable political action cannot be proscribed.
Those who assist in the conduct of such meetings cannot be branded as
criminals on that score. The question, if the rights of free speech and
peaceful assembly are not to be preserved, is not as to the auspices
under which the meeting was held but as to its purpose; not as to the
relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects. If the
persons assembling have committed crimes elsewhere, if they have
formed or are engaged in a conspiracy against the public peace and
order, they may be prosecuted for their conspiracy or other violations of
valid laws. But it is a different matter when the State, instead of
prosecuting them for such offenses, seizes upon mere participation
in a peaceable assembly and a lawful public discussion as the basis
for a criminal charge.
On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al. (G.R. No. 171483)
unwarranted. Apparently, their dispersal was done merely on the basis of
Malacañang’s directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all
permits to rally is a blatant disregard of the principle that "freedom of
assembly is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive evil that the
State has a right to prevent."149 Tolerance is the rule and limitation is
the exception. Only upon a showing that an assembly presents a clear
and present danger that the State may deny the citizens’ right to exercise
it. Indeed, respondents failed to show or convince the Court that the
rallyists committed acts amounting to lawless violence, invasion or
rebellion. With the blanket revocation of permits, the distinction between
protected and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies
is lodged with the local government units. They have the power to issue
permits and to revoke such permits after due notice and hearing on the
determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their
permits.150 The first time they learned of it was at the time of the dispersal.
Such absence of notice is a fatal defect. When a person’s right is
restricted by government action, it behooves a democratic government to
see to it that the restriction is fair, reasonable, and according to
procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of
freedom of speech i.e., the freedom of the press. Petitioners’ narration of
facts, which the Solicitor General failed to refute, established the
following: first, the Daily Tribune’s offices were searched without
warrant;second, the police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o’ clock in the
morning of February 25, 2006; fourth, the search was conducted in the
absence of any official of the Daily Tribune except the security guard of
the building; and fifth, policemen stationed themselves at the vicinity of
the Daily Tribune offices.
Thereafter, a wave of warning came from government officials.
Presidential Chief of Staff Michael Defensor was quoted as saying that
such raid was "meant to show a ‘strong presence,’ to tell media
outlets not to connive or do anything that would help the rebels in
bringing down this government." Director General Lomibao further
stated that "if they do not follow the standards –and the standards
are if they would contribute to instability in the government, or if
they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 – we will recommend a ‘takeover.’" National
Telecommunications Commissioner Ronald Solis urged television and
radio networks to "cooperate" with the government for the duration of the
state of national emergency. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage during times when the
national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal
Procedure lays down the steps in the conduct of search and
seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section 8 mandates
that the search of a house, room, or any other premise be made in the
presence of the lawful occupant thereof or any member of his family or
in the absence of the latter, in the presence of two (2) witnesses of
sufficient age and discretion residing in the same locality. And Section
9 states that the warrant must direct that it be served in the daytime,
unless the property is on the person or in the place ordered to be
searched, in which case a direction may be inserted that it be served at
any time of the day or night. All these rules were violated by the CIDG
operatives.
Not only that, the search violated petitioners’ freedom of the press. The
best gauge of a free and democratic society rests in the degree of
freedom enjoyed by its media. In the Burgos v. Chief of Staff152 this Court
held that --
As heretofore stated, the premises searched were the business and
printing offices of the "Metropolitan Mail" and the "We Forum"
newspapers. As a consequence of the search and seizure, these
premises were padlocked and sealed, with the further result that the
printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship xxxxxxxxx
abhorrent to the freedom of the press guaranteed under the
fundamental law, and constitutes a virtual denial of petitioners' SR. ASSO. JUSTICE PUNO:
freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert These have been published in the past issues of the Daily Tribune; all
and even militant press is essential for the political enlightenment you have to do is to get those past issues. So why do you have to go
and growth of the citizenry. there at 1 o’clock in the morning and without any search warrant? Did
they become suddenly part of the evidence of rebellion or inciting to
While admittedly, the Daily Tribune was not padlocked and sealed like sedition or what?
the "Metropolitan Mail" and "We Forum" newspapers in the above case,
yet it cannot be denied that the CIDG operatives exceeded their SOLGEN BENIPAYO:
enforcement duties. The search and seizure of materials for publication,
the stationing of policemen in the vicinity of the The Daily Tribune offices,
Well, it was the police that did that, Your Honor. Not upon my
and the arrogant warning of government officials to media, are plain
instructions.
censorship. It is that officious functionary of the repressive government
who tells the citizen that he may speak only if allowed to do so, and no
more and no less than what he is permitted to say on pain of punishment SR. ASSO. JUSTICE PUNO:
should he be so rash as to disobey.153Undoubtedly, the The Daily
Tribune was subjected to these arbitrary intrusions because of its anti- Are you saying that the act of the policeman is illegal, it is not based on
government sentiments. This Court cannot tolerate the blatant disregard any law, and it is not based on Proclamation 1017.
of a constitutional right even if it involves the most defiant of our citizens.
Freedom to comment on public affairs is essential to the vitality of a SOLGEN BENIPAYO:
representative democracy. It is the duty of the courts to be watchful for
the constitutional rights of the citizen, and against any stealthy It is not based on Proclamation 1017, Your Honor, because there is
encroachments thereon. The motto should always be obsta principiis.154 nothing in 1017 which says that the police could go and inspect and
gather clippings from Daily Tribune or any other newspaper.
Incidentally, during the oral arguments, the Solicitor General admitted
that the search of the Tribune’s offices and the seizure of its materials for SR. ASSO. JUSTICE PUNO:
publication and other papers are illegal; and that the same are
inadmissible "for any purpose," thus: Is it based on any law?

JUSTICE CALLEJO: SOLGEN BENIPAYO:

You made quite a mouthful of admission when you said that the As far as I know, no, Your Honor, from the facts, no.
policemen, when inspected the Tribune for the purpose of gathering
evidence and you admitted that the policemen were able to get the
SR. ASSO. JUSTICE PUNO:
clippings. Is that not in admission of the admissibility of these clippings
that were taken from the Tribune?
So, it has no basis, no legal basis whatsoever?
SOLICITOR GENERAL BENIPAYO:
SOLGEN BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think
and I know, Your Honor, and these are inadmissible for any purpose.155 Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is
premature to say this, we do not condone this. If the people who have
been injured by this would want to sue them, they can sue and there
are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police
were, according to the Solicitor General, illegal and cannot be condoned,
thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don’t know whether this will clarify. The acts, the supposed illegal or
unlawful acts committed on the occasion of 1017, as I said, it cannot be
condoned. You cannot blame the President for, as you said, a
misapplication of the law. These are acts of the police officers, that is
their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
constitutional in every aspect and "should result in no constitutional or
statutory breaches if applied according to their letter."
The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by the President of the
military to prevent or suppress lawless violence, invasion or rebellion.
When in implementing its provisions, pursuant to G.O. No. 5, the military
and the police committed acts which violate the citizens’ rights under the
Constitution, this Court has to declare such acts unconstitutional and
illegal.
In this connection, Chief Justice Artemio V. Panganiban’s concurring
opinion, attached hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a
supervening event – would have normally rendered this case moot and
academic. However, while PP 1017 was still operative, illegal acts were
committed allegedly in pursuance thereof. Besides, there is no guarantee
that PP 1017, or one similar to it, may not again be issued. Already, there
have been media reports on April 30, 2006 that allegedly PP 1017 would
be reimposed "if the May 1 rallies" become "unruly and violent."
Consequently, the transcendental issues raised by the parties should not
be "evaded;" they must now be resolved to prevent future constitutional
aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it
constitutes a call by the President for the AFP to prevent or
suppress lawless violence. The proclamation is sustained by Section
18, Article VII of the Constitution and the relevant jurisprudence
discussed earlier. However, PP 1017’s extraneous provisions giving the
President express or implied power (1) to issue decrees; (2) to direct the
AFP to enforce obedience to all laws even those not related to lawless
violence as well as decrees promulgated by the President; and (3) to
impose standards on media or any form of prior restraint on the press,
are ultra vires and unconstitutional. The Court also rules that under
Section 17, Article XII of the Constitution, the President, in the absence of
a legislation, cannot take over privately-owned public utility and private
business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued
by the President – acting as Commander-in-Chief – addressed to
subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard – that the military and the
police should take only the "necessary and appropriate actions and
measures to suppress and prevent acts of lawless violence."But the
words "acts of terrorism" found in G.O. No. 5 have not been legally
defined and made punishable by Congress and should thus be deemed
deleted from the said G.O. While "terrorism" has been denounced
generally in media, no law has been enacted to guide the military, and
eventually the courts, to determine the limits of the AFP’s authority in
carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is
also pristine clear that (1) the warrantless arrest of petitioners Randolf S.
David and Ronald Llamas; (2) the dispersal of the rallies and warrantless
arrest of the KMU and NAFLU-KMU members; (3) the imposition of
standards on media or any prior restraint on the press; and (4) the
warrantless search of the Tribune offices and the whimsical seizures of
some articles for publication and other materials, are not authorized by
the Constitution, the law and jurisprudence. Not even by the valid
provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any
civil, criminal or administrative sanctions on the individual police officers
concerned. They have not been individually identified and given their day
in court. The civil complaints or causes of action and/or relevant criminal
Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil,
criminal or administrative liabilities.
committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of
prior restraint on the press, as well as the warrantless search of
the Tribune offices and whimsical seizure of its articles for publication and
other materials, are declared UNCONSTITUTIONAL.

It is well to remember that military power is a means to an end and No costs.

substantive civil rights are ends in themselves. How to give the
military the power it needs to protect the Republic without SO ORDERED.
unnecessarily trampling individual rights is one of the eternal
balancing tasks of a democratic state.During emergency, Republic of the Philippines
governmental action may vary in breadth and intensity from normal times, SUPREME COURT
yet they should not be arbitrary as to unduly restrain our people’s liberty. Manila

Perhaps, the vital lesson that we must learn from the theorists who EN BANC
studied the various competing political philosophies is that, it is possible
to grant government the authority to cope with crises without surrendering
G.R. No. 192935 December 7, 2010
the two vital principles of constitutionalism: the maintenance of legal
limits to arbitrary power, and political responsibility of the
government to the governed.158 LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.
WHEREFORE, the Petitions are partly granted. The Court rules that PP
1017 is CONSTITUTIONAL insofar as it constitutes a call by President
Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless x - - - - - - - - - - - - - - - - - - - - - - -x
violence. However, the provisions of PP 1017 commanding the AFP to
enforce laws not related to lawless violence, as well as decrees G.R. No. 193036
promulgated by the President, are declared UNCONSTITUTIONAL. In
addition, the provision in PP 1017 declaring national emergency under REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP.
Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA,
declaration does not authorize the President to take over privately-owned SR., Petitioners,
public utility or business affected with public interest without prior vs.
legislation. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and
DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which FLORENCIO B. ABAD, Respondents.
the AFP and the PNP should implement PP 1017, i.e. whatever is
"necessary and appropriate actions and measures to suppress and DECISION
prevent acts of lawless violence." Considering that "acts of terrorism"
have not yet been defined and made punishable by the Legislature, such MENDOZA, J.:
portion of G.O. No. 5 is declared UNCONSTITUTIONAL.
When the judiciary mediates to allocate constitutional boundaries, it does
The warrantless arrest of Randolf S. David and Ronald Llamas; the not assert any superiority over the other departments; it does not in
dispersal and warrantless arrest of the KMU and NAFLU-KMU members reality nullify or invalidate an act of the legislature, but only asserts the
during their rallies, in the absence of proof that these petitioners were solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them.
--- Justice Jose P. Laurel1
The role of the Constitution cannot be overlooked. It is through the
Constitution that the fundamental powers of government are established,
limited and defined, and by which these powers are distributed among
the several departments.2 The Constitution is the basic and paramount
law to which all other laws must conform and to which all persons,
including the highest officials of the land, must defer.3 Constitutional
doctrines must remain steadfast no matter what may be the tides of time.
It cannot be simply made to sway and accommodate the call of situations
and much more tailor itself to the whims and caprices of government and
the people who run it.4
For consideration before the Court are two consolidated cases5 both of
which essentially assail the validity and constitutionality of Executive
Order No. 1, dated July 30, 2010, entitled "Creating the Philippine Truth
Commission of 2010."
The first case is G.R. No. 192935, a special civil action for prohibition
instituted by petitioner Louis Biraogo (Biraogo) in his capacity as a citizen
and taxpayer. Biraogo assails Executive Order No. 1 for being violative of
the legislative power of Congress under Section 1, Article VI of the
Constitution6 as it usurps the constitutional authority of the legislature to
create a public office and to appropriate funds therefor.7
The second case, G.R. No. 193036, is a special civil action for certiorari
and prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano
Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-
legislators) as incumbent members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to
the historic May 2010 elections, when then Senator Benigno Simeon
Aquino III declared his staunch condemnation of graft and corruption with
his slogan, "Kung walang corrupt, walang mahirap." The Filipino people,
convinced of his sincerity and of his ability to carry out this noble
objective, catapulted the good senator to the presidency.
To transform his campaign slogan into reality, President Aquino found a
need for a special body to investigate reported cases of graft and
corruption allegedly committed during the previous administration.
Thus, at the dawn of his administration, the President on July 30, 2010,
signed Executive Order No. 1 establishing the Philippine Truth
Commission of 2010 (Truth Commission). Pertinent provisions of said
executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the
Philippines solemnly enshrines the principle that a public office is a public
trust and mandates that public officers and employees, who are servants
of the people, must at all times be accountable to the latter, serve them
with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of
this principle and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the
political, economic, and social life of a nation; in a very special way it
inflicts untold misfortune and misery on the poor, the marginalized and
underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming
levels, and undermined the people’s trust and confidence in the
Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth
regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the appropriate
cases against those involved, if warranted, and to deter others from
committing the evil, restore the people’s faith and confidence in the
Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the
Presidency in the last elections "kung walang corrupt, walang mahirap"
expresses a solemn pledge that if elected, he would end corruption and
the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases of
graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292,
otherwise known as the Revised Administrative Code of the Philippines,
gives the President the continuing authority to reorganize the Office of the
President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the
Republic of the Philippines, by virtue of the powers vested in me by law,
do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the "COMMISSION," which shall primarily seek and find the truth on, and
toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of
the people, committed by public officers and employees, their co-
principals, accomplices and accessories from the private sector, if any,
during the previous administration; and thereafter recommend the
appropriate action or measure to be taken thereon to ensure that the full
measure of justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members
who will act as an independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall
have all the powers of an investigative body under Section 37, Chapter 9,
Book I of the Administrative Code of 1987, is primarily tasked to conduct
a thorough fact-finding investigation of reported cases of graft and
corruption referred to in Section 1, involving third level public officers and
higher, their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration and thereafter submit its
finding and recommendations to the President, Congress and the
Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft
and corruption which it will investigate;
b) Collect, receive, review and evaluate evidence related
to or regarding the cases of large scale corruption which it
has chosen to investigate, and to this end require any
agency, official or employee of the Executive Branch,
including government-owned or controlled corporations, to
produce documents, books, records and other papers;
c) Upon proper request or representation, obtain
information and documents from the Senate and the
House of Representatives records of investigations
conducted by committees thereof relating to matters or
subjects being investigated by the Commission;
d) Upon proper request and representation, obtain
information from the courts, including the Sandiganbayan
and the Office of the Court Administrator, information or
documents in respect to corruption cases filed with the
Sandiganbayan or the regular courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies
and for that purpose, administer oaths or affirmations as
the case may be;
f) Recommend, in cases where there is a need to utilize
any person as a state witness to ensure that the ends of
justice be fully served, that such person who qualifies as a
state witness under the Revised Rules of Court of the
Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious
prosecution, to the appropriate prosecutorial authorities,
by means of a special or interim report and
recommendation, all evidence on corruption of public
officers and employees and their private sector co-
principals, accomplices or accessories, if any, when in the
course of its investigation the Commission finds that there
is reasonable ground to believe that they are liable for
graft and corruption under pertinent applicable laws;
h) Call upon any government investigative or
prosecutorial agency such as the Department of Justice
or any of the agencies under it, and the Presidential Anti-
Graft Commission, for such assistance and cooperation
 as it may require in the discharge of its functions and
duties;
i) Engage or contract the services of resource persons,
professionals and other personnel determined by it as
necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of
procedure it deems necessary to effectively and efficiently
carry out the objectives of this Executive Order and to
ensure the orderly conduct of its investigations,
proceedings and hearings, including the presentation of
evidence;
k) Exercise such other acts incident to or are appropriate
and necessary in connection with the objectives and
purposes of this Order.
SECTION 3. Staffing Requirements. – x x x.
SECTION 4. Detail of Employees. – x x x.
SECTION 5. Engagement of Experts. – x x x
SECTION 6. Conduct of Proceedings. – x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x x
x.
SECTION 8. Protection of Witnesses/Resource Persons. – x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give
Testimony. – Any government official or personnel who, without lawful
excuse, fails to appear upon subpoena issued by the Commission or
who, appearing before the Commission refuses to take oath or
affirmation, give testimony or produce documents for inspection, when
required, shall be subject to administrative disciplinary action. Any private
person who does the same may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. – x x x.
SECTION 11. Budget for the Commission. – The Office of the
President shall provide the necessary funds for the Commission to
ensure that it can exercise its powers, execute its functions, and perform
its duties and responsibilities as effectively, efficiently, and expeditiously
as possible.
SECTION 12. Office. – x x x.
SECTION 13. Furniture/Equipment. – x x x.
SECTION 14. Term of the Commission. – The Commission shall
accomplish its mission on or before December 31, 2012.
SECTION 15. Publication of Final Report. – x x x.
SECTION 16. Transfer of Records and Facilities of the Commission.
– x x x.
SECTION 17. Special Provision Concerning Mandate. If and when in
the judgment of the President there is a need to expand the mandate of
the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the
prior administrations, such mandate may be so extended accordingly by
way of a supplemental Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is
declared unconstitutional, the same shall not affect the validity and
effectivity of the other provisions hereof.
SECTION 19. Effectivity. – This Executive Order shall take effect
immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine Truth
Commission (PTC) is a mere ad hoc body formed under the Office of the
President with the primary task to investigate reports of graft and
corruption committed by third-level public officers and employees, their
co-principals, accomplices and accessories during the previous
administration, and thereafter to submit its finding and recommendations
to the President, Congress and the Ombudsman. Though it has been
described as an "independent collegial body," it is essentially an entity
within the Office of the President Proper and subject to his control.
Doubtless, it constitutes a public office, as an ad hoc body is one.8
To accomplish its task, the PTC shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987. It is not, however, a quasi-judicial body as it
cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes
between contending parties. All it can do is gather, collect and assess
evidence of graft and corruption and make recommendations. It may
have subpoena powers but it has no power to cite people in contempt,
much less order their arrest. Although it is a fact-finding body, it cannot
determine from such facts if probable cause exists as to warrant the filing
of an information in our courts of law. Needless to state, it cannot impose
criminal, civil or administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries which
have been created as official, transitory and non-judicial fact-finding
bodies "to establish the facts and context of serious violations of human
rights or of international humanitarian law in a country’s past."9 They are
usually established by states emerging from periods of internal unrest,
civil strife or authoritarianism to serve as mechanisms for transitional
justice.
Truth commissions have been described as bodies that share the
following characteristics: (1) they examine only past events; (2) they
investigate patterns of abuse committed over a period of time, as
opposed to a particular event; (3) they are temporary bodies that finish
their work with the submission of a report containing conclusions and
recommendations; and (4) they are officially sanctioned, authorized or
empowered by the State.10 "Commission’s members are usually
empowered to conduct research, support victims, and propose policy
recommendations to prevent recurrence of crimes. Through their
investigations, the commissions may aim to discover and learn more
about past abuses, or formally acknowledge them. They may aim to
prepare the way for prosecutions and recommend institutional reforms."11
Thus, their main goals range from retribution to reconciliation. The
Nuremburg and Tokyo war crime tribunals are examples of a retributory
or vindicatory body set up to try and punish those responsible for crimes
against humanity. A form of a reconciliatory tribunal is the Truth and
Reconciliation Commission of South Africa, the principal function of which
was to heal the wounds of past violence and to prevent future conflict by
providing a cathartic experience for victims.
The PTC is a far cry from South Africa’s model. The latter placed more
emphasis on reconciliation than on judicial retribution, while the marching
order of the PTC is the identification and punishment of perpetrators. As
one writer12puts it:
The order ruled out reconciliation. It translated the Draconian code
spelled out by Aquino in his inaugural speech: "To those who talk about
reconciliation, if they mean that they would like us to simply forget about
the wrongs that they have committed in the past, we have this to say:
There can be no reconciliation without justice. When we allow crimes to
go unpunished, we give consent to their occurring over and over again."
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the
petitioners asked the Court to declare it unconstitutional and to enjoin the
PTC from performing its functions. A perusal of the arguments of the
petitioners in both cases shows that they are essentially the same. The
petitioners-legislators summarized them in the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates
the power of the Congress to create a public office and
appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the
Administrative Code of 1987 cannot legitimize E.O. No. 1
because the delegated authority of the President to structurally
reorganize the Office of the President to achieve economy,
simplicity and efficiency does not include the power to create an
entirely new public office which was hitherto inexistent like the
"Truth Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent
statutes when it vested the "Truth Commission" with quasi-judicial
powers duplicating, if not superseding, those of the Office of the
 Ombudsman created under the 1987 Constitution and the
Department of Justice created under the Administrative Code of
1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively
targets for investigation and prosecution officials and personnel of
the previous administration as if corruption is their peculiar
species even as it excludes those of the other administrations,
past and present, who may be indictable.
(e) The creation of the "Philippine Truth Commission of 2010"
violates the consistent and general international practice of four
decades wherein States constitute truth commissions to
exclusively investigate human rights violations, which customary
practice forms part of the generally accepted principles of
international law which the Philippines is mandated to adhere to
pursuant to the Declaration of Principles enshrined in the
Constitution.
(f) The creation of the "Truth Commission" is an exercise in
futility, an adventure in partisan hostility, a launching pad for
trial/conviction by publicity and a mere populist propaganda to
mistakenly impress the people that widespread poverty will
altogether vanish if corruption is eliminated without even
addressing the other major causes of poverty.
(g) The mere fact that previous commissions were not
constitutionally challenged is of no moment because neither
laches nor estoppel can bar an eventual question on the
constitutionality and validity of an executive issuance or even a
statute."13
In their Consolidated Comment,14 the respondents, through the Office of
the Solicitor General (OSG), essentially questioned the legal standing of
petitioners and defended the assailed executive order with the following
arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create
a public office because the President’s executive power and
power of control necessarily include the inherent power to
conduct investigations to ensure that laws are faithfully executed
and that, in any event, the Constitution, Revised Administrative
Code of 1987 (E.O. No. 292), 15 Presidential Decree (P.D.) No.
141616 (as amended by P.D. No. 1772), R.A. No. 9970,17 and
settled jurisprudence that authorize the President to create or
form such bodies.
2] E.O. No. 1 does not usurp the power of Congress to
appropriate funds because there is no appropriation but a mere
allocation of funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the
functions of the Office of the Ombudsman (Ombudsman) and the
Department of Justice (DOJ), because it is a fact-finding body
and not a quasi-judicial body and its functions do not duplicate,
supplant or erode the latter’s jurisdiction.
4] The Truth Commission does not violate the equal protection
clause because it was validly created for laudable purposes.
The OSG then points to the continued existence and validity of other
executive orders and presidential issuances creating similar bodies to
justify the creation of the PTC such as Presidential Complaint and Action
Commission (PCAC) by President Ramon B. Magsaysay, Presidential
Committee on Administrative Performance Efficiency (PCAPE) by
President Carlos P. Garcia and Presidential Agency on Reform and
Government Operations (PARGO)by President Ferdinand E. Marcos.18
From the petitions, pleadings, transcripts, and memoranda, the following
are the principal issues to be resolved:
1. Whether or not the petitioners have the legal standing to file
their respective petitions and question Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of
separation of powers by usurping the powers of Congress to
create and to appropriate funds for public offices, agencies and
commissions;
3. Whether or not Executive Order No. 1 supplants the powers of
the Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal
protection clause; and
5. Whether or not petitioners are entitled to injunctive relief.
 Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of
Executive Order No. 1, the Court needs to ascertain whether the
requisites for a valid exercise of its power of judicial review are present.
Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person
challenging the act must have the standing to question the validity of the
subject act or issuance; otherwise stated, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the
issue of constitutionality must be the very lis mota of the case.19
Among all these limitations, only the legal standing of the petitioners has
been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to file
their petition for failure to demonstrate their personal stake in the
outcome of the case. It argues that the petitioners have not shown that
they have sustained or are in danger of sustaining any personal injury
attributable to the creation of the PTC. Not claiming to be the subject of
the commission’s investigations, petitioners will not sustain injury in its
creation or as a result of its proceedings.20
The Court disagrees with the OSG in questioning the legal standing of
the petitioners-legislators to assail Executive Order No. 1. Evidently, their
petition primarily invokes usurpation of the power of the Congress as a
body to which they belong as members. This certainly justifies their
resolve to take the cudgels for Congress as an institution and present the
complaints on the usurpation of their power and rights as members of the
legislature before the Court. As held in Philippine Constitution Association
v. Enriquez,21
To the extent the powers of Congress are impaired, so is the power of
each member thereof, since his office confers a right to participate in the
exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a
derivative but nonetheless substantial injury, which can be questioned by
a member of Congress. In such a case, any member of Congress can
have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the prerogative,
powers and privileges vested by the Constitution in their office remain
inviolate. Thus, they are allowed to question the validity of any official
action which, to their mind, infringes on their prerogatives as legislators.22
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no
standing to question the creation of the PTC and the budget for its
operations.23 It emphasizes that the funds to be used for the creation and
operation of the commission are to be taken from those funds already
appropriated by Congress. Thus, the allocation and disbursement of
funds for the commission will not entail congressional action but will
simply be an exercise of the President’s power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he
sustained, or is in danger of sustaining, any personal and direct injury
attributable to the implementation of Executive Order No. 1. Nowhere in
his petition is an assertion of a clear right that may justify his clamor for
the Court to exercise judicial power and to wield the axe over presidential
issuances in defense of the Constitution. The case of David v.
Arroyo24 explained the deep-seated rules on locus standi. Thus:
Locus standi is defined as "a right of appearance in a court of justice on a
given question." In private suits, standing is governed by the "real-parties-
in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of
Civil Procedure, as amended. It provides that "every action must be
prosecuted or defended in the name of the real party in interest."
Accordingly, the "real-party-in interest" is "the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the
avails of the suit." Succinctly put, the plaintiff’s standing is based on his
own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a
person who is affected no differently from any other person. He could be
suing as a "stranger," or in the category of a "citizen," or ‘taxpayer." In
either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a "citizen" or
"taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down
in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer’s
suit is in a different category from the plaintiff in a citizen’s suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in
the latter, he is but the mere instrument of the public concern. As held by
the New York Supreme Court in People ex rel Case v. Collins: "In matter
of mere public right, however…the people are the real parties…It is at
least the right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public
grievance be remedied." With respect to taxpayer’s suits, Terr v.
Jordan held that "the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds to his injury
cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with, and
thus hinders the activities of governmental agencies engaged in public
service, the United State Supreme Court laid down the more stringent
"direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v.
Ullman. The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result
of that action, and it is not sufficient that he has a general interest
common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People
v. Vera, it held that the person who impugns the validity of a statute must
have "a personal and substantial interest in the case such that he
has sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such as, Custodio v.
President of the Senate, Manila Race Horse Trainers’ Association v. De
la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese
League of the Philippines v. Felix. [Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on
standing is a matter of procedure, hence, can be relaxed for
nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when the matter is of
transcendental importance, of overreaching significance to society, or of
paramount public interest."25
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the Court held
that in cases of paramount importance where serious constitutional
questions are involved, the standing requirements may be relaxed and a
suit may be allowed to prosper even where there is no direct injury to the
party claiming the right of judicial review. In the first Emergency Powers
Cases,27 ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders although they had only an
indirect and general interest shared in common with the public.
The OSG claims that the determinants of transcendental
importance28 laid down in CREBA v. ERC and Meralco29are non-existent
in this case. The Court, however, finds reason in Biraogo’s assertion that
the petition covers matters of transcendental importance to justify the
exercise of jurisdiction by the Court. There are constitutional issues in the
petition which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. Where the issues are of
transcendental and paramount importance not only to the public but also
to the Bench and the Bar, they should be resolved for the guidance of
all.30 Undoubtedly, the Filipino people are more than interested to know
the status of the President’s first effort to bring about a promised change
to the country. The Court takes cognizance of the petition not due to
overwhelming political undertones that clothe the issue in the eyes of the
public, but because the Court stands firm in its oath to perform its
constitutional duty to settle legal controversies with overreaching
significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth
Commission is a public office and not merely an adjunct body of the
Office of the President.31 Thus, in order that the President may create a
public office he must be empowered by the Constitution, a statute or an
authorization vested in him by law. According to petitioner, such power
cannot be presumed32 since there is no provision in the Constitution or
any specific law that authorizes the President to create a truth
commission.33 He adds that Section 31 of the Administrative Code of
1987, granting the President the continuing authority to reorganize his
office, cannot serve as basis for the creation of a truth commission
considering the aforesaid provision merely uses verbs such as
"reorganize," "transfer," "consolidate," "merge," and "abolish."34 Insofar as
it vests in the President the plenary power to reorganize the Office of the
President to the extent of creating a public office, Section 31 is
inconsistent with the principle of separation of powers enshrined in the
Constitution and must be deemed repealed upon the effectivity thereof.35
Similarly, in G.R. No. 193036, petitioners-legislators argue that the
creation of a public office lies within the province of Congress and not
with the executive branch of government. They maintain that the
delegated authority of the President to reorganize under Section 31 of the
Revised Administrative Code: 1) does not permit the President to create
a public office, much less a truth commission; 2) is limited to the
reorganization of the administrative structure of the Office of the
President; 3) is limited to the restructuring of the internal organs of the
Office of the President Proper, transfer of functions and transfer of
agencies; and 4) only to achieve simplicity, economy and
efficiency.36Such continuing authority of the President to reorganize his
office is limited, and by issuing Executive Order No. 1, the President
overstepped the limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative about the
creation by the President of a fact-finding body such as a truth
commission. Pointing to numerous offices created by past presidents, it
argues that the authority of the President to create public offices within
the Office of the President Proper has long been recognized.37 According
to the OSG, the Executive, just like the other two branches of
government, possesses the inherent authority to create fact-finding
committees to assist it in the performance of its constitutionally mandated
functions and in the exercise of its administrative functions.38 This power,
as the OSG explains it, is but an adjunct of the plenary powers wielded
by the President under Section 1 and his power of control under Section
17, both of Article VII of the Constitution.39
It contends that the President is necessarily vested with the power to
conduct fact-finding investigations, pursuant to his duty to ensure that all
laws are enforced by public officials and employees of his department
and in the exercise of his authority to assume directly the functions of the
executive department, bureau and office, or interfere with the discretion
of his officials.40 The power of the President to investigate is not limited to
the exercise of his power of control over his subordinates in the executive
branch, but extends further in the exercise of his other powers, such as
his power to discipline subordinates,41 his power for rule making,
adjudication and licensing purposes42 and in order to be informed on
matters which he is entitled to know.43
The OSG also cites the recent case of Banda v. Ermita,44 where it was
held that the President has the power to reorganize the offices and
agencies in the executive department in line with his constitutionally
granted power of control and by virtue of a valid delegation of the
legislative power to reorganize executive offices under existing statutes.
Thus, the OSG concludes that the power of control necessarily includes
the power to create offices. For the OSG, the President may create the
PTC in order to, among others, put a closure to the reported large scale
graft and corruption in the government.45
The question, therefore, before the Court is this: Does the creation of the
PTC fall within the ambit of the power to reorganize as expressed in
Section 31 of the Revised Administrative Code? Section 31 contemplates
"reorganization" as limited by the following functional and structural lines:
(1) restructuring the internal organization of the Office of the President
Proper by abolishing, consolidating or merging units thereof or
transferring functions from one unit to another; (2) transferring any
function under the Office of the President to any other
Department/Agency or vice versa; or (3) transferring any agency under
the Office of the President to any other Department/Agency or vice versa.
Clearly, the provision refers to reduction of personnel, consolidation of
offices, or abolition thereof by reason of economy or redundancy of
functions. These point to situations where a body or an office is already
existent but a modification or alteration thereof has to be effected. The
creation of an office is nowhere mentioned, much less envisioned in said
provision. Accordingly, the answer to the question is in the negative.
To say that the PTC is borne out of a restructuring of the Office of the
President under Section 31 is a misplaced supposition, even in the
plainest meaning attributable to the term "restructure"– an "alteration of
an existing structure." Evidently, the PTC was not part of the structure of
the Office of the President prior to the enactment of Executive Order No.
1. As held in Buklod ng Kawaning EIIB v. Hon. Executive Secretary,46
But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch does not
have to end here. We must not lose sight of the very source of the power
– that which constitutes an express grant of power. Under Section 31,
Book III of Executive Order No. 292 (otherwise known as the
Administrative Code of 1987), "the President, subject to the policy in the
Executive Office and in order to achieve simplicity, economy and
efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the President." For this purpose,
he may transfer the functions of other Departments or Agencies to the
Office of the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)],
we ruled that reorganization "involves the reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions." It takes place when there is an alteration of the
existing structure of government offices or units therein, including the
lines of control, authority and responsibility between them. The EIIB is a
bureau attached to the Department of Finance. It falls under the Office of
the President. Hence, it is subject to the President’s continuing authority
to reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the
President’s power of control. Control is essentially the power to alter or
modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former
with that of the latter.47 Clearly, the power of control is entirely different
from the power to create public offices. The former is inherent in the
Executive, while the latter finds basis from either a valid delegation from
Congress, or his inherent duty to faithfully execute the laws.
The question is this, is there a valid delegation of power from Congress,
empowering the President to create a public office?
According to the OSG, the power to create a truth commission pursuant
to the above provision finds statutory basis under P.D. 1416, as amended
by P.D. No. 1772.48 The said law granted the President the continuing
authority to reorganize the national government, including the power to
group, consolidate bureaus and agencies, to abolish offices, to transfer
functions, to create and classify functions, services and activities, transfer
appropriations, and to standardize salaries and materials. This decree, in
relation to Section 20, Title I, Book III of E.O. 292 has been invoked in
several cases such as Larin v. Executive Secretary.49
The Court, however, declines to recognize P.D. No. 1416 as a
justification for the President to create a public office. Said decree is
already stale, anachronistic and inoperable. P.D. No. 1416 was a
delegation to then President Marcos of the authority to reorganize the
administrative structure of the national government including the power to
create offices and transfer appropriations pursuant to one of the purposes
of the decree, embodied in its last "Whereas" clause:
WHEREAS, the transition towards the parliamentary form of government
will necessitate flexibility in the organization of the national government.
Clearly, as it was only for the purpose of providing manageability and
resiliency during the interim, P.D. No. 1416, as amended by P.D. No.
1772, became functus oficio upon the convening of the First Congress,
as expressly provided in Section 6, Article XVIII of the 1987 Constitution.
In fact, even the Solicitor General agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was
the last whereas clause of P.D. 1416 says "it was enacted to prepare the
transition from presidential to parliamentary. Now, in a parliamentary form
of government, the legislative and executive powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued.
Now would you agree with me that P.D. 1416 should not be considered
effective anymore upon the promulgation, adoption, ratification of the
1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your
Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to
reorganize the entire National Government is deemed repealed, at least,
upon the adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.50
While the power to create a truth commission cannot pass muster on the
basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation of the
PTC finds justification under Section 17, Article VII of the Constitution,
imposing upon the President the duty to ensure that the laws are faithfully
executed. Section 17 reads:
Section 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of power in the
three principal branches of government is a grant of all powers inherent in
them. The President’s power to conduct investigations to aid him in
ensuring the faithful execution of laws – in this case, fundamental laws on
public accountability and transparency – is inherent in the President’s
powers as the Chief Executive. That the authority of the President to
conduct investigations and to create bodies to execute this power is not
explicitly mentioned in the Constitution or in statutes does not mean that
he is bereft of such authority.51 As explained in the landmark case of
Marcos v. Manglapus:52
x x x. The 1987 Constitution, however, brought back the presidential
system of government and restored the separation of legislative,
executive and judicial powers by their actual distribution among three
distinct branches of government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the
power to enforce the laws, for the President is head of state as well as
head of government and whatever powers inhere in such positions
pertain to the office unless the Constitution itself withholds it.
Furthermore, the Constitution itself provides that the execution of the
laws is only one of the powers of the President. It also grants the
President other powers that do not involve the execution of any provision
of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said
to be limited only to the specific powers enumerated in the Constitution.
In other words, executive power is more than the sum of specific powers
so enumerated.
It has been advanced that whatever power inherent in the government
that is neither legislative nor judicial has to be executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our laws are
faithfully executed. As stated above, the powers of the President are not
limited to those specific powers under the Constitution.53 One of the
recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc committees.
This flows from the obvious need to ascertain facts and determine if laws
have been faithfully executed. Thus, in Department of Health v.
Camposano,54 the authority of the President to issue Administrative Order
No. 298, creating an investigative committee to look into the
administrative charges filed against the employees of the Department of
Health for the anomalous purchase of medicines was upheld. In said
case, it was ruled:
The Chief Executive’s power to create the Ad hoc Investigating
Committee cannot be doubted. Having been constitutionally granted
full control of the Executive Department, to which respondents belong,
the President has the obligation to ensure that all executive officials and
employees faithfully comply with the law. With AO 298 as mandate, the
legality of the investigation is sustained. Such validity is not affected by
the fact that the investigating team and the PCAGC had the same
composition, or that the former used the offices and facilities of the latter
in conducting the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating
bodies to exist is to allow an inquiry into matters which the President is
entitled to know so that he can be properly advised and guided in the
performance of his duties relative to the execution and enforcement of
the laws of the land. And if history is to be revisited, this was also the
objective of the investigative bodies created in the past like the PCAC,
PCAPE, PARGO, the Feliciano Commission, the Melo Commission and
the Zenarosa Commission. There being no changes in the government
structure, the Court is not inclined to declare such executive power as
non-existent just because the direction of the political winds have
changed.
On the charge that Executive Order No. 1 transgresses the power of
Congress to appropriate funds for the operation of a public office, suffice
it to say that there will be no appropriation but only an allotment or
allocations of existing funds already appropriated. Accordingly, there is
no usurpation on the part of the Executive of the power of Congress to
appropriate funds. Further, there is no need to specify the amount to be
earmarked for the operation of the commission because, in the words of
the Solicitor General, "whatever funds the Congress has provided for the
Office of the President will be the very source of the funds for the
commission."55 Moreover, since the amount that would be allocated to the
PTC shall be subject to existing auditing rules and regulations, there is no
impropriety in the funding.
Power of the Truth Commission to Investigate
The President’s power to conduct investigations to ensure that laws are
faithfully executed is well recognized. It flows from the faithful-execution
clause of the Constitution under Article VII, Section 17 thereof.56 As the
Chief Executive, the president represents the government as a whole and
sees to it that all laws are enforced by the officials and employees of his
department. He has the authority to directly assume the functions of the
executive department.57
Invoking this authority, the President constituted the PTC to primarily
investigate reports of graft and corruption and to recommend the
appropriate action. As previously stated, no quasi-judicial powers have
been vested in the said body as it cannot adjudicate rights of persons
who come before it. It has been said that "Quasi-judicial powers involve
the power to hear and determine questions of fact to which the legislative
policy is to apply and to decide in accordance with the standards laid
down by law itself in enforcing and administering the same law."58 In
simpler terms, judicial discretion is involved in the exercise of these
quasi-judicial power, such that it is exclusively vested in the judiciary and
must be clearly authorized by the legislature in the case of administrative
agencies.
The distinction between the power to investigate and the power to
adjudicate was delineated by the Court in Cariño v. Commission on
Human Rights.59 Thus:
"Investigate," commonly understood, means to examine, explore, inquire
or delve or probe into, research on, study. The dictionary definition of
"investigate" is "to observe or study closely: inquire into systematically:
"to search or inquire into: x x to subject to an official probe x x: to conduct
an official inquiry." The purpose of investigation, of course, is to discover,
to find out, to learn, obtain information. Nowhere included or intimated is
the notion of settling, deciding or resolving a controversy involved in the
facts inquired into by application of the law to the facts established by the
inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up
step by step by patient inquiry or observation. To trace or track; to search
into; to examine and inquire into with care and accuracy; to find out by
careful inquisition; examination; the taking of evidence; a legal inquiry;"
"to inquire; to make an investigation," "investigation" being in turn
described as "(a)n administrative function, the exercise of which ordinarily
does not require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry,
judicial or otherwise, for the discovery and collection of facts concerning a
certain matter or matters."
"Adjudicate," commonly or popularly understood, means to adjudge,
arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary
defines the term as "to settle finally (the rights and duties of the parties to
a court case) on the merits of issues raised: x x to pass judgment on:
settle judicially: x x act as judge." And "adjudge" means "to decide or rule
upon as a judge or with judicial or quasi-judicial powers: x x to award or
grant judicially in a case of controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of
judicial authority. To determine finally. Synonymous with adjudge in its
strictest sense;" and "adjudge" means: "To pass on judicially, to decide,
settle or decree, or to sentence or condemn. x x. Implies a judicial
determination of a fact, and the entry of a judgment." [Italics included.
Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or office. The
function of receiving evidence and ascertaining therefrom the facts of a
controversy is not a judicial function. To be considered as such, the act of
receiving evidence and arriving at factual conclusions in a controversy
must be accompanied by the authority of applying the law to the factual
conclusions to the end that the controversy may be decided or resolved
authoritatively, finally and definitively, subject to appeals or modes of
review as may be provided by law.60 Even respondents themselves admit
that the commission is bereft of any quasi-judicial power.61
Contrary to petitioners’ apprehension, the PTC will not supplant the
Ombudsman or the DOJ or erode their respective powers. If at all, the
investigative function of the commission will complement those of the two
offices. As pointed out by the Solicitor General, the recommendation to
prosecute is but a consequence of the overall task of the commission to
conduct a fact-finding investigation."62 The actual prosecution of
suspected offenders, much less adjudication on the merits of the charges
against them,63 is certainly not a function given to the commission. The
phrase, "when in the course of its investigation," under Section 2(g),
highlights this fact and gives credence to a contrary interpretation from
that of the petitioners. The function of determining probable cause for the
filing of the appropriate complaints before the courts remains to be with
the DOJ and the Ombudsman.64
At any rate, the Ombudsman’s power to investigate under R.A. No. 6770
is not exclusive but is shared with other similarly authorized government
agencies. Thus, in the case of Ombudsman v. Galicia,65 it was written:
This power of investigation granted to the Ombudsman by the 1987
Constitution and The Ombudsman Act is not exclusive but is shared with
other similarly authorized government agencies such as the PCGG and
judges of municipal trial courts and municipal circuit trial courts. The
power to conduct preliminary investigation on charges against public
employees and officials is likewise concurrently shared with the
Department of Justice. Despite the passage of the Local Government
Code in 1991, the Ombudsman retains concurrent jurisdiction with the
Office of the President and the local Sanggunians to investigate
complaints against local elective officials. [Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the
Ombudsman to investigate criminal cases under Section 15 (1) of R.A.
No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any person,
any act or omission of any public officer or employee, office or agency,
when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of its primary jurisdiction, it may take
over, at any stage, from any investigatory agency of government, the
investigation of such cases. [Emphases supplied]
The act of investigation by the Ombudsman as enunciated above
contemplates the conduct of a preliminary investigation or the
determination of the existence of probable cause. This is categorically out
of the PTC’s sphere of functions. Its power to investigate is limited to
obtaining facts so that it can advise and guide the President in the
performance of his duties relative to the execution and enforcement of
the laws of the land. In this regard, the PTC commits no act of usurpation
of the Ombudsman’s primordial duties.
The same holds true with respect to the DOJ. Its authority under Section
3 (2), Chapter 1, Title III, Book IV in the Revised Administrative Code is
by no means exclusive and, thus, can be shared with a body likewise
tasked to investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the
findings of the PTC are to be accorded conclusiveness. Much like its
predecessors, the Davide Commission, the Feliciano Commission and
the Zenarosa Commission, its findings would, at best, be
recommendatory in nature. And being so, the Ombudsman and the DOJ
have a wider degree of latitude to decide whether or not to reject the
recommendation. These offices, therefore, are not deprived of their
mandated duties but will instead be aided by the reports of the PTC for
possible indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the
investigative power of the President, the Court finds difficulty in upholding
the constitutionality of Executive Order No. 1 in view of its apparent
transgression of the equal protection clause enshrined in Section 1,
Article III (Bill of Rights) of the 1987 Constitution. Section 1 reads:
Section 1. No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal protection
of the laws.
The petitioners assail Executive Order No. 1 because it is violative of this
constitutional safeguard. They contend that it does not apply equally to all
members of the same class such that the intent of singling out the
"previous administration" as its sole object makes the PTC an "adventure
in partisan hostility."66 Thus, in order to be accorded with validity, the
commission must also cover reports of graft and corruption in virtually all
administrations previous to that of former President Arroyo.67
The petitioners argue that the search for truth behind the reported cases
of graft and corruption must encompass acts committed not only during
the administration of former President Arroyo but also during prior
administrations where the "same magnitude of controversies and
anomalies"68 were reported to have been committed against the Filipino
people. They assail the classification formulated by the respondents as it
does not fall under the recognized exceptions because first, "there is no
substantial distinction between the group of officials targeted for
investigation by Executive Order No. 1 and other groups or persons who
abused their public office for personal gain; and second, the selective
classification is not germane to the purpose of Executive Order No. 1 to
end corruption."69 In order to attain constitutional permission, the
petitioners advocate that the commission should deal with "graft and
grafters prior and subsequent to the Arroyo administration with the strong
arm of the law with equal force."70
Position of respondents
According to respondents, while Executive Order No. 1 identifies the
"previous administration" as the initial subject of the investigation,
following Section 17 thereof, the PTC will not confine itself to cases of
large scale graft and corruption solely during the said
administration.71 Assuming arguendo that the commission would confine
its proceedings to officials of the previous administration, the petitioners
argue that no offense is committed against the equal protection clause for
"the segregation of the transactions of public officers during the previous
administration as possible subjects of investigation is a valid classification
based on substantial distinctions and is germane to the evils which the
Executive Order seeks to correct."72 To distinguish the Arroyo
administration from past administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large scale
graft and corruption in the previous administration which have eroded
public confidence in public institutions. There is, therefore, an urgent call
for the determination of the truth regarding certain reports of large scale
graft and corruption in the government and to put a closure to them by
the filing of the appropriate cases against those involved, if warranted,
and to deter others from committing the evil, restore the people’s faith
and confidence in the Government and in their public servants.
Second. The segregation of the preceding administration as the object of
fact-finding is warranted by the reality that unlike with administrations
long gone, the current administration will most likely bear the immediate
consequence of the policies of the previous administration.
Third. The classification of the previous administration as a separate
class for investigation lies in the reality that the evidence of possible
criminal activity, the evidence that could lead to recovery of public monies
illegally dissipated, the policy lessons to be learned to ensure that anti-
corruption laws are faithfully executed, are more easily established in the
regime that immediately precede the current administration.
Fourth. Many administrations subject the transactions of their
predecessors to investigations to provide closure to issues that are
pivotal to national life or even as a routine measure of due diligence and
good housekeeping by a nascent administration like the Presidential
Commission on Good Government (PCGG), created by the late President
Corazon C. Aquino under Executive Order No. 1 to pursue the recovery
of ill-gotten wealth of her predecessor former President Ferdinand
Marcos and his cronies, and the Saguisag Commission created by former
President Joseph Estrada under Administrative Order No, 53, to form an
ad-hoc and independent citizens’ committee to investigate all the facts
and circumstances surrounding "Philippine Centennial projects" of his
predecessor, former President Fidel V. Ramos.73 [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is that
of the equality of right which is embodied in Section 1, Article III of the
1987 Constitution. The equal protection of the laws is embraced in the
concept of due process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in a separate
clause, however, to provide for a more specific guaranty against any form
of undue favoritism or hostility from the government. Arbitrariness in
general may be challenged on the basis of the due process clause. But if
the particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal protection
clause.74
"According to a long line of decisions, equal protection simply requires
that all persons or things similarly situated should be treated alike, both
as to rights conferred and responsibilities imposed."75 It "requires public
bodies and institutions to treat similarly situated individuals in a similar
manner."76 "The purpose of the equal protection clause is to secure every
person within a state’s jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by
its improper execution through the state’s duly constituted
authorities."77 "In other words, the concept of equal justice under the law
requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a
legitimate governmental objective."78
The equal protection clause is aimed at all official state actions, not just
those of the legislature.79 Its inhibitions cover all the departments of the
government including the political and executive departments, and extend
to all actions of a state denying equal protection of the laws, through
whatever agency or whatever guise is taken. 80
It, however, does not require the universal application of the laws to all
persons or things without distinction. What it simply requires is equality
among equals as determined according to a valid classification. Indeed,
the equal protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness. The test has
four requisites: (1) The classification rests on substantial distinctions; (2)
It is germane to the purpose of the law; (3) It is not limited to existing
conditions only; and
(4) It applies equally to all members of the same class.81 "Superficial
differences do not make for a valid classification."82
For a classification to meet the requirements of constitutionality, it must
include or embrace all persons who naturally belong to the class.83 "The
classification will be regarded as invalid if all the members of the class
are not similarly treated, both as to rights conferred and obligations
imposed. It is not necessary that the classification be made with absolute
symmetry, in the sense that the members of the class should possess the
same characteristics in equal degree. Substantial similarity will suffice;
and as long as this is achieved, all those covered by the classification are
to be treated equally. The mere fact that an individual belonging to a
class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the non-
application of the law to him."84
The classification must not be based on existing circumstances only, or
so constituted as to preclude addition to the number included in the class.
It must be of such a nature as to embrace all those who may thereafter
be in similar circumstances and conditions. It must not leave out or
"underinclude" those that should otherwise fall into a certain
classification. As elucidated in Victoriano v. Elizalde Rope Workers'
Union85 and reiterated in a long line of cases,86
The guaranty of equal protection of the laws is not a guaranty of equality
in the application of the laws upon all citizens of the state. It is not,
therefore, a requirement, in order to avoid the constitutional prohibition
against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean
indiscriminate operation on persons merely as such, but on persons
according to the circumstances surrounding them. It guarantees equality,
not identity of rights. The Constitution does not require that things which
are different in fact be treated in law as though they were the same. The
equal protection clause does not forbid discrimination as to things that
are different. It does not prohibit legislation which is limited either in the
object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not
invalid because of simple inequality. The very idea of classification is that
of inequality, so that it goes without saying that the mere fact of inequality
in no manner determines the matter of constitutionality. All that is
required of a valid classification is that it be reasonable, which means that
the classification should be based on substantial distinctions which make
for real differences, that it must be germane to the purpose of the law;
that it must not be limited to existing conditions only; and that it must
apply equally to each member of the class. This Court has held that the
standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary.
[Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be
struck down as violative of the equal protection clause. The clear
mandate of the envisioned truth commission is to investigate and find out
the truth "concerning the reported cases of graft and corruption during the
previous administration"87 only. The intent to single out the previous
administration is plain, patent and manifest. Mention of it has been made
in at least three portions of the questioned executive order. Specifically,
these are:
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases of
graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;
SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the "COMMISSION," which shall primarily seek and find the truth on, and
toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of
the people, committed by public officers and employees, their co-
principals, accomplices and accessories from the private sector, if any,
during the previous administration; and thereafter recommend the
appropriate action or measure to be taken thereon to ensure that the full
measure of justice shall be served without fear or favor.
SECTION 2. Powers and Functions. – The Commission, which shall
have all the powers of an investigative body under Section 37, Chapter 9,
Book I of the Administrative Code of 1987, is primarily tasked to conduct
a thorough fact-finding investigation of reported cases of graft and
corruption referred to in Section 1, involving third level public officers and
higher, their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration and thereafter submit its
finding and recommendations to the President, Congress and the
Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration is
but just a member of a class, that is, a class of past administrations. It is
not a class of its own. Not to include past administrations similarly
situated constitutes arbitrariness which the equal protection clause
cannot sanction. Such discriminating differentiation clearly reverberates
to label the commission as a vehicle for vindictiveness and selective
retribution.
Though the OSG enumerates several differences between the Arroyo
administration and other past administrations, these distinctions are not
substantial enough to merit the restriction of the investigation to the
"previous administration" only. The reports of widespread corruption in
the Arroyo administration cannot be taken as basis for distinguishing said
administration from earlier administrations which were also blemished by
similar widespread reports of impropriety. They are not inherent in, and
do not inure solely to, the Arroyo administration. As Justice Isagani Cruz
put it, "Superficial differences do not make for a valid classification."88
The public needs to be enlightened why Executive Order No. 1 chooses
to limit the scope of the intended investigation to the previous
administration only. The OSG ventures to opine that "to include other
past administrations, at this point, may unnecessarily overburden the
commission and lead it to lose its effectiveness."89The reason given is
specious. It is without doubt irrelevant to the legitimate and noble
objective of the PTC to stamp out or "end corruption and the evil it
breeds."90
The probability that there would be difficulty in unearthing evidence or
that the earlier reports involving the earlier administrations were already
inquired into is beside the point. Obviously, deceased presidents and
cases which have already prescribed can no longer be the subjects of
inquiry by the PTC. Neither is the PTC expected to conduct simultaneous
investigations of previous administrations, given the body’s limited time
and resources. "The law does not require the impossible" (Lex non cogit
ad impossibilia).91
Given the foregoing physical and legal impossibility, the Court logically
recognizes the unfeasibility of investigating almost a century’s worth of
graft cases. However, the fact remains that Executive Order No. 1 suffers
from arbitrary classification. The PTC, to be true to its mandate of
searching for the truth, must not exclude the other past administrations.
The PTC must, at least, have the authority to investigate all past
administrations. While reasonable prioritization is permitted, it should
not be arbitrary lest it be struck down for being unconstitutional. In the
often quoted language of Yick Wo v. Hopkins,92
Though the law itself be fair on its face and impartial in appearance, yet,
if applied and administered by public authority with an evil eye and an
unequal hand, so as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their rights, the
denial of equal justice is still within the prohibition of the constitution.
[Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body, its
scope is limited. The Court, however, is of the considered view that
although its focus is restricted, the constitutional guarantee of equal
protection under the laws should not in any way be circumvented. The
Constitution is the fundamental and paramount law of the nation to which
all other laws must conform and in accordance with which all private
rights determined and all public authority administered.93 Laws that do not
conform to the Constitution should be stricken down for being
unconstitutional.94While the thrust of the PTC is specific, that is, for
investigation of acts of graft and corruption, Executive Order No. 1, to
survive, must be read together with the provisions of the Constitution. To
exclude the earlier administrations in the guise of "substantial
distinctions" would only confirm the petitioners’ lament that the subject
executive order is only an "adventure in partisan hostility." In the case
of US v. Cyprian,95 it was written: "A rather limited number of such
classifications have routinely been held or assumed to be arbitrary; those
include: race, national origin, gender, political activity or membership in a
political party, union activity or membership in a labor union, or more
generally the exercise of first amendment rights."
To reiterate, in order for a classification to meet the requirements of
constitutionality, it must include or embrace all persons who naturally
belong to the class.96 "Such a classification must not be based on existing
circumstances only, or so constituted as to preclude additions to the
number included within a class, but must be of such a nature as to
embrace all those who may thereafter be in similar circumstances and
conditions. Furthermore, all who are in situations and circumstances
which are relative to the discriminatory legislation and which are
indistinguishable from those of the members of the class must be brought
under the influence of the law and treated by it in the same way as are
the members of the class."97
The Court is not unaware that "mere underinclusiveness is not fatal to the
validity of a law under the equal protection clause."98 "Legislation is not
unconstitutional merely because it is not all-embracing and does not
include all the evils within its reach."99 It has been written that a regulation
challenged under the equal protection clause is not devoid of a rational
predicate simply because it happens to be incomplete.100 In several
instances, the underinclusiveness was not considered a valid reason to
strike down a law or regulation where the purpose can be attained in
future legislations or regulations. These cases refer to the "step by step"
process.101 "With regard to equal protection claims, a legislature does not
run the risk of losing the entire remedial scheme simply because it fails,
through inadvertence or otherwise, to cover every evil that might
conceivably have been attacked."102
In Executive Order No. 1, however, there is no inadvertence. That the
previous administration was picked out was deliberate and intentional as
can be gleaned from the fact that it was underscored at least three times
in the assailed executive order. It must be noted that Executive Order No.
1 does not even mention any particular act, event or report to be focused
on unlike the investigative commissions created in the past. "The equal
protection clause is violated by purposeful and intentional
discrimination."103
To disprove petitioners’ contention that there is deliberate discrimination,
the OSG clarifies that the commission does not only confine itself to
cases of large scale graft and corruption committed during the previous
administration.104The OSG points to Section 17 of Executive Order No. 1,
which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in the
judgment of the President there is a need to expand the mandate of the
Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior
administrations, such mandate may be so extended accordingly by way
of a supplemental Executive Order.
The Court is not convinced. Although Section 17 allows the President the
discretion to expand the scope of investigations of the PTC so as to
include the acts of graft and corruption committed in other past
administrations, it does not guarantee that they would be covered in the
future. Such expanded mandate of the commission will still depend on
the whim and caprice of the President. If he would decide not to include
them, the section would then be meaningless. This will only fortify the
fears of the petitioners that the Executive Order No. 1 was "crafted to
tailor-fit the prosecution of officials and personalities of the Arroyo
administration."105
The Court tried to seek guidance from the pronouncement in the case
of Virata v. Sandiganbayan,106 that the "PCGG Charter (composed of
Executive Orders Nos. 1, 2 and 14) does not violate the equal protection
clause." The decision, however, was devoid of any discussion on how
such conclusory statement was arrived at, the principal issue in said case
being only the sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present is - whether or not
the Supreme Court, in the exercise of its constitutionally mandated power
of Judicial Review with respect to recent initiatives of the legislature and
the executive department, is exercising undue interference. Is the Highest
Tribunal, which is expected to be the protector of the Constitution, itself
guilty of violating fundamental tenets like the doctrine of separation of
powers? Time and again, this issue has been addressed by the Court,
but it seems that the present political situation calls for it to once again
explain the legal basis of its action lest it continually be accused of being
a hindrance to the nation’s thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of the
1987 Constitution, is vested with Judicial Power that "includes the duty of
the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not
there has been a grave of abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
government."
Furthermore, in Section 4(2) thereof, it is vested with the power of judicial
review which is the power to declare a treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation unconstitutional. This power also includes the
duty to rule on the constitutionality of the application, or operation of
presidential decrees, proclamations, orders, instructions, ordinances, and
other regulations. These provisions, however, have been fertile grounds
of conflict between the Supreme Court, on one hand, and the two co-
equal bodies of government, on the other. Many times the Court has
been accused of asserting superiority over the other departments.
To answer this accusation, the words of Justice Laurel would be a good
source of enlightenment, to wit: "And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over
the other departments; it does not in reality nullify or invalidate an act of
the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and
guarantees to them."107
Thus, the Court, in exercising its power of judicial review, is not imposing
its own will upon a co-equal body but rather simply making sure that any
act of government is done in consonance with the authorities and rights
allocated to it by the Constitution. And, if after said review, the Court finds
no constitutional violations of any sort, then, it has no more authority of
proscribing the actions under review. Otherwise, the Court will not be
deterred to pronounce said act as void and unconstitutional.
It cannot be denied that most government actions are inspired with noble
intentions, all geared towards the betterment of the nation and its people.
But then again, it is important to remember this ethical principle: "The end
does not justify the means." No matter how noble and worthy of
admiration the purpose of an act, but if the means to be employed in
accomplishing it is simply irreconcilable with constitutional parameters,
then it cannot still be allowed.108 The Court cannot just turn a blind eye
and simply let it pass. It will continue to uphold the Constitution and its
enshrined principles.
"The Constitution must ever remain supreme. All must bow to the
mandate of this law. Expediency must not be allowed to sap its strength
nor greed for power debase its rectitude."109
Lest it be misunderstood, this is not the death knell for a truth commission
as nobly envisioned by the present administration. Perhaps a revision of
the executive issuance so as to include the earlier past administrations
would allow it to pass the test of reasonableness and not be an affront to
the Constitution. Of all the branches of the government, it is the judiciary
which is the most interested in knowing the truth and so it will not allow
itself to be a hindrance or obstacle to its attainment. It must, however, be
emphasized that the search for the truth must be within constitutional
bounds for "ours is still a government of laws and not of men."110
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is
hereby declared UNCONSTITUTIONAL insofar as it is violative of the
equal protection clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease and
desist from carrying out the provisions of Executive Order No. 1.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 181704 December 6, 2011
BUREAU OF CUSTOMS EMPLOYEES ASSOCIATION (BOCEA),
represented by its National President (BOCEA National Executive
Council) Mr. Romulo A. Pagulayan, Petitioner,
vs.
HON. MARGARITO B. TEVES, in his capacity as Secretary of the
Department of Finance, HON. NAPOLEON L. MORALES, in his
capacity as Commissioner of the Bureau of Customs, HON. LILIAN
B. HEFTI, in her capacity as Commissioner of the Bureau of Internal
Revenue, Respondents.
DECISION
VILLARAMA, JR., J.:
Before this Court is a petition1 for certiorari and prohibition with prayer for
injunctive relief/s under Rule 65 of the 1997 Rules of Civil Procedure, as
amended, to declare Republic Act (R.A.) No. 9335,2 otherwise known as
the Attrition Act of 2005, and its Implementing Rules and
Regulations3 (IRR) unconstitutional, and the implementation thereof be
enjoined permanently.
The Facts
On January 25, 2005, former President Gloria Macapagal-Arroyo signed
into law R.A. No. 9335 which took effect on February 11, 2005.
In Abakada Guro Party List v. Purisima4 (Abakada), we said of R.A. No.
9335:
RA [No.] 9335 was enacted to optimize the revenue-generation capability
and collection of the Bureau of Internal Revenue (BIR) and the Bureau of
Customs (BOC). The law intends to encourage BIR and BOC officials
and employees to exceed their revenue targets by providing a system of
rewards and sanctions through the creation of a Rewards and Incentives
Fund (Fund) and a Revenue Performance Evaluation Board (Board). It
covers all officials and employees of the BIR and the BOC with at least
six months of service, regardless of employment status.
The Fund is sourced from the collection of the BIR and the BOC in
excess of their revenue targets for the year, as determined by the
Development Budget and Coordinating Committee (DBCC). Any
incentive or reward is taken from the fund and allocated to the BIR and
the BOC in proportion to their contribution in the excess collection of the
targeted amount of tax revenue.
The Boards in the BIR and the BOC are composed of the Secretary of
the Department of Finance (DOF) or his/her Undersecretary, the
Secretary of the Department of Budget and Management (DBM) or
his/her Undersecretary, the Director General of the National Economic
Development Authority (NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their Deputy Commissioners,
two representatives from the rank-and-file employees and a
representative from the officials nominated by their recognized
organization.
Each Board has the duty to (1) prescribe the rules and guidelines for the
allocation, distribution and release of the Fund; (2) set criteria and
procedures for removing from the service officials and employees whose
revenue collection falls short of the target; (3) terminate personnel in
accordance with the criteria adopted by the Board; (4) prescribe a system
for performance evaluation; (5) perform other functions, including the
issuance of rules and regulations and (6) submit an annual report to
Congress.
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission
(CSC) were tasked to promulgate and issue the implementing rules and
regulations of RA [No.] 9335, to be approved by a Joint Congressional
Oversight Committee created for such purpose.5
The Joint Congressional Oversight Committee approved the assailed IRR
on May 22, 2006. Subsequently, the IRR was published on May 30, 2006
in two newspapers of general circulation, the Philippine Star and the
Manila Standard, and became effective fifteen (15) days later.6
Contending that the enactment and implementation of R.A. No. 9335 are
tainted with constitutional infirmities in violation of the fundamental rights
of its members, petitioner Bureau of Customs Employees Association
(BOCEA), an association of rank-and-file employees of the Bureau of
Customs (BOC), duly registered with the Department of Labor and
Employment (DOLE) and the Civil Service Commission (CSC), and
represented by its National President, Mr. Romulo A. Pagulayan
(Pagulayan), directly filed the present petition before this Court against
respondents Margarito B. Teves, in his capacity as Secretary of the
Department of Finance (DOF), Commissioner Napoleon L. Morales
(Commissioner Morales), in his capacity as BOC Commissioner, and
Lilian B. Hefti, in her capacity as Commissioner of the Bureau of Internal
Revenue (BIR). In its petition, BOCEA made the following averments:
Sometime in 2008, high-ranking officials of the BOC pursuant to the
mandate of R.A. No. 9335 and its IRR, and in order to comply with the
stringent deadlines thereof, started to disseminate Collection District
Performance Contracts7 (Performance Contracts) for the lower ranking
officials and rank-and-file employees to sign. The Performance Contract
pertinently provided:
xxxx
WHEREAS, pursuant to the provisions of Sec. 25 (b) of the Implementing
Rules and Regulations (IRR) of the Attrition Act of 2005, that provides for
the setting of criteria and procedures for removing from the service
Officials and Employees whose revenue collection fall short of the target
in accordance with Section 7 of Republic Act 9335.
xxxx
NOW, THEREFORE, for and in consideration of the foregoing premises,
parties unto this Agreement hereby agree and so agreed to perform the
following:
xxxx
2. The "Section 2, PA/PE" hereby accepts the allocated Revenue
Collection Target and further accepts/commits to meet the said target
under the following conditions:
a.) That he/she will meet the allocated Revenue Collection Target
and thereby undertakes and binds himself/herself that in the
event the revenue collection falls short of the target with due
consideration of all relevant factors affecting the level of collection
as provided in the rules and regulations promulgated under the
 Act and its IRR, he/she will voluntarily submit to the provisions of
Sec. 25 (b) of the IRR and Sec. 7 of the Act; and
b.) That he/she will cascade and/or allocate to respective
Appraisers/Examiners or Employees under his/her section the
said Revenue Collection Target and require them to execute a
Performance Contract, and direct them to accept their individual
target. The Performance Contract executed by the respective
Examiners/Appraisers/Employees shall be submitted to the Office
of the Commissioner through the LAIC on or before March 31,
2008.
x x x x8
BOCEA opined that the revenue target was impossible to meet due to the
Government’s own policies on reduced tariff rates and tax breaks to big
businesses, the occurrence of natural calamities and because of other
economic factors. BOCEA claimed that some BOC employees were
coerced and forced to sign the Performance Contract. The majority of
them, however, did not sign. In particular, officers of BOCEA were
summoned and required to sign the Performance Contracts but they also
refused. To ease the brewing tension, BOCEA claimed that its officers
sent letters, and sought several dialogues with BOC officials but the latter
refused to heed them.
In addition, BOCEA alleged that Commissioner Morales exerted heavy
pressure on the District Collectors, Chiefs of Formal Entry Divisions,
Principal Customs Appraisers and Principal Customs Examiners of the
BOC during command conferences to make them sign their Performance
Contracts. Likewise, BOC Deputy Commissioner Reynaldo Umali
(Deputy Commissioner Umali) individually spoke to said personnel to
convince them to sign said contracts. Said personnel were threatened
that if they do not sign their respective Performance Contracts, they
would face possible reassignment, reshuffling, or worse, be placed on
floating status. Thus, all the District Collectors, except a certain Atty.
Carlos So of the Collection District III of the Ninoy Aquino International
Airport (NAIA), signed the Performance Contracts.
BOCEA further claimed that Pagulayan was constantly harassed and
threatened with lawsuits. Pagulayan approached Deputy Commissioner
Umali to ask the BOC officials to stop all forms of harassment, but the
latter merely said that he would look into the matter. On February 5,
2008, BOCEA through counsel wrote the Revenue Performance
Evaluation Board (Board) to desist from implementing R.A. No. 9335 and
its IRR and from requiring rank-and-file employees of the BOC and BIR to
sign Performance Contracts.9 In his letter-reply10 dated February 12,
2008, Deputy Commissioner Umali denied having coerced any BOC
employee to sign a Performance Contract. He also defended the BOC,
invoking its mandate of merely implementing the law. Finally, Pagulayan
and BOCEA’s counsel, on separate occasions, requested for a certified
true copy of the Performance Contract from Deputy Commissioner Umali
but the latter failed to furnish them a copy.11
This petition was filed directly with this Court on March 3, 2008. BOCEA
asserted that in view of the unconstitutionality of R.A. No. 9335 and its
IRR, and their adverse effects on the constitutional rights of BOC officials
and employees, direct resort to this Court is justified. BOCEA argued,
among others, that its members and other BOC employees are in great
danger of losing their jobs should they fail to meet the required quota
provided under the law, in clear violation of their constitutional right to
security of tenure, and at their and their respective families’ prejudice.
In their Comment,12 respondents, through the Office of the Solicitor
General (OSG), countered that R.A. No. 9335 and its IRR do not violate
the right to due process and right to security of tenure of BIR and BOC
employees. The OSG stressed that the guarantee of security of tenure
under the 1987 Constitution is not a guarantee of perpetual employment.
R.A. No. 9335 and its IRR provided a reasonable and valid ground for the
dismissal of an employee which is germane to the purpose of the law.
Likewise, R.A. No. 9335 and its IRR provided that an employee may only
be separated from the service upon compliance with substantive and
procedural due process. The OSG added that R.A. No. 9335 and its IRR
must enjoy the presumption of constitutionality.
In its Reply,13 BOCEA claimed that R.A. No. 9335 employs means that
are unreasonable to achieve its stated objectives; that the law is unduly
oppressive of BIR and BOC employees as it shifts the extreme burden
upon their shoulders when the Government itself has adopted measures
that make collection difficult such as reduced tariff rates to almost zero
percent and tax exemption of big businesses; and that the law is
discriminatory of BIR and BOC employees. BOCEA manifested that only
the high-ranking officials of the BOC benefited largely from the reward
system under R.A. No. 9335 despite the fact that they were not the ones
directly toiling to collect revenue. Moreover, despite the BOCEA’s
numerous requests,14 BOC continually refused to provide BOCEA the
Expenditure Plan on how such reward was distributed.
Since BOCEA was seeking similar reliefs as that of the petitioners in
Abakada Guro Party List v. Purisima, BOCEA filed a Motion to
Consolidate15 the present case with Abakada on April 16, 2008. However,
pending action on said motion, the Court rendered its decision in
Abakada on August 14, 2008. Thus, the consolidation of this case with
Abakada was rendered no longer possible.16
In Abakada, this Court, through then Associate Justice, now Chief Justice
Renato C. Corona, declared Section 1217of R.A. No. 9335 creating a Joint
Congressional Oversight Committee to approve the IRR as
unconstitutional and violative of the principle of separation of powers.
However, the constitutionality of the remaining provisions of R.A. No.
9335 was upheld pursuant to Section 1318 of R.A. No. 9335. The Court
also held that until the contrary is shown, the IRR of R.A. No. 9335 is
presumed valid and effective even without the approval of the Joint
Congressional Oversight Committee.19
Notwithstanding our ruling in Abakada, both parties complied with our
Resolution20 dated February 10, 2009, requiring them to submit their
respective Memoranda.
The Issues
BOCEA raises the following issues:
I.
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.]
9335, AND ITS IMPLEMENTING RULES AND REGULATIONS ARE
UNCONSTITUTIONAL AS THESE VIOLATE THE RIGHT TO DUE
PROCESS OF THE COVERED BIR AND BOC OFFICIALS AND
EMPLOYEES[;]
II.
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.]
9335, AND ITS IMPLEMENTING RULES AND REGULATIONS ARE
UNCONSTITUTIONAL AS THESE VIOLATE THE RIGHT OF BIR AND
BOC OFFICIALS AND EMPLOYEES TO THE EQUAL PROTECTION OF
THE LAWS[;]
III.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS
IMPLEMENTING RULES AND REGULATIONS VIOLATE THE RIGHT
TO SECURITY OF TENURE OF BIR AND BOC OFFICIALS AND
EMPLOYEES AS ENSHRINED UNDER SECTION 2 (3), ARTICLE IX (B)
OF THE CONSTITUTION[;]
IV.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS
IMPLEMENTING RULES AND REGULATIONS ARE
UNCONSTITUTIONAL AS THEY CONSTITUTE UNDUE DELEGATION
OF LEGISLATIVE POWERS TO THE REVENUE PERFORMANCE
EVALUATION BOARD IN VIOLATION OF THE PRINCIPLE OF
SEPARATION OF POWERS ENSHRINED IN THE CONSTITUTION[;
AND]
V.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 IS A BILL OF
ATTAINDER AND HENCE[,] UNCONSTITUTIONAL BECAUSE IT
INFLICTS PUNISHMENT THROUGH LEGISLATIVE FIAT UPON A
PARTICULAR GROUP OR CLASS OF OFFICIALS AND EMPLOYEES
WITHOUT TRIAL.21
BOCEA manifested that while waiting for the Court to give due course to
its petition, events unfolded showing the patent unconstitutionality of R.A.
No. 9335. It narrated that during the first year of the implementation of
R.A. No. 9335, BOC employees exerted commendable efforts to attain
their revenue target of ₱196 billion which they surpassed by as much as
₱2 billion for that year alone. However, this was attained only because oil
companies made advance tax payments to BOC. Moreover, BOC
employees were given their "reward" for surpassing said target only in
2008, the distribution of which they described as unjust, unfair, dubious
and fraudulent because only top officials of BOC got the huge sum of
reward while the employees, who did the hard task of collecting, received
a mere pittance of around ₱8,500.00. In the same manner, the Bonds
Division of BOC-NAIA collected 400+% of its designated target but the
higher management gave out to the employees a measly sum of
₱8,500.00 while the top level officials partook of millions of the excess
collections. BOCEA relies on a piece of information revealed by a
newspaper showing the list of BOC officials who apparently earned huge
amounts of money by way of reward.22 It claims that the recipients thereof
included lawyers, support personnel and other employees, including a
dentist, who performed no collection functions at all. These alleged
anomalous selection, distribution and allocation of rewards was due to
the failure of R.A. No. 9335 to set out clear guidelines.23
In addition, BOCEA avers that the Board initiated the first few cases of
attrition for the Fiscal Year 2007 by subjecting five BOC officials from the
Port of Manila to attrition despite the fact that the Port of Manila
substantially complied with the provisions of R.A. No. 9335. It is thus
submitted that the selection of these officials for attrition without proper
investigation was nothing less than arbitrary. Further, the legislative and
executive departments’ promulgation of issuances and the Government’s
accession to regional trade agreements have caused a significant
diminution of the tariff rates, thus, decreasing over-all collection. These
unrealistic settings of revenue targets seriously affect BIR and BOC
employees tasked with the burden of collection, and worse, subjected
them to attrition.24
BOCEA assails the constitutionality of R.A. No. 9335 and its IRR on the
following grounds:
1. R.A. No. 9335 and its IRR violate the BIR and BOC employees’
right to due process because the termination of employees who
had not attained their revenue targets for the year is peremptory
and done without any form of hearing to allow said employees to
ventilate their side. Moreover, R.A. No. 9335 and its IRR do not
comply with the requirements under CSC rules and regulations as
the dismissal in this case is immediately executory. Such
immediately executory nature of the Board’s decision negates the
remedies available to an employee as provided under the CSC
rules.
2. R.A. No. 9335 and its IRR violate the BIR and BOC employees’
right to equal protection of the law because R.A. No. 9335 and its
IRR unduly discriminates against BIR and BOC employees as
compared to employees of other revenue generating government
agencies like the Philippine Amusement and Gaming
Corporation, Department of Transportation and Communication,
the Air Transportation Office, the Land Transportation Office, and
the Philippine Charity Sweepstakes Office, among others, which
are not subject to attrition.
3. R.A. No. 9335 and its IRR violate the BIR and BOC employees’
right to security of tenure because R.A. No. 9335 and its IRR
effectively removed remedies provided in the ordinary course of
administrative procedure afforded to government employees. The
law likewise created another ground for dismissal, i.e., non-
attainment of revenue collection target, which is not provided
under CSC rules and which is, by its nature, unpredictable and
therefore arbitrary and unreasonable.
4. R.A. No. 9335 and its IRR violate the 1987
Constitution because Congress granted to the Revenue
Performance Evaluation Board (Board) the unbridled discretion of
formulating the criteria for termination, the manner of allocating
targets, the distribution of rewards and the determination of
relevant factors affecting the targets of collection, which is
tantamount to undue delegation of legislative power.
5. R.A. No. 9335 is a bill of attainder because it inflicts
punishment upon a particular group or class of officials and
employees without trial. This is evident from the fact that the law
confers upon the Board the power to impose the penalty of
removal upon employees who do not meet their revenue targets;
that the same is without the benefit of hearing; and that the
removal from service is immediately executory. Lastly, it
disregards the presumption of regularity in the performance of the
official functions of a public officer.25
On the other hand, respondents through the OSG stress that except for
Section 12 of R.A. No. 9335, R.A. No. 9335 and its IRR are constitutional,
as per our ruling in Abakada. Nevertheless, the OSG argues that the
classification of BIR and BOC employees as public officers under R.A.
No. 9335 is based on a valid and substantial distinction since the revenue
generated by the BIR and BOC is essentially in the form of taxes, which
is the lifeblood of the State, while the revenue produced by other
agencies is merely incidental or secondary to their governmental
functions; that in view of their mandate, and for purposes of tax collection,
the BIR and BOC are sui generis; that R.A. No. 9335 complies with the
"completeness" and "sufficient standard" tests for the permissive
delegation of legislative power to the Board; that the Board exercises its
delegated power consistent with the policy laid down in the law, that is, to
optimize the revenue generation capability and collection of the BIR and
the BOC; that parameters were set in order that the Board may identify
the officials and employees subject to attrition, and the proper procedure
for their removal in case they fail to meet the targets set in the
Performance Contract were provided; and that the rights of BIR and BOC
employees to due process of law and security of tenure are duly
accorded by R.A. No. 9335. The OSG likewise maintains that there was
no encroachment of judicial power in the enactment of R.A. No. 9335
amounting to a bill of attainder since R.A. No. 9335 and its IRR merely
defined the offense and provided for the penalty that may be imposed.
Finally, the OSG reiterates that the separation from the service of any
BIR or BOC employee under R.A. No. 9335 and its IRR shall be done
only upon due consideration of all relevant factors affecting the level of
collection, subject to Civil Service laws, rules and regulations, and in
compliance with substantive and procedural due process. The OSG
opines that the Performance Contract, far from violating the BIR and BOC
employees’ right to due process, actually serves as a notice of the
revenue target they have to meet and the possible consequences of
failing to meet the same. More, there is nothing in the law which prevents
the aggrieved party from appealing the unfavorable decision of
dismissal.26
In essence, the issues for our resolution are:
1. Whether there is undue delegation of legislative power to the
Board;
2. Whether R.A. No. 9335 and its IRR violate the rights of
BOCEA’s members to: (a) equal protection of laws, (b) security of
tenure and (c) due process; and
3. Whether R.A. No. 9335 is a bill of attainder.
Our Ruling
Prefatorily, we note that it is clear, and in fact uncontroverted, that
BOCEA has locus standi. BOCEA impugns the constitutionality of R.A.
No. 9335 and its IRR because its members, who are rank-and-file
employees of the BOC, are actually covered by the law and its IRR.
BOCEA’s members have a personal and substantial interest in the case,
such that they have sustained or will sustain, direct injury as a result of
the enforcement of R.A. No. 9335 and its IRR.27
However, we find no merit in the petition and perforce dismiss the same.
It must be noted that this is not the first time the constitutionality of R.A.
No. 9335 and its IRR are being challenged. The Court already settled the
majority of the same issues raised by BOCEA in our decision in Abakada,
which attained finality on September 17, 2008. As such, our ruling therein
is worthy of reiteration in this case.
We resolve the first issue in the negative.
The principle of separation of powers ordains that each of the three great
branches of government has exclusive cognizance of and is supreme in
matters falling within its own constitutionally allocated
sphere.28 Necessarily imbedded in this doctrine is the principle of non-
delegation of powers, as expressed in the Latin maxim potestas delegata
non delegari potest, which means "what has been delegated, cannot be
delegated." This doctrine is based on the ethical principle that such
delegated power constitutes not only a right but a duty to be performed
by the delegate through the instrumentality of his own judgment and not
through the intervening mind of another.29However, this principle of non-
delegation of powers admits of numerous exceptions,30 one of which is
the delegation of legislative power to various specialized administrative
agencies like the Board in this case.
The rationale for the aforementioned exception was clearly explained in
our ruling in Gerochi v. Department of Energy,31 to wit:
In the face of the increasing complexity of modern life, delegation of
legislative power to various specialized administrative agencies is
allowed as an exception to this principle. Given the volume and variety of
interactions in today’s society, it is doubtful if the legislature can
promulgate laws that will deal adequately with and respond promptly to
the minutiae of everyday life. Hence, the need to delegate to
administrative bodies — the principal agencies tasked to execute laws in
their specialized fields — the authority to promulgate rules and
regulations to implement a given statute and effectuate its policies. All
that is required for the valid exercise of this power of subordinate
legislation is that the regulation be germane to the objects and purposes
of the law and that the regulation be not in contradiction to, but in
conformity with, the standards prescribed by the law. These requirements
are denominated as the completeness test and the sufficient standard
test.32
Thus, in Abakada, we held,
Two tests determine the validity of delegation of legislative power: (1) the
completeness test and (2) the sufficient standard test. A law is complete
when it sets forth therein the policy to be executed, carried out or
implemented by the delegate. It lays down a sufficient standard when it
provides adequate guidelines or limitations in the law to map out the
boundaries of the delegate’s authority and prevent the delegation from
running riot. To be sufficient, the standard must specify the limits of the
delegate’s authority, announce the legislative policy and identify the
conditions under which it is to be implemented.
RA [No.] 9335 adequately states the policy and standards to guide the
President in fixing revenue targets and the implementing agencies in
carrying out the provisions of the law. Section 2 spells out the policy of
the law:
"SEC. 2. Declaration of Policy. — It is the policy of the State to optimize
the revenue-generation capability and collection of the Bureau of Internal
Revenue (BIR) and the Bureau of Customs (BOC) by providing for a
system of rewards and sanctions through the creation of a Rewards and
Incentives Fund and a Revenue Performance Evaluation Board in the
above agencies for the purpose of encouraging their officials and
employees to exceed their revenue targets."
Section 4 "canalized within banks that keep it from overflowing" the
delegated power to the President to fix revenue targets:
"SEC. 4. Rewards and Incentives Fund. — A Rewards and Incentives
Fund, hereinafter referred to as the Fund, is hereby created, to be
sourced from the collection of the BIR and the BOC in excess of their
respective revenue targets of the year, as determined by the
Development Budget and Coordinating Committee (DBCC), in the
following percentages:
Excess of Collection [Over] the Revenue Percent (%) of the Excess
Targets Accrue to the Fund
30% or below — 15%
More than 30% — 15% of the first 30% plus 20% of the
remaining excess
The Fund shall be deemed automatically appropriated the year
immediately following the year when the revenue collection target was
exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue collection
expected of the BIR and the BOC for a given fiscal year as stated in the
Budget of Expenditures and Sources of Financing (BESF) submitted by
the President to Congress. The BIR and the BOC shall submit to the
DBCC the distribution of the agencies’ revenue targets as allocated
among its revenue districts in the case of the BIR, and the collection
districts in the case of the BOC.
xxx xxx x x x"
Revenue targets are based on the original estimated revenue collection
expected respectively of the BIR and the BOC for a given fiscal year as
approved by the DBCC and stated in the BESF submitted by the
President to Congress. Thus, the determination of revenue targets does
not rest solely on the President as it also undergoes the scrutiny of the
DBCC.
On the other hand, Section 7 specifies the limits of the Board’s authority
and identifies the conditions under which officials and employees whose
revenue collection falls short of the target by at least 7.5% may be
removed from the service:
"SEC. 7. Powers and Functions of the Board. — The Board in the agency
shall have the following powers and functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from service officials
and employees whose revenue collection falls short of the target by at
least seven and a half percent (7.5%), with due consideration of all
relevant factors affecting the level of collection as provided in the rules
and regulations promulgated under this Act, subject to civil service laws,
rules and regulations and compliance with substantive and procedural
dueCollection to
process: Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not
exceeding two years in operation, and has no historical record of
collection performance that can be used as basis for evaluation;
and
2. Where the revenue or customs official or employee is a recent
transferee in the middle of the period under consideration unless
the transfer was due to nonperformance of revenue targets or
potential nonperformance of revenue targets: Provided, however,
That when the district or area of responsibility covered by
revenue or customs officials or employees has suffered from
 economic difficulties brought about by natural calamities or force
majeure or economic causes as may be determined by the
Board, termination shall be considered only after careful and
proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in the
preceding paragraph: Provided, That such decision shall be immediately
executory: Provided, further, That the application of the criteria for the
separation of an official or employee from service under this Act shall be
without prejudice to the application of other relevant laws on
accountability of public officers and employees, such as the Code of
Conduct and Ethical Standards of Public Officers and Employees and the
Anti-Graft and Corrupt Practices Act;
xxx xxx x x x"
At any rate, this Court has recognized the following as sufficient
standards: "public interest", "justice and equity", "public convenience and
welfare" and "simplicity, economy and welfare". In this case, the declared
policy of optimization of the revenue-generation capability and collection
of the BIR and the BOC is infused with public interest.33
We could not but deduce that the completeness test and the sufficient
standard test were fully satisfied by R.A. No. 9335, as evident from the
aforementioned Sections 2, 4 and 7 thereof. Moreover, Section 534 of
R.A. No. 9335 also provides for the incentives due to District Collection
Offices. While it is apparent that the last paragraph of Section 5 provides
that "[t]he allocation, distribution and release of the district reward shall
likewise be prescribed by the rules and regulations of the Revenue
Performance and Evaluation Board," Section 7 (a)35 of R.A. No. 9335
clearly mandates and sets the parameters for the Board by providing that
such rules and guidelines for the allocation, distribution and release of the
fund shall be in accordance with Sections 4 and 5 of R.A. No. 9335. In
sum, the Court finds that R.A. No. 9335, read and appreciated in its
entirety, is complete in all its essential terms and conditions, and that it
contains sufficient standards as to negate BOCEA’s supposition of undue
delegation of legislative power to the Board.
Similarly, we resolve the second issue in the negative.
Equal protection simply provides that all persons or things similarly
situated should be treated in a similar manner, both as to rights conferred
and responsibilities imposed. The purpose of the equal protection clause
is to secure every person within a state’s jurisdiction against intentional
and arbitrary discrimination, whether occasioned by the express terms of
a statute or by its improper execution through the state’s duly constituted
authorities. In other words, the concept of equal justice under the law
requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a
legitimate governmental objective.36 1aw phil
Thus, on the issue on equal protection of the laws, we held in Abakada:
The equal protection clause recognizes a valid classification, that is, a
classification that has a reasonable foundation or rational basis and not
arbitrary. With respect to RA [No.] 9335, its expressed public policy is the
optimization of the revenue-generation capability and collection of the
BIR and the BOC. Since the subject of the law is the revenue-generation
capability and collection of the BIR and the BOC, the incentives and/or
sanctions provided in the law should logically pertain to the said
agencies. Moreover, the law concerns only the BIR and the BOC
because they have the common distinct primary function of generating
revenues for the national government through the collection of taxes,
customs duties, fees and charges.
The BIR performs the following functions:
"Sec. 18. The Bureau of Internal Revenue. — The Bureau of Internal
Revenue, which shall be headed by and subject to the supervision and
control of the Commissioner of Internal Revenue, who shall be appointed
by the President upon the recommendation of the Secretary [of the DOF],
shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for
all revenues collected;
(2) Exercise duly delegated police powers for the proper
performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal
economic activities;
(4) Exercise supervision and control over its constituent and
subordinate units; and
(5) Perform such other functions as may be provided by law.
 xxx xxx x x x"
On the other hand, the BOC has the following functions:
"Sec. 23. The Bureau of Customs. — The Bureau of Customs which shall
be headed and subject to the management and control of the
Commissioner of Customs, who shall be appointed by the President upon
the recommendation of the Secretary [of the DOF] and hereinafter
referred to as Commissioner, shall have the following functions:
(1) Collect custom duties, taxes and the corresponding fees,
charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and
customs laws;
(4) Prevent and suppress smuggling, pilferage and all other
economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the
clearance of vessels and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in
all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.
xxx xxx x x x"
Both the BIR and the BOC are bureaus under the DOF. They principally
perform the special function of being the instrumentalities through which
the State exercises one of its great inherent functions — taxation.
Indubitably, such substantial distinction is germane and intimately related
to the purpose of the law. Hence, the classification and treatment
accorded to the BIR and the BOC under RA [No.] 9335 fully satisfy the
demands of equal protection.37
As it was imperatively correlated to the issue on equal protection, the
issues on the security of tenure of affected BIR and BOC officials and
employees and their entitlement to due process were also settled in
Abakada:
Clearly, RA [No.] 9335 in no way violates the security of tenure of officials
and employees of the BIR and the BOC. The guarantee of security of
tenure only means that an employee cannot be dismissed from the
service for causes other than those provided by law and only after due
process is accorded the employee. In the case of RA [No.] 9335, it lays
down a reasonable yardstick for removal (when the revenue collection
falls short of the target by at least 7.5%) with due consideration of all
relevant factors affecting the level of collection. This standard is
analogous to inefficiency and incompetence in the performance of official
duties, a ground for disciplinary action under civil service laws. The action
for removal is also subject to civil service laws, rules and regulations and
compliance with substantive and procedural due process.38
In addition, the essence of due process is simply an opportunity to be
heard, or as applied to administrative proceedings, a fair and reasonable
opportunity to explain one’s side.39 BOCEA’s apprehension of deprivation
of due process finds its answer in Section 7 (b) and (c) of R.A. No.
9335.40 The concerned BIR or BOC official or employee is not simply
given a target revenue collection and capriciously left without any quarter.
R.A. No. 9335 and its IRR clearly give due consideration to all relevant
factors41 that may affect the level of collection. In the same manner,
exemptions42 were set, contravening BOCEA’s claim that its members
may be removed for unattained target collection even due to causes
which are beyond their control. Moreover, an employee’s right to be
heard is not at all prevented and his right to appeal is not deprived of
him.43 In fine, a BIR or BOC official or employee in this case cannot be
arbitrarily removed from the service without according him his
constitutional right to due process. No less than R.A. No. 9335 in
accordance with the 1987 Constitution guarantees this.
We have spoken, and these issues were finally laid to rest. Now, the
Court proceeds to resolve the last, but new issue raised by BOCEA, that
is, whether R.A. No. 9335 is a bill of attainder proscribed under Section
22,44 Article III of the 1987 Constitution.
On this score, we hold that R.A. No. 9335 is not a bill of attainder. A bill of
attainder is a legislative act which inflicts punishment on individuals or
members of a particular group without a judicial trial. Essential to a bill of
attainder are a specification of certain individuals or a group of
individuals, the imposition of a punishment, penal or otherwise, and the
lack of judicial trial.45
1avvphi1
In his Concurring Opinion in Tuason v. Register of Deeds, Caloocan
City,46 Justice Florentino P. Feliciano traces the roots of a Bill of
Attainder, to wit:
Bills of attainder are an ancient instrument of tyranny. In England a few
centuries back, Parliament would at times enact bills or statutes which
declared certain persons attainted and their blood corrupted so that it lost
all heritable quality (Ex Parte Garland, 4 Wall. 333, 18 L.Ed. 366 [1867]).
In more modern terms, a bill of attainder is essentially a usurpation of
judicial power by a legislative body. It envisages and effects the
imposition of a penalty — the deprivation of life or liberty or property —
not by the ordinary processes of judicial trial, but by legislative fiat. While
cast in the form of special legislation, a bill of attainder (or bill of pains
and penalties, if it prescribed a penalty other than death) is in intent and
effect a penal judgment visited upon an identified person or group of
persons (and not upon the general community) without a prior charge or
demand, without notice and hearing, without an opportunity to defend,
without any of the civilized forms and safeguards of the judicial process
as we know it (People v. Ferrer, 48 SCRA 382 [1972]; Cummings and
Missouri, 4 Wall. 277, 18 L. Ed. 356 [1867]; U.S. v. Lovett, 328, U.S. 303,
90 L.Ed. 1252 [1945]; U.S. v. Brown, 381 U.S. 437, 14 L.Ed. 2d. 484
[1965]. Such is the archetypal bill of attainder wielded as a means of
legislative oppression. x x x47
R.A. No. 9335 does not possess the elements of a bill of attainder. It
does not seek to inflict punishment without a judicial trial. R.A. No. 9335
merely lays down the grounds for the termination of a BIR or BOC official
or employee and provides for the consequences thereof. The democratic
processes are still followed and the constitutional rights of the concerned
employee are amply protected.
A final note.
We find that BOCEA’s petition is replete with allegations of defects and
anomalies in allocation, distribution and receipt of rewards. While BOCEA
intimates that it intends to curb graft and corruption in the BOC in
particular and in the government in general which is nothing but noble,
these intentions do not actually pertain to the constitutionality of R.A. No.
9335 and its IRR, but rather in the faithful implementation thereof. R.A.
No. 9335 itself does not tolerate these pernicious acts of graft and
corruption.48 As the Court is not a trier of facts, the investigation on the
veracity of, and the proper action on these anomalies are in the hands of
the Executive branch. Correlatively, the wisdom for the enactment of this
law remains within the domain of the Legislative branch. We merely
interpret the law as it is. The Court has no discretion to give statutes a
meaning detached from the manifest intendment and language
thereof.49 Just like any other law, R.A. No. 9335 has in its favor the
presumption of constitutionality, and to justify its nullification, there must
be a clear and unequivocal breach of the Constitution and not one that is
doubtful, speculative, or argumentative.50 We have so declared in
Abakada, and we now reiterate that R.A. No. 9335 and its IRR are
constitutional.
WHEREFORE, the present petition for certiorari and prohibition with
prayer for injunctive relief/s is DISMISSED.
No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 105907 May 24, 1993
FELICIANO V. AGBANLOG, petitioner,
vs.
PEOPLE OF THE PHILIPPINES AND SANDIGANBAYAN, respondents.
Michael P. Moralde for petitioner.
QUIASON, J.:
This is a petition for review on certiorari under Rule 45 of the Revised
Rules of Court and Section 7 of P.D. No. 1606 as amended, of the
decision of the Sandiganbayan (First Division) promulgated on June 28,
1992, which found petitioner guilty beyond reasonable doubt of
Malversation of Public Funds, penalized under paragraph 4, Article 217,
of the Revised Penal Code, and sentencing him to suffer, in the absence
of mitigating and aggravating circumstances "the indeterminate penalty
of, from ELEVEN (11) years and one (1) DAY of Prision Mayor, as
minimum to SIXTEEN (16) YEARS, FIVE (5) MONTHS and ELEVEN (11)
DAYS of Reclusion Temporal, as maximum, with the accessory penalties
of the law; to pay a fine in the amount of P21,940.70; to suffer the penalty
of perpetual special disqualification and to pay the costs."
The Sandiganbayan made the following findings of facts :
Feliciano Agbanlog y Vinluan was the Officer-in-Charge of
the Office of the Municipal Treasurer of Aglipay, Quirino,
for the period: March 24, 1986 to May 31, 1988. When
audited by COA Auditing Examiner Marcelina P. Reyes of
the Provincial Auditor's Office of Cobarroguis, Quirino, on
August 4, 1986 for the aforesaid period of his incumbency
as Acting Municipal Treasurer, Feliciano Agbanlog was
found short in his cash and accounts in the sum of
P21,940.70.
The shortage was broken down in the following manner :
a. Disallowed cash item
of Mr. Feliciano V. Agbanlog
May 31, 1986 worded as cash
advance to defray various expenses
which was not approved
by the Municipal Mayor P12,504.49
b. Disallowed voucher No.
101-86-04-71 dated April 18, 1986
due to under delivery of printed forms
P2,900.00
c. Disallowed voucher No.
101-86-05-144 dated
May 31, 1986 due to
under delivery of printed
forms P3,260.00
d. Unaccounted collection P3,276.21
————
Total P21,940.70
A written demand to explain the shortage and to pay the
amount thereof was neither answered nor acted upon by
the accountable officer. Consequently, a Report was
made by Examining Auditors Marcelina P. Reyes,
Asuncion G. Tamondong and Margarita B. Eugenio to the
Provincial Auditor of Quirino, manifesting their findings
and recommending the institution of administrative and/or
criminal charges against Acting Municipal Treasurer
Feliciano Agbanlog.
At the outset, the Auditors found the accused Agbanlog
short in the amount of P32,950.34, broken down in this
manner:
Accountability:
Balance shown by your
cash book on May 31, 1986
certified correct by you
and verified by us P85,186.40
Credits to Accountability:
Cash and valid cash items
produced by you
and counted on us P52,236.06
—————
Shortage P32,950.34
Upon the finding that P11,009.64 of this amount was
chargeable to the account of former Municipal Treasurer
Carlos Pastor, predecessor of Municipal Treasurer
Ruperto Pallaya, the said amount of P11,009.64 was
deducted from the accountability of Feliciano Agbanlog.
The Acting Municipal Treasurer was nevertheless made
accountable for the shortage of P21,940.70, the amount
for which he is not charged.
As regards the disbursement voucher billed as a cash
advance for various expenses in the amount of
P12,504.49, Exhibit "E", this voucher was disallowed by
the auditors because there was no appropriation for this
disbursement. It is indicated in the voucher that the giving
out of this money was in the nature of a cash advance.
The purpose for which the cash advance was given out
was, however, not clearly indicated. The particulars of
payment merely states "to cash advance to defray various
expenditures". Only the signature of the accused
Feliciano Agbanlog may be found in the voucher. This
indicates that the amount of P12,504.49 was given out to
and received by the accused, Feliciano V. Agbanlog, from
Roberto E. Pallaya. Vouchers of this nature, in order to be
valid, must bear the signature of the incumbent Municipal
Mayor of Aglipay, Quirino. The signature of the then
Mayor, the Hon. Deogracias L. Prego, Sr., does not
appear in the voucher. No invoice or receipt was
presented to support the disbursement.
Thus, considering the fact that the accused, Feliciano V.
Agbanlog received the proceeds of the voucher, this
disbursement has, indeed, become the accountability of
the accused, whose duty it was to liquidate the same. The
accused did not so liquidate. Accused's allegation that the
amount of money involved was given to him to the
Municipal Mayor has not been backed up by sufficient
evidence. If this amount of money were for the Mayor's
account, the Mayor should have been made to sign the
voucher, or else, there should have been accomplished
some sort of evidence payment for the Mayor.
Disbursement Voucher No. 101-8604-71, dated April 18,
1986, Exhibit "F", in the amount of P3,500.00, was
partially disallowed because printed forms for which the
voucher was made out was not actually delivered but yet
paid for. The accused was able to present proof of
delivery only of accounting forms valued at P600.00.
Consequently, the accused was credited with the amount
of P600.00. The remaining balance of P2,900.00 was
nevertheless disallowed.
Disbursement Voucher No. 101-8605-144, dated May 31,
1986, Exhibit "G" in the amount of P4,110.00 was likewise
partially disallowed. The accused was able to show proof
of a legitimate disbursement in the amount of P850.00.
Consequently, the accused was credited with this amount
and only the sum of P3,260.00 was disallowed.
As regards the shortage in the amount of P3,276.21,
representing the accused unaccounted collections, per
Collector's Daily Statement of Collections for the period:
April to May, 1986, Exhibits "H" to "M", We find evidence
showing that this amount, while turned over to the
accused Feliciano Agbanlog in his capacity as Acting
Municipal Treasurer by Collectors Jane G. Domingo,
Marilyn Villarta, Danilo de Guzman, Guadalupe M.
Quimpayag and Rolando Domingo, has not been
accounted for, the accused claiming that cash collections
of the aforesaid collectors were never remitted to him.
There is ample proof, therefore, of the fact that the
accused received these cash collections. His signatures
on various documents, Exhibits "H" to "M", "H-1", "I-1", "J-
1", "K-1", "L-1" and "M-1", virtually indicate that the
accused had actually received the amounts indicated in
these exhibits. We cannot believe that the accused would
sign these documents if he did not receive the amount of
money corresponding thereto. The accused's allegation,
made as an afterthought, that the collectors who were
supposed to turnover their collections to him did not
actually turnover their collections cannot be believed. The
contention that the collectors had instead made out vales
or cash advances covering the amount of their collections,
is not supported by proof. The vale slips or cash advance
papers allegedly given to the accused in lieu of cash
could not be produced by the accused.
The accused was supposed to return these vale slips to
the collectors only after they made good the borrowed
amount. This lapse in evidence does not speak well of the
defense herein put up by the accused. (Rollo, pp. 30-34)
Petitioner admits the shortage of the accountable funds charged by the
prosecution but claims that the prosecution failed to show that the
shortage accrued during his short stint as acting treasurer. According to
him, the audit of his funds should have been made immediately upon his
assumption as Officer-in-charge of the Office of the Treasurer in the last
week of March, 1986, instead of in August, 1986. He further claims that
while there was a turn-over of the funds on June 2, 1986 when Municipal
Treasurer Ruperto Pallaya reported back for work, there was no turnover
of the funds when he temporarily took charge of the Office of the
Treasurer. (Rollo, pp. 5-6)
Re : Shortage of P12,504.49
Petitioner admits that he was the one who prepared the voucher, (Exh.
"E"), and who received the amount of P12,504.49 mentioned therein. He
does not deny the authenticity of his signatures appearing thereon. No
other person, other than petitioner, was involved in the preparation of the
said voucher and the receipt of the amount of P12,504.49. He only claims
that the money was given to the Municipal Mayor, who allegedly refused
to sign the voucher.
Petitioner, having worked as a bookkeeper in the Treasurer's Office of
Cobarroguis, Quirino, since 1979 and as Assistant Municipal Treasurer
since 1982, should know that vouchers must be signed by the claimants.
If he acknowledged receipt of the money knowing that the claimant was
the Municipal Mayor, he became a party to the fraud and assumed
responsibility for the consequences of his acts. The defense did not call
the Municipal Mayor to testify that he was the real claimant and that he
received the money from the petitioner.
Re : Shortage of P2,900.00
Petitioner admits that he was the one who prepared the voucher dated
April 18, 1986 for the payment of various forms in the amount of
P3,500.00 (Exh. "F"). He was the one who acknowledged receipt of the
supplies mentioned in the voucher and who received the amount of
P3,500.00 in payment thereof. He even certified to the necessity and
legality of the expense.
When audited, petitioner was able to show the delivery of forms valued at
only P600.00. The burden was on petitioner to explain satisfactorily the
discrepancy between the voucher and the receipt of the delivery.
Re : Shortage of P3,260.00
Out of the amount of P4,100.00 disbursed under the voucher marked as
Exhibit "G", petitioner admits having been able to support payment of
only P850.00; hence the amount of P3,260.00 was disallowed.
Re :Shortage of P3,276.21
As to the shortage in the amount of P3,276.21 representing the
unaccounted collections of petitioner for the month of April and May
1986, petitioner claims that the said amount was never turned over to
him. If this was true, he should not have signed the documents marked
Exhibits "H" to "M", "A-1", "Y-7", "5-1", "K-1", "L-1" and "M-1", all
acknowledging receipt of the cash collections of the various collectors.
In all the foregoing cases of shortage, petitioner admits having prepared
and collected the amounts stated in the vouchers (Exhs. "E", "F", "G")
and having signed the collectors' daily statement of collection, which
evidence his receipt of the amounts stated therein (Exhs. "H" to "M").
With such admissions, how can petitioner now attribute the shortage of
his accountable funds to his predecessor?
It is also difficult to comprehend how an earlier audit of petitioner's
accountability or an audit made upon assumption of office of the
Municipal Treasurer could possible explain the shortages unearthed by
the government auditor and assist him in his defense.
The elements of malversation of public funds or property punishable
under Article 217 of the Revised Penal Code are :
a) That the offender is a public officer;.
b) That he had the custody or control of funds or property by reason of
the duties of his office;.
c) That those funds or property were public funds or property for which he
was accountable;.
d) That he appropriated, took, misappropriated or consented or, through
abandonment or negligence permitted another person to take them. (II
Reyes, The Revised Penal Code, p. 391 [1981 ed.])
The prosecution has established (a) that appellant received in his
possession public funds; (b) that he could not account for them and did
not have them in his possession when audited; and (c) that he could not
give a satisfactory explanation or reasonable excuse for the
disappearance of said funds. (Cabello v. Sandiganbayan, 197 SCRA 94
[1991]) The prosecution is not required to present direct evidence of the
misappropriation, which may be impossible to do. (Villanueva v.
Sandiganbayan, 200 SCRA 722 [1991]).
The failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly
authorized officer, is a prima facie evidence that he has put such funds or
property to personal use. (Art. 217, last paragraph, Revised Penal Code
as amended by R.A. 1060).
Petitioner questions as oppressive and unconstitutional the penalty
imposed on him — that of eleven years and one day of prision mayor, as
minimum, to sixteen years, five months and eleven days of reclusion
temporal, as maximum.
He argues that considering the value of the peso in 1932 when the
Revised Penal Code was enacted and the value of peso today, the
penalty for malversation of P21,000.00 should only be an imprisonment
of one or two years. (Rollo, pp. 10-11)
Assuming arguendo that inflation has in effect made more severe the
penalty for malversing P21,000.00, the remedy cannot come from this
Court but from the Congress. The Court can intervene and strike down a
penalty as cruel, degrading or inhuman only when it has become so
flagrantly oppressive and so wholly disproportionate to the nature of the
offense as to shock the moral senses. (People v. Dionisio, 22 SCRA
1299 [1968]; People v. Estoista, 93 Phil. 647 [1953]; U.S. v. Borromeo,
23 Phil. 279 [1912]) Considering that malversation of public funds by a
public officer is a betrayal of the public trust, We are not prepared to say
that the penalty imposed on petitioner is so disproportionate to the crime
committed as to shock the moral sense.
WHEREFORE, the petition for review is DISMISSED and the decision
appealed from is AFFIRMED in toto, with costs against petitioner.
SO ORDERED.
G.R. No. 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 Penal Code. When the acts complained of are inherently immoral, they
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
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 unchallenged, especially when the error results from the mere transfer of
was not her task, manifests an intention to perpetuate the erroneous totals from one document to another.
entry in the COC.18
WHEREFORE, the instant petition is DENIED. The assailed Decision of
Neither can this Court accept petitioner’s explanation that the Board of the Court of Appeals sustaining petitioner’s conviction but increasing the
Canvassers had no idea how the SOV (Exhibit "6") and the COC minimum penalty in her sentence to one year instead of six months
reflected that private complainant had only 1,921 votes instead of 6,921 is AFFIRMED.
votes. As chairman of the Municipal Board of Canvassers, petitioner’s
concern was to assure accurate, correct and authentic entry of the votes. SO ORDERED.
Her failure to exercise maximum efficiency and fidelity to her trust
deserves not only censure but also the concomitant sanctions as a matter Republic of the Philippines
of criminal responsibility pursuant to the dictates of the law.19 SUPREME COURT
Manila
The fact that the number of votes deducted from the actual votes
received by private complainant, Sen. Aquilino Pimentel, Jr. was not THIRD DIVISION
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
G.R. No. 192330 November 14, 2012
votes received by a candidate in an election is already punishable under
the said provision.20
ARNOLD JAMES M. YSIDORO, Petitioner,
vs.
At this point, we see no valid reason to disturb the factual conclusions of
PEOPLE OF THE PHILIPPINES, Respondent.
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 DECISION
findings of both the trial court and the appellate court on the matter
coincide.21 ABAD, J.:

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
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 Code4 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 manual10 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.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G. R. No. 164904 October 19, 2007
JOSE ANTONIO U. GONZALEZ, Petitioner,
vs.
HONGKONG & SHANGHAI BANKING CORPORATION, Respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari1 under Rule 45 of the Rules of
Court, as amended, petitioner Jose Antonio U. Gonzalez (Gonzalez)
seeks; 1) the reversal of the 13 January 2004 Decision,2 and 6 August
2004 Resolution,3 both of the Court of Appeals in CA-G.R. SP No. 75469;
and 2) the dismissal of the complaint4 for violation of Presidential Decree
No. 115, otherwise known as the "Trust Receipts Law," in relation to
Article 315(1)(b) of the Revised Penal Code, filed by respondent
Hongkong & Shanghai Banking Corporation (HSBC) against him before
the City Prosecutor of Makati and docketed as I.S. No. 00-G-24734-35.
The Court of Appeals, in its assailed decision and resolution, found no
grave abuse of discretion on the part of the Secretary and the succeeding
Acting Secretary, both of the Department of Justice (DOJ), in their denial
of petitioner Gonzalez’s petition for review and motion for
reconsideration, respectively. Consequently, the appellate court affirmed
the 17 October 2002,5 and 14 January 20036 twin resolutions of the DOJ,
which in turn affirmed the 13 September 2000 Resolution,7 of the City
Prosecutor of Makati, recommending the filing of an Information for
violation of Presidential Decree No. 115, in relation to Article 315(1)(b) of
the Revised Penal Code against petitioner Gonzalez.
The case stemmed from a complaint filed by respondent HSBC against
petitioner Gonzalez for estafa, more particularly, the violation of
Presidential Decree No. 115, in relation to Art. 315(1)(b) of the Revised
Penal Code.
The antecedents of the present petition are beyond dispute. They are:
At the time of the incident subject of the case at bar, petitioner Gonzalez
was the Chairman and Chief Executive Officer of Mondragon Leisure and
Resorts Corporation (MLRC). MLRC is the owner, developer and
operator of Mimosa Leisure Estate8 located at the Clark Special
Economic Zone (CSEZ), Clark Field, Pampanga. On 1 August 1997,
petitioner Gonzalez, for and in behalf of MLRC, acknowledged receipt of
various golfing equipments and assorted Walt Disney items, and signed
the corresponding two Trust Receipt agreements, i.e., Trust Receipt No.
001-016310-205,9 covering the various golfing equipments, and Trust
Receipt No. 001-016310-206,10 covering the assorted Walt Disney items,
both in favor of respondent HSBC.
The due date for Trust Receipt No. 001-016310-205, for the value of
HK$85,540.00, was on 1 September 1997, while that of Trust Receipt No.
001-016310-206, for the value of HK$143,993.90, was on 28 January
1998.
When the due dates of subject Trust Receipts came and went without
word from MLRC, respondent HSBC, through Paula L. Felipe (Felipe),
Vice-President of respondent HSBC’s Credit Control Department, in a
letter11 dated 28 March 2000, demanded from MLRC the turnover of the
proceeds of the sale of the assorted goods covered by the Trust Receipts
or the return of said goods. Despite demand, however, MLRC failed to
return the assorted goods or their value. Consequently, Felipe, for
respondent HSBC, filed a criminal complaint for estafa, i.e., for violation
of Presidential Decree No. 115, the "Trust Receipts Law," in relation to
Art. No. 315(1)(b) of the Revised Penal Code against petitioner Gonzalez
before the Office of the City Prosecutor of Makati, docketed as I.S. No.
00-G-24734-35. The complaint-affidavit contained the following
allegations:
4. On August 1, 1997, Mr. Antonio U. Gonzalez, Chairman and Chief
Executive of Mondragon, executed in favor of the Bank Trust Receipt No.
001-016310-205, by virtue of which he acknowledged receipt from the
Bank of "(Sporting Goods) Golf Equipments" (sic) with the value of
HK$85,540.00. Under this trust receipt, Mr. Gonzalez bound himself to
turn over to the Bank the proceeds of the sale of the goods or to return
them in case of non-sale on January 28, 1998.
xxxx
5. On August 1, 1997, Mr. Gonzalez executed in favor of the Bank Trust
Receipt No. 001-016310-206, by virtue of which he acknowledged receipt
from the Bank of "Assorted Disney Items" with the value of
HK$143,993.90. Under this trust receipt, Mr. Gonzalez bound himself to
turn over to the Bank the proceeds of the sale of the goods or to return
them in case of non-sale on September 1, 1997.
xxxx
6. All the abovementioned trust receipts x x x executed by the
respondents (sic) contain the following provisions:
‘1. The Document and the goods and/or proceeds to which they relate
("The Goods") will be held for your [HSBC] benefit and the entrustee will
receive the Documents and take delivery of the Good exclusively for the
purpose of selling the Goods unless you [HSBC] shall direct otherwise.
2. The Documents, the Goods and the proceeds of their sale are and will
be held by the entrustee in trust for you [HSBC] as entruster and solely to
your [HSBC] order and the entrustee shall pay the proceeds to you
[HSBC], immediately on receipt thereof or of each portion thereof, as the
case may be, without set-off or any deduction. The records of the
entrustee shall properly record your [HSBC] interest in the Goods.
xxxx
10. This Trust Receipt shall be governed and construed in all respects in
accordance with P.D. 115 otherwise known as Trust Receipts Law.’
7. Despite repeated oral and written demands upon respondent,
respondent has not turned over to the Bank a single centavo of the
proceeds of the sale of the abovementioned goods covered by the Trust
Receipts, or returned any of the goods.12
In his defense, petitioner Gonzalez countered that:
2. At the outset, it must be stressed that the transactions subject of the
instant Complaint are between the complainant bank and Mondragon
Leisure and Resorts Corporation ("MLRC") and that the officers of the
latter, including respondent herein, in all of their official acts and
transactions, are not acting in their own personal capacity but, rather, are
merely acting on behalf of the corporation and performing a valid
corporate act pursuant to a validly enacted resolution of the Board of
Directors.
3. Moreover, it is clear that I cannot be held criminally responsible for
alleged violation of the Trust Receipts subject hereof. The aforesaid
transactions, while reportedly denominated as "Trust Receipts" were not
really intended by the parties to be trust receipt transaction within the
purview of P.D. 115. At best, they are loan transactions, for which the
respondent cannot be held criminally liable.
xxxx
6. x x x respondent, who merely performed a valid corporate act may not
be held personally and criminally liable therefore (sic), absent a clear
showing of fault or negligence on his part x x x.
7. x x x it is required that the person charged with estafa pursuant to a
trust receipt transaction must be proved to have misappropriated,
misused or converted to his own personal use to the damage of the
entruster, the proceeds of the goods covered by the trust receipts. Thus,
mere failure to pay the amounts covered by the trust receipts does not
conclusively constitute estafa as defined under P.D. 115 and the Revised
Penal Code.
8. x x x. [W]hile respondent may have failed on behalf of MLRC (which is
actually the debtor) to make payments on the due dates, such failure is
neither attributable to respondent or due to his wrongdoing or fault but on
account of circumstances concerning the corporation x x x.
xxxx
13. x x x there was a tacit agreement among the parties that defendant,
being a stable company with good credit standing, would be accorded
leniency and given enough leeway in the settlement of its obligations.
xxxx
17. x x x the unlawful closure of the Casino by CDC and PAGCOR,
coupled with the Asian economic crisis, severely affected its ability to pay
its creditors, including complainant bank herein, which have an aggregate
exposure of about P5.3 Billion in Mondragon. These events rendered it
impossible for MLRC to duly comply with its financial obligations. These
events barred plaintiff bank from declaring MLRC’s obligation due and
demandable, and consequently from declaring MLRC in default. Thus,
since MLRC is not in default, respondents herein cannot be charged for
estafa as the obligations on the basis of which they are being charged
are not yet due and demandable.13
Following the requisite preliminary investigation, in a Resolution dated 13
September 2000, the City Prosecutor found probable cause to hold
petitioner Gonzalez liable for two counts of estafa, more specifically, the
violation of Presidential Decree No. 115, in relation to Art. 315(1)(b) of the
Revised Penal Code. The City Prosecutor recommended that:
WHEREFORE, premises considered, it is respectfully recommended that
respondent Jose Antonio U. Gonzalez be indicted with two (2) counts of
Violation of P.D. 115 and that the attached Information for that purpose
be approved for filing in court.14
In finding probable cause to prosecute petitioner Gonzalez for the crime
supposedly committed, the City Prosecutor held that:
After study, assessment and thorough evaluation of the evidence
obtaining in this case at bar, the undersigned finds probable cause to
warrant respondent’s indictment with the offense charge (sic) all the
elements of which are obtaining under the aforementioned
circumstances. This is so because respondent admitted having executed
the trust receipts subject matter of the case in point. The defense raised
by the respondent though it appears to be meritorious are (sic) matters of
defense best left for the court to consider and appreciate during trial of
the case. As shown above, the failure of the entrustee/respondent to
account for the goods covered by the two (2) Trust Receipts which he
received after notice and demand caused him to be liable for two (2)
counts of violation of P.D. 115.15
On 24 October 2000, petitioner Gonzalez appealed the foregoing
resolution of the City Prosecutor to the DOJ by means of a petition for
review.
In a Resolution dated 17 October 2002, Honorable Hernando B. Perez,
then Secretary of the DOJ, denied said petition. In affirming the resolution
of the City Prosecutor of Makati, the Secretary held that:
The gravamen of violation of PD 115 is the failure to account, upon
demand, for fund or property held in trust by virtue of a trust receipt x x x.
This failure, being clearly present in the instant case, prima facie
evidence of misappropriation lies. A fortiori, the charges of dishonesty
and abuse of confidence will hold.16
Further, the Secretary ruled that:
The allegation of respondent that he cannot be made liable for the
offense as he was just performing a valid corporate act is untenable x x x.
The respondent being the Chairman and Chief Executive Officer and the
person who signed the trust receipts, there can be no doubt that there is
no other person who can be considered as more responsible than him.
He appears to be the most responsible person contemplated under the
aforesaid provision of P.D. 115.
Finally, we agree with the Prosecutor’s findings that the other defenses
raised by the respondent are evidentiary in nature and best left to the
sound appreciation of the court in the course of the trial.17
The dispositive of the resolution provides:
WHEREFORE, the assailed resolution is hereby AFFIRMED and
consequently, the petition is DENIED.18
Subsequently, on 14 January 2003, Hon. Merceditas N. Gutierrez, then
Acting Secretary of the DOJ, denied the motion for reconsideration of
petitioner Gonzalez.
Undaunted, petitioner Gonzalez went to the Court of Appeals via a
Petition for Review under Rule 4319 of the Rules of Court, as amended.
On 13 January 2004, the Court of Appeals promulgated its Decision
denying petitioner Gonzalez’s recourse for lack of merit.
The appellate court, notwithstanding the procedural infirmity, as the
petition filed under Rule 43 of the Rules of Court, as amended, was the
wrong mode of appeal, took cognizance of and proceeded to resolve the
petition based on substantive grounds. In holding that no grave abuse of
discretion amounting to lack or excess of jurisdiction tainted the actions of
the Secretary as well as the Acting Secretary of the DOJ in denying
petitioner Gonzalez’s petition, the decision explained that:
In the case at bar, it is decisively clear that petitioner executed the trust
receipts in behalf of MLRC and that there was a failure to turn over the
proceeds from the goods sold and the goods themselves subject of the
trust receipts despite demand from the respondent bank. Such failure to
account or turn over the proceeds or to return the goods subject of the
trust receipts gives rise to the crime punished under the Trust Receipts
Law. [Citation omitted.] Petitioner is ventilating before us the merits of his
causes or defenses, but this is not the occasion for the full and
exhaustive display of evidence. The presence or absence of the elements
of the crime is evidentiary in nature and shall be passed upon after a full-
blown trial on the merits. Petitioner’s defenses are matters best left to the
discretion of the court during trial.20
The fallo of the preceding decision reads:
WHEREFORE, the petition is DENIED for lack of merit.21
Petitioner’s motion for reconsideration was likewise denied in a
Resolution dated 6 August 2004.
Hence, the present petition filed under Rule 45 of the Rules of Court, as
amended.
In the present petition, petitioner Gonzalez fundamentally seeks to
reverse the ruling of the Court of Appeals on the following grounds:
I.
THE HONORABLE COURT OF APPEALS COMMITTED
MANIFEST ERROR IN NOT FINDING THAT FOR A VALID
INDICTMENT UNDER PRESIDENTIAL DECREE NO. 115 TO
LIE, THE SAID LAW MUST BE READ IN CONJUNCTION WITH
ARTICLE 315, PARAGRAPH 1 (B) OF THE REVISED PENAL
CODE WHICH REQUIRES THAT THE PERSON CHARGED
WITH ESTAFA PURSUANT TO A TRUST RECEIPT
TRANSACTION MUST BE PROVED TO HAVE
MISAPPROPRIATED, MISUSED OR CONVERTED TO HIS
PERSONAL USE THE PROCEEDS OF THE GOODS COVERED
BY THE TRUST RECEIPTS TO THE DAMAGE OF THE
ENTRUSTER; and
II.
NO PROBABLE CAUSE EXISTS TO WARRANT THE
INDICTMENT OF PETITIONER FOR VIOLATION OF SECTION
13 OF PRESIDENTIAL DECREE 115.22
On the whole, the basic issue presented before this Court in this petition
is, given the facts of the case, whether or not there is probable cause to
hold petitioner Gonzalez liable to stand trial for violation of Presidential
Decree No. 115, in relation to Art. 315(1)(b) of the Revised Penal Code.
Petitioner Gonzalez contends that the Court of Appeals committed
manifest error in ruling, that, probable cause existed to hold him liable to
stand trial merely on the basis of "his admission that he executed the
trust receipts subject matter of the case below and his failure to account
for the goods covered by the same."23 He argues that the City Prosecutor
of Makati and the DOJ failed to appreciate two important facts: 1) that the
real transaction that led to the present controversy was in fact a loan
agreement; and 2) that MLRC simply extended to Best Price PX, Inc., the
owner and operator of Mimosa Mart at the CESZ, its credit line with
respondent HSBC, such that Best Price was the actual debtor of
respondent bank. Paradoxically, he maintains that "the fact that (he) held
a high position in MLRC was not sufficient reason to charge him for
alleged violation of trust receipts."24 He insists further that he is not the
person responsible for the offense allegedly committed because of the
absence of "a clear showing of fault or negligence on his part." According
to petitioner Gonzalez, "President (sic) Decree No. 115 must be read in
conjunction with Article 315, paragraph 1(b) of the Revised Penal Code x
x x under both x x x it is required that the person charged
with estafa pursuant to a trust receipt transaction must be proved to have
misappropriated, misused or converted to his own personal use the
proceeds of the goods covered by the trust receipts to the damage of the
entruster." Thus, petitioner concludes that "mere failure to pay the
amounts covered by the trust receipts does not conclusively
constitute estafa as defined under Presidential Decree No. 115 and
Article 315, paragraph 1(b)."
Respondent HSBC, on the other hand, contends that "petitioner is
criminally liable since he signed the trust receipts x x x;"25 and, that,
"[f]raud is not necessary for conviction for violation of the Trust Receipts
Law,"26 the latter being in the nature of a malum prohibitum decree. On
the issue of company reverses, Asian currency crisis and the closure of
the Mimosa Regency Casino, respondent HSBC counters that "[t]hey do
not excuse petitioner for his failure to comply with his obligations under
the trust receipts,"27 because unlike "motor vehicles or parcels of land,
which are frequently purchased on credit or on installment basis,"28 the
goods covered by the two trust receipts, i.e., assorted Disney items and
various golfing equipments, are usually paid for in cash upon receipt by
buyers; and if not sold, the merchandise should still be with MLRC.
Hence, there was no reason for petitioner Gonzalez’s failure to comply
with his obligation under the two Trust Receipts – to turn over the
proceeds of the sale of the goods or to return the goods if they remained
unsold.
We find no merit in the petition.
We agree with the Court of Appeals that no grave abuse of discretion
amounting to lack or excess of jurisdiction marred the assailed
resolutions of the DOJ.
Herein, petitioner Gonzalez questions the finding of probable cause by
the City Prosecutor to hold him liable to stand trial for the crime
complained of. Probable cause has been defined as the existence of
such facts and circumstances as would excite the belief in a reasonable
mind, acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was prosecuted.29 A
finding of probable cause merely binds over the suspect to stand trial. It is
not a pronouncement of guilt.30
To determine the existence of probable cause, there is a need to conduct
preliminary investigation. A preliminary investigation is an inquiry to
determine whether (a) a crime has been committed; and (b) whether
there is probable cause to believe that the accused is guilty thereof. Such
investigation is designed to secure the (accused) against hasty, malicious
and oppressive prosecution, the conduct of which is executive in nature.31
The executive department of the government is accountable for the
prosecution of crimes, its principal obligation being the faithful execution
of the laws of the land. A necessary component of the power to execute
the laws is the right to prosecute their violators.32 Corollary to this, the
right to prosecute vests the prosecutor with a wide range of discretion,
the discretion of whether, what and whom to charge, the exercise of
which depends on a smorgasbord of factors which are best appreciated
by prosecutors.33
Having said the foregoing, this Court consistently adheres to the policy of
non-interference in the conduct of preliminary investigations, and to leave
to the investigating prosecutor sufficient latitude of discretion in the
determination of what constitutes sufficient evidence as will establish
probable cause for the filing of an information against the supposed
offender,34 courts can only review whether or not the executive
determination of probable cause was done without or in excess of
jurisdiction resulting from grave abuse of discretion. Thus, although it is
entirely possible that the investigating prosecutor may erroneously
exercise the discretion lodged in him by law, this does not render his act
amenable to correction and annulment by the extraordinary remedy of
certiorari, absent any showing of grave abuse of discretion amounting to
excess of jurisdiction.35
And for courts of law to grant the extraordinary writ of certiorari, so as to
justify the reversal of the finding on the existence of probable cause to file
an information, the one seeking the writ must be able to establish that the
investigating prosecutor exercised his power in an arbitrary and despotic
manner, by reason of passion or personal hostility, and it must be patent
and gross as would amount to an evasion or to a unilateral refusal to
perform the duty enjoined or to act in contemplation of law. Grave abuse
of discretion is not enough.36 Excess of jurisdiction signifies that he had
jurisdiction over the case but has transcended the same or acted without
authority.37
Try as we might, this Court cannot find substantiation that the executive
determination of probable cause was done without or in excess of
jurisdiction resulting from grave abuse of discretion, when the City
Prosecutor resolved to recommend the filing of the Information for two
counts of violation of Presidential Decree No. 115 against petitioner
Gonzalez. Similarly, there is absolutely no showing that the DOJ, in the
exercise of its power to review on appeal the findings of the City
Prosecutor of Makati, acted in an arbitrary or despotic manner that
amounted to an excess or lack of jurisdiction.
In the case at bar, petitioner Gonzalez is charged by respondent HSBC
with violating Presidential Decree No. 115. Section 4 of the "Trust
Receipts Law" defines a trust receipt transaction as –
Section 4. What constitutes a trust receipts transaction. – A trust receipt
transaction, within the meaning of this Decree, is any transaction by and
between a person referred to in this Decree as the entruster, and another
person referred to in this Decree as entrustee, whereby the entruster,
who owns or holds absolute title or security interests over certain
specified goods, documents or instruments, releases the same to the
possession of the entrustee upon the latter’s execution and delivery to
the entruster of a signed document called a "trust receipt" wherein the
entrustee binds himself to hold the designated goods, documents or
instruments in trust for the entruster and to sell or otherwise dispose of
the goods, documents or instruments with the obligation to turn over to
the entruster the proceeds thereof to the extent of the amount owing to
the entruster or as appears in the trust receipt or the goods, documents
or instruments themselves if they are unsold or not otherwise disposed
of, in accordance with the terms and conditions specified in the trust
receipt, or for other purposes substantially equivalent to any of the
following:
1. In the case of goods or documents: (a) to sell the goods or
procure their sale; or (b) to manufacture or process the goods
with the purpose of ultimate sale: Provided, That, in the case of
goods delivered under trust receipt for the purpose of
manufacturing or processing before its ultimate sale, the entruster
shall retain its title over the goods whether in its original or
processed form until the entrustee has complied fully with his
obligation under the trust receipt; or (c) to load, unload, ship or
transship or otherwise deal with them in a manner preliminary or
necessary to their sale; or
2. In the case of instruments: (a) to sell or procure their sale or
exchange; or (b) to deliver them to a principal; or (c) to effect the
consummation of some transactions involving delivery to a
depository or register; or (d) to effect their presentation, collection
or renewal.
The sale of good, documents or instruments by a person in the business
of selling goods, documents or instruments for profit who, at the outset of
transaction, has, as against the buyer, general property rights in such
goods, documents or instruments, or who sells the same to the buyer on
credit, retaining title or other interest as security for the payment of the
purchase price, does not constitute a trust receipt transaction and is
outside the purview and coverage of this Decree.
In general, a trust receipt transaction imposes upon the entrustee the
obligation to deliver to the entruster the price of the sale, or if the
merchandise is not sold, to return the same to the entruster. There are
thus two obligations in a trust receipt transaction: the first, refers to
money received under the obligation involving the duty to turn it over
(entregarla) to the owner of the merchandise sold,38 while the second
refers to merchandise received under the obligation to "return" it
(devolvera) to the owner.39 A violation of any of these undertakings
constitutes estafa defined under Art. 315(1)(b) of the Revised Penal
Code, as provided by Sec. 13 of Presidential Decree 115, viz:
Section 13. Penalty clause. – The failure of an entrustee to turn over the
proceeds of the sale of the goods, documents or instruments covered by
a trust receipt to the extent of the amount owing to the entruster or as
appears in the trust receipt or to return said goods, documents or
instruments if they were not sold or disposed of in accordance with the
terms of the trust receipt shall constitute the crime of estafa, punishable
under the provisions of Article Three Hundred and Fifteen, paragraph one
(b) of Act Numbered Three Thousand Eight Hundred and fifteen, as
amended, otherwise known as the Revised Penal Code. If the violation or
offense is committed by a corporation, partnership, association or other
juridical entities, the penalty provided for in this Decree shall be imposed
upon the directors, officers, employees or other officials or persons
therein responsible for the offense, without prejudice to the civil liabilities
arising from the criminal offense.
Article 315(1)(b) of the Revised Penal Code punishes estafa committed
as follows:
1. With unfaithfulness or abuse of confidence, namely:
xxxx
(b) By misappropriating or converting, to the prejudice of another, money,
goods, or any other personal property received by the offender in trust or
on commission, or for administration, or under any other obligation
involving the duty to make delivery of or to return the same, even though
such obligation be totally or partially guaranteed by a bond; or by denying
having received such money, goods, or other property.
As found in the complaint-affidavit of respondent HSBC’s representative,
petitioner Gonzalez is charged with failing to turn over "to the Bank a
single centavo of the proceeds of the sale of the (assorted) goods
covered by the Trust Receipts, or x x x"40 or to return any of the assorted
goods. From the evidence adduced before the City Prosecutor of Makati
i.e., 1) the two Trust Receipts bearing the acknowledgment signature of
petitioner Gonzalez; 2) the official documents concerning the transaction
between MLRC and respondent HSBC; 3) the demand letter of
respondent HSBC; and, significantly, 4) the counter-affidavit of petitioner
Gonzalez containing his initial admission that on behalf of MLRC, he
entered into a trust receipt transaction with respondent HSBC – the
investigating officer determined that there existed probable cause to hold
petitioner Gonzalez for trial for the crime charged. Time and again, this
Court has stated that probable cause need not be based on clear and
convincing evidence of guilt, neither on evidence establishing guilt
beyond reasonable doubt and, definitely, not on evidence establishing
absolute certainty of guilt; but it certainly demands more than bare
suspicion and can never be left to presupposition, conjecture, or even
convincing logic.41 In the present case, there being sufficient evidence to
support the finding of probable cause by the City Prosecutor of Makati,
the same cannot be said to have resulted from bare suspicion,
presupposition, conjecture or logical deduction.
That petitioner Gonzalez neither had the intent to defraud respondent
HSBC nor personally misused/misappropriated the goods subject of the
trust receipts is of no moment. The offense punished under Presidential
Decree No. 115 is in the nature of malum prohibitum. A mere failure to
deliver the proceeds of the sale or the goods if not sold, constitutes a
criminal offense that causes prejudice not only to another, but more to the
public interest.42 This is a matter of public policy as declared by the
legislative authority. Moreover, this Court already held previously that
failure of the entrustee to turn over the proceeds of the sale of the goods,
covered by the trust receipt, to the entruster or to return said goods if they
were not disposed of in accordance with the terms of the trust receipt
shall be punishable as estafa under Art. 315(1)(b) of the Revised Penal
Code without need of proving intent to defraud.43
As a last ditch effort to exculpate himself from the offense charged,
petitioner Gonzalez posits that, "the fact that (he) held a high position in
MLRC was not sufficient reason to charge him for alleged violation of
trust receipts."44Unfortunately, it is but a futile attempt. Though petitioner
Gonzalez signed the Trust Receipts merely as a corporate officer of
MLRC and had no physical possession of the goods subject of such
receipts, he cannot avoid responsibility for violation of Presidential
Decree No. 115 for two unpretentious reasons: first, that the last
sentence of Section 13 of the "Trust Receipts Law," explicitly imposes the
penalty provided therein upon "directors, officers, employees or other
officials or persons therein responsible for the offense, without prejudice
to the civil liabilities arising from the criminal offense," of a corporation,
partnership, association or other juridical entities found to have violated
the obligation imposed under the law. The rationale for making such
officers and employees responsible for the offense is that they are vested
with the authority and responsibility to devise means necessary to ensure
compliance with the law and, if they fail to do so, are held criminally
accountable; thus, they have a responsible share in the violations of the
law.45 And second, a corporation or other juridical entity cannot be
arrested and imprisoned; hence, cannot be penalized for a crime
punishable by imprisonment.46
Petitioner Gonzalez’s allegation that Best Price PX, Inc. is the real party
in the trust receipt transaction and his assertion that the real transaction
between respondent HSBC and MLRC is a loan agreement, are matters
of defense best left to the trial court’s deliberation and contemplation after
conducting the trial of the criminal case. To reiterate, a preliminary
investigation for the purpose of determining the existence of probable
cause is not part of the trial. A full and exhaustive presentation of the
parties’ evidence is not required, but only such as may engender a well-
grounded belief that an offense has been committed and that the
accused is probably guilty thereof.47
In fine, the Court of Appeals committed no reversible error when it ruled
that there was no grave abuse of discretion on the part of the Secretary
and Acting Secretary of the DOJ in directing the filing of the Information
against petitioner Gonzalez for violation of Presidential Decree No. 115 in
relation to Article 315(1)(b) of the Revised Penal Code.
WHEREFORE, premises considered, the instant petition is DENIED for
lack of merit. The assailed 13 January 2004 Decision and 6 August
2004 Resolution, both of the Court of Appeals in CA-G.R. SP No. 75469
are hereby AFFIRMED. Costs against petitioner.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 207175 November 26, 2014
EDUARDO MAGSUMBOL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari seeking to reverse and set aside
the December 14, 2012 Decision1 and the May 6, 2013 Resolution2 of the
Court of Appeals (CA) in CA-G.R. CR No. 34431 filed by Eduardo
Magsumbol (Magsumbol), questioning his conviction for Theft.
The Facts
Petitioner Magsumbol, together with Erasmo Magsino (Mogsino).
Apolonio Inanoria (Jnanoria), and Bonifacio Ramirez (Ramirez). vvas
charged with the crime of Theft in the Information, dated August 30,
2002, filed before the Regional Trial Court of Lucena City, Branch 55
(RTC) and docketed as Criminal Case No. 2002-1017. The Information
indicting Magsumbol and his co-accused reads:
That on or about the 1st day of February 2002, at Barangay Kinatihan I,
in the Munipality of Candelaria, Province of Quezon, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together with seven (7) John Does whose
true names and real identities are still unknown and whose physical
descriptions were not made known by available witnesses, and who are
all still at large, and mutually helping one another, with intent togain and
without the consent of the owner, Menandro Avanzado, did then and
there willfully, unlawfully and feloniously cut, take, steal and carry away
with them thirty three (33) coconut trees from the coconut plantation of
the said owner, valued at FORTY FOUR THOUSAND FOUR HUNDRED
PESOS (₱44,400.00), Philippine currency, belonging to said Menandro
Avanzado, to his damage and prejudice in the aforesaid amount.3
Culled from the testimonies of prosecution witnesses Ernesto Caringal
(Caringal), private complainant Engr. Menandro Avanzado (Menandro),
and SPO1 Florentino Manalo (SPO1 Manalo), it appears that at around
11:00 o’clock in the morning of February 1, 2002, Caringal, the overseer
of a one-hectare unregistered parcel of land located in Candelaria,
Quezon, and co-owned by Menandro, saw the four accused, along with
seven others, cutting down the coconut trees on the said property. Later,
the men turned the felled trees into coco lumber. Caringal did not attempt
to stop the men from cutting down the coconut trees because he was
outnumbered. Instead, Caringal left the site and proceeded toSan Pablo
City to inform Menandro about the incident.
On February 3, 2002, Menandro and Caringal reported the incident to the
police. Thereafter, the two, accompanied by SPO1 Manalo, went to the
coconut plantation only to discover that about thirty three (33) coconut
trees (subject trees) had been cut down. The coco lumber were no longer
in the area. They took photographs of the stumps left by the men.
The defense, on the other hand, presented Atanacio Avanzado
(Atanacio),accused Ramirez, petitioner Magsumbol, Barangay Captain
Pedro Arguelles (Brgy. Captain Arguelles)and accused Inanoria, to
substantiate its claim of innocence for all the accused.
Atanacio testified that he authorized his brothers-in-law, Magsino and
Magsumbol, to cut down the coconut trees within the boundary of his
property, which was adjacent to the land co-owned by Menandro.
Atanacio admitted that he had never set foot on his property for about 20
years already and that he was not present whenthe cutting incident
happened.
Defense witness Brgy. Captain Arguelles testified that on January 28,
2002, Magsumbol, Magsino, Ramirez, and Inanoria came to his office
seeking permission to cut down the coconut trees planted on the land of
Atanacio.
All the accused vehemently denied the charges against them. Ramirez
and Magsumbol claimed that only the coconut trees which stood within
the land owned by Atanacio, a relative of the private complainant, were
cut down on that morning of February 1, 2002. Ramirez added that he
was a coco lumber trader and that Atanacio offered to sell the coconut
trees planted on his lot. Magsumbol claimed that he took no part in the
felling of the coconut trees but merely supervised the same. He claimed
that he did not receive any remuneration for the service he rendered or a
share from the proceeds of the coco lumbers sale. Inanoria likewise
denied participation in the cutting down of the coconut treesbut confirmed
the presence of Magsumbol and Magsino at the site to supervise the
accomplishment of the work being done thereat. Inanoria corroborated
the narration of Magsumbol and Ramirez that all the felled trees were
planted inside the lot owned by Atanacio. Inanoria intimated that
Menandro included him in the complaint for theft due to his refusal to
accede to latter’s request for him to testify against his co-accused in
relation to the present criminal charge.4
Ruling of the RTC
On March 15, 2011, the RTC rendered its decision5 stating that the
prosecution was able to establish with certitude the guilt of all the
accused for the crime of simple theft. The RTC rejected the defense of
denial invoked by the accused in the face of positive identification by
Caringal pointing to them as the perpetrators of the crime. It did not
believe the testimony of Atanacio and even branded him as biased
witness on account of his relationship with accused Magsino and
Magsumbol. The trial court adjudged:
WHEREFORE, judgment is hereby rendered finding all the accused
Erasmo Magsino, Apolonio Inanoria, Eduardo Magsumbol and Bonifacio
Ramirez guilty as charged and applying the Indeterminate sentence law,
the court hereby sentences them to suffer an imprisonment of 2 years, 4
months and 1 day of Prision Correccional as minimum to 6 years and 1
day of Prision Mayor as maximum.
The accused are likewise directed to pay jointly and severally Engr.
Menandro Avanzado and the other heirs of Norberto Avanzado the sum
of ₱13,200.00 representing the value of the 33 coconut trees they have
cut and sold to accused Ramirez.
SO ORDERED.
Aggrieved, the accused appealed from the March 15, 2011 judgment of
the RTC before the CA insisting that the prosecution evidence did not
meet the quantum of proof necessary towarrant their conviction of the
crime charged. They posited that the RTC erred in failing to appreciate
the lack of criminal intent on their part to commit the crime of simple theft.
They claimed that not a scintilla of evidence was presented to prove the
element of intent to gain.6
Ruling of the CA
In its assailed Decision, dated December 14, 2012, the CA sustained the
findings of facts and conclusions of law by the RTC and upheld the
judgment of conviction rendered against the accused. The CA was of the
view, however, that the crime committed in this case would not fall under
the general definition of theft under Article 308 of the Revised Penal
Code (RPC), but rather under paragraph (2) of the same provision which
penalizes theft of damaged property. The CA ruled that the RTC was
correct in giving full faith and credence to the testimony of Caringal who
was not shown to have been motivated by any ill will to testify falsely
against the accused. It agreed with the RTC that Atanacio’s testimony
should not be given any evidentiary weight in view of his relationship with
Magsino and Magsumbol, which provided sufficient reason for him to
suppress or pervert the truth. Anent the element of intent to gain, the CA
stated that the mere fact that the accused cut the coconut trees on
Menandro’s land and made them into coco lumber, gave rise to the
presumption that it was done with intent to gain. The falloreads:
WHEREFORE, premises considered, the appeal is hereby DENIED. The
Decision dated March 15, 2011, of the Regional Trial Court, Branch 55,
Lucena City is AFFIRMED with MODIFICATION in that the accused-
appellants Erasmo Magsino, Apolonio Inanoria, Eduardo Magsumbol and
Bonifacio Ramirez are sentenced to suffer imprisonment of tw0 (2) years,
four (4) months and one (1) day as minimum, to seven (7) years, four (4)
months and one (1) day, as maximum; and to pay jointly and severally
private complainant Menandro Avanzado the amount of Thirteen
Thousand Two Hundred Pesos (₱13,200.00).
SO ORDERED.7
The accused moved for reconsideration of the December 14, 2012
Decision but their motion was denied by the CA on May 6, 2013.
Issues:
Bewailing his conviction, Magsumbolfiled the present petition before this
Court and imputes to the CA the following
ERRORS:
THE HONORABLE COURT OFAPPEALS COMMITTED SERIOUS
ERRORS OF LAW WHEN IT FOUND THE ACCUSED GUILTY OF THE
CRIME OF THEFT UNDER ARTICLE 308 OF THE REVISED PENAL
CODE, IN THAT:
I property of another, shall remove or make use of the fruits or
NO COMPETENT EVIDENCEWAS ADDUCED BY THE PROSECUTION
TO PROVE THAT THE COCONUT TREES THAT WERE CUT WERE
BEYOND THE PROPERTY OWNED BY ATANACIO AVANZADO; and
II
MALICE AND INTENT TO GAIN, AS ELEMENTS OF THE CRIME OF
THEFT, ARE NOT PRESENT IN THE CASE AT HAND.8
The Court’s Ruling
The petition is impressed with merit.
It is a time-honored rule that the assessment of the trial court with regard
to the credibility of witnesses deserves the utmost respect, if not finality,
for the reason that the trial judge has the prerogative, denied to appellate
judges, of observing the demeanor of the declarants in the course of their
testimonies. Though it is true that the trial court’s evaluation of the
credibility of witnesses and their testimonies is entitled to great respect
and will not be disturbed on appeal, this rule, however, is not a hard and
fast one. The exception is observed if there is a showing that the trial
judge overlooked, misunderstood, or misapplied some factor
circumstance of weight and substance that would have cast doubt on the
guilt of the accused.9 The said exception apparently exists in the case at
bench.
It is the statutory definition that generally furnishes the elements of each
crime under the RPC, while the elements in turn unravel the particular
requisite acts of execution and accompanying criminal intent. In the case
at bench, petitioner Magsumbol and his co-accused were convicted by
the CA of the crime of theft of damaged property under paragraph (2) of
Article 308 of the RPC which provides:
Art. 308. Who are liable for theft.–: xxxx
Theft is likewise committed by:
1. xxxxx;
2. Any person who, after having maliciously damaged the
object of the damage caused by him; and xxx.
[Emphasis Supplied]
To warrant a conviction under the aforecited provision for theft of
damaged property, the prosecution must prove beyond reasonable that
the accused maliciously damaged the property belonging to another and,
thereafter, removed or used the fruits or object thereof, with intent to gain.
Evidently, theft of damaged property is an intentional felony for which
criminal liability attaches only when it is shown that the malefactor acted
with criminal intent or malice. Criminal intent must be clearly established
with the other elements of the crime; otherwise, no crime is
committed.10 Was criminal intent substantiated tojustify the conviction of
Magsumbol and his co-accused?
It does not so appear in this case.
There is no dispute that the land co-owned by Menandro is adjacent to
the land owned by Atanacio. The prosecution claimed that the thirty three
(33) cut coconut trees were planted within the land co-owned by
Menandro. The defense, on the other hand, averred that only the coconut
trees found within the land of Atanacio were felled by Magsumbol and his
co-accused. Menandro testified that there were muniments that delimit
the boundaries between the adjacent lots11 while Atanacio claimed that
there were none and that "x" marks were just etched on the trunk of the
trees to delineate the boundary of his land.12 Apart from the bare
allegations of these witnesses, no concrete and competent evidence was
adduced to substantiate their respective submissions. In view of such
conflicting claims and considering the meager evidence on hand, the
Court cannot determine with certainty the owner of the 33 felled coconut
trees. The uncertainty of the exact location of the coconut trees negates
the presenceof the criminal intent to gain.
At any rate, granting arguendo that the said coconut trees were within
Menandro’s land, no malice or criminal intent could be rightfully attributed
to Magsumbol and his co-accused. The RTC and the CA overlooked one
important point in the present case, to wit: Magsumbol and his co-
accused went to Barangay KinatihanI, Candelaria, Quezon, to cut down
the coconut trees belonging to Atanacio upon the latter’s instruction.
Such fact was confirmed by Atanacio who narrated that due to financial
reversals, he sold all the coconut trees in his land to Ramirez, a coco
lumber trader; that since he could not go to the site due to health
reasons, he authorized Magsumbol and Magsino to cut down his trees
and to oversee the gathering of the felled trees; that he informed
Menandro about this and even offered to pay for the damages that he
might have sustained as some of his (Menandro’s) trees could have been
mistakenly cut down in the process; that Menandro refused his offer of
compensation and replied that a case had already been filed against the
four accused; and that he tried to seek an audience again from
Menandro, but the latter refused to talk to him anymore.13
Both the RTC and the CA chose to brush aside the foregoing unrebutted
testimony of Atanacio for being unreliable and considered him a biased
witness simply because he is related by affinity to Magsumbol and
Magsino. Family relationship, however, does not by itself render a
witness’ testimony inadmissible or devoid of evidentiary weight.14To
warrant rejection of the testimony of a relative or friend, it must be clearly
shown that, independently of the relationship, the testimony was
inherently improbable or defective, or that improper or evil motives had
moved the witness to incriminate the accused falsely.15
The relationship of Atanacio to the accused, per se, does not impair his
credibilty. It bears stressing that while Magsumbol and Magsino are
1âw phi 1
Atanacio’s brothers-in-law, Menandro ishis cousin. Considering that both
the accused and the accuser are Atanacio’s relatives, and purportedly
both have bearing with regard to his decision, why would then Atanacio
support one over the other? The logical explanation could only be that
Atanacio had indeed ordered Magsumbol and Magsino to cut the trees on
his land. The Court is convinced that Atanacio was telling the truth.
If, indeed, in the course of executing Atanacio’s instructions, Magsumbol
and his co-accused encroached on the land co-owned by Menandro,
because they missed the undetectable boundary between the two lots,
and cut down some of Menandro’s trees, such act merely constituted
mistake or judgmental error. The following pronouncement in the case of
Lecaroz vs. Sandiganbayan16 may serve as a guidepost, to wit:
If what is proven is mere judgmental error on the part of the person
committing the act, no malice or criminal intent can be rightfully imputed
to him. x x x. Ordinarily, evil intent must unite with an unlawful act for a
crime to exist. Actus non facit reum, nisi mens sit rea. There can be no
crime when the criminal mind is wanting. As a general rule, ignorance or
mistake as to particular facts, honest and real, will exempt the doer from
felonious responsibility. The exception of course is neglect in the
discharge of duty or indifference to consequences, which is equivalent to
criminal intent, for in this instance, the element of malicious intent is
supplied by the element ofnegligence and imprudence.17
[Emphasis supplied]
The criminal mind is indeed wanting in the situation where Magsumbol
and his co-accused even sought prior permission from Brgy. Captain
Arguelles to cut down the coconut trees which was done openly and
during broad daylight effectively negated malice and criminal intent on
their part. It defies reason that the accused would still approach the
barangay captain if their real intention was tosteal the coconut trees of
Menandro. Besides, criminals would usually execute their criminal
activities clandestinely or through stealth or strategy to avoid detection of
the commission of a crime or a wrongdoing.
The findings of this Court in this case should not create the mistaken
impression that the testimonies of the prosecution witnesses should
always be looked at with askance. The point is that courts should
carefully scrutinize the prosecution evidence to make sure that no
innocent person is condemned. An allegation, or even a testimony, that
an act was done should never be hastily accepted as proof that it was
really done. Evidence adduced must be closely examined under the lens
of a judicial microscope to ensure that conviction only flows from moral
certainty that guilt has been established by proof beyond reasonable
doubt.
Here, that quantum of proof has not been satisfied. The prosecution
1âwphi1
miserably failed to establish proof beyond reasonable doubt that
Magsumbol, together with his co-accused, damaged the property or
Menandro with malice and deliberate intent and then removed the felled
coconut trees from the premises.
Hence, we must reckon with a dictum of the law, in dubilis reus est
absolvendus. All doubts must be resolved in favor of the accused.
WHEREFORE, the petition is GRANTED. The assailed December 14,
2012 Decision and the May 6, 2013 Resolution of the Court of Appeals in
CA-G.R. CR No. 34431 are REVERSED and SET ASIDE. Petitioner
Eduardo Magsumbol is ACQUITTED on reasonable doubt.
SO ORDERED.
G.R. No. 166479 February 28, 2006
RODOLFO C. VELASCO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari which seeks to set aside
the decision1 of the Court of Appeals in CA-G.R. CR No. 23366 dated 30
July 2004 which affirmed the decision2 of Branch 41 of the Regional Trial
Court (RTC) of Dagupan City in Criminal Case No. 98-02175-D dated 29
June 1999, finding accused-petitioner Rodolfo C. Velasco guilty of
Attempted Murder, and its Resolution3 dated 21 December 2004 denying
petitioner’s motion for reconsideration.
An Information4 dated 20 April 1998 charged petitioner with the crime of
Attempted Murder committed as follows:
That on or about the 19th day of April, 1998, in the City of Dagupan,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, SN I RODOLFO C. VELASCO, being then armed with a
gun, with treachery and with intent to kill one FREDERICK MARAMBA,
did then and there, wilfully, unlawfully and criminally, attack, assault and
use personal violence upon the latter by shooting him, hitting him on the
left upper arm, the said accused having thus commenced a felony directly
by overt acts but did not perform all the acts of execution which could
have produced the crime of murder, by reason of some cause or accident
other than his own spontaneous desistance, to the damage and prejudice
of said FREDERICK MARAMBA.
When arraigned, petitioner, with the assistance of counsel de oficio,
pleaded not guilty to the crime charged.5
On 29 September 1998, the Hon. Luis M. Fontanilla, Executive Judge of
RTC of Dagupan City, ordered the release of petitioner after a surety
bond was posted by the Mega Pacific Insurance Corporation in the
amount of ₱120,000.00.6
The evidence is summarized by the trial court as follows:
The evidence of the prosecution tends to show that on April 19, 1998, at
about 7:30 o’clock in the morning, private complainant Frederick
Maramba was cleaning and washing his owner type jeep in front of his
house at Lasip Grande, Dagupan City when a motorized tricycle stopped
near him. Accused Rodolfo Velasco dashed out of the tricycle,
approached the complainant and fired at him several times with a .45
caliber pistol. The accused missed with his first shot but the second one
hit the complainant at the upper arm, causing him to stumble on the
ground. The complainant stood up and ran, while the accused continued
firing at him but missed.
The shooting incident was reported to the police sub-station in Malued
District by Barangay Captain Dacasin of Lasip Grande, describing the
suspect as wearing a vest or a "chaleco." The police, composed of SPO4
Romulo Villamil, PO3 Rolando Alvendo, and SPO1 Soliven respondent
and pursued the accused who proceeded on board a motorized tricycle to
the highway going to Barangay Banaoang in Calasiao town.
The police caught up with the tricycle and brought the accused to the
police sub-station. A firearm (Exhibit "A") protruding from the waistline of
the accused, three (3) magazines (Exhibit "B", "B-1" & "B-2") and
fourteen (14) live ammunitions (Exhibits ‘C" to "C-13") were confiscated
from the possession of the accused. The police also recovered seven (7)
spent ammunitions (Exhibits "D" to "D-6") at the crime scene. At the City
Jail in Dagupan City where the accused was subsequently brought, the
private complainant Frederick Maramba identified and pointed to the
accused as the one who fired at him, hitting him on the upper left arm.
Complainant identified the affidavit which he executed naming the
accused as his assailant (Exhibit "H") and who shot him on the morning
of April 19, 1998 in front of his residence at Lasip Grande.
Private complainant further testified that he was hospitalized and treated
at the Region 1 Medical Center, Dagupan City by Dr. Arturo de Vera, Jr.
who issued a Medico-Legal Certificate stating that the victim sustained,
"Gunshot wound point of entry: 1.5 cm lateral aspect distal, 3rd arm left"
and; "Gunshot wound point of exit: 4 cm lateral aspect posterior, 3rd arm
left" (Exhibit "I"). By reason of his wounds, complainant incurred
expenses for hospitalization and medicines in the total amount of
₱2,696.06 (Exhibit "J" to "J-14").
Armando Maramba, the driver of the tricycle in which the accused rode,
testified that he picked up the accused who was wearing a chaleco, at the
intersection of Pogo-Lasip Road. Upon reaching the parked jeep which
was being washed by the private complainant, the accused ordered him
to stop. The accused alighted and fired several shots at the victim. Then
the accused went back to the tricycle and ordered him to proceed to
Calasiao. The accused alighted at the intersection of the De Venecia
Highway and Malued Road and took another tricycle. Witness executed
an affidavit before the Police Headquarters in Dagupan City (Exhibit "G")
and identified the accused as the one who shot the private complainant.
The accused, on the other hand, interposed the defense of alibi. He said
that on April 18, 1998, he went to a friend’s house in Lingayen,
Pangasinan and spent the night there. The following morning, April 19,
1998, between 6:00 to 7:00 o’clock, he left Lingayen riding in the
Volkswagen car of Berting Soriano. He alighted at the corner of
Banaoang diversion road. From there he took a tricycle and told the
driver to bring him at the foot of the bridge going to Bayambang. While on
his way to Calasiao, he heard a jeep behind him blowing its horn and
when he looked back he saw three men on board pointing their guns at
him. He told the tricycle driver to stop and thereupon the three men
approached him and introduced themselves as policemen. They
confiscated his gun and then brought him to the police station for
interrogation. Thereafter, the police lodged him in the City Jail of
Dagupan.
Accused testified that he did not know personally the complaining witness
and denied having fired at him. He further said that his .45 caliber pistol
which was seized from him by the police is licensed (Exhibit "2").7
In its decision dated 29 June 1999, the RTC of Dagupan City, Branch 41,
found petitioner guilty of the crime charged, disposing of the case in this
wise:
WHEREFORE, finding accused Rodolfo C. Velasco guilty beyond
reasonable doubt of the crime of attempted murder, defined and
penalized under Article 248, in relation to the 3rd par. of Arts. 6 and 51 of
the Revised Penal Code, he is hereby sentenced to suffer the
indeterminate penalty of Four (4) years of prision correccional, as
minimum to Eight (8) years and One (1) day of prision mayor, as
maximum.
Accused is further ordered to indemnify the complaining witness the
amount of ₱2,696.00, as actual damages.8
The trial court gave credence to the testimonies of the private
complainant Frederick Maramba and Armando Maramba when they
identified petitioner as the assailant. It rejected petitioner’s defense of
alibi saying it was not impossible for him to be at the crime scene when
the crime was committed because the place where he allegedly alighted
from the car of a certain Berting Soriano was only about ten minutes
away. It concluded that his defense cannot prevail over the positive
identification made by the prosecution witnesses.
On 1 July 1999, petitioner filed a Notice of Appeal signifying his intention
to appeal to the Court of Appeals.9
Pending appeal with the Court of Appeals, petitioner, after filing a Motion
to Bail, was allowed to post bail in the amount of ₱160,000.00.10 To
obviate the possibility of flight, the Bureau of Immigration and Deportation
(BID) was directed to include petitioner in its hold departure list.11
On 30 July 2004, the Court of Appeals dismissed the appeal and affirmed
the decision of the RTC. The decretal portion of the decision reads:
WHEREFORE, for lack of merit, the appeal is DISMISSED. The assailed
Decision dated June 29, 1999 of the Regional Trial Court, Branch 41 of
Dagupan City, in Criminal Case No. 98-02175-D, is hereby AFFIRMED.
Costs against accused-appellant.12
Petitioner moved for a reconsideration of the decision which motion was
denied per resolution13 dated 21 December 2004.
Petitioner is now before us via petition for review on certiorari, raising the
following grounds:
I
THE COURT OF APPEALS GRAVELY ERRED WHEN IT
AFFIRMED THE DECISION OF THE REGIONAL TRIAL COURT.
II
THE COURT OF APPEALS GRAVELY ERRED WHEN IT
DENIED THE MOTION FOR RECONSIDERATION PER THE
RESOLUTION DATED DECEMBER 21, 2004.14
Petitioner invokes the defenses of denial and alibi. He denies having shot
the victim. He alleges that the prosecution was not able to sufficiently
establish the identity of the assailant because the Barangay Chairman,
who reported the incident to the policemen, identified the assailant as one
wearing a "chaleco," was not presented to corroborate the testimony of
petitioner. He contends that had the Barangay Chairman been presented,
the latter’s testimony would have been adverse to the prosecution.
Instead, he points out that the prosecution presented police officers who
were not eyewitnesses. He adds that he had no motive to harm, much
less kill, the victim, the latter being a total stranger. He explains that since
the identity of the assailant is in doubt, motive becomes important and his
alibi gains weight and value.15
In a resolution dated 6 April 2005, the Court, without giving due course to
the petition, required respondent to file a Comment.16
In its Comment17 dated 8 September 2005, respondent People of the
Philippines, through the Office of the Solicitor General (OSG), argues that
the factual findings of the Court of Appeals cannot be reviewed since the
issue (i.e., positive identification) petitioner is raising involves the
credibility of witnesses and the weighing of evidence. It asserts that since
the same deals with a question of fact and there being no instance
present to take the case out of the general rule that factual findings of the
Court of Appeals may be reviewed, a review thereof cannot be made
because only a question of law can be re-examined if a petition for review
on certiorari under Rule 45 of the Rules of Court has been filed. It adds
that even if the case is to be decided on the merits, the petition likewise
will fail.
In his Reply,18 petitioner submits that a review of the facts of the case is
justified on the ground that the Court of Appeals sanctioned substantial
and jurisprudential departures committed by the trial court. He maintains
that (1) the trial court precipitately observed that alibi is a weak defense;
(2) the trial court did not consider that the prosecution had no evidence
proving his intention to kill; (3) the trial court did not consider the fact that
victim did not know him and vice-versa; (4) it was impossible for him, a
navy man – a protector of the people – to have failed to fatally hit the
victim after firing seven shots; and (5) the instant case is a frame up.
On 17 October 2005, the Court gave due course to the petition and
required the parties to submit their respective memoranda.19
In his memorandum, petitioner further argues that the findings of fact in
this case should be reviewed because the Court of Appeals erroneously
restated the factual findings of the trial court when it purposely omitted
and added words changing the tenor of the shooting incident as found by
the trial court. He adds that the findings of fact of the trial court do not
support a conviction of attempted murder but only attempted homicide as
there was no treachery since private complainant was still able to focus
his eyes on the gunman until he was fired upon. Further, he points out
that the Court of Appeals made different findings as to where the seven
spent shells were recovered. He maintains there was suppression of
evidence when the prosecution failed to present a ballistic report on the
seven empty shells that would show the identity of the assailant. In
addition, he claims that since there was suppression of evidence on the
part of the prosecution, the testimony of Armando Maramba is not
credible, he being a relative of the victim.
Petitioner primarily invokes the defenses of denial and alibi. It is his claim
that the prosecution failed to conclusively establish the identity of the
assailant and that he was merely framed-up.
At the outset, it must be stressed that the instant petition for review
on certiorari was filed pursuant to Rule 45 of the Rules of Court where a
review is not a matter of right but of sound judicial discretion and will be
granted only when there are special and important reasons therefor. It is
not the function of this Court to re-examine the evidence submitted by the
parties unless the findings of fact of the Court of Appeals are not
supported by evidence on record or the judgment is based on a
misapprehension of facts. This Court is limited to the review or revision of
errors of law and not to analyze or weigh the evidence all over again.20
We agree with the OSG that as ruled by this Court, no questions of facts
may be raised in this Court under Rule 45 of the Rules of Court, unless,
among other grounds, there is clear and convincing proof that the
judgment of the Court of Appeals is based on a misapprehension of facts
or when the Court of Appeals failed to notice and appreciate certain
relevant facts of substance which if properly considered would justify a
different conclusion, and when there is a grave abuse of discretion in the
appreciation of facts in the light of the evidence on record. Anything less
will not suffice to overturn the decision of the Court of Appeals affirming
on appeal the decision of the trial court. It bears stressing that the
findings of facts of the trial court, its calibration of the testimonial
evidence of the parties and the assessment of the credibility and
probative weight of the evidence of the parties and its conclusion
anchored on its findings are given high respect if not conclusive effect by
this Court, especially if affirmed by the Court of Appeals because of the
unique advantage of the trial court of observing and monitoring the
demeanor, conduct and deportment of the witnesses as they regale the
court with their testimonies. The exception to this rule is when the trial
court ignored, overlooked, misconstrued or misappreciated cogent facts
and circumstances of substance which if considered would alter the
outcome of the case.21 After scrutinizing the records of the case and
thoroughly evaluating all the evidence proffered, we find no reason to
deviate from the findings of facts of the trial court as affirmed by the Court
of Appeals.
In the case at bar, the testimonies of private complainant Frederick
Maramba and Armando Maramba were given credence and full probative
weight and credence by the trial court in the identification of petitioner as
the assailant. Private complainant saw petitioner alight from the tricycle of
Armando Maramba before he successively shot at him at a distance of
about four meters while chasing him for 25 to 30 meters.22 Armando
Maramba witnessed the shooting because he was the driver of the
tricycle in which petitioner rode in going to the house of private
complainant and in leaving the crime scene.23 After the shooting incident,
private complainant went to the City Jail and identified petitioner as the
person who shot him.24 At the Dagupan City Police Station, Armando
Maramba pointed to petitioner as the assailant not because he saw a
man wearing a chaleco, but because it was he whom he saw shoot the
private complainant.25
Petitioner asks that the findings of fact of the case should be reviewed
because the Court of Appeals erroneously restated the factual findings of
the trial court when it purposely omitted and added words changing the
tenor of the shooting incident as found by the trial court. Petitioner said
the Court of Appeals purposely added the word "suddenly" and replaced
the phrase "near him" with "in front of." He adds that the Court of Appeals
added the phrase "without any warning" and removed the phrase
"approached the complainant." He even claims that the Court of Appeals
changed the manner how private complainant was shot, when he was hit,
and how he stumbled and how he was able to stand up and continue
running. He further states that the Court of Appeals made a different
finding as to where the seven spent shells were recovered. He points out
that the Court said the seven spent shells were recovered from the
accused while the trial court found that the same were found in the crime
scene.
As above discussed, the findings of the trial court on its assessment of
the credibility of the witnesses and their testimonies and the probative
weight thereof, are accorded by the appellate court high respect if not
conclusive effect, unless the trial court ignored, misconstrued or
misinterpreted facts and circumstances, which if considered, would alter
the outcome of the case.26 In the case at bar, the addition or omission of
these words, and the difference between the findings of the trial court and
the Court of Appeals as to where the seven spent shells were found, are
too minor and inconsequential to affect the outcome of this case. These,
even if considered, would not overturn the established fact that petitioner
was identified as the assailant. Nothing in the record shows that there
was any inconsistency as regards the identity of the assailant. Both
private complainant and Armando Maramba were one in pointing to
petitioner as the culprit.
Petitioner interposes the defenses of denial and alibi. He denies
participation in the crime claiming that he was aboard a tricycle on his
way to Calasiao, Pangasinan, when policemen arrested him and brought
him to the Dagupan Police Station. On the other hand, the victim himself
identified petitioner as his attacker which statement was corroborated by
Armando Maramba.
To be believed, denial must be buttressed by strong evidence of non-
culpability. Otherwise, it is purely self-serving and without merit.27 Settled
is the rule that the defense of alibi is inherently weak and crumbles in the
light of positive declarations of truthful witnesses who testified on
affirmative matters.28 Greater weight is given to the categorical
identification of the accused by the prosecution witnesses than to the
accused's plain denial of participation in the commission of the
crime.29 There being no strong and credible evidence adduced to
overcome the testimonies of private complainant and Armando Maramba
pointing to him as the culprit, no weight can be given petitioner’s denial.
Petitioner’s defense of alibi likewise fails. As against positive identification
by prosecution witnesses, the accused’s alibi is worthless.30 Having been
identified by two credible witnesses, petitioner cannot escape liability.
Moreover, for alibi to prosper, it must be proven that during the
commission of the crime, the accused was in another place and that it
was physically impossible for him to be at the locus criminis.31 Courts
view the defense of alibi with suspicion and caution not only because it is
inherently weak and unreliable, but also it can be fabricated easily.32 As
found by the trial court, it was not physically impossible for petitioner to
be at the crime scene when the crime was committed since it only takes a
ten-minute ride from the place where he allegedly alighted from the car of
one Berting Soriano to the crime scene. We have held that:
Alibi, the plea of having been elsewhere than at the scene of the crime at
the time of the commission of the felony, is a plausible excuse for the
accused. Let there be no mistake about it. Contrary to the common
notion, alibi is in fact a good defense. But to be valid for purposes of
exoneration from a criminal charge, the defense of alibi must be such that
it would have been physically impossible for the person charged with the
crime to be at the locus criminis at the time of its commission, the reason
being that no person can be in two places at the same time. The excuse
must be so airtight that it would admit of no exception. Where there is the
least possibility of accused’s presence at the crime scene, the alibi will
not hold water.33
Petitioner contends there was suppression of evidence when the
prosecution did not place on the witness stand Barangay Captain
Dacasain of Lasip Grande and when it failed to present a ballistic report
on the seven empty shells because both are vital evidence to prove the
identity of the assailant.
We find such contention untenable.
As to the non-presentation of Barangay Captain Dacasin, the same does
not constitute suppression of evidence. Barangay Captain Dacasin was
not an eyewitness to the shooting incident contrary to the claim of
petitioner. Although he was the one who reported the incident to the
police station, he was merely informed by Armando Maramba that the
person who shot private complainant wore a "chaleko" or vest.34 Thus,
not being an eyewitness, his testimony, even if taken, would have nothing
to do with the identification of the assailant. If he really wanted to have
Barangay Captain Dacasin take the witness stand, he could have asked
the trial court for a subpoena ad testificandum. This, he did not do.
As regards the failure of the police to present a ballistic report on the
seven spent shells recovered from the crime scene, the same does not
constitute suppression of evidence. A ballistic report serves only as a
guide for the courts in considering the ultimate facts of the case.35 It
would be indispensable if there are no credible eyewitnesses to the crime
inasmuch as it is corroborative in nature.36 The presentation of weapons
or the slugs and bullets used and ballistic examination are not
prerequisites for conviction. The corpus delicti and the positive
identification of accused-appellant as the perpetrator of the crime are
more than enough to sustain his conviction.37 Even without a ballistic
report, the positive identification by prosecution witnesses is more than
sufficient to prove accused’s guilt beyond reasonable doubt. 38 In the
instant case, since the identity of the assailant has been sufficiently
established, a ballistic report on the slugs can be dispensed with in
proving petitioner’s guilt beyond reasonable doubt.
Petitioner’s asseveration that it is unthinkable for him to shoot private
complainant because he has no motive to harm, much less kill the latter,
he being a total stranger, deserves scant consideration. It must be
stressed that motive is a state of (one’s) mind which others cannot
discern. It is not an element of the crime, and as such does not have to
be proved. In fact, lack of motive for committing a crime does not
preclude conviction. It is judicial knowledge that persons have been killed
or assaulted for no reason at all.39 Even in the absence of a known
motive, the time-honored rule is that motive is not essential to convict
when there is no doubt as to the identity of the culprit.40 Motive assumes
significance only where there is no showing of who the perpetrator of the
crime was.41 In the case at bar, since petitioner has been positively
identified as the assailant, the lack of motive is no longer of
consequence.
Petitioner argues that the testimony of prosecution witness Armando
Maramba should not be given weight because the same is biased and
incredible on the ground that he is the uncle of the private complainant.
This argument does not inspire belief. The blood relationship of Armando
Maramba and private complainant would not render the former’s
testimony unworthy of belief. On the contrary, relationship could
strengthen the witnesses’ credibility, for it is unnatural for an aggrieved
relative to falsely accuse someone other than the actual culprit. Their
natural interest in securing the conviction of the guilty would deter them
from implicating a person other than the true offender.42 It is settled that
where there is no evidence and nothing to indicate that the principal
witnesses for the prosecution were actuated by improper motive, the
presumption is that they were not so actuated and their testimonies are
entitled to full faith and credit.43 The weight of the testimony of witnesses
is not impaired nor in anyway affected by their relationship to the victim
when there is no showing of improper motive on their
part.44Jurisprudence likewise holds that if an accused had really nothing
to do with a crime, it would be against the natural order of events and of
human nature, and against the presumption of good faith, that a
prosecution witness would falsely testify against him.45 In the case before
us, aside from petitioner’s claim that he was framed-up, there is nothing
in the records that shows that Armando Maramba had ulterior motives in
testifying against him. Necessarily, the testimony of Armando Maramba
must be given full credit.
Petitioner claims that as a navy man who is trained to kill enemies of the
state, a "protector of the people," he could not have acted in the manner
which the prosecution pointed out. He said it is against human
experience to attempt to kill a person in the presence of a witness and in
broad daylight, and that it is preposterous that after firing seven shots at
close range, he failed to fatally hit the private complainant. All these, he
said, only point to a different assailant.
We are not convinced. The records show that the shooting happened at
around 7:30 a.m. The fact that the shooting occurred in broad daylight
does not render its commission impossible.46 This Court takes notice that
it is not unusual that killings are perpetrated in front of witnesses. In the
instant case, the attempted killing was witnessed by Armando Maramba,
the driver of the tricycle which petitioner rode in going to, and in leaving,
the crime scene.
Petitioner argues that he could not have been the assailant because it
was simply impossible for him, being a navy man, not to fatally hit private
complainant after firing seven shots at close range. In effect, what he is
saying is that the bungled killing cannot be the handiwork of an
experienced soldier like him. Such an argument does not hold water. In
the case of People v. Mamarion,47 we brushed aside the very same
argument raised by the accused therein who was an experienced military
man. We ruled that an accused is not entitled to an acquittal simply
because of his previous, or even present, good moral character and
exemplary conduct. The fact that petitioner was a navy man -- a protector
of the people -- does not mean that he is innocent of the crime charged or
that he is incapable of doing it. This argument fails in light of the
identification made by the victim himself and by Armando Maramba that it
was petitioner who was the assailant.
Finally, petitioner submits that if ever he committed a crime, he merely
committed attempted homicide. He maintains there was no sudden firing
because the victim testified he was observing the alleged gunman for a
period of ten seconds before the latter finally drew his .45 caliber pistol
and fired at him. After the first shot, the victim was able to run away.
The lower court was correct in appreciating treachery in the commission
of the crime. There is treachery when the following essential elements
are present, viz: (a) at the time of the attack, the victim was not in a
position to defend himself; and (b) the accused consciously and
deliberately adopted the particular means, methods or forms of attack
employed by him.48 The essence of treachery is the swift and unexpected
attack on an unarmed victim without the slightest provocation on the part
of the victim.49 It was clearly established that private complainant, while
washing his jeep, was suddenly fired upon by petitioner for no reason at
all. The suddenness of the shooting and the fact that he was unarmed left
private complainant with no option but to run for his life. It is likewise
apparent that petitioner consciously and deliberately adopted his mode of
attack making sure that private complainant will have no chance to
defend himself by reason of the surprise attack. Petitioner’s claim that the
shooting was not sudden because private complainant was observing
him from the time he alighted from the tricycle is belied by the fact that
private complainant was not able to run when he was first fired upon.
Though private complainant was looking at him, the former was not
forewarned by any outward sign that an attack was forthcoming. It was
only after the first shot that he felt his life was in danger.
Having commenced the criminal act by overt acts but failing to perform all
acts of execution as to produce the felony by reason of some cause other
than his own desistance, petitioner committed an attempted felony.
Petitioner already commenced his attack with a manifest intent to kill by
shooting private complainant seven times, but failed to perform all the
acts of execution by reason of causes independent of his will, that is,
poor aim and the swiftness of the latter. Private complainant sustained a
wound on the left arm that is not sufficient to cause his death. The settled
rule is that where the wound inflicted on the victim is not sufficient to
cause his death, the crime is only attempted murder, since the accused
did not perform all the acts of execution that would have brought about
death.50
The penalty imposed by the trial court is correct. Under Article 51 of the
Revised Penal Code, the penalty lower than two degrees than that
prescribed by law for the consummated felony shall be imposed upon the
principal in an attempted felony. Under Article 248 of the Revised Penal
Code, the penalty for murder is reclusion perpertua to death. The penalty
two degrees lower is prision mayor. Applying the Indeterminate Sentence
Law, and there being no aggravating or mitigating circumstances, the
minimum of the penalty to be imposed should be within the range
of prision correccional, and the maximum of the penalty to be imposed
should be within the range of prision mayor in its medium period.
WHEREFORE, in view of the foregoing, the petition is DENIED. Costs
against petitioner.
SO ORDERED.