Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 84850 June 29, 1989 RICARDO A. LLAMADO, petitioner, vs.

HONORABLE COURT OF APPEALS and LEON GAW, respondents. Ambrosio Padilla, Mempin & Reyes Law Offices for petitioner. FELICIANO, J.: Petitioner Ricardo A. Llamado was Treasurer of Pan Asia Finance Corporation. Together with Jacinto N. Pascual, Sr., President of the same corporation, petitioner Llamado was prosecuted for violation of Batas Pambansa Blg. 22 in Criminal Case No. 85-38653, Regional Trial Court of Manila, Branch 49. The two (2) had co-signed a postdated check payable to private respondent Leon Gaw in the amount of P186,500.00, which check was dishonored for lack of sufficient funds. In a decision dated 10 March 1987, the trial court convicted the petitioner alone, since jurisdiction over the person of Pascual, who had thoughtfully fled the country, had not been obtained. Petitioner was sentenced to imprisonment for a period of one (1) year of prision correccional and to pay a fine of P 200,000.00 with subsidiary imprisonment in case of insolvency. Petitioner was also required to reimburse respondent Gaw the amount of P186,500.00 plus the cost of suit. On 20 March 1987, after the decision of the trial court was read to him, petitioner through counsel orally manifested that he was taking an appeal. Having been so notified, the trial court on the same day ordered the forwarding of the records of the case to the Court of Appeals. On 9 July 1987, petitioner through his counsel received from the Court of Appeals a notice to file his Appellant's Brief within thirty (30) days. Petitioner managed to secure several extensions of time within which to file his brief, the last extension expiring on 18 November 1987. 1 Petitioner Llamado, even while his Appellant's Brief was being finalized by his then counsel of record, sought advice from another counselor. On 30 November 1987, petitioner, with the assistance of his new counsel, filed in the Regional Trial Court a Petition for Probation invoking Presidential Decree No. 968, as amended. The Petition was not, however, accepted by the lower court, since the records of the case had already been forwarded to the Court of Appeals.

Petitioner then filed with the Court of Appeals Manifestation and Petition for Probation" dated 16 November 1987, enclosing a copy of the Petition for Probation that he had submitted to the trial court. Petitioner asked the Court of Appeals to grant his Petition for Probation or, in the alternative, to remand the Petition back to the trial court, together with the records of the criminal case, for consideration and approval under P.D. No. 968, as amended. At the same time, petitioner prayed that the running of the period for the filing of his Appellant's Brief be held in abeyance until after the Court of Appeals shall have acted on his Petition for Probation. In a "Manifestation and Motion" dated 3 March 1988 and filed with the Court of Appeals, petitioner formally withdrew his appeal conditioned, however, on the approval of his Petition for Probation. 2 Complying with a Resolution of the Court of Appeals, the Office of the Solicitor General filed a Comment stating that it had no objection to petitioner Llamado's application for probation. Private respondent-complainant, upon the other hand, sought and obtained leave to file a Comment on petitioner Llamado's application for probation, to which Comment, petitioner filed a Reply. Private respondent then filed his "Comment" on the Office of the Solicitor General's Comment of 18 March 1988. In a Resolution dated 17 June 1988, the Court of Appeals, through Mr. Justice Magsino, denied the Petition for Probation. A dissenting opinion was filed by Mr. Justice Bellosillo while Mr. Justice Santiago submitted a concurring opinion. Petitioner moved for reconsideration which Motion was denied by the Court of Appeals on 23 August 1988, with another, briefer, dissenting opinion from Mr. Justice Bellosillo. Petitioner now asks this Court to review and reverse the opinion of the majority in the Court of Appeals and, in effect, to accept and adopt the dissenting opinion as its own. The issue to be resolved here is whether or not petitioner's application for probation which was filed after a notice of appeal had been filed with the trial court, after the records of the case had been forwarded to the Court of Appeals and the Court of Appeals had issued the notice to file Appellant's Brief, after several extensions of time to file Appellant's Brief had been sought from and granted by the Court of Appeals but before actual filing of such brief, is barred under P.D. No. 968, as amended. P.D. No. 968, known as the Probation Law of 1976, was promulgated on 24 July 1976. Section 4 of this statute provided as follows:
Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the court may, after it shall have convicted and sentenced a defendant and upon application at any time of said defendant, suspend the execution of said sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court, with notice to the appellate court if an appeal has been taken from the sentence of conviction. The filing of

the application shall be deemed a waiver of the right to appeal, or the automatic withdrawal of a pending appeal. An order granting or denying probation shall not be appealable. (Emphasis supplied)

It will be noted that under Section 4 of P.D. No. 968, the trial court could grant an application for probation "at any time" "after it shall have convicted and sentenced a defendant" and certainly after "an appeal has been taken from the sentence of conviction." Thus, the filing of the application for probation was "deemed [to constitute] automatic withdrawal of a pending appeal." On 1 December 1977, Section 4 of P.D. No. 968 was amended by P.D. No. 1257 so as to read as follows:
Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the court may, senteafter it shall have convicted and sentenced a defendant but before he begins to serve his sentence and upon his application, suspend the execution of said sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best.

The prosecuting officer concerned shall be notified by the court of the filing of the application for probation and he may submit his comment on such application within ten days from receipt of the notification.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine with subsidiary imprisonment in case of insolvency. An application for probation shall be filed with the trial court, with notice to the appellate court if an appeal has been taken from the sentence of conviction. The filing of the application shall be deemed a waiver of the right to appeal, or the automatic withdrawal of a pending appeal. In the latter case, however, if the application is filed on or after the date of the judgment of the appellate court, said application shall be acted upon by the trial court on the basis of the judgment of the appellate court. (Emphasis supplied)

Examination of Section 4, after its amendment by P.D. No. 1257, reveals that it had established a prolonged but definite period during which an application for probation may be granted by the trial court. That period was: 'After [the trial court] shall have convicted and sentenced a defendant but before he begins to serve his sentence." Clearly, the cut-off time-commencement of service of sentence-takes place not only after an appeal has been taken from the sentence of conviction, but even after judgement has been rendered by the appellate court and after judgment has become final. Indeed, in this last situation, Section 4, as amended by P.D. No. 1257 provides that "the application [for probation] shall be acted upon by the trial court on the basis of the judgment of the appellate court"; for the appellate court might have increased or reduced the original penalty imposed by the trial court. It would seem beyond dispute then that had the present case arisen while Section 4 of the statute as amended by P.D. No. 1257 was still in effect, petitioner Llamado's application for probation would have had to be granted. Mr. Llamado's application for probation was filed well before the cutoff time established by Section 4 as then amended by P.D. No. 1257.

On 5 October 1985, however, Section 4 of the Probation Law of 1976 was once again amended. This time by P.D. No. 1990. As so amended and in its present form, Section 4 reads as follows:
Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable. (Emphasis supplied)

In sharp contrast with Section 4 as amended by PD No. 1257, in its present form, Section 4 establishes a much narrower period during which an application for probation may be filed with the trial court: "after [the trial court] shall have convicted and sentenced a defendant and — within the period for perfecting an appeal — ." As if to provide emphasis, a new proviso was appended to the first paragraph of Section 4 that expressly prohibits the grant of an application for probation "if the defendant has perfected an appeal from the judgment of conviction." It is worthy of note too that Section 4 in its present form has dropped the phrase which said that the filing of an application for probation means "the automatic withdrawal of a pending appeal". The deletion is quite logical since an application for probation can no longer be filed once an appeal is perfected; there can, therefore, be no pending appeal that would have to be withdrawn. In applying Section 4 in the form it exists today (and at the time petitioner Llamado was convicted by the trial court), to the instant case, we must then inquire whether petitioner Llamado had submitted his application for probation "within the period for perfecting an appeal." Put a little differently, the question is whether by the time petitioner Llamado's application was filed, he had already "perfected an appeal" from the judgment of conviction of the Regional Trial Court of Manila. The period for perfecting an appeal from a judgment rendered by the Regional Trial Court, under Section 39 of Batas Pambansa Blg. 129, Section 19 of the Interim Rules and Guidelines for the Implementation of B.P. Blg. 129 and under the 1985 Rules on Criminal Procedure, as amended, or more specifically Section 5 of Rule 122 of the Revised Rules of Court, is fifteen (15) days from the promulgation or notice of the judgment appealed from. It is also clear from Section 3 (a) of Rule 122 that such appeal is taken or perfected by simply filing a notice of appeal with the Regional Trial Court which rendered the judgment appealed from and by serving a copy thereof upon the People of the Philippines. As noted earlier, petitioner Llamado had manifested orally and in open court his intention to appeal at the time of promulgation of the judgment of

conviction, a manifestation at least equivalent to a written notice of appeal and treated as such by the Regional Trial Court. Petitioner urges, however, that the phrase "period for perfecting an appeal" and the clause "if the defendant has perfected an appeal from the judgment of conviction" found in Section 4 in its current form, should not be interpreted to refer to Rule 122 of the Revised Rules of Court; and that the "whereas" or preambulatory clauses of P.D. No. 1990 did not specify a period of fifteen (15) days for perfecting an appeal. 3 It is also urged that "the true legislative intent of the amendment (P.D. No. 1990) should not apply to petitioner who filed his Petition for probation at the earliest opportunity then prevailing and withdrew his appeal." 4 Petitioner invokes the dissenting opinion rendered by Mr. Justice Bellosillo in the Court of Appeals. Petitioner then asks us to have recourse to "the cardinal rule in statutory construction" that "penal laws [should] be liberally construed in favor of the accused," and to avoid "a too literal and strict application of the proviso in P.D. No. 1990" which would "defeat the manifest purpose or policy for which the [probation law] was enacted-." We find ourselves unable to accept the eloquently stated arguments of petitioner's counsel and the dissenting opinion. We are unable to persuade ourselves that Section 4 as it now stands, in authorizing the trial court to grant probation "upon application by [the] defendant within the period for perfecting an appeal" and in reiterating in the proviso that
no application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction.

did not really mean to refer to the fifteen-day period established, as indicated above, by B.P. Blg. 129, the Interim Rules and Guidelines Implementing B.P. Blg. 129 and the 1985 Rules on Criminal Procedure, but rather to some vague and undefined time, i.e., "the earliest opportunity" to withdraw the defendant's appeal. The whereas clauses invoked by petitioner did not, of course, refer to the fifteen-day period. There was absolutely no reason why they should have so referred to that period for the operative words of Section 4 already do refer, in our view, to such fifteen-day period. Whereas clauses do not form part of a statute, strictly speaking; they are not part of the operative language of the statute. 5 Nonetheless, whereas clauses may be helpful to the extent they articulate the general purpose or reason underlying a new enactment, in the present case, an enactment which drastically but clearly changed the substantive content of Section 4 existing before the promulgation of P.D. No. 1990. Whereas clauses, however, cannot control the specific terms of the statute; in the instant case, the whereas clauses of P.D. No. 1990 do not purport to control or modify the terms of Section 4 as amended. Upon the other hand, the term "period for perfecting an appeal" used in Section 4 may be seen to furnish specification for the loose language "first opportunity" employed in the fourth whereas clause. "Perfection of an appeal" is, of course, a term of art but it is a term of art widely understood by lawyers and judges and Section 4 of the Probation Law addresses itself essentially to judges and lawyers.

"Perfecting an appeal" has no sensible meaning apart from the meaning given to those words in our procedural law and so the law-making agency could only have intended to refer to the meaning of those words in the context of procedural law. Turning to petitioner's invocation of "liberal interpretation" of penal statutes, we note at the outset that the Probation Law is not a penal statute. We, however, understand petitioner's argument to be really that any statutory language that appears to favor the accused in a criminal case should be given a "liberal interpretation." Courts, however, have no authority to invoke "liberal interpretation' or "the spirit of the law" where the words of the statute themselves, and as illuminated by the history of that statute, leave no room for doubt or interpretation. We do not believe that "the spirit of law" may legitimately be invoked to set at naught words which have a clear and definite meaning imparted to them by our procedural law. The "true legislative intent" must obviously be given effect by judges and all others who are charged with the application and implementation of a statute. It is absolutely essential to bear in mind, however, that the spirit of the law and the intent that is to be given effect are to be derived from the words actually used by the law-maker, and not from some external, mystical or metajuridical source independent of and transcending the words of the legislature. The Court is not here to be understood as giving a "strict interpretation rather than a "liberal" one to Section 4 of the Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and "liberal" are adjectives which too frequently impede a disciplined and principled search for the meaning which the law-making authority projected when it promulgated the language which we must apply. That meaning is clearly visible in the text of Section 4, as plain and unmistakable as the nose on a man's face. The Court is simply reading Section 4 as it is in fact written. There is no need for the involved process of construction that petitioner invites us to engage in, a process made necessary only because petitioner rejects the conclusion or meaning which shines through the words of the statute. The first duty of a judge is to take and apply a statute as he finds it, not as he would like it to be. Otherwise, as this Court in Yangco v. Court of First Instance of Manila warned, confusion and uncertainty in application will surely follow, making, we might add, stability and continuity in the law much more difficult to achieve:
. . . [w]here language is plain, subtle refinements which tinge words so as to give them the color of a particular judicial theory are not only unnecessary but decidedly harmful. That which has caused so much confusion in the law, which has made it so difficult for the public to understand and know what the law is with respect to a given matter, is in considerable measure the unwarranted interference by judicial tribunals with the English language as found in statutes and contracts, cutting the words here and inserting them there, making them fit personal ideas of what the legislature ought to have done or what parties should have agreed upon, giving them meanings which they do not ordinarily have cutting, trimming, fitting, changing and coloring until lawyers themselves are unable to advise their clients as to the meaning of a given statute or contract until it has been submitted to some court for its interpretation and construction. 6

The point in this warning may be expected to become sharper as our people's grasp of English is steadily attenuated.

There is another and more fundamental reason why a judge must read a statute as the legislative authority wrote it, not as he would prefer it to have been written. The words to be given meaning whether they be found in the Constitution or in a statute, define and therefore limit the authority and discretion of the judges who must apply those words. If judges may, under cover of seeking the "true spirit" and "real intent" of the law, disregard the words in fact used by the law-giver, the judges will effectively escape the constitutional and statutory limitations on their authority and discretion. Once a judge goes beyond the clear and ordinary import of the words of the legislative authority, he is essentially on uncharted seas. In a polity like ours which enshrines the fundamental notion of limiting power through the separation and distribution of powers, judges have to be particularly careful lest they substitute their conceptions or preferences of policy for that actually projected by the legislative agency. Where a judge believes passionately that he knows what the legislative agency should have said on the particular matter dealt with by a statute, it is easy enough for him to reach the conclusion that therefore that was what the law-making authority was really saying or trying to say, if somewhat ineptly As Mr. Justice Frankfurter explained:
Even within their area of choice the courts are not at large. They are confined by the nature and scope of the judicial function in its particular exercise in the field of interpretation. They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished their brethren of the need for discipline in observing the limitations A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration He must not read in by way of creation. He must not read out except to avoid patent nonsense of internal contradictions. ... 7

Petitioner finally argues that since under Section 4 of Probation Law as amended has vested in the trial court the authority to grant the application for probation, the Court of Appeals had no jurisdiction to entertain the same and should have (as he had prayed in the alternative) remanded instead the records to the lower court. Once more, we are not persuaded. The trial court lost jurisdiction over the case when petitioner perfected his appeal. The Court of Appeals was not, therefore, in a position to remand the case except for execution of judgment. Moreover, having invoked the jurisdiction of the Court of Appeals, petitioner is not at liberty casually to attack that jurisdiction when exercised adversely to him. In any case, the argument is mooted by the conclusion that we have reached, that is, that petitioner's right to apply for probation was lost when he perfected his appeal from the judgment of conviction. WHEREFORE, the Decision of the Court of Appeals in CAGR No. 04678 is hereby AFFIRMED. No pronouncement as to costs. SO ORDERED. Fernan (C.J.), Gutierrez, Jr., Bidin and Cortes, JJ., concur.

Footnotes
1 Records on Appeal, p. 21. 2 Records on Appeal. pp. 41-42. 3 These clauses read: WHEREAS, it has been the sad experience that persons who are convicted of offenses and who may be entitled to probation still appeal the judgment of conviction even up to the Supreme Court, only to pursue their application for probation when their appeal is eventually dismissed. WHEREAS, the process of criminal investigation, prosecution, conviction and appeal entails too much time and effort, not to mention the huge expenses of litigation, on the part of the State; WHEREAS, the time, effort and expenses of the Government in investigating and prosecuting accused persons from the lower courts up to the Supreme Court, are often times rendered nugatory when, after the appellate court finally affirms the judgment of conviction, the defendant applies for and is granted probation; WHEREAS, the probation was not intended as an escape hatch and should not be used to obstruct and delay the administration of justice, but should be availed of at the first opportunity by offenders who are willing to be reformed and rehabilitated WHEREAS, it becomes imperative to remedy the problems above-mentioned confronting our probation system. 4 Petition, p. 11; Rollo, p. 12. 5 Yazoo & Mississippi Valley R. Co. v. Thomas, 132 US 174 (1889); 33 L Ed 302. See also Idaho Commission on Human Rights v. Campbell, 506 P. 2d 112; 95 Id. 215 (1973). 6 29 Phil. at 188 (1915); Italics supplied. 7 Some Reflections on the Reading of Statutes, 47 Columbia Law Review 527 (1947); Reprinted in 4 Sutherland,' Statutory Construction (4th ed. 1972) 409 at 416-417. Italics supplied.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-47757-61 January 28, 1980 THE PEOPLE OF THE PHILIPPINES, ABUNDIO R. ELLO, As 4th Assistant of Provincial Bohol VICENTE DE LA SERNA. JR., as complainant all private prosecutor, petitioners, vs. HON. VICENTE B. ECHAVES, JR., as Judge of the Court of First Instance of Bohol Branch II, ANO DACULLO, GERONIMO OROYAN, MARIO APARICI, RUPERTO CAJES and MODESTO S SUELLO, respondents.

AQUINO, J.:p The legal issue in this case is whether Presidential Decree No. 772, which penalizes squatting and similar acts, applies to agricultural lands. The decree (which took effect on August 20, 1975) provides:
SECTION 1. Any person who, with the use of force, intimidation or threat, or taking advantage of the absence or tolerance of the landowner, succeeds in occupying or possessing the property of the latter against his will for residential, commercial or any other purposes, shall be punished by an imprisonment ranging from six months to one year or a fine of not less than one thousand nor more than five thousand pesos at the discretion of the court, with subsidiary imprisonment in case of insolvency. (2nd paragraph is omitted.)

The record shows that on October 25, 1977 Fiscal Abundio R. Ello filed with the lower court separate informations against sixteen persons charging them with squatting as penalized by Presidential Decree No. 772. The information against Mario Aparici which is similar to the other fifteen informations, reads:
That sometime in the year 1974 continuously up to the present at barangay Magsaysay, municipality of Talibon, province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with stealth and strategy, enter into, occupy and cultivate a portion of a grazing land physically occupied, possessed and claimed by Atty. Vicente de la Serna, Jr. as successor to the pasture applicant Celestino de la Serna of Pasture Lease Application No. 8919, accused's entrance into the area has been and is still against the win of the offended party; did then and there willfully, unlawfully, and feloniously squat and cultivate a portion of the said grazing land; said cultivating has rendered a nuisance to and has deprived the pasture applicant from the full use thereof for which the land applied for has been intended, that is preventing applicant's cattle from

grazing the whole area, thereby causing damage and prejudice to the said applicantpossessor-occupant, Atty. Vicente de la Serna, Jr. (sic)

Five of the informations, wherein Ano Dacullo, Geronimo Oroyan, Mario Aparici, Ruperto Cajes and Modesto Suello were the accused, were raffled to Judge Vicente B. Echaves, Jr. of Branch II (Criminal Cases Nos. 1824, 1828, 1832, 1833 and 1839, respectively). Before the accused could be arraigned, Judge Echaves motu proprio issued an omnibus order dated December 9, 1977 dismissing the five informations on the grounds (1) that it was alleged that the accused entered the land through "stealth and strategy", whereas under the decree the entry should be effected "with the use of force, intimidation or threat, or taking advantage of the absence or tolerance of the landowner", and (2) that under the rule of ejusdem generis the decree does not apply to the cultivation of a grazing land. Because of that order, the fiscal amended the informations by using in lieu of "stealth and strategy" the expression "with threat, and taking advantage of the absence of the ranchowner and/or tolerance of the said ranchowner". The fiscal asked that the dismissal order be reconsidered and that the amended informations be admitted. The lower court denied the motion. It insisted that the phrase "and for other purposes" in the decree does not include agricultural purposes because its preamble does not mention the Secretary of Agriculture and makes reference to the affluent class. From the order of dismissal, the fiscal appealed to this Court under Republic Act No. 5440. The appeal is devoid of merit. We hold that the lower court correctly ruled that the decree does not apply to pasture lands because its preamble shows that it was intended to apply to squatting in urban communities or more particularly to illegal constructions in squatter areas made by wellto-do individuals. The squating complained of involves pasture lands in rural areas. The preamble of the decree is quoted below:
WHEREAS, it came to my knowledge that despite the issuance of Letter of Instruction No. 19 dated October 2, 1972, directing the Secretaries of National Defense, Public Work. 9 and communications, Social Welfare and the Director of Public Works, the PHHC General Manager, the Presidential Assistant on Housing and Rehabilitation Agency, Governors, City and Municipal Mayors, and City and District Engineers, "to remove an illegal constructions including buildings on and along esteros and river banks, those along railroad tracks and those built without permits on public and private property." squatting is still a major problem in urban communities all over the country; WHEREAS, many persons or entities found to have been unlawfully occupying public and private lands belong to the affluent class; WHEREAS, there is a need to further intensify the government's drive against this illegal and nefarious practice.

It should be stressed that Letter of Instruction No. 19 refers to illegal constructions on public and private property. It is complemented by Letter of Instruction No. 19-A which provides for the relocation of squatters in the interest of public health, safety and peace and order. On the other hand, it should be noted that squatting on public agricultural lands, like the grazing lands involved in this case, is punished by Republic Act No. 947 which makes it unlawful for any person, corporation or association to forcibly enter or occupy public agricultural lands. That law provides:
SECTION 1. It shall be unlawful for any person corporation or association to enter or occupy, through force, intimidation, threat, strategy or stealth, any public agriculture land including such public lands as are granted to private individuals under the provision of the Public Land Act or any other laws providing for the of public agriculture lands in the Philippines and are duly covered by the corresponding applications for the notwithstanding standing the fact that title thereto still remains in the Government or for any person, natural or judicial to investigate induce or force another to commit such acts.

Violations of the law are punished by a fine of not exceeding one thousand or imprisonment for not more than one year, or both such fine and imprisonment in the discretion of the court, with subsidiary imprisonment in case of insolvency. (See People vs. Lapasaran 100 Phil. 40.) The rule of ejusdem generis (of the same kind or species) invoked by the trial court does not apply to this case. Here, the intent of the decree is unmistakable. It is intended to apply only to urban communities, particularly to illegal constructions. The rule of ejusdem generis is merely a tool of statutory construction which is resorted to when the legislative intent is uncertain (Genato Commercial Corp. vs. Court of Tax Appeals, 104 Phil. 615,618; 28 C.J.S. 1049-50). WHEREFORE, the trial court's order of dismissal is affirmed. No costs. SO ORDERED. Barredo, Antonio, Concepcion Jr. and Abad Santos, J., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-42050-66 November 20, 1978 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE JUDGE AMANTE P. PURISIMA, COURT OF FIRST INSTANCE OF MANILA, BRANCH VII, and PORFIRIO CANDELOSAS, NESTOR BAES, ELIAS L. GARCIA, SIMEON BUNDALIAN, JR., JOSEPH C. MAISO, EDUARDO A. LIBORDO, ROMEO L. SUGAY, FEDERICO T. DIZON, GEORGE M. ALBINO, MARIANO COTIA, JR., ARMANDO L. DIZON, ROGELIO B. PARENO, RODRIGO V. ESTRADA, ALFREDO A. REYES, JOSE A. BACARRA, REYNALDO BOGTONG, and EDGARDO M. MENDOZA, respondents. G.R. No. L-46229-32 November 20, 1978 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH XVIII, and REYNALDO LAQUI Y AQUINO, ELPIDIO ARPON, VICTOR EUGENIO Y ROQUE and ALFREDO VERSOZA, respondents. G.R. No. L-46313-16 November 20, 1978 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH XVIII, and JUANITO DE LA CRUZ Y NUNEZ, SABINO BUENO Y CACAL, TIRSO ISAGAN Y FRANCISCO and BEN CASTILLO Y UBALDO, respondents. G.R. No. L-46997 November 20, 1978 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE WENCESLAO M. POLO, Judge of the Court of First Instance of Samar, and PANCHITO REFUNCION, respondents. Jose L. Gamboa, Fermin Martin, Jr. & Jose D. Cajucom, Office of the City of Fiscal of Manila and the Office of Provincial Fiscal of Samar for petitioners.

Norberto Parto for respondents Candelosas, Baes and Garcia. Amado C. de la Marced for respondents Simeon Bundalian Jr., et al. Manuel F. de Jesus for all the respondents in L-46229-32 and L-46313-16. Norberto L. Apostol for respondent Panchito Refuncion. Hon. Amante P. Purisima for and in his own behalf.

MUÑOZ PALMA, J.: These twenty-six (26) Petitions for Review filed by the People of the Philippines represented, respectively, by the Office of the City Fiscal of Manila, the Office of the Provincial Fiscal of Samar, and joined by the Solicitor General, are consolidated in this one Decision as they involve one basic question of law. These Petitions or appeals involve three Courts of First Instance, namely: the Court of First Instance of Manila, Branch VII, presided by Hon. Amante P. Purisima (17 Petitions), the Court of First Instance of Manila, Branch XVIII, presided by Hon. Maximo A. Maceren (8 Petitions) and, the Court of First Instance of Samar, with Hon. Wenceslao M. Polo, presiding, (1 Petition). Before those courts, Informations were filed charging the respective accused with "illegal possession of deadly weapon" in violation of Presidential Decree No. 9. On a motion to quash filed by the accused, the three Judges mentioned above issued in the respective cases filed before them — the details of which will be recounted below — an Order quashing or dismissing the Informations, on a common ground, viz, that the Information did not allege facts which constitute the offense penalized by Presidential Decree No. 9 because it failed to state one essential element of the crime. Thus, are the Informations filed by the People sufficient in form and substance to constitute the offense of "illegal possession of deadly weapon" penalized under Presidential Decree (PD for short) No. 9? This is the central issue which we shall resolve and dispose of, all other corollary matters not being indispensable for the moment. A — The Information filed by the People — 1. In L-42050-66, one typical Information filed with the Court presided by Judge Purisima follows:
THE PEOPLE OF THE PHILIPPINES, plaintiff, versus PORFIRIO CANDELOSAS Y DURAN, accused.

Crim. Case No. 19639 VIOLATION OF PAR. 3, PRES. DECREE No. 9 OF PROCLAMATION 1081 INFORMATION The undersigned accuses PORFIRIO CANDELOSAS Y DURAN of a violation of paragraph 3, Presidential Decree No. 9 of Proclamation 1081, committed as follows: That on or about the 14 th day of December, 1974, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully, feloniously and knowingly have in his possession and under his custody and control one (1) carving knife with a blade of 6-½ inches and a wooden handle of 5-1/4 inches, or an overall length of 11-¾ inches, which the said accused carried outside of his residence, the said weapon not being used as a tool or implement necessary to earn his livelihood nor being used in connection therewith. Contrary to law. (p. 32, rollo of L-42050-66)

The other Informations are similarly worded except for the name of the accused, the date and place of the commission of the crime, and the kind of weapon involved. 2. In L-46229-32 and L-46313-16, the Information filed with the Court presided by Judge Maceren follows:
THE PEOPLE OF THE PHILIPPINES, plaintiff, versus REYNALDO LAQUI Y AQUINO, accused. CRIM. CASE NO. 29677 VIOL. OF PAR. 3, PD 9 IN REL. TO LOI No. 266 of the Chief Executi ve dated April 1, 1975 INFORMATION

The undersigned accuses REYNALDO LAQUI Y AQUINO of a VIOLATION OF PARAGRAPH 3, PRESIDENTIAL DECREE NO. 9 in relation to Letter of Instruction No. 266 of the Chief Executive dated April 1, 1975, committed as follows: That on or about the 28 th day of January, 1977, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and knowingly carry outside of his residence a bladed and pointed weapon, to wit: an ice pick with an overall length of about 8½ inches, the same not being used as a necessary tool or implement to earn his livelihood nor being used in connection therewith. Contrary to law. (p. 14, rollo of L-46229-32)

The other Informations are likewise similarly worded except for the name of the accused, the date and place of the commission of the crime, and the kind of weapon involved. 3. In L-46997, the Information before the Court of First Instance of Samar is quoted hereunder:
PEOPLE OF THE PHILIPPINES, complainant, versus PANCHITO REFUNCION, accused. CRIM. CASE NO. 933 For: ILLEGA L POSSE SSION OF DEADL Y WEAP ON (VIOLA TION OF PD NO. 9) INFORMATION The undersigned First Assistant Provincial Fiscal of Samar, accuses PANCHITO REFUNCION of the crime of ILLEGAL POSSESSION OF DEADLY WEAPON or VIOLATION OF PD NO. 9 issued by the President of the Philippines on Oct. 2, 1972, pursuant to Proclamation No. 1081 dated Sept. 21 and 23, 1972, committed as follows:

That on or about the 6th day of October, 1976, in the evening at Barangay Barruz, Municipality of Matuginao, Province of Samar Philippines, and within the jurisdiction of this Honorabe Court, the abovenamed accused, knowingly, wilfully, unlawfully and feloniously carried with him outside of his residence a deadly weapon called socyatan, an instrument which from its very nature is no such as could be used as a necessary tool or instrument to earn a livelihood, which act committed by the accused is a Violation of Presidential Decree No. 9. CONTRARY TO LAW. (p. 8, rollo of L-46997)

B. — The Orders of dismissal — In dismissing or quashing the Informations the trial courts concurred with the submittal of the defense that one essential element of the offense charged is missing from the Information, viz: that the carrying outside of the accused's residence of a bladed, pointed or blunt weapon is in furtherance or on the occasion of, connected with or related to subversion, insurrection, or rebellion, organized lawlessness or public disorder. 1. Judge Purisima reasoned out, inter alia, in this manner:
... the Court is of the opinion that in order that possession of bladed weapon or the like outside residence may be prosecuted and tried under P.D. No. 9, the information must specifically allege that the possession of bladed weapon charged was for the purpose of abetting, or in furtherance of the conditions of rampant criminality, organized lawlessness, public disorder, etc. as are contemplated and recited in Proclamation No. 1081, as justification therefor. Devoid of this specific allegation, not necessarily in the same words, the information is not complete, as it does not allege sufficient facts to constitute the offense contemplated in P.D. No. 9. The information in these cases under consideration suffer from this defect.

xxx xxx xxx
And while there is no proof of it before the Court, it is not difficult to believe the murmurings of detained persons brought to Court upon a charge of possession of bladed weapons under P.D. No. 9, that more than ever before, policemen - of course not all can be so heartless — now have in their hands P.D. No. 9 as a most convenient tool for extortion, what with the terrifying risk of being sentenced to imprisonment of five to ten years for a rusted kitchen knife or a pair of scissors, which only God knows where it came from. Whereas before martial law an extortion-minded peace officer had to have a stock of the cheapest paltik, and even that could only convey the coercive message of one year in jail, now anything that has the semblance of a sharp edge or pointed object, available even in trash cans, may already serve the same purpose, and yet five to ten times more incriminating than the infamous paltik. For sure, P.D. No. 9 was conceived with the best of intentions and wisely applied, its necessity can never be assailed. But it seems it is back-firing, because it is too hot in the hands of policemen who are inclined to backsliding. The checkvalves against abuse of P.D. No. 9 are to be found in the heart of the Fiscal and the conscience of the Court, and hence this resolution, let alone technical legal

basis, is prompted by the desire of this Court to apply said checkvalves. (pp. 55-57, rollo of L-42050-66)

2. Judge Maceren in turn gave his grounds for dismissing the charges as follows: xxx xxx xxx
As earlier noted the "desired result" sought to be attained by Proclamation No. 1081 is the maintenance of law and order throughout the Philippines and the prevention and suppression of all forms of lawless violence as well as any act of insurrection or rebellion. It is therefore reasonable to conclude from the foregoing premises that the carrying of bladed, pointed or blunt weapons outside of one's residence which is made unlawful and punishable by said par. 3 of P.D. No. 9 is one that abets subversion, insurrection or rebellion, lawless violence, criminality, chaos and public disorder or is intended to bring about these conditions. This conclusion is further strengthened by the fact that all previously existing laws that also made the carrying of similar weapons punishable have not been repealed, whether expressly or impliedly. It is noteworthy that Presidential Decree No. 9 does not contain any repealing clause or provisions.

xxx xxx xxx
The mere carrying outside of one's residence of these deadly weapons if not concealed in one's person and if not carried in any of the aforesaid specified places, would appear to be not unlawful and punishable by law. With the promulgation of Presidential Decree No. 9, however, the prosecution, through Assistant Fiscal Hilario H. Laqui, contends in his opposition to the motion to quash, that this act is now made unlawful and punishable, particularly by paragraph 3 thereof, regardless of the intention of the person carrying such weapon because the law makes it "mala prohibita". If the contention of the prosecution is correct, then if a person happens to be caught while on his way home by law enforcement officers carrying a kitchen knife that said person had just bought from a store in order that the same may be used by one's cook for preparing the meals in one's home, such person will be liable for punishment with such a severe penalty as imprisonment from five to ten years under the decree. Such person cannot claim that said knife is going to be used by him to earn a livelihood because he intended it merely for use by his cook in preparing his meals. This possibility cannot be discounted if Presidential Decree No. 9 were to be interpreted and applied in the manner that that the prosecution wants it to be done. The good intentions of the President in promulgating this decree may thus be perverted by some unscrupulous law enforcement officers. It may be used as a tool of oppression and tyranny or of extortion.

xxx xxx xxx
It is therefore the considered and humble view of this Court that the act which the President intended to make unlawful and punishable by Presidential Decree No. 9, particularly by paragraph 3 thereof, is one that abets or is intended to abet subversion, rebellion, insurrection, lawless violence, criminality, chaos and public disorder. (pp. 2830, rollo of L-46229-32)

3. Judge Polo of the Court of First Instance of Samar expounded his order dismissing the Information filed before him, thus:
... We believe that to constitute an offense under the aforcited Presidential decree, the same should be or there should be an allegation that a felony was committed in connection or in furtherance of subversion, rebellion, insurrection, lawless violence and public disorder. Precisely Proclamation No. 1081 declaring a state of martial law throughout the country was issued because of wanton destruction to lives and properties widespread lawlessness and anarchy. And in order to restore the tranquility and stability of the country and to secure the people from violence anti loss of lives in the quickest possible manner and time, carrying firearms, explosives and deadly weapons without a permit unless the same would fall under the exception is prohibited. This conclusion becomes more compelling when we consider the penalty imposable, which is from five years to ten years. A strict enforcement of the provision of the said law would mean the imposition of the Draconian penalty upon the accused.

xxx xxx xxx
It is public knowledge that in rural areas, even before and during martial law, as a matter of status symbol, carrying deadly weapons is very common, not necessarily for committing a crime nor as their farm implement but for self-preservation or self-defense if necessity would arise specially in going to and from their farm. (pp. 18-19, rollo of L46997)

In most if not all of the cases, the orders of dismissal were given before arraignment of the accused. In the criminal case before the Court of (First Instance of Samar the accused was arraigned but at the same time moved to quash the Information. In all the cases where the accused were under arrest, the three Judges ordered their immediate release unless held on other charges. C. — The law under which the Informations in question were filed by the People. As seen from the Informations quoted above, the accused are charged with illegal possession of deadly weapon in violation of Presidential Decree No. 9, Paragraph 3. We quote in full Presidential Decree No. 9, to wit:
PRESIDENTIAL DECREE NO. 9 DECLARING VIOLATIONS OF GENERAL ORDERS NO. 6 and NO. 7 DATED SEPTEMBER 22, 1972, AND SEPTEMBER 23, 1972, RESPECTIVELY, TO BE UNLAWFUL AND PROVIDING PENALTIES THEREFORE. WHEREAS, pursuant to Proclamation No. 1081 dated September 21, 1972, the Philippines has been placed under a state of martial law; WHEREAS, by virtue of said Proclamation No. 1081, General Order No. 6 dated September 22, 1972 and General Order No. 7 dated September 23, 1972, have been promulgated by me;

WHEREAS, subversion, rebellion, insurrection, lawless violence, criminality, chaos and public disorder mentioned in the aforesaid Proclamation No. 1081 are committed and abetted by the use of firearms, explosives and other deadly weapons; NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the Armed Forces of the Philippines, in older to attain the desired result of the aforesaid Proclamation No. 1081 and General Orders Nos. 6 and 7, do hereby order and decree that: 1. Any violation of the aforesaid General Orders Nos. 6 and 7 is unlawful and the violator shall, upon conviction suffer: (a) The mandatory penalty of death by a firing squad or electrocution as a Military, Court/Tribunal/Commission may direct, it the firearm involved in the violation is unlicensed and is attended by assault upon, or resistance to persons in authority or their agents in the performance of their official functions resulting in death to said persons in authority or their agent; or if such unlicensed firearm is used in the commission of crimes against persons, property or chastity causing the death of the victim used in violation of any other General Orders and/or Letters of Instructions promulgated under said Proclamation No. 1081: (b) The penalty of imprisonment ranging from twenty years to life imprisonment as a Military Court/Tribunal/commission may direct, when the violation is not attended by any of the circumstances enumerated under the preceding paragraph; (c) The penalty provided for in the preceding paragraphs shall be imposed upon the owner, president, manager, members of the board of directors or other responsible officers of any public or private firms, companies, corporations or entities who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity concerned to be used in violation of said General Orders Nos. 6 and 7. 2. It is unlawful to posses deadly weapons, including hand grenades, rifle grenades and other explosives, including, but not limited to, "pill box bombs," "molotov cocktail bombs," "fire bombs," or other incendiary device consisting of any chemical, chemical compound, or detonating agents containing combustible units or other ingredients in such proportion, quantity, packing, or bottling that ignites by fire, by friction, by concussion, by percussion, or by detonation of all or part of the compound or mixture which may cause such a sudden generation of highly heated gases that the resultant gaseous pressures are capable of producing destructive effects on continguous objects or of causing injury or death of a person; and any person convicted thereof shall be punished by imprisonment ranging from ten to fifteen years as a Military Court/Tribunal/Commission may direct. 3. It is unlawful to carry outside of residence any bladed, pointed or blunt weapon such as "fan knife," "spear," "dagger," "bolo," "balisong," "barong," "kris," or club, except where such articles are being used as necessary tools or implements to earn a livelihood and while being used in connection therewith; and any person found guilty thereof shall suffer the penalty of imprisonment ranging from five to ten years as a Military Court/Tribunal/Commission may direct. 4. When the violation penalized in the preceding paragraphs 2 and 3 is committed during the commission of or for the purpose of committing, any other crime, the penalty shall be imposed upon the offender in its maximum extent, in addition to the penalty provided for the particular offenses committed or intended to be committed.

Done in the City of Manila, this 2nd day of October in the year of Our Lord, nineteen hundred and seventy-two. (SGD) FERDINAND E. MARCOS Preside nt Republic of the Philippines

D. — The arguments of the People — In the Comment filed in these cases by the Solicitor General who as stated earlier joins the City Fiscal of Manila and the Provincial Fiscal of Samar in seeking the setting aside of the questioned orders of dismissal, the main argument advanced on the issue now under consideration is that a perusal of paragraph 3 of P.D. 9 'shows that the prohibited acts need not be related to subversive activities; that the act proscribed is essentially a malum prohibitum penalized for reasons of public policy. 1 The City Fiscal of Manila in his brief adds further that in statutory offenses the intention of the accused who commits the act is immaterial; that it is enough if the prohibited act is voluntarily perpetuated; that P.D. 9 provides and condemns not only the carrying of said weapon in connection with the commission of the crime of subversion or the like, but also that of criminality in general, that is, to eradicate lawless violence which characterized pre-martial law days. It is also argued 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 but by the actual recital of facts in the complaint or information. 2 E. — Our Ruling on the matter — 1. It is a constitutional right of any person who stands charged in a criminal prosecution to be informed of the nature and cause of the accusation against him. 3 Pursuant to the above, Section 5, Rule 110 of the Rules of Court, expressly requires that for a complaint or information to be sufficient it must, inter alia state the designation of the offense by the statute, and the acts or omissions complained of as constituting the offense. This is essential to avoid surprise on the accused and to afford him the opportunity to prepare his defense accordingly. 4 To comply with these fundamental requirements of the Constitution and the Rules on Criminal Procedure, it is imperative for the specific statute violated to be designated or mentioned 4 in the charge. In fact, another compelling reason exists why a specification of the statute violated is essential in these cases. As stated in the order of respondent Judge Maceren the carrying of so-called "deadly weapons" is the subject of another penal statute and a Manila city ordinance. Thus, Section 26 of Act No. 1780 provides:

Section 26. It should be unlawful for any person to carry concealed about his person any bowie knife, dirk dagger, kris, or other deadly weapon: ... Any person violating the provisions of this section shall, upon conviction in a court of competent jurisdiction, be punished by a fine not exceeding five hundred pesos, or by imprisonment for a period not exceeding six months, or both such fine and imprisonment, in the discretion of the court.

Ordinance No. 3820 of the City of Manila as amended by Ordinance No. 3928 which took effect on December 4, 1957, in turn penalizes with a fine of not more than P200.00 or imprisonment for not more than one months, or both, at the discretion of the court, anyone who shall carry concealed in his person in any manner that would disguise its deadly character any kind of firearm, bowie knife, or other deadly weapon ... in any public place. Consequently, it is necessary that the particular law violated be specified as there exists a substantial difference between the statute and city ordinance on the one hand and P.D. 9 (3) on the other regarding the circumstances of the commission of the crime and the penalty imposed for the offense. We do not agree with petitioner that the above-mentioned statute and the city ordinance are deemed repealed by P.D. 9 (3). 5 P. D. 9(3) does not contain any repealing clause or provision, and repeal by implication is not favored. 6 This principle holds true with greater force with regards to penal statutes which as a rule are to be construed strictly against the state and liberally in favor of the accused. 7 In fact, Article 7 of the New Civil Code provides that laws are repealed only by subsequent ones and their violation or non- observance shall not be excused by disuse, or custom or practice to the contrary. Thus we are faced with the situation where a particular act may be made to fall, at the discretion of a police officer or a prosecuting fiscal, under the statute, or the city ordinance, or the presidential decree. That being the case, the right becomes more compelling for an accused to be confronted with the facts constituting the essential elements of the offense charged against him, if he is not to become an easy pawn of oppression and harassment, or of negligent or misguided official action — a fear understandably shared by respondent Judges who by the nature of their judicial functions are daily exposed to such dangers. 2. In all the Informations filed by petitioner the accused are charged in the caption as well as in the body of the Information with a violation of paragraph 3, P.D. 9. What then are the elements of the offense treated in the presidential decree in question? We hold that the offense carries two elements: first, the carrying outside one's residence of any bladed, blunt, or pointed weapon, etc. not used as a necessary tool or implement for a livelihood; and second, that the act of carrying the weapon was either in furtherance of, or to abet, or in connection with subversion, rebellion, insurrection, lawless violence, criminality, chaos, or public disorder. It is the second element which removes the act of carrying a deadly weapon, if concealed, outside of the scope of the statute or the city ordinance mentioned above. In other words, a simple act of carrying any of the weapons described in the presidential decree is not a criminal offense in itself. What makes the act criminal or punishable

under the decree is the motivation behind it. Without that motivation, the act falls within the purview of the city ordinance or some statute when the circumstances so warrant. Respondent Judges correctly ruled that this can be the only reasonably, logical, and valid construction given to P.D. 9(3). 3. The position taken by petitioner that P.D. 9(3) covers one and all situations where a person carries outside his residence any of the weapons mentioned or described in the decree irrespective of motivation, intent, or purpose, converts these cases into one of "statutory construction." That there is ambiguity in the presidential decree is manifest from the conflicting views which arise from its implementation. When ambiguity exists, it becomes a judicial task to construe and interpret the true meaning and scope of the measure, guided by the basic principle that penal statutes are to be construed and applied liberally in favor of the accused and strictly against the state. 4. In the construction or interpretation of a legislative measure — a presidential decree in these cases — the primary rule is to search for and determine the intent and spirit of the law. Legislative intent is the controlling factor, for in the words of this Court in Hidalgo v. Hidalgo, per Mr. Justice Claudio Teehankee, whatever is within the spirit of a statute is within the statute, and this has to be so if strict adherence to the letter would result in absurdity, injustice and contradictions. 8 There are certain aids available to Us to ascertain the intent or reason for P.D. 9(3). First, the presence of events which led to or precipitated the enactment of P.D. 9. These events are clearly spelled out in the "Whereas" clauses of the presidential decree, thus: (1) the state of martial law in the country pursuant to Proclamation 1081 dated September 21, 1972; (2) the desired result of Proclamation 1081 as well as General Orders Nos. 6 and 7 which are particularly mentioned in P.D. 9; and (3) the alleged fact that subversion, rebellion, insurrection, lawless violence, criminality, chaos, aid public disorder mentioned in Proclamation 1081 are committed and abetted by the use of firearms and explosives and other deadly weapons. The Solicitor General however contends that a preamble of a statute usually introduced by the word "whereas", is not an essential part of an act and cannot enlarge or confer powers, or cure inherent defects in the statute (p. 120, rollo of L-42050-66); that the explanatory note or enacting clause of the decree, if it indeed limits the violation of the decree, cannot prevail over the text itself inasmuch as such explanatory note merely states or explains the reason which prompted the issuance of the decree. (pp. 114-115, rollo of 46997) We disagree with these contentions. Because of the problem of determining what acts fall within the purview of P.D. 9, it becomes necessary to inquire into the intent and spirit of the decree and this can be found among others in the preamble or, whereas" clauses which enumerate the facts or events which justify the promulgation of the decree and the stiff sanctions stated therein.

A "preamble" is the key of the statute, to open the minds of the makers as to the mischiefs which are to be remedied, and objects which are to be accomplished, by the provisions of the statute." (West Norman Timber v. State, 224 P. 2d 635, 639, cited in Words and Phrases, "Preamble"; emphasis supplied) While the preamble of a statute is not strictly a part thereof, it may, when the statute is in itself ambiguous and difficult of interpretation, be resorted to, but not to create a doubt or uncertainty which otherwise does not exist." (James v. Du Bois, 16 N.J.L. (1 Har.) 285, 294, cited in Words and Phrases, "Preamble")

In Aboitiz Shipping Corporation, et al. v. The City of Cebu, et al. this Court had occasion to state that '(L)egislative intent must be ascertained from a consideration of the statute as a whole, and not of an isolated part or a particular provision alone. This is a cardinal rule of statutory construction. For taken in the abstract, a word or phrase might easily convey a meaning quite different from the one actually intended and evident when the word or phrase is considered with those with which it is associated. Thus, an apparently general provision may have a limited application if read together with other provisions. 9 Second, the result or effects of the presidential decree must be within its reason or intent. In the paragraph immediately following the last "Whereas" clause, the presidential decree states:
NOW, THEREFORE, I , FERDINAND E. MARCOS, Commander-in-Chief of an the Armed Forces of the Philippines, in order to attain the desired result of the aforesaid Proclamation No. 1081 and General Orders Nos. 6 and 7, do hereby order and decree that:

xxx xxx xxx
From the above it is clear that the acts penalized in P.D. 9 are those related to the desired result of Proclamation 1081 and General Orders Nos. 6 and 7. General Orders Nos. 6 and 7 refer to firearms and therefore have no relevance to P.D. 9(3) which refers to blunt or bladed weapons. With respect to Proclamation 1081 some of the underlying reasons for its issuance are quoted hereunder: WHEREAS, these lawless elements having taken up arms against our duly constituted government and against our people, and having committed and are still committing acts of armed insurrection and rebellion consisting of armed raids, forays, sorties, ambushes, wanton acts of murders, spoilage, plunder, looting, arsons, destruction of public and private buildings, and attacks against innocent and defenseless civilian lives and property, all of which activities have seriously endangered and continue to endanger public order and safety and the security of the nation, ...

xxx xxx xxx
WHEREAS, it is evident that there is throughout the land a state of anarchy and lawlessness, chaos and disorder, turmoil and destruction of a magnitude equivalent to an actual war between the forces of our duly constituted government and the New People's Army and their satellite organizations because of the unmitigated forays, raids,

ambuscades, assaults, violence, murders, assassinations, acts of terror, deceits, coercions, threats, intimidations, treachery, machinations, arsons, plunders and depredations committed and being committed by the aforesaid lawless elements who have pledged to the whole nation that they will not stop their dastardly effort and scheme until and unless they have fully attained their primary and ultimate purpose of forcibly seizing political and state power in this country by overthrowing our present duly constituted government, ... (See Book I, Vital Documents on the Declaration of Martial Law in the Philippines by the Supreme Court of the Philippines, pp. 13-39)

It follows that it is only that act of carrying a blunt or bladed weapon with a motivation connected with or related to the afore-quoted desired result of Proclamation 1081 that is within the intent of P.D. 9(3), and nothing else.
Statutes are to be construed in the light of purposes to be achieved and the evils sought to be remedied. (U.S. v. American Tracking Association, 310 U.S. 534, cited in LVN Pictures v. Philippine Musicians Guild, 110 Phil. 725, 731; emphasis supplied) When construing a statute, the reason for its enactment should be kept in mind, and the statute should be construed with reference to its intended scope and purpose. (Statutory Construction by E.T. Crawford, pp. 604-605, cited in Commissioner of Internal Revenue v. Filipinas Compania de Seguros, 107 Phil. 1055, 1060; emphasis supplied)

5. In the construction of P.D. 9(3) it becomes relevant to inquire into the consequences of the measure if a strict adherence to the letter of the paragraph is followed. It is a salutary principle in statutory construction that there exists a valid presumption that undesirable consequences were never intended by a legislative measure, and that a construction of which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil, and injurious consequences. 9-a It is to be presumed that when P.D. 9 was promulgated by the President of the Republic there was no intent to work a hardship or an oppressive result, a possible abuse of authority or act of oppression, arming one person with a weapon to impose hardship on another, and so on. 10 At this instance We quote from the order of Judge Purisima the following:
And while there is no proof of it before the Court, it is not difficult to believe the murmurings of detained persons brought to Court upon a charge of possession of bladed weapons under P.D. No. 9, that more than ever before, policemen - of course not all can be so heartless — now have in their hands P.D. No. 9 as a most convenient tool for extortion, what with the terrifying risk of being sentenced to imprisonment of five to ten years for a rusted kitchen knife or a pair of scissors, which only God knows where it came from. Whereas before martial law an extortion-minded peace officer had to have a stock of the cheapest paltik, and even that could only convey the coercive message of one year in jail, now anything that has the semblance of a sharp edge or pointed object, available even in trash cans, may already serve the same purpose, and yet five to ten times more incriminating than the infamous paltik. (pp. 72-73, rollo L-42050-66)

And as respondent Judge Maceren points out, the people's interpretation of P.D. 9(3) results in absurdity at times. To his example We may add a situation where a law-

abiding citizen, a lawyer by profession, after gardening in his house remembers to return the bolo used by him to his neighbor who lives about 30 meters or so away and while crossing the street meets a policeman. The latter upon seeing the bolo being carried by that citizen places him under arrest and books him for a violation of P.D. 9(3). Could the presidential decree have been conceived to produce such absurd, unreasonable, and insensible results? 6. Penal statutes are to be construed strictly against the state and liberally in favor of an accused. American jurisprudence sets down the reason for this rule to be "the tenderness of the law of the rights of individuals; the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited." 11 The purpose is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts. 12 Our own decisions have set down the same guidelines in this manner, viz:
Criminal statutes are to be construed strictly. No person should be brought within their terms who is not clearly within them, nor should any act be pronounced criminal which is not made clearly so by the statute. (U.S. v. Abad Santos, 36 Phil. 243, 246) The rule that penal statutes are given a strict construction is not the only factor controlling the interpretation of such laws, instead, the rule merely serves as an additional, single factor to be considered as an aid in determining the meaning of penal laws. (People v. Manantan, 5 SCRA 684, 692)

F. The Informations filed by petitioner are fatally defective. The two elements of the offense covered by P.D. 9(3) must be alleged in the Information in order that the latter may constitute a sufficiently valid charged. The sufficiency of an Information is determined solely by the facts alleged therein. 13 Where the facts are incomplete and do not convey the elements of the crime, the quashing of the accusation is in order. Section 2(a), Rule 117 of the Rules of Court provides that the defendant may move to quash the complaint or information when the facts charged do not constitute an offense. In U.S.U. Gacutan, 1914, it was held that where an accused is charged with knowingly rendering an unjust judgment under Article 204 of the Revised Penal Code, failure to allege in the Information that the judgment was rendered knowing it to be unjust, is fatal.
14

In People v. Yadao, 1954, this Court through then Justice Cesar Bengzon who later became Chief Justice of the Court affirmed an order of the trial court which quashed an Information wherein the facts recited did not constitute a public offense as defined in Section 1, Republic Act 145. 15

G. The filing of these Petitions was unnecessary because the People could have availed itself of other available remedies below. Pertinent provisions of the Rules of Court follow:
Rule 117, Section 7. Effect of sustaining the motion to quash. — If the motion to quash is sustained the court may order that another information be filed. If such order is made the defendant, if in custody, shall remain so unless he shall be admitted to bail. If such order is not made or if having been made another information is not filed withuntime to be specified in the order, or within such further time as the court may allow for good cause shown, the defendant, if in custody, shall be discharged therefrom, unless he is in custody on some other charge. Rule 110, Section 13. Amendment. — The information or complaint may be amended, in substance or form, without leave of court, at any time before the defendant pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the defendant.

xxx xxx xxx Two courses of action were open to Petitioner upon the quashing of the Informations in these cases, viz: First, if the evidence on hand so warranted, the People could have filed an amended Information to include the second element of the offense as defined in the disputed orders of respondent Judges. We have ruled that if the facts alleged in the Information do not constitute a punishable offense, the case should not be dismissed but the prosecution should be given an opportunity to amend the Information. 16 Second, if the facts so justified, the People could have filed a complaint either under Section 26 of Act No. 1780, quoted earlier, or Manila City Ordinance No. 3820, as amended by Ordinance No. 3928, especially since in most if not all of the cases, the dismissal was made prior to arraignment of the accused and on a motion to quash. Section 8. Rule 117 states that:
An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in section 2, subsections (f) and (h) of this rule.

Under the foregoing, the filing of another complaint or Information is barred only when the criminal action or liability had been extinguished (Section 2[f]) or when the motion to quash was granted for reasons of double jeopardy. (ibid., [h]) As to whether or not a plea of double jeopardy may be successfully invoked by the accused in all these cases should new complaints be filed against them, is a matter We need not resolve for the present.

H. — We conclude with high expectations that police authorities and the prosecuting arm of the government true to the oath of office they have taken will exercise utmost circumspection and good faith in evaluating the particular circumstances of a case so as to reach a fair and just conclusion if a situation falls within the purview of P.D. 9(3) and the prosecution under said decree is warranted and justified. This obligation becomes a sacred duty in the face of the severe penalty imposed for the offense. On this point, We commend the Chief State Prosecutor Rodolfo A. Nocon on his letter to the City Fiscal of Manila on October 15, 1975, written for the Secretary, now Minister of Justice, where he stated the following:
In any case, please study well each and every case of this nature so that persons accused of carrying bladed weapons, specially those whose purpose is not to subvert the duly constituted authorities, may not be unduly indicted for the serious offenses falling under P.D. No. 9. 17

Yes, while it is not within the power of courts of justice to inquire into the wisdom of a law, it is however a judicial task and prerogative to determine if official action is within the spirit and letter of the law and if basic fundamental rights of an individual guaranteed by the Constitution are not violated in the process of its implementation. We have to face the fact that it is an unwise and unjust application of a law, necessary and justified under prevailing circumstances, which renders the measure an instrument of oppression and evil and leads the citizenry to lose their faith in their government. WHEREFORE, We DENY these 26 Petitions for Review and We AFFIRM the Orders of respondent Judges dismissing or quashing the Information concerned, subject however to Our observations made in the preceding pages 23 to 25 of this Decision regarding the right of the State or Petitioner herein to file either an amended Information under Presidential Decree No. 9, paragraph 3, or a new one under other existing statute or city ordinance as the facts may warrant. Without costs. SO ORDERED. Fernando, Teehankee, Santos, Fernandez and Guerrero, JJ., concur. Castro, C.J. and Antonio, J, concur in the result. Aquino, J, took no part.

Separate Opinions

BARREDO, J., concurring. I concur with the qualification that under existing jurisprudence conviction is possible, without the need of amending the information, for violation of other laws or ordinances on concealment of deadly weapons. Makasiar, J, concurs. CONCEPCION, JR., J, concurring: I concur with the additional observation that accused could properly be convicted of a violation of Act 1780 of the Philippine Commission or of the ordinance.

Separate Opinions BARREDO, J., concurring. I concur with the qualification that under existing jurisprudence conviction is possible, without the need of amending the information, for violation of other laws or ordinances on concealment of deadly weapons. Makasiar, J, concurs. CONCEPCION, JR., J, concurring: I concur with the additional observation that accused could properly be convicted of a violation of Act 1780 of the Philippine Commission or of the ordinance. Footnotes
1 p. 118, rollo of L-42050-66. 2 pp. 10-11, brief of Petitioner at p. 218, Ibid. 3 Art. IV, Sec. 19, 1973 Constitution. 4 Francisco on the Revised Rules of Court, 1969 Ed., Vol. on Criminal Procedure, p. 86. 5 pp. 33-34 brief of Petitioner filed by the City Fiscal of Manila. 6 Valera v. Tuason, Jr., et al., 80 Phil. 823, citing U.S. v. Palacio, 33 Phil. 208; Quisumbing v. Lachica, 2 SCRA 182; Almeda v. Florentino, 15 SCRA 514; Lechoco v. Civil Aeronautics Board, 43 SCRA 670.

7 People v. Elkanish, 1951, 90 Phil. 53, 57 People v. Yadao, 1954, 94 Phil. 726, 728. 8 33 SCRA 105. See also 73 Am Jur 2d 351 citing United States v. N.E. Rosenblum Truck Lines, Inc., 315 US 50,86 L Ed 671; United States v. Stone & Downer Co., 274 US 225, 71 L Ed 1013; Ebert v. Poston, 266 US 548, 69 L Ed 435; Wisconsin C.R. Co. v. Forsythe, 159 US 46,40 L Ed 71. 9 13 SCRA 449, 453; Emphasis supplied. 9-a 73 Am Jur 2d 428. 10 See 73 Am Jur 2d 432-433 for cases on the foregoing undesirable consequences. 11 United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d 549; Jennings v. Commonwealth, 109 Va 821, 63 SE 1080, all cited in 73 Am Jur 2d 452. 12 State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction, Rev. Ed. pp. 183-184. 13 People v. Supnad, 7 SCRA 603, 606. 14 28 Phil. See Moran, Comments on the Rules of Court, 1970 Ed., Vol. 4, p. 222. 15 94 Phil. 726. 16 People v. Plaza, 7 SCRA 617. 17 This letter which was addressed to the City Fiscal of Manila referred to a decision of the Court of First Instance of Manila, Branch III, in Criminal Case No. 21178, "People vs. Conrado C. Petate, "for violation of Presidential Decree No. 9.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-8848 November 21, 1913

THE UNITED STATES, plaintiff-appllee, vs. WILLIAM C. HART, C. J. MILLER, and SERVILIANO NATIVIDAD, defendantsappellants. Pedro Abad Santos, for appellants Hart and Natividad. W. H. Booram, for appellant Miller. Office of the Solicitor-General Harvey, for appellee.

TRENT, J.: The appellants, Hart, Miller, and Natividad, were arraigned in the Court of First Instance of Pampanga on a charge of vagrancy under the provisions of Act No. 519, found guilty, and were each sentenced to six months' imprisonment. Hart and Miller were further sentenced to a fine of P200, and Natividad to a fine of P100. All appealed. The evidence of the prosecution as to the defendant Hart shows that he pleaded guilty and was convicted on a gambling charge about two or three weeks before his arrest on the vagrancy charge; that he had been conducting two gambling games, one in his saloon and the other in another house, for a considerable length of time, the games running every night. The defense showed that Hart and one Dunn operated a hotel and saloon at Angeles which did a business, according to the bookkeeper, of P96,000 during the nineteen months preceding the trial; that Hart was also the sole proprietor of a saloon in the barrio of Tacondo; that he raised imported hogs which he sold to the Army garrison at Camp Stotsenberg, which business netted him during the preceding year about P4,000; that he was authorized to sell several hundred hectares of land owned by one Carrillo in Tacondo; that he administered, under power of attorney, the same property; and that he furnished a building for and paid the teacher of the first public school in Tacondo, said school being under Government supervision. The evidence of the prosecution as to Miller was that he had the reputation of being a gambler; that he pleaded guilty and was fined for participating in a gambling game about two weeks before his arrest on the present charge of vagrancy; and that he was seen in houses of prostitution and in a public dance hall in Tacondo on various occasions. The defense showed without contradiction that Miller had been discharged from the Army about a year previously;

that during his term of enlistment he had been made a sergeant; that he received rating as "excellent" on being discharged; that since his discharge he had been engaged in the tailoring business near Camp Stotsenberg under articles of partnership with one Burckerd, Miller having contributed P1,000 to the partnership; that the business netted each partner about P300 per month; that Miller attended to business in an efficient manner every day; and that his work was first class. The evidence of the prosecution as to Natividad was that he had gambled nearly every night for a considerable time prior to his arrest on the charge of vagrancy, in the saloon of one Raymundo, as well as in Hart's saloon; that Natividad sometimes acted as banker; and that he had pleaded guilty to a charge of gambling and had been sentenced to pay a fine therefor about two weeks before his arrest on the vagrancy charge. The defense showed that Natividad was a tailor, married, and had a house of his own; that he made good clothes, and earned from P80 to P100 per month, which was sufficient to support his family. From this evidence it will be noted that each of the defendants was earning a living at a lawful trade or business, quite sufficient to support himself in comfort, and that the evidence which the prosecution must rely upon for a conviction consists of their having spent their evenings in regularly licensed saloons, participating in gambling games which are expressly made unlawful by the Gambling Act, No. 1757, and that Miller frequented a dance hall and houses of prostitution. Section 1 of Act No. 519 is divided into seven clauses, separated by semicolons. Each clause enumerates a certain class of persons who, within the meaning of this statute, are to be considered as vagrants. For the purposes of this discussion, we quote this section below, and number each of these seven clauses. (1) Every person having no apparent means of subsistence, who has the physical ability to work, and who neglects to apply himself or herself to some lawful calling; (2) every person found loitering about saloons or dram shops or gambling houses, or tramping or straying through the country without visible means of support; (3) every person known to be a pickpocket, thief, burglar, ladrone, either by his own confession or by his having been convicted of either of said offenses, and having no visible or lawful means of support when found loitering about any gambling house, cockpit, or in any outlying barrio of a pueblo; (4) every idle or dissolute person or associate of known thieves or ladrones who wanders about the country at unusual hours of the night; (5) every idle peron who lodges in any barn, shed, outhouse, vessel, or place other than such as is kept for lodging purposes, without the permission of the owner or person entitled to the possession thereof; (6) every lewd or dissolute person who lives in and about houses of ill fame; (7) every common prostitute and common drunkard, is a vagrant. It is insisted by the Attorney-General that as visible means of support would not be a bar to a conviction under any one of the last four clauses of this act, it was not the intention of the Legislature to limit the crime of vagrancy to those having no visible means of support. Relying upon the second clause to sustain the guilt of the defendants, the Attorney-General then proceeds to argue that "visible means of support" as used in that clause does not apply to "every person

found loitering about saloons or dram shops or gambling houses," but is confined entirely to "or tramping or straying through the country." It is insisted that had it been intended for "without visible means of support" to qualify the first part of the clause, either the comma after gambling houses would have been ommitted, or else a comma after country would have been inserted. When the meaning of a legislative enactment is in question, it is the duty of the courts to ascertain, if possible, the true legislative intention, and adopt that construction of the statute which will give it effect. The construction finally adopted should be based upon something more substantial than the mere punctuation found in the printed Act. If the punctuation of the statute gives it a meaning which is reasonable and in apparent accord with the legislative will, it may be used as an additional argument for adopting the literal meaning of the words of the statute as thus punctuated. But an argument based upon punctuation alone is not conclusive, and the courts will not hesitate to change the punctuation when necessary, to give to the Act the effect intended by the Legislature, disregarding superfluous or incorrect punctuation marks, and inserting others where necessary. The Attorney-General has based his argument upon the proposition that neither visible means of support nor a lawful calling is a sufficient defense under the last four paragraphs of the section; hence, not being universally a defense to a charge of vagrancy, they should not be allowed except where the Legislature has so provided. He then proceeds to show, by a "mere grammatical criticism" of the second paragraph, that the Legislature did not intend to allow visible means of support or a lawful calling to block a prosecution for vagrancy founded on the charge that the defendant was found loitering around saloons, dram shops, and gambling houses. A most important step in reasoning, necessary to make it sound, is to ascertain the consequences flowing from such a construction of the law. What is loitering? The dictionaries say it is idling or wasting one's time. The time spent in saloons, dram shops, and gambling houses is seldom anything but that. So that under the proposed construction, practically all who frequent such places commit a crime in so doing, for which they are liable to punishment under the Vagrancy Law. We cannot believe that it was the intention of the Legislature to penalize what, in the case of saloons and dram shops, is under the law's protection. If it be urged that what is true of saloons and dram shops is not true of gambling houses in this respect, we encounter the wording of the law, which makes no distinction whatever between loitering around saloons and dram shops, and loitering around gambling houses. The offense of vagrancy as defined in Act No. 519 is the Anglo-Saxon method of dealing with the habitually idle and harmful parasites of society. While the statutes of the various States of the American Union differ greatly as to the classification of such persons, their scope is substantially the same. Of those statutes we have had an opportunity to examine, but two or three contain a provision similar to the second paragraph of Act No. 519. (Mo. Ann. Stat., sec. 2228; N. D. Rev. Codes, sec. 8952; N. M. Comp. Laws 1897, sec. 1314.) That the absence of visible means of support or a lawful calling is necessary under these statutes to a conviction for loitering around saloons, dram shops, and gambling houses is not even negatived by the punctuation employed. In the State of Tennessee, however, we find an exact counterpart for paragraph 2 of section 1 of our own Act (Code of Tenn., sec. 3023), with the same punctuation:lawph!1.net

. . . or of any person to be found loitering about saloons or dram shops, gambling houses, or houses of ill fame, or tramping or strolling through the country without any visible means of support. A further thought suggest itself in connection with the punctuation of the paragraph in question. The section, as stated above, is divided into seven clauses, separated by semicolons. To say that two classes of vagrants are defined in paragraph 2, as to one of which visible means of support or a lawful calling is not a good defense, and as to the other of which such a defense is sufficient, would imply a lack of logical classification on the part of the legislature of the various classes of vagrants. This we are not inclined to do. In the case at bar, all three of the defendants were earning a living by legitimate methods in a degree of comfort higher that the average. Their sole offense was gambling, which the legislature deemed advisable to make the subject of a penal law. The games in which they participated were apparently played openly, in a licensed public saloon, where the officers of the law could have entered as easily as did the patrons. It is believed that Act No. 1775 is adequate, if enforced, to supress the gambling proclivities of any person making a good living at a lawful trade or business. For these reasons, the defendants are acquitted, with the costs de oficio. Arellano, C.J., Torres and Carson, JJ., concur. Johnson and Moreland, JJ., concur in the result.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-24806 February 13, 1926

JULIO AGCAOILI, plaintiff-appellant, vs. ALBERTO SUGUITAN, defendant-appellee. The appellant in his own behalf. The appellee in his own behalf. JOHNSON, J.: This action was commenced in the Court of First Instance of the Province of Ilocos Norte. Its purpose was to obtain the extraordinary legal writ of quo warranto. The petition was denied by the trial court and the plaintiff appealed. The question presented by the appeal are: (a) Is the provision of Act No. 3107, in so far as it provides that "justices of the peace shall be appointed to serve until they have reached the age of 65 years," valid and constitutional, when applied to justices of the peace appointed under Act No. 2041, section 1, to serve "during good behavior?" And, (b) Is the present action barred by the statutes of limitations? The facts involved in the decision of those questions are as follows: (a) That the said Julio Agcaoili was appointed as justice of the peace of the municipality of Laoag, of the Province of Ilocos Norte, by His Excellency, Francis Burton Harrison, on the 25th day of March, 1916, with authority "to have and to hold the said office with all the powers, privileges, and emoluments thereunto of right appertaining unto him, subject to the conditions prescribed by law. The conditions prescribed by law" to which the appointee was "subject" at the time of his appointment, are found in section 1 of Act No. 2041 (vol. 8 Public Laws, 153). Said section is amendment to section 67 of Act No. 136, and provides among other things for the "appointment and term of the justices of the peace." It provides that one justice of the peace and one auxiliary justice shall be appointed by the Governor-General, etc., for each municipality organized according to the Municipal Code. Said section further provides that "All justices of the peace and auxiliary justices shall hold office during good

behavior . . . ." Said Act No. 2041 was adopted, the Philippine Legislature was composed of the United States Commission and the House of Representatives. (b) That on the 17th day of March, 1923, the Philippine Legislature, composed of the Senate and House of Representatives, adopted Act No. 3107, which was "an Act to amend and repeal certain provisions of the Administrative Code relative to the judiciary in order to reorganize the latter; increasing the number of judges for certain judicial districts; increasing the salaries of judges of Courts of First Instance; vesting the Secretary of Justice with authority to detail a district judge temporarily to a district or province other than his own; regulating the salaries of justices of the peace; abolishing the municipal court and justice of the peace court of the City of Manila and creating in lieu thereof a municipal court with three branches; regulating the salaries of clerks of court and other subordinate employees of Courts of First Instance, and for other purposes. Notwithstanding the fact that the title of said Act No. (3107), so far as the same relates to justice of the peace, provides only for "regulating the salaries of justices of the peace," said Act in section 203 provides for "the appointment and distribution of justices of the peace" with the proviso in said section ". . . That justices and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty-five years." Attention is here called to the fact again that there is nothing in the title of the Act, which, in the slightest degree, indicates that said Act contains provisions for "appointment of justices of the of the peace" nor as to the period during which they may serve after appointment. Attention is also invited to the fact that the same section (203) contains provisions for the jurisdiction of justices of the peace while section 207 contains provisions defining the "qualifications for justices of the peace." Section 210 of said Act provides for the "filling of vacancies in the office of justices of the peace." There is nothing in the title of the Act which in any way indicates that the Act contains said provisions. Attention is here called to the provision of the Act of Congress of the 29th day of August, 1916, and to section 3 thereof, which provides "That no bill which may be enacted into law shall embrace more than one subject, and that the subject shall be expressed in the title of the bill." The effect of a violation of said provision of said Act of Congress will be discussed later. (c) That on the 9th day of April, 1923, the Undersecretary of Justice sent the following letter to the said Julio Agcaoili, through the Judge of the Court of First Instance of the Third Judicial District, of the Province of Ilocos Sur. Said letter is in the words and figures following: MANILA, April 9, 1923 SIR: In view of the provision of section 203 of the Administrative Code as amended by section 1 of Act No. 3107, which, in part, provides that justices and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty-five years, and in view of the fact that the record shows that you are over sixty-five years of age already, I have the honor to hereby advise you that, upon receipt hereof, you cease to be a justice of the peace by operation of said amendment of the Administrative Code.

Respectfully, (Sgd.) LUIS P. TORRES Undersecretary of Justice Said letter was received by Julio Agcaoili, the justice of the peace, on the 26th day of April, 1923. It was handed to him by the clerk of the Court of First Instance of the Province of Ilocos Norte. (d) It will be noted that in the letter of April 9, 1923, the Secretary of Justice directed or ordered Julio Agcaoili, then justice of the peace, "upon receipt of said letter, to cease to be a justice of the peace." Against the order contained in said letter of April 9th, Julio Agcaoili entered a protest dated April 28, 1923, in the following language: JUSTICE OF THE PEACE OF COURT OF LAOAG, ILOCOS NORTE P. I. April 28, 1923 The Hon. LUIS TORRES Undersecretary of Justice of the Philippine Islands SIR: The undersigned, Julio Agcaoili, justice of the peace of Laoag, capital of the Province of Ilocos Norte, has the honor to state that on April 26, 1923, he received, through the clerk of the Court of First Instance of Ilocos Norte, your communication of April 9, 1923, informing the undersigned that, having attained the age of 65 years, he ceased to be justice of the peace of Laoag under the provisions of section 1 of Act No. 3107, amending section 203 of the Administrative Code, which is Act No. 2711 enacted in the year 1919, and which section 1 of said Act No. 3107 provides in part that the justices of the peace and auxiliary justices of the peace shall be appointed to serve until they attain the age of 65 years. With all due respect, the undersigned has the honor to state that he believes that the aforecited part of the provision of section 1 of Act No. 3107 does not include those justices of the peace who had already been appointed justices of the peace, like the undersigned, before the passage and enactment of said Act No. 3107 and the amended Administrative Code, nor can this be the intention of the legislator, for if it were so, it should have so stated in order that the justices of the peace already appointed, who were discharging the functions of the office and who had attained the age of 65 years when said Act was passed and enacted, should cease from their office. The undersigned was appointed of the peace of Laoag on March 25, 1916, and therefore under Act No. 2041, enacted February 3, 1911. Section 1 of this Act,

which amended section 67 of Act No. 136, was not amended by any subsequent Act and provides: All justices if the peace and auxiliary justices shall hold office during good behavior and those now in office who have not the qualifications required by this Act shall continue in office until their successors are appointed. Has section 203 of the Administrative Code amended or repealed section 1 of Act No. 2041? The undersigned believes that it has not, judging from the context of both laws, nor was it repealed because if this were the case the Governor- General would have renewed the appointments of all the justices of the peace and auxiliary justices of the peace under said section 203 of the Administrative Code. The undersigned was appointed justice of the peace of Laoag on March 25, 1916, under the said Act No. 2041 and continues in the discharge of the duties of the office up to the present time, without the Governor-General having renewed his appointment under said section 203 of the Administrative Code. Then Act No. 3107 came, section 1 of which amends section 203 of the Administrative Code. Has this amendment retroactive effect? In the first place the legislature could not give or have given this Act such a character, and if it had intended to do so, it would have so stated; and in the second place, because not only is such express declaration lacking in the law but Act No. 3107 very clearly provides that the justices of the peace and auxiliary justices of the peace to be appointed shall hold office until they attain the age of 65 years. Very respectfully, (Sgd.) JULIO AGCAOILI Justice of the Peace of Laoag, Ilocos Norte A further protest against the said order of the Secretary of Justice was made by Julio Agcaoili on the 7th day of July, 1923, and is couched in the following language: I, Julio Agcaoili, Justice of the Peace of the Municipality of Laoag, Ilocos Norte, do hereby state that on this day, July 7, 1923, Mr. Buenaventura Ocampo, Provincial Fiscal of Ilocos Norte, appeared at my office and thereupon showed me the telegram of Undersecretary of Justice Torres, addressed to said provincial fiscal. After reading said telegram I asked the provincial fiscal to furnish me a copy thereof and he furnished me a copy of the telegram. Said telegram of the Undersecretary of Justice in substance orders the provincial fiscal; to cause me to deliver the office and all the documents and records thereof to the auxiliary justice of the peace, because according to said Undersecretary of Justice I must cease from the office under Act No. 3107, and that I be prosecuted

for violation of article 370 of the Penal Code should I fail to comply with the telegram sent to me on the 2d instant by the same Undersecretary of Justice. I do also state that I have never had any malicious intention to disobey the orders of the Undersecretary of Justice, Hon. Torres, one given telegram and the other by letter. I only desired to study the spirit of the law and this is the reason why I did not leave the office until the present time, because I was from the office of the justice of the peace under the provision of Act No. 2041 under which I was appointed justice of the peace of the capital, and which Act was not repealed by any subsequent one, nor by Act No. 3107, which Act No. 2041 provides that the justices of the peace to be appointed under it, should hold office during good behavior. This Act does not say anything as to limitation of age, and therefore I believe myself entitled to continue in, and retain the office. I do also state that lest the Undersecretary of Justice should think that I do not duly respect the constituted authorities, I now deliver under protest the office of the justice of the peace of Laoag and all its documents and records, as well as the furniture therein contained, to Mr. Alberto Suguitan, auxiliary justice of the peace, in the presence of the provincial fiscal, in compliance with the telegram of the Undersecretary of Justice, Hon. Torres, received by me through the provincial fiscal of Ilocos Norte. I make under protest the delivery of the office and its documents and records because I think, as I have stated, that I must not cease from the office of justice of the peace, and in order that my right may be defined, I shall institute an action in the proper court of justice to decide the case. (Sgd.) JULIO AGCAOILI I received the things of the office. (Sgd.) ALBERTO SUGUITAN In the presence of: (Sgd.) BUENA V. OCAMPO Provincial Fiscal Julio Agcaoili patiently waited in vain for a resolution by the Secretary of Justice of the protest which he presented on the 28th day of April and on the 7th day of July, 1923; and not having received any reply to his protest, filed a petition for a writ of quo warranto in the Court of First Instance of the Province of Ilocos Norte on the 23d day of April, 1925, which petition was amended by the filing of another petition in the same court on the 8th day of September, 1925. A careful reading of the two protests (April 28, 1923, and July 7, 1923) shows that they contain arguments in support thereof which, in all equity and justice, demanded a reply, but no reply was forthcoming. The arguments in support of his protests find a counterpart and are fully supported in the decision of this court in the case of Segovia vs. Noel, of March 4, 1925 (47 Phil., 543), wherein the Supreme Court held that the Act No. 3107 could not be applied to and enforced

against justices of the peace who had been appointed prior to the 17th day of March, 1923. Had the Secretary of Justice answered said protests, the great injustice which has been done to Julio Agcaoili perhaps might have been avoided. (e) That Julio Agcaoili being threatened with a criminal prosecution unless he turned his office over to the auxiliary justice of the peace, and to avoid scandal, disgrace and humiliation which might come to him by virtue of said prosecution, on the 7th day of July, 1923, still protesting, delivered the possession of his office, as justice of the peace, to the auxiliary justice of the peace of the municipality of Laoag. It is a matter of common knowledge that Julio Agcaoili had been entrusted with the highest office in his province which the people could confer upon him. The petitions presented by Julio Agcaoili in the Court of First Instance, the first on the 23d day of July, 1925, and the second on the 8th day of September, 1925, contain, in resume, the foregoing facts. To the petition the respondent Alberto Suguitan answered and set up the defense of prescription. Upon the issue thus presented, the Honorable Fermin Mariano, judge, sustained the defense of prescription and denied the petition for the extraordinary legal remedy of quo warranto. From that judgment Julio Agcaoili appealed, and now contends in a vigorous and logical argument that his remedy has not prescribed. Considering the first question suggested above, attention is again called to one of the provisions of section 3 of the Jones Law (Act of Congress, August 29, 1916, vol. 12, Public Laws of the Philippine Islands). The "Jones Law" is the constitution of the Philippine Islands providing a government therefor. Subparagraph 16 of section 3 of the Jones law provides "That no bill which may be enacted into law shall embrace more than one subject, and that subject shall be expressed in the title of the bill." Under said provision, may the legislature adopt a law which contains in the title of the Act? The effect of violating said provision of the Jones Law has been brought before the courts many times. The effect of violating said provision has already been passed upon by this court. (Central Capiz vs. Ramirez, 40 Phil., 883, 889.) In the case of Central Capiz vs. Ramirez, supra, it was decided that said provision of the Jones Law was mandatory and not directory and its violation was fatal to any provision of the law to which no reference was made in the title. In the decision of this court in the case of Central Capiz vs. Ramirez, the decisions of the courts of many of the states of the Union were followed. Many of the constitutions of the States of the Union contain similar provision to that quoted above from the Jones Law. Among such states may be mentioned Alabama, California, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Tennessee, Virginia, West Virginia, Wisconsin and Wyoming. Mr. Justice Sutherland, now an Associate Justice of the Supreme Court of the United States, in his valuable work on "Statutory Construction," vol. 1, 2nd ed.) at section 111, states the reason and the purpose of such a constitutional provision. He says: In the construction and application of this constitutional restriction the courts have kept steadily in view the correction of the mischief against which it was aimed. The object is to prevent the practice, which was common in all legislative bodies where no such

restriction existed, of embracing in the same bill incongruous matters having no relation to each other, or to the subject specified in the title, by which measures were often adopted without attracting attention. Such distinct subjects represented diverse interests, and were combined in order to unite the members of the legislature who favor either in support of all. These combinations were corruptive of the legislature and dangerous to the state. Such omnibus bills sometimes included more than a hundred sections on as many different subjects, with a title appropriate to the first section, and for other purposes. The failure to indicate in the title of the bill the object intended to be accomplished by the legislation often resulted in members voting ignorantly for measures which they would not knowingly have approved. And not only were legislators thus misled, but the public also; so that legislative provisions were stealthily pushed through in the closing hours of a session, which, having no merit to commend them, would have been made odious by popular discussion and remonstrance if their pendency had been seasonably announced. The constitutional clause under discussion is intended to correct these evils; to prevent such corrupting aggregations of incongruous measures, by confining each act to one subject; to prevent surprise and inadvertence by requiring that subject or object to be expressed in the title. The Supreme court of the State of Alabama, in discussing the effect of the violation of a similar provision of the constitution of that state in the cases of Walker vs. State (49 Ala., 329) and Lindsay vs. United States Savings and Loan Association (120 Ala., 156), had the following to say, quoting with approval, what Mr. Justice Cooley in his Constitutional Limitations, at page 143, had said upon that question: The object sought to be accomplished, and the mischief proposed to be remedied by this provision, are well known. . . . Legislative assemblies for the dispatch of business often pass bills by their titles only, without requiring them to be read. A specious title sometimes covered a legislation which, if its real character had been disclosed, would not have commanded assent. To prevent surprise and fraud on the legislature is one of the purposes this provision was intended to accomplish. Before the adoption of this provision, the title of a statute was often no indication of its subject or contents. . . . An evil this constitutional requirement was intended to correct was the blending in one and the same statute of such things as were diverse in their nature, and were connected only to combine in favor of all the advocates of each, thus often securing the passage of several measures, no one of which could have succeeded on its own merits. Mr. Cooley thus sums up his review of the authorities, defining the objects of this provision: It may, therefore, be assumed as settled, that the purpose of these provisions was: First, to prevent hodge-podge, or log-rolling legislation; second, to prevent surprise or fraud upon the legislature, by means of provisions in bills of which the titles gave no information, and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise if they shall so desire. (49 Ala., 330, 331.)

The purposes of constitutional requirement must be borne steadily in mind, when it becomes necessary to determine whether there has been legislative observance of it. The exposition of these purposes by Judge Cooley is accepted, we believe, in all the states in which a like limitation prevails. . . . (120 Ala., 172.) In the case of People vs. Parks (58 Cal., 624) the Supreme Court of the State of California had occasion to discuss the question now before us and said: At the least, then two heterogeneous subjects are embraced in the act, one of which is not expressed in the title, and they cannot be segregated. The title does not express the objects of legislation embodied in the provisions of the act. It is, therefore, narrower than the body of the act, and fails to impart that notice of the measures enacted, which the Constitution requires. To prohibit such legislation was the sole end and aim of the constitutional requirement. The practice, says the Supreme Court of Missouri, of comprising in one bill subjects of a diverse and antagonistic nature, in order to combine in its support members who were in favor of particular measures, but neither of which could command the requisite majority on its own merits, was found to be not a corruptive influence in the Legislature itself, but destructive of the best interests of the State. But this was not more detrimental than that other pernicious practice, by which, through dexterous and unscrupulous management, designing men inserted clauses in the bodies of bills, of the true meaning of which the titles gave no indication, and by skillful maneuvering urged them on to their passage. These things led to fraud and injury, and it was found necessary to apply a corrective in the shape of a constitutional provision. (City of St. Louis vs. Tiefel, 42 Mo., 590.) The provision has been framed in the constitutions of many of the States of the Union; and the courts, whenever it has come before them, have liberally construed it as the will of the people in the interests of honest legislation. Decisions to the same effect are found in the following cases: City of St. Louis vs. Tiefel (42 Mo., 578); Cannon vs. Mathes (8 Heisk [Tenn.], 504); Ryerson vs. Utley (16 Mich., 269); Board of Public Education for the City of Americus vs. Barlow (49 Ga., 232); Spier vs. Baker (120 Cal., 370). Mr. Justice Sutherland, in a further discussion of the question, at section 112 of his work on Statutory Construction, said: The efficiency of this constitutional remedy to cure the evil and mischief which has been pointed out depends on judicial enforcement; on this constitutional injunction being regarded as mandatory, and compliance with it essential to the validity of legislation. The mischief existed notwithstanding the sworn official obligation of legislators; it might be expected to continue notwithstanding that the obligation is formulated and emphasized in this constitutional injunction, if it be construed as addressed exclusively to them, and only directory. It would, in a general sense, be a dangerous doctrine to announce that any of the provisions of the constitution may be obeyed or disregarded at the mere will or pleasure of the legislature, unless it is clear beyond all question that such was intention of the framers of that instrument. It would seem to be a lowering of the proper dignity of the fundamental law to say that it descends to prescribing rules of order in unessential

matters which may be followed or disregarded at pleasure. The fact is this: That whatever constitutional provision can be looked upon as directory merely is very likely to be treated by the legislature as if it was devoid of moral obligation, and to be therefore habitually disregarded. In the case of Cannon vs. Mathes, supra, Mr. Chief Justice Nicholson, in discussing the effect of the violation of a constitutional provision like the one before us, said: * * * This is a direct, positive, and imperative limitation upon the power of the Legislature. It matters not that a bill has passed through three readings in each house, on three different days, and has received the approval of the Governor; still it is not a law of the State if it embraces more than one subject. . . . The Supreme Court of Alabama, in the case of Walker vs. State, supra, said: It is settled law of this court, founded on reasoning which seems to us unanswerable, that this provision of the Constitution is not a mere rule of legislative procedure, directory to the general assembly, but that it is mandatory, and it is the duty of courts to declare void any statute not conforming to it. . . . Mr. Justice Cooley in his valuable work on Constitutional Limitations (pp. 179. 180) states that our courts have held, without exception, that such constitutional provision is mandatory. Considering that the great weight of authority is to the effect that the provision like the one above quoted from the Jones Law is mandatory; and considering that there is nothing in the title of Act No. 3107 which indicates in the slightest degree that said Act contains a provision "that justices and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty-five years," we are forced to the conclusions that, that provision is illegal, void and contrary to the mandatory provision of the Jones Law, and that said law (3107) cannot be applied to justices and auxiliary justices of the peace who were appointed prior to the 17th day of March, 1923; and that when Julio Agcaoili was forcibly, by means of threats and intimidation, ordered to leave his office as justice of the peace, he was forced to do so illegally, without just cause, and should therefore be restored to his position as justice of the peace of the municipality of Laoag, without delay. With reference to the second question above suggested, in re prescription or limitation of the action, it may be said that originally there was no limitation or prescription of action in an action for quo warranto, neither could there be, for the reason that it was an action by the Government and prescription could not be plead as a defense to an action by the Government. The ancient writ of quo warranto was a high prerogative writ in the nature of a writ of right by the King against any one who usurped or claimed any office, franchise or liberty of the crown, to inquire by what authority the usurper supported his claim, in order to determine the right. Even at the present time in many of the civilized countries of the world the action is still regarded as a prerogative writ and no limitation or prescription is permitted to bar the action. As a general principle it may be stated that ordinary statutes of limitation, civil or penal, have no application to quo warranto proceeding brought to enforce a public right. (McPhail vs. People ex rel.

Lambert, 160 Ill., 77; 52 Am. St. Rep., 306; People ex rel. Moloney vs. Pullman's Palace Car Co., 175 Ill., 125; 64 L. R. A., 366.) In all public matters a writ of quo warranto is a writ of right at the suit of the state, and issues as a matter of course upon demand of the proper officer (State ex rel. Washington County vs. Stone, 25 Mo., 555; Commonwealth vs. Allen, 128 Mass., 308), and the court has no authority to withhold leave to file a petition therefor. If the statute of limitation or prescription cannot run against the state, it is difficult to understand how in the same action they may be used as a defense against a public officer who has been forcibly, with threats and intimidation, ousted from a public office by the Government itself as was done in the present case. The principle that acts of limitation do not bind the King (the State) or the people, applies to proceeding by quo warranto, the rule being that the representative of the state may file an information on behalf of the people at any time; and the lapse of time constitutes no bar to the proceeding, in conformity with the maxim Nullum tempus occurrit regi. (Catlett vs. People ex rel. States's Attorney, 151 Ill., 16.) For the state to claim that the statutes of limitation do not apply to it and yet insist that it may plead such statutes to bar the action of quo warranto brought by one of its public officials whom it itself has ousted from office, appears to us to be unjust, unfair, unreasonable, and not within the contemplation of sound jurisprudence. So much of the general rule concerning limitation of action in quo warranto proceedings. Is there a statute in the Philippine Islands of limitation, limiting the action of a public official of the Government who has been duly appointed and qualified, and who has, by force and intimidation, been ousted from such office, to defeat his action of quo warranto? On the 7th day of August, 1901, the United States Philippine Commission adopted Act No. 190 which had been considered privately and publicly for several months theretofore. Its provisions were published throughout the Philippine Islands long prior to its adoption. While said Act was adopted on the 7th day of August, 1901, it did not take effect, even though it had been published, until the 1st day of October, 1901. (Act No. 212.) An examination of said Act (190) shows that it provides remedies for the usurpation of office or franchise, etc. (secs. 197-216). Said Act No. 190 was published in both English and Spanish. Section 216, in English, provided that "Nothing herein contained shall authorize an action against a corporation for forfeiture of charter, unless the same be commenced within five years after the act complained of was done or committed; nor shall an action be brought against an officer to be ousted from his office unless within one year after the cause of such ouster, or the right to hold the office, arose." The same section (216), as published in Spanish, reads as follows: "Ninguna de estas disposiciones facultara la iniciacion de un juicio contra una corporacion por la perdida de sus derechos de concesion, a menos que el juicio se lleve a efecto dento de los cinco años siguente a la comision u omision del hecho objeto de la accion. Tampocose podra iniciar un juicio la persona que ejerza un cargo en una corporaciuon para desposeerla, a menos que se lleve a efecto dentro del año siguente a la fecha de la comision del hecho que dio motivo a su privacion, o que se puso en duda su derecho para ocupar el cargo." Said section (216), as published in Spanish and translated into English, reads as follows: "Nothing herein contained shall authorize an action against a corporation for forfeiture of its

corporate rights, unless the same be commenced within five years after the commission or omission complained of took place. Neither may an action be brought against an officer to oust him from office, unless the same is commenced within one year after the commission of the act which caused the deprivation thereof, or after the right to hold the office arose." Said section 216, as above quoted in Spanish, was published in vol. 1 of the Public Laws of the Philippine Islands and distributed to the public officers throughout the Philippine Islands. It is a fact of general information that even now, in 1926, the Spanish copy of the Public Laws are consulted by the people in remote parts of the Philippine Islands for the purpose of knowing what the law is. It is not strange, therefore, that the appellant did not believe that said section 216 applied to public officers; that it only applied to officers of corporations as it appeared in the Spanish translation. Is it just and fair and reasonable for the Government of the Philippine Islands to oust one of its officers from an office to which he had been legally appointed, by force and intimidation and without just cause, and then to defeat his action in quo warranto by invoking the provisions of a public statute, different from the one which the Government itself had furnished its public officers? The appellant is familiar with the Spanish but not with the English language. He naturally relied upon the Spanish version of the law for his information as to what the law really was. Not only had the appellant the right to rely upon the provisions of section 216 as they appeared in Spanish in the Public Laws of the Philippine Islands, but the reading of the three or four sections immediately preceding section 216 will show that they refer specifically to corporations only. The appellant, therefore, was justified in believing that said section 216 as it appeared in Spanish was correct. At least the Government should give him credit with having in good faith. But, even granting that the appellant is bound by the provisions of section 216 as it appears in English, is the same applicable to the appellant? By reference to said section above quoted in English, it will be seen that after the word "committed" there is a semicolon. Does that which follows the semicolon have reference to the same subject matter which precedes it? A semicolon is a mark of grammatical punctuation, in the English language, to indicate a separation in the relation of the thought, a degree greater than that expressed by a comma, and what follows that semicolon must have relation to the same matter which precedes it. A semicolon is not used for the purpose of introducing a new idea. A semicolon is used for the purpose of continuing the expression of a thought, a degree greater than that expressed by a mere comma. It is never used for the purpose of introducing a new idea. The comma and semicolon are both used for the same purpose, namely, to divide sentences and parts of the sentences, the only difference being that the semicolon makes the division a little more pronounced than the comma. The punctuation used in a law may always be referred to for the purpose of ascertaining the true meaning of a doubtful statute. It follows therefore that, inasmuch as all of the provisions of said section 216 which precede the semicolon refer to corporations only, that which follows the semicolon has reference to the same subject matter, or to officers of a corporation. But even granting, for the sake of the argument, that the word "officer" as used in the latter part of said section applies to public officers who have been ousted from their position, and not only to officers of corporations, then we have the question presented: Had the one year mentioned in said section expired on the 23d day of April, 1925, when the first complaint, was filed in the present action? When did the year begin to run if said section is applicable to the appellant?

It will be remembered that on the 7th day of July, 1923, the appellant was ousted from his office as justice of the peace of the municipality of Laoag. Not only did he surrender his office on that date under protest, but also on the 28th day of April, 1923, when he was notified by the Secretary of Justice that he cease to be a justice of the peace of his municipality, he then protested and gave a long and lucid argument in support of his protest. In all justice to him, did he not have a right, without any legal action to protect his right, to await the solution of his protest of the 28th day of April, 1923? He had a right to believe that the grounds upon which his protest was based would be convincing to the Secretary of Justice and that he would not be removed. Until this very hour the record contains no reply from the Secretary of Justice and no answer whatever to the legal grounds presented by the appellant upon his right to continue as justice of the peace and not to be ousted. In our opinion even granting that section 216 is applicable to the appellant, the period of prescription had not begun and run at the time of the commencement of the present action. He was justified in delaying the commencement of his action until an answer to his protest had been made. He had right to await the answer to his protest, in the confident belief that it would be resolved in his favor and that action would unnecessary. It is contended, however, that the question before us was answered and resolved against the contention of the appellant in the case of Bautista vs. Fajardo (38 Phil., 624). In that case no question was raised nor was it even suggested that said section 216 did not apply to a public officer. That question was not discussed nor referred to by any of the parties interested in that case. It has been frequently decided that the fact that a statute has been accepted as valid, and invoked and applied for many years in cases where its validity was not raised or passed on, does not prevent a court from later passing on its validity, where the question is squarely and properly raised and presented, Where a question passes the court sub silentio, the case in which the question was so passed is not binding on the Court (McGirr vs. Hamilton and Abreu, 30 Phil., 563), nor should it be considered as a precedent. (U. S. vs. Noriega and Tobias, 31 Phil., 310; Chicote vs. Acasio, 31 Phil., 401; U. S. vs. More, 3 Cranch [U. S.], 159, 172; U. S. vs. Sanges, 144 U. S., 310, 319; Cross vs. Burke, 146 U. S., 82.) For the reasons given in the case of McGirr vs. Hamilton and Abreu, supra, the decision in the case of Bautista vs. Fajardo, supra, can have no binding force in the interpretation of the question presented here. The present case is anomalous under American sovereignty. An officer was appointed in accordance with the law to the judiciary to serve "during good behavior." After he had faithfully and honestly served the Government for a number of years the legislature adopted a new law which arbitrarily, without giving any reason therefore, provided that said officer cease to be such when he should reach the age of 65 years. Said law contained no express provision or method for its enforcement. The Executive Department, through its Undersecretary of Justice, without any authority given in said law, notified the said officer that he was no longer an officer in the judicial department of the Government and must vacate his office and turn the same over to another, who was designated by said Undersecretary. When the officer protested against such arbitrary action, giving reasons therefor, and without answering said protest, he was threatened with a criminal prosecution if he did not immediately vacate his office. The history of this case reads more like a story of the Arabian Nights than like a procedure under a well-organized

Government. It seems impossible to believe, and we could not believe it, were the facts not actually supported by the record. Why the Undersecretary of Justice did not follow the orderly procedure marked out by Act No. 190 is not explained. The appellant was given no hearing. Even his protest, couched in most humble and respectful language, fell upon deaf ears. Absolute indifference was shown to the respectful protest and the able argument given in support thereof. The only answer to his protest was a threat of a criminal prosecution if he did not vacate his office. His humility was met with austereness. His humble petition was met with a threat. His patient waiting for a reply to his protest was ended by a demand that he be prosecuted for refusing to comply with an order by one who was not willing to follow the well-defined and well-beaten road of "due process of law" by preferring charges and giving the appellant an opportunity to be heard and to defend his right. Nothing of that character took place. The whole procedure, from beginning to end, in ousting the appellant from an office to which he had been legally appointed and against whom no complaint has been made, is anomalous in the jurisprudence under the American flag. Believing as I do, that the success of free institutions depends upon a rigid adherence to the fundamentals of the law, I have never yielded, and I hope that I may never yield, to considerations of expediency in expounding it. There is also some plausible reason for the latitudinarian constructions which are resorted to for the purpose of acquiring power — some evil to be avoided, or some good to be attained by pushing the powers of the Government beyond their legitimate boundary. It is by yielding to such influences that the courts and legislatures are gradually undermining and finally overthrowing constitutions. It is by yielding to such influences that constitutions are gradually undermined and finally overthrown. It has been, and is my purpose, so far as it is possible for me, to follow the fundamental law does not work well the people or the legislature may amend it. If, however, the legislature or the courts undertake to cure defects in the law by forced and unnatural constructions, they inflict a would upon the constitution of the state which nothing can cure. One step taken by the legislature or the judiciary in enlarging the powers of the Government, opens the door for another which will be sure to follow; and so the process goes on until all respect for the fundamental law is lost and the powers of the Government are just what those in authority are pleased to call them. (Oakley vs. Aspinwall, 3 Comstock [N. Y.], 547, 568.) I cannot give my consent to a rule or doctrine which will permit a Government to throw an honest and efficient official out of office without reason and without authority of law, refuse to consider a protest, and then permit the application of a law to prevent a recovery of that which he has lost illegally and without reason. The judgment appealed from should be revoked, and a judgment should be entered ordering the restoration of the appellant to the office from which he was illegally rejected. We should follow the effect of the doctrine announced solemnly by this court in the case of Segovia vs. Noel (47 Phil., 543). So ordered. Villamor, Romualdez, and Villa-Real, JJ., concur. Johns, J., concurs in the result.

Separate Opinions MALCOLM, J., concurring and dissenting: (1) I concur in so much of the opinion of Mr. Justice Johnson as relates to the legal issue presented in the lower court and here, pertaining to the question of whether or not the present action was barred by the Statute of Limitations, and in entire accord with the reversal of the judgment and the reinstatement of Julio Agcaoili, the appellant, in his office as justice of the peace of Laoag, Ilocos Norte. My reasons are these: (A) Act No. 3107, providing that justices and auxiliary justices of the peace shall be appointed to serve until they have reached the age of 65 years, should not be given retroactive effect. That was expressly decided in the analogous case of Segovia vs. Noel ([1925], 47 Phil., 543). (B) Plaintiff's action is not barred by the provisions of section 216 of the Code of Civil Procedure. That section particularly confines itself to an action "against a corporation." Thereafter following a semicolon, comes the clause "nor shall an action be brought against an officer," which plainly relates back to "corporation." Otherwise, the new idea would neither have been expressed in a separate section or in a separate sentence. That this is true is further borne out by the Spanish transaction, making use of the phrase "la persona que ejerza un cargo en una corporacion," which we are privileged to consult to explain an ambiguity in the English text. (C) Even under the supposition the section 216 of the code of Civil Procedure applies, still it is not clear that one year has elapse "after the cause of such ouster, . . . arose." In reality, no cause for ouster has arisen since it was an erroneous interpretation of the law which met with the disposal of the Supreme Court, which resulted in the attempt to force Mr. Agcaoili out of the office and to place the auxiliary justice of the peace on office. The most that could be said of the attempted ouster is that the auxiliary justice of the peace became a justice of the peace de facto. (2) I dissent from so much of the opinion of Mr. Justice Johnson, as discusses the question of whether or not the provisions of act No. 3107 are costitutional, as unnecessary to a decision, as not submitted for decision, and so as entirely uncancelled for. The complaint for quo warranto presented in the court of first Instance contained the usual allegations without, however, making any reference at all to the constitutionality of Act No. No. 3107. the answer set up presentation. The trial judge announcing the theories of the parties said: "The defense of the defendant is that the action brought by the plaintiff has prescribed because since July 7, 1923, when he left his office, no complaint was filed until April 23, 1925, and, therefore, more than one year had elapsed. The plaintiff in turn alleges that there is no such prescription," and then proceeded to deny the petition. On appeal this court, the errors assigned by Mr. Agcaoili as appellant are these:

(1) The lower court erred in holding that the action of the petitioner had prescribed on account of the same not having been brought within one year from July 7, 1923, when by an illegal order of the Honorable, the Secretary of Justice, the petitioner forcibly ceased to discharge the duties of the office of justice of the peace of Laoag, Ilocos Norte, and respondent assumed said office and began to act as such justice of the peace. (2) The lower court erred in applying tot he instant case the provisions of section 216 of act No. 190 (Code of Civil Procedure). (3) The lower court erred in finding that the period of prescription must be counted from July 7, 1923, instead of March 4, 1925. (4) The lower court finally erred in not granting the relief invoked by the petitioner; in not ousting the respondent from the office of justice of the peace of Laoag, Ilocos Norte, in not reinstating the petitioner in said office and in not sentencing the respondent to pay the costs and damages caused to the petitioner in the sum of P5,000." There is not one word either in appellant's brief or in appellee's brief on the subject of the constitutionality of Act No. 3107. Had not the constitutional question been discussed and decided without it being suggested anywhere in the bill of executions, in the assignments of error, on in the briefs, it would hardly be necessary to cite well known principles as these: It must be evident to any one that the power to declare a legislative enactment void is one which the judge, cconscious of the fallibility of the human judgment, will shrink from exercising in any case where he can consciously and with due regard to duty and official oath decline the responsibility. . . . . . . The task . . . is a delicate one, and only to be entered upon with reluctance and hesitation. . . . Neither will a court, as a general rule pass a constitutional question, and decided a statute to be invalid, unless a decision upon that very point becomes necessary to the determination of the cause. "While courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. They will not seek to draw in such weighty matters collaterally, nor on trivial occasions. It is both more proper and more respectful to a coordinate department to discuss constitutional questions only when that is the very lis mota . . ." (Cooley's Constitutional Limitations, 7th ed., pp. 227, 228, 231.) STREET, J., dissenting: This is an action of quo warranto instituted in the Court of First Instance of Ilocos Norte by Julio Agcaoili for the purpose of restoring his restoration to the office of justice of peace of Laoag and to secure the removal of the defendant, Alfredo Saguitan, from the present employment of the

same office. Upon hearing the cause of the trial judge, while recognizing the theoritical right of the plaintiff's right of section had been barred by the limitation prescribed in section 216 of the Code of Civil Procedure. He therefore denied the writ, with half costs, and the plaintiff appealed. It appears that on March 25, 1916, the plaintiff was appointed by the Governor-general to the office of Justice of the peace of Laoag, in the Province of Ilocos Norte, effective from April 10, 1916, subject to the conditions prescribed by law. This appointment was approved by the Philippine Senate, and the plaintiff entered upon the discharged of his duties in due course. At that time there was no age limit upon the tenure of office of justices of the peace, but on March 17, 1923, act No. 3107 of the Philippine Legislature went into effect. By this Act, appointment of justices of the peace, was amended by the addition of a proviso to the first auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty-five years." In the year 1923 the plaintiff herein had attained the age of 65; and the Secretary of Justice, supposing that was applicable to the case, brought Administrative Code was applicable tot he case, brought administrative pressure to bear upon the plaintiff, with the result that the plaintiff ceased to exercise the functions of justice of the peace for Laoag and the Governor-General to the same office. This appointment having been approved by the Senate, the said Suguitan entered upon the discharge of the duties thereof. On March 4, 1925, this court promulgated the decision in the case of segovia vs. Noel (47 Phil., 543), wherein we decided that the amendment contained in Act No. 3107 to section 203 of the Administrative Code should be given prospective application only, with the result that said provisions is not applicable to a justice of the peace appointed prior to enactment of the amendatory law. When this decision was promulgated it came to the attention of the plaintiff, and the present action was stipulated by him shortly thereafter for the purpose of obtaining his restoration to the office. Practically the only defense insisted upon in the court below was to the effect that the action had prescribed under the one-year limitation; and the only question made in this appeal arises upon the application of said section. It appears from he record that the plaintiff was ousted from office on July 7, 1923, and that the defendant, as auxiliary justice of the peace, then entered upon the discharge of the duties of the office, by direction of Governor-General Wood, in the character of a temporary appointee to the vacancy. Later, as already stated, Suguitan entered upon the discharged of the duties of the office under commission from the Governor-General, approved by the Philippine Senate, effective from December 13, 1923. It is therefore apparent that more than a full year had elapse between the removal of the plaintiff from office and the date of the institution of the present action; and more than a year had also elapsed later the defendant began the discharge of the duties of the office as a regularly commissioned justice of the peace. The section of the Code of civil Procedure, the application of which is here in question, reads, in English, as follows: SEC. 216. Limitations. — Nothing herein continued shall authorized an action against a corporation for forfeiture of charter, unless the same be commenced within five years after the act complained of was done or committed; nor shall an action be brought against

an officer to be ousted from his office unless within one year after the cause of such ouster, or the right to hold the office arose. The same section as it stands in a current version of the Spanish translation differ somewhat, in the second member from the English version, a s will be seen by comparing the Spanish version, which reads as follows: ART. 216. De las limitaciones. — Ninguna de estates disposiciones facultara la perdida de sus derechos de concesion, a menos que el jioco se lleve a efecto dentro de los cinco anos sigientes a la comision u omision del hecho objecto de la accion. Tampoco se podra inciar un juicio contra la persona que ejerza un cargo en una corporacion para desposeerla, a menos que se lleve a fecto dentro del año siguinte la fecha de la comision del hecho que dio motivo a su privacion, o que se puso en duda su derecho para ocupar el cargo. Upon comparison of these version it will be seen that the word office (cargo) in the second sentenced of the Spanish version is qualified by the expression "en una corporacion." The plaintiff, relying upon the Spanish version, insist that the provision is not applicable to a public office, like that of justice of the peace; and it is further insisted that the whole section deals exclusively with the subject of the writ of quo warranto as used against a corporation or against a person in possession of a corporate office. I am unable to accede to this view of the law. Upon examination of section 197 to 216, inclusive, of the Code of Civil Procedure, it will be found that two subjects are there threated, namely, usurpation of franchise by corporation and usurpation of office; and the evident purpose of this part of the Code is to define the conditions under which the writ of quo warranto may be final section (sec. 216) dealing with the subject, a limitation is prescribe for both. The first member of the section, down as far as the semicolon in the English version, prescribes a limitation of five years upon any action instituted against a corporation for forfeiture of its charter. In the matter following the semicolon is found the limitation appropriate to the case where instituted to oust the incumbent and to secure the office for the person unlawfully kept from the occupancy thereof. The prescription established for this case is one year. A careful perusal of the section, in connection with related provisions of the Code, leaves no room for doubt that have actions over public of the section was instituted to apply to actions over public officer as well as corporate offices; and in this sense said provision has been applied by this court. (Bautista vs. Fajardo, 38 Phil., 624.) The author, or authors, of the Code of Civil Procedure could hardly have intended for this provision to be applied only to corporate officers, since there is a public interest in public offices which requires there should be a prescriptive provision applicable to actions over these offices no less than to actions over the offices of corporations. The insertion "en una corporacion" after the word "cargo" was evidently a mere mistake, resulting from a superficial attention to the context; and it will be found that in the Spanish edition to the Code of civil Procedure edited by C. M. Recto this phrase has been dropped. It goes without saying that the English version of the Code of civil Procedure is controlling, and in case of conflict the courts must be governed by this version. The suggestion contained in the opinion of the court of the Spanish language is novel and if followed by us in

the future will be the source of much uncertainty in the interpretation and application of our statutes. The opinion of the court contains a lengthy dissertion intended to demonstrate that the amendment of section 203 of the Administrative Code contained in act No. 3107 is unconstitutional, for defect in the title of the Act. With this provision I am also unable to agree. The title to act No. 3107 begins with theses words: "An Act to amend and repeal certain provisions of the Administrative Code in my opinion broad enough to include the amendment of section 203 relating the analysis of Title IV of the Administrative Code it will be found that justices of the peace are; and although the provisions of act No. 3107 are variously, they have this in common, that they deal with different parts of the judiciary establishment and are intended that a pronouncement as to the constitutionality of the amendment in question was by no means called for in this case, not only because the point was not raised in the discussion of the case but for the further reason that we the plaintiff. RESOLUTION UPON PETITION FOR RECONSIDERATION February 26, 1926 The clerk having before it for consideration, (a) the motion of Alberto Suguitan for a reconsideration of the decision of the court promulgated on February 13, 1926, and (b) the motion of the Secretary of Justice, praying for leave to appear in the said decision in relation with said motions, it is hereby ordered and decreed that said decision heretofore announcement, be modified, to the end that the decision of all the questions involved ins aid decision be limited tot he following alone: (a) That said act No. 3107 can have no application to the petitioner herein, following the doctrine heretofore announced in the case of Segovia vs. Noel (47 Phil., 543); and, (b) That the defense of the limitation or prescription contended for by the respondent does not apply to the petitioner under the particular facts of this cause. Modifying the decision heretofore announced, as herein indicated, and basing the decision upon the two grounds above-mentioned only the eliminating all remarks made about the action and conduct of the Acting Secretary of Justice, said motions are hereby denied. Avanceña, C. J., Street and Ostrand, JJ., adhering tot he dissenting opinion heretofore promulgated, concur nevertheless in this resolution. Avanceña, C.J. and Ostrand, J., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-26100 February 28, 1969

CITY OF BAGUlO, REFORESTATION ADMINISTRATION, FRANCISCO G. JOAQUIN, SR., FRANCISCO G. JOAQUIN, JR., and TERESITA J. BUCHHOLZ petitioners, vs. HON. PIO R. MARCOS, Judge of the Court of First Instance of Baguio, BELONG LUTES, and the HONORABLE COURT OF APPEALS, respondents. 1st Assistant City Fiscal Dionisio C. Claridad, Augusto Tobias and Feria, Feria, Lugtu and La'O for petitioners. Bernardo C. Ronquillo for respondents. SANCHEZ, J.: Petitioners attack the jurisdiction of the Court of First Instance of Baguio to reopen cadastral proceedings under Republic Act 931. Private petitioner's specifically question the ruling of the Court of Appeals that they have no personality to oppose reopening. The threepronged contentions of all the petitioners are: (1) the reopening petition was filed outside the 40year period next preceding the approval of Republic Act 931; (2) said petition was not published; and (3) private petitioners, as lessees of the public land in question, have court standing under Republic Act 931. The facts follow: On April 12, 1912, the cadastral proceedings sought to be reopened, Civil Reservation Case No. 1, GLRO Record No. 211, Baguio Townsite, were instituted by the Director of Lands in the Court of First Instance of Baguio. It is not disputed that the land here involved (described in Plan Psu-186187) was amongst those declared public lands by final decision rendered in that case on November 13, 1922. On July 25, 1961, respondent Belong Lutes petitioned the cadastral court to reopen said Civil Reservation Case No. 1 as to the parcel of land he claims. His prayer was that the land be registered in his name upon the grounds that: (1) he and his predecessors have been in actual, open, adverse, peaceful and continuous possession and cultivation of the land since Spanish times, or before July 26, 1894, paying the taxes thereon; and (2) his predecessors were illiterate Igorots without personal notice of the cadastral proceedings aforestated and were not able to file their claim to the land in question within the statutory period.

On December 18, 1961, private petitioners Francisco G. Joaquin, Sr., Francisco G. Joaquin, Jr., and Teresita J. Buchholz registered opposition to the reopening. Ground: They are tree farm lessees upon agreements executed by the Bureau of Forestry in their favor for 15,395.65 square meters on March. 16, 1959, for 12,108 square meters on July 24, 1959, and for 14,771 square meters on July 17, 1959, respectively. On May 5, 1962, the City of Baguio likewise opposed reopening. On May 8, 1962, upon Lutes' opposition, the cadastral court denied private petitioners' right to intervene in the case because of a final declaratory relief judgment dated March 9, 1962 in Yaranon vs. Castrillo [Civil Case 946, Court of First Instance of Baguio] which declared that such tree farm leases were null and void. On May 18, 1962, private petitioners moved to reconsider. They averred that said declaratory relief judgment did not bind them, for they were not parties to that action. On September 14, 1962, the cadastral court reversed its own ruling of May 8, 1962, allowed petitioners to cross-examine the witnesses of respondent Lutes. On October 16, 1962, Lutes replied to and moved to dismiss private petitioners' opposition to his reopening petition. On October 25, 1962, private petitioners' rejoinder was filed. On August 5, 1963, the cadastral court dismissed private petitioners' opposition to the reopening. A motion to reconsider was rejected by the court on November 5, 1963. On January 6, 1964, it was the turn of the City of Baguio to lodge a motion to dismiss the petition to reopen. This motion was adopted as its own by the Reforestation Administration. They maintained the position that the declaratory judgment in Civil Case 946 was not binding on those not parties thereto. Respondent Lutes opposed on February 24, 1964. On April 6, 1964, private petitioners reiterated their motion to dismiss on jurisdictional grounds. On September 17, 1964, the court denied for lack of merit the City's motion as well as the April 6, 1964 motion to dismiss made by private petitioners. On November 13, 1964, all the petitioners went to the Court of Appeals on certiorari, prohibition, and mandamus with preliminary injunction. 1 They then questioned the cadastral court's jurisdiction over the petition to reopen and the latter's order of August 5, 1963 dismissing private petitioners' opposition. The appellate court issued a writ of preliminary injunction upon a P500-bond. Then came the judgment of the Court of Appeals of September 30, 1965. The court held that petitioners were not bound by the declaratory judgment heretofore hated. Nevertheless, the appellate court ruled that as lessees, private petitioners had no right to oppose the reopening of the cadastral case. Petitioners moved to reconsider. It was thwarted on May 6, 1966.

Petitioners now seek redress from this Court. On July 6, 1966, respondents moved to dismiss the petition before us. On August 5, 1966, petitioners opposed. On August 12, 1966, we gave due course. 1. Do private petitioners have personality to appear in the reopening proceedings? First, to the controlling statute, Republic Act 931, effective June 20, 1953. The title of the Act reads — AN ACT TO AUTHORIZE THE FILING IN THE PROPER COURT, UNDER CERTAIN CONDITIONS, OF CERTAIN CLAIMS OF TITLE TO PARCELS OF LAND THAT HAVE BEEN DECLARED PUBLIC LAND, BY VIRTUE OF JUDICIAL DECISIONS RENDERED WITHIN THE FORTY YEARS NEXT PRECEDING THE APPROVAL OF THIS ACT. Section 1 thereof provides — SECTION 1. All persons claiming title to parcels of land that have been the object of cadastral proceedings, who at the time of the survey were in actual possession of the same, but for some justifiable reason had been unable to file their claim in the proper court during the time limit established by law, in case such parcels of land, on account of their failure to file such claims, have been, or are about to be declared land of the public domain by virtue of judicial proceedings instituted within the forty years next preceding the approval of this Act, are hereby granted the right within five years 2 after the date on which this Act shall take effect, to petition for a reopening of the judicial proceedings under the provisions of Act Numbered Twenty-two hundred and fifty-nine, as amended, only with respect to such of said parcels of land as have not been alienated, reserved, leased, granted, or otherwise provisionally or permanently disposed of by the Government, and the competent Court of First Instance, upon receiving such petition, shall notify the Government through the Solicitor General, and if after hearing the parties, said court shall find that all conditions herein established have been complied with, and that all taxes, interests and penalties thereof have been paid from the time when land tax should have been collected until the day when the motion is presented, it shall order said judicial proceedings reopened as if no action has been taken on such parcels. 3 We concede that in Leyva vs. Jandoc, L-16965, February 28, 1962, a land registration case where oppositors were "foreshore lessees of public land", a principle was hammered out that although Section 34, Land Registration Act, 4 "apparently authorizes any person claiming any kind of interest to file an opposition to an application for registration, ... nevertheless ... the opposition must be based on a right of dominion or some other real right independent of, and not at all subordinate to, the rights of the Government."5 The opposition, according to the Leyva decision, "must necessarily be predicated upon the property in question being part of the public domain." Leyva thus pronounced that "it is incumbent upon the duly authorized representatives of the Government to represent its interests as well as private claims intrinsically dependent upon it."

But the Leyva case concerned an ordinary land registration proceeding under the provisions of the Land Registration Act. Normally and logically, lessees cannot there present issues of ownership. The case at bar, however, stands on a different footing. It involves a special statute R.A. 931, which allows a petition for reopening on lands "about to be declared" or already "declared land of the public domain" by virtue of judicial proceedings. Such right, however, is made to cover limited cases, i.e., "only with respect to such of said parcels of land as have not been alienated, reserved, leased, granted, or otherwise provisionally or permanently disposed of by the Government." 6 The lessee's right is thus impliedly recognized by R.A. 931. This statutory phrase steers the present case clear from the impact of the precept forged by Leyva. So it is, that if the land subject of a petition to reopen has already been leased by the government, that petition can no longer prosper. This was the holding in Director of Land vs. Benitez, L-21368, March 31, 1966. The reopening petition there filed was opposed by the Director of Lands in behalf of 62 lessees of public land holding revocable permits issued by the government. We struck down the petition in that Case because the public land, subject-matter of the suit, had already been leased by the government to private persons. Of course, the Benitez ruling came about not by representations of the lessees alone, but through the Director of Lands. But we may well scale the heights of injustice or abet violations of R.A. 931 if we entertain the view that only the Director of Lands 7 can here properly oppose the reopening petition. Suppose the lands office fails to do so? Will legitimate lessees be left at the mercy of government officials? Should the cadastral court close its eyes to the fact of lease that may be proved by the lessees themselves, and which is enough to bar the reopening petition? R.A. 931 could not have intended that this situation should happen. The point is that, with the fact of lease, no question of ownership need be inquired into pursuant to R.A. 931. From this standpoint, lessees have sufficient legal interest in the proceedings. The right of private petitioners to oppose a reopening petition here becomes the more patent when we take stock of their averment that they have introduced improvements on the land affected. It would seem to us that lessees insofar as R.A. 931 is concerned, come within the purview of those who, according to the Rules of Court, 8 may intervene in an action. For, they are persons who have "legal interest in the matter in litigation, or in the success of either of the parties." 9 In the event herein private petitioners are able to show that they are legitimate lessees, then their lease will continue. And this because it is sufficient that it be proven that the land is leased to withdraw it from the operation of Republic Act 931 and place it beyond the reach of a petition for reopening. 10 In line with the Court of Appeals' conclusion, not disputed by respondent Lutes herein, the cadastral court should have ruled on the validity of private petitioners 'tree farm leases — on the merits. Because there is need for Lutes' right to reopen and petitioners' right to continue as lessees to be threshed out in that court. We, accordingly, hold that private petitioners, who aver that they are lessees, have the necessary personality to intervene in and oppose respondent Lutes' petition for reopening.

2. Petitioners next contend that the reopening petition below, filed under R.A. 931, should have been published in accordance with the Cadastral Act. To resolve this contention, we need but refer to a very recent decision of this Court in De Castro vs. Marcos, supra, involving exactly the same set of facts bearing upon the question. We there held, after a discussion of law and jurisprudence, that: "In sum, the subject matter of the petition for reopening — a parcel of land claimed by respondent Akia — was already embraced in the cadastral proceedings filed by the Director of Lands. Consequently, the Baguio cadastral court already acquired jurisdiction over the said property. The petition, therefore, need not be published." We find no reason to break away from such conclusion. Respondent Lutes attached to the record a certified true copy of the November 13, 1922 decision in the Baguio Townsite Reservation case to show, amongst others, that the land here involved was part of that case. Petitioners do not take issue with respondent Lutes on this point of fact. We here reiterate our ruling in De Castro, supra, that the power of the cadastral court below over petitions to reopen, as in this case, is not jurisdictionally tainted by want of publication. 3. A question of transcendental importance is this: Does the cadastral court have power to reopen the cadastral proceedings upon the application of respondent Lutes? The facts are: The cadastral proceedings sought to be reopened were instituted on April 12, 1912. Final decision was rendered on November 13, 1922. Lutes filed the petition to reopen on July 25, 1961. It will be noted that the title of R.A. 931, heretofore transcribed, authorizes "the filing in the proper court, under certain conditions, of certain claims of title to parcels of land that have been declared public land, by virtue of judicial decisions rendered within the forty years next preceding the approval of this Act." The body of the statute, however, in its Section 1, speaks of parcels of land that "have been, or are about to be declared land of the public domain, by virtue of judicial proceedings instituted within the forty years next preceding the approval of this Act." There thus appears to be a seeming inconsistency between title and body. It must be stressed at this point that R.A. 931 is not under siege on constitutional grounds. No charge has been made hero or in the courts below that the statute offends the constitutional injunction that the subject of legislation must be expressed in the title thereof. Well-entrenched in constitutional law is the precept that constitutional questions will not be entertained by courts unless they are "specifically raised, insisted upon and adequately argued." 11 At any rate it cannot be seriously disputed that the subject of R.A. 931 is expressed in its title. This narrows our problem down to one of legal hermeneutics. Many are the principles evolved in the interpretation of laws. It is thus not difficult to stray away from the true path of construction, unless we constantly bear in mind the goal we seek. The

office of statutory interpretation, let us not for a moment forget, is to determine legislative intent. In the words of a well-known authority, "[t]he true object of all interpretation is to ascertain the meaning and will of the law-making body, to the end that it may be enforced." 12 In varying language, "the, purpose of all rules or maxims" in interpretation "is to discover the true intention of the law." 13 They "are only valuable when they subserve this purpose." 14 In fact, "the spirit or intention of a statute prevails over the letter thereof." 15 A statute "should be construed according to its spirit and reason, disregarding as far as necessary, the letter of the law." 16 By this, we do not "correct the act of the Legislature, but rather ... carry out and give due course to" its true intent. 17 It should be certain by now that when engaged in the task of construing an obscure expression in the law 18 or where exact or literal rendering of the words would not carry out the legislative intent, 19 the title thereof may be resorted to in the ascertainment of congressional will. Reason therefor is that the title of the law may properly be regarded as an index of or clue or guide to legislative intention. 20 This is especially true in this jurisdiction. For the reason that by specific constitutional precept, "[n]o bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill." 21 In such case, courts "are compelled by the Constitution to consider both the body and the title in order to arrive at the legislative intention." 22 With the foregoing guideposts on hand, let us go back to the situation that confronts us. We take another look at the title of R.A. 931, viz: "AN ACT TO AUTHORIZE THE FILING IN THE PROPER COURT, UNDER CERTAIN CONDITIONS, OF CERTAIN CLAIMS OF TITLE TO PARCELS OF LAND THAT HAVE BEEN DECLARED PUBLIC LAND, BY VIRTUE OF JUDICIAL DECISIONS RENDERED WITHIN THE FORTY YEARS NEXT PRECEDING THE APPROVAL OF THIS ACT." Readily to be noted is that the title is not merely composed of catchwords. 23 It expresses in language clear the very substance of the law itself. From this, it is easy to see that Congress intended to give some effect to the title of R.A. 931. To be carefully noted is that the same imperfection in the language of R.A. 931 aforesaid — from which surfaces a seeming inconsistency between the title and the body — attended Commonwealth Act 276, the present statute's predecessor. That prior law used the very same language in the body thereof and in its title. We attach meaning to this circumstance. Had the legislature meant to shake off any legal effects that the title of the statute might have, it had a chance to do so in the reenactment of the law. Congress could have altered with great facility the wording of the title of R.A. 931. The fact is that it did not. It has been observed that "in modern practice the title is adopted by the Legislature, more thoroughly read than the act itself, and in many states is the subject of constitutional regulation." 24 The constitutional in jurisdiction that the subject of the statute must be expressed in the title of the bill, breathes the spirit of command because "the Constitution does not exact of Congress the obligation to read during its deliberations the entire text of the bill." 25 Reliance, therefore, may be placed on the title of a bill, which, while not an enacting part, no doubt "is in some sort a part of the act, although only a formal part." 26 These considerations are all the more valid here

because R.A. 931 was passed without benefit of congressional debate in the House from which it originated as House Bill 1410, 27 and in the Senate. 28 The title now under scrutiny possesses the strength of clarity and positiveness. It recites that it authorizes court proceedings of claims to parcels of land declared public land "by virtue of judicial decisions rendered within the forty years next preceding the approval of this Act." That title is written "in capital letters" — by Congress itself; such kind of a title then "is not to be classed with words or titles used by compilers of statutes" because "it is the legislature speaking." 29 Accordingly, it is not hard to come to a deduction that the phrase last quoted from R.A. 931 — "by virtue of judicial decisions rendered" — was but inadvertently omitted from the body. Parting from this premise, there is, at bottom, no contradiction between title and body. In line with views herein stated, the title belongs to that type of titles which; should be regarded as part of the rules or provisions expressed in the body. 30 At the very least, the words "by virtue of judicial decisions rendered" in the title of the law stand in equal importance to the phrase in Section 1 thereof, "by virtue of judicial proceedings instituted." Given the fact then that there are two phrases to consider the choice of construction we must give to the statute does not need such reflection. We lean towards a liberal view. And this, because of the principle long accepted that remedial legislation should receive the blessings of liberal construction. 31 And, there should be no quibbling as to the fact that R.A. 931 is a piece of remedial legislation. In essence, it provides a mode of relief to landowners who, before the Act, had no legal means of perfecting their titles. This is plainly evident from the explanatory note thereof, which reads: This bill is intended to give an opportunity to any person or claimant who has any interest in any parcel of land which has been declared as public land in cadastral proceeding for failure of said person or claimant to present his claim within the time prescribed by law. There are many meritorious cases wherein claimants to certain parcels of land have not had the opportunity to answer or appear at the hearing of cases affecting their claims in the corresponding cadastral proceedings for lack of sufficient notice or for other reasons and circumstances which are beyond their control. Under C.A. No. 276, said persons or claimants have no more legal remedy as the effectivity of said Act expired in 1940. This measure seeks to remedy the lack of any existing law within said persons or claimants with meritorious claims or interests in parcels of land may seek justice and protection. This bill proposes to give said persons or claimants their day in court. Approval of this bill is earnestly requested. In fine, we say that lingual imperfections in the drafting of a statute should never be permitted to hamstring judicial search for legislative intent, which can otherwise be discovered. Legal technicalities should not abort the beneficent effects intended by legislation.

The sum of all the foregoing is that, as we now view Republic Act 931, claims of title that may be filed thereunder embrace those parcels of land that have been declared public land "by virtue of judicial decisions rendered within the forty years next preceding the approval of this Act." Therefore, by that statute, the July 25, 1961 petition of respondent Belong Lutes to reopen Civil Reservation Case No. 1, GLRO Record No. 211 of the cadastral court of Baguio, the decision on which was rendered on November 13, 1922, comes within the 40-year period.lawphi1.nêt FOR THE REASONS GIVEN, the petition for certiorari is hereby granted; the cadastral court's orders of August 5, 1963, November 5, 1963 and September 17, 1964 are hereby declared null and void and the cadastral court is hereby directed to admit petitioners' oppositions and proceed accordingly. No costs. So ordered. Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, Teehankee and Barredo, JJ., concur. Concepcion, C.J., Castro and Capistrano, JJ., took no part.. Footnotes
1

City of Baguio, et al., Petitioners, versus Hon. Pio R. Marcos, et al., Respondents, CAG.R. No. 34909-R.
2

Extended until December 31, 1968 by Republic Act 2061, effective June 13, 1958. Emphasis supplied.

3

4

The text of Section 34, Act No. 496, as ammended reads: "Any person claiming an interest, whether named in the notice or not, may appear and file an answer on or before the return day, or within such further time as may be allowed by the court. The answer shall state all the objections to the application, and shall set forth the interest claimed by the party filing the same and apply for the remedy desired, and shall be signed and sworn to by him or by some person in his behalf."
5

See also: Aduan vs. Alba, L-17046, April 25, 1961. Emphasis supplied.

6

7

On the Director of Lands is primarily lodged the power of executive control, administration, management, distribution and disposition of public lands, Director of Lands vs. Lim, 91 Phil. 912; Mari vs. Secretary, 92 Phil. 410, 414; Kiamko vs. Maceren, 92 Phil. 1057, 1060; Lubugan vs. Castrillo, 101 Phil. 1229, 1230; Municipality of San Carlos vs. Morfe, L-17990, July 24, 1962; Jamisola vs. Ballesteros, L-17466, September 18, 1965; Ganitano vs. Secretary, L-21167, March 31, 1966.
8

Rule 143, Rules of Court, provides: "These rules shall not apply to land registration, cadastral and election cases, naturalization and insolvency proceedings, and other cases

not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient." Emphasis supplied.
9

Section 2, Rule 12, Rules of Court. See: De Castro vs. Marcos, L-26093, January 27, 1969.

10

11

I Tañada and Carreon, Political Law of the Philippines, 1961 ed., P. 412, citing Santiago vs. Far Eastern, 73 Phil. 438 and Phil. Ass'n. of Col & Univ. vs. Secretary of Education, 51 O.G. 6230.
12

Black, Construction and Interpretation of the Laws, 2nd ed., p. 11. 82 C.J.S., p. 526. Sedalia vs. Smith, 104 S.W. 15, 19. Tañada vs. Cuenco, L-10520, February 23, 1957, citing 82 C.J.S., p. 613. Lopez & Sons, Inc. vs. Court of Tax Appeals, 100 Phil. 850, 855. Id. C.J.S., p. 731. See: Commissioner of Customs vs. Relunia, L- 11960. May 29, 1959.

13

14

15

16

17

18

19

Bell vs. New York, 11 N.E. 495, 497, citing Smith vs. People, 47 N.Y. 330: People vs. Davenport 91 N.Y., 574.
20

82 C.J.S., p. 734, See: Pruitt vs. Sebastian Country Cole and Mining Co., 222 S.W. 2d. 50, 57, citing Reynaldo vs. Holland. 35 Ark. 56.
21

Section 21(1), Article VI, Constitution; emphasis supplied.

22

37 A.L.R., p. 952, citing Joyce vs. Woods, 78 Ky. 386. See also p. 937, referring to O'Connor vs. Nova Scotia Teleph. Co. 22 Can. S.C. 276, reversing 23 N.S. 509.
23

Cf . People vs. Yabut, 58 Phil. 499, 504, which in substance held that "mere catchwords" cannot control the body of the statute, which is otherwise unambiguous.
24

Sedalia vs. Smith, supra, at pp. 19-20. Lidasan vs. Commission on Elections, L-28089, October 25, 1967. Sedalia vs. Smith, supra, at p. 20.

25

26

27

See: Congressional Record (House of Representatives), vol. II, Second Congress, Second Regular Session, pp. 1921-1922.
28

See: Congressional Record (Senate), vol. IV; Second Congress, Fourth Session, pp. 1108-1109.
29

Berger vs. Jackson, 23 So. 2d. 265, 267.

30

See: People vs. Lamphier, 172 N.Y.S. 247, 248-249; Newman vs. Newman, 91 N.Y.S. 2d. 330, 331.
31

Manila Railroad Co. vs. Attorney General, 20 Phil. 523, 530; Rodrigo vs. Cantor (unreported), L-4398, May 28, 1952, 91 Phil. 918; Maniego vs. Castelo, 101 Phil. 293, 296, citing Sibulo vs. Altar, 83 Phil. 513.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 109404 January 22, 1996

FLORENCIO EUGENIO, doing business under the name E & S Delta Village, petitioner, vs. EXECUTIVE SECRETARY FRANKLIN M. DRILON, HOUSING AND LAND USE REGULATORY BOARD (HLURB) AND PROSPERO PALMIANO, respondents. RESOLUTION PANGANIBAN, J.: Did the failure to develop a subdivision constitute legal justification for the non-payment of amortizations by a buyer on installment under land purchase agreements entered into prior to the enactment of P.D. 957, "The Subdivision and Condominium Buyers' Protective Decree"? This is the major question raised in the instant Petition seeking to set aside the Decision of the respondent Executive Secretary dated March 10, 1992 in O.P. Case No. 3761, which affirmed the order of the respondent HLURB dated September 1, 1987. On May 10, 1972, private respondent purchased on installment basis from petitioner and his coowner/developer Fermin Salazar, two lots in the E & S Delta Village in Quezon City. Acting on complaints for non-development docketed as NHA Cases Nos. 2619 and 2620 filed by the Delta Village Homeowners' Association, Inc., the National Housing Authority rendered a resolution on January 17, 1979 inter alia ordering petitioner to cease and desist from making further sales of lots in said village or in any project owned by him. While NHA Cases Nos. 2619 and 2620 were still pending, private respondent filed with the Office of Appeals, Adjudication and Legal Affairs (OAALA) of the Human Settlements Regulatory Commission (HSRC), a complaint (Case No. 80-589) against petitioner and spouses Rodolfo and Adelina Relevo alleging that, in view of the above NHA resolution, he suspended payment of his amortizations, but that petitioner resold one of the two lots to the said spouses Relevo, in whose favor title to the said property was registered. Private respondent further alleged that he suspended his payments because of petitioner's failure to develop the village. Private respondent prayed for the annulment of the sale to the Relevo spouses and for reconveyance of the lot to him.

On October 11, 1983, the OAALA rendered a decision upholding the right of petitioner to cancel the contract with private respondent and dismissed private respondent's complaint. On appeal, the Commission Proper of the HSRC reversed the OAALA and, applying P.D. 957, ordered petitioner to complete the subdivision development and to reinstate private respondent's purchase contract over one lot, and as to the other, "it appearing that Transfer Certificate of Title No. 269546 has been issued to . . . spouses Rodolfo and Ad(e)lina Relevo . . . , the management of E & S Delta Village is hereby ordered to immediately refund to the complainant-appellant (herein private respondent) all payments made thereon, plus interests computed at legal rates from date of receipt hereof until fully paid." The respondent Executive Secretary, on appeal, affirmed the decision of the HSRC and denied the subsequent Motion for Reconsideration for lack of merit and for having been filed out of time. Petitioner has now filed this Petition for review before the Supreme Court. Under Revised Administrative Circular No. 1-95, "appeals from judgments or final orders of the . . . Office of the President . . . may be taken to the Court of Appeals . . . " However, in order to hasten the resolution of this case, which was deemed submitted for decision one and a half years ago, the Court resolved to make an exception to the said Circular in the interest of speedy justice. In his Petition before this Court, petitioner avers that the Executive Secretary erred in applying P.D. 957 and in concluding that the non-development of the E & S Delta Village justified private respondent's non-payment of his amortizations. Petitioner avers that inasmuch as the land purchase agreements were entered into in 1972, prior to the effectivity of P.D. 957 in 1976, said law cannot govern the transaction. We hold otherwise, and herewith rule that respondent Executive Secretary did not abuse his discretion, and that P.D. 957 is to be given retroactive effect so as to cover even those contracts executed prior to its enactment in 1976. P.D. 957 did not expressly provide for retroactivity in its entirety, but such can be plainly inferred from the unmistakable intent of the law. The intent of the law, as culled from its preamble and from the situation, circumstances and conditions it sought to remedy, must be enforced. On this point, a leading authority on statutory construction stressed: The intent of a statute is the law. . . . The intent is the vital part, the essence of the law, and the primary rule of construction is to ascertain and give effect to the intent. The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature and to conclusions inconsistent with the general purpose of the act. . . . In construing statutes the proper course is to start out and follow the trite intent of the legislature and to adopt that sense which harmonizes best with the context and promotes

in the fullest manner the apparent policy and objects of the legislature.1 (emphasis supplied.) It goes without saying that, as an instrument of social justice, the law must favor the weak and the disadvantaged, including, in this instance, small lot buyers and aspiring homeowners. P.D. 957 was enacted with no other end in view than to provide a protective mantle over helpless citizens who may fall prey to the manipulations and machinations of "unscrupulous subdivision and condominium sellers", and such intent is nowhere expressed more clearly than in its preamble, pertinent portions of which read as follows: WHEREAS, it is the policy of the State to afford its inhabitants the requirements of decent human settlement and to provide them with ample opportunities for improving their quality of life; WHEREAS, numerous reports reveal that many real estate subdivision owners, developers, operators, and/or sellers have reneged on their representations and obligations to provide and maintain properly subdivision roads, drainage, sewerage, water systems, lighting systems, and other similar basic requirements, thus endangering the health and safety of home and lot buyers; WHEREAS, reports of alarming magnitude also show cases of swindling and fraudulent manipulations perpetrated by unscrupulous subdivision and condominium sellers and operators, such as failure to deliver titles to the buyers or titles free from liens and encumbrances, and to pay real estate taxes, and fraudulent sales of the same subdivision lots to different innocent purchasers for value;2 (emphasis supplied.) From a dedicated reading of the preamble, it is manifest and unarguable that the legislative intent must have been to remedy the alarming situation by having P.D. 957 operate retrospectively even upon contracts already in existence at the time of its enactment. Indeed, a strictly prospective application of the statute will effectively emasculate it, for then the State will not be able to exercise its regulatory functions and curb fraudulent schemes and practices perpetrated under or in connection with those contracts and transactions which happen to have been entered into prior to P.D. 957, despite obvious prejudice to the very subdivision lot buyers sought to be protected by said law. It is hardly conceivable that the legislative authority intended to permit such a loophole to remain and continue to be a source of misery for subdivision lot buyers well into the future. Adding force to the arguments for the retroactivity of P.D. 957 as a whole are certain of its provisions, viz., Sections 20, 21 and 23 thereof, which by their very terms have retroactive effect and will impact upon even those contracts and transactions entered into prior to P.D. 957's enactment: Sec. 20. Time of Completion. — Every owner or developer shall construct and provide the facilities, improvements, infrastructures and other forms of development, including water supply and lighting facilities, which are offered and indicated in the approved subdivision or condominium plans, brochures, prospectus, printed matters, letters or in

any form of advertisement, within one year from the date of the issuance of the license for the subdivision or condominium project or such other period of time as may be fixed by the Authority. Sec. 21. Sales Prior to Decree. — In cases of subdivision lots or condominium units sold or disposed of prior to the effectivity of this Decree, it shall be incumbent upon the owner or developer of the subdivision or condominium project to complete compliance with his or its obligations as provided in the preceding section within two years from the date of this Decree unless otherwise extended by the Authority or unless an adequate performance bond is filed in accordance with Section 6 hereof. Failure of the owner or, developer to comply with the obligations under this and the preceding provisions shall constitute a violation punishable under Section 38 and 39 of this Decree. Sec. 23. Non-Forfeiture of Payments. — No installment payment made by a buyer in a subdivision or condominium project for the lot or unit he contracted to buy shall be forfeited in favor of the owner or developer, when the buyer, after due notice to the owner or developer, desists from further payment due to the failure of the owner or developer to develop the subdivision or condominium project according to the approved plans and within the time limit for complying with the same. Such buyer may, at his option, be reimbursed the total amount paid including amortization interests but excluding delinquency interests, with interest thereon at the legal rate. (emphasis supplied) On the other hand, as argued by the respondent Executive Secretary, the application of P.D. 957 to the contracts in question will be consistent with paragraph 4 of the contracts themselves, which expressly provides: (4) The party of the First Part hereby binds himself to subdivide, develop and improve the entire area covered by Transfer Certificate of Title No. 168119 of which the parcels of lands subject of this contract is a part in accordance with the provisions of Quezon City Ordinance No. 6561, S-66 and the Party of the First Part further binds himself to comply with and abide by all laws, rules and regulations respecting the subdivision and development of lots for residential purposes as may be presently in force or may hereafter be required by laws passed by the Congress of the Philippines or required by regulations of the Bureau of Lands, the General Registration Office and other government agencies. (emphasis supplied) Moreover, as P.D. 957 is undeniably applicable to the contracts in question, it follows that Section 23 thereof had been properly invoked by private respondent when he desisted from making further payment to petitioner due to petitioner's failure to develop the subdivision project according to the approved plans and within the time limit for complying with the same. (Such incomplete development of the subdivision and non-performance of specific contractual and statutory obligations on the part of the subdivision-owner had been established in the findings of the HLURB which in turn were confirmed by the respondent Executive Secretary in his assailed

Decision.) Furthermore, respondent Executive Secretary also gave due weight to the following matters: although private respondent started to default on amortization payments beginning May 1975, so that by the end of July 1975 he had already incurred three consecutive arrearages in payments, nevertheless, the petitioner, who had the cancellation option available to him under the contract, did not exercise or utilize the same in timely fashion but delayed until May 1979 when he finally made up his mind to cancel the contracts. But by that time the land purchase agreements had already been overtaken by the provisions of P.D. 957, promulgated on July 12, 1976. (In any event, as pointed out by respondent HLURB and seconded by the Solicitor General, the defaults in amortization payments incurred by private respondent had been effectively condoned by the petitioner, by reason of the latter's tolerance of the defaults for a long period of time.) Likewise, there is no merit in petitioner's contention that respondent Secretary exceeded his jurisdiction in ordering the refund of private respondent's payments on Lot 12 although (according to petitioner) only Lot 13 was the subject of the complaint. Respondent Secretary duly noted that the supporting documents submitted substantiating the claim of non-development justified such order inasmuch as such claim was also the basis for non-payment of amortizations on said Lot 12. Finally, since petitioner's motion for reconsideration of the (Executive Secretary's) Decision dated March 10, 1992 was filed only on the 21st day from receipt thereof, said decision had become final and executory, pursuant to Section 7 of Administrative Order No. 18 dated February 12, 1987, which provides that "(d)ecisions/ resolutions/orders of the Office of the President shall, except as otherwise provided for by special laws, become final after the lapse of fifteen (15) days from receipt of a copy thereof . . . , unless a motion for reconsideration thereof is filed within such period." WHEREFORE, there being no showing of grave abuse of discretion, the petition is DENIED due course and is hereby DISMISSED. No costs. SO ORDERED. Narvasa, C.J., Davide Jr., Melo and Francisco, JJ., concur.

Footnotes
1

Vol. II, Sutherland, Statutory Construction, pp. 693-695. Preamble, Presidential Decree No. 957.

2

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-40188 July 27, 1934

THE EMPLOYEES' CLUB, INC., petitioner-appellee, vs. CHINA BANKING CORPORATION, oppositor-appellant. Feria and La O for appellant. Ciriaco C. Magsanoc for appellee. DIAZ, J.: This is an appeal taken by the oppositor-appellant China Banking Corporation, as mortgage creditor of the Intestate Estate of Jose Javier Go Chioco, from the order entered by the trial court on May 16, 1933, requiring it to surrender the register of deeds of the City of Manila the duplicate transfer certificate of title No. 21192 of the said registry, which it has in its possession, in order that the contract of lease evidenced by Exhibit A which was executed under judicial authorization on November 29, 1932, by the administrator of the intestate estate of said deceased Jose Javier Go Chioco might be noted thereon and entered in the corresponding records. The oppositor-appellant contends that the order appealed from is not enforceable because the contract of lease to which it refers was not, and is not, by its nature, registerable in the registry of deeds. Its grounds are: that said contract does not create a real right and that, under the provisions of the Civil Code and the Mortgage Law, only real rights are susceptible of registration in the registry of deeds, with no other exception than those cases in which the lease is for a period exceeding six years, or the rent corresponding to three years is paid in advance, or there is an express covenant requiring the lease to be inscribed in the registry of deeds. The only pertinent clauses of the contract of lease in question are the second and the fourteenth, which translated read as follows: 2. That the term of this contract is three years from December 10, 1932, to November 30, 1935. xxx xxx xxx

14. In case of sale of the property where the subject matter of this lease is situated, the lessor is bound impose upon the purchaser the obligation to respect the present contract of lease.

In passing, it should be stated that there is no dispute between the parties with respect to the following facts: that during the lifetime of Jose Javier Go Chioco, of whose intestate estate Francisco Gumila is the judicial administrator, the appellant granted him a loan of some two hundred fifty thousand pesos; that to, secure the payment of said loan, said debtor mortgaged, among other properties belonging to him, his property at No. 419 Dasmariñas Street, Binondo, Manila, which is covered by the above-mentioned transfer certificate of title; that inasmuch as the obligation of said Jose Javier Go Chioco or his intestate estate, which was secured by the aforesaid mortgage, became due, the appellant instituted civil case No. 42578 of the Court of First Instance of Manila for the recovery of the debt; and that while said case was pending, the administrator of the intestate estate of said deceased mortgagor leased to the appellee, in the manner above stated, the third floor of the property referred to in said contract of lease Exhibit A. The appellant, in support of its contention that said contract of lease was and is not, registerable, because its term is only for three years and the rent corresponding to said term of three years has not been paid in advance, nor was there any covenant between the lessor and the lessee, requiring the contract to be inscribed in the registry of deeds, invokes and quotes Manresa's commentary on article 1571 of the Civil Code, which reads as follows: In Chapter I of this title, we have amply discussed the question whether or not a lease creates a real right in favor of the lessee. From our study of the preceding and the actual state of legislation, we are led to the conclusion that, in our law, the right created in favor of the lessee by reason of the contract is, as a general rule, personal in nature, and, by exception, real, when it is among the cases provided for in article 2, No. 5, of the Mortgage Law, that is, when the lease is for a period exceeding six years; the rent for three years is paid in advance, or there is an ex- press covenant for its inscription in the registry of deeds, which are the only three cases in which the lease is registerable." (10 Manresa, page 637.) The article commented on partly provides as follows: ART. 1571. The purchaser of a leased estate shall be entitled to terminate any lease in force at the time of making the sale unless the contrary is stipulated, and subject to the provisions of the Mortgage Law. The appellant forgets, or rather ignores, the fact that the property in question is registered, not under the old Mortgage Law but under Act No. 496, in accordance with the Torrens system: and it forgets furthermore that the latter Act expressly provides that all interests — and this word includes the interest arising from a contract of lease, like that which the petitioner-appellee has in its favor — in land registered in the registry under said Act are not only susceptible of registration therein but must necessarily be registered in order to affect third persons. Sections 51 and 52 of the said Act provide as follows: SEC. 51. Every conveyance, mortgage, lease, lien, attachment, order, decree, instrument, or entry affecting registered land which would under existing laws, if recorded, filed, or entered in the office of the register of deeds, affect the real estate to which it relates shall,

if registered, filed, or entered in the office of the register of deeds in the province or city where the real estate to which such instrument relates lies, be notice to all persons from the time of such registering, filing, or entering. SEC. 52. No new certificate shall be entered or issued upon any transfer of registered land which does not divest the land in fee simple from the owner or from some one of the registered owners. All interests in registered land less than an estate in fee simple shall be registered by filing with the register of deeds the instrument creating or transferring or claiming such interest and by a brief memorandum thereof made by the register of deeds upon the certificate of title, signed by him. A similar memorandum shall also be made on the owner's duplicate. The cancellation or extinguishment of such interest shall be registered in the same manner. The appellant contends that the provisions of section 52 are not applicable in this case because, according to it, the section in question refers exclusively to real rights or is erroneous, on the ground that the Spanish text of the law is relied upon by the appellant whereas Act No. 496 was originally enacted by the Legislature in English. (Act No. 63.) The rule that governs in this jurisdiction is that the English text of a law should prevail over the Spanish text when the same had been promulgated in that language. (Section 15 of the Revised Administrative Code of 1917.) The Spanish translation of the phrase: "All interests in registered land" used inn the said section 52, which reads: "La inscripcion o registro de todo derecho real", is inaccurate because it restricts the meaning expressed by the phrase in question, which is, that all interests in registerable, without the necessity, however, of issuing a new certificate of title therefor. What is stated herein is not in conflict with the provisions of section 51 which reads: "Every . . . lease . . . affecting registered land which would under existing laws, if recorded, filed, or entered in the office of the registered of deeds, etc.", because the phrase "which would under existing laws" used therein does not necessarily mean the Mortgage Law or the Civil Code. It also includes Act No. 496 of which said section is a part because, as already stated, said Act requires, rather than permits, the inscription in the registry of all rights or interests in registered land, whether the same arises from a mortgage, from an attachment, or from a lease or any other lien. We should not be understood as giving no force to the provisions of article 1571 of the Civil Code with respect to the right of the purchaser of a leased estate to terminate the lease existing at the time of the sale. It would be too premature to decide said question at this time, for the reason that neither have the parties raised it nor do the alleged and Proven facts call for the same. Perhaps said provisions will be of value especially in the appellant's case if, at the proper time, it becomes the purchaser of the property in question in the proceedings instituted by it against the intestate estate of the deceased Jose Javier Go Chioco for the recovery of the debt, on the ground that the case involves a lease executed after the constitution of the mortgage in its favor. However, this does not, for the reasons already stated, prevent the lease granted to the appellee from being inscribed in the registry of deeds in order to protect it, at least, from other liens that may be constituted on the property which is the subject matter of the lease.

Wherefore, this court considers it necessary for the appellant to surrender to the register of deeds of the City of Manila the duplicate of transfer certificate of title No. 21192, which it has in its possession, in order that said official may make a notation on the said document as well as on the original thereof and in the corresponding records of his office, of the contract of lease contained in Exhibit A. The order appealed from is affirmed, with the costs against the appellant. So ordered. Street, Malcolm, Villa-Real, Hull, Vickers, Imperial and Butte, JJ., concur.

Separate Opinions AVANCEÑA, C.J., dissenting: I agree with the dissenting opinion of Justice Abad Santos. My point of view, however, goes farther. Even granting that the lease of the property in favor of the plaintiff is registerable, it cannot be registered in so far as it affects the mortgage rights of the defendant previously registered. The purpose of the mortgage is to secure with the value thereof the payment of the debt. In this sense, it may be said that it affects the value of the property more than the property itself. It is for this essential reason in the mortgage that the debtor cannot diminish the value of the mortgage property and, therefore, cannot execute any act which might in one way or another tend to cause its depreciation. If the lease, in favor of the plaintiff is registered, it would affect third persons and would have to be respected by the legal effect of the registration thereof. It can easily be understood that a lease for a period which must be respected, necessarily causes depreciation in the value of the property in case the same is sold, or, what is more, it may not be sold because of this circumstance. In this way, if in the proceedings already instituted by the defendant for the recovery of the debt, the property is sold, it will not obtain the price which it should otherwise obtain in the absence of the registered lease, and perhaps the amount due the defendant may not be recovered for lack of a purchaser of the property with said lien. Inasmuch as the registration of the lease affects the mortgage rights of the defendant in the manner above stated, such registration cannot be made. The circumstance that the defendant may perhaps be entitled to terminate the lease, although the same be registered if it becomes the purchaser of the property, is of no moment, for the reason that such may not be the case and the defendant is entitled in all cases to be protected in its mortgage credit. ABAD SANTOS, J., dissenting: I dissent.

I am of the opinion that a contract of lease of real property for a period not exceeding six years is not entitled to be recorded, unless the stipulated rent has been paid in advance for three or more years, or the parties thereto have expressly agreed that the same be recorded. (Mortgage Law, article 2 [5].) Section 52 of Act No 496 does not require or authorize mere personal covenants to be recorded. The term "all interest in registered land less than an estates in the land or real rights. It does not include personal contracts relating to real property, which can convey no interest in the land. (Storz vs. Kirsch, 78 Ind. A., 431; 138 N. E., 36.) In this jurisdiction, the nature and effect of a contract of lease are governed by the provisions of the Civil Code. While by the common law a lease conveys an interest inland, under our law it does not; it is a mere personal con- tract. (Civil Code, arts. 1542 and 1543; 10 Manresa, p.637; Berwind-White Coal Mining Company vs. Boriquen Sugar Company, 6 Porto Rico Fed., 252.) It creates no estate or interest in land. While the common law regards a lease for years as the grant of an estate, the civil law on the other hand regards a lease for years as a mere transfer of the use and enjoyment of the property. Hence, in the various civil-law jurisdictions, there are statutes defining a lease as a contract by which one party gives to the other the enjoyment of a thing at a fixed price, and as a contract in which one party under-takes to give to the other the use of a thing for a definite or indefinite period in consideration of a price certain. A lease has also been defined as a contract by which one of the parties agrees to give to the other for a fixed time and price the use or profit of a thing, or of his services. A lease is a commutative and a personal contract. (35 C. J., 1141.) It is not necessary to the validity of a lease that it be recorded, but leases of real property which are not duly recorded have no effect as against third persons. (Civil Code, article 1549.) Under the Mortgage Law a lease of real property may be recorded (1) if it is for a period exceeding six years, (2) if rent has been paid thereon in advance for three or more years, and (3) if it contains a special covenant by which record thereof is required. (Art. 2[5].)

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 110097 December 22, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNULFO ASTORGA, accused-appellant.

PANGANIBAN, J.: Actual detention or "locking up" is the primary element of kidnapping. If the evidence does not adequately prove this element, the accused cannot be held liable for kidnapping. In the present case, the prosecution merely proved that appellant forcibly dragged the victim toward a place only he knew. There being no actual detention or confinement, the appellant may be convicted only of grave coercion. The Case The foregoing principle is used by this Court in resolving the appeal of Arnulfo Astorga challenging the March 31, 1993 Decision 1 of the Regional Trial Court of Tagum, Davao convicting him of kidnapping. In an Information 2 dated March 24, 1992 and docketed as Criminal Case No. 8243, Appellant Arnulfo Astorga was charged with violation of Article 267, paragraph 4 of the Revised Penal Code, allegedly committed as follows:
That on or about December 29, 1991 in the Municipality of Tagum, Province of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and by means of force, did then and there willfully, unlawfully and feloniously kidnap Yvonne Traya, a minor, 8 years of age, thereby depriving her of her liberty against her will, to the damage and prejudice of said offended party.

Arraigned on February 24, 1993, Appellant Astorga, duly assisted by his counsel, 3 pleaded not guilty to the charge. Trial on the merits ensued. The dispositive portion of the assailed Decision 4 reads as follows: 5
WHEREFORE, premises considered, the guilt of accused ARNULFO ASTORGA having been proven beyond reasonable doubt, pursuant to Article 267 paragraph 4 of the Revised Penal

Code, [he] is hereby sentenced to Reclusion Perpetua to be served at the National Penitentiary, [Muntinlupa].

This appeal was filed directly with this Court in view of the penalty imposed. 6 The Facts Evidence for the Prosecution The evidence for the prosecution was narrated in the Decision of the trial court, as follows: 7
Prosecution witnesses extant from their testimonies categorically assert that around 6:30 P.M. children of neighbors were near the store of the grandparents of Yvonne Traya. Incidentally, there was a brown out that evening hence candle was used. The daughter and nephew of her aunt Bebeth were quarelling [sic] about the possession of a flashlight until the glass got lost. Accused or "Boy" Astorga, went near and asked her daughter Jane what happened. Glenda or Bebeth grabbed her baby and went home. Accused told Yvonne to go with him to buy candy. She did not answer and accused immediately grabbed and hold [sic] her hand. Accused placed his hand on her shoulder and covered his [sic] mouth. Yvonne was only eight (8) years old on 29 December 1991 when she was brought by the accused allegedly to buy candy. Some stores were closed; others were opened. Accused never went inside the store to buy candy. Instead she [sic] held and dragged Yvonne until they went inside the compound of Maco Elementary School. They were walking inside the perimeter fence, [while the accused was] holding closely the child. Later, there being no person around the gate, accused brought her out to the highway and walked towards the direction of Tagum. Yvonne stays with her grandparents and so with her parents at Sitio Binuangan, Maco. She asked him where they were going and accused answered that they were going home. She told him that they were already on the opposite direction because her grandparent's house is at Binuangan, while their route was going towards Tagum. Indeed, it was an opposite direction. Notwithstanding the assertion of Yvonne that they were on the wrong direction, accused placed his hands on her shoulder and dragged her. She cried and protested that she must go home. Accused did not heed her plea and while she was forced to walk she continued crying. While accused and Yvonne were walking in the situation as described, somewhere near the Luponlupon bridge they met some group of men. Having met on their opposite direction, the two, were noticed by the group of youngsters. The group were bound to Maco Catholic Church to see a drama. Having met the two and as noticed by the group accused keep [sic] on looking back at them. The group were suspicious about the man who was bringing a child. The group decided to follow them. Accused hurriedly walked fast with Yvonne, and to prevent from being overtaken, he carried the victim and ran. They were chased. After a distance of half a kilometer they were overtaken. Edwin Fabila declared that Jonathan, one of his companions with others in chasing, asked the accused where they were bound. He answered towards Binuangan. The group noticed something suspicious because their destination was already towards Tagum which is an opposite direction to Binuangan.

When asked who is the child, accused answered Traya. Jonathan one of those who chased knew the family. He got from the accused Yvonne who showed some resistance. Nevertheless, the group brought her home at Binuangan. Likewise, accused was also brought by them to Yvonne's home. The house of accused and Yvonne were five (5) meters away. Accused wanted to talk to the parents of the victim, but he was driven by her aunt and adviced [sic] to leave otherwise he will be stabbed by Yvonne's father. He left and never talked with the family.

Evidence for the Defense The facts as viewed by the defense are presented in the Appellant's Brief, 8 dated December 10, 1993:
The defense consisted of the testimonies of Arbeth Nalcot and the accused-appellant himself. Arbeth Nalcot, a resident of Tagum, Davao, testified tht [sic] in the afternoon of December 29, 1991, she was at the Municipal Hall of Maco, Davao. She saw Astorga with two (2) companions. They were drinking Red Horse and were already drunk. When they finished drinking, she went with Astorga to the latter's house. (TSN, pp. 7-8 and 18, March 23, 1993). The house of Astorga is about 5 meters away from the house of the complainant[.] Yvonne came and asked money from the accused to buy candy. The two went together and she was left behind. She told them to hurry up. When they failed to return, she looked for them, but because it was already dark. She did not find them. She went back to the house of the accused. (Ibid., pp. 10-11). Arnulfo Astorga, a resident of Maco, Davao and a gold panner testified that "at around 1:00 P.M. of December 29, 1991, he arrived at Maco from Tagum. Upon arrival his two friends, Vicvic and Anding were already at his home. They decided to drink, hence they proceeded to Adecor Cottage and drank two gallons of Tuba. At around 2:00 P.M., they were at the market place and drink beer grande. At 5:00 P.M. on the same day, the three proceeded near the municipal hall and with some persons, they again continued their drinking spree taking up Red Horse wine". (Decision, p. 3). At about 6:00 P.M., he was already drunk and he went home. Yvonne approached him and asked him money to buy candy. He told her that they will buy. They were not able to buy because the two stores where they went were already closed. (TSN, pp. 12 and 13, March 24, 1993). He took her for a stroll for his drunkeness [sic] to subside. They walked inside the school premises which was about 20 meters away from the second store. They went out of the school compound going towards Lupon-lupon because due to his drunkneness [sic], he thought it was the way towards their house. (Ibid, pp. 14-15) They reached Lupon-lupon bridge, crossed it twice thinking that it was the bridge near the municipal hall. After reaching Purok, they met several persons, he was asked were (sic) they were heading, and he answered to Tagumpay, but he was told that they [sic] way was already going to Tagum. He requested those persons to guide them to Tagumpay. They asked him who was the child he was carrying. He answered that it was Traya's child, (Ibid, pp. 16-17). He was carrying the child because he was already crying she already wanted to go home. The group of persons, men and women, guided them. Yvonne was being held by the women. They arrived at Yvonne's house. He talked to the auntie of the child and told her that he would converse with her but he was advised to go away because the father of Yvonne might hack him. So he went home. (Ibid, pp. 18-19)

The Trial Court's Ruling The trial court justified its finding of guilt with the following discussion: 9

Accused insisted [that] he was already drunk hence when he took Yvonne to buy candy, he strolled with her so that his drunkenness be subsided. All these defense version was rebutted by Yvonne when she categorically declared that she did not smell liquor on the accused. His defense of intoxication has no leg to stand [on]. Consider these facts. Never did he present Vicvic and Anding to corroborate that he was intoxicated that afternoon and at dusk because of their drinking spree from 1:00 P.M. until 5:00 P.M. He did not rebut the testimonies of Fabila that when they noticed his actions suspicious bringing with him a child, he walked fast dragging Yvonne. When he noticed that the group of youngsters were chasing him, he carried Yvonne and ran until they covered a distance of half a kilometer in chasing them, until they had overtaken him. If he was that intoxicated, being under stupor and weakened by liquor, he could not ran that fast carrying Yvonne for half a kilometer. Moreover, Yvonne categorically in straight forward testimony asserted that she did not smell liquor on the accused. Accused, naivety [sic], that because of his intoxication, he got lost and was not able to proceed with Yvonne to Binuangan was a shallow afterthought. It must be recalled that Yvonne told him they were already going at opposite direction from home. Instead they were heeding towards Tagum. Accused did not change course. xxx xxx xxx Again, not only force was employed in having Yvonne as captive by dragging, slapping her mouth and was holding her tight, but accused also used psychological means of scaring her about a red eyed ghost. Through this means and efforts, Yvonne was deprived of her liberty and was by force prevented to go home to her parents. On rebuttal, Yvonne denied that she asked money from accused to buy candy. She also denied as testified by defense witness Arbeth Nalcot that she went to the house of the accused on 29 December 1991 or on any other dates to ask money from Astorga for candy. Defense evidence are [sic] punctured with unbelievability in his off tangent and incredible theory of drunkardness. His alleged being lost in the direction of Binuangan in spite of Yvonne's insistence and that of the person they met that he was on the wrong way considering that there are no criss crossing roads except the highway is preposterous.

The Issues Appellant imputes the following errors to the trial court: 10

I The trial court erred in giving credence to the testimonies of the prosecution's witnesses which were replete with inconsistencies and contradictions. II The trial court erred in convicting the appellant despite the fact that Yvonne Traya was not detained, locked-up or deprived of her liberty. III The trial court erred in convicting the appellant despite the fact that appellant had no motive to kidnap Yvonne Traya.

In the main, appellant challenges the credibility of the prosecution witnesses and the legal characterization of the acts imputed to him. The Court's Ruling The appeal is partly meritorious. Appellant should be convicted only of grave coercion, not kidnapping. First Issue: Credibility of Prosecution Witnesses Appellant contends that the testimonies of the prosecution witnesses are not worthy of credence because they were inconsistent and improbable. He cites the following:
Glenda Chavez testified that she was present when the accused told Yvonne that they will buy candy. She sensed that the accused was drunk. (TSN, pp. 10-11, March 10, 1993). These testimonies were contradicted by Yvonne Traya when she declared that Glenda Chavez had already went [sic] inside their house when [the] accused told her that they will buy candy (TSN, pp. 10, March 16, 1993). She testified that she did not smell liquor on the accused. (Decision, pp. 3-4) Edwin Fabila testified that their group was able to overtake the accused at a distance of 2 fathoms and they [sic] him about 15 to 20 meters (TSN, p. 35, March 10, 1993) Arnel Fabila, on the other hand, testified that they overtook the accused after chasing him at a distance of half kilometer (TSN, p. 10, March 11, 1993). Yvonne Traya testified that the accused could not ran fast carrying her because she was heavy. (TSN, p. 19, March 16, 1993). However, Arnel Fabila declared that they were able to overtake the accused only after chasing him at a distance of half kilometer (TSN, p. 10, March 11, 1993) meaning accused was running fast. 11

We hold, however, that inconsistencies in the testimonies of witnesses concerning minor details and collateral matters, like the examples cited by appellant, do not affect the substance, veracity or weight of their declarations. These inconsistencies reinforce, rather than weaken, their credibility, for different

witnesses of startling events usually perceive things differently. 12 Indeed, the testimonies of the prosecution witnesses cannot be expected to be uniform to the last detail. The testimony of Glenda Chavez that the accused was drunk at that time allegedly contradicted Yvonne's statement that the accused did not smell of liquor. This does not detract from the credibility of either witness. Yvonne, then an eight-year-old child, 13 and her Aunt Glenda, then twenty-seven years old, 14 do not have the same experiences or level of maturity; hence, their perceptions of events differ. More important, whether the accused was drunk or not is an insignificant detail that does not substantially affect the testimonies of these witnesses. Further, the discrepancy in the witnesses' estimate of the distance covered by the men who chased appellant does not render their testimonies incredible. 15 Quite the contrary, such discrepancy shows their candor and sincerity, demonstrating that their testimonies were unrehearsed. 16 Yvonne testified that when appellant noticed the group of men following them, he carried her and ran. Yvonne's testimony is in accord with that of Arnel Fabila — a member of the group who chased appellant — that they were able to overtake appellant after chasing him half a kilometer. 17 Appellant's challenge to the credibility of the prosecution account is also premised on the alleged failure of the trial court to consider the following points: 18
a) that the alleged victim admitted that she and the accused casually moved around the school premises, as if they were strolling; That when they were already in the highway, they were also walking openly and casually until they were met by a group of youngster[s]. Edwin Fabila, one of the prosecution's witnesses, corroborated the fact that the two were walking casually along the highway when he first saw them; b) That it is highly incredible that accused and the alleged victim will not be seen or noticed by the people travelling or those persons residing along the highway if it was true that the accused was dragging her and she was continuously crying from her residence up to a distance of more than one kilometer; c) That the accused and the alleged victim were travelling at a very slow pace; a distance of barely a kilometer for a period of more than two hours; d) That the accused was very drunk, having been drinking different kinds of intoxicating liquors from 1:00 p.m. to 5:00 p.m., causing him to be confused on which way they should take in going home. e) That the accused was not hurt by the group of youngsters who allegedly rescued the child, nor was immediately brought to the municipal hall which was just near the house of

the victim for the filing of the necessary charge; this [sic] actuations only confirm the fact that the accused merely sought their help in guiding them home, and f) That it took more than one week for the complainant and her parents to file the case at the Fiscal's Office.

We cannot sustain these contentions. The charge is not belied by the one-week delay in the filing of the complaint. It has been held that delay or vacillation in making a criminal accusation does not necessarily weaken the credibility of a witness where such delay is satisfactorily explained. 19 In the present case, one week was reasonable, considering that the victim was a resident of Binuangan and that the case was filed in Tagum, Davao. Furthermore, the group whom appellant met did not hurt or bring him to the municipal hall, because they deemed it more urgent at the time to rescue Yvonne and to bring her home, which they actually did. 20 There is no settled rule on how a group of young men should react upon seeing a young girl snatched by an older man. Verily, violence is not the only normal reaction of young men who see a girl being forcibly taken. Appellant's claim that he and Yvonne were merely strolling and walking casually does not negate the fact that Yvonne was deprived of her will. As noted by the trial court, appellant used physical force and psychological means in restraining her. 21 Despite her young age, Yvonne was able to clearly recount the events that transpired on that fateful night. Moreover, there is no merit in the argument that the people travelling or living along the highway should have noticed appellant and Yvonne. The fact is that a group of men actually noticed and ultimately chased them. All in all, appellant utterly fails to justify a departure from the long settled rule that the trial court's assessment of the credibility of witnesses should be accorded great respect on appeal. 22 Second Issue: No Motive to "Kidnap" Petitioner contends that "[t]here was no evidence presented to prove why the accused should kidnap Yvonne Traya." He submits that "the prosecution had failed to prove [any] motive to support the alleged kidnapping incident, thus, making the theory of the defense more credible and believable." 23 The contention is insignificant. Motive is not an element of the crime. Furthermore, motive becomes material only when the evidence is circumstantial or inconclusive, and there is some doubt on whether a crime has been committed or whether the accused has committed it. Indeed, motive is totally irrelevant when ample direct evidence sustains the culpability of the accused beyond

reasonable doubt. 24 In this case, the identity of appellant is not in question. He himself admitted having taken Yvonne to Maco Central Elementary School. Third Issue: Kidnapping or Coercion? Appellant contends that the prosecution failed to prove one essential element of kidnapping — the fact of detention or the deprivation of liberty. The solicitor general counters that deprivation of liberty is not limited to imprisoning or placing the victim in an enclosure. Citing People vs. Crisostomo, 25 he argues:
(T)he act proven in the record constitutes (kidnapping). It is no argument against this conclusion that the accused deprived the offended party of her liberty without placing her in an inclosure; because illegal detention, as defined and punished in our Code, may consist not only in imprisoning a person but also in detaining her or depriving her in any manner of her liberty. 26

We agree with appellant's contention this time. Under Article 267 of the Revised Penal Code, 27 the elements of kidnapping are as follows:
1. That the offender is a private individual. 2. That he kidnaps or detains another, or in any other manner deprives the latter of his liberty. 3. That the act of detention or kidnapping must be illegal. 4. That in the commission of the offense, any of the following circumstances is present: 5. That the kidnapping or detention lasts for more than five (5) days; or 6. That it committed simulating public authority; or 7. That any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or 8. That the person kidnapped or detained is a minor, female, or a public officer.

The Spanish version of Article 267 of the Revised Penal Code uses the terms "lockup" (encerrar) rather than "kidnap" (secuestrar or raptar). Lockup is included in the broader term of "detention," which refers not only to the placing of a person in an enclosure which he cannot leave, but also to any other deprivation of liberty which does not necessarily involve locking up. 28 Likewise, the Revised Penal Code was originally approved and enacted in Spanish. Consequently, the Spanish text is controlling in cases of conflict with the English version, as provided in Section 15 of the Revised Administrative Code. 29

A review of the events as narrated by the prosecution witnesses ineluctably shows the absence of "locking up." Victim Yvonne Traya testified: 30
Q And after that what happened next? A When Auntie Bebeth went inside her house she was already bringing her child and bringing with her candle. And Arnulfo Astorga told me that we will buy candy, sir. Q And after that? A And while I was not answering the question he immediately grabbed me. xxx xxx xxx Q And after that, after he held your hand, what did he do next? A He placed his hands on my shoulder and also covering [sic] my mouth. xxx xxx xxx Q And after that what did he do next? A He brought me to the school. Q What school did Boy Astorga bring you? What is the name of the school? A Maco Central Elementary School. Q How far is Maco Central Elementary School from your house? A A little bit near. Q When Boy Astorga brought you to school, was it dark? A Yes, sir. Q Exactly where in Maco Elementary School did Boy Astorga bring you? A Inside the gate, sir. Q And once inside the gate what did he do to you? A We were going around the school? xxx xxx xxx Q Do you know why you were going around the school?

A Yes, sir. Q Why, what did he do? A We were going around and when he saw that there is no person in the gate we passed at that gate. Q And where did he go after passing that gate? A Towards Lupon-lupon, sir. xxx xxx xxx Q What about you, did you talk to him? A I asked him where we were going and he told me that we are going home and I told him that this is not the way to our house, and we did not pass this way. (Witness gesturing a certain direction). Q And so when you said that that is not the way, when you said that is not the way because our house is towards Binuangan. . . By the way, you said you were going to Lupon-lupon, do you know to what direction is going to Lupon-lupon, to what place is Lupon-lupon going to? A Yes, sir. Q Where? A Going to my place. Q Do you know the place where it was going? What is that place? A On the road going to Tagum. Q Now, what, about your house, where is it going? A To Binuangan. Q And so when you . . . what did he do next when you said that is not the place going to your house? A We continued walking and he also placed his hands on my shoulder and dragged me, sir. Q What about you, what did you do when he was dragging you? A I was crying, sir. Q Did you say any word to him when you were crying?

A Yes, I told him that we are going home. Q And what did Boy Astorga say? A He told me that we will be going home, and told me not to make any noise because if I will make any noise we will be lost on our way. Q And so, what did you do? A I continued crying, sir. Q And after that, what happened? A We continued walking and we met a person and he asked Boy Astorga where we are going, sir. Q What did that man ask Boy Astorga? A The man asked Boy Astorga where are you going, and Boy Astorga answered, to Binuangan, but the man continued to say that this way is going to Tagum and not to Binuangan any more. Q What else did the man ask, if any? A I further said that we will already leave, and we will be the ones to go to Binuangan, and after that, Boy Astorga put me down because he urinated. So, at that instance, I ran, but, after he urinated, he already took hold of me not to run any more because there is a ghost. Q When you said you ran away after Boy Astorga left you when he urinated, where did you run? A Towards Binuangan, sir. Q Towards the direction of your house? A Yes, sir. Q And you were overtaken again by Boy Astorga? A Yes, sir. Q What did he do to you when you were overtaken by Boy Astorga? A He took hold of me again and he told me, he threatened me that there is [sic] a red eyes but I answered him that is [sic] not a red eyes of the ghost but that is a light coming from the vehicle. Q Now, what happened next? A He placed a necklace on me, sir.

xxx xxx xxx A He was dragging me and I was crying when he was dragging me. Q While you were being dragged did you make any plea to him? A Yes, I told him that I will go home. Q And what did he say? A He said that we will go home but I know [sic] that place we are [sic] heading to is [sic] not a way to our home but it is [sic] the opposite. Q So, what happened next? A He continued dragging me and after that we met plenty of persons and I shouted for help and at that instance, he slapped my mouth and after a few steps he already carried me. xxx xxx xxx A He continued walking and I also continued crying and I told him that I want to go home and he told me that we are heading towards home, but I told him that the way we are going to is not the way to our house. Q By the way, when you shouted [for] help, was it loud? A Yes, sir. Q So, what happened next? A He continued running and he stopped several vehicles but they did not stop, so, we just continued walking. Q After that, what happened next? A He moved closer to the banana plants. He looked back and he saw that persons were already chasing him and after that he carried me and ran.

From the foregoing, it is clear that the appellant and the victim were constantly on the move. They went to Maco Elementary School and strolled on the school grounds. When nobody was at the Luponlupon bridge, appellant took the victim to the highway leading to Tagum, Davao. At that time, Yvonne pleaded with appellant that she really wanted to go home to Binuangan, but appellant ignored her pleas and continued walking her toward the wrong direction. Later on, the group of Witness Arnel Fabila spotted them. Appellant Astorga carried the victim and ran, but Fabila's group chased and caught up with them.

This narration does not adequately establish actual confinement or restraint of the victim, which is the primary element of kidnapping. 31 Appellant's apparent intention was to take Yvonne against her will towards the direction of Tagum. Appellant's plan did not materialize, however, because Fabila's group chanced upon them. The evidence does not show that appellant wanted to detain Yvonne; much less, that he actually detained her. Appellant's forcible dragging of Yvonne to a place only he knew cannot be said to be an actual confinement or restriction on the person of Yvonne. There was no "lockup." Accordingly, appellant cannot be convicted of kidnapping under Article 267 of the Revised Penal Code. Rather, the felony committed in this case is grave coercion under Article 286 of the same code. Grave coercion or coaccion grave has three elements: (a) that any person is prevented by another from doing something not prohibited by law, or compelled to do something against his or her will, be it right or wrong; (b) that the prevention or compulsion is effected by violence, either by material force or such a display of it as would produce intimidation and, consequently, control over the will of the offended party; and (c) that the person who restrains the will and liberty of another has no right to do so or, in other words, that the restraint is not made under authority of a law or in the exercise of any lawful right. 32 When appellant forcibly dragged and slapped Yvonne, he took away her right to go home to Binuangan. Appellant presented no justification for preventing Yvonne from going home, and we cannot find any. The present case should be distinguished from People vs. Rosemarie de la Cruz. 33 Here, Appellant Astorga tricked Yvonne to go with him by telling her that they were going to buy candy. When Yvonne recognized the deception, she demanded that she be brought home, but appellant refused and instead dragged her toward the opposite direction against her will. While it is unclear whether Appellant Astorga intended to detain or "lock up" Yvonne, there is no question that he forced her to go with him against her will. In Rosemarie de la Cruz, Victim Whiazel voluntarily went with accused. Furthermore, the accused in that case failed to consummate the crime of kidnapping because of the timely intervention of the victim's neighbor. Thus, the Court held in that case: 34
In a prosecution for kidnapping, the intent of the accused to deprive the victim of the latter's liberty, in any manner, needs to be established by indubitable proof (People vs. Puno, 219 SCRA 85 [1993]). The acts held by the trial court, and maintained by the People, as consummating the crime of kidnapping in this case are those when accusedappellant held the victim's hand and refused to let go when the victim asked to go over to her neighbor, who by then already saw what was happening. This happened for only a very brief span of time and the evidentiary record shows that there were a good number of people present at that time, that a guard was stationed at the gate, and that there was at least a teacher nearby. The child could have just as easily shouted for help. While it does not take much to scare the wits out of a small child like Whiazel, under the attendant circumstances, we cannot say with certainty that she was indeed deprived of her liberty. It must further be noted that up to that brief moment when Cecilia saw them, and the child asked to be let go, the victim had gone with accused-appellant voluntarily. Without any further act reinforcing the inference that the victim may have been denied her liberty, even taking cognizance of her minority, the Court hesitates to find that

kidnapping in the case at bar was consummated. While it is a well-entrenched rule that factual findings of trial courts, especially when they concern the appreciation of testimony of witnesses, are accorded great respect, by exception, when the judgment is based on a misapprehension of facts, as we perceive in the case at bar, the Court may choose to substitute its own findings (People vs. Padua, 215 SCRA 266 [1992]).

The Information, dated March 24, 1992, filed against Astorga contains sufficient allegations constituting grave coercion, the elements of which were sufficiently proved by the prosecution. Hence, a conviction for said crime is appropriate under Section 4, Rule 120 of the 1988 Rules on Criminal Procedure:
Sec. 4. Judgment in case of variance between allegation and proof — When there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offenses as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved.

At the time the felony was committed on December 29, 1991, the penalty imposed by law for grave coercion was arresto mayor and a fine not exceeding five hundred pesos. 35 The Indeterminate Sentence Law does not apply here because the maximum penalty does not exceed one year. 36 However, appellant has been imprisoned for more than six (6) months. He has more than served the penalty imposable for such an offense. 37 WHEREFORE, the appeal is hereby PARTIALLY GRANTED. Appellant is CONVICTED only of grave coercion and is sentenced to six (6) months of arresto mayor. Unless he is being detained for any other valid cause, his IMMEDIATE RELEASE is herewith ordered, considering that he has more than served the maximum penalty imposable upon him. That director of prisons is DIRECTED to inform this Court, within five days from receipt of this Decision, of the actual date the appellant is released. No costs. SO ORDERED. Narvasa, C.J., Romero, Melo and Francisco, JJ., concur. Footnotes
1 Penned by Judge Marcial L. Fernandez. 2 Original Records, p. 1; rollo, p. 5. 3 Atty. Fortunato M. Maranian; records, p. 34. The Public Attorney's Office, however, filed Appellant's Brief before this Court. 4 Records, pp. 60-66; rollo, pp. 13-19. 5 Ibid., p. 66; rollo, p. 19.

6 The case was deemed submitted for resolution upon receipt by the Court on January 16, 1996 of the letter of the Bureau of Corrections dated January 11, 1996 confirming the confinement of the appellant at the New Bilibid Prisons. 7 Decision, pp. 1-3; rollo, pp. 13-15. 8 At pp. 5-7; rollo, pp. 40-42. 9 Decision, pp. 3-7; rollo, pp. 15-19. 10 Appellant's Brief, p. 1; rollo, p. 36; original text in upper case. 11 Ibid., pp. 8-9; rollo, pp. 43-44. 12 People v. De Leon, 248 SCRA 609, 619, September 28, 1995; People vs. Buka, 205 SCRA 567, 583, January 30, 1992. 13 TSN, March 16, 1993, p. 5. 14 TSN, March 10, 1993, p. 5. 15 People vs. Nicolas, 241 SCRA 67, 74, February 1, 1995 citing People vs. Payumo, G.R. No. 81761, July 2, 1990, 187 SCRA 64; People vs. Irenea, 164 SCRA 121; August 5, 1988; People vs. Cariño, 165 SCRA 664, September 26, 1988; People vs. De Gracia, 18 SCRA 197, September 29, 1966; People vs. Muñoz, 166 SCRA 730, July 29, 1988; Cordial vs. People, 166 SCRA 17, September 27, 1988. 16 People vs. Padilla, 242 SCRA 629, 642, March 23, 1995 citing People vs. Lase, 219 SCRA 584 [1993]; People vs. Jumamoy, 221 SCRA 333, April 7, 1993; People vs. Ducay, 225 SCRA 1, August 2, 1993; People vs. De Guzman, 188 SCRA 407, 411 August 7, 1990; People vs. Gadiana, 195 SCRA 211, March 13, 1991; People vs. Madriaga, 211 SCRA 698, 712, July 23, 1992; People vs. Custodio, 197 SCRA 538, May 27, 1991; People vs. Cabato, 160 SCRA 98, 107, April 15, 1988; People vs. Salufrania, 159 SCRA 401, 416, March 30, 1988. 17 TSN, March 11, 1993, p. 10. 18 Appellant's Brief, pp. 11-12; rollo, pp. 46-47. 19 People vs. Dabon, 216 SCRA 656, 667, December 16, 1992; People vs. Banayo, 195 SCRA 543, March 22, 1991; People vs. Yambao, 193 SCRA 571, February 6, 1991; People vs. Santiago, 197 SCRA 556, May 28, 1991; People vs. Canciller, 206 SCRA 827, 831, March 4, 1992; People vs. Baysa, 172 SCRA 706, April 25, 1989. 20 TSN, March 16, 1993, pp. 20-21. 21 Decision, pp. 6-7; rollo, pp. 18-19. 22 People vs. Ramos, 240 SCRA 191, 201, January 18, 1995; People vs. Dolar, et al., 231 SCRA 414, 422-423, March 24, 1994; People vs. De Guzman, 216 SCRA 754, 759760, December 21, 1992.

23 Appellant's Brief, p. 13; rollo, p. 48. 24 People vs. Sta. Agata, 244 SCRA 677, 684, June 1, 1995 citing People vs. Cayetano, 223 SCRA 770; People vs. Magpayo, 226 SCRA 13; People vs. Joya, 227 SCRA 9. 25 46 Phil. 775 (1923). 26 Appellee's Brief, p. 13; rollo, p. 18. 27 Prior to its amendment by Section 8, RA No. 7659, effective December 31, 1993. The crime happened in 1991. 28 Aquino, The Revised Penal Code, 1988 ed., Vol. III, pp. 1-2 citing Groizard and Cuello Calon. 29 Aquino, The Revised Penal Code, 1988 ed., Vol. I, pp. 3-4 citing People vs. Manaba, 58 Phil. 665; People vs. Mesias, 65 Phil. 267; People vs. Yabut, 58 Phil. 479; People vs. Balubar, 60 Phil. 698; People vs. Abilong, 82 Phil. 172; Cadiz, 1 ACR and other cases; Reyes, The Revised Penal Code, Criminal Law, Twelfth Edition, 1981, Book One, pp. 1718. 30 TSN, March 16, 1993, pp. 10-18. 31 People vs. Godoy, 250 SCRA 676, 728, December 6, 1995; People vs. Cua, 232 SCRA 507, 516, May 25, 1994; People vs. Puno, 219 SCRA 85, 93-94; February 17, 1993; United States vs. Ancheta, 1 Phil. 165 (1902); United States vs. De Leon, 1 Phil. 163 (1902); People vs. Remalate, 92 Phil. 48 (1952); People vs. Guerrero, 103 Phil. 1136 (1958); People vs. Ong, et al., 62 SCRA 174, January 30, 1975; People vs. Ty Sui Wong, et al., 83 SCRA 125, May 12, 1978; People vs. Jimenez, et al., 105 SCRA 721, July 24, 1981. 32 Aquino, supra, pp. 66-67. 33 G.R. No. 120988, August 11, 1997, per Melo, J. 34 At pp. 7-8. 35 Article 286 was amended by R.A. No. 7890 on February 20, 1995. 36 Section 2 of Indeterminate Sentence Law (Act No. 4103 as amended by Act No. 4225). 37 Article 29 of the Revised Penal Code pertinently provides: Art. 29. Period of preventive imprisonment deducted from term of imprisonment. — Offenders or accused who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases:

1. When they are recidivists, or have been convicted previously twice or more times of any crime; and 2. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily. xxx xxx xxx Whenever an accused has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. (As amended by RA No. 6127, and further amended by EO No. 214, prom. July 10, 1987).

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 121211 April 30, 2003

PEOPLE OF THE PHILIPPINES, appellee, vs. RONETO DEGAMO alias "Roy", appellant. PER CURIAM: Before us for automatic review is a decision rendered by the Regional Trial Court (Branch 12) of Ormoc City imposing the supreme penalty of death on appellant Roneto Degamo alias "Roy" for the crime of rape with the use of a deadly weapon and the aggravating circumstances of dwelling and nighttime. On October 4, 1994, a complaint was filed before the trial court charging appellant with the crime of rape to which, upon arraignment, pleaded not guilty. On January 17, 1995, before the start of the trial proper, the court a quo allowed the complaint to be amended to include the allegation that by reason of the incident of rape, the victim has become insane, 1 to wit: The undersigned Prosecutor accuses RONETO DEGAMO alias Roy of the crime of RAPE committed as follows: That on or about the 1st day of October 1994 at around 1:00 o'clock in the early morning, in Brgy. Punta, Ormoc City, and within the jurisdiction of this Honorable Court, the above-named accused RONETO DEGAMO alias Roy, being then armed with a bladed weapon, by means of violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant herein ELLEN VERTUDAZO, against her will and in her own house. All contrary to law and with the aggravating circumstances that the said offense was committed in the dwelling of the offended party, the latter not having given provocation for the offense; and that by reason of the incident of rape, the victim become insane. In violation of Article 335, Revised Penal Code.

Upon re-arraignment, appellant pleaded not guilty to the charge.2 Trial ensued. As borne out by its evidence, the following is the version of the prosecution: Complainant Ellen Vertudazo and her children were living in a rented apartment at Barangay Punta, Ormoc City. She and her family just moved into the neighborhood on July 15, 1994.3 She was not personally acquainted with appellant although she knew him to be one of their neighbors. On August 2, 1994, her brother-in-law, Venancio, came from the province for a visit and stayed in her house. It was during this time that appellant became acquainted with Venancio. On September 30, 1994, appellant invited Venancio for a night out. Venancio left complainant's house immediately after supper, telling her that he would return to the house. Later that night, or on October 1, 1994, at around 1:00 in the morning, complainant heard someone calling her name. She unwittingly opened the door thinking that Venancio had returned.4 Thereupon, appellant forced his way inside the house and poked a knife at complainant's neck. She tried to move away from appellant but he grabbed her and told her that he would kill her if she will not accede to his demands. Appellant then told her to put off the light, strip off her clothes and not make any noise. Overwhelmed with fear, complainant meekly followed the orders of appellant who proceeded to kiss her lips, breasts and all parts of her body. He laid her on the concrete floor and succeeded in having carnal knowledge of her. Appellant was holding the knife while having sexual intercourse with complainant. He warned her not to tell anyone about the incident, then he left. Complainant went upstairs and just cried. In the morning of the same day, complainant reported the incident to the Barangay Captain and to the police. She submitted herself for medical examination at the health center on October 3, 1994. Upon learning of the incident, her husband, who was working in Saudi Arabia, immediately came home.5 Due to her traumatic experience at the hands of appellant, complainant underwent psychiatric treatment in Tacloban City.6 She was first brought to Dr. Gemelina Cerro-Go7 for treatment on November 8, 1994. Dr. Go found her case of psychosis already acute and chronic. Complainant was talking to herself and each time Dr. Go would ask her a question, she repeatedly said, "Gi padlock ang akong hunahuna." Dr. Go also observed that complainant talked irrelevantly, had lost association and had severe destructive inclinations. She did not listen to anybody and just kept staring outside the window. Dr. Go concluded that complainant was suffering from psychosis, a form of mental disorder, induced by an overwhelming trauma secondary to rape. Complainant visited Dr. Go again on December 15, 1994 and on January 3, 1995. Dr. Go prescribed anti-psychotic drugs to complainant who, after three weeks of treatment, showed signs of improvement. Complainant could already sleep although she has not yet regained her normal or regular sleeping pattern. Her delusions and hallucinations were not as serious anymore, but she was still out of contact. She could not function normally as a wife and as a mother. Since complainant still suffered from psychosis, Dr. Go administered to her a dose of low acting tranquilizer injections, anti-depressants and short acting oral tablets.8 Dr. Go clarified that psychosis is usually the technical term for insanity.9 She declared that complainant has not fully recovered from psychosis and that without continuous treatment, complainant would regress and she would completely lose all aspects of functioning.10

Appellant's version is based on his lone testimony. He admits that he and complainant were neighbors but claims that they were lovers. He further testified that he met complainant for the first time during the last week of August 1994 at a neighborhood store. Complainant readily agreed when he asked her if it would be possible for them to get to know each other better. Later, at around 8:00 o'clock in the evening, he and complainant had a conversation in front of the gate of her apartment. He learned from her that her husband was working abroad. When he told the complainant that he wanted to court her, complainant said, "It's up to you." Encouraged by complainant's reply, he returned at midnight and knocked at the gate of her apartment. Complainant peeped through the jalousies and went down to the first floor. She opened the gate and let him in. Upon having entered the house, he sat at the sofa, placed his hands on the shoulder of complainant, who by then had already sat beside him, and touched her ears. She did nothing to repel appellant's advances but just looked up. When asked to remove her shirt, complainant willingly obliged. He proceeded to kiss complainant all over. She removed her short pants when appellant asked her to do so. He then removed his shirt and continued to kiss complainant's breasts, chest and thighs. He wanted that they move upstairs but she demurred saying that her children were upstairs. Complainant instead suggested that they move to the cement floor since the sofa was noisy. He got aroused after transferring to the floor, so he removed his short pants and briefs. Complainant likewise removed her underwear. They had sexual intercourse without him having to use force on complainant. Thereafter, they dressed up. He left the place at 1:00 in the morning. They repeated the same act on four more occasions usually at 12:00 midnight. He did not have to use force, much less threaten complainant with a knife when they had sexual intercourse on October 1, 1994.11 On May 22, 1995, the trial court rendered a decision, the dispositive portion of which reads as follows: WHEREFORE, decision is hereby rendered finding the accused RONETO DEGAMO, a.k.a. Roy, guilty beyond reasonable doubt of rape defined and penalized under paragraphs 2 and 3 of Article 335 of the Revised Penal Code, as amended by Republic Act 7659. Appreciating the aggravating circumstances of dwelling and nighttime with no mitigating circumstance to offset any of the two and pursuant to Article 63 of the Revised Penal Code, this court imposes upon the same Roneto Degamo, a.k.a. Roy, the extreme penalty of DEATH. Further, the same Roneto Degamo, a.k.a. Roy, is directed to indemnify Ellen Vertudazo the sum of THIRTY THOUSAND PESOS (P30,000.00) and to pay the costs. As the sentence imposed is death, the jail warden of Ormoc City is directed to immediately commit the person of Roneto Degamo, a.k.a. Roy, to the National Bilibid Prisons at Muntinlupa, Metro Manila while awaiting the review of this decision by the Supreme Court. SO ORDERED.12 Hence, this automatic review.

A discussion of certain procedural rules is in order before going into the merits of the case. It has not escaped our notice that the complaint for rape with use of a deadly weapon was amended after arraignment of appellant to include the allegation that the victim has become insane by reason or on the occasion of the rape. Although the penalty for rape with the use of a deadly weapon under the original Information is reclusion perpetua to death, the mandatory penalty of death is imposed where the victim has become insane by reason or on the occasion of rape as alleged in the Amended Information. Under Section 14, Rule 110 of the Rules of Court, an amendment after the plea of the accused is permitted only as to matters of form, provided: (i) leave of court is obtained; and (ii) such amendment is not prejudicial to the rights of the accused. A substantial amendment is not permitted after the accused had already been arraigned. In Teehankee, Jr. vs. Madayag,13 we had occasion to state that a substantial amendment consists of recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. The following were held to be merely formal amendments: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; (2) an amendment which does not charge another offense different or distinct from that charged in the original one; (3) additional allegations which do not alter the prosecution's theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; and (4) amendment, which does not adversely affect any substantial right of the accused, such as his right to invoke prescription. We further elucidated in the Teehankee case that the test as to whether an amendment is only of form and an accused is not prejudiced by such amendment is whether or not a defense under the information as it originally stood would be equally available after the amendment is made, and whether or not any evidence which the accused might have would be equally applicable to the information in one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance.14 Tested against the foregoing guidelines, the subject amendment is clearly not one of substance as it falls under all of the formal amendments enumerated in the Teehankee case. The insertion of the phrase that the victim has become insane by reason or on occasion of the rape in the Information merely raised the penalty that may be imposed in case of conviction and does not charge another offense different from that charged in the original Information. Whatever defense appellant may have raised under the original information for rape committed with a deadly weapon equally applies to rape committed with a deadly weapon where the victim has become insane by reason or on occasion of the rape. The amendment did not adversely affect any substantial right of appellant. Therefore, the trial court correctly allowed the amendment. Furthermore, it is also settled that amendment of an information to charge a more serious offense is permissible and does not constitute double jeopardy even where the accused was already arraigned and pleaded not guilty to the charge, where the basis of the more serious charge did not exist, but comes as a subsequent event.15 In this case the basis for the amendment was the psychosis of complainant which was determined after the filing of the information.

Unlike other qualifying circumstances, insanity of the victim by reason or on occasion of the rape may not be readily discerned right after the commission of the crime. The resultant insanity of the victim could be easily mistaken as a mere initial reaction, such as shock, to the incident. In other cases, it may take some weeks or even months for the insanity of the victim to manifest. Consequently, a psychiatrist would need some time with the victim before concluding that she is indeed suffering from insanity as a result of rape. Under these circumstances, the subsequent diagnosis of insanity by reason or on occasion of the rape is akin to a supervening event; in which case, the corresponding amendment of the information may be allowed, as correctly done by the trial court. Besides, the trial proper started only after appellant had been rearraigned and appellant never objected to the amendment at any stage of the proceedings. It is basic that objection to the amendment of an information or complaint must be raised at the time the amendment is made, otherwise, silence would be deemed a consent to said amendment. It is a time-honored doctrine that objection to the amendment must be seasonably made, for when the trial was had upon an information substituted for the complaint or information without any objection by the defense, the defect is deemed waived. It cannot be raised for the first time on appeal.16 We shall now proceed to the merits of the case. The trial court gave credence to the testimony of victim Ellen Vertudazo that appellant raped her with the use of a deadly weapon. It held that she would not have agreed to endure the indignities of physical examination of her private parts and the embarrassment of a public trial were it not for a desire to seek justice for herself. Moreover, the trial court found that other than the selfserving testimony of appellant, no evidence was introduced to support his claim that he and complainant were having an illicit love affair; and that there was no ill motive on the part of complainant for imputing the serious charge of rape against appellant. In his Appellant's Brief, appellant raises a single assignment of error, to wit: "The trial court erred in finding the accused guilty beyond reasonable doubt of the crime of rape", in support of which, he argues: 1. The fact that at first complainant said she opened the door for the accused and later denied this, is not an inconsequential contradiction. 2. Complainant had not become insane by reason of the rape because she gave intelligent answers on the witness stand. We find the appeal without merit. It is doctrinal that the evaluation of testimonial evidence by trial courts is accorded great respect precisely because of its chance to observe first-hand the demeanor of the witnesses, a matter which is important in determining whether what has been testified to may be taken to be the truth or falsehood.17 Appellant failed to show any cogent reason for us to disturb the findings of the trial court.

Complainant and her family had just moved in the neighborhood a little more than two months before she was raped. Prior to the incident of rape, she only knew appellant as one of her neighbors but did not personally know him.18 Appellant would have us to believe that hours after a chance meeting at a nearby sari-sari store, complainant, a married woman with children, was so morally debased as to readily accede to his sexual advances at her own apartment while her children were asleep. Like the trial court, we find it unlikely for a married woman with children who had just moved into the neighborhood to place herself on public trial for rape where she would be subjected to suspicion, morbid curiosity, malicious imputations and close scrutiny of her personal life and character, not to speak of the humiliation and scandal she and her family would suffer, if she were merely concocting her charge against appellant and would not be able to prove it in court. Appellant insists that the complaint was prompted by complainant's fear that her husband's relatives might discover her infidelity. We are not convinced. Aside from the bare assertion of appellant that he and complainant were having an affair, he failed to present corroborative evidence of any kind such as love notes, mementos or pictures19 or the testimonies of neighbors, relatives or friends. There is no showing that the relatives of complainant's husband even suspected that she was having an illicit affair. Further, complainant not only filed the charges of rape immediately after the incident, she also submitted herself for medical examination and sought psychiatric treatment due to the trauma caused by her ordeal. If she and appellant were indeed lovers, there would have been no reason for her to be so traumatized by their sexual liaisons and undergo psychiatric treatment. Worth noting too is the fact that there is no evidence nor even an indication that complainant was impelled by an improper motive in making the accusation against appellant. The absence of any improper motive of complainant to impute such a serious offense against appellant persuades us that complainant filed the rape charge against appellant for no other reason than to seek justice for the bestial deed committed against her. Settled is the doctrine that when there is no evidence to show any dubious reason or improper motive why a prosecution witness should testify falsely against the accused or implicate him in a serious offense, the testimony deserves full faith and credit.20 Appellant presses that the trial court should have taken note that complainant gave contradicting testimonies as she had earlier testified that she opened the door to appellant but later denied this on cross examination; and that complainant must have perceived the serious implications of her earlier testimony so she deliberately changed her testimony. After a review of the testimony of complainant, we find no such contradictions. Complainant clearly testified that she opened the door when she heard someone calling her name to open it because she thought that her brother-in-law, Venancio, who left the house earlier at the invitation of appellant, had already come home for the night. It was too late when she realized that it was appellant alone who had called on her to open the door.21 Appellant further argues that the qualifying circumstance of the use of a deadly weapon in the commission of the crime should not be considered since the weapon was never presented as evidence in court. We are not persuaded.

It is settled that the non-presentation of the weapon used in the commission of rape is not essential to the conviction of the accused.22 The testimony of the rape victim that appellant was armed with a deadly weapon when he committed the crime is sufficient to establish that fact for so long as the victim is credible.23 It must be stressed that in rape, it is usually only the victim who can attest to its occurrence and that is why courts subject the testimony of the alleged victims to strict scrutiny before relying on it for the conviction of the accused.24 In the present case, complainant positively described how appellant, armed with a knife, threatened and raped her. Appellant failed to show any compelling reason for us to brush aside the probative weight given by the trial court to the testimony of herein complainant. Absent any showing that certain facts of substance and significance have been plainly overlooked or that the trial court's findings are clearly arbitrary, the conclusions reached by the trial court must be respected and the judgment rendered should be affirmed.25 We take note that Dr. Ernesto Calipayan conducted a physical examination of the victim on October 3, 1994, and he issued a Medical Certificate wherein it is stated that the "entire vulva and vestibule are normally looking and showed no signs of traumatic injury" and that a microscopic examination of the cervical and vaginal smear showed that it is negative for sperm cells.26 Said findings however, do not demolish the positive testimony of the victim that she had been raped by appellant. The absence of traumatic injury on her vulva and vestibule is not a strong proof that appellant did not use force on the victim who submitted to the dastardly act of appellant because of the knife wielded by him. It is within the realm of logic, reason and human experience that the victim, who had given birth to two children, because of the fear for her life, may not have exerted that degree of resistance that would have been needed to produce traumatic injury on her private parts. Moreover, the fact that no sperm was found in the cervical and vaginal smear is satisfactorily explained by Dr. Calipayan that human spermatozoa will not survive between forty-eight to seventy-two hours.27 In complainant's case, she was examined on October 3, 1994, or more than forty-eight hours after she was raped on October 1, 1994 between 12:00 midnight and 1:00 in the morning. It is a settled rule that proof beyond reasonable doubt does not connote absolute certainty, it means that degree of proof which, after an investigation of the whole record, produces moral certainty in an unprejudiced mind of the accused's culpability.28 It signifies such proof that convinces and satisfies the reason and conscience of those who are to act upon it that appellant is guilty of the crime charged.29 In the case at bar, there is no doubt that appellant had committed the crime of rape. Appellant failed to show that the trial court committed any reversible error in finding him guilty beyond reasonable doubt of raping complainant with the use of a deadly weapon. Under Article 335 of the Revised Penal Code, as amended, whenever the crime of rape is committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death.

In meting out the penalty of death, the trial court considered dwelling and nighttime as aggravating circumstances in the commission of the crime of rape committed with a deadly weapon. The trial court should not have considered the aggravating circumstance of nighttime against appellant. Not only was it not alleged as an aggravating circumstance in the Information, but also, there is no clear proof that appellant deliberately took advantage of the cover of darkness to facilitate the commission of the crime. Complainant herself even testified that the flourescent light at the ground floor of the house was not switched off until after appellant had already entered the house and told her to turn it off.30 However, the trial court did not err in imposing the penalty of death on appellant. It is established by the prosecution that the crime of rape with the use of a deadly weapon was committed in the dwelling of complainant. Dwelling is alleged in the Information and was unrefuted by appellant. Under Article 63 of the Revised Penal Code, in cases where the law provides a penalty composed of two indivisible penalties, the presence of an aggravating circumstance warrants the imposition of the greater penalty which is death. We now turn to the issue as to whether or not the qualifying circumstance of insanity of the victim by reason or on occasion of the rape, committed against complainant should likewise be considered in the imposition of the proper penalty. Republic Act No. 765931 expressly provides that when by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. The trial court observes: There is no jurisprudence yet, however, which construed the provision "has become insane." Though there is no doubt that the death penalty shall be imposed if the victim becomes permanently insane, there is no ruling yet whether temporary insanity by reason of rape (when the victim responded to psychiatric treatment as in the present case) still falls within the purview of the same provision.32 For the guidance of the Bench and the Bar, we deem it proper to resolve what should be the correct construction of the provision "has become insane" by reason or on occasion of the rape committed. It is a hornbook doctrine in statutory construction that it is the duty of the court in construing a law to determine legislative intention from its language.33 The history of events that transpired during the process of enacting a law, from its introduction in the legislature to its final validation has generally been the first extrinsic aid to which courts turn to construe an ambiguous act.34 Republic Act No. 263235 is the first law that introduced the qualifying circumstance of insanity by reason or on occasion of rape, amending Article 335 of the Revised Penal Code. An examination of the deliberation of the lawmakers in enacting R.A. No. 2632, convinces us that the degree of insanity, whether permanent or temporary, is not relevant in considering the same

as a qualifying circumstance for as long as the victim has become insane by reason or on occasion of the rape. Congressional records36 disclose that when Senator Pedro Sabido first broached the possibility of regarding insanity as a qualifying circumstance in rape, he described it as "perpetual incapacity or insanity". The interpellations on Senate Bill No. 21 which later evolved into R.A. No. 2632 did not include the rationale for the inclusion of the victim's insanity by reason or occasion of rape as a qualifying circumstance. Neither did the legislators discuss the degree of insanity of the victim by reason or on occasion of rape for it to be considered as a qualifying circumstance. After the interpellations on the other proposed amendments to Senate Bill No. 21, the Senate session was suspended. Upon resumption of the session, the legislators agreed, among other matters, that the provision, "when by reason or on occasion of rape, the victim has become insane, the penalty of reclusion perpetua shall be likewise reclusion perpetua", be incorporated in the law.37 Thus, Article 335, as amended by R.A. No. 2632, read as follows: Art. 335. When and how rape is committed. Penalties. — Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. The crime of rape shall be punished by reclusion temporal. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be imposed in its maximum period. When by reason or on the occasion of rape, a homicide is committed the penalty shall be reclusion perpetua to death. When the rape is frustrated or attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua. When by reason or on the occasion of the rape the victim has become insane, the penalty shall be likewise reclusion perpetua. [Emphasis supplied] Significantly, the words "perpetual" and "incapacity" were not retained by the legislators. They merely used the word "insanity". It is well-established in legal hermeneutics that in interpreting a statute, care should be taken that every part or word thereof be given effect since the lawmaking body is presumed to know the meaning of the words employed in the statute and to have used them advisedly.38 Applied inversely, the courts should not interject a condition, make a distinction, or impose any limitation where the legislators did not opt to do so.

Thus, it is without any doubt that when the legislators included the victim's resultant insanity as a qualifying circumstance in rape cases, it did not intend or impose as a condition that the insanity must be of permanent nature, or that it should have been manifested by the victim before the filing of the complaint of information, before, during or after trial. Otherwise, it would have been so expressly stated, especially so, that Senator Sabido had initially suggested "perpetual incapacity or insanity." As the Congressional records reveal, the legislators chose not to include the word "perpetual" in the bill enacted into law. Article 335 of the Revised Penal Code, as amended by R.A. No. 2632, was further amended by Republic Act No. 4111 whereby the penalty is increased to death "when by reason or on the occasion of rape, the victim has become insane". R.A. No. 7659 which took effect on December 31, 1993, merely reiterated the imposition of death penalty "when by reason or on the occasion of the rape, the victim has become insane." In the enactment of both R.A. Nos. 4111 and 7659, the legislators merely reiterated or reproduced the provision on insanity under R.A. No. 2632 except as to the imposable penalty, without making any distinction as to the degree of insanity that may or may not be considered as a qualifying circumstance. Consequently, the fact that the victim during trial or while the case is pending, has returned to normal behavior after undergoing treatment, does not exculpate the appellant from the penalty of death. It is inherently difficult for us to set the parameters or fix a hard and fast rule as to when insanity may be considered a qualifying circumstance. Whether the rape resulted in the insanity of the victim shall have to be resolved by the courts on a case to case basis. Suffice it to be stated that the resultant insanity of the victim in rape cases must at least be manifest at the time of filing the complaint or information or at any time thereafter before judgment is rendered, in which case, the information may accordingly be amended.39 The reason for this is simple. Rape is always a traumatic experience for the victim who necessarily suffers untold psychological and emotional damage. Like victims of other crimes, rape victims have different ways of coping with the trauma brought about by the crime. While one may exhibit shock or depression immediately after the crime and recover thereafter, another might require a longer period to exhibit these same symptoms and not return to normalcy. Certainly, one can never calculate or measure the depths of the psychological and emotional damage that rape inflicts on the victim. In the case at bar, Dr. Go had competently and convincingly testified that victim Ellen Vertudazo suffered psychosis or insanity from which she seems to have improved due to her treatment which treatment should be continuous and may last from six months to five years so that the victim may not suffer from regression; and that as of February 16, 1995, the date Dr. Go testified, complainant has not fully recovered from her psychosis.40 The qualifying circumstance of insanity had already attached notwithstanding the recovery of the victim from her illness. The penalty of death is imposable.

As to the damages awarded, the trial court erred in awarding the mere sum of P30,000.00 to complainant as civil indemnity. Complainant is entitled to P75,000.00 as civil indemnity in accordance with our established rulings in cases where the crime of rape is committed, qualified by any of the circumstances under which the death penalty is authorized by law.41 In the present case, the victim became insane by reason of the rape committed against her; and in the commission of rape with the use of a deadly weapon, the aggravating circumstance of dwelling is present. Actually, the trial court had two grounds for the imposition of death penalty. Complainant is likewise entitled to moral damages without need of further proof in the sum of P50,000.00.42 The fact that complainant has suffered the trauma of mental, physical and psychological sufferings which constitute the basis for moral damages is too obvious to still require the recital thereof at the trial by the victim since the court itself even assumes and acknowledges such agony on her part as a gauge of her credibility.43 In addition, complainant is entitled to the amount of P25,000.00 as and for exemplary damages44 considering the aggravating circumstance of dwelling; and to the amount of P25,000.00 by way of temperate damages45 in lieu of actual damages, considering that complainant had to undergo psychiatric treatment but was not able to present proof of the expenses she incurred in her treatment. Three members of the Court maintain their position that R.A. No. 7659, insofar as it prescribes the death penalty, is unconstitutional; however, they submit to the ruling of the Court, by majority vote, that the law is constitutional and that the death penalty should be imposed accordingly. WHEREFORE, the judgment of the lower court convicting appellant Roneto Degamo alias "Roy" of qualified rape and sentencing him to suffer the penalty of DEATH is AFFIRMED with the MODIFICATION that appellant is ordered to pay complainant Ellen Vertudazo the amounts of Seventy-Five Thousand Pesos (P75,000.00), as civil indemnity; Fifty Thousand Pesos (P50,000.00), as moral damages; Twenty-Five Thousand Pesos (P25,000.00) as exemplary damages; and Twenty-Five Thousand Pesos (P25,000.00) as temperate damages. Costs against appellant. Upon the finality of this decision and pursuant to Section 25 of R.A. No. 7659, amending Article 83 of the Revised Penal Code, let the records of this case be forthwith forwarded to the Office of the President of the Philippines for possible exercise of the pardoning power. SO ORDERED. Davide, Jr., C .J ., Bellosillo, Puno, Vitug, Panganiban, Quisumbing; Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ ., concur.

Footnotes

1

Id., pp. 21, 25 and 33. Id., pp. 31 and 33. TSN, January 24, 1995, pp. 9–10. Id., pp. 14 and 40. Id., pp. 10–20. Id., pp. 8, 20–23 and 50.

2

3

4

5

6

7

She finished her specialization in psychiatry at the University of the PhilippinesPhilippine General Hospital (UP-PGH) from 1975–1977 and has since handled thousands of psychiatric cases and appeared in court in a number of cases as an expert witness in the field of psychiatry; and, admitted by appellant as an expert witness, TSN, February 16, 1995, pp. 2–7.
8

Id., pp. 16–19. TSN, February 16, 1995, pp. 7 and 16. Id., pp. 19–21. TSN, April 4, 1995, pp. 17–70. Records, p. 163. 207 SCRA 135, 142 (1992). Ibid. Melo vs. People, 85 Phil. 766, 769–770 (1950); Teehankee case, supra. U.S. vs. Mabiral, 4 Phil. 308. People vs. Ramos, 330 SCRA 453, 458 (2000). TSN, January 24, 1995, p. 10.

9

10

11

12

13

14

15

16

17

18

19

People vs. Tismo, 204 SCRA 535, 554 (1991) citing People vs. Soterol, 140 SCRA 400, 405 (1985) and People vs. Hacbang, 164 SCRA 441, 449–450 (1988).
20

People vs. Ballenas, 330 SCRA 519, 534 (2000); People vs. Conde, 330 SCRA 645, 652 (2000).

21

TSN, January 24, 1995, pp. 36–37. People vs. Vitancur, 345 SCRA 414, 424 (2000). People vs. Travero, 276 SCRA 301, 313 (1997). Vitancur case, supra. Ibid. Exhibit "C", Records, p. 137. TSN, April 4, 1995, pp. 7–8. People vs. Mariano, 345 SCRA 1, 16 (2000). Ibid. TSN, January 24, 1995, p. 16, 30–31.

22

23

24

25

26

27

28

29

30

31

Entitled "An Act to Impose the Death Penalty on Certain Heinous Crimes amending for that purpose the Revised Penal Code as amended, Other Special Penal Laws, and for Other Purposes", effective December 31, 1993.
32

Rollo, p. 67. Republic vs. Court of Appeals, 299 SCRA 199, 270 (1998). Ibid.

33

34

35

An Act to Amend Article 335 of the Revised Penal Code (Re: Rape), effective June 18, 1960.
36

There was no discussion on the insanity amendment in the House of Representatives. Congressional Record, Vol. 1, No. 40, March 24, 1958, p. 573. Marsaman Manning Agency, Inc. vs. NLRC, 313 SCRA 88, 102 (1999). Melo vs. People, 85 Phil. 766, 769–770 (1950); Teehankee vs. Madayag, supra. TSN, February 16, 1995, pp. 18–21.

37

38

39

40

41

People vs. Escano, G.R. No. 140218–23, February 13, 2002; People vs. Perez, G.R. No. 142556, February 5, 2003.

42

People vs. Manlod, G.R. No. 142901–02, July 23, 2002. People vs. Prades, 293 SCRA 411, 430–431 [1998].

43

44

People vs. Villanueva, G.R. No. 146464–67, November 15, 2002; People vs. Barcelon, Jr., G.R. No. 144308, September 24, 2002.
45

People vs. Simon, G.R. No. 134121, March 6, 2003; People vs. Abrazaldo, G.R. No. 124392, February 7, 2003.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 108738 June 17, 1994 ROBERTO CRUZ, petitioner, vs. COURT OF APPEALS, PEOPLE OF THE PHILIPPINES, respondents. Arsenio N. Mercado for petitioner. The Solicitor General for the People of the Philippines.

KAPUNAN, J.: The sole issue to be resolved in the instant petition is whether or not petitioner is liable for violation of Batas Pambansa Bilang 22 for issuing a check knowing he does not have credit with drawee bank and thereafter claiming that the said check was not intended for circulation and negotiation, the same having been issued only to serve as mere evidence or memorandum of indebtedness. The relevant antecedents are as follows, viz: Complaining witness Andrea Mayor is a businesswoman engaged, among others, in granting interest-bearing loans and in rediscounting checks. 1 Sometime in 1987, she was introduced to herein petitioner, Roberto Cruz who at that time was engaged in the business of selling ready-to-wear clothes at the Pasay Commercial Center. 2 From then on, petitioner has been borrowing money from Mayor. 3 On March 15, 1989, petitioner borrowed from Andrea Mayor one hundred seventy six thousand pesos (P176,000.00). 4 On April 6, 1989, Mayor delivered the said amount to petitioner himself in the latter’s stall at the Pasay Commercial Center. Cruz, in turn, issued Premiere Bank Check No. 057848 postdated April 20, 1989 for same amount. 5 When the check matured, complaining witness presented it to the drawee bank for payment but the same was dishonored and returned for reason "account closed." When notified of the dishonor, petitioner promised to pay his obligation in cash. No payment was made, hence, an information for violation of Batas Pambansa Bilang 22 was filed against the petitioner. 6 Upon arraignment, petitioner entered a plea of not guilty. 7

At the pre-trial, petitioner admitted the existence of the check. 8 During trial, the prosecution presented two (2) witnesses, Andrea Mayor, herein complainant, and Marcelo Ladao, a representative of Premiere Development Bank. Andrea Mayor testified that she is a businesswoman engaged in the business, among others, of rediscounting checks and lending money at an interest of 3% to 5% monthly; that she came to know the accused Roberto Cruz through the latter’s sisters sometime in 1987; that the accused is engaged in the RTW business at the Pasay Commercial Center; that she rediscounted some of the checks of the accused in previous transactions as shown by Exhibits "C," "C-1" to "C-3," in the amounts of P20,000.00, P5,000.00, P9,000.00, and P5,000.00 respectively, which were personal checks issued by the accused for the sums he borrowed and which checks bounced when presented for payment but were paid in cash by the accused when the latter was notified of the dishonor. 9 Complaining witness Andrea Mayor further testified that on March 15, 1989, accused told her that he needed P176,000.00 and asked to be lent the said amount; that complainant gave the accused the said amount at the latter’s store at the Pasay City Commercial Center; that accused, in turn, issued a check 10 for the same amount; that the check was signed in her presence and she was told that accused might be able to pay before the due date on April 20, 1989; that the check was dishonored upon presentment by the drawee bank; that accused was notified of the dishonor and he promised to raise the amount on May 15, 1989; that accused failed to make good his commitment, hence, she consulted a lawyer and caused the preparation of a complaint.
11

Marcelo Ladao, a representative of Premiere Development Bank, testified that accused opened Current Account No. 0101-00250-5 on May 15, 1987 and, accordingly, affixed three (3) signatures on the signature card provided by the bank for account applicants; that the said account was closed on October 2, 1989 and that accused was duly advised of the said closure by the Branch Manager of the Pasay City Branch. Ladao, likewise, identified the stamp marked on the face of the check in question, which stamp indicated that the account of the depositor is already closed. 12 On cross-examination, the same witness explained that the subject account was closed at the discretion of the branch manager and that closure is normally a result of a series of checks issued without sufficient funds. 13 The accused testified in his defense and proffered the defense of denial. He denied (a) having issued the subject check; (b) the signature "R. Cruz" appearing thereon as his; and (c) knowing complainant Andrea Mayor and existence of previous transactions with her. 14 He declared that he saw the check in question for the first time only on January 16, 1991 when it was showed to him by the fiscal and that he never met Andrea Mayor before. 15 He admitted, however, opening Current Account No. 0101-00250-37 with Premiere Development Bank. 16 The trial court rejected accused’s defense and rendered judgment as follows, to wit:

IN VIEW OF THE FOREGOING, accused is hereby found guilty beyond reasonable doubt of the offense charged in the information, and conformably with the penal provision of Batas Pambansa Blg. 22, accused is hereby sentenced to suffer the straight penalty of one (1) year imprisonment and to indemnify the offended party in the amount of P176,000.00, Philippine Currency. With costs. 17

Aggrieved by the ruling, petitioner appealed the case to the Court of Appeals. On January 26, 1993, the Court of Appeals rendered judgment affirming the trial court’s decision. 18 Now petitioner comes to this Court by way of a petition for review on certiorari seeking the reversal of the respondent court’s decision. Petitioner cites the following for allowance of his petition, viz:
A. Respondent Court Committed Reversible Error and Grave Abuse Of Discretion Amounting To Lack Or Excess Of Jurisdiction in Affirming The Finding of The Trial Court On The Basis Of Surmises, Conjectures and Unfounded Conclusions. xxx xxx xxx B. Respondent Court Gravely Erred In Holding The Petitioner Liable Under BP No. 22, Despite Knowledge of the Complaining Witness That The Account Had Long been Closed. xxx xxx xxx C. Respondent Court Gravely Erred In Holding That The "Complete Turnabout" of the Petitioner, As Claimed By The Solicitor General, Rendered Petitioner’s Appeal Devoid of Merit. xxx xxx xxx 19

Petitioner, in this case, cannot seem to make up his mind. First, he denies having issued the questioned check, then, he claims that when he issued the same, it was more in the nature of a memorandum of indebtedness and, as such, does not fall within the purview of Batas Pambansa Blg. 22. However, the issuance of the check subject of the present case is no longer at issue since the petitioner himself, on appeal to the respondent court, admitted having issued the check after he received the amount of P176,000.00 from the complaining witness. Therefore, the only issue in the case at bench is whether or not petitioner can be convicted for violation of B.P. 22. We answer in the affirmative. A check issued as an evidence of debt, though not intended to be presented for payment has the same effect of an ordinary check, 20 hence, falls within the ambit of B.P. 22 which merely provides that "any person who makes or draws and issues any

check to apply for an account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank . . . which check is subsequently dishonored by the drawee bank for insufficiency of funds on credit . . . shall be punished by imprisonment . . ." 21 When a check is presented for payment, the drawee bank will generally accept the same regardless of whether it was issued in payment of an obligation or merely to guarantee the said obligation. What the law punishes is the issuance of a bouncing check 22 not the purpose for which it was issued nor the term and conditions relating to its issuance. The mere act of issuing a worthless check is malum prohibitum. 23 This point has been made clear by this Court, thus:
It is now settled that Batas Pambansa Bilang 22 applies even in cases where dishonored checks are issued merely in the form of a deposit or a guarantee. The enactment in question does not make any distinction as to whether the checks within its contemplation are issued in payment of an obligation or merely to guarantee the said obligation. In accordance with the pertinent rule of statutory construction, inasmuch as the law has not made any distinction in this regard, no such distinction can be made by means of interpretation or application. Furthermore, the history of the enactment of subject statute evinces the definite legislative intent to make the prohibition all-embracing, without making any exception from the operation thereof in favor of a guarantee. This intent may be gathered from the statement of the sponsor of the bill (Cabinet Bill No. 9) which was enacted later into Batas Pambansa Bilang 22, when it was introduced before the Batasan Pambansa, that the bill was introduced to discourage the issuance of bouncing checks, to prevent checks from becoming "useless scraps of paper" and to restore respectability to checks, all without distinction as to the purpose of the issuance of the checks,. The legislative intent as above said is made all the more clear when it is considered that while the original text of Cabinet Bill No. 9, supra, had contained a proviso excluding from the coverage of the law a check issued as a mere guarantee, the final version of the bill as approved and enacted by the Committee on the Revision of Laws in the Batasan deleted the abovementioned qualifying proviso deliberately for the purpose of making the enforcement of the act more effective (Batasan Record, First Regular Session, December 4, 1978, Volume II, pp. 1035-1036). Consequently, what are important are the facts that the accused had deliberately issued the checks in question to cover accounts and that the checks in question to cover accounts and that the checks were dishonored upon presentment regardless of whether or not the accused merely issued the checks as a guarantee. (pp. 4-5, Dec. IAC) [pp. 3738, Rollo]. 24

The importance of arresting the proliferation of worthless checks need not be underscored. The mischief created by unfunded checks in circulation is injurious not only to the payee or holder, but to the public as well. This harmful practice "can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest." 25 Petitioner likewise opines that the payee, herein complaining witness, was aware of the fact that his account with Premiere Development Bank was closed. He claims that the

payee’s knowledge verily supports his contention that he did not intend to put the said check in circulation much less ensure its payment upon presentment. Knowledge of the payee of the insufficiency or lack of funds of the drawer with the drawee bank is immaterial as deceit is not an essential element of an offense penalized by B.P. 22. As already aforestated, the gravamen of the offense is the issuance of a bad check, 26 hence, malice and intent in the issuance thereof are inconsequential. Moreover, the fact that the check issued is restricted is likewise of no moment. Cross checks or restricted checks are negotiable instruments within the coverage of B.P. 22. Petitioner, on appeal, changed his theory from complete denial that he issued the questioned check to an admission of its issuance without intent to circulate or negotiate it. Such a change of theory however, cannot be allowed. When a party adopts a certain theory, and the case is tried and decided upon that theory in the court below, he will not be permitted to change his theory on appeal for to permit him to do so would not only be unfair to the other party but it would also be offensive to the basic rules of fair play, justice and due process. 27 Finally, the issue raised primarily involves a question of fact. Our jurisdiction in cases brought to us from the Court of Appeals is limited to reviewing the errors of law imputed to the latter, its findings of fact being conclusive. Therefore, barring any showing that the findings complained of are totally devoid of support in the record, such findings must stand. 28 After a careful consideration of the records, we sustain the conclusion of the respondent court. WHEREFORE, premises considered, the instant petition is DISMISSED and the questioned decision of the respondent court is hereby AFFIRMED en toto. Costs against the petitioner. SO ORDERED. Cruz, Davide, Jr., Bellosillo and Quiason JJ., concur.

#

Footnotes
1 TSN, November 23, 1990, pp. 3-4. 2 Id., pp. 4-5. 3 Id., pp. 6-14. 4 Id., p. 15. 5 Id., pp. 15-18.

6 Original Records, p. 1. 7 Original Records, p. 14. 8 Pre-Trial Order, p. 1; Original Records, p. 25; TSN, October 5, 1990, pp. 4, 5. 9 TSN, November 23, 1990, pp. 3-14. 10 Exhibit "B" 11 Id., pp. 15-19. 12 TSN, November 9, 1990, pp. 7-14. 13 Id., pp. 21-23. 14 TSN, May 6, 1991, p. 2. 15 Id., p. 3. 16 Id., p. 7. 17 Decision, p. 7; Original Records, p. 120. 18 Penned by Justice Minerva P. Gonzaga-Reyes and concurred in by Justices Luis A. Javellana and Consuelo Ynares-Santiago. 19 Petition, pp. 5-7; Rollo, pp. 12-14. 20 People vs. Nitafan, 215 SCRA 79, 82, citing Cushing vs. Gore, 15 Mass. 69 and Dykers vs. Leather Manufacturers’ Bank, 11 Paige 612. 21 Section 1, B.P. 22, Emphasis ours. 22 Lozano vs. Martinez, 146 SCRA 523; People vs. Veridiano II, 132 SCRA 523. 23 Que vs. People, 154 SCRA 160. 24 Id., pp. 164-165. 25 Lozano vs. Martinez, supra, p. 340. 26 Ibid. 27 BA Finance Corporation vs. Court of Appeals, 201 SCRA 157; Galicia vs. Palo, 179 SCRA 375; Ramos vs. Intermediate Appellate Court, 175 SCRA 70; Ganzon vs. Court of Appeals, 161 SCRA 641; Dulos Realty and Development Corporation vs. Court of Appeals, 157 SCRA 425; Dihiansan, et al. vs. Court of Appeals, et al., 153 SCRA 712; Dela Santa vs. Court of Appeals, et al., 140 SCRA 44; Soriano vs. Philippine National Railways, 84 SCRA 722; Mejorada vs. Municipal Council of Dipolog, 52 SCRA 451.

28 Bunag, Jr. vs. Court of Appeals, 211 SCRA 440; Morales vs. Court of Appeals, et al., 197 SCRA 391.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 72971 October 15, 1990 ABAQUIN SECURITY AND DETECTIVE AGENCY, INC., petitioner, vs. HON. DIEGO P. ATIENZA, HON. CLETO T. VILLATUYA, HON. GERONIMO Q. CUADRA, NATIONAL LABOR RELATIONS COMMISSION and ANTONIO B. JOSE, respondents. D. P. Mercado & Associates for petitioner.

FERNAN, C.J.: The instant petition for certiorari raises primarily the issue of whether or not a security agency may be required to pay retirement or termination benefits in favor of its security guard who voluntarily resigned, in the absence of an agreement, contract or management policy regarding such benefits. Petitioner security agency employed private respondent Antonio B. Jose as a security guard on August 29, 1959. Almost twenty-five (25) years later or on April 12, 1984, Jose voluntarily resigned in view of his failing health and his desire to withdraw his cash deposits with petitioner. He was then sixty-one (61) years old. After Jose had executed a certificate of discharge acknowledging full payment of his services as well as a quitclaim of all demands against petitioner, the latter, relying on the absence of any management policy or agreement between them regarding retirement or termination benefits, paid Jose only his cash deposits. Feeling aggrieved, Jose filed before the Arbitration Branch of the National Labor Relations Commission (NLRC) a complaint against petitioner for separation pay, or in lieu thereof, gratuity benefits equal to one-half month salary for every year of service and other benefits provided for by law. Labor Arbiter Domingo V. del Rosario dismissed Jose's complaint on the following grounds: (a) an employee's enjoyment of retirement benefits or separation pay under Article 288 of the Labor Code and Sections 13 and 14 (a), Rule I, Book VI of the Rules and Regulations Implementing the Labor Code is subject to the existence of a retirement plan, individual or collective agreement or established management policy; (b) Jose cannot claim under said implementing rules benefits which are not granted by the Code, otherwise the then Ministry of Labor would be guilty of legislative usurpation;

and (c) Jose was put in estoppel when he executed the certificate of discharge and when he voluntarily resigned. 1 On appeal, the NLRC in its decision of September 30, 1985, set aside the labor arbiter's decision, disposing, thus:
WHEREFORE, premises considered, the appealed decision is hereby SET ASIDE and another one entered ordering respondent-appellee to pay complainant-appellant (herein private respondent Jose) his retirement or termination pay as provided for under existing laws and rules in an amount equivalent to one-half (½) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. Consequently, respondent-appellee (herein petitioner) is directed to show proof of immediate compliance to (sic) the mandate of this Decision after ten (10) days from receipt hereof. SO ORDERED. 2

The NLRC construed Section 14 (a) of Rule I, Book VI of the Implementing Rules and Regulations of the Labor Code in relation to the second paragraph of Article 288 as entitling a retiring employee to termination pay of one-half (½) month for every year of service in the absence of any agreement or employer policy on retirement pay. It ruled that said Section 14 (a) was intended "to give full effect and application to Article 288 of the Labor Code (which) covers all retiring employees, regardless of the existence of any agreement, company policy or otherwise." 3 It added that under the principle of equity, it is only just and fair to reward retiring employees for their long years of faithful service to their employer. Moreover, the NLRC said that Jose's execution of the certificate of discharge "never implied (his) abdication" or waiver of the benefits due him under existing laws on account of the principle that labor standards are not subject to waiver or any agreement which would deprive the workingman of said benefits. Hence, the instant petition for certiorari raising the issues of whether or not a 61-yearold security guard who voluntarily resigned is entitled to retirement benefits under Article 288 of the Labor Code and whether or not Sections 13 and 14 (a), Rule I, Book VI of the Rules and Regulations Implementing the Labor Code can alter, repeal or modify said Article 288. The Court dismissed the instant petition for lack of merit on December 16, 1985. 4 Expectedly, petitioner filed a motion for reconsideration reiterating as grounds therefor the two issues it had raised in the petition and, in addition, the grounds that the aforesaid sections of the implementing rules may not be the sources of a privilege in favor of private respondent and that equity demands that it "be not unduly burdened in paying retirement benefits to a former employee." 5 Respondents having filed their comments on the motion for reconsideration, the Court reconsidered the dismissal resolution in view of the fact that this case requires the interpretation of Article 288 of the Labor Code and said Sections 13 and 14 (a) of Implementing Rule I. 6

The legal provisions involved in this petition provide as follows:
Art, 288. * Retirement. — Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract. In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and any collective bargaining or other agreement. (Labor Code) Sec. 13. Retirement. — In the absence of any collective bargaining agreement or other applicable agreement concerning terms and conditions of employment which provides for retirement at an older age, an employee may be retired upon reaching the age of sixty (60) years. Sec. 14. Retirement benefits. — An employee who is retired pursuant to a bona-fide retirement plan or in accordance with the applicable individual or collective agreement or established employer policy shall be entitled to all the retirement benefits provided therein or to termination pay equivalent at least to one-half month salary for every year of service, whichever is higher, a fraction of at least six (6) months being considered as one whole year. 7

Construing these provisions in relation to the same issue presented in this petition, this Court in the case of Llora Motors, Inc., and/ or Constantino Carlota, Jr. vs. Hon. Franklin Drilon, et al., 8 clarified that Article 288 (now 287) "does not itself purport to impose any obligation upon employers to set up a retirement scheme for their employees over and above that already established under existing laws. In other words, Article 287 recognizes that existing laws already provide for a scheme by which retirement benefits may be earned or accrue in favor of employees, as part of a broader social security system that provides not only for retirement benefits but also death and funeral benefits, permanent disability benefits, sickness benefits and maternity leave benefits. 9 Llora went further to elucidate on the import of Sections 13 and 14 of Implementing Rule I to end the confusion between the concepts "retirement benefits" and "termination pay" inadvertently engendered by the phraseology of Section 14, which deals with both. Thus:
... It is important to keep the two (2) concepts of "termination pay" and "retirement benefits" separate and distinct from each other. Termination pay or separation pay is required to be paid by an employer in particular situations Identified by the Labor Code itself or by Implementing Rule I. Termination pay where properly due and payable under some applicable provision of the Labor Code or under Section 4 (b) of Implementing Rule I, must be paid whether or not an additional retirement plan has been set up under an agreement with the employer or under an "established employer policy." What needs to be stressed, however, is that Section 14 of Implementing Rule I, like Article 287 of the Labor Code, does not purport to require termination pay to be paid to an employee who may want to retire but for whom no additional retirement plan had been set up by prior agreement with the employer. ... What Section 14 of Implementing Rule I may be seen to be saying is that where termination pay is otherwise payable to an

employee under an applicable provision of the Labor Code, and an additional or consensual retirement plan exists, then payments under such retirement plan may be credited against the termination pay that is due, subject, however to certain conditions. ...
10

Based on the foregoing, there being no individual or collective agreement between the parties or established employer's policy regarding retirement benefits, petitioner's resistance to private respondent's claim therefor is legally defensible. However, it must be noted that the complaint filed by private respondent prayed primarily for termination benefits and only in the alternative for gratuity benefits. In fact, the dispositive portion of the decision. under review ordered petitioner to pay private respondent "retirement or termination pay". In so ordering, the NLRC reasoned:
... The implementing rule particularly applicable to paragraph No. 2 Art. 288 is Section 14 (a) of Rule I, Book VI, of the Implementing Rules and Regulations of the Labor Code. This rule provides retirement benefits to employees who have reached the retirement age, in an amount equivalent either to a bona-fide retirement plan, a CBA or individual agreement, an established employer policy, or in the absence of the preceeding three practices, a termination pay of at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. ... 11

Taken in the light of our pronouncements in Llora, the incorrectness of the interpretation given by the NLRC to Article 288 in relation to Section 14 (a) of Implementing Rule I is at once apparent. "While it is true that the contemporaneous construction placed upon a statute by executive officers whose duty is to enforce it should be given great weight by the courts, still if such construction is so erroneous, as in the instant case, the same must be declared as null and void. It is the role of the Judiciary to refine and, when necessary, correct constitutional (and/or statutory) interpretation, in the context of the interactions of the three branches of the government, almost always in situations where some agency of the State has engaged in action that stems ultimately from some legitimate area of governmental power (The Supreme Court in Modern Role, C. B. Swisher, 1958, p. 36)." 12 We hasten to add, lest a misimpression is created, that we are here setting aside as null and void merely the interpretation given in the instant case by the NLRC to Section 14(a) of Implementing Rule I in relation to Article 288 of the Labor Code, and not Section 14(a) itself which had been given by this Court in Llora supra a construction that is in harmony and consistent with Article 288 of the Labor Code. Be that as it may, we are not prepared to altogether set aside the award of termination pay, considering that there exists another legal basis therefor. As keenly observed by the Solicitor General:
It may not be improper to state that respondent Jose should be paid termination pay for reasons analogous to those contemplated under Article 285 of the Labor Code, which provides: Art. 285. Disease as ground for termination. — An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is

prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one half (½) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year. It is true that respondent Jose voluntarily resigned but he resigned because, among others, he suffered from ill health. When petitioner accepted his resignation, it terminated his services partly for that reason. 13

Under Article 245 of the Labor Code, "(s)ecurity guards and other personnel employed for the protection and security of the person, properties and premises of the employer shall not be eligible for membership in any labor organization." As such, they are a special class of employees in that they are deprived of the right to ventilate demands collectively. They are subject to terms and conditions of employment circumscribed by employment contracts imposed on them by their employer. While they may make particular individual demands in said contracts, more often than not, they fail to do so at the time of hiring. Hence, their only refuge is the liberality of the law. Private respondent, who was in the employ of petitioner for almost a quarter of a century and whose reason for terminating his employment was his failing health, deserves the full measure of the law's benevolence. WHEREFORE, the petition is DISMISSED. The monetary award in favor of private respondent Antonio B. Jose is understood to be in the concept of termination pay, rather than retirement benefits. This decision is immediately executory. SO ORDERED. Gutierrez, Jr., Bidin and Cortes, JJ., concur. Feliciano, J., is on leave.

Footnotes
1 Rollo, pp. 18-21. 2 Rollo, pp. 16-17. 3 Rollo, p. 16. 4 Rollo, p. 22. 5 Rollo, p. 29. 6 Rollo, p. 115.

* Renumbered Art. 287 in subsequent amendments. 7 Rule 1, Book VI, Rules and Regulations Implementing the Labor Code. 8 G.R. No. 82895, November 7, 1989. 9 p. 7, Decision, underscoring in the original. 10 pp. 10-11, Decision, emphasis in the original. 11 Rollo, p. 15. 12 Insular Bank of Asia and America Employees' Union (IBAAEU) vs. Inciong, G.R. No. 52415, October 23, 1984, 132 SCRA 663. 13 Rollo, p. 107.

Republic of the Philippines SUPREME COURT Manila EN BANC
G.R. No. L-60548 November 10, 1986 PHILIPPINE GLOBAL COMMUNICATIONS, INC., petitioner, vs. HON. BENJAMIN RELOVA, in his capacity as Presiding Judge, Court of First Instance of Manila, Branch XI, PHILIPPINE TELEGRAPH AND TELEPHONE CORPORATION, CAPITOL WIRELESS, INC. and RADIO COMMUNICATIONS OF THE PHILIPPINES, INC., respondents. Franklin M. Drilon for petitioner. Andres T. Velardo, Dante P. Mercado, Edgardo D. Rivera, Mila T. Federis and Celedonio P. Balasbas for respondents.

FERIA, J.: In this petition for review on certiorari, the Philippine Global Communications, Inc., seeks to set aside the decision, dated April 27, 1982 rendered by respondent Judge Benjamin Relova of Branch XI of the then Court of First Instance of Manila in Civil Case No. R-82-37 21 entitled "In the Matter of the Petition for the Declaratory Judgment Regarding the Construction of the R.A. Nos. 4617 and 4630," the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered declaring respondent Philippine Global Communications, Inc., without authority to establish, maintain and operate, apart from its single principal station in Makati, any other branch or station within the Philippines. In view of the foregoing resolution on the main petition, the counterclaim interposed by respondent must be, as it is hereby, DISMISSED. At this juncture, it may not be amiss to invite attention to our decision in the case of Metropolitan Waterworks and Sewerage System vs. The Court of Appeals and City of Dagupan, G.R. No. L-54526 promulgated on August 25, 1986, which pointed out the common error of joining the court or judge who rendered the decision appealed from as a party respondent in an appeal by certiorari to this Court under Rule 45 of the Rules of Court; when correctly the only parties in an appeal by certiorari are the appellant as petitioner and the appellee as respondent: and it is in the special civil action of certiorari under Section 5 of Rule 65 of the Rules of Court where the court or judge is required to be joined as a party defendant or respondent. The antecedent facts in this case are briefly as follows: On May 10, 1976, petitioner filed with the Board of Communications (BOC), now the National Telecommunications Commission, an application for authority to establish a branch station in Cebu City for the purpose of rendering international telecommunication services from Cebu City to any point outside the Philippines where it is authorized to operate. Said application was opposed by private respondents. Meanwhile, on March 24, 1977, while petitioner's application was pending, the BOC issued Memorandum Circular No. 77-13 designating the Metropolitan Manila area as the sole gateway" (point of entrance into or exit from) for communications in the Philippines and defining what constitutes "domestic record operations. On January 16, 1979, the BOC granted petitioner provisional authority to establish a station in Cebu City "subject to the condition that as soon as domestic carriers shall have upgraded their facilities, applicant shall cease its operation and interface with domestic carriers. " Then, on May 24, 1979, the BOC granted petitioner final authority to establish a "branch/station" in Cebu City and, subject to its prior approval, anywhere in the Philippines. Respondents filed a joint motion for reconsideration of said decision. On August 27, 1979, pending resolution of the joint motion for reconsideration, private respondents filed with the lower court a petition for declaratory judgment regarding the proper construction of petitioner's franchise, R.A. No. 4617. Petitioner moved to dismiss the petition but said motion was denied. Petitioner then assailed the aforesaid order on the ground of lack of jurisdiction, but this Court sustained the lower

court and held that the suit for declaratory relief fell within the competence of the Judiciary and did not require prior action by the administrative agency concerned under the concept of primary jurisdiction. (G.R. No. L-52819, October 2, 1980, 100 SCRA 254) After the issues were joined, the parties at the pre-trial conference agreed to submit the case for decision on the bases of their respective pleadings and memoranda because the issues involved are legal. On April 27, 1982, the lower court rendered the judgment above quoted. Hence, this petition. The legal issues raised in this petition are as follows: (1) Whether or not petitioner is authorized under its legislative franchise, Republic Act No. 4617, to establish stations or substations in places or points outside Metropolitan Manila; and (2) Whether or not the establishment of such stations or substations constitutes "domestic service" within the terms of petitioner's legislative franchise. In its Second Supplemental Memorandum filed on July 16, 1984, petitioner belatedly claims that the declaratory judgment was improperly made, as it was based on the pleadings alone, although the declaratory relief petition presented genuine issues of fact that required trial. Considering, however, the above-stated agreement of the parties to submit the case for decision on the basis of their respective pleadings and memoranda (petitioner's brief, p. 14 and respondents' brief, p. 12), the lower court could not be faulted for rendering judgment accordingly. However, we rule that the lower court erred in rendering the decision appealed from, inasmuch as the same is contrary to the provisions of petitioner's legislative franchise (R.A. No. 4617) as well as the contemporaneous construction placed upon it by the governmental agency charged with its enforcement and the opinion of the former Secretary of Justice. Section 1 of petitioner's franchise provides: Section 1. — There is hereby granted to the RCA Communications Inc., hereinafter referred to as the Grantee, the right and the privelege of constructing, maintaining and operating communications system by radio wire, satellites, and other means now known to science or which in the future may be developed for the reception and transmission of messages between any point in the Philippines to points exterior thereto, including airplanes, airships or vessels even though such airplanes, airships or vessels, may be located within the territorial limits of the Philippines. RCA Communications, Inc. was subsequently renamed Philippine Global Communications, Inc., herein petitioner. It is always timely to reiterate that: "the first and fundamental duty of courts, in our judgment, is to apply the law. Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them. "(Lizarraga Hermanos vs. Yap Tico, 24 Phil. 504, 513; Republic Flour Mills, Inc. vs. Commissioner of Customs, 39 SCRA 269) Moreover, legislative intent must be ascertained from a consideration of the statute as a whole. As the Court reiterated in the case of Aisporna vs. Court of Appeals: ... The particular words, clauses and phrases should not be studied as detached and isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning of any of its parts and in order to produce harmonious whole. (Araneta vs. Concepcion, 99 Phil. 709; Tamayo vs. Gsell, 35 Phil. 953; Lopez vs. El Hogar Filipino, 47 Phil. 249; Chartered Bank vs. Imperial, 48 Phil 931) A statute must be so construed as to harmonize and give effect to all its provisions whenever possible. (People vs. Polmon, 86 Phil; 350) (113 SCRA 459,466; April 12, 1982) The lower court held that the word "any" in the abovequoted Section 1 of the law means a single point within the Philippines where petitioner at its choice, subject to approval by the proper governmental agency, can establish and maintain a reception and communication station or system. It also held that the establishment, maintenance and operation of franchise or stations anywhere in the Philippines or even within Metropolitan Manila outside or apart from petitioner's principal or main station in Makati constitute "domestic communication service" in violation of Section 17 of said law. However, a reading of other sections of the law aside from Sections 1 and 17 cited by the lower court would lead to no other conclusion than that said law authorizes petitioner to construct, maintain and operate, apart from its principal station in Makati, other stations or branches within the Philippines for purposes of its international communications operations. Section 3 of the law provides that "for the purpose of carrying out the privilege granted herein, the grantee may establish stations in such places in the Philippines as the grantee may select and the Secretary of Public Works and Communications may approve. Section 4 (a) provides that "the Secretary of Public Works and Communications shall have the power to allot to the grantee the frequencies and wave lengths to be used thereunder and determine the stations to and from which each such frequency and wave lengths may be used, and issue to the grantee a license for such use. " Section 6 provides that "a special right is reserved to the Government of the Republic of the Philippines, in time of war, insurrection, or domestic trouble, to take over and operate the said stations upon the order and direction of any authorized department of the Government of the Philippines, such department to compensate the grantee for the use of said stations during the period when they shall be so operated by the said Government. "

Section 9 provides that "the grantee shall hold the national, provincial, and municipal governments of the Philippines, harmless from all claims, accounts, demands, or actions arising out of accidents or injuries, whether the property or to persons, caused by the construction or operation of the stations of the grantee." With respect to the principle of contemporaneous construction of a statute by the executive officers of the government whose duty it is to execute it, it is well to reiterate that: ... As far back as In re Allen, (2 Phil. 630) a 1903 decision, Justice McDonough, as ponente, cited this excerpt from the leading American case of Pennoyer v. McConnaughy, decided in 1891: "The principle that the contemporaneous construction of a statute by the executive officers of the government, whose duty it is to execute it, is entitled to great respect, and should ordinarily control the construction of the statute by the courts, is so firmly embedded in our jurisprudence that no authorities need be cited to support it.' (Ibid, 640. Pennoyer v. McConnaughly is cited in 140 US 1. The excerpt is on p. 23 thereof. Cf. Government v. Municipality of Binalonan, 32 Phil, 634 [1915]) There was a paraphrase by Justice Malcolm of such a pronouncement in Molina v. Rafferty, (37 Phil. 545) a 1918 decision:" Courts will and should respect the contemporaneous construction placed upon a statute by the executive officers whose duty it is to enforce it, and unless such interpretation is clearly erroneous will ordinarily be controlled thereby. (Ibid, 555) Since then, such a doctrine has been reiterated in numerous decisions. (Cases cited) (Philippine Association of Free Labor Unions [PAFLU] vs. Bureau of Labor Relations, August 21, 1976, 72 SCRA 396, 402) In its decision of May 24, 1979 granting petitioner final authority to establish a branch/station in Cebu City, the BOC construed the legislative franchise of petitioner, as follows: It was the earlier contention of this Board when it issued Memorandum Circular No. 77-13 (See incl. 1 of said Circular) that no international record carrier could establish stations in any point of the country, for purposes of carrying out its international record operations except in Metropolitan Manila Area. However, a careful review and deliberation on the stand taken by the applicant herein as discussed in position paper it submitted to the Board on February 21, 1978 and a cursory review of the individual franchises of each international carrier as well as of an earlier opinion expressed by the Secretary of Justice to the Chairman of the defunct Radio Control Board has convinced the board that by virtue of applicant's franchise, Memorandum Circular No. 77-13 is not violated by authorizing applicant to establish a branch station in Cebu City solely for its international record operations. In view thereof and in the interest of continued efficient, adequate and satisfactory services, the Board of Communications hereby makes final the provisional authority granted to applicant herein on January 16, 1979 not only on the grounds stated in said Order but also for reasons that subject to the approval of this Board, applicant may establish branch stations in any point within the country for the purpose of receiving and transmitting messages to countries outside the Philippines where it is authorized to render international telecommunications services in accordance with its franchise and Memorandum Circular No. 77-13. Metropolitan Manila remains to be the 'sole' gateway; hence, all messages received and transmitted in the course of a carrier's international record carrier operation, must be coursed through said gateway. The earlier opinion of the Secretary of Justice referred to in said decision was the opinion rendered by Secretary of Justice Pedro Tuason on June 17, 1954 (Opinion No. 146), on the interpretation to be given to the clause found in Section 1 of the original franchise granted to the predecessor-in-interest of Globe-Mackay Cable and Radio Corporation (Act No. 3495 approved on December 8, 1928, as amended by Act No. 3692 and Republic Act No. 4630). Globe-Mackay Cable and Radio Corporation was originally one of the respondents in the Petition for Declaratory Judgment, but it was subsequently dropped as a party respondent. The clause in question reads: The sending of commercial wireless telegraphic messages from points within the Philippine Islands to points exterior thereto, including airplanes, airships, and vessels, even though such airplanes, airships, or vessels be located within the territorial limits of the Philippine Islands, and the receiving of commercial wireless messages from such exterior points. This clause is similar to that found in Section 1 of Republic Act No. 4630, approved on June 19, 1965, which is Identical to Section 1 of Republic Act No. 4617 except as to the name of the grantee. The opinion of the Secretary of Justice states: ... In Opinion No. 76 the view taken was that a message, to fall within the purview of the franchise, once sent by a transmitter within the Philippines, cannot be received by any station within the Philippines even for the purpose of retransmitting such message to points outside the Philippines. I believe that the interpretation given to the abovequoted clause was too strict and does not conform with the spirit of said provision. I take the view that the franchise has reference to the destination of the message and not to the manner of transmittal. Not as to whether it should be sent to the point of destination directly or through relays. The reservation in favor of the Philippine Government under section 4 of the franchise of "all wire- less communications between points of stations within the Philippine Islands' is clearly intended to refer only to domestic communications. It should be understood, however, that no extra fees or tolls could be collected for the transmittal of messages from a relay station to the principal station in Manila. For to do so would make it a domestic service and would bring such service in competition with the domestic radio and telegraph service of the Bureau of Posts.

The above-quoted opinion was reiterated and reaffirmed by the Undersecretary of Justice on November 28, 1973, in answer to the query of the Acting Chairman of the Foreign Trade Zone Authority as to whether or not Globe-Mackay Cable and Radio Corporation is "authorized under its franchise to set a relay station inside the Foreign Trade Zone in Mariveles, Bataan, which will receive interstate communications for onward transmission by its main station in Manila. The above-stated opinions of the Secretary of Justice and Undersecretary of Justice are material because Republic Acts Nos. 4630 and 4617 are in pari materia. As the Court has reiterated: Statutes are said to be in pari materia when they relate to the same person or thing, or to the same class of persons or things, or have the same purpose or object. (Sutherland Statutory Construction, Vol. 11, pp. 535-536) When statutes are in pari materia; the rule of statutory construction dictates that they should be construed together. (Black on Interpretation of Laws, Sec. 106) ... (City of Naga vs. Agna, May 31, 1976, 71 SCRA 176, 184) Finally, on October 25, 1983, the National Telecommunications Commission, with the approval of the Ministry of Transportation and Communications, issued Memorandum Circular No. 08-8-83 which adopted guidelines in the implementation of the government policy of designating Metropolitan Manila as the international gateway for purposes of domestic and international communications opera- tions. Among the provisions of said Memorandum Circular which are pertinent to the case at bar are the following: 1.1. The International Record Carriers (IRCs) shall continue to own, construct and expand, as may be required by the service, their own stations, inside plant, branches and terminals within the Metro Manila Area necessary for them to conduct their business of providing international telecommunications service in the country in accordance with their respective franchise and as authorized by the appropriate government regulatory agency. xxx xxx xxx 2.1 The IRCs shall not maintain public offices outside the gateway. They may, however, be allowed to establish customer terminals with the necessary marketing and technical support outside Metro Manila. ... xxx xxx xxx 2.3. International telecommunications requirements of non- equipped or walk-in customers shall be served thru the public offices of the domestic record carrier/s (DRCs). All existing public offices of IRCs may continue operating until such time as the DRC(s) can provide the facilities required by the IRCs or an Interconnect Agree- ment between the IRC(s) and DRC(s) shall have been duly approved by NTC. The last-quoted provision confirms that the existing public offices of International Record Carriers were duly authorized by their respective legislative franchises. WHEREFORE, the decision appealed from is reversed and judgment is hereby rendered declaring petitioner with authority to establish, maintain and operate, in accordance with its franchise and Memorandum Circular No. 08-8-83, any other branch or station within the Philippines apart from its single principal station in Makati, Metro Manila. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz and Paras, JJ., concur. Feliciano, J., is on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 132601 January 19, 1999 LEO ECHEGARAY, petitioner, vs. SECRETARY OF JUSTICE, ET AL., respondents. RESOLUTION

PUNO, J.: For resolution are public respondents' Urgent Motion for Reconsideration of the Resolution of this Court dated January 4, 1990 temporarily restraining the execution of petitioner and Supplemental Motion to Urgent Motion for Reconsideration. It is the submission of public respondents that:
1. The Decision in this case having become final and executory, its execution enters the exclusive ambit of authority of the executive authority. The issuance of the TRO may be construed as trenching on that sphere of executive authority; 2. The issuance of the temporary restraining order . . . creates dangerous precedent as there will never be an end to litigation because there is always a possibility that Congress may repeal a law. 3. Congress had earlier deliberated extensively on the death penalty bill. To be certain, whatever question may now be raised on the Death Penalty Law before the present Congress within the 6-month period given by this Honorable Court had in all probability been fully debated upon . . . 4. Under the time honored maxim lex futuro, judex praeterito, the law looks forward while the judge looks at the past, . . . the Honorable Court in issuing the TRO has transcended its power of judicial review. 5. At this moment, certain circumstances/supervening events transpired to the effect that the repeal or modification of the law imposing death penalty has become nil, to wit: a. The public pronouncement of President Estrada that he will veto any law imposing the death penalty involving heinous crimes. b. The resolution of Congressman Golez, et al., that they are against the repeal of the law; c. The fact that Senator Roco's resolution to repeal the law only bears his signature and that of Senator Pimentel.

In their Supplemental Motion to Urgent Motion for Reconsideration, public respondents attached a copy of House Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of the House of Representative to reject any move to review Republic Act No. 7659 which provided for the re-imposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of the position of the House of Representative on this matter, and urging the President to exhaust all means under the law to immediately implement the death penalty law." The Resolution was concurred in by one hundred thirteen (113) congressman. In their Consolidated Comment, petitioner contends: (1) the stay order. . . is within the scope of judicial power and duty and does not trench on executive powers nor on congressional prerogatives; (2) the exercise by this Court of its power to stay execution was reasonable; (3) the Court did not lose jurisdiction to address incidental matters involved or arising from the petition; (4) public respondents are estopped from challenging the Court's jurisdiction; and (5) there is no certainty that the law on capital punishment will not be repealed or modified until Congress convenes and considers all the various resolutions and bills filed before it. Prefatorily, the Court likes to emphasize that the instant motions concern matters that are not incidents in G.R. No. 117472, where the death penalty was imposed on petitioner on automatic review of his conviction by this Court. The instant motions were filed in this case, G.R. No. 132601, where the constitutionality of R.A. No. 8177 (Lethal Injection Law) and its implementing rules and regulations was assailed by petitioner. For this reason, the Court in its Resolution of January 4, 1999 merely noted the Motion to Set Aside of Rodessa "Baby" R. Echegaray dated January 7, 1999 and Entry of Appearance of her counsel dated January 5, 1999. Clearly, she has no legal standing to intervene in the case at bar, let alone the fact that the interest of the State is properly represented by the Solicitor General. We shall now resolve the basic issues raised by the public respondents. I First. We do not agree with the sweeping submission of the public respondents that this Court lost its jurisdiction over the case at bar and hence can no longer restrain the execution of the petitioner. Obviously, public respondents are invoking the rule that final judgments can no longer be altered in accord with the principle that "it is just as important that there should be a place to end as there should be a place to begin litigation." 1 To start with, the Court is not changing even a comma of its final Decision. It is appropriate to examine with precision the metes and bounds of the Decision of this Court that became final. These metes and bounds are clearly spelled out in the Entry of Judgment in this case, viz:
ENTRY OF JUDGMENT This is to certify that on October 12, 1998 a decision rendered in the above-entitled case was filed in this Office, the dispositive part of which reads as follows:

WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the assailed statute (Republic Act No. 8177) as unconstitutional; but GRANTED insofar as Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are concerned, which are hereby declared INVALID because (a) Section 17 contravenes Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659; and (b) Section 19 fails to provide for review and approval of the Lethal Injection Manual by the Secretary of Justice, and unjustifiably makes the manual confidential, hence unavailable to interested parties including the accused/convict and counsel. Respondents are hereby enjoined from enforcing and implementing Republic Act No. 8177 until the aforesaid Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are appropriately amended, revised and/or corrected in accordance with this Decision. SO ORDERED. and that the same has, on November 6, 1988 become final and executory and is hereby recorded in the Book of Entries of Judgment. Manila, Philippine. Clerk of Court By: (SGD) TERES ITA G. DIMAIS IP Acting Chief Judicial Record s Office

The records will show that before the Entry of Judgment, the Secretary of Justice, the Honorable Serafin Cuevas, filed with this Court on October 21, 1998 a Compliance where he submitted the Amended Rules and Regulations implementing R.A. No. 8177 in compliance with our Decision. On October 28, 1998, Secretary Cuevas submitted a Manifestation informing the Court that he has caused the publication of the said Amended Rules and Regulations as required by the Administrative Code. It is crystalline that the Decision of this Court that became final and unalterable mandated: (1) that R.A. No. 8177 is not unconstitutional; (2) that sections 17 and 19 of the Rules and Regulations to Implement R.A. No. 8177 are invalid, and (3) R.A. No. 8177 cannot be enforced and implemented until sections 17 and 19 of the Rules and Regulations to Implement R.A. No. 8177 are amended. It is also daylight clear that this Decision was not altered a whit by this Court. Contrary to the submission of the Solicitor General, the

rule on finality of judgment cannot divest this Court of its jurisdiction to execute and enforce the same judgment. Retired Justice Camilo Quiason synthesized the well established jurisprudence on this issue as follows: 2
xxx xxx xxx the finality of a judgment does not mean that the Court has lost all its powers nor the case. By the finality of the judgment, what the court loses is its jurisdiction to amend, modify or alter the same. Even after the judgment has become final the court retains its jurisdiction to execute and enforce it. 3 There is a difference between the jurisdiction of the court to execute its judgment and its jurisdiction to amend, modify or alter the same. The former continues even after the judgment has become final for the purpose of enforcement of judgment; the latter terminates when the judgment becomes final. 4 . . . For after the judgment has become final facts and circumstances may transpire which can render the execution unjust or impossible. 5

In truth, the arguments of the Solicitor General has long been rejected by this Court. As aptly pointed out by the petitioner, as early as 1915, this Court has unequivocably ruled in the case of Director of Prisons v. Judge of First Instance, 6 viz:
This Supreme Court has repeatedly declared in various decisions, which constitute jurisprudence on the subject, that in criminal cases, after the sentence has been pronounced and the period for reopening the same cannot change or alter its judgment, as its jurisdiction has terminated . . . When in cases of appeal or review the cause has been returned thereto for execution, in the event that the judgment has been affirmed, it performs a ministerial duty in issuing the proper order. But it does not follow from this cessation of functions on the part of the court with reference to the ending of the cause that the judicial authority terminates by having then passed completely to the Executive. The particulars of the execution itself, which are certainly not always included in the judgment and writ of execution, in any event are absolutely under the control of the judicial authority, while the executive has no power over the person of the convict except to provide for carrying out of the penalty and to pardon. Getting down to the solution of the question in the case at bar, which is that of execution of a capital sentence, it must be accepted as a hypothesis that postponement of the date can be requested. There can be no dispute on this point. It is a well-known principle that notwithstanding the order of execution and the executory nature thereof on the date set or at the proper time, the date therefor can be postponed, even in sentences of death. Under the common law this postponement can be ordered in three ways: (1) By command of the King; (2) by discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state this principle of the common law to render impossible that assertion in absolute terms that after the convict has once been placed in jail the trial court can not reopen the case to investigate the facts that show the need for postponement. If one of the ways is by direction of the court, it is acknowledged that even after the date of the execution has been fixed, and notwithstanding the general rule that after the (court) has performed its ministerial duty of ordering the execution . . . and its part is ended, if however a circumstance arises that ought to delay the execution, and there is an imperative duty to investigate the emergency and to order a postponement. Then the question arises as to whom the application for postponing the execution ought to be addressed while the circumstances is under investigation and so to who has jurisdiction to make the investigation.

The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be the subject of substantial subtraction for our Constitution 7 vests the entirety of judicial power in one Supreme Court and in such lower courts as may be established by law. To be sure, the important part of a litigation, whether civil or criminal, is the process of execution of decisions where supervening events may change the circumstance of the parties and compel courts to intervene and adjust the rights of the litigants to prevent unfairness. It is because of these unforseen, supervening contingencies that courts have been conceded the inherent and necessary power of control of its processes and orders to make them conformable to law and justice. 8 For this purpose, Section 6 of Rule 135 provides that "when by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules." It bears repeating that what the Court restrained temporarily is the execution of its own Decision to give it reasonable time to check its fairness in light of supervening events in Congress as alleged by petitioner. The Court, contrary to popular misimpression, did not restrain the effectivity of a law enacted by Congress.1âwphi1.nêt The more disquieting dimension of the submission of the public respondents that this Court has no jurisdiction to restrain the execution of petitioner is that it can diminish the independence of the judiciary. Since the implant of republicanism in our soil, our courts have been conceded the jurisdiction to enforce their final decisions. In accord with this unquestioned jurisdiction, this Court promulgated rules concerning pleading, practice and procedure which, among others, spelled out the rules on execution of judgments. These rules are all predicated on the assumption that courts have the inherent, necessary and incidental power to control and supervise the process of execution of their decisions. Rule 39 governs execution, satisfaction and effects of judgments in civil cases. Rule 120 governs judgments in criminal cases. It should be stressed that the power to promulgate rules of pleading, practice and procedure was granted by our Constitutions to this Court to enhance its independence, for in the words of Justice Isagani Cruz "without independence and integrity, courts will lose that popular trust so essential to the maintenance of their vigor as champions of justice." 9 Hence, our Constitutions continuously vested this power to this Court for it enhances its independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning pleading, practice and procedure was granted but it appeared to be coexistent with legislative power for it was subject to the power of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides:
Sec.13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and are declared Rules of Court, subject to the power of the Supreme Court to alter and modify the same. The Congress have the power to repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines.

The said power of Congress, however, is not as absolute as it may appear on its surface. In In re Cunanan 10 Congress in the exercise of its power to amend rules of the Supreme Court regarding admission to the practice of law, enacted the Bar Flunkers Act of 1953 11 which considered as a passing grade, the average of 70% in the bar examinations after July 4, 1946 up to August 1951 and 71% in the 1952 bar examinations. This Court struck down the law as unconstitutional. In his ponencia, Mr. Justice Diokno held that " . . . the disputed law is not a legislation; it is a judgment — a judgment promulgated by this Court during the aforecited years affecting the bar candidates concerned; and although this Court certainly can revoke these judgments even now, for justifiable reasons, it is no less certain that only this Court, and not the legislative nor executive department, that may do so. Any attempt on the part of these department would be a clear usurpation of its function, as is the case with the law in question." 12 The venerable jurist further ruled: "It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive character, or as other authorities say, merely to fix the minimum conditions for the license." By its ruling, this Court qualified the absolutist tone of the power of Congress to "repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines. The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973 Constitution reiterated the power of this Court "to promulgate rules concerning pleading, practice and procedure in all courts, . . . which, however, may be repealed, altered or supplemented by the Batasang Pambansa . . . ." More completely, Section 5(2)5 of its Article X provided:
xxx xxx xxx Sec.5. The Supreme Court shall have the following powers. xxx xxx xxx (5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law, and the integration of the Bar, which, however, may be repealed, altered, or supplemented by the Batasang Pambansa. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights.

Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by giving to it the additional power to promulgate rules governing the integration of the Bar. 13

The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides:
xxx xxx xxx Sec. 5. The Supreme Court shall have the following powers: xxx xxx xxx (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasijudicial bodies shall remain effective unless disapproved by the Supreme Court.

The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive. If the manifest intent of the 1987 Constitution is to strengthen the independence of the judiciary, it is inutile to urge, as public respondents do, that this Court has no jurisdiction to control the process of execution of its decisions, a power conceded to it and which it has exercised since time immemorial. To be sure, it is too late in the day for public respondents to assail the jurisdiction of this Court to control and supervise the implementation of its decision in the case at bar. As aforestated, our Decision became final and executory on November 6, 1998. The records reveal that after November 6, 1998, or on December 8, 1998, no less than the Secretary of Justice recognized the jurisdiction of this Court by filing a Manifestation and Urgent Motion to compel the trial judge, the Honorable Thelma A. Ponferrada, RTC, Br. 104, Quezon City to provide him ". . . a certified true copy of the Warrant of Execution dated November 17, 1998 bearing the designated execution day of death convict Leo Echegaray and allow (him) to reveal or announce the contents thereof, particularly the execution date fixed by such trial court to the public when requested." The relevant portions of the Manifestation and Urgent Motion filed by the Secretary of Justice beseeching this Court "to provide the appropriate relief" state:
xxx xxx xxx

5. Instead of filing a comment on Judge Ponferrada's Manifestation however, herein respondent is submitting the instant Manifestation and Motion (a) to stress, inter alia, that the non-disclosure of the date of execution deprives herein respondent of vital information necessary for the exercise of his statutory powers, as well as renders nugatory the constitutional guarantee that recognizes the people's right to information of public concern, and (b) to ask this Honorable Court to provide the appropriate relief. 6. The non-disclosure of the date of execution deprives herein respondent of vital information necessary for the exercise of his power of supervision and control over the Bureau of Corrections pursuant to Section 39, Chapter 8, Book IV of the Administrative Code of 1987, in relation to Title III, Book IV of such Administrative Code, insofar as the enforcement of Republic Act No. 8177 and the Amended Rules and Regulations to Implement Republic Act No. 8177 is concerned and for the discharge of the mandate of seeing to it that laws and rules relative to the execution of sentence are faithfully observed. 7. On the other hand, the willful omission to reveal the information about the precise day of execution limits the exercise by the President of executive clemency powers pursuant to Section 19, Article VII (Executive Department) of the 1987 Philippine Constitution and Article 81 of the Revised Penal Code, as amended, which provides that the death sentence shall be carried out "without prejudice to the exercise by the President of his executive powers at all times." (Emphasis supplied) For instance, the President cannot grant reprieve, i.e., postpone the execution of a sentence to a day certain (People v. Vera, 65 Phil. 56, 110 [1937]) in the absence of a precise date to reckon with. The exercise of such clemency power, at this time, might even work to the prejudice of the convict and defeat the purpose of the Constitution and the applicable statute as when the date at execution set by the President would be earlier than that designated by the court. 8. Moreover, the deliberate non-disclosure of information about the date of execution to herein respondent and the public violates Section 7, Article III (Bill of Rights) and Section 28, Article II (Declaration of Principles and State Policies) of the 1987 Philippine Constitution which read: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development shall, be afforded the citizen, subject to such limitations as may be provided by law. Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all transactions involving public interest. 9. The "right to information" provision is self-executing. It supplies "the rules by means of which the right to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations, 167 [1972]) by guaranteeing the right and mandating the duty to afford access to sources of

information. Hence, the fundamental right therein recognized may be asserted by the people upon the ratification of the Constitution without need for any ancillary act of the Legislature (Id., at p. 165) What may be provided for by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions involving public interest (Constitution, Art. II, Sec. 28). However, it cannot be overemphasized that whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III, Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter." (Decision of the Supreme Court En Banc in Legaspi v. Civil Service Commission, 150 SCRA 530, 534-535 [1987].

The same motion to compel Judge Ponferrada to reveal the date of execution of petitioner Echegaray was filed by his counsel, Atty. Theodore Te, on December 7, 1998. He invoked his client's right to due process and the public's right to information. The Solicitor General, as counsel for public respondents, did not oppose petitioner's motion on the ground that this Court has no more jurisdiction over the process of execution of Echegaray. This Court granted the relief prayed for by the Secretary of Justice and by the counsel of the petitioner in its Resolution of December 15, 1998. There was not a whimper of protest from the public respondents and they are now estopped from contending that this Court has lost its jurisdiction to grant said relief. The jurisdiction of this Court does not depend on the convenience of litigants. II Second. We likewise reject the public respondents' contention that the "decision in this case having become final and executory, its execution enters the exclusive ambit of authority of the executive department . . .. By granting the TRO, the Honorable Court has in effect granted reprieve which is an executive function." 14 Public respondents cite as their authority for this proposition, Section 19, Article VII of the Constitution which reads:
Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the members of the Congress.

The text and tone of this provision will not yield to the interpretation suggested by the public respondents. The provision is simply the source of power of the President to grant reprieves, commutations, and pardons and remit fines and forfeitures after conviction by final judgment. It also provides the authority for the President to grant amnesty with the concurrence of a majority of all the members of the Congress. The provision, however, cannot be interpreted as denying the power of courts to control the enforcement of their decisions after their finality. In truth, an accused who has been convicted by final judgment still possesses collateral rights and these rights can be claimed in the appropriate courts. For instance, a death convict who become insane after his final conviction cannot be executed while in a state of insanity. 15 As observed by Antieau, "today, it is generally assumed that due process of law will prevent the

government from executing the death sentence upon a person who is insane at the time of execution." 16 The suspension of such a death sentence is undisputably an exercise of judicial power. It is not a usurpation of the presidential power of reprieve though its effects is the same — the temporary suspension of the execution of the death convict. In the same vein, it cannot be denied that Congress can at any time amend R.A. No. 7659 by reducing the penalty of death to life imprisonment. The effect of such an amendment is like that of commutation of sentence. But by no stretch of the imagination can the exercise by Congress of its plenary power to amend laws be considered as a violation of the power of the President to commute final sentences of conviction. The powers of the Executive, the Legislative and the Judiciary to save the life of a death convict do not exclude each other for the simple reason that there is no higher right than the right to life. Indeed, in various States in the United States, laws have even been enacted expressly granting courts the power to suspend execution of convicts and their constitutionality has been upheld over arguments that they infringe upon the power of the President to grant reprieves. For the public respondents therefore to contend that only the Executive can protect the right to life of an accused after his final conviction is to violate the principle of co-equal and coordinate powers of the three branches of our government. III Third. The Court's resolution temporarily restraining the execution of petitioner must be put in its proper perspective as it has been grievously distorted especially by those who make a living by vilifying courts. Petitioner filed his Very Urgent Motion for Issuance of TRO on December 28, 1998 at about 11:30 p.m. He invoked several grounds, viz: (1) that his execution has been set on January 4, the first working day of 1999; (b) that members of Congress had either sought for his executive clemency and/or review or repeal of the law authorizing capital punishment; (b.1) that Senator Aquilino Pimentel's resolution asking that clemency be granted to the petitioner and that capital punishment be reviewed has been concurred by thirteen (13) other senators; (b.2) Senate President Marcelo Fernan and Senator Miriam S. Defensor have publicly declared they would seek a review of the death penalty law; (b.3) Senator Paul Roco has also sought the repeal of capital punishment, and (b.4) Congressman Salacrib Baterina, Jr., and thirty five (35) other congressmen are demanding review of the same law. When the Very Urgent Motion was filed, the Court was already in its traditional recess and would only resume session on January 18, 1999. Even then, Chief Justice Hilario Davide, Jr. called the Court to a Special Session on January 4, 1991 17 at 10. a.m. to deliberate on petitioner's Very Urgent Motion. The Court hardly had five (5) hours to resolve petitioner's motion as he was due to be executed at 3 p.m. Thus, the Court had the difficult problem of resolving whether petitioner's allegations about the moves in Congress to repeal or amend the Death Penalty Law are mere speculations or not. To the Court's majority, there were good reasons why the Court should not immediately dismiss petitioner's allegations as mere speculations and surmises. They noted that petitioner's allegations were made in a pleading under oath and were widely publicized in the print and broadcast media. It was also of judicial notice that the 11th Congress is

a new Congress and has no less than one hundred thirty (130) new members whose views on capital punishment are still unexpressed. The present Congress is therefore different from the Congress that enacted the Death Penalty Law (R.A. No. 7659) and the Lethal Injection Law (R.A. No. 8177). In contrast, the Court's minority felt that petitioner's allegations lacked clear factual bases. There was hardly a time to verify petitioner's allegations as his execution was set at 3 p.m. And verification from Congress was impossible as Congress was not in session. Given these constraints, the Court's majority did not rush to judgment but took an extremely cautious stance by temporarily restraining the execution of petitioner. The suspension was temporary — "until June 15, 1999, coeval with the constitutional duration of the present regular session of Congress, unless it sooner becomes certain that no repeal or modification of the law is going to be made." The extreme caution taken by the Court was compelled, among others, by the fear that any error of the Court in not stopping the execution of the petitioner will preclude any further relief for all rights stop at the graveyard. As life was at, stake, the Court refused to constitutionalize haste and the hysteria of some partisans. The Court's majority felt it needed the certainty that the legislature will not petitioner as alleged by his counsel. It was believed that law and equitable considerations demand no less before allowing the State to take the life of one its citizens. The temporary restraining order of this Court has produced its desired result, i.e., the crystallization of the issue whether Congress is disposed to review capital punishment. The public respondents, thru the Solicitor General, cite posterior events that negate beyond doubt the possibility that Congress will repeal or amend the death penalty law. He names these supervening events as follows:
xxx xxx xxx a. The public pronouncement of President Estrada that he will veto any law imposing the death penalty involving heinous crimes. b. The resolution of Congressman Golez, et al., that they are against the repeal of the law; c. The fact that Senator Roco's resolution to repeal the law only bears his signature and that of Senator Pimentel.
18

In their Supplemental Motion to Urgent Motion for Reconsideration, the Solicitor General cited House Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of the House of Representatives to reject any move to review R.A. No. 7659 which provided for the reimposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of the position of the House of Representative on this matter and urging the President to exhaust all means under the law to immediately implement the death penalty law." The Golez resolution was signed by 113 congressman as of January 11, 1999. In a marathon session yesterday that extended up 3 o'clock in the morning, the House of Representative with minor, the House of Representative with minor amendments formally adopted the Golez resolution by an overwhelming vote. House Resolution No. 25 expressed the sentiment that the House ".

. . does not desire at this time to review Republic Act 7659." In addition, the President has stated that he will not request Congress to ratify the Second Protocol in review of the prevalence of heinous crimes in the country. In light of these developments, the Court's TRO should now be lifted as it has served its legal and humanitarian purpose. A last note. In 1922, the famous Clarence Darrow predicted that ". . . the question of capital punishment had been the subject of endless discussion and will probably never be settled so long as men believe in punishment." 19 In our clime and time when heinous crimes continue to be unchecked, the debate on the legal and moral predicates of capital punishment has been regrettably blurred by emotionalism because of the unfaltering faith of the pro and anti-death partisans on the right and righteousness of their postulates. To be sure, any debate, even if it is no more than an exchange of epithets is healthy in a democracy. But when the debate deteriorates to discord due to the overuse of words that wound, when anger threatens to turn the majority rule to tyranny, it is the especial duty of this Court to assure that the guarantees of the Bill of Rights to the minority fully hold. As Justice Brennan reminds us ". . . it is the very purpose of the Constitution — and particularly the Bill of Rights — to declare certain values transcendent, beyond the reach of temporary political majorities." 20 Man has yet to invent a better hatchery of justice than the courts. It is a hatchery where justice will bloom only when we can prevent the roots of reason to be blown away by the winds of rage. The flame of the rule of law cannot be ignited by rage, especially the rage of the mob which is the mother of unfairness. The business of courts in rendering justice is to be fair and they can pass their litmus test only when they can be fair to him who is momentarily the most hated by society. 21 IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion for Reconsideration and Supplemental Motion to Urgent Motion for Reconsideration and lifts the Temporary Restraining Order issued in its Resolution of January 4, 1999. The Court also orders respondent trial court judge (Hon. Thelma A. Ponferrada, Regional Trial Court, Quezon City, Branch 104) to set anew the date for execution of the convict/petitioner in accordance with applicable provisions of law and the Rules of Court, without further delay. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Kapunan, Mendoza, Martinez, Quisumbing, Purisima and Pardo, JJ., concur. Vitug and Panganiban, JJ., Please see Separate Opinion. Buena and Gonzaga-Reyes, JJ., took no part.

Separate Opinions
VITUG, J., separate opinion; Let me state at the outset that I have humbly maintained that Republic Act No. 7659, insofar as it prescribes the death penalty, falls short of the strict norm set forth by the Constitution. I and some of my brethren on the Court, who hold similarly, have consistently expressed this stand in the affirmance by the Court of death sentences imposed by Regional Trial Courts. In its resolution of 04 January 1999, the Court resolved to issue in the above-numbered petition a temporary restraining order ("TRO") because, among other things, of what had been stated to be indications that Congress would re-examine the death penalty law. It was principally out of respect and comity to a co-equal branch of the government, i.e., to reasonably allow it that opportunity if truly minded, that motivated the Court to grant, after deliberation, a limited time for the purpose. The Court, it must be stressed, did not, by issuing the TRO, thereby reconsider its judgment convicting the accused or recall the imposition of the death penalty. The doctrine has almost invariably been that after a decision becomes final and executory, nothing else is further done except to see to its compliance since for the Court to adopt otherwise would be to put no end to litigations The rule notwithstanding, the Court retains control over the case until the full satisfaction of the final judgment conformably with established legal processes. Hence, the Court has taken cognizance of the petition assailing before it the use of lethal injection by the State to carry out the death sentence. In any event, jurisprudence teaches that the rule of immutability of final and executory judgments admits of settled exceptions. Concededly, the Court may, for instance, suspend the execution of a final judgment when it becomes imperative in the higher interest of justice or when supervening events warrant it. 1 Certainly, this extraordinary relief cannot be denied any man, whatever might be his station, whose right to life is the issue at stake. The pronouncement in Director of Prisons vs. Judge of First Instance of Cavite, 2 should be instructive. Thus —
This Supreme Court has repeatedly declared in various decisions, which constitute jurisprudence on the subject, that in criminal cases, after the sentence has been pronounced and the period for reopening the same has elapsed, the court can not change or after its judgment, as its jurisdiction has terminated, functus est officio suo, according to the classical phrase. When in cases of appeal or review the cause has been returned thereto for execution, in the event that the judgment has been affirmed, it performs a ministerial duty in issuing the proper order. But it does not follow from this cessation of functions on the part of the court with reference to the ending of the cause that the judicial authority terminates by having then passed completely to the executive. The particulars of the execution itself, which are certainly not always included in the

judgment and writ of execution, in any event are absolutely under the control of the judicial authority, while the executive has no power over the person of the convict except to provide for carrying out the penalty and to pardon. Getting down to the solution of the question in the case at bar, which is that of execution of a capital sentence, it must be accepted as a hypothesis that postponement of the date can be requested. There can be no dispute on this point. It is a well-known principle that, notwithstanding the order of execution and the executory nature thereof on the date set or at the proper time, the date therefor can be postponed, even in sentences of death. Under the common law this postponement can be ordered in three ways: (1) By command of the King; (2) by discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state this principle of the common law to render impossible the assertion in absolute terms that after the convict has once been placed in jail the trial court can not reopen the case to investigate the facts that show the need for postponement. If one of the ways is by direction of the court, it is acknowledged that even after the date of the execution has been fixed, and notwithstanding the general rule that after the Court of First Instance has performed its ministerial duty of ordering the execution, functus est officio suo, and its part is ended, if however a circumstance arises that ought to delay the execution, there is an imperative duty to investigate the emergency and to order a postponement . . ..

In fine, the authority of the Court to see to the proper execution of its final judgment, the power of the President to grant pardon, commutation or reprieve, and the prerogative of Congress to repeal or modify the law that could benefit the convicted accused are not essentially preclusive of one another nor constitutionally incompatible and may each be exercised within their respective spheres and confines. Thus, the stay of execution issued by the Court would not prevent either the President from exercising his pardoning power or Congress from enacting a measure that may be advantageous to the adjudged offender. The TRO of this Court has provided that it shall be lifted even before its expiry date of 15 June 1999, "coeval with the duration of the present regular session of Congress," if it "sooner becomes certain that no repeal or modification of the law is going to be made." The "Urgent Motion for Reconsideration" filed by the Office of the Solicitor General states that as of the moment, "certain circumstances/supervening events (have) transpired to the effect that the repeal or modification of the law imposing death penalty has become nil . . .." If, indeed, it would be futile to yet expect any chance for a timely 3 re-examination by Congress of the death penalty law, then I can appreciate why the majority of the Justices on the Court feel rightly bound even now to lift the TRO. I am hopeful, nevertheless, that Congress will in time find its way clear to undertaking a most thorough and dispassionate re-examination of the law not so much for its questioned wisdom as for the need to have a second look at the conditions sine qua non prescribed by the Constitution in the imposition of the death penalty. In People vs. Masalihit, 4 in urging, with all due respect, Congress to consider a prompt re-examination of the death penalty law, I have said:
The determination of when to prescribe the death penalty lies, in the initial instance, with the law-making authority, the Congress of the Philippines, subject to the conditions that the Constitution itself has set forth; viz: (1) That there must be compelling reasons to

justify the imposition of the death penalty; and (2) That the capital offense must involve a heinous crime. It appears that the fundamental law did not contemplate a simple 'reimposition' of the death penalty to offenses theretofore already provided in the Revised Penal Code or, let alone, just because of it. The term 'compelling reasons' would indicate to me that there must first be a marked change in the milieu from that which has prevailed at the time of adoption of the 1987 Constitution, on the one hand, to that which exists at the enactment of the statute prescribing the death penalty, upon the other hand, that would make it distinctively inexorable to allow the re-imposition of the death penalty. Most importantly, the circumstances that would characterize the 'heinous nature' of the crime and make it so exceptionally offensive as to warrant the death penalty must be spelled out with great clarity in the law, albeit without necessarily precluding the Court from exercising its power of judicial review given the circumstances of each case. To venture, in the case of murder, the crime would become 'heinous' within the Constitutional concept, when, to exemplify, the victim is unnecessarily subjected to a painful and excruciating death or, in the crime of rape, when the offended party is callously humiliated or even brutally killed by the accused. The indiscriminate imposition of the death penalty could somehow constrain courts to apply, perhaps without consciously meaning to, stringent standards for conviction, not too unlikely beyond what might normally be required in criminal cases, that can, in fact, result in undue exculpation of offenders to the great prejudice of victims and society.

Today, I reiterate the above view and until the exacting standards of the Constitution are clearly met as so hereinabove expressed, I will have to disagree, most respectfully, with my colleagues in the majority who continue to hold the presently structured Republic Act No. 7659 to be in accord with the Constitution, an issue that is fundamental, constant and inextricably linked to the imposition each time of the death penalty and, like the instant petition, to the legal incidents pertinent thereto. Accordingly, I vote against the lifting of the restraining order of the Court even as I, like everyone else, however, must respect and be held bound by the ruling of the majority.

PANGANIBAN, J., separate opinion; I agree with the Court's Resolution that, without doubt, this Court has jurisdiction to issue the disputed Temporary Restraining Order (TRO) on January 4, 1999. I will not repeat its well-reasoned disquisition. I write only to explain my vote in the context of the larger issue of the death penalty. Since the solicitor general has demonstrated that Congress will not repeal or amend RA 7659 during its current session which ends on June 15, 1999 and that, in any event, the President will veto any such repeal or amendment, the TRO should by its own terms be deemed lifted now. However, my objections to the imposition of the death penalty transcend the TRO and permeate its juridical essence. I maintain my view that RA 7659 (the Death Penalty Law) is unconstitutional insofar as some parts thereof prescribing the capital penalty fail to comply with the requirements of "heinousness" and "compelling reasons" prescribed by the Constitution of the Philippines. * This I have repeatedly stated in my Dissenting Opinion in various death

cases decided by the Court, as well as during the Court's deliberation on this matter on January 4, 1999. For easy reference, I hereby attach a copy of my Dissent promulgated on February 7, 1997. Consequently, I cannot now vote to lift TRO, because to do so would mean the upholding and enforcement of law (or the relevant portions thereof) which, I submit with all due respect, is unconstitutional and therefore legally nonexistent. I also reiterate that, in my humble opinion, RA 8177 (the Lethal Injection Law) is likewise unconstitutional since it merely prescribes the manner in which RA 7659 ( the Death Penalty Law) is to implemented. Having said that, I stress, however, that I defer to the rule of law and will abide by the ruling of the Court that both RA 7659 and RA 8177 are constitutional and that death penalty should, by majority vote, be implemented by means of lethal injection. FOR THE ABOVE REASONS, I vote to deny the solicitor general's Motion for Reconsideration. G.R. No. 117472 February 7, 1997 PEOPLE OF THE PHILIPPINES vs. LEO ECHEGARAY y PILO. Supplemental Motion for Reconsideration SEPARATE OPINION Death Penalty Law Unconstitutional In his Supplemental Motion for Reconsideration 1 dated August 22, 1996 filed by his newly-retained counsel, 2 the accused raises for the first time a very crucial ground for his defense: that Republic Act. No. 7659, the law reimposing the death penalty, is unconstitutional. In the Brief and (original Motion for Reconsideration filed by his previous counsel, 3 this transcendental issue was nor brought up. Hence, it was not passed upon by this Court in its Decision affirming the trial court's sentence of death. 4 The Constitution Abolished Death Penalty Sec. 19, Article III of the 1987 Constitution provides:
Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. (Emphasis supplied)

The second and third sentences of the above provision are new and had not been written in the 1935, 1973 or even in the 1986 "Freedom Constitution." They proscribe the imposition 5 of the death penalty "unless for compelling reasons involving heinous

crimes, Congress provides for it," and reduced "any death penalty already imposed" to reclusion perpetua. The provision has both a prospective aspect (it bars the future imposition of the penalty) and a retroactive one (it reduces imposed capital sentences to the lesser penalty of imprisonment). This two-fold aspect is significant. It stresses that the Constitution did not merely suspend the imposition of the death penalty, but in fact completely abolished it from the statute books. The automatic commutation or reduction to reclusion perpetua of any death penalty extant as of the effectivity of the Constitution clearly recognizes that, while the conviction of an accused for a capital crime remains, death as a penalty ceased to exist in our penal laws and thus may longer be carried out. This is the clear intent of the framers of our Constitution. As Comm. Bernas ex-claimed, 6 "(t)he majority voted for the constitutional abolition of the death penalty." Citing this and other similar pronouncements of the distinguished Concom delegate, Mme. Justice Ameurfina Melencio-Herrera emphasized, 7 "It is thus clear that when Fr. Bernas sponsored the provision regarding the non-imposition of the death penalty, what he had in mind was the total abolition and removal from the statute books of the death penalty. This became the intent of the frames of the Constitution when they approved the provision and made it a part of the Bill of Rights." With such abolition as a premise, restoration thereof becomes an exception to a constitutional mandate. Being an exception and thus in derogation of the Constitution, it must then be strictly construed against the State and liberally in favor of the people. 8 In this light, RA 7659 enjoys no presumption of constitutionality. The Constitution Strictly Limits Congressional Prerogative to Prescribe Death To me, it is very clear that the Constitution (1) effectively removed the death penalty from the then existing statutes but (2) authorized Congress to restore it at some future time to enable or empower courts to reimpose it on condition that it (Congress) 9 finds "compelling reasons, involving heinous crimes." The language of the Constitution is emphatic (even if "awkward" 10): the authority of Congress to "provide for it" is not absolute. Rather, it is strictly limited:
1. by "compelling reasons" that may arise after the Constitution became effective; and 2. to crimes which Congress should identify or define or characterize as "heinous."

The Constitution inexorably placed upon Congress the burden of determining the existence of "compelling reasons" and of defining what crimes are "heinous" before it could exercise its law-making prerogative to restore the death penalty. For clarity's sake, may I emphasize that Congress, by law; prescribes the death penalty on certain crimes; and courts, by their decisions, impose it on individual offenders found guilty beyond reasonable doubt of committing said crimes.

In the exercise of this fundamental mandate, Congress enacted RA 7659 11 to "provide for it" (the death penalty) (1) by amending certain provisions of the Revised Penal Code; 12 (2) by incorporating a new article therein; 13 and (3) by amending certain special laws.
14

But RA 7659 did not change the nature or the elements of the crimes stated in the Penal Code and in the special laws. It merely made the penalty more severe. Neither did its provisions (other than the preamble, which was cast in general terms) discuss or justify the reasons for the more sever sanction, either collectively for all the offenses or individually for each of them. Generally, it merely reinstated the concept of and the method by which the death penalty had been imposed until February 2, 1987, when the Constitution took effect as follows: (1) a person is convicted of a capital offense; and (2) the commission of which was accompanied by aggravating circumstances not outweighed by mitigating circumstances. The basic question then is: In enacting RA 7659, did Congress exceed the limited authority granted it by the Constitution? More legally put: It reviving the death penalty, did Congress act with grave abuse of discretion or in excess of the very limited power or jurisdiction conferred on it by Art. III, Sec. 19? The answer, I respectfully submit, is YES. Heinous Crimes To repeal, while he Constitution limited the power of Congress to prescribe the death penalty ONLY to "heinous" crimes, it did not define or characterize the meaning of "heinous". Neither did Congress. As already stated, RA 7659 itself merely selected some existing crimes for which it prescribed death as an applicable penalty. It did not give a standard or a characterization by which courts may be able to appreciate the heinousness of a crime. I concede that Congress was only too well aware of its constitutionally limited power. In deference thereto, it included a paragraph in the preambular or "whereas" clauses of RA 7659, as follows:
WHEREAS, the crimes punishable by death under this Act are heinous for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society.

In my humble view, however, the foregoing clause is clearly an insufficient definition or characterization of what a heinous crime is. It simply and gratuitously declared certain crimes to be "heinous" without adequately justifying its bases therefor. It supplies no useful, workable, clear and unambiguous standard by which the presence of heinousness can be determined. Calling the crimes "grievous, odious and hateful" is not a substitute for an objective juridical definition. Neither is the description "inherent or manifest wickedness, viciousness, atrocity and perversity." Describing blood as blue

does not detract from its being crimson in fact; and renaming gumamela as rose will not arm it with thorns. Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is clear and unambiguous, the preamble can neither expand nor restrict its operation, much less prevail over its text. 15 In this case, it cannot be the authoritative source to show compliance with the Constitution. As already alluded to, RA 7659 merely amended certain laws to prescribe death as the maximum imposable penalty once the court appreciates the presence or absence of aggravating circumstances. 16 In other words, it just reinstated capital punishment for crimes which were already punishable with death prior to the effectivity of the 1987 Constitution. With the possible exception of plunder and qualified bribery, 17 no new crimes were introduced by RA 7659. The offenses punished by death under said law were already to punishable by the Revised Penal Code 18 and by special laws. During the debate on Senate Bill No. 891 which later became RA 7659, Sen. Jose Lina, in answer to a question of Sen. Ernesto Maceda, wryly said: 19
So we did not go that far from the Revised Penal Code, Mr. President, and from existing special laws which, before abolition of the death penalty, had already death as the maximum penalty.

By merely reimposing capital punishment on the very same crimes which were already penalized with death prior to the charter's effectivity, Congress I submit has not fulfilled its specific and positive constitutional duty. If the Constitutional Commission intended merely to allow Congress to prescribe death for these very same crimes, it would not have written Sec. 19 of Article III into the fundamental law. But the stubborn fact is it did. Verily, the intention to 1) delete the death penalty from our criminal laws and 2) make its restoration possible only under and subject to stringent conditions is evident not only from the language of the Constitution but also from the charter debates on this matter. The critical phrase "unless for compelling reasons involving heinous crimes" was an amendment introduced by Comm. Christian Monsod. In explaining what possible crimes could qualify as heinous, he and Comm. Jose Suarez agreed on "organized murder" or "brutal murder of a rape victim". 20 Note that the honorable commissioners did not just say "murder" but organized murder; not just rape but brutal murder of a rape victim. While the debates were admittedly rather scanty, I believe that the available information shows that, when deliberating on "heinousness", the Constitutional Commission did not have in mind the offenses already existing and already penalized with death. I also believe that the heinousness clause requires that:

1. the crimes should be entirely new offenses, the elements of which have an inherent quality, degree or level of perversity, depravity or viciousness unheard of until then; or 2. even existing crimes, provided some new element or essential ingredient like "organized" or "brutal" is added to show their utter perversity, odiousness or malevolence; or 3. the means or method by which the crime, whether new or old, is carried out evinces a degree or magnitude of extreme violence, evil, cruelty, atrocity, viciousness as to demonstrate its heinousness.
21

For this purpose, Congress could enact an entirely new set of circumstances to qualify the crime as "heinous", in the same manner that the presence of treachery in a homicide aggravates the crime to murder for which a heavier penalty is prescribed. Compelling Reasons Quite apart from requiring the attendant element of heinousness, the Constitution also directs Congress to determine "compelling reasons" for the revival of the capital penalty. It is true that paragraphs 3 and 4 of the preamble of RA 7659 22 made some attempt at meeting this requirement. But such effort was at best feeble and inconsequential. It should be remembered that every word or phrase in the Constitution is sacred and should never be ignored, cavalierly-treated or brushed aside. Thus, I believe that the compelling reasons and the characterization of heinousness cannot be done wholesale but must shown for each and every crime, individually and separately. The words "compelling reasons" were included in the Charter because, in the words of Comm. Monsod, "in the future, circumstances may arise which we should not preclude today . . . and that the conditions and the situation (during the deliberations of the Constitutional Commission) might change for very specific reasons" requiring the return of the constitutionally-abhorred penalty. In his sponsorship of House Bill No. 62 which later evolved into RA 7659, Congressman Pablo Garcia, in answer to questions raised by Representative Edcel Lagman tried to explain these compelling reasons: 23
MR. LAGMAN: So what are the compelling reasons now, Mr. Speaker? . . . MR. GARCIA (P.). The worsening peace and order condition in the country, Mr. Speaker. That is one. MR. LAGMAN. So the compelling reason which the distinguished sponsor would like to justify or serve as an anchor for the justification of the reimposition of the death penalty is the alleged worsening peace and order situation. The Gentleman claims that is one the compelling reasons. But before we dissent this particular "compelling reason," may we know what are the other compelling reasons, Mr. Speaker?

MR. GARCIA (P.) Justice, Mr. Speaker. MR. LAGMAN. Justice. MR. GARCIA (P.). Yes, Mr. Speaker. MR. LAGMAN. Justice is a compelling reason, Mr. Speaker? Could the Gentleman kindly elaborate on that answer? Why is justice a compelling reason as if justice was not obtained at the time the Constitution abolished the death penalty? Any compelling reason should be a supervening circumstances after 1987. MR. GARCIA (P.). Mr. Speaker, I have repeatedly said again and again that if one lives in an organized society governed by law, justice demands that crime be punished and that the penalty imposed be commensurate with the offense committed. MR. LAGMAN. The Gentleman would agree with me that when the Constitution speaks of the compelling reasons to justify the reimposition of death penalty, it refers to reasons which would supervene or come after the approval of the 1987 Constitution. Is he submitting that justice, in his own concept of a commensurate penalty for the offense committed, was not obtained in 1987 when the Constitution abolished the death penalty and the people ratified it? MR. GARCIA (P.). That is precisely why we are saying that now, under present conditions, because of the seriousness of the offenses being committed at this time, justice demands that the appropriate penalty must be meted out for those who have committed heinous crimes. xxx xxx xxx

In short, Congressman Garcia invoked the preambular justifications of "worsening peace and order" and "justice". With all due respect I submit that these grounds are not "compelling" enough to justify the revival of state-decreed deaths. In fact, I dare say that these "reasons" were even non-existent. Statistics from the Philippine National Police show that the crime volume and crime rate particularly on those legislated capital offenses did not worsen but in fact declined between 1987, the date when the Constitution took effect, and 1993, the year when RA 7659 was enacted. Witness the following debate 24 also between Representatives Garcia and Lagman:
MR. LAGMAN. Very good, Mr. Speaker. Now, can we go to 1987. Could the Gentleman from Cebu inform us the volume of the crime of murder in 1987? MR. GARCIA (P.). The volume of the crime of murder in 1987 is 12,305. MR. LAGMAN. So, the corresponding crime rate was 21 percent. MR. GARCIA (P.). Yes, Mr. Speaker. MR. LAGMAN. That was in 1987, Mr. Speaker, could the distinguished chairman inform us the volume of murder in 1988?

MR. GARCIA (P.). It was 10,521, Mr. Speaker. MR. LAGMAN. Or it was a reduction from 12,305 in 1987 to 10,521 in 1988. Correspondingly, the crime rate in the very year after the abolition of the death penalty was reduced from 21 percent to 18 percent. Is that correct, Mr. Speaker? MR. GARCIA (P.). That is correct, Mr. Speaker. Those are the statistics supplied by the PC. MR. LAGMAN. Now can we go again to 1987 when the Constitution abolished the death penalty? May we know from the distinguished Gentleman the volume of robbery in 1987? MR. GARCIA (P.). Will the Gentleman state the figure? I will confirm it. MR. LAGMAN. No, Mr. Speaker, I am asking the question. MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the crime rate was 40 percent. MR. LAGMAN. This was the year immediately after the abolition of the death penalty. Could the Gentleman tell us the volume of robbery cases in 1988? MR. GARCIA (P.). It was 16,926, Mr. Speaker. MR. LAGMAN. Obviously, the Gentleman would agree with me. Mr. Speaker that the volume of robbery cases declined from 22,942 in 1987 or crime rate of 40 percent to 16,926 or a crime rate of 29 percent. Would the Gentleman confirm that, Mr. Speaker? MR. GARCIA (P.). This is what the statistics say, I understand we are reading now from the same document. MR. LAGMAN. Now, going to homicide, the volume 1987 was 12,870 or a crime rate of 22 percent. The volume in 1988 was 11,132 or a crime rate of 19 percent. Would the Gentleman confirm that, Mr. Speaker? MR. GARCIA (P.). As I Said, Mr. Speaker, we are reading from the same document and I would not want to say that the Gentleman is misreading the document that I have here. MR. LAGMAN. But would the Gentleman confirm that? MR. GARCIA (P.). The document speaks for itself.

When interpellated by Sen. Arturo Tolentino, Sen. Jose Lina gave some figures on the number of persons arrested in regard to drug-related offenses in the year 1987 as compared to 1991: 25
Let me cite this concrete statistics by the Dangerous Drug Board. In 1987 — this was the year when the death penalty was abolished — the persons arrested in drug-related cases were 3,062, and the figure dropped to 2,686 in 1988.

By the way, I will furnish my Colleagues with a photocopy of this report. From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in 1989. It still decreased to 2,202 in 1990, and it increased again to 2,862 in 1991. But in 1987, when the death penalty was abolished, as far as the drug-related cases are concerned, the figure continued a downward trend, and there was no death penalty in this time from, 1988 to 1991.

In a further attempt to show compelling reasons, the proponents of the death penalty argue that its reimposition "would pose as an effective deterrent against heinous crimes." 26 However no statistical data, no sufficient proof, empirical or otherwise, have been submitted to show with any conclusiveness the relationship between the prescription of the death penalty for certain offenses and the commission or noncommission thereof. This is a theory that can be debated on and on, 27 in the same manner that another proposition — that the real deterrent to crime is the certainty of immediate arrest, prosecution and conviction of the culprit without unnecessary risk, expense and inconvenience to the victim, his heirs or his witnesses — can be argued indefinitely. 28 This debate can last till the academics grow weary of the spoken word, but it would not lessen the constitutionally-imposed burden of Congress to act within the "heinousness" and "compelling reasons" limits of its death-prescribing power. Other Constitutional Rights Militate Against RA 7659 It should be emphasized that the constitutional ban against the death penalty is included in our Bill of Rights. As such, it should — like any other guarantee in favor of the accused — be zealously protected, 29 and any exception thereto meticulously screened. Any doubt should be resolved in favor of the people, particularly where the right pertains to persons accused of crimes. 30 Here the issue is not just crimes — but capital crimes! So too, all our previous Constitutions, including the first one ordained at Malolos, guarantee that "(n)o person shall be deprived of life, liberty or property without due process of law." 31 This primary right of the people to enjoy life — life at its fullest, life in dignity and honor — is not only reiterated by the 1987 Charter but is in fact fortified by its other pro-life and pro-human rights provisions. Hence, the Constitution values the dignity of every human person and guarantees full respect for human rights, 32 expressly prohibits any form of torture 33 which is arguably a lesser penalty than death, emphasizes the individual right to life by giving protection to the life of the mother and the unborn from the moment of conception 34 and establishes the people's rights to health, a balanced ecology and education. 35 This Constitutional explosion of concern for man more than property for people more than the state, and for life more than mere existence augurs well for the strict application of the constitutional limits against the revival of death penalty as the final and irreversible exaction of society against its perceived enemies.

Indeed, volumes have been written about individual rights to free speech. assembly and even religion. But the most basic and most important of these rights is the right to life. Without life, the other rights cease in their enjoyment, utility and expression. This opinion would not be complete without a word on the wrenching fact that the death penalty militates against the poor, the powerless and the marginalized. The "Profile of 165 Death Row Convicts" submitted by the Free Legal Assistance Group 36 highlights this sad fact:
1. Since the reimposition of the death penalty, 186 persons
37

have been sentenced to death. At the end of 1994, there were 24 death penalty convicts, at the end of 1995, the number rose to 90; an average of seven (7) convicts per month; double the monthly average of capital sentences imposed the prior year. From January to June 1996, the number of death penalty convicts reached 72, an average of 12 convicts per month, almost double the monthly average of capital sentences imposed in 1995. 2. Of the 165 convicts polled, approximately twenty one percent (21%) earn between P200 to P2,900 monthly; while approximately twenty seven percent (27%) earn between P3,000 to P3,999 monthly. Those earning above P4,000 monthly are exceedingly few: seven percent (7%) earn between P4,000 to P4,999, four percent (4%) earn between P5,000 to P5,999, seven percent (7%) earn between P6,000 to P6,999, those earning between P7,000 to P15,000 comprise only four percent (4%), those earning P15,000 and above only one percent (1%). Approximately thirteen percent (13%) earn nothing at all, while approximately two percent (2%) earn subsistence wages with another five percent (5%) earning variable income. Approximately nine percent (9%) do not know how much they earn in a month. 3. Thus, approximately two-thirds of the convicts, about 112 of them, earn below the government-mandated minimum monthly wage of P4,290; ten (10) of these earn below the official poverty line set by government. Twenty six (26) earn between P4,500.00 and P11,0000.00 monthly, indicating they belong to the middle class; only one (1) earns P30.000.00 monthly. Nine (9) convicts earn variable income or earn on a percentage or allowance basis; fifteen (15) convicts do not know or are unsure of their monthly income. Twenty two (22) convicts earn nothing at all. 4. In terms of occupation, approximately twenty one percent (21%) are agricultural workers or workers in animal husbandry; of these thirty (30), or almost one-fifth thereof, are farmers. Thirty five percent (35%) are in the transport and construction industry, with thirty one (31) construction workers or workers in allied fields (carpentry, painting, welding) while twenty seven (27) are transport workers (delivery, dispatcher, mechanic, tire man, truck helper) with sixteen (16) of them drivers. Eighteen percent (18%) are in clerical, sales and service industries, with fourteen (14) sales workers (engaged in buy and sell or fish, cigarette or rice vendors), twelve (12) service workers (butchers, beauticians, security guards, shoemakers, tour guides, computer programmers, radio technicians) and four (4) clerks (janitors, MERALCO employee and clerk) About four percent (4%) are government workers, with six (6) persons belonging to the armed services (AFP, PNP and even CAFGU). Professionals, administrative employee and executives comprise only three percent (3%), nine percent (9%) are unemployed. 5. None of the DRC's use English as their medium of communication. About forty four percent (44%), or slightly less than half speak and understand Tagalog; twenty six percent (26%), or about one-fourth, speak and understand Cebuano. The rest speak and understand Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense and Waray. One (1) convict is a foreign national and speaks and understand Niponggo.

6. Approximately twelve percent (12%) graduated from college, about forty seven percent (47%) finished varying levels of elementary education with twenty seven (27) graduating from elementary. About thirty five percent (35%), fifty eight (58) convicts, finished varying levels of high school, with more than half of them graduating from high school. Two (2) convicts finished vocational education; nine (9) convicts did not study at all.

The foregoing profile based on age, language and socio-economic situations sufficiently demonstrates that RA 7659 has militated against the poor and the powerless in society — those who cannot afford the legal services necessary in capital crimes, where extensive preparation, investigation, research and presentation are required. The best example to shoe the sad plight of the underprivileged is this very case where the crucial issue of constitutionality was woefully omitted in the proceedings in the trial court and even before this Court until the Free legal Assistance Group belatedly brought it up in the Supplemental Motion for Reconsideration. To the poor and unlettered, it is bad enough that the law is complex and written in a strange, incomprehensible language. Worse still, judicial proceedings are themselves complicated, intimidating and damning. The net effect of having a death penalty that is imposed more often than not upon the impecunious is to engender in the minds of the latter, a sense — unfounded, to be sure, but unhealthy nevertheless — of the unequal balance of the scales of justice. Most assuredly, it may be contended that the foregoing arguments, and in particular, the statistics above-cited, are in a very real sense prone to be misleading, and that regardless of the socio-economic profile of the DRCs, the law reviving capital punishment does not in any way single out or discriminate against the poor, the unlettered or the underprivileged. To put it in another way, as far as the disadvantaged are concerned, the law would still be complex and written in a strange and incomprehensible language, and judicial proceedings complicated and intimidating, whether the ultimate penalty involved be life (sentence) or death. Another aspect of the whole controversy is that, whatever the penalties set by law, it seems to me that there will always be certain class or classes of people in our society who, by reason of their poverty, lack of educational attainment and employment opportunities, are consequently confined to living, working and subsisting in less-than-ideal environments, amidst lessthan-genteel neighbors similarly situated as themselves, and are therefore inherently more prone to be involved (as victims or perpetrators) in vices, violence and crime. So from that perspective, the law reviving the death penalty neither improves nor worsens their lot substantially. Or, to be more precise, such law may even be said to help improve their situation (at least in theory) by posing a much stronger deterrent to the commission of heinous crimes. However, such a viewpoint simply ignores the very basic differences that exist in the situations of the poor and the non-poor. Precisely because the underprivileged are what they are, they require and deserve a greater degree of protection and assistance from our laws and Constitution, and from the courts and the State, so that in spite of themselves, they can be empowered to rise above themselves and their situation. The basic postulates for such a position are, I think, simply that everyone ultimately wants to

better himself and that we cannot better ourselves individually to any significant degree if we are unable to advance as an entire people and nation. All the pro-poor provisions of the Constitution point in this direction. Yet we are faced with this law that effectively inflicts the ultimate punishment on none other than the poor and disadvantaged in the greater majority of cases, and which penalty, being so obviously final and so irreversibly permanent, erases all hope of reform, of change for the better. This law, I submit, has no place in our legal, judicial and constitutional firmament. Epilogue In sum, I respectfully submit that: (1) The 1987 Constitution abolished the death penalty from our statute books. It did not merely suspend or prohibit its imposition. (2) The Charter effectively granted a new right: the constitution right against the death penalty, which is really a species of the right to life. (3) Any law reviving the capital penalty must be strictly construed against the State and liberally in favor of the accused because such a stature denigrates the Constitution, impinges on a basic right and tends to deny equal justice to the underprivileged. (4) Every word or phrase in the Constitution is sacred and should never be ignored, cavalierly-treated or brushed aside. (5) Congressional power death is severely limited by two concurrent requirements:
a. First, Congress must provide a set of attendant circumstances which the prosecution
must prove beyond reasonable doubt, apart from the elements of the crime and itself. Congress must explain why and how these circumstances define or characterize the crime as "heinous". b. Second, Congress has also the duty of laying out clear and specific reasons which arose after the effectivity of the Constitution compelling the enactment of the law. It bears repeating that these requirements are inseparable. They must both be present in view of the specific constitutional mandate — "for compelling reasons involving heinous crimes." The compelling reason must flow from the heinous nature of the offense.

(6) In every law reviving the capital penalty, the heinousness and compelling reasons must be set out for each and every crime, and not just for all crimes generally and collectively. "Thou shall not kill" is fundamental commandment to all Christians, as well as to the rest of the "sovereign Filipino people" who believe in Almighty God. 38 While the Catholic Church, to which the vast majority of our people belong, acknowledges the power of public authorities to prescribe the death penalty, it advisedly limits such prerogative only to "cases of extreme gravity." 39 To quote Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to Life), 40 "punishment must be carefully evaluated and decided upon, and ought not to go

to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society . . . (which is) very rare, if not practically non-existent." Although not absolutely banning it, both the Constitution and the Church indubitably abhor the death penalty. Both are pro-people and pro-life. Both clearly recognize the primacy of human life over and above even the state which man created precisely to protect, cherish and defend him. The Constitution reluctantly allows capital punishment only for "compelling reasons involving heinous crimes" just as the Church grudgingly permits it only reasons of "absolute necessity" involving crimes of "extreme gravity", which are very rare and practically non-existent. In the face of these evident truisms, I ask: Has the Congress, in enacting RA 7659, amply discharged its constitutional burden of proving the existence of "compelling reasons" to prescribe death against well-defined "heinous" crimes? I respectfully submit it has not. WHEREFORE, the premises considered, I respectfully vote to grant partially the Supplemental Motion for Reconsideration and to modify the dispositive portion of the decision of the trial court by deleting the words "DEATH", as provided for under RA 7659," and substitute therefore reclusion perpetua. I further vote to declare RA 7659 unconstitutional insofar as it prescribes the penalty of death for the crimes mentioned in its text. Separate Opinions VITUG, J., separate opinion; Let me state at the outset that I have humbly maintained that Republic Act No. 7659, insofar as it prescribes the death penalty, falls short of the strict norm set forth by the Constitution. I and some of my brethren on the Court, who hold similarly, have consistently expressed this stand in the affirmance by the Court of death sentences imposed by Regional Trial Courts. In its resolution of 04 January 1999, the Court resolved to issue in the above-numbered petition a temporary restraining order ("TRO") because, among other things, of what had been stated to be indications that Congress would re-examine the death penalty law. It was principally out of respect and comity to a co-equal branch of the government, i.e., to reasonably allow it that opportunity if truly minded, that motivated the Court to grant, after deliberation, a limited time for the purpose. The Court, it must be stressed, did not, by issuing the TRO, thereby reconsider its judgment convicting the accused or recall the imposition of the death penalty.

The doctrine has almost invariably been that after a decision becomes final and executory, nothing else is further done except to see to its compliance since for the Court to adopt otherwise would be to put no end to litigations The rule notwithstanding, the Court retains control over the case until the full satisfaction of the final judgment conformably with established legal processes. Hence, the Court has taken cognizance of the petition assailing before it the use of lethal injection by the State to carry out the death sentence. In any event, jurisprudence teaches that the rule of immutability of final and executory judgments admits of settled exceptions. Concededly, the Court may, for instance, suspend the execution of a final judgment when it becomes imperative in the higher interest of justice or when supervening events warrant it. 1 Certainly, this extraordinary relief cannot be denied any man, whatever might be his station, whose right to life is the issue at stake. The pronouncement in Director of Prisons vs. Judge of First Instance of Cavite, 2 should be instructive. Thus —
This Supreme Court has repeatedly declared in various decisions, which constitute jurisprudence on the subject, that in criminal cases, after the sentence has been pronounced and the period for reopening the same has elapsed, the court can not change or after its judgment, as its jurisdiction has terminated, functus est officio suo, according to the classical phrase. When in cases of appeal or review the cause has been returned thereto for execution, in the event that the judgment has been affirmed, it performs a ministerial duty in issuing the proper order. But it does not follow from this cessation of functions on the part of the court with reference to the ending of the cause that the judicial authority terminates by having then passed completely to the executive. The particulars of the execution itself, which are certainly not always included in the judgment and writ of execution, in any event are absolutely under the control of the judicial authority, while the executive has no power over the person of the convict except to provide for carrying out the penalty and to pardon. Getting down to the solution of the question in the case at bar, which is that of execution of a capital sentence, it must be accepted as a hypothesis that postponement of the date can be requested. There can be no dispute on this point. It is a well-known principle that, notwithstanding the order of execution and the executory nature thereof on the date set or at the proper time, the date therefor can be postponed, even in sentences of death. Under the common law this postponement can be ordered in three ways: (1) By command of the King; (2) by discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state this principle of the common law to render impossible the assertion in absolute terms that after the convict has once been placed in jail the trial court can not reopen the case to investigate the facts that show the need for postponement. If one of the ways is by direction of the court, it is acknowledged that even after the date of the execution has been fixed, and notwithstanding the general rule that after the Court of First Instance has performed its ministerial duty of ordering the execution, functus est officio suo, and its part is ended, if however a circumstance arises that ought to delay the execution, there is an imperative duty to investigate the emergency and to order a postponement . . ..

In fine, the authority of the Court to see to the proper execution of its final judgment, the power of the President to grant pardon, commutation or reprieve, and the prerogative of Congress to repeal or modify the law that could benefit the convicted accused are not essentially preclusive of one another nor constitutionally incompatible and may each be exercised within their respective spheres and confines. Thus, the stay of execution issued by the Court would not prevent either the President from exercising his

pardoning power or Congress from enacting a measure that may be advantageous to the adjudged offender. The TRO of this Court has provided that it shall be lifted even before its expiry date of 15 June 1999, "coeval with the duration of the present regular session of Congress," if it "sooner becomes certain that no repeal or modification of the law is going to be made." The "Urgent Motion for Reconsideration" filed by the Office of the Solicitor General states that as of the moment, "certain circumstances/supervening events (have) transpired to the effect that the repeal or modification of the law imposing death penalty has become nil . . .." If, indeed, it would be futile to yet expect any chance for a timely 3 re-examination by Congress of the death penalty law, then I can appreciate why the majority of the Justices on the Court feel rightly bound even now to lift the TRO. I am hopeful, nevertheless, that Congress will in time find its way clear to undertaking a most thorough and dispassionate re-examination of the law not so much for its questioned wisdom as for the need to have a second look at the conditions sine qua non prescribed by the Constitution in the imposition of the death penalty. In People vs. Masalihit, 4 in urging, with all due respect, Congress to consider a prompt re-examination of the death penalty law, I have said:
The determination of when to prescribe the death penalty lies, in the initial instance, with the law-making authority, the Congress of the Philippines, subject to the conditions that the Constitution itself has set forth; viz: (1) That there must be compelling reasons to justify the imposition of the death penalty; and (2) That the capital offense must involve a heinous crime. It appears that the fundamental law did not contemplate a simple 'reimposition' of the death penalty to offenses theretofore already provided in the Revised Penal Code or, let alone, just because of it. The term 'compelling reasons' would indicate to me that there must first be a marked change in the milieu from that which has prevailed at the time of adoption of the 1987 Constitution, on the one hand, to that which exists at the enactment of the statute prescribing the death penalty, upon the other hand, that would make it distinctively inexorable to allow the re-imposition of the death penalty. Most importantly, the circumstances that would characterize the 'heinous nature' of the crime and make it so exceptionally offensive as to warrant the death penalty must be spelled out with great clarity in the law, albeit without necessarily precluding the Court from exercising its power of judicial review given the circumstances of each case. To venture, in the case of murder, the crime would become 'heinous' within the Constitutional concept, when, to exemplify, the victim is unnecessarily subjected to a painful and excruciating death or, in the crime of rape, when the offended party is callously humiliated or even brutally killed by the accused. The indiscriminate imposition of the death penalty could somehow constrain courts to apply, perhaps without consciously meaning to, stringent standards for conviction, not too unlikely beyond what might normally be required in criminal cases, that can, in fact, result in undue exculpation of offenders to the great prejudice of victims and society.

Today, I reiterate the above view and until the exacting standards of the Constitution are clearly met as so hereinabove expressed, I will have to disagree, most respectfully, with my colleagues in the majority who continue to hold the presently structured Republic Act No. 7659 to be in accord with the Constitution, an issue that is fundamental, constant and inextricably linked to the imposition each time of the death penalty and, like the instant petition, to the legal incidents pertinent thereto.

Accordingly, I vote against the lifting of the restraining order of the Court even as I, like everyone else, however, must respect and be held bound by the ruling of the majority.

PANGANIBAN, J., separate opinion; I agree with the Court's Resolution that, without doubt, this Court has jurisdiction to issue the disputed Temporary Restraining Order (TRO) on January 4, 1999. I will not repeat its well-reasoned disquisition. I write only to explain my vote in the context of the larger issue of the death penalty. Since the solicitor general has demonstrated that Congress will not repeal or amend RA 7659 during its current session which ends on June 15, 1999 and that, in any event, the President will veto any such repeal or amendment, the TRO should by its own terms be deemed lifted now. However, my objections to the imposition of the death penalty transcend the TRO and permeate its juridical essence. I maintain my view that RA 7659 (the Death Penalty Law) is unconstitutional insofar as some parts thereof prescribing the capital penalty fail to comply with the requirements of "heinousness" and "compelling reasons" prescribed by the Constitution of the Philippines. * This I have repeatedly stated in my Dissenting Opinion in various death cases decided by the Court, as well as during the Court's deliberation on this matter on January 4, 1999. For easy reference, I hereby attach a copy of my Dissent promulgated on February 7, 1997. Consequently, I cannot now vote to lift TRO, because to do so would mean the upholding and enforcement of law (or the relevant portions thereof) which, I submit with all due respect, is unconstitutional and therefore legally nonexistent. I also reiterate that, in my humble opinion, RA 8177 (the Lethal Injection Law) is likewise unconstitutional since it merely prescribes the manner in which RA 7659 ( the Death Penalty Law) is to implemented. Having said that, I stress, however, that I defer to the rule of law and will abide by the ruling of the Court that both RA 7659 and RA 8177 are constitutional and that death penalty should, by majority vote, be implemented by means of lethal injection. FOR THE ABOVE REASONS, I vote to deny the solicitor general's Motion for Reconsideration. G.R. No. 117472 February 7, 1997 PEOPLE OF THE PHILIPPINES vs. LEO ECHEGARAY y PILO. Supplemental Motion for Reconsideration

SEPARATE OPINION Death Penalty Law Unconstitutional In his Supplemental Motion for Reconsideration 1 dated August 22, 1996 filed by his newly-retained counsel, 2 the accused raises for the first time a very crucial ground for his defense: that Republic Act. No. 7659, the law reimposing the death penalty, is unconstitutional. In the Brief and (original Motion for Reconsideration filed by his previous counsel, 3 this transcendental issue was nor brought up. Hence, it was not passed upon by this Court in its Decision affirming the trial court's sentence of death. 4 The Constitution Abolished Death Penalty Sec. 19, Article III of the 1987 Constitution provides:
Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. (Emphasis supplied)

The second and third sentences of the above provision are new and had not been written in the 1935, 1973 or even in the 1986 "Freedom Constitution." They proscribe the imposition 5 of the death penalty "unless for compelling reasons involving heinous crimes, Congress provides for it," and reduced "any death penalty already imposed" to reclusion perpetua. The provision has both a prospective aspect (it bars the future imposition of the penalty) and a retroactive one (it reduces imposed capital sentences to the lesser penalty of imprisonment). This two-fold aspect is significant. It stresses that the Constitution did not merely suspend the imposition of the death penalty, but in fact completely abolished it from the statute books. The automatic commutation or reduction to reclusion perpetua of any death penalty extant as of the effectivity of the Constitution clearly recognizes that, while the conviction of an accused for a capital crime remains, death as a penalty ceased to exist in our penal laws and thus may longer be carried out. This is the clear intent of the framers of our Constitution. As Comm. Bernas ex-claimed, 6 "(t)he majority voted for the constitutional abolition of the death penalty." Citing this and other similar pronouncements of the distinguished Concom delegate, Mme. Justice Ameurfina Melencio-Herrera emphasized, 7 "It is thus clear that when Fr. Bernas sponsored the provision regarding the non-imposition of the death penalty, what he had in mind was the total abolition and removal from the statute books of the death penalty. This became the intent of the frames of the Constitution when they approved the provision and made it a part of the Bill of Rights." With such abolition as a premise, restoration thereof becomes an exception to a constitutional mandate. Being an exception and thus in derogation of the Constitution, it must then be strictly construed against the State and liberally in favor of the people. 8 In this light, RA 7659 enjoys no presumption of constitutionality.

The Constitution Strictly Limits Congressional Prerogative to Prescribe Death To me, it is very clear that the Constitution (1) effectively removed the death penalty from the then existing statutes but (2) authorized Congress to restore it at some future time to enable or empower courts to reimpose it on condition that it (Congress) 9 finds "compelling reasons, involving heinous crimes." The language of the Constitution is emphatic (even if "awkward" 10): the authority of Congress to "provide for it" is not absolute. Rather, it is strictly limited:
1. by "compelling reasons" that may arise after the Constitution became effective; and 2. to crimes which Congress should identify or define or characterize as "heinous."

The Constitution inexorably placed upon Congress the burden of determining the existence of "compelling reasons" and of defining what crimes are "heinous" before it could exercise its law-making prerogative to restore the death penalty. For clarity's sake, may I emphasize that Congress, by law; prescribes the death penalty on certain crimes; and courts, by their decisions, impose it on individual offenders found guilty beyond reasonable doubt of committing said crimes. In the exercise of this fundamental mandate, Congress enacted RA 7659 11 to "provide for it" (the death penalty) (1) by amending certain provisions of the Revised Penal Code; 12 (2) by incorporating a new article therein; 13 and (3) by amending certain special laws. 14 But RA 7659 did not change the nature or the elements of the crimes stated in the Penal Code and in the special laws. It merely made the penalty more severe. Neither did its provisions (other than the preamble, which was cast in general terms) discuss or justify the reasons for the more sever sanction, either collectively for all the offenses or individually for each of them. Generally, it merely reinstated the concept of and the method by which the death penalty had been imposed until February 2, 1987, when the Constitution took effect as follows: (1) a person is convicted of a capital offense; and (2) the commission of which was accompanied by aggravating circumstances not outweighed by mitigating circumstances. The basic question then is: In enacting RA 7659, did Congress exceed the limited authority granted it by the Constitution? More legally put: It reviving the death penalty, did Congress act with grave abuse of discretion or in excess of the very limited power or jurisdiction conferred on it by Art. III, Sec. 19? The answer, I respectfully submit, is YES. Heinous Crimes To repeal, while he Constitution limited the power of Congress to prescribe the death penalty ONLY to "heinous" crimes, it did not define or characterize the meaning of

"heinous". Neither did Congress. As already stated, RA 7659 itself merely selected some existing crimes for which it prescribed death as an applicable penalty. It did not give a standard or a characterization by which courts may be able to appreciate the heinousness of a crime. I concede that Congress was only too well aware of its constitutionally limited power. In deference thereto, it included a paragraph in the preambular or "whereas" clauses of RA 7659, as follows:
WHEREAS, the crimes punishable by death under this Act are heinous for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society.

In my humble view, however, the foregoing clause is clearly an insufficient definition or characterization of what a heinous crime is. It simply and gratuitously declared certain crimes to be "heinous" without adequately justifying its bases therefor. It supplies no useful, workable, clear and unambiguous standard by which the presence of heinousness can be determined. Calling the crimes "grievous, odious and hateful" is not a substitute for an objective juridical definition. Neither is the description "inherent or manifest wickedness, viciousness, atrocity and perversity." Describing blood as blue does not detract from its being crimson in fact; and renaming gumamela as rose will not arm it with thorns. Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is clear and unambiguous, the preamble can neither expand nor restrict its operation, much less prevail over its text. 15 In this case, it cannot be the authoritative source to show compliance with the Constitution. As already alluded to, RA 7659 merely amended certain laws to prescribe death as the maximum imposable penalty once the court appreciates the presence or absence of aggravating circumstances. 16 In other words, it just reinstated capital punishment for crimes which were already punishable with death prior to the effectivity of the 1987 Constitution. With the possible exception of plunder and qualified bribery, 17 no new crimes were introduced by RA 7659. The offenses punished by death under said law were already to punishable by the Revised Penal Code 18 and by special laws. During the debate on Senate Bill No. 891 which later became RA 7659, Sen. Jose Lina, in answer to a question of Sen. Ernesto Maceda, wryly said: 19
So we did not go that far from the Revised Penal Code, Mr. President, and from existing special laws which, before abolition of the death penalty, had already death as the maximum penalty.

By merely reimposing capital punishment on the very same crimes which were already penalized with death prior to the charter's effectivity, Congress I submit has not fulfilled

its specific and positive constitutional duty. If the Constitutional Commission intended merely to allow Congress to prescribe death for these very same crimes, it would not have written Sec. 19 of Article III into the fundamental law. But the stubborn fact is it did. Verily, the intention to 1) delete the death penalty from our criminal laws and 2) make its restoration possible only under and subject to stringent conditions is evident not only from the language of the Constitution but also from the charter debates on this matter. The critical phrase "unless for compelling reasons involving heinous crimes" was an amendment introduced by Comm. Christian Monsod. In explaining what possible crimes could qualify as heinous, he and Comm. Jose Suarez agreed on "organized murder" or "brutal murder of a rape victim". 20 Note that the honorable commissioners did not just say "murder" but organized murder; not just rape but brutal murder of a rape victim. While the debates were admittedly rather scanty, I believe that the available information shows that, when deliberating on "heinousness", the Constitutional Commission did not have in mind the offenses already existing and already penalized with death. I also believe that the heinousness clause requires that: 1. the crimes should be entirely new offenses, the elements of which have an inherent quality, degree or level of perversity, depravity or viciousness unheard of until then; or 2. even existing crimes, provided some new element or essential ingredient like "organized" or "brutal" is added to show their utter perversity, odiousness or malevolence; or 3) the means or method by which the crime, whether new or old, is carried out evinces a degree or magnitude of extreme violence, evil, cruelty, atrocity, viciousness as to demonstrate its heinousness. 21 For this purpose, Congress could enact an entirely new set of circumstances to qualify the crime as "heinous", in the same manner that the presence of treachery in a homicide aggravates the crime to murder for which a heavier penalty is prescribed. Compelling Reasons Quite apart from requiring the attendant element of heinousness, the Constitution also directs Congress to determine "compelling reasons" for the revival of the capital penalty. It is true that paragraphs 3 and 4 of the preamble of RA 7659 22 made some attempt at meeting this requirement. But such effort was at best feeble and inconsequential. It should be remembered that every word or phrase in the Constitution is sacred and should never be ignored, cavalierly-treated or brushed aside. Thus, I believe that the compelling reasons and the characterization of heinousness cannot be done wholesale but must shown for each and every crime, individually and separately. The words "compelling reasons" were included in the Charter because, in the words of Comm. Monsod, "in the future, circumstances may arise which we should not preclude today . . . and that the conditions and the situation (during the deliberations of the

Constitutional Commission) might change for very specific reasons" requiring the return of the constitutionally-abhorred penalty. In his sponsorship of House Bill No. 62 which later evolved into RA 7659, Congressman Pablo Garcia, in answer to questions raised by Representative Edcel Lagman tried to explain these compelling reasons: 23
MR. LAGMAN: So what are the compelling reasons now, Mr. Speaker? . . . MR. GARCIA (P.). The worsening peace and order condition in the country, Mr. Speaker. That is one. MR. LAGMAN. So the compelling reason which the distinguished sponsor would like to justify or serve as an anchor for the justification of the reimposition of the death penalty is the alleged worsening peace and order situation. The Gentleman claims that is one the compelling reasons. But before we dissent this particular "compelling reason," may we know what are the other compelling reasons, Mr. Speaker? MR. GARCIA (P.) Justice, Mr. Speaker. MR. LAGMAN. Justice. MR. GARCIA (P.). Yes, Mr. Speaker. MR. LAGMAN. Justice is a compelling reason, Mr. Speaker? Could the Gentleman kindly elaborate on that answer? Why is justice a compelling reason as if justice was not obtained at the time the Constitution abolished the death penalty? Any compelling reason should be a supervening circumstances after 1987. MR. GARCIA (P.). Mr. Speaker, I have repeatedly said again and again that if one lives in an organized society governed by law, justice demands that crime be punished and that the penalty imposed be commensurate with the offense committed. MR. LAGMAN. The Gentleman would agree with me that when the Constitution speaks of the compelling reasons to justify the reimposition of death penalty, it refers to reasons which would supervene or come after the approval of the 1987 Constitution. Is he submitting that justice, in his own concept of a commensurate penalty for the offense committed, was not obtained in 1987 when the Constitution abolished the death penalty and the people ratified it? MR. GARCIA (P.). That is precisely why we are saying that now, under present conditions, because of the seriousness of the offenses being committed at this time, justice demands that the appropriate penalty must be meted out for those who have committed heinous crimes. xxx xxx xxx

In short, Congressman Garcia invoked the preambular justifications of "worsening peace and order" and "justice". With all due respect I submit that these grounds are not "compelling" enough to justify the revival of state-decreed deaths. In fact, I dare say that these "reasons" were even non-existent. Statistics from the Philippine National Police

show that the crime volume and crime rate particularly on those legislated capital offenses did not worsen but in fact declined between 1987, the date when the Constitution took effect, and 1993, the year when RA 7659 was enacted. Witness the following debate 24 also between Representatives Garcia and Lagman:
MR. LAGMAN. Very good, Mr. Speaker. Now, can we go to 1987. Could the Gentleman from Cebu inform us the volume of the crime of murder in 1987? MR. GARCIA (P.). The volume of the crime of murder in 1987 is 12,305. MR. LAGMAN. So, the corresponding crime rate was 21 percent. MR. GARCIA (P.). Yes, Mr. Speaker. MR. LAGMAN. That was in 1987, Mr. Speaker, could the distinguished chairman inform us the volume of murder in 1988? MR. GARCIA (P.). It was 10,521, Mr. Speaker. MR. LAGMAN. Or it was a reduction from 12,305 in 1987 to 10,521 in 1988. Correspondingly, the crime rate in the very year after the abolition of the death penalty was reduced from 21 percent to 18 percent. Is that correct, Mr. Speaker? MR. GARCIA (P.). That is correct, Mr. Speaker. Those are the statistics supplied by the PC. MR. LAGMAN. Now can we go again to 1987 when the Constitution abolished the death penalty? May we know from the distinguished Gentleman the volume of robbery in 1987? MR. GARCIA (P.). Will the Gentleman state the figure? I will confirm it. MR. LAGMAN. No, Mr. Speaker, I am asking the question. MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the crime rate was 40 percent. MR. LAGMAN. This was the year immediately after the abolition of the death penalty. Could the Gentleman tell us the volume of robbery cases in 1988? MR. GARCIA (P.). It was 16,926, Mr. Speaker. MR. LAGMAN. Obviously, the Gentleman would agree with me. Mr. Speaker that the volume of robbery cases declined from 22,942 in 1987 or crime rate of 40 percent to 16,926 or a crime rate of 29 percent. Would the Gentleman confirm that, Mr. Speaker? MR. GARCIA (P.). This is what the statistics say, I understand we are reading now from the same document.

MR. LAGMAN. Now, going to homicide, the volume 1987 was 12,870 or a crime rate of 22 percent. The volume in 1988 was 11,132 or a crime rate of 19 percent. Would the Gentleman confirm that, Mr. Speaker? MR. GARCIA (P.). As I Said, Mr. Speaker, we are reading from the same document and I would not want to say that the Gentleman is misreading the document that I have here. MR. LAGMAN. But would the Gentleman confirm that? MR. GARCIA (P.). The document speaks for itself.

When interpellated by Sen. Arturo Tolentino, Sen. Jose Lina gave some figures on the number of persons arrested in regard to drug-related offenses in the year 1987 as compared to 1991: 25
Let me cite this concrete statistics by the Dangerous Drug Board. In 1987 — this was the year when the death penalty was abolished — the persons arrested in drug-related cases were 3,062, and the figure dropped to 2,686 in 1988. By the way, I will furnish my Colleagues with a photocopy of this report. From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in 1989. It still decreased to 2,202 in 1990, and it increased again to 2,862 in 1991. But in 1987, when the death penalty was abolished, as far as the drug-related cases are concerned, the figure continued a downward trend, and there was no death penalty in this time from, 1988 to 1991.

In a further attempt to show compelling reasons, the proponents of the death penalty argue that its reimposition "would pose as an effective deterrent against heinous crimes." 26 However no statistical data, no sufficient proof, empirical or otherwise, have been submitted to show with any conclusiveness the relationship between the prescription of the death penalty for certain offenses and the commission or noncommission thereof. This is a theory that can be debated on and on, 27 in the same manner that another proposition — that the real deterrent to crime is the certainty of immediate arrest, prosecution and conviction of the culprit without unnecessary risk, expense and inconvenience to the victim, his heirs or his witnesses — can be argued indefinitely. 28 This debate can last till the academics grow weary of the spoken word, but it would not lessen the constitutionally-imposed burden of Congress to act within the "heinousness" and "compelling reasons" limits of its death-prescribing power. Other Constitutional Rights Militate Against RA 7659 It should be emphasized that the constitutional ban against the death penalty is included in our Bill of Rights. As such, it should — like any other guarantee in favor of the accused — be zealously protected, 29 and any exception thereto meticulously screened.

Any doubt should be resolved in favor of the people, particularly where the right pertains to persons accused of crimes. 30 Here the issue is not just crimes — but capital crimes! So too, all our previous Constitutions, including the first one ordained at Malolos, guarantee that "(n)o person shall be deprived of life, liberty or property without due process of law." 31 This primary right of the people to enjoy life — life at its fullest, life in dignity and honor — is not only reiterated by the 1987 Charter but is in fact fortified by its other pro-life and pro-human rights provisions. Hence, the Constitution values the dignity of every human person and guarantees full respect for human rights, 32 expressly prohibits any form of torture 33 which is arguably a lesser penalty than death, emphasizes the individual right to life by giving protection to the life of the mother and the unborn from the moment of conception 34 and establishes the people's rights to health, a balanced ecology and education. 35 This Constitutional explosion of concern for man more than property for people more than the state, and for life more than mere existence augurs well for the strict application of the constitutional limits against the revival of death penalty as the final and irreversible exaction of society against its perceived enemies. Indeed, volumes have been written about individual rights to free speech. assembly and even religion. But the most basic and most important of these rights is the right to life. Without life, the other rights cease in their enjoyment, utility and expression. This opinion would not be complete without a word on the wrenching fact that the death penalty militates against the poor, the powerless and the marginalized. The "Profile of 165 Death Row Convicts" submitted by the Free Legal Assistance Group 36 highlights this sad fact:
1. Since the reimposition of the death penalty, 186 persons
37

have been sentenced to death. At the end of 1994, there were 24 death penalty convicts, at the end of 1995, the number rose to 90; an average of seven (7) convicts per month; double the monthly average of capital sentences imposed the prior year. From January to June 1996, the number of death penalty convicts reached 72, an average of 12 convicts per month, almost double the monthly average of capital sentences imposed in 1995. 2. Of the 165 convicts polled, approximately twenty one percent (21%) earn between P200 to P2,900 monthly; while approximately twenty seven percent (27%) earn between P3,000 to P3,999 monthly. Those earning above P4,000 monthly are exceedingly few: seven percent (7%) earn between P4,000 to P4,999, four percent (4%) earn between P5,000 to P5,999, seven percent (7%) earn between P6,000 to P6,999, those earning between P7,000 to P15,000 comprise only four percent (4%), those earning P15,000 and above only one percent (1%). Approximately thirteen percent (13%) earn nothing at all, while approximately two percent (2%) earn subsistence wages with another five percent (5%) earning variable income. Approximately nine percent (9%) do not know how much they earn in a month. 3. Thus, approximately two-thirds of the convicts, about 112 of them, earn below the government-mandated minimum monthly wage of P4,290; ten (10) of these earn below the official poverty line set by government. Twenty six (26) earn between P4,500.00 and

P11,0000.00 monthly, indicating they belong to the middle class; only one (1) earns P30.000.00 monthly. Nine (9) convicts earn variable income or earn on a percentage or allowance basis; fifteen (15) convicts do not know or are unsure of their monthly income. Twenty two (22) convicts earn nothing at all. 4. In terms of occupation, approximately twenty one percent (21%) are agricultural workers or workers in animal husbandry; of these thirty (30), or almost one-fifth thereof, are farmers. Thirty five percent (35%) are in the transport and construction industry, with thirty one (31) construction workers or workers in allied fields (carpentry, painting, welding) while twenty seven (27) are transport workers (delivery, dispatcher, mechanic, tire man, truck helper) with sixteen (16) of them drivers. Eighteen percent (18%) are in clerical, sales and service industries, with fourteen (14) sales workers (engaged in buy and sell or fish, cigarette or rice vendors), twelve (12) service workers (butchers, beauticians, security guards, shoemakers, tour guides, computer programmers, radio technicians) and four (4) clerks (janitors, MERALCO employee and clerk) About four percent (4%) are government workers, with six (6) persons belonging to the armed services (AFP, PNP and even CAFGU). Professionals, administrative employee and executives comprise only three percent (3%), nine percent (9%) are unemployed. 5. None of the DRC's use English as their medium of communication. About forty four percent (44%), or slightly less than half speak and understand Tagalog; twenty six percent (26%), or about one-fourth, speak and understand Cebuano. The rest speak and understand Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense and Waray. One (1) convict is a foreign national and speaks and understand Niponggo. 6. Approximately twelve percent (12%) graduated from college, about forty seven percent (47%) finished varying levels of elementary education with twenty seven (27) graduating from elementary. About thirty five percent (35%), fifty eight (58) convicts, finished varying levels of high school, with more than half of them graduating from high school. Two (2) convicts finished vocational education; nine (9) convicts did not study at all.

The foregoing profile based on age, language and socio-economic situations sufficiently demonstrates that RA 7659 has militated against the poor and the powerless in society — those who cannot afford the legal services necessary in capital crimes, where extensive preparation, investigation, research and presentation are required. The best example to shoe the sad plight of the underprivileged is this very case where the crucial issue of constitutionality was woefully omitted in the proceedings in the trial court and even before this Court until the Free legal Assistance Group belatedly brought it up in the Supplemental Motion for Reconsideration. To the poor and unlettered, it is bad enough that the law is complex and written in a strange, incomprehensible language. Worse still, judicial proceedings are themselves complicated, intimidating and damning. The net effect of having a death penalty that is imposed more often than not upon the impecunious is to engender in the minds of the latter, a sense — unfounded, to be sure, but unhealthy nevertheless — of the unequal balance of the scales of justice. Most assuredly, it may be contended that the foregoing arguments, and in particular, the statistics above-cited, are in a very real sense prone to be misleading, and that regardless of the socio-economic profile of the DRCs, the law reviving capital punishment does not in any way single out or discriminate against the poor, the unlettered or the underprivileged. To put it in another way, as far as the disadvantaged are concerned, the law would still be complex and written in a strange and incomprehensible language, and judicial proceedings complicated and intimidating,

whether the ultimate penalty involved be life (sentence) or death. Another aspect of the whole controversy is that, whatever the penalties set by law, it seems to me that there will always be certain class or classes of people in our society who, by reason of their poverty, lack of educational attainment and employment opportunities, are consequently confined to living, working and subsisting in less-than-ideal environments, amidst lessthan-genteel neighbors similarly situated as themselves, and are therefore inherently more prone to be involved (as victims or perpetrators) in vices, violence and crime. So from that perspective, the law reviving the death penalty neither improves nor worsens their lot substantially. Or, to be more precise, such law may even be said to help improve their situation (at least in theory) by posing a much stronger deterrent to the commission of heinous crimes. However, such a viewpoint simply ignores the very basic differences that exist in the situations of the poor and the non-poor. Precisely because the underprivileged are what they are, they require and deserve a greater degree of protection and assistance from our laws and Constitution, and from the courts and the State, so that in spite of themselves, they can be empowered to rise above themselves and their situation. The basic postulates for such a position are, I think, simply that everyone ultimately wants to better himself and that we cannot better ourselves individually to any significant degree if we are unable to advance as an entire people and nation. All the pro-poor provisions of the Constitution point in this direction. Yet we are faced with this law that effectively inflicts the ultimate punishment on none other than the poor and disadvantaged in the greater majority of cases, and which penalty, being so obviously final and so irreversibly permanent, erases all hope of reform, of change for the better. This law, I submit, has no place in our legal, judicial and constitutional firmament. Epilogue In sum, I respectfully submit that: 1. The 1987 Constitution abolished the death penalty from our statute books. It did not merely suspend or prohibit its imposition. 2. The Charter effectively granted a new right: the constitution right against the death penalty, which is really a species of the right to life. 3. Any law reviving the capital penalty must be strictly construed against the State and liberally in favor of the accused because such a stature denigrates the Constitution, impinges on a basic right and tends to deny equal justice to the underprivileged. 4. Every word or phrase in the Constitution is sacred and should never be ignored, cavalierly-treated or brushed aside. 5. Congressional power death is severely limited by two concurrent requirements:
a. First, Congress must provide a set of attendant circumstances which the prosecution
must prove beyond reasonable doubt, apart from the elements of the crime and itself. Congress must explain why and how these circumstances define or characterize the crime as "heinous".

Second, Congress has also the duty of laying out clear and specific reasons which arose after the effectivity of the Constitution compelling the enactment of the law. It bears repeating that these requirements are inseparable. They must both be present in view of the specific constitutional mandate — "for compelling reasons involving heinous crimes." The compelling reason must flow from the heinous nature of the offense.

1. In every law reviving the capital penalty, the heinousness and compelling

reasons must be set out for each and every crime, and not just for all crimes generally and collectively. "Thou shall not kill" is fundamental commandment to all Christians, as well as to the rest of the "sovereign Filipino people" who believe in Almighty God. 38 While the Catholic Church, to which the vast majority of our people belong, acknowledges the power of public authorities to prescribe the death penalty, it advisedly limits such prerogative only to "cases of extreme gravity." 39 To quote Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to Life), 40 "punishment must be carefully evaluated and decided upon, and ought not to go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society . . . (which is) very rare, if not practically non-existent." Although not absolutely banning it, both the Constitution and the Church indubitably abhor the death penalty. Both are pro-people and pro-life. Both clearly recognize the primacy of human life over and above even the state which man created precisely to protect, cherish and defend him. The Constitution reluctantly allows capital punishment only for "compelling reasons involving heinous crimes" just as the Church grudgingly permits it only reasons of "absolute necessity" involving crimes of "extreme gravity", which are very rare and practically non-existent. In the face of these evident truisms, I ask: Has the Congress, in enacting RA 7659, amply discharged its constitutional burden of proving the existence of "compelling reasons" to prescribe death against well-defined "heinous" crimes? I respectfully submit it has not. WHEREFORE, the premises considered, I respectfully vote to grant partially the Supplemental Motion for Reconsideration and to modify the dispositive portion of the decision of the trial court by deleting the words "DEATH", as provided for under RA 7659," and substitute therefore reclusion perpetua. I further vote to declare RA 7659 unconstitutional insofar as it prescribes the penalty of death for the crimes mentioned in its text. Footnotes
1 Stoll v. Gottlieb, 305 US 165, 172; 59 S. Ct. 134, 138; 83 L. ed. 104 [1938].

2 Philippine Courts and their Jurisdiction, p. 13, 1998 ed. 3 Citing Miranda v. Tiangco, 96 Phil. 526; Santos v. Acuna, 100 Phil. 230; American Insurance Co. v. US Lines Co., 63 SCRA 325; Republic v. Reyes, 71 SCRA 426; Luzon Stevedoring Corp. v. Reyes, 71 SCRA 655; Agricultural and Industrial Marketing Inc. v. CA, 118 SCRA 49; Vasco v. CA, 81 SCRA 712; Mindanao Portland Cement Corp. v. Laquihan, 120 SCRA 930. 4 Ibid., at pp. 12-14, citing Miranda v. Tiangco, 96 Phil. 526; Santos v. Acuna, 63 O.G. 358; Cabaya v. Hon. R. Mendoza, 113 SCRA 400; Bueno Industrial and Development Corp. v. Encaje, 104 SCRA 388. 5 Ibid., pp. 14-15 citing Molina v. dela Riva, 8 Phil. 569; Behn Meyer & Co. v. McMicking, 11 Phil. 276; Warmer Barnes & Co. v. Jaucian, 13 Phil. 4; Espiritu v. Crossfield, 14 Phil. 588; Mata v. Lichauco, 36 Phil. 809; De la Costa v. Cleofas, 67 Phil. 686; Omar v. Jose, 77 Phil. 703; City of Butuan v. Ortiz, 113 Phil. 636; De los Santos v. Rodriguez, 22 SCRA 551; City of Cebu v. Mendoza, 66 SCRA 174. 6 29 Phil. 267 (1915), p. 270. 7 Sec. 1, Article VIII of the 1987 Constitution. 8 Sec. 5(f), Rule 135. 9 Philippine Political Law, p. 225, 1993 ed. 10 94 Phil. 534 (1954), pp. 550-555. 11 R.A. No. 372. 12 94 Phil. 550, p. 551. 13 See In re Integration of the Bar of the Philippines, January 9, 1973, 49 SCRA 22. 14 See pp. 3-4 of Urgent Motion for Reconsideration. 15 See Art. 79 of the Revised Penal Code. 16 Modern Constitutional Law, Vol. 1, p. 409, 1969 ed., citing Caritativo v. California, 357 US 549, 21 L ed. 2d 1531, 78 S. Ct. 1263 [1958]. 17 December 30 and 31, 1998 were declared holidays. January 1, 1999 was an official holiday. January 2 was a Saturday and January 3 was a Sunday. 18 Urgent Motion for Reconsideration of Public respondents, p. 8. 19 Darrow, Crime: Its Cause and Treatment, p. 166 (1922). 20 Eisler, A Justice For All, p. 268. 21 "Where personal liberty is involved, a democratic society employs a different arithmetic and insists that it is less important to reach an unshakable decision than to do

justice." Pollack, Proposals to Curtail Habeas Corpus for State Prisoners: Collateral Attack on the Great Writ. 66 Yale LJ 50, 65 (1956). VITUG, J., separate opinion; 1 Candelana vs. Cañizares, 4 SCRA 738; Philippine Veterans Bank vs. Intermediate Appellate Court, 178 SCRA 545, Lipana vs. Development Bank of Rizal, 154 SCRA 257; Lee vs. De Guzman, 187 SCRA 276, Bachrach Corporation vs. Court of Appeals, G.R. No. 128349, 25 September 1998. 2 29 Phil 267. 3 At least for Mr. Echegaray. 4 G.R. No 124329, 14 December 1998. PANGANIBAN, J., separate opinion; * I have further explained my unflinching position on this matter in my recent book Battles in the Supreme Court, particularly on page 58 to 84. Separate opinion; 1 It is called "Supplemental" because there was a (main) Motion for Reconsideration filed by the previous counsel of the accused, which this Court already denied. 2 The Anti Death Penalty Task Force of the Free Legal Assistance Group — Pablito V. Sanidad, Jose Manuel I. Diokno, Arno V. Sanidad, Efren Moncupa, Eduardo R. Abaya and Ma. Victoria I. Diokno — filed its Notice of Appearance dated August 22, 1996 only on August 23, 1996, after the Per Curiam Decision of this Court was promulgated on June 25, 1996. 3 Atty. Julian R. Vitug, Jr. 4 The bulk of jurisprudence precludes raising an issue for the first time only on appeal. See, for instance, Manila Bay Club Corporation vs. Court of Appeals, 249 SCRA 303, October 13, 1995; Manila Bay Club Corporation vs. Court of Appeals, 245 SCRA 715, July 11, 1995; Securities and Exchange Commission vs. Court of Appeals, 246 SCRA 738, July 21, 1995. However, the Court resolved to tackle the question of constitutionality of Republic Act No. 7659 in this case, anticipating that the same question would be raised anyway in many other subsequent instances. The Court resolved to determine and dispose of the issue once and for all, at the first opportunity. To let the issue pass unresolved just because it was raised after the promulgation of the decision affirming conviction may result in grave injustice. 5 In People vs. Muñoz, 170 SCRA 107, February 9, 1989, the Court, prior to the enactment and effectivity of RA 7659, ruled by a vote of 9-6 (J. Cruz, ponente, C.J. Fernan, JJ., Gutierrez, Jr., Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino and Medialdea, concurring) that the death penalty was not abolished but only prohibited from imposed. But see also the persuasive Dissenting Opinion of Mme. Justice Ameurfina Melencio-Herrera (joined by JJ. Narvasa, Paras, Sarmiento, Cortes and Regalado) who contended that the Constitution totally abolished the death penalty and removed it form the statute books. People vs. Muñoz reversed the earlier "abolition" doctrine uniformly

held in People vs. Gavarra, 155 SCRA 327, October 30, 1987, (per C.J. Yap); People vs. Masangkay, 155 SCRA 113, October 27, 1987, (per J. Melencio-Herrera) and People vs. Atencio, 156 SCRA 242, December 10, 1987 (per C.J. Narvasa). It is time that these cases are revisited by this Court. 6 This quote is taken from I Record of the Constitutional Commission, p. 676 (July 17, 1986) as follows: Fr. Bernas: xxx xxx xxx My recollection on this is that there was a division in the Committee not on whether the death penalty should be abolished or not, but rather on whether the abolition should be done by the Constitution — in which case it cannot be restored by the legislature — or left to the legislature. The majority voted for the constitutional abolition of the death penalty. And the reason is that capital punishment is inhuman for the convict and his family who are traumatized by the waiting, even if it is never carried out. There is no evidence that death penalty deterred deadly criminals, hence, life should not be destroyed just in the hope that other lives might be saved. Assuming mastery over the life of another man is just too presumptuous for any man. The fact that the death penalty as an institution has been there from time immemorial should not deter us from reviewing it. Human life is more valuable than an institution intended precisely to serve human life. So basically, this is the summary of the reason which were presented in support of the constitutional abolition of the death penalty (emphasis supplied) 7 Dissenting Opinion in People vs. Muñoz, supra, p. 129. 8 Thus in People vs. Burgos, 144 SCRA 1, September 4, 1986, we held that a statute which allows an exception to a constitutional right (against warrantless arrests) should be strictly construed. 9 In his scholarly Memorandum, Fr. Joaquin G. Bernas, S.J. as amicus curiae in People vs. Pedro V. Malabago (G.R. No. 115686, December 2, 1996), vigorously argues that RA 7659 has validly restored the death penalty which may now be imposed provided that the prosecution proves, and the court is convinced, that (a) the accused is guilty of a crime designated by RA 7659 as capital, (b) whose commission is accompanied by aggravating circumstances as defined by Arts. 14 and 15 of the Revised Penal Code, (c) the accompanying aggravating circumstance must be one which can be characterized by the court as making the crime "heinous", and (d) that the execution of the offender is demanded by "compelling reasons" related to the offense. In other words, according to him, it is the courts — not Congress — that have responsibility of determining the heinousness of a crime and the compelling reason for its imposition upon a particular offender, depending on the facts of each case. I cannot however subscribe to this view. The Constitution clearly identifies Congress as the sovereign entity which is given the onus of fulfilling these two constitutional limitations. 10 People vs. Muñoz, supra, p. 121. 11 Which became effective on December 31, 1993, per People vs. Burgos, 234 SCRA 555, 569, July 29, 1994; People vs. Godoy, 250 SCRA 676, December 6, 1995; People vs. Albert, 251 SCRA 136, December 11, 1995.

12 Art. 114 — Treason; Art. 123 — Qualified Piracy; Art. 246 — Parricide; Art. 248 — Murder; Art. 255 — Infanticide; Art. 267 — Kidnapping and Serious Illegal Detention; Art. 294 — Robbery with violence against or intimidation of persons; Art. 320 — Destructive Arson; Art. 335 — Rape. 13 Art. 221-A on Qualified Bribery. 14 Sec. 2, RA 7080 — Plunder; Secs. 3, 4, 5, 7, 8 and 9 of Article II of RA 6425 — Prohibited Drugs; Secs. 14, 14-A and 15 of Article III of said RA 6425 — Carnapping. 15 A preamble is not an essential part of a statute. (Agpalo, Statutory Construction, Second Edition 1990; Martin, Statutory Construction, Sixth Edition, 1984). The function of the preamble is to supply reasons and explanation and not to confer power or determine rights. Hence it cannot be given the effect of enlarging the scope or effect of a statute. (C. Dallas Sands, Statutes and Statutory Construction, Fourth Edition, Volume LA, § 20.03). 16 Under Sec. 11, RA 7659, it appears that death is the mandatory penalty for rape, regardless of the presence or absence of aggravating or mitigating circumstances, "(w)hen by reason or on the occasion of the rape, a homicide is committed," or when it is "committed with any of the attendant circumstances enumerated" in said section. 17 While in plunder and qualified bribery are "new" capital offenses, RA 7659 nonetheless fails to justify why they are considered heinous. In addition, the specific compelling reasons for the prescribed penalty of death are note laid out by the statute. 18 In the case of rape, RA 7659 provided certain attendant circumstances which the prosecution must prove before courts can impose the extreme penalty. Just the same however, the law did not explain why said circumstances would make the crimes heinous. Neither did it set forth the complelling reasons therefor. 19 Record of the Senate, First Regular Session, January 18 to March 11, 1993, Volume III, No. 48, January 25, 1993, p. 122. 20 I Record of the Constitutional Commission, July 18, 1986, pp. 742-743: MR. SUAREZ The Gentleman advisedly used the words 'heinous crimes', whatever is the pronunciation. Will the Gentleman give examples of 'heinous crimes'? For example, would the head of an organized syndicate in dope distribution or dope smuggling fall within the qualification of a heinous offender such as to preclude the application of the principle of abolition of death penalty? MR. MONSOD Yes, Madam President. That is one of the possible crimes that would qualify for a heinous crime. Another would be organized murder. In other words, yesterday there were many arguments for and against, and they all had merit. But in the contemporary society, we recognize the sacredness of human life and — I think it was Honorable Laurel who said this yesterday — it is only God who gives and takes life. However, the voice of the people is also the voice of God, and we cannot presume to have the wisdom of the ages. Therefore, it is entirely possible in the future that circumstances may arise which we should not preclude today. We know that this is very difficult question. The fact that the arguments yesterday were quite impassioned and meritorious merely tell us that this is far from a well-settled issue. At least in my personal opinion, we would like the death penalty to be abolished. However, in the future we

should allow the National Assembly in its wisdom and as representatives of the people, to still impose the death penalty for the common good, in specific cases. MR. SUAREZ. Thank you. I would like to pursue some more the Gentleman's definition of 'heinous crimes'. Would the brutal murder of a rape victim be considered as falling within that classification? MR. MONSOD. Madam President, yes, particularly, if it is a person in authority. He would, therefore, add as an aggravating circumstance to the crime the abuse of this position authority. MR. SUAREZ. Thank you. 21 Some examples of this may be taken by Congress from Richmond vs. Lewis, 506 US 40, like "gratuitous violence" or "needless mutilation" of the victim. 22 Paragraph 3 & 4 of the preamble reads: WHEREAS, due to the alarming upsurge of such crimes which has resulted not only in the loss of human lives and wanton destruction of property but has also affected the nation's efforts towards sustainable economic development and prosperity while at the same time has undermined the people's faith in the Government and the latter's ability to maintain peace and order in the country. WHEREAS, the Congress, in the interest of justice, public order and the rule of law, and the need to rationalize and harmonize the penal sanctions for heinous crimes, finds compelling reasons to impose the death penalty for said crimes; 23 Record of the House of Representatives, First Regular Session, 1992-1993, Volume IV, February 10, 1993, p. 674, emphasis supplied. 24 Record of the House of Representatives, First Regular Session, 1992-1993, Vol. III, November 10, 1992, p. 448; emphasis supplied. 25 Record of the Senate, First Regular Session, January 18 to March 11, 1993, Volume III, No. 50, January 27, 1993, pp. 176-177. 26 See "Sponsorship Remarks" of Rep. Manuel Sanchez, Record of the House of Representatives, November 9, 1992, pp. 40-42. 27 Witness, for instance, this interesting exchange between Commissioners Joaquin Bernas and Napoleon Rama (I Record of the Constitutional Commission, p. 678): FR. BERNAS. When some experts appeared before us and we asked them if there was evidence to show that the death penalty had deterred the commission of deadly crimes, none of them was able to say that there was evidence, conclusive evidence, for that. MR. RAMA. I am curious. Who are experts then — social scientist or penologists or what? FR. BERNAS. Penologists.

MR. RAMA. Of course we are aware that there is also another school of thought here, another set of experts, who would swear that the death penalty discourages crimes or criminality. Of course. Commissioner Bernas knows that never in our history has there been a higher incidence of crime. I say that criminality was at its zenith during the last decade. FR. BERNAS. Correct, in spite of the existence of the death penalty. MR. RAMA. Yes, but not necessarily in spite of the existence of the death penalty. At any rate, does the sponsor think that in removing the death penalty, it would not affect, one way or another, the crime rate of the country? FR. BERNAS. The position taken by the majority of those who voted in favor of this provision is that means other than the death penalty should be used for the prevention of crime. 28 Cf. Report to the United Nations Committee on Crime Prosecution and Control, United Nations Social Affairs Division, Crime Prevention and Criminal Justice Branch, Vienna, 1988, p. 110. 29 Former Chief Justice Enriquez M. Freehand, in his book, The Bill of Rights, (Second Edition, 1972, p. 4.) states: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy of a bill of rights. Precisely a constitution exists to assure that in the discharge of the governmental functions, the dignity that is the birthright of every human being is duly safeguarded. . . ." In the context of the role of a bill of right the vast powers of government are clearly to be exercise within the limits set by the constitution, particularly the bill of rights. In Ermita-Malate Hotel and Motel Operators vs. City Mayor of Manila, (L-24693, July 31, 1967), it was held that the exercise of police power, insofar as it may affect the life, liberty or property of any person is subject to judicial inquiry. The guarantee in Sec. 1 of Article III of the Constitution embraces life, liberty and property. In the words of Justice Roberto Concepcion in People vs. Hernandez, (99 Phil 515, 551-2 [1956]), ". . . individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be denied upon mere general principle and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom. . . ." These guarantees are preserved in the 1987 Constitution, according to Fr. Bernas. 30 See, for instance People vs. Sinatao, 249 SCRA 554, 571, October 25, 1995, and People vs. Pidia, 249 SCRA 687, 702-703, November 10, 1995. 31 Art. III, Sec. 1. 32 Art. III, Sec. 11. 33 Art. II, Sec. 12 (2). 34 Art. II, Sec. 12. 35 Art. II, Secs. 15, 16 & 17.

36 For details, see Annex A of the Memorandum for the Accused-Appellant dated September 26, 1996 filed by the Free Legal Assistance Group in People vs. Malabago, G.R. No. 115686, December 2, 1996. 37 The FLAG-submitted Profile states that have been sentenced to death by trial courts since the effectivity of RA 7659. The Philippine Star issue of December 9, 1996, page 17, however reports that, quoting Sen. Ernesto Herrera, the total number of death row inmates has gone up to 267, as of November, 1996, of whom, more than one half (139) are rape convicts. Some major dailies (Philippine Daily Inquirer, Philippine Star, Manila Standard) in their February 3, 1997 issue up the death row figure to 300, as of the end of January 1997, with 450 as the probable number at the end of 1997. 38 The preamble of the Constitution is theistic. It declares the "sovereign Filipino people's imploration of the "aid of Almighty God". 39 Cetechism of the Catholic Churh, p. 512, Word and Life Publications: 2266. Preserving the common good of society requires rendering the aggressor unable to inflict harm. For this reason the traditional teaching of the Church has acknowledged as well-founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty. For analogous reasons those holding authority have the right to repel by armed force aggressors against the community in their charge. 40 Evangelium Vitae, items no. 55 and 56 states: 55. This should not cause surprise: to kill a human being, in whom the image of God is present, is a particularly serious sin. Only God is the master of life! Yet from the beginning, faced with the many and often tragic cases which occur in the life of individuals and society, Christian reflection has sought a fuller and deeper understanding of what God's commandment prohibits and prescribes. There are, in fact situations in which values proposed by God's Law seem to involve a genuine paradox. This happens for example in the case of legitimate defence, in which the right to protect one's own life and the duty not to harm someone else's life are difficult to reconcile in practice. Certainly, the intrinsic value of life and the duty to love oneself no less than others are the basis of a true right to self-defence. The demanding commandment of love of neighbor, set forth in the Old Testament and confirmed by Jesus, itself presupposes love of oneself as the basis of comparison: "You shall love your neighbor as yourself" (Mk. 12:31). Consequently, no one can renounce the right to self-defence out of lack of love for life or for self. This can only be done in virtue of a heroic love which deepens and transfigures the love of self into a radical self-offering, according to the spirit of the Gospel Beatitudes (cf. Mt. 5:38-40). The sublime example of this self-offering is the Lord Jesus himself. Moreover, "legitimate defence can be not only a right but a grave duty for someone responsible for another's life, the common good of the family or of the State." Unfortunately it happens that the need to render the aggresor incapable of causing harm sometimes involves taking his life. In this case, the fatal outcome is attributable to the aggressor incapable whose action brought it about, even though he may not be morally responsible because of a lack of the use of reason.

56. This is context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice even more in line with dignity and thus, in the end, with God's plan for man and society. The primary purpose of the punishment which society inflicts is "to redress the disorder caused by the offence." Public authority must redress the violation of personal and social rights by imposing on the offender to regain the exercise of his or her freedom. In this way authority also fulfills the purpose of defending public order and ensuring people's safety, while at the same time offering the offender an incentive and help to change his or her behavior and be rehabilitated. It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible other wise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not partically non-existent.1âwphi1.nêt In any event, the principle, set forth in the new Catechism of the Catholic Church remains valid: "If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person."

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 139465 January 18, 2000

SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents. MELO, J.: The individual citizen is but a speck of particle or molecule vis-à-vis the vast and overwhelming powers of government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizen's basic due process rights, or the government's ironclad duties under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of the fundamental writ. The petition at our doorstep is cast against the following factual backdrop: On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual concern for the suppression of crime both in the state where it was committed and the state where the criminal may have escaped; the extradition treaty with the Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other interested countries; and the need for rules to guide the executive department and the courts in the proper implementation of said treaties. On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon certification by the principal diplomatic or consular officer of the requested state resident in the Requesting State). On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of private respondent Mark

Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents for said extradition. Based on the papers submitted, private respondent appears to be charged in the United States with violation of the following provisions of the United States Code (USC): A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum Penalty — 5 years on each count); B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty — 5 years on each count); C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty — 5 years on each count); D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty — 5 years on each count); E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty — less than one year). (p. 14, Rollo.) On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and assessment" of the extradition request and the documents in support thereof. The panel found that the "official English translation of some documents in Spanish were not attached to the request and that there are some other matters that needed to be addressed" (p. 15, Rollo). Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from the U.S. Government, as well as all documents and papers submitted therewith; and that he be given ample time to comment on the request after he shall have received copies of the requested papers. Private respondent also requested that the proceedings on the matter be held in abeyance in the meantime. Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the request of the United States Government, and after receiving a copy of the Diplomatic Note, a period of time to amplify on his request. In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests for the following reasons:

1. We find it premature to furnish you with copies of the extradition request and supporting documents from the United States Government, pending evaluation by this Department of the sufficiency of the extradition documents submitted in accordance with the provisions of the extradition treaty and our extradition law. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary requirements and establishes the procedures under which the documents submitted shall be received and admitted as evidence. Evidentiary requirements under our domestic law are also set forth in Section 4 of P.D. No. 1069. Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. We merely determine whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available. It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished by the court with copies of the petition, request and extradition documents and this Department will not pose any objection to a request for ample time to evaluate said documents. 2. The formal request for extradition of the United States contains grand jury information and documents obtained through grand jury process covered by strict secrecy rules under United States law. The United States had to secure orders from the concerned District Courts authorizing the United States to disclose certain grand jury information to Philippine government and law enforcement personnel for the purpose of extradition of Mr. Jimenez. Any further disclosure of the said information is not authorized by the United States District Courts. In this particular extradition request the United States Government requested the Philippine Government to prevent unauthorized disclosure of the subject information. This Department's denial of your request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government must represent the interests of the United States in any proceedings arising out of a request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition requests. 3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith". Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or surrender of accused or convicted persons must be processed expeditiously. (pp. 77-78, Rollo.) Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for

mandamus (to compel herein petitioner to furnish private respondent the extradition documents, to give him access thereto, and to afford him an opportunity to comment on, or oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and objectively); certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner from considering the extradition request and from filing an extradition petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of private respondent to the United States), with an application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo). The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion. After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf, moved that he be given ample time to file a memorandum, but the same was denied. On August 10, 1999, respondent judge issued an order dated the previous day, disposing: WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives to maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with a Regional Trial court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty (20) days from service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court. The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. The respondents are, likewise, ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date. SO ORDERED. (pp. 110-111, Rollo.) Forthwith, petitioner initiated the instant proceedings, arguing that: PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE:

I. BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF, I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUS IN THE PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES; II. PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW; III. THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND IV. PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY. (pp. 19-20, Rollo.) On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was a temporary restraining order (TRO) providing: NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August 9, 1999 issued by public respondent in Civil Case No. 99-94684. GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this 17th day of August 1999. (pp. 120-121, Rollo.) The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their respective memoranda.

From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a review of these issues as well as the extensive arguments of both parties, compel us to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot and academic (the issues of which are substantially the same as those before us now), while a negative resolution would call for the immediate lifting of the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with the proper regional trial court. Corollarily, in the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings, would this entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there any conflict between private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty? The issues having transcendental importance, the Court has elected to go directly into the substantive merits of the case, brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of August 17, 1999 by the trial court. To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was executed only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." The portions of the Decree relevant to the instant case which involves a charged and not convicted individual, are abstracted as follows: The Extradition Request The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign Affairs, and shall be accompanied by: 1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the Requesting State having jurisdiction over the matter, or some other instruments having equivalent legal force; 2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts; 3. The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for evaluation of the request; and

4. Such other documents or information in support of the request. (Sec. 4. Presidential Decree No. 1069.) Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently provides . . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or convention, he shall forward the request together with the related documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case. The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is the coverage of this task? In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must ascertain whether or not the request is supported by: 1. Documents, statements, or other types of information which describe the identity and probable location of the person sought; 2. A statement of the facts of the offense and the procedural history of the case; 3. A statement of the provisions of the law describing the essential elements of the offense for which extradition is requested; 4. A statement of the provisions of law describing the punishment for the offense; 5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense; 6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said Article, as applicable. (Paragraph 2, Article 7, Presidential Decree No. 1069.) 7. Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest and committal for trial if the offense had been committed there; 8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and 9. A copy of the charging document. (Paragraph 3, ibid.)

The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in support of the request had been certified by the principal diplomatic or consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs). In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive authority of the Requested State determines that the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation." The Extradition Petition Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated shall then file a written petition with the proper regional trial court of the province or city, with a prayer that the court take the extradition request under consideration (Paragraph [2], ibid.). The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective extraditee. The Extradition Hearing The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that the attorney having charge of the case may, upon application by the Requesting State, represent the latter throughout the proceedings. Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.). The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also determines whether or not the offense for

which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty).1âwphi1.nêt With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is the nature of the role of the Department of Justice at the evaluation stage of the extradition proceedings? A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing the extradition papers. However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of Justice received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its accompanying documents. The statement of an assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post office, for which reason he simply forwarded the request to the Department of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine the completeness of the documents and to evaluate the same to find out whether they comply with the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had no obligation to evaluate the extradition documents, the Department also had to go over them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted on the following; (1) the right to be furnished the request and the supporting papers; (2) the right to be heard which consists in having a reasonable period of time to oppose the request, and to present evidence in support of the opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the request. The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly conveying the message that if it were to evaluate the extradition request, it would not allow private respondent to participate in the process of evaluation. Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it

arrived at a well-founded judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less than one day, make the more authoritative determination? The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a determination whether or not the request is politically motivated, or that the offense is a military one which is not punishable under nonmilitary penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasi-judicial power. In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power, is one or the determinative powers of an administrative body which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect the records and premises, and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means or accounts, records, reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64). The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial functions. Notably, investigation is indispensable to prosecution. In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is limited to investigating the facts and making findings in respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial discretion and judgment. The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is to

determine whether the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not the extradition should be effected. That is the role of the court. The body's power is limited to an initial finding of whether or not the extradition petition can be filed in court. It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty provides that in case of urgency, a contracting party may request the provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean that once a request is forwarded to the Requested State, the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight from the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069). Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one. Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding, the consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78, Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to make available to a respondent in an administrative case or investigation certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier stage in the proceedings, such as the right to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436). In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]),

pointed out that the revocation of one's license as a medical practitioner, is an even greater deprivation than forfeiture of property. Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature. The cases mentioned above refer to an impending threat of deprivation of one's property or property right. No less is this true, but even more so in the case before us, involving as it does the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys precedence over property, for while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable and beyond recompense. By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure is akin to a preliminary investigation since both procedures may have the same result — the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a preliminary investigation, which may result in the filing of an information against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty. Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not well-taken. Wright is not authority for petitioner's conclusion that his preliminary processing is not akin to a preliminary investigation. The characterization of a treaty in Wright was in reference to the applicability of the prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice, information, and hearing. As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserved these principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance with treaty commitments.

The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens. The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology, but more importantly, they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in their interpretation, their dynamic and resilient character which make them capable of meeting every modern problem, and their having been designed from earliest time to the present to meet the exigencies of an undefined and expanding future. The requirements of due process are interpreted in both the United States and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366). Due process is comprised of two components — substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106). True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Nonobservance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64). In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by the complainant. These twin rights may, however, be considered dispensable in certain instances, such as: 1. In proceeding where there is an urgent need for immediate action, like the summary abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like

establishments which are immediate threats to public health and decency, and the cancellation of a passport of a person sought for criminal prosecution; 2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary appointee; and 3. Where the twin rights have previously been offered but the right to exercise them had not been claimed. Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the extradition proceedings fall under any of the described situations mentioned above? Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the subject treaty involves the U.S. Government. American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U.S. Constitution (Art. IV, §2 cl 2), and international extradition proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to the demanding state. The Extradition Clause and the implementing statute are given a liberal construction to carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegation that the person demanded was in the demanding state at the time the offense charged was committed, and that the person demanded is charged with the commission of the crime or that prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are then filed with the governor of the asylum state, and must contain such papers and documents prescribed by statute, which essentially include a copy of the instrument charging the person demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory requirements with respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the government of the asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence and other instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is directory. However, the right being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d 853). In international proceedings, extradition treaties generally provide for the presentation to the executive authority of the Requested State of a requisition or demand for the return of the alleged offender, and the designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815).

In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition procedures and principles, which are basically governed by a combination of treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit: 1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the provincial arrest of an individual may be made directly by the Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for extradition is transmitted subsequently through the diplomatic channel. 2. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing. 3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U.S.C. §3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid.) 4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits extradition; and (c) there is probable cause to believe that the defendant is the person sought and that he committed the offenses charged (Ibid.) 5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made under oath, charging any person found within his jurisdiction" with having committed any of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of American decisions pronounce that international extradition proceedings partake of the character of a preliminary examination before a committing magistrate, rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).] 6. If the court decides that the elements necessary for extradition are present, it incorporates its determinations in factual findings and conclusions of law and certifies the person's extraditability. The court then forwards this certification of extraditability to the Department of State for disposition by the Secretary of State. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U.S.C. §3186).

7. The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition. However, a person facing extradition may present whatever information he deems relevant to the Secretary of State, who makes the final determination whether to surrender an individual to the foreign government concerned. From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity — the Department of State — which has the power to evaluate the request and the extradition documents in the beginning, and, in the person of the Secretary of State, the power to act or not to act on the court's determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which should make the initial evaluation of the request, and having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request to the Department of Justice for the preparation and filing of the petition for extradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the Department of Justice which has taken over the task of evaluating the request as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition. Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that petitioner's primary concern is the possible delay in the evaluation process. We agree with private respondent's citation of an American Supreme Court ruling: The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause, in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones. (Stanley vs. Illinois, 404 U.S. 645, 656) The United States, no doubt, shares the same interest as the Philippine Government that no right — that of liberty — secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well, is sacrificed at the altar of expediency. (pp. 40-41, Private Respondent's Memorandum.) In the Philippine context, this Court's ruling is invoked: One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is

no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]). There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. To be effective, requests for extradition or the surrender of accused or convicted persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair procedures are, however, not always incompatible. They do not always clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the basic principles inherent in "ordered liberty." Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate extradition, the governor of the asylum state may not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition papers, he may hold that federal and statutory requirements, which are significantly jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of the requested state has the power to deny the behest from the requesting state. Accordingly, if after a careful examination of the extradition documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty, he shall not forward the request to the Department of Justice for the filing of the extradition petition since non-compliance with the aforesaid requirements will not vest our government with jurisdiction to effect the extradition. In this light, it should be observed that the Department of Justice exerted notable efforts in assuring compliance with the requirements of the law and the treaty since it even informed the U.S. Government of certain problems in the extradition papers (such as those that are in Spanish and without the official English translation, and those that are not properly authenticated). In fact, petitioner even admits that consultation meetings are still supposed to take place between the lawyers in his Department and those from the U.S. Justice Department. With the meticulous nature of the evaluation, which cannot just be completed in an abbreviated period of time due to its intricacies, how then can we say that it is a proceeding that urgently necessitates immediate and prompt action where notice and hearing can be dispensed with? Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand there is yet no extraditee, but ironically on the other, it results in an administrative if adverse to the person involved, may cause his immediate incarceration. The grant of the request shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of

the provisional arrest allowed under the treaty and the implementing law. The prejudice to the "accused" is thus blatant and manifest. Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside. Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of Article III which reads: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1) the right to information on matters of public concern, and (2) the corollary right of access to official records documents. The general right guaranteed by said provision is the right to information on matters of public concern. In its implementation, the right of access to official records is likewise conferred. These cognate or related rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed and critical public opinion which alone can protect the values of democratic government (Ibid.). Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999 do not fall under the guarantee of the foregoing provision since the matters contained in the documents requested are not of public concern. On the other hand, private respondent argues that the distinction between matters vested with public interest and matters which are of purely private interest only becomes material when a third person, who is not directly affected by the matters requested, invokes the right to information. However, if the person invoking the right is the one directly affected thereby, his right to information becomes absolute. The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a public officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any citizen has "standing". When the individual himself is involved in official government action because said action has a direct bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of public concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly the right to be informed of the nature and cause of the accusation against him.

The right to information is implemented by the right of access to information within the control of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such information may be contained in official records, and in documents and papers pertaining to official acts, transactions, or decisions. In the case at bar, the papers requested by private respondent pertain to official government action from the U.S. Government. No official action from our country has yet been taken. Moreover, the papers have some relation to matters of foreign relations with the U.S. Government. Consequently, if a third party invokes this constitutional provision, stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of the government. During the evaluation procedure, no official governmental action of our own government has as yet been done; hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing would already fall under matters of public concern, because our government by then shall have already made an official decision to grant the extradition request. The extradition of a fellow Filipino would be forthcoming. We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent's entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RPExtradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between the treaty and the due process clause in the Constitution? First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on foreign relations. The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. The observance of our country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with nations." Under the doctrine of incorporation, rules of international law form part of the law of the and land no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12). The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the

conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect — a treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid.). In the case at bar, is there really a conflict between international law and municipal or national law? En contrario, these two components of the law of the land are not pined against each other. There is no occasion to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition petition and during the judicial determination of the propriety of extradition, the rights of notice and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence. Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the supporting documents. We disagree. In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due process rights of notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedings as explained above, the prospective extraditee may even request for copies of the extradition documents from the governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable right (35 C.J.S. 410). Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of the Department of Justice Panel of Attorneys. The confidentiality argument is, however, overturned by petitioner's revelation that everything it refuses to make available at this stage would be obtainable during trial. The Department of Justice states that the U.S. District Court concerned has authorized the disclosure of certain grand jury information. If the information is

truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings. Not even during trial. A libertarian approach is thus called for under the premises. One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and procedures on extradition, for any prohibition against the conferment of the two basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings. We have to consider similar situations in jurisprudence for an application by analogy. Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation since both procedures may result in the arrest of the respondent or the prospective extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner's theory, because there is no provision of its availability, does this imply that for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15, Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is not available during the arrest of the prospective extraditee when the extradition petition has already been filed in court since Presidential Decree No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto? The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid objections to the Requested State's non-performance of its commitments under the Extradition Treaty are insubstantial and should not be given paramount consideration. How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. 1069?

Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for the Organization of the Civil Service Commission in Accordance with Provisions of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System in the Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree No. 1707, although summary dismissals may be effected without the necessity of a formal investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of Appeals: . . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an employee must be informed of the charges preferred against him, and that the normal way by which the employee is so informed is by furnishing him with a copy of the charges against him. This is a basic procedural requirement that a statute cannot dispense with and still remain consistent with the constitutional provision on due process. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to say, his defenses against the charges levelled against him and to present evidence in support of his defenses. . . . (at p. 671) Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the respondent. In the case at bar, private respondent does not only face a clear and present danger of loss of property or employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The convergence of petitioner's favorable action on the extradition request and the deprivation of private respondent's liberty is easily comprehensible. We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for "justice outside legality," since private respondent's due process rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is premised. Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be laid.

WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers, and to grant him a reasonable period within which to file his comment with supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and academic by this decision, the same is hereby ordered dismissed. SO ORDERED. Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur. Davide, Jr., C.J., I join Mr. Justice Puno in his dissent. Puno, J., please see dissent. Vitug, J., see separate opinion. Kapunan, J., see separate concurring opinion. Panganiban, J., please see my dissenting opinion. Mendoza, J., I join the dissents of Puno and Panganiban, JJ. Quisumbing, J., with concurring opinion. Pardo, J., I join J. Puno & J. Panganiban. Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban. Ynares-Santiago, J., please see separate concurring opinion.

Separate Opinions VITUG, J., separate opinion; The only real issue before the Court, I would take it, is whether or not private respondent can validly ask for copies of pertinent documents while the application for extradition against him is still undergoing process by the Executive Department. There is, I agree with the majority, a right of access to such extradition documents conformably with the provisions of Article III, Section 7, of the Philippine Constitution.1 The constitutional right to free access to information of public concern is circumscribed only by the fact that the desired information is not among the species exempted by law from the operation of the constitutional guaranty and that the exercise of the right conforms with such reasonable conditions as may be prescribed by law. There is no hornbook rule to determine whether or not an information is of public concern. The term "public concern" eludes exactitude, and it can easily embrace a broad spectrum of matters which the public may want to know either because the subject thereof can affect their lives or simply because it arouses concern.2 I am not convinced that there is something so viciously wrong with, as to deny, the request of private respondent to be furnished with copies of the extradition documents.

I add. The constitutional right to due process secures to everyone an opportunity to be heard, presupposing foreknowledge of what he may be up against, and to submit any evidence that he may wish to proffer in an effort to clear himself. This right is two-pronged — substantive and procedural due process — founded, in the first instance, on Constitutional or statutory provisions, and in the second instance, on accepted rules of procedure.3 Substantive due process looks into the extrinsic and intrinsic validity of the law that figures to interfere with the right of a person to his life, liberty and property. Procedural due process — the more litigated of the two — focuses on the rules that are established in order to ensure meaningful adjudication in the enforcement and implementation of the law. Like "public concern," the term due process does not admit of any restrictive definition. Justice Frankfurter has viewed this flexible concept, aptly I believe, as being ". . . compounded by history, reason, the past course of decisions, and stout confidence in the democratic faith."4 The framers of our own Constitution, it would seem, have deliberately intended, to make it malleable to the ever-changing milieu of society. Hitherto, it is dynamic and resilient, adaptable to every situation calling for its application that makes it appropriate to accept an enlarged concept of the term as and when there is a possibility that the right of an individual to life, liberty and property might be diffused.5 Verily, whenever there is an imminent threat to the life, liberty or property of any person in any proceeding conducted by or under the auspices of the State, his right to due process of law, when demanded, must not be ignored. A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the Extradition Treaty between the Government of the Republic of the Philippines and the Government of the United States of America provides that in case of urgency, a Contracting Party may request the provisional arrest of the person prior to the presentation of the request for extradition. I see implicit in this provision that even after the request for extradition is made and before a petition for extradition is filed with the courts, the possibility of an arrest being made on the basis of a mere evaluation by the Executive on the request for extradition by the foreign State cannot totally be discounted. The conclusion reached by the majority, I hasten to add, does not mean that the Executive Department should be impeded in its evaluation of the extradition request. The right of the extraditee to be furnished, upon request, with a copy of the relevant documents and to file his comment thereon is not necessarily anathema to the proceedings duly mandated by the treaty to be made. I vote to deny the petition.

KAPUNAN, J., separate concurring opinion; I vote to dismiss the petition, both on technical and substantial grounds. The petition in the case at bar raises one and only issue, which is the validity of the Temporary Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on August 9, 1999 in Civil Case No. 99-94684. The TRO directed respondents in said case to:

. . . maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with the Regional Trial Court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty days from the service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.1 (Emphasis ours.) The petition itself categorically states that "(t)he issue sought to be presented and litigated here is solely-the validity of the TRO."2 Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to hear the case below or that he has exceeded his jurisdiction in hearing the same. Nor is there any other act, ruling, order, or decision, apart from the TRO already mentioned, of respondent Judge that is being challenged in the petition before us. Since, as alleged in the petition, a copy of the TRO was served on respondents below on August 10, 1999, the TRO ceased to be effective on August 30, 1999; consequently, the instant petition has become moot and academic. This Court does not exercise jurisdiction over cases which are moot and academic or those not ripe for judicial consideration.3 Assuming that the present case has not become moot and academic, still, it should be dismissed for lack of merit. The substantive issues raised in this case are: (a) whether a person whose extradition is sought by a foreign state has due process rights under Section 2, Article III of the 1997 Constitution before the Department of Justice as the request for extradition is being evaluated, or whether due process rights maybe invoked only upon the filing of a petition for extradition before a regional trial court; and (b) whether or not private respondent has a right of access to extradition documents under Section 7, Article III of the 1997 Constitution. Petitioner contends that due process rights such as the right to be informed of the basis of the request for extradition and to have an opportunity to controvert are not provided in the extradition treaty or in P.D. 1069 and therefore does not exist in this stage of the proceedings. Further, he argues that the documents sought to be furnished to private respondent only involve private concerns, and not matters of public concern to which the people have a constitutional right to access. While the evaluation process conducted by the Department of Justice is not exactly a preliminary investigation of criminal cases, it is akin to a preliminary investigation because it involves the basic constitutional rights of the person sought to be extradited. A person ordered extradited is arrested, forcibly taken from his house, separated from his family and delivered to a foreign state. His rights of abode, to privacy, liberty and pursuit of happiness are taken away from him — a fate as harsh and cruel as a conviction of a criminal offense. For this reason, he is entitled to have access to the evidence against him and the right to controvert them.

While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither does either prohibit it. The right to due process is a universal basic right which is deemed written into our laws and treaties with foreign countries. Like a preliminary investigation, the evaluation by the Department of Justice of the extradition request and its accompanying documents is to establish probable cause and to secure the innocent against hasty, malicious and oppressive prosecution. In this connection, it should be stressed that the evaluation procedure of the extradition request and its accompanying documents by the Department of Justice cannot be characterized as a mere "ex-parte technical assessment of the sufficiency" thereof. The function and responsibilities of the Department of Justice in evaluating the extradition papers involve the exercise of judgment. They involve a determination whether the request for extradition conforms fully to the requirements of the extradition treaty and whether the offense is extraditable. These include, among others, whether the offense for which extradition is requested is a political or military offense (Article 3); whether the documents and other informations required under Article 7(2) have been provided (Article 7); and whether the extraditable offense is punishable under the laws of both contracting parties by deprivation of liberty for a period of more than one year (Article 2). Consequently, to arrive at a correct judgment, the parties involved are entitled to be heard if the requirements of due process and equal protection are to be observed. With respect to petitioner's claim that private respondent has no right to demand access to the documents relating to the request for extradition, suffice it to say, that any document used in a proceeding that would jeopardize a person's constitutional rights is matter of public concern. As Martin Luther King said, "injustice anywhere is a threat to justice everywhere," so any violation of one's rights guaranteed by the Bill of Rights is everybody's concern because they, one way or another, directly or indirectly, affect the rights of life and liberty of all the citizens as a whole. Due process rights in a preliminary investigation is now an established principle. The respondent has a right of access to all of the evidence. He has the right to submit controverting evidence. The prosecuting official who conducts the preliminary investigation is required to be neutral, objective, and impartial in resolving the issue of probable cause. I see no reason why the same rights may not be accorded a person sought to be extradited at the stage where the Department of Justice evaluates whether a petition for extradition would be filed before a regional trial court. If denied such rights, not only denial of due process rights but of equal protection may be raised. It is suggested that after a petition for extradition is filed with a regional trial court, the person sought to be extradited may exercise all due process rights. He may then have access to all the records on the basis of which the request for extradition has been made. He may controvert that evidence and raise all defenses he may consider appropriate. That, it is urged, meets the due process requirement. But why must he wait until the petition for extradition is filed? As succinctly expressed, if the right to notice and hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented.4 Like the filing of an information in a criminal case, the mere filing of a petition for extradition causes immediate impairment of the liberty of

the person sought to be extradited and a substantial curtailment of other rights. His arrest may be immediately ordered by the regional trial court. He would be compelled to face an open and public trial. He will be constrained to seek the assistance of counsel and incur other expenses of litigation. The public eye would be directed at him with all the concomitant intrusions to his right to privacy. Where the liberty of a person is at risk, and extradition strikes at the very core of liberty, invocation of due process rights can never be too early.

QUISUMBING, J., concurring opinion; As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest observations. The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in our Constitution should take precedence over treaty rights claimed by a contracting state. Stated otherwise, the constitutionally mandated duties of our government to the individual deserve preferential consideration when they collide with its treaty obligations to the government of another state. This is so although we recognize treaties as a source of binding obligations under generally accepted principles of international law incorporated in our Constitution as part of the law of the land. For this primordial reason, I vote to DENY the petition. Moreover, considering that the Extradition Treaty between the USA and Philippines appears mute on the specific issue before us, the Court — in the exercise of its judicial power to find and state what the law is — has this rare opportunity of setting a precedent that enhances respect for human rights and strengthens due process of law. As both majority and dissenting colleagues in the Court will recognize, American authorities follow two tracks in extradition proceedings: (1) the interstate practice where, pursuant to statute, the state Executive upon demand furnishes the would be extraditee or counsel copies of pertinent documents as well as the request for extradition; and (2) the international practice where the Executive department need not initially grant notice and hearing at all. Rules of reciprocity and comity, however, should not bar us from applying internationally now what appears the more reasonable and humane procedure, that is, the interstate practice among Americans themselves. For in this case the American people should be among the most interested parties. Truly, what private respondent is asking our Executive department (notice, copies of documents, and the opportunity to protect himself at the earliest time against probable peril) does not, in my view, violate our Extradition Treaty with the USA. His request if granted augurs well for transparency in interstate or intergovernmental relations rather than secrecy which smacks of medieval diplomacy and the inquisition discredited long ago. That private respondent is a Filipino citizen is not decisive of the issue here, although it is obviously pertinent. Even if he were a resident alien (other than American perhaps), he is, in my

view, entitled to our full protection against the hazards of extradition (or deportation, similarly) from the very start. More so because, looking at the facts adduced at the hearing and on the record of this case, the charges against him involve or are co-mingled with, if not rooted in, certain offenses of a political nature or motivation such as the ones involving alleged financial contributions to a major American political party. If so, long established is the principle that extradition could not be utilized for political offenses or politically motivated charges. There may, of course, be other charges against private respondent in the USA. But then they are, in my view, already tainted there with political color due to the highly charged partisan campaign atmosphere now prevailing. That private respondent's cases will be exploited as political fodder there is not far-fetched, hence the need here for cautious but comprehensive deliberation on the matter at bar. For, above all, it is not only a Treaty provision we are construing; it is about constitutional and human rights we are most concerned.

YNARES-SANTIAGO, J., concurring opinion; I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a citizen's right to be given what is due to him. I join in his exposition of this Court's constitutional duty to strike the correct balance between overwhelming Government power and the protection of individual rights where only one person is involved. However, I am constrained to write this short concurrence if only to pose the question of why there should be any debate at all on a plea for protection of one's liberty which, if granted, will not result in any meaningful impediment of thwarting any state policy and objectives. I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked about, should first be exposed to the indignity, expense, and anxiety of a public denunciation in court before he may be informed of what the contracting states in an extradition treaty have against him. There is no question that everything which respondent Jimenez now requests will be given to him during trial. Mr. Jimenez is only petitioning that, at this stage, he should be informed why he may be deported from his own country. I see no ill effects which would arise if the extradition request and supporting documents are shown to him now, instead of later. Petitioner Secretary of Justice states that his action on the extradition request and its supporting documents will merely determine whether or not the Philippines is complying with its treaty obligations. He adds that, therefore, the constitutional rights of an accused in all criminal prosecutions are not available to the private respondent. The July 13, 1999 reply-letter from petitioner states the reasons why he is denying respondent Jimenez's requests. In short, the reasons are:

1. In evaluating the documents, the Department merely determines whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutional rights of the accused in all criminal prosecutions are, therefore, not available. 2. The United States Government has requested the Philippine Government to prevent unauthorized disclosure of certain grand jury information. 3. The petitioner cannot hold in abeyance proceedings in connection with an extradition request. For extradition to be an effective tool of criminal law enforcement, requests for surrender of accused or convicted persons must be processed expeditiously. I respectfully submit that any apprehensions in the Court arising from a denial of the petition — "breach of an international obligation, rupture of states relations, forfeiture of confidence, national embarrassment, and a plethora of other equally undesirable consequences" — are more illusory than real. Our country is not denying the extradition of a person who must be extradited. Not one provision of the extradition treaty is violated. I cannot imagine the United States taking issue over what, to it, would be a minor concession, perhaps a slight delay, accorded in the name of human rights. On the other hand, the issue is fundamental in the Philippines. A citizen is invoking the protection, in the context of a treaty obligation, of rights expressly guaranteed by the Philippine Constitution. Until proved to be a valid subject for extradition, a person is presumed innocent or not covered by the sanctions of either criminal law or international treaty. At any stage where a still prospective extraditee only seeks to know so that he can prepare and prove that he should not be extradited, there should be no conflict over the extension to him of constitutional protections guaranteed to aliens and citizens alike. Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article 7 enumerates the required documents and establishes the procedures under which the documents shall be submitted and admitted as evidence. There is no specific provision on how that Secretary of Foreign Affairs should conduct his evaluation. The Secretary of Justice is not even in the picture at this stage. Under petitioner's theory, silence in the treaty over a citizen's rights during the evaluation stage is interpreted as deliberate exclusion by the contracting states of the right to know. Silence is interpreted as the exclusion of the right to a preliminary examination or preliminary investigation provided by the laws of either one of the two states. The right to be informed of charges which may lead to court proceedings and result in a deprivation of liberty is ordinarily routine. It is readily available to one against whom the state's coercive power has already been focused. I fail to see how silence can be interpreted as exclusion. The treaty is silent because at this stage, the preliminary procedure is still an internal matter. And when a law or treaty is silent, it means a right or privilege may be granted. It is not the other way around. The second reason alleging the need for secrecy and confidentiality is even less convincing. The explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the United

States Government requested the Philippine Government to prevent unauthorized disclosure of certain information. On the other hand, petitioner declares that the United States has already secured orders from concerned District Courts authorizing the disclosure of the same grand jury information to the Philippine Government and its law enforcement personnel. Official permission has been given. The United States has no cause to complain about the disclosure of information furnished to the Philippines. Moreover, how can grand jury information and documents be considered confidential if they are going to be introduced as evidence in adversely proceedings before a trial court? The only issue is whether or not Mr. Jimenez should be extradited. His innocence or guilt of any crime will be determined in an American court. It is there where prosecution strategies will be essential. If the Contracting States believed in a total non-divulging of information prior to court hearings, they would have so provided in the extradition treaty. A positive provision making certain rights unavailable cannot be implied from silence. I cannot believe that the United States and the Philippines with identical constitutional provisions on due process and basic rights should sustain such a myopic view in a situation where the grant of a right would not result in any serious setbacks to criminal law enforcement. It is obvious that any prospective extraditee wants to know if his identity as the person indicated has been established. Considering the penchant of Asians to adopt American names when in America, the issue of whether or not the prospective extraditee truly is the person charged in the United States becomes a valid question. It is not only identity of the person which is involved. The crimes must also be unmistakably identified and their essential elements clearly stated. There are other preliminary matters in which respondent is interested. I see nothing in our laws or in the Treaty which prohibits the prospective extraditee from knowing until after the start of trial whether or not the extradition treaty applies to him. Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941); and Salonga vs. Hon. Paño, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to secure an innocent person against hasty, faulty and, therefore, oppressive proceedings; to protect him from an open and extensively publicized accusation of crimes; to spare him the trouble, expense, and anxiety of a public trial; and also to protect the state from useless and expensive trails. Even if the purpose is only to determine whether or not the respondent is a proper subject for extradition, he is nonetheless entitled to the guarantees of fairness and freedom accorded to those charged with ordinary crimes in the Philippines. The third reason given by petitioner is the avoidance of delay. Petitioner views the request to be informed as part of undesirable delaying tactics. This is most unfortunate. Any request for extradition must be viewed objectively and impartially without any predisposition to granting it and, therefore, hastening the extradition process. In the first place, any assistance which the evaluating official may get from the participation of respondent may well point out deficiencies and insufficiencies in the extradition documents. It

would incur greater delays if these are discovered only during court trial. On the other hand, if, from respondent's participation, the evaluating official discovers a case of mistaken identity, insufficient pleadings, inadequate complaints, or any ruinous shortcoming, there would be no delays during trial. An unnecessary trial with all its complications would be avoided. The right to be informed is related to the constitutional right to a speedy trial. The constitutional guarantee extends to the speedy disposition of cases before all quasi-judicial and administrative bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does not mean the deliberate exclusion of the defendant or respondent from the proceedings. As this Court rules in Acebedo vs. Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial, means one free from vexatious, capricious and oppressive delays, its salutary objective being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt (in this case, his being extradited) determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose." The right to be informed and the right to a preliminary hearing are not merely for respondent. They also serve the interests of the State.1âwphi1.nêt In closing, I maintain that the paramount consideration of guaranteeing the constitutional rights of individual respondent override the concerns of petitioner. There should be no hurried or indifferent effort to routinely comply with all requests for extradition. I understand that this is truer in the United States than in other countries. Proposed extraditees are given every legal protection available from the American justice system before they are extradited. We serve under a government of limited powers and inalienable rights. Hence, this concurrence.

PUNO, J., dissenting opinion; If the case at bar was strictly a criminal case which involves alone the right of an accused to due process, I would have co-signed the ponencia of our esteemed colleague, Mr. Justice Jose A.R. Melo, without taking half a pause. But the case at bar does not involve the guilt or innocence of an accused but the interpretation of an extradition treaty where at stake is our government's international obligation to surrender to a foreign state a citizen of its own so he can be tried for an alleged offense committed within that jurisdiction. The issues are of first impression and the majority opinion dangerously takes us to unknown shoals in constitutional and international laws, hence this dissenting opinion. Extradition is a well-defined concept and is more a problem in international law. It is the "process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. It applies to those who are merely charged with an offense but have not been brought to trial; to those who have been tried and convicted and have subsequently escaped from custody; and those who have been convicted in absentia. It does not apply to persons merely suspected of having committed an offense but against who no charge has been laid or to a person whose presence is desired as a

witness or for obtaining or enforcing a civil judgment."1 The definition covers the private respondent who is charged with two (2) counts of conspiracy to commit offense or to defraud the United States, four (4) counts of attempt to evade or defeat tax, two (2) counts of fraud by wire, radio or television, six (6) counts of false statements or entries and thirty-three (33) counts of election contributions in the name of another. There is an outstanding warrant of arrest against the private respondent issued by the US District Court, Southern District of Florida. A brief review of the history of extradition law will illumine our labor. Possibly the most authoritative commentator on extradition today, M. Cherif Bassiouni, divides the history of extradition into four (4) periods: "(1) ancient times to seventeenth century — a period revealing almost exclusive concern for political and religious offenders; (2) the eighteenth century and half of the nineteenth century — a period of treaty-making chiefly concerned with military offenders characterizing the condition of Europe during that period; (3) from 1833 to 1948 — a period of collective concern in suppressing common criminality; and (4) post-1948 developments which ushered in a greater concern for protecting the human rights of persons and revealed an awareness of the need to have international due process of law regulate international relations."2 It is also rewarding to have a good grip on the changing slopes in the landscape of extradition during these different periods. Extradition was first practiced by the Egyptians, Chinese, Chaldeans and Assyro-Babylonians but their basis for allowing extradition was unclear. Sometimes, it was granted due to pacts; at other times, due to plain good will.3 The classical commentators on international law thus focused their early views on the nature of the duty to surrender an extraditee — whether the duty is legal or moral in character. Grotius and de Vattel led the school of thought that international law imposed a legal duty called civitas maxima to extradite criminals.4 In sharp contrast, Puffendorf and Billot led the school of thought that the socalled duty was but an "imperfect obligation which could become enforceable only by a contract or agreement between states.5 Modern nations tilted towards the view of Puffendorf and Billot that under international law there is no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme Court in US v. Rauscher,6 held: ". . . . it is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed, for trial and punishment. This has been done generally by treaties . . . Prior to these treaties, and apart from them there was no welldefined obligation on one country to deliver up such fugitives to another; and though such delivery was often made it was upon the principle of comity . . ." Then came the long and still ongoing debate on what should be the subject of international law. The 20th century saw the dramatic rise and fall of different types and hues of authoritarianism — the fascism of Italy's Mussolini and Germany's Hitler, the militarism of Japan's Hirohito and the communism of Russia's Stalin, etc. The sinking of these isms led to the elevation of the rights of the individual against the state. Indeed, some species of human rights have already been accorded universal recognition.7 Today, the drive to internationalize rights of women and children is also on high gear.8 The higher rating given to human rights in the hierarchy of values necessarily led to the re-examination of rightful place of the individual in international law. Given the harshest eye is the moss-covered doctrine that international law deals only with States

and that individuals are not its subject. For its undesirable corrally is the sub-doctrine that an individual's right in international law is a near cipher. Translated in extradition law, the view that once commanded a consensus is that since a fugitive is a mere object and not a subject of international law, he is bereft of rights. An extraditee, so it was held, is a mere "object transported from one state to the other as an exercise of the sovereign will of the two states involved."9 The re-examination consigned this pernicious doctrine to the museum of ideas.10 The new thinkers of international law then gave a significant shape to the role and rights of the individual in state-concluded treaties and other international agreements. So it was declared by then US Ambassador Philip C. Jessup in audible italics: "A very large part of international affairs and, thus, of the process of international accommodation, concerns the relations between legal persons known as states. This is necessarily so. But it is no longer novel for the particular interest of the human being to break through the mass of interstate relationship."11 The clarion call to re-engineer a new world order whose dominant interest would transcend the parochial confines of national states was not unheeded. Among the world class scholars who joined the search for the elusive ideological underpinnings of a new world order were Yale Professor Myres McDougal and Mr. Justice Florentino Feliciano. In their seminal work. Law and Minimum World Public Order, they suggested that the object of the new world should be "to obtain in particular situations and in the aggregate flow of situations the outcome of a higher degree of conformity with the security goals of preservation, deterrence, restoration, rehabilitation and reconstruction of all societies comprising the world community."12 Needless to stress, all these prescient theses accelerated the move to recognize certain rights of the individual in international law. We have yet to see the final and irrevocable place of individual rights, especially the rights of an extraditee, in the realm of international law. In careful language, Bassiouni observes that today, "institutionalized conflicts between states are still rationalized in terms of sovereignty, national interest, and national security, while human interests continue to have limited, though growing impact on the decision-making processes which translate national values and goals into specific national and international policy."13 I belabor the international law aspect of extradition as the majority opinion hardly gives it a sideglance. It is my humble submission that the first consideration that should guide us in the case at bar is that a bilateral treaty — the RP-US Extradition Treaty — is the subject matter of the litigation. In our constitutional scheme, the making of a treaty belongs to the executive and legislative departments of our government. Between these two departments, the executive has a greater say in the making of a treaty. Under Section 21, Article VII of our Constitution, the President has the sole power to negotiate treaties and international agreements although to be effective, they must be concurred in by at least two thirds of all the members of the Senate. Section 20 of the same Article empowers the President to contract or guarantee foreign loans with the prior concurrence of the Monetary Board. Section 16 of the same Article gives the President the power to appoint ambassadors, other public ministers and consuls subject to confirmation by the Commission on Appointments. In addition, the President has the power to deport undesirable aliens. The concentration of these powers in the person of the President is not without a compelling consideration. The conduct of foreign relations is full of complexities and consequences, sometimes with life and death significance to the nation especially in times of war. It can only be entrusted to that department of government which can act on the basis of the

best available information and can decide with decisiveness. Beyond debate, the President is the single most powerful official in our land for Section 1 of Article VII provides that "the executive power shall be vested in the President of the Philippines," whereas Section 1 of Article VI states that "the legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives . . . except to the extent reserved to the people by the provision on initiative and referendum," while Section 1 of Article VIII provides that "judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law." Thus, we can see that executive power is vested in the President alone whereas legislative and judicial powers are shared and scattered. It is also the President who possesses the most comprehensive and the most confidential information about foreign countries for our diplomatic and consular officials regularly brief him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military intelligence data.14 In fine, the presidential role in foreign affairs is dominant and the President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to breach of an international obligation, rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other problems with equally undesirable consequences. These are some of the dominant policy considerations in international law that the Court must balance against the claim of the private respondent that he has a right to be given the extradition documents against him and to comment thereon even while they are still at the evaluation stage by the petitioner Secretary of Justice, an alter ego of the President. The delicate questions of what constitutional rights and to what degree they can be claimed by an extraditee do not admit of easy answers and have resulted in discrete approaches the world over.15 On one end of the pole is the more liberal European approach. The European Court of Human Rights embraces the view that an extraditee is entitled to the benefit of all relevant provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It has held that ". . . in so far as a measure of the extradition has consequences adversely affecting the enjoyment of a convention right, it may, assuming that the consequences are not too remote, attract the obligations of a Contracting State under the relevant convention guarantee."16 At the other end of the pole is the more cautious approach of the various Courts of Appeal in the United States. These courts have been more conservative in light of the principle of separation of powers and their faith in the presumptive validity of executive decisions. By and large, they adhere to the rule of non-inquiry under which the extraditing court refuses to examine the requesting country's criminal justice system or consider allegations that the extraditee will be mistreated or denied a fair trial in that country.17 The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the RP-US Extradition Treaty and our Constitution where we have to choose one over the other. Rather, it calls for a harmonization between said treaty and our Constitution. To achieve this desirable objective, the Court should consider whether the constitutional rights invoked by the private respondent have truly been violated and even assuming so, whether he will be denied fundamental fairness. It is only when their violation will destroy the respondent's right to fundamental fairness that his constitutional claims should be given primacy.

Given this balancing approach, it is my humble submission that considering all the facts and facets of the case, the private respondent has not proved entitlement to the right he is claiming. The majority holds that the Constitution, the RP-US extradition and P.D. No. 1069 do not prohibit respondent's claims, hence, it should be allowed. This is too simplistic an approach. Rights do not necessarily arise from a vacuum. Silence of the law can even mean an implied denial of a right. Also, constitutional litigations do not always involve a clear cut choice between right and wrong. Sometimes, they involve a difficult choice between right against right. In these situations, there is need to balance the contending rights and primacy is given to the right that will serve the interest of the nation at that particular time. In such instances, the less compelling right is subjected to soft restraint but without smothering its essence. Proceeding from this premise of relativism of rights, I venture the view that even assuming arguendo respondent's weak claim, still, the degree of denial of private respondent's rights to due process and to information is too slight to warrant the interposition of judicial power. As admitted in the ponencia itself, an extradition proceeding is sui generis. It is, thus, futile to determine what it is. What is certain is that it is not a criminal proceeding where there is an accused who claim the entire array of rights guaranteed by the Bill of Rights. Let it be stressed that in an extradition proceeding, there is no accused and the guilt or innocence of the extraditee will not be passed upon by our executive officials nor by the extradition judge. Hence, constitutional rights that are only relevant do determine the guilt or innocence of an accused cannot be invoked by an extraditee. Indeed, an extradition proceeding is summary in nature which is untrue of criminal proceedings.18 Even the rules of evidence are different in an extradition proceeding. Admission of evidence is less stringent, again because the guilt of the extraditee is not under litigation.19 It is not only the quality but even the quantum of evidence in extradition proceeding is different. In a criminal case, an accused can only be convicted by proof beyond reasonable doubt.20 In an extradition proceeding, an extraditee can be ordered extradited "upon showing of the existed of a prima facie case."21 If more need be said, the nature of an extradition decision is different from a judicial decision whose finality cannot be changed by executive fiat. Our courts22 may hold an individual extraditable but the ultimate decision to extradite the individual lies in the hands of the Executive. Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that "extradition shall not be granted if the executive authority of the Requested State determined that the request was politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation." In the United States, the Secretary of State exercises this ultimate power and is conceded considerable discretion. He balances the equities of the case and the demands of the nation's foreign relations.23 In sum, he is not straitjacketed by strict legal considerations like an ordinary court. The type of issue litigated in extradition proceedings which does not touch on the guilt or innocence of the extraditee, the limited nature of the extradition proceeding, the availability of adequate remedies in favor of the extraditee, and the traditional leeway given to the Executive in the conduct of foreign affairs have compelled courts to put a high threshold before considering claims of individuals that enforcement of an extradition treaty will violate their constitutional rights. Exemplifying such approach is the Supreme Court of Canada which has adopted a highly deferential standard that emphasizes international comity and the executive's experience in international matters.24 It continues to deny Canada's charter protection to extraditees unless the violation can be considered shocking to the conscience.

In the case, at bar and with due respect, the ponencia inflates with too much significance the threat to liberty of the private respondent to prop us its thesis that his constitutional rights to due process and access to information must immediately be vindicated. Allegedly, respondent Jimenez stands in danger of provisional arrest, hence, the need for him to be immediately furnished copies of documents accompanying the request for his extradition. Respondent's fear of provisional arrest is not real. It is a self-imagined fear for the realities on the ground show that the United States authorities have not manifested any desire to request for his arrest. On the contrary, they filed the extradition request through the regular channel and, even with the pendency of the case at bar, they have not moved for respondent's arrest on the ground of probable delay in the proceedings. To be sure, the issue of whether respondent Jimenez will be provisionally arrested is now moot. Under Section 1 of Article 9 of the RP-US Extradition Treaty, in relation to Section 20(a) of PD No. 1069, the general principle is enunciated that a request for provisional arrest must be made pending receipt of the request for extradition. By filing the request for extradition, the US authorities have implicitly decided not to move for respondent's provisional arrest. But more important, a request for respondent's arrest does not mean he will be the victim of an arbitrary arrest. He will be given due process before he can be arrested. Article 9 of the treaty provides: PROVISIONAL ARREST 1. In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice. 2. The application for provisional arrest shall contain: a) a description of the person sought; b) the location of the person sought, if known; c) a brief statements of the facts of the case, including, if possible, the time and location of the offense; d) a description of the laws violated; e) a statement of the existence of a warrant of a warrant of arrest or finding of guilt or judgment of conviction against the person sought; and f) a statement that a request for extradition for the person sought will follow. 3. The Requesting State shall be notified without delay of the disposition of its application and the reasons for any denial. 4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the

executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 7. In relation to the above, Section 20 of P.D. No. 1069 provides: Sec. 20. Provisional Arrest. — (a) In case of urgency, the requesting state may, pursuant to the relevant treaty or convention and while the same remains in force, request for the provisional arrest of the accused, pending receipt of the request for extradition made in accordance with Section 4 of this Decree. (b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation, Manila, either through the diplomatic channels or direct by post or telegraph. (c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon receipt of the request immediately secure a warrant for the provisional arrest of the accused from the presiding judge of the Court of First Instance of the province or city having jurisdiction of the place, who shall issue the warrant for the provisional arrest of the accused. The Director of the National Bureau of Investigation through the Secretary of Foreign Affairs shall inform the requesting state of the result of its request. (d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign Affairs has not received the request for extradition and the documents mentioned in Section 4 of this Decree, the accused shall be released from custody. The due process protection of the private-respondent against arbitrary arrest is written in cyrillic letters in these two (2) related provisions. It is self-evident under these provisions that a request for provisional arrest does not mean it will be granted ipso facto. The request must comply with certain requirements. It must be based on an "urgent" factor. This is subject to verification and evaluation by our executive authorities. The request can be denied if not based on a real exigency of if the supporting documents are insufficient. The protection of the respondent against arbitrary provisional arrest does not stop on the administrative level. For even if the Director of the National Bureau of Investigation agrees with the request for the provisional arrest of the respondent, still he has to apply for a judicial warrant from the "presiding judge of the Court of First Instance (now RTC) of the province of city having jurisdiction of the place. . . . ." It is a judge who will issue a warrant for the provisional arrest of the respondent. The judge has comply with Section 2, Article III of the Constitution which provides that "no . . . 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 . . . persons or things to be seized." The message that leaps to the eye is that compliance with this requirements precludes any arbitrary arrest. In light of all these considerations, I respectfully submit that denying respondent's constitutional claim to be furnished all documents relating to the request for his extradition by the US authorities during their evaluation stage will not subvert his right to fundamental fairness. It

should be stressed that this is not a case where the respondent will not be given an opportunity to know the basis of the request for his extradition. In truth, and contrary to the impression of the majority, P.D. No. 1069 fixes the specific time when he will be given the papers constituting the basis for his extradition. The time is when he is summoned by the extradition court and required to answer the petition for extradition. Thus, Section 6 of P.D. No. 1069 provides: Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. — (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. He may issue a warrant for the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof. (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case. Upon receipt of the summons and the petition, respondent is free to foist all defense available to him. Such an opportunity does not deny him fairness which is the essence of due process of law. Thus, with due respect, I submit that the ponencia failed to accord due importance to the international law aspect of an extradition treaty as it unduly stressed its constitutional law dimension. This goes against the familiar learning that in balancing the clashing interests involved in extradition treaty, national interest is more equal than the others. While lately, humanitarian considerations are being factored in the equation, still the concept of extradition as a national act is the guiding idea. Requesting and granting extradition remains a power and prerogative of the national government of a State. The process still involves relations between international personalities.25 Needless to state, a more deferential treatment should be given to national interest than to individual interest. Our national interest in extraditing persons who have committed crimes in a foreign country are succinctly expressed in the whereas clauses of P.D. No. 1069, viz: WHEREAS, the Constitution of the Philippines adopts the generally accepted principles of international law as part of law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations; WHEREAS, the suppression of crime is the concern not only of the state where it is committed but also of any other state to which the criminal may have escaped, because it saps the foundation of social life and is an outrage upon humanity at large, and it is in the interest of civilized communities that crimes should not go unpunished. . . . . The increasing incidence of international and transnational crimes, the development of new technologies of death, and the speed and scale of improvement of communication are factors which have virtually annihilated time and distance. They make more compelling the vindication of national interest to insure that the punishment of criminals should not be frustrated by the

frontiers of territorial sovereignty. This overriding national interest must be upheld as against respondent's weak constitutional claims which in no way amount to denial of fundamental fairness. At bottom, this case involves the respect that courts should accord to the Executive that concluded the RP-US Extradition Treaty in the conduct of our foreign affairs. As early as 1800, the legendary John Marshall, then a congressman, has opined that the power to extradite pursuant to a treaty rests in the executive branch as part of its power to conduct foreign affairs.26 Courts have validated this forward-looking opinion in a catena of unbroken cases. They defer to the judgment of the Executive on the necessities of our foreign affairs and on its view of the requirements of international comity. The deferential attitude is dictated by the robust reality that of the three great branches of our government, it is the Executive that is most qualified to guide the ship of the state on the known and unknown continents of foreign relations. It is also compelled by considerations of the principle of separation of powers for the Constitution has clearly allocated the power to conduct our foreign affairs to the Executive. I respectfully submit that the majority decision has weakened the Executive by allowing nothing less than an unconstitutional headbutt on the power of the Executive to conduct our foreign affairs. The majority should be cautions in involving this Court in the conduct of the nation's foreign relations where the inviolable rule dictated by necessity is that the nation should speak with one voice. We should not overlook the reality that courts by their nature, are ill-equipped to fully comprehend the foreign policy dimension of a treaty, some of which are hidden in shadows and silhouettes. I vote to grant the petition.

PANGANIBAN, J., dissenting opinion; With due respect, I dissent. The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the due process rights of notice and hearing during the preliminary or evaluation stage of the extradition proceeding against him. Two Staged in Extradition There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation stage, whereby the executive authority of the requested state ascertains whether the extradition request is supported by the documents and information required under the Extradition Treaty; and (2) the extradition hearing, whereby the petition for extradition is heard before a court of justice, which determines whether the accused should be extradited. The instant petition refers only to the first stage. Private respondent claims that he has a right to be notified and to be heard at this early stage. However, even the ponencia admits that neither the RP-US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires

the Philippine government, upon receipt of the request for extradition, to give copies thereof and its supporting documents to the prospective extraditee, much less to give him an opportunity to be heard prior to the filing of the petition in court. Notably, international extradition proceedings in the United States do not include the grant by the executive authority of notice and hearing to the prospective extraditee at this initial stage. It is the judge or magistrate who is authorized to issue a warrant of arrest and to hold a hearing to consider the evidence submitted in support of the extradition request. In contrast, in interstate rendition, the governor must, upon demand, furnish the fugitive or his attorney copies of the request and its accompanying documents, pursuant to statutory provisions.1 In the Philippines, there is no similar statutory provision. Evaluation Stage Essentially Ministerial The evaluation stage simply involves the ascertainment by the foreign affairs secretary of whether the extradition request is accompanied by the documents stated in paragraphs 2 and 3, Article 7 of the Treaty, relating to the identity and the probable location of the fugitive; the facts of the offense and the procedural history of the case; provisions of the law describing the essential elements of the offense charged and the punishment therefor; its prescriptive period; such evidence as would provide probable cause for the arrest and the committal for trial of the fugitive; and copies of the warrant or order of arrest and charging document. The foreign affairs secretary also sees to it that these accompanying documents have been certified by the principal diplomatic or consular officer of the Philippines in the United States, and that they are in English language or have English translations. Pursuant to Article 3 of the Treaty, he also determines whether the request is politically motivated, and whether the offense charged is a military offense not punishable under non-military penal legislation.2 Upon a finding of the secretary of foreign affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the justice secretary, who shall immediately designate and authorize an attorney in his office to take charge of the case. The lawyer designated shall then file a written petition with the proper regional trial court, with a prayer that the court take the extradition request under consideration.3 When the Right to Notice and Hearing Becomes Available According to private Respondent Jimenez, his right to due process during the preliminary stage emanates from our Constitution, particularly Section 1, Article III thereof, which provides: No person shall be deprived of life, liberty or property without due process of law. He claims that this right arises immediately, because of the possibility that he may be provisionally arrested pursuant to Article 9 of the RP-US Treaty, which reads: In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest

may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice. xxx xxx xxx

Justice Melo's ponencia supports private respondent's contention. It states that there are two occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a provisional arrest pending the submission of the extradition request and (2) his temporary arrest during the pendency of the extradition petition in court.4 The second instance is not in issue here, because no petition has yet been filed in court. However, the above-quoted Article 9 on provisional arrest is not automatically operative at all times, and in enforcement does not depend solely on the discretion of the requested state. From the wordings of the provision itself, there are at least three requisites: (1) there must be an urgency, and (2) there is a corresponding request (3) which must be made prior to the presentation of the request for extradition. In the instant case, there appears to be no urgency characterizing the nature of the extradition of private respondent. Petitioner does not claim any such urgency. There is no request from the United States for the provisional arrest of Mark Jimenez either. And the secretary of justice states during the Oral Argument that he had no intention of applying for the provisional arrest of private respondent.5 Finally, the formal request for extradition has already been made; therefore, provisional arrest is not likely, as it should really come before the extradition request.6 Mark Jimenez Not in Jeopardy of Arrest Under the outlined facts of this case, there is no open door for the application of Article 9, contrary to the apprehension of private respondent. In other words, there is no actual danger that Jimenez will be provisionally arrested or deprived of his liberty. There is as yet no threat that his rights would be trampled upon, pending the filing in court of the petition for his extradition. Hence, there is no substantial gain to be achieved in requiring the foreign affairs (or justice) secretary to notify and hear him during the preliminary stage, which basically involves only the exercise of the ministerial power of checking the sufficiency of the documents attached to the extradition request. It must be borne in mind that during the preliminary stage, the foreign affairs secretary's determination of whether the offense charged is extraditable or politically motivated is merely preliminary. The same issue will be resolved by the trial court.7 Moreover, it is also the power and the duty of the court, not the executive authority, to determine whether there is sufficient evidence to establish probable cause that the extraditee committed the crimes charged.8 The sufficiency of the evidence of criminality is to be determined based on the laws of the requested state.9 Private Respondent Jimenez will, therefore, definitely have his full opportunity before the court, in case an extradition petition will indeed be filed, to be heard on all issues including the sufficiency of the documents supporting the extradition request.10

Private respondent insists that the United States may still request his provisional arrest at any time. That is purely speculative. It is elementary that this Court does not declare judgments or grant reliefs based on speculations, surmises or conjectures. In any event, even granting that the arrest of Jimenez is sought at any time despite the assurance of the justice secretary that no such measure will be undertaken, our local laws and rules of procedure respecting the issuance of a warrant of arrest will govern, there being no specific provision under the Extradition Treaty by which such warrant should issue. Therefore, Jimenez will be entitled to all the rights accorded by the Constitution and the laws to any person whose arrest is being sought.1âwphi1.nêt The right of one state to demand from another the return of an alleged fugitive from justice and the correlative duty to surrender the fugitive to the demanding country exist only when created by a treaty between the two countries. International law does not require the voluntary surrender of a fugitive to a foreign government, absent any treaty stipulation requiring it.11 When such a treaty does exist, as between the Philippines and the United States, it must be presumed that the contracting states perform their obligations under it with uberrimae fidei, treaty obligations being essentially characterized internationally by comity and mutual respect. The Need for Respondent Jimenez to Face Charges in the US One final point. Private respondent also claims that from the time the secretary of foreign affairs gave due course to the request for his extradition, incalculable prejudice has been brought upon him. And because of the moral injury caused, he should be given the opportunity at the earliest possible time to stop his extradition. I believe that any moral injury suffered by private respondent had not been caused by the mere processing of the extradition request. And it will not cease merely by granting him the opportunity to be heard by the executive authority. The concrete charges that he has allegedly committed certain offenses already exist. These charges have been filed in the United States and are part of public and official records there. Assuming the existence of moral injury, the only means by which he can restore his good reputation is to prove before the proper judicial authorities in the US that the charges against him are unfounded. Such restoration cannot be accomplished by simply contending that the documents supporting the request for his extradition are insufficient. Conclusion In the context of the factual milieu of private respondent, there is really no threat of any deprivation of his liberty at the present stage of the extradition process. Hence, the constitutional right to due process — particularly the right to be heard — finds no application. To grant private respondent's request for copies of the extradition documents and for an opportunity to comment thereon will constitute "over-due process" and unnecessarily delay the proceedings. WHEREFORE, I vote to grant the Petition.

Footnotes VITUG, J., separate opinion;
1

Sec. 7. The right of the people to information of public concern shall be recognized. Access to official records, and to documents, and papers a pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
2

Legaspi vs. Civil Service Commission, 150 SCRA 530; Valmonte vs. Belmonte, Jr., 170 SCRA 256.
3

Aniag, Jr. vs. Commission on Elections, 237 SCRA 424; Tupas vs. Court of Appeals, 193 SCRA 597.
4

Abraham, Henry J., Some Basic Guidelines of "Due Process of Law." The Lawyers Review, Vol. IX, 30 April 1995, p. 1.
5

Cruz, Isagani A. Constitutional Law. 1995 Ed. pp. 94-95.

KAPUNAN, J., separate concurring opinion;
1

Annex "L," petition. Petition, p. 4.

2

3

Edillon vs. Fernandos, 114 SCRA 153 (1982); Pangilinan vs. Zapata, 69 SCRA 334 (1976).
4

Stanley v. Illinois, 1405 U.S. 645, 647.

PUNO, J., dissenting opinion;
1

Weston, Falk, D'Amato, International Law and World Order, 2nd ed., p. 630 (1990). International Extradition, United States Law and Practice, 2nd ed., p. 7 (1987).

2

3

The Practice of Extradition from Antiquity to Modern France and the United States: A Brief History, 4 B.C. Int'l. & Comp. L. Rev. 39 (1981).

4

They were supported by scholars like Heineccuis, Burlamaqui, Rutherford, Schmelzing and Kent. See Sheareer, Extradition in Internal Law, p. 24 (1971).
5

They were supported by scholars like Voet, Martons, Kuber, Leyser, Lint, Seafied, Schmaltz, Mittermaier and Heffter. See Shearer, supra, p. 24.
6

119 US 407, 411, 7 S. Ct. 234, 236, 30 L. ed. 425 (1886).

7

See Universal Declaration of Human Rights (1948), The International Covenant on Economic, Social and Cultural Rights (1966) and The International Covenant on Civil and Political Rights (1966).
8

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) otherwise known as "Bill of Rights for Women" was adopted by the UN General Assembly in December 1979. As of November 1999, one hundred sixty seven (167) states including the Philippines have ratified or acceded to it. See Statement of Angela King, Special Adviser to the Secretary General of the UN on Gender Issues and Advancement of Women, Judicial Colloquium on the Application of International Human Rights Law at the Domestic Level, Vienna, Austria, October 27, 1999.
9

Blakesley and Lagodny, Finding armony Amidst Disagreement Over Extradition, Jurisdiction, The Role of Human Rights and Issues of Extraterritoriality Under International Criminal Law, Vanderbilt Journal of Transnational Law, Vol. 24, No. 1, pp. 44 (1991).
10

See generally Kelsen, Principles of International Law, 2nd ed., (1966); Korowicz, The Problem of the International Personality of Individuals, 50 Am. J., Int'l. Law 553 (1966).
11

The Conquering March of an Idea, Speech before the 72nd Annual Meeting of the American Bar Association, St. Louis, Mo., September 6, 1949.
12

See also R. Falk and S. Mendlovitz, Strategy of World Order, etc. (1996); G. Clark and L. Sohn, World Peace Through World Law (1966); Bassiouni, International Extradition in American Practice and World Public Order, 36 Tenn. L. Rev. 1 (1968).
13

Bassiouni, supra, p. 625. US v. Curtiss-Wright Expert Corp., 299 US 304, 57 S Ct. 216, 81 L. ed. 255 (1936).

14

15

Spencer, The Role of the Charter in Extradition Cases, University of Toronto L. Rev., vol. 51, pp. 62-63, (Winter, 1993).
16

Spencer, op cit., citing the decision in Soering, 11 E.H.R.R. 439 (1989).

17

Semmelman, Federal Courts, The Constitution and the Rule of Non-Inquiry in International Extradition Proceedings, Cornell Law Rev., vol. 76, No. 5, p. 1198 (July 1991).
18

Sec. 9, P.D. No. 1069. Ibid. Sec. 2, Rule 133, Revised Rules of Court. Sec. 10, P.D. No. 1069.

19

20

21

22

Referring to the Regional Trial Courts and the Court of Appeals whose decisions are deemed final and executory. See Section 12, P.D. No. 1069.
23

Note, Executive Discretion in Extradition, 62 Col. Law Rev., pp. 1314-1329. Spencer, op cit., citing decided cases. Weston, Falk and Amato, International Law and World Order, 2nd ed., p. 630 (1990). Semmelman. op cit., p. 1206.

24

25

26

PANGANIBAN, J., dissenting opinion;
1

35 CJS § 14(1) Extradition 410. See also ponencia, p. 25. See ponencia, pp. 11-12. Ibid., Section 5, pars. (1) & (2), PD 1069. Ponencia, p. 18. TSN, p. 76. See also TSN, p. 30. § 5 (2) & (3) in rel. to § 10, PD 1069. See also last par., p. 13 of ponencia. 18 USCS § 3184, n 58 Criminal Procedure 456; 31A Am Jur 2d § 109 Extradition 828. 18 USCS § 3184, n 64 Criminal Procedure 458. See Wright v. Court of Appeals, 235 SCRA 341, August 15, 1994.

2

3

4

5

6

7

8

9

10

11

31A Am Jur 2d Extradition § 14.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 93833 September 28, 1995 SOCORRO D. RAMIREZ, petitioner, vs. HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.: A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and personality," contrary to morals, good customs and public policy." 1 In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs awardable at the trial court's discretion. The transcript on which the civil case was based was culled from a tape recording of the confrontation made by petitioner. 2 The transcript reads as follows:
Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am. Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo. CHUCHI — Kasi, naka duty ako noon. ESG — Tapos iniwan no. (Sic) CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon — ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa

review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi. CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m. ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita). CHUCHI — Itutuloy ko na M'am sana ang duty ko. ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko. ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa. CHUCHI — Kumuha kami ng exam noon. ESG — Oo, pero hindi ka papasa. CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo ESG — Kukunin ka kasi ako. CHUCHI — Eh, di sana — ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito kung hindi ako. CHUCHI — Mag-eexplain ako. ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga magulang ko. ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon. CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union. ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na. CHUCHI — Ina-ano ko m'am na utang na loob. ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako.

CHUCHI — Paano kita nilapastanganan? ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong ka. 3

As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and other related violations of private communication, and other purposes." An information charging petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith:
INFORMATION The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No. 4200, committed as follows: That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines, and within the jurisdiction of this honorable court, the above-named accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to record the latter's conversation with said accused, did then and there willfully, unlawfully and feloniously, with the use of a tape recorder secretly record the said conversation and thereafter communicate in writing the contents of the said recording to other person. Contrary to law. Pasay City, Metro Manila, September 16, 1988. MARIANO M. CUNETA Asst. City Fiscal

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a communication by a person other than a participant to the communication. 4 From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989. On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order of May 3, 1989 null and void, and holding that:
[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus quashing the information based on the ground that the facts alleged do not

constitute an offense, the respondent judge acted in grave abuse of discretion correctible by certiorari. 5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of Appeals denied in its Resolution 6 dated June 19, 1990. Hence, the instant petition. Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act 4200 does not apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision merely refers to the unauthorized taping of a private conversation by a party other than those involved in the communication. 8 In relation to this, petitioner avers that the substance or content of the conversation must be alleged in the Information, otherwise the facts charged would not constitute a violation of R.A. 4200. 9 Finally, petitioner agues that R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that consequently, her act of secretly taping her conversation with private respondent was not illegal under the said act. 10 We disagree. First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible 11 or absurb or would lead to an injustice. 12 Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private Communication and Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute's intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200. A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to

make illegal, unauthorized tape recording of private conversations or communications taken either by the parties themselves or by third persons. Thus:
xxx xxx xxx Senator Tañada: That qualified only "overhear". Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to be material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties and involved not criminal cases that would be mentioned under section 3 but would cover, for example civil cases or special proceedings whereby a recording is made not necessarily by all the parties but perhaps by some in an effort to show the intent of the parties because the actuation of the parties prior, simultaneous even subsequent to the contract or the act may be indicative of their intention. Suppose there is such a recording, would you say, Your Honor, that the intention is to cover it within the purview of this bill or outside? Senator Tañada: That is covered by the purview of this bill, Your Honor. Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to be used in Civil Cases or special proceedings? Senator Tañada: That is right. This is a complete ban on tape recorded conversations taken without the authorization of all the parties. Senator Padilla: Now, would that be reasonable, your Honor? Senator Tañada: I believe it is reasonable because it is not sporting to record the observation of one without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose; Your honor, is to record the intention of the parties. I believe that all the parties should know that the observations are being recorded. Senator Padilla: This might reduce the utility of recorders. Senator Tañada: Well no. For example, I was to say that in meetings of the board of directors where a tape recording is taken, there is no objection to this if all the parties know. It is but fair that the people whose remarks and observations are being made should know that the observations are being recorded. Senator Padilla: Now, I can understand. Senator Tañada: That is why when we take statements of persons, we say: "Please be informed that whatever you say here may be used against you." That is fairness and that is what we demand. Now, in spite of that warning, he makes damaging statements against his own interest, well, he cannot complain any more. But if you are going to take a recording of the observations and remarks of a person without him knowing that it is being taped or recorded, without him knowing that what is being recorded may be used against him, I think it is unfair. xxx xxx xxx (Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a party secretly records a public speech, he would be penalized under Section 1? Because the speech is public, but the recording is done secretly. Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is the communication between one person and another person — not between a speaker and a public. xxx xxx xxx (Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964) xxx xxx xxx

The unambiguity of the express words of the provision, taken together with the abovequoted deliberations from the Congressional Record, therefore plainly supports the view held by the respondent court that the provision seeks to penalize even those privy to the private communications. Where the law makes no distinctions, one does not distinguish. Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed." 14 Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include "private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word communicate comes from the latin word communicare, meaning "to share or to impart." In its ordinary signification, communication connotes the act of sharing or imparting signification, communication connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process by which meanings or thoughts are shared between individuals through a common system of symbols (as language signs or gestures)" 16 These definitions are broad enough to include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include the emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latter's office. Any doubts about the legislative body's meaning of the phrase "private communication" are, furthermore, put to rest by the fact that the terms "conversation" and "communication" were interchangeably used by Senator Tañada in his Explanatory Note to the bill quoted below:
It has been said that innocent people have nothing to fear from their conversations being overheard. But this statement ignores the usual nature of conversations as well the

undeniable fact that most, if not all, civilized people have some aspects of their lives they do not wish to expose. Free conversations are often characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires of views not intended to be taken seriously. The right to the privacy of communication, among others, has expressly been assured by our Constitution. Needless to state here, the framers of our Constitution must have recognized the nature of conversations between individuals and the significance of man's spiritual nature, of his feelings and of his intellect. They must have known that part of the pleasures and satisfactions of life are to be found in the unaudited, and free exchange of communication between individuals — free from every unjustifiable intrusion by whatever means. 17

In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we held that the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise was neither among those "device(s) or arrangement(s)" enumerated therein, 19 following the principle that "penal statutes must be construed strictly in favor of the accused." 20 The instant case turns on a different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private communications with the use of tape-recorders as among the acts punishable. WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against petitioner. SO ORDERED. Padilla, Davide, Jr. and Bellosillo JJ., concur. Hermosisima, Jr., J., is on leave. Footnotes
1 Docketed as Civil Case No. 88-403, Regional Trial Court, Makati, Branch 64. 2 Rollo, p. 48. 3 Rollo, pp. 47-48. 4 Rollo, p. 9. 5 Rollo, p. 37. 6 Rollo, p. 99, Annex "H". 7 Rollo, p. 13. 8 Id.

9 Rollo, p. 14. 10 Rollo, p. 14-15. 11 Pacific Oxygen and Acytelene Co. vs. Central Bank 37 SCRA 685 (1971). 12 Casela v. Court of Appeals, 35 SCRA 279 (1970). 13 Rollo, p. 33. 14 Rollo, p. 67. 15 WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 460 (1976). 16 Id. 17 CONGRESSIONAL RECORD, Vol. III, No. 31, at 573 (March 10, 1964). 18 145 SCRA 112 (1986). See also, Salcedo-Ortanez v. CA 235 SCRA 111 (1994). 19 Id., at 120. 20 Id., at 121.

Republic of the Philippines SUPREME COURT Baguio City EN BANC

G.R. No. 124131 April 22, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SAMUEL BORCE, accused-appellant.

VITUG, J.: Samuel Borce was convicted by the Regional Trial Court of Bangued, Abra, in a decision, promulgated on 23 October 1995, in the jointly-tried Criminal Case No. 1481 and Criminal Case No. 1482. The trial court there adjudged:
WHEREFORE: In Criminal Case No. 1481 for Rape, the Court finds the accused guilty beyond reasonable doubt of two (2) counts of the crime of rape committed with the use of a deadly weapon aggravated by mutilation defined and penalized under Article 335 of the Revised Penal Code in relation to Section 11 of Republic Act No. 7659, and sentences him to suffer two death penalties. In Criminal Case No. 1482 for frustrated murder, the Court finds the accused guilty beyond reasonable doubt of the crime of frustrated murder defined and penalized under the provision of Article 248 in relation to Article 50 of the Revised Penal Code and hereby sentences him to suffer an indeterminate penalty of EIGHT (8) YEARS AND TWENTY (20) DAYS of prision mayor as minimum, to FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of reclusion temporal as maximum. The accused is hereby ordered to indemnify the victim in the amount of P250,000.00 as actual, moral and exemplary damages, 1 and to pay the costs of the proceedings.

The penalty of death having been imposed on the accused by the court a quo, the records were elevated to this Court, in accordance with Article 47 of the Revised Penal Code, as amended by Section 22 of Republic Act No. 7659, for automatic review. Samuel Borce, the accused-appellant, had been charged in two separate informations, to wit: In Criminal Case No. 1481 for Rape:
That on or about April 29, 1994, at around 8:30 o'clock in the morning, at the hill of the western part of Bariquir, Barangay San Antonio, Municipality of Bangued, Province of Abra, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with lewd design and with the use of deadly weapon, did then and there, willfully, unlawfully and feloniously lie upon one REGINA BAGA and succeed in having carnal knowledge against her will and consent and this was repeated for the 2 second time around, to the great damage and prejudice of the said offended party.

In Criminal Case No. 1482 for Frustrated Murder:

That on or about April 29, 1994, at around 8:30 o'clock in the morning, at the hill of the western part of Barangay San Antonio, Municipality of Bangued, Province of Abra, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery, use of superior strength and evident premeditation, did then and there, willfully, unlawfully and feloniously hack the face of one REGINA BAGA, inflicting multiple hack wounds on her face, thus the accused having performed all the acts of execution which would have produced the crime of Murder as a consequence but nevertheless 3 did not produce it by reason of the timely medical attendance rendered to said victim which prevented her death.

The accused, assisted by counsel, entered a plea of "not guilty" to the two charges. The Solicitor General, closely paraphrasing the trial court in its decision, summed up the evidence for the prosecution; thus:
Complainant Regina Baga is 45 years old, married, and whose husband works abroad as an overseas contract worker. She is thin and weighs not more than 100 pounds. She and appellant, Samuel Borce, are neighbors in Barangay San Antonio, Bangued, Abra (TSN., August 22, 1994, p. 3). On April 29, 1994, at about 8:30 o'clock in the morning, Regina took her bolo and ventured alone to gather firewood at Barikir, a forested area situated about one kilometer away from her house. (TSN, August 22, 1994, p. 4) While ascending a hilly portion of the forest, she noticed appellant behind her (p. 3). Without saying a word, appellant approached Regina, took hold of her right arm, twisted it and wrested away her bolo (p. 3). Appellant poked the tip of the bolo on Regina's neck and threatened to kill her (p. 10). At this point, appellant's bestial desires were aroused. Giving vent to it, he pinned complainant on the ground and forcibly removed her "Cullots" and underpants. Regina unceasingly fought to resist his advances. Nonetheless, being stronger and heavier, appellant placed himself on top of Regina and after a protracted struggle succeeded in raping her. Thereafter, appellant dragged Regina away from the pathwalk and into the woods (p. 7). His lust not yet satiated, appellant raped Regina for the second time. When he was through, appellant dragged Regina farther into the forest. There, he executed his plan to kill and abandon Regina. However, Regina did not die. When she regained consciousness after being strangled by appellant, she noticed that her face was hacked (Ibid. p. 9). Terrified, she screamed for help but [no one] came. Meanwhile, Regina's son, Raymund, was worried that at a late hour his mother had not yet returned home (TSN, Sept. 26, 1994, p. 10). Fearing that something bad may have happened, he, together with his brother and sister, went to search for her in the woods. There, they found their mother lying on the ground and bleeding profusely on the face. Her brain tissues were exposed. When asked what had transpired, Regina told her son that she was raped and hacked by appellant. (ibid., p. 11). Immediately 4 Raymund brought her mother to their house.

Regina was brought to the Abra Provincial Hospital where she was promptly attended to. Her treatment in the hospital lasted for 16 days. The medical certificate, 5 dated 11 May 1994, disclosing the findings of attending physician Dr. Cynthia Cacho Viado on the injuries suffered by the victim, pertinently read:
IE — Multiple old hymenal lacerations Vagina admits two fingers with ease. Cervix open 1-2 cm. Uterus enlarged to three months size. Adnexae (-) Bleeding moderate. SPERM ID (-) PT (-) xxx xxx xxx NOI — Hacking POI — San Antonio, Bangued, Abra TOI — 8:30 A.M.

DOI — 4-29-94 Multiple hacking wound — face (Mid) portion.
6

Samuel Borce denied the accusation. Presented at the witness stand by the defense were the accused himself, his mother Lydia Borce and one Dr. Herminio Venus. Highlighting the testimony of the defense witnesses, the Public Attorney's Office, acting as counsel for the accused, narrated its version of the case; thus:
Accused Samuel Borce testified that on April 29, 1994, he went to get the firewood that he gathered and when he arrived in the place he saw Regina Baga gathering the firewood which he already gathered; then he prevented the victim from gathering the firewood. She tried to hack him with her bolo so that they grappled for possession of the bolo and while grappling, the bolo hit the head of Regina Baga afterwhich the accused left her. He denied having raped Regina Baga. After grappling with the bolo, the accused went home and thereafter he went to see Regina Baga when he was informed that she was already dead and this was the time he was arrested and detained up to the present. When he was arrested by the police officers he was not informed of his human and constitutional rights. LYDIA BORCE testified that she is the mother of the accused. That on April 29, 1994, she said that she and her son went to gather firewoods and after gathering firewoods they went home and that he never raped the complainant. She admitted that she did not see Regina Baga stabbed the accused because she went home already. She only learned Regina Baga was hurt from the people who told her. She tried to go and help her but she was already brought to the hospital. She testified that when her son was brought to the police station he narrated that he accidentally hacked her (Regina Baga) when the latter attempted to steal his firewood. She also asked the accused if he raped Regina Baga and told her that he did not rape Regina Baga. Her son was detained up to the present. She stated that she was not able to do anything for her son because they are poor and have nothing to offer. She tried to asked the help of the Brgy. Captain but they did not pay attention to her. When asked by the Court Regina Baga alleged that when victim prevented her son to get the firewood gathered by her son she personally witnessed the incident in fact she tried to prevent her and not to steal the firewood, but Regina Baga did not heed her. DR. VENUS when asked by the court if there was rape committed against victim stated, thus: "As to my findings there is no physical injuries." He stated that the lacerations were old ones and when rape committed within three hours, the lacerations would have been fresh and not old. The victim was allegedly raped on April 29, 1994 so that on the same day she was examined. The doctor also admitted if there are no lacerations there is consent to the sexual intercourse. The doctor also admitted that moderate bleeding was due to menstrual period. When asked if there is spermatozoa, he answered in the negative. He stated that a spermatozoa has a lifetime of within 24 hours or for 2 days and if the spermatozoa were inside already in the vagina it will live for 7 17 days.

The trial court, Hon. Benjamin A. Boñgolan presiding, was not persuaded by the theory put up by the defense in the face of the strong evidence submitted by the prosecution. The accused was convicted, as aforesaid, of the crimes charged. In this appeal from the judgment finding him guilty, appellant Samuel Borce assigned two related errors allegedly committed by the court below; to wit:
1. The trial court gravely erred in giving full weight and credence to the testimonies of the witnesses of the prosecution and in disregarding the theory of the defense. 2. The trial court gravely erred in convicting accused-appellant Samuel Borce of double rape despite the fact that the results of the 8 medical findings contradicted to the testimony of Regina Baga thereby showing that no rape was committed.

At the cost of being overly repetitious, the court, once again, must here echo the familiar doctrine that in the assessment and evaluation of contradictory asseverations of witnesses, it is with the trial court where the main responsibility, as well as its concomitant authoritativeness, really lies. The appellate court, absent cogent justifications that can warrant otherwise, would almost certainly defer to the findings and conclusions made thereon by the trial court. Several reasons have been advanced, nurtured by a host of jurisprudential holdings, that are all too compelling to be ignored. The trial judge is he who gets the opportunity to directly and intimately observe the witnesses and to determine, by their demeanor at the witness stand, the probative strength or weakness of that which they declare. The witnesses can reveal much more than what can ordinarily be reflected in and perceived from the transcripts that merely would contain the matter which is stated but not how it is said. Tell-tale marks of either honesty or fabrication, truth or concoction, reality or imagination, may eventuate from a meaningful pause or spontaneous ready

reply, the angry or subdued denial, the forthright stare or the elusive eyes, the sudden pallor or the flush of face, and all that characterizes the deportment and peculiar outward behavior of witnesses when their examination and cross examination is elicited. These signs, although available to the trial judge, 9 are, however, easily lost on the appellate court. In rape cases particularly, the judge is often asked to arbitrate between the discordant and irreconcilable declaration of the victim and the denial of the accused. In the estimation of such conflicting versions, hardly can the appellate court assert a preponderant competence over that of the trial judge. It is true, of course, that an accusation for rape can be managed with facility, while the defense, upon the other hand, is invariably hard put to dispute the claim of rape. It is precisely for these reasons that a court does not merely take in stride the charge but gives a full and concentrated attention on, as well as great caution in, the assessment and evaluation of the victim's testimony. With all the above considerations in mind, the Court itself has gone over the testimony of Regina. Here is how she has testified:
FISCAL FLORES: Q Will you please state your name, age and other personal circumstances? A Regina Baga, 45 years old, married, a housekeeper and a resident of San Antonio, Bangued, Abra. Q Madam Witness, do you know a person by the name of Samuel Borce? A Yes, Sir. Q And will you tell the Court why you know Samuel Borce? A I know him because he is my neighbor in San Antonio. Q Where are you neighbors in one another? A In San Antonio, Bangued, Abra, Sir. Q If this neighbor of yours Samuel Borce is in court this morning, will you kindly point to him? INTERPRETER: Witness pointed to accused Samuel Borce. FISCAL FLORES: Q Alright, on April 29, 1994 at around 8:30 o'clock in the morning, do you know where were you? A Yes, Sir. Q Where were you at that time? A I was in the forest, Sir. Q Where is that forest you are referring to located? A In Barikir, San Antonio, Sir? Q Will you tell the Court why you were on the forest on that particular morning of April 29, 1994?

A I went to gather firewood, Sir. Q Do you have any companion when you went to the forest to gather firewood at that time? A None, Sir. Q Madam Witness, will you tell the Court the distance where you gathered firewood from your house? A It is less than 1 kilometer, Sir. Q While you were at the forest or hill to gather firewood on that particular hour at 8:30 o'clock in the morning, April 29, 1994, do you know if there was anything unusual happened to you? A Yes, Sir. Q Will you tell the Honorable Court what was that unusual incident happened to you? A On that particular morning when I went to gather firewood when I was ascending to the mountain I saw Samuel Borce behind me, Sir. Q And what happened next when you saw Samuel Borce behind your back? A He got holding of my hand holding a bolo and twisted it, Sir. Q And what happened when he twisted your arm and got the bolo? A After twisting my right arm and wrested the bolo from me afterwhich he let me down and removed my clothes and my panty and skirt, Sir. Q After removing your skirt and panty, what did he do next? A He raped me, Sir. He went on top of me and inserted his penis into my vagina. Q You said that he took the bolo from you, what did he do with the bolo after taking from you . . . . I withdraw the question, your Honor. A You said he placed his private part into yours, what did you feel when he inserted his penis into your vagina? A I felt something hot inside me, Sir. COURT: Q What was that hot if you know? A Maybe his semen coming from him, Sir. FISCAL FLORES: Q More or less how long did he stay on top of you? A About 3 minutes, Sir. Q How many times did he insert his penis into yours? A (No answer) COURT:

Q Did he rape you? A He raped me twice, Sir. Q What do you mean by that? A After raping me for once he transferred me to another place then he again raped me, Sir. Q Where did he transfer you? A He transferred me to a place near the place where he first raped me, but that place is farther than the path, Sir. Q What is this path? A The path going to the mountain, Sir. Q And this is the path which you took in going to the mountain? A Yes, Sir. FISCAL FLORES: Q Now, you said that he also took the bolo that you were holding? COURT: Q What happened after raping you for the second time? A I struggled and I lost consciousness, Sir. FISCAL FLORES: Q After regaining your consciousness, what happened next? A Samuel Borce was not there anymore by my face is already wounded, Sir. Q Do you know what have caused the wound in your face? ATTY. BARBERO: Objection, your Honor, she said she was unconscious. COURT: May answer. COURT: A Yes, Sir. COURT: Q What was he used in wounding your face if you know? A He used my bolo, Sir.

FISCAL FLORES: Q You said that the wound inflicted in your face was caused by the bolo he got from you, in what stage did he cause the wound in your face, before the first rape or after the first rape? A After the second rape, Sir. Q Actually, how did he wound you on that bolo he got from you? A He hacked me, Sir. Q Where? A He hacked me on my face, Sir. (Witness pointing to the scars on her face.) Q How many times did he hack you in your face? A He hacked me 3 times, Sir.
10

On cross-examination, the complainant repeated, in the same straightforward fashion, her direct testimony. Continuing, she went on to respond to further searching questions of counsel; thus:
ON CROSS-EXAMINATION: ATTY. BARBERO: Q You said that the accused told you that he was going to kill you, in fact, he did not do that instead according to you he laid you down and raped you? COURT: It is different. ATTY. BARBERO: Q When did he say that he will kill you? A When he already laid me down, Sir. Q By the way, Madam Witness, what is your educational attainment? A First Year high school, Sir. Q He did not kill you when he said that instead according to you he had a sexual intercourse with you, is it not? A Yes, Sir. Q And according to you before he had sexual intercourse with you, he took off your panty and palda? COURT: You need not to repeat. ATTY. BARBERO: That is what she said, your Honor.

A Yes, Sir. ATTY. BARBERO: Q What first did he take off? A He removed first my skirt, Sir. Q What is the kind of your skirt that you were wearing at that time? A Cullotes, Sir. COURT: What is this cullotes? ATTY. BARBERO: It is a skirt but a pants and loose in the thighs, your Honor. Q How did he take that off, your pants when you were lying down and you said that he is already on top of you at that time? A He pulled it down, Sir. COURT: Q What was your position? A I was already lying down, Sir. ATTY. BARBERO: Q Isn't a fact, Madam Witness, that you testified before this Court when you said that when he laid you down, he went on top of you? A Yes, Sir, after removing my cullottes and my panty. Q After he removed your cullottes, he then again removed your panty when you were lying down? A Yes, Sir. Q Naturally, in taking off your cullottes and your panty, he used his two hands, is it not? A He used both hands, Sir. Q And at that time that he was taking off your cullottes and panty both of his hands, you did not bother to kick him and then run away? A I tried to defend myself but he is stronger than me, Sir. Q However you have all the chances to defend yourself when he was removing your cullottes and panty, why did you not try to kick him and fight him to defend yourself? A I tried to fight back but he is stronger than me, Sir. Q You did not even try to bite his hands or scratch his face or his breast or whatever part of his body?

A I cannot bite him because he pushed me down, Sir. (The witness making a gesture of both hands.) Q At the time he was pushing you down of both of his hands, he then make sexual intercourse with you, is it not? A Yes, Sir. Q So since you said both of his hand were being used in pushing you down, how did he able to insert his penis into your private part? Or how was he able to insert his penis into your vagina when both of his hands were pushing you down? A He went on top of me and insert his penis into my vagina, Sir. Q At the time that he went on top of you, you did not try to close your thighs but you spread it out? A Even if I tried to close my thighs, he was so much stronger than I, Sir. Q So that at the time that he was pushing you down according to you, both of his hands, you did not have any other recourse than to let him go so that you have no strength? A Yes, Sir, because he is stronger than I and I could not do anything. Q But during the time he was pushing you down with his two hands and then he did the act of sexual intercourse according to you? A Yes, Sir. Q And according to you he again transferred you to another place, is it not? A Yes, Sir. Q How far from the original place? A From here up to across the street, Sir. COURT: Which the parties agreed to be simply 25 to 30 meters. ATTY. BARBERO: 30 meters, your Honor. Q When he transferred you, you followed him? A I followed him because he was dragging me, Sir. COURT: Q What was he pulling? A My hand, Sir. Q How about your panty and skirt? A He was holding them, Sir. ATTY. BARBERO:

Q He was pulling only with one hand? A Yes, Sir. Q What hand, the right or left hand? A My right hand, Sir. Q And his left hand was holding your cullottes and your panty? A Yes, Sir. Q So that you did not try to pull away although it is only his one hand was holding you? A I was already weak, Sir. Q You are already weak with one sexual intercourse? A I was already weak because I was weakened with the experience and you can see my physical built, Sir. Q While he was pulling you to transfer to another place you did not even try to bite him or fight back while the other hand was holding your panty and cullottes? A Even if I am going to fight him back I am already weak and he is even stronger and bigger than me in built, Sir. Q Isn't a fact that San Antonio is a stony land? A Even if San Antonio is stony, at that time I was not able to pick up stone and at that time he was dragging me, Sir. Q And you have your left hand to pick up a stone or pick up sand in order to grapple with him? A I was already overcome by fear, Sir. ATTY. BARBERO: I think the correct translation for that, your Honor, is; "I don't able to think that anymore." COURT: Put it on record. ATTY. BARBERO: Q And even you did not think for shouting even that you said that the place is near the road? A I screamed for help but nobody was there to help me, Sir. Q How about your husband, why did you not bring him to gather firewood? A He was not around, Sir. Q Where is your husband? A He is working abroad, Sir. Q How many years did he work there abroad?

A He went abroad in October, Sir. Q October, what year?. A October, 1993, Sir. COURT: Q Is he still abroad? A Yes, Sir. ATTY. BARBERO: Q So that at the time of the incident, your husband is not living with you for more than 6-months?. A Yes, Sir. Q So at that time, it was you who was holding a bolo, is it not? FISCAL FLORES: I think that is a vague question, your Honor. COURT: Witness may answer. A Yes, Sir, because I was on my way to gather firewood. ATTY. BARBERO: Q In fact, it was even you who tried to hack the accused but he got hold on you, is it not? A No, Sir, he got hold of my hand right away. Q And that the time he got hold your hand and the bolo and it was wounded your face? A No, Sir, he pointed the bolo first on my neck. Q But your neck was not wounded? A Yes, Sir, he just rested the point of the bolo on my neck. COURT: Q So that the wound at the base of your neck it is not caused by the accused as you said later as the wound opened by the surgeon during your operation in order for breathing? A Yes, Sir. ATTY. BARBERO: Q You said that you were operated for a hack in your face, there was no showing, there is no stitches? A You can see three long scars on my forehead, Sir.

Q That was the time when he moved the bolo on your face? COURT: She said she was unconscious at that time. ATTY. BARBERO: Q You said that you are unconscious, however the accused did not do anything to you, he did not kill you and did not stab you until you die? FISCAL FLORES: If she was unconscious at that time, how was she able to know, your Honor? COURT: Reform. ATTY. BARBERO: Q However, you did not sustain anymore wounds when you were unconscious the accused did not take the opportunity to kill you? FISCAL FLORES: She was already unconscious, your Honor. COURT: Sustained. ATTY. BARBERO: Q So that according to you the accused left you when you were unconscious? FISCAL FLORES: Objection, your Honor, she was already unconscious. COURT: What is the question? ATTY. BARBERO: Q So that according to you the accused left you when you were unconscious, that when she regained her consciousness, she found her face bleeding, your Honor? COURT: May answer. A Yes, Sir. ATTY. BARBERO: Q And that was all that the accused did to you, he just left you?

FISCAL FLORES: The question is misleading, your Honor. COURT: Reform. ATTY. BARBERO: Q In your statement found on page 6 of the record, question No. 4 and answer No. 4, you did not state that you were transferred by the accused and he again raped you, which may I request that it be marked as Exhibit I, your Honor? COURT: Mark it Exhibit I, question and answer No. 4, mark the original copy. ATTY. BARBERO: It is found on page 5 of the record of the rape case so with the frustrated murder case, your Honor. COURT: Anyway it is jointly tried. ATTY. BARBERO: Q You said that when he transferred you to another place, you have all the chances to pick up your cullotes and your panty, however you have never have the chance to pick up a stone and throw his hand? A There was no stone beside me, Sir. COURT: Q Is this place a thickly forested or sparsely? A That is a thickly forested place, Sir. ATTY. BARBERO: Q Isn't a fact, Madam Witness, that San Antonio there are no more forest and then that is being flooded everytime when there was a typhoon? A Some parts only, Sir. Q Did you not say a while ago that the first he first raped you was along the path and then he brought you farther along the road? COURT: She did not say that. She was not raped beside the road. ATTY. BARBERO: She said, your Honor, transferred me farther the road nearer the path. COURT:

Yes, nearer the path. May answer. A Yes, Sir. COURT: Q How far was it from the path? A It is about from here up to there, Sir, about half a meter. ATTY. BARBERO: Q And along that path there are stones and sands because the path is not aspalted, is it not? A There are no stones because the soil there was hard, Sir. Q You never have any conversation with him at the time, only the fact that he told you he is going to kill you, however he did not kill you but he raped you? A Yes, Sir. ATTY. BARBERO: That's all for the witness, your Honor. 11

The testimony of Regina Baga is plain and unswerving. The Court is amply convinced that the trial court could not have erred in giving credence to her testimony. Even an uncorroborated testimony of a single witness, if credible, is enough to warrant conviction. If the rule were otherwise, there rarely would be convictions in rape cases which almost invariably are committed with no eye-witnesses around to attest to their commission. Neither can alibi, verily a mere denial and basically self serving in nature, be held to prevail over positive and affirmative testimony. The rule is even strengthened where the complainant appears to have no nefarious motive to charge the accused wrongly. It would be unthinkable that Regina Baga, a frail woman, weighing barely 100 pounds, married, and 45 years of age at the time of the attack on her honor, would open herself and her family to public scrutiny and embarrassment, let alone send an innocent man possibly to the gallows, for no strong reason at all. Already in the past, the Court has rejected the argument that the absence of sperm in the vaginal area is a good defense in a rape case. It may not be amiss to add that the medical certificate was issued by Dr. Viado only on 11 May 1994 or several days after the commission of the offense on 29 April 1994. Medical findings indicative of pressure on the genitalia, coupled with the testimony of the victim, have repeatedly been held to suffice. 12 Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659 reads:
Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the following circumstances. 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. 2. When the victim is under the custody of the police or military authorities. 3. When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. 4. When the victim is a religious or a child below seven (7) years old. 5. When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. 6. When committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. 7. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation.

In fine, relevant to the case at bar, when the crime of rape is committed "with the use of a deadly weapon," the penalty prescribed is reclusion perpetua to death. The death penalty is imposed when by reason or on the occasion of rape, the victim has suffered "permanent physical mutilation." In this regard, the Court a quo stated:
It is therefore crystal clear to the mind of this Court that the two counts of rape were committed with the use of a deadly weapon, i.e., the bolo used by the accused in hacking, with the bestiality of an enraged beast, the victim with three strokes on her face all of which were fatal and nearly cost her life. This dastardly and heinous act was accompanied by unusual cruelty and savagery. The victim was left for dead; that she survived is, to the Court, the will of providence so she can identify to the strong arm of the law and to the unerring sword of justice, her attacker. In the advent of the reimposition of the death penalty under R.A. No. 7659, Sec. 11, this Court is mandated to impose the death penalty, considering that the victim sustained fatal wounds which left her permanently deformed with the three ugly scars across her face. Furthermore, the wounds were inflicted after she was ravished so that these were therefore unnecessary for the 13 commission of rape, thus displaying the cruelty of the offender.

The imposition of the death penalty on accused-appellant by the trial court on each count of rape has been premised on the infliction of three scars on the victim's face. The phrase "permanent physical mutilation" has not been defined in the law. Neither Article 335 of the Revised Penal Code, as so amended by Republic Act No. 7659, nor any of the chapters in Title Eleven, entitled "Crimes against Chastity," provides any further clue on the meaning that should be given to the term. In Title Eight on "Crimes against Persons," 14 the Code simply states in Article 262 thereof that —
Art. 262. Mutilation. — The penalty of from reclusion temporal to reclusion perpetua shall be imposed upon any person who shall intentionally mutilate another by depriving him, either totally or partially, of some essential organ for reproduction. Any other intentional mutilation shall be punished by prision mayor in its medium and maximum periods.

No specific ascription having been given by the law to the word, "mutilation" must perforce be understood in its generic sense and ordinary usage. Webster 15 defines mutilation as cutting off or permanently destroying a limb or an essential part thereof. Black 16 defines the term, in its criminal law concept, as one that would deprive a person of the use of any of those limbs which may be useful to him in fight, the loss of which amounts to mayhem.

A thorough reading of the records of the case would fail to disclose that accused-appellant inflicted the wounds on the victim deliberately to maim her. It would, in fact, appear that the victim sustained the wounds only as a result of a clear attempt by appellant to kill her and cover-up his misdeeds. The injury thus borne by private complainant should not be taken as a circumstance which would raise the penalty to death for the crime of rape but should instead rightly be taken up and absorbed in the crime of frustrated murder. Accordingly, for each count of rape, there being neither mitigating nor aggravating circumstance alleged and proved in the commission thereof, the penalty, conformably with Article 63 of the Revised Penal Code, that should properly be imposed on accused-appellant in Criminal Case No. 1481 is reclusion perpetua. Relative to Criminal Case No. 1482, Article 248 of the Revised Penal Code provides:
Art. 248. Murder. — Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death if committed with any of the following attendant circumstances: 1. With treachery, taking advantage or superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity. 2. In consideration of a price, reward or promise. 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin. 4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity. 5. With evident premeditation. 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

When the crime is frustrated the penalty next lower in degree shall be imposed; hence, Article 50 of the same Code states:
Art. 50. Penalty to be imposed upon principals of a frustrated crime. — The penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon the principal in a frustrated felony.

The prosecution has satisfactorily shown that accused-appellant did likewise commit the crime of frustrated murder. The wounds inflicted on the hapless victim could have resulted in her death had it not been for the timely medical treatment administered to her. On accused-appellant's contention that he has had no intention to kill the victim, the Court agrees with the Solicitor General in his observations that —
(the) claim is completely belied by the nature and number of the wounds he inflicted on his victim. The medical examination of the victim reveals that the victim's hack wounds were indeed fatal. Observedly, the hack wounds extended to the brain matter of Regina. The court a quo dismissed appellant's defense as a "naive story." According to him, complainant tried to steal the firewood which appellant had gathered; that when appellant caught complainant in the act, she tried to hack him with her bolo; that in the struggle for possession of the bolo, complainant was accidentally wounded on the face. As correctly concluded by the court a quo, it befuddles the mind how complainant could have accidentally suffered three (3) deep hack wounds on her forehead and face when allegedly, in the course of the struggle, the sharp edge of the bolo faced the accused while its blunt edge faced the 17 complainant. That the wounds inflicted were deep and fatal belies appellant's claim that the blows were purely accidental.

On the award in lump sum of "P250,000.00 as actual, moral and exemplary damages" to the victim, the court a quo has acted inaptly. In order to sustain any award for such damages, each must be independently justified and substantiated which is here unfortunately wanting. For one, exemplary damages are awarded in a criminal offense only when its commission is attended by an aggravating

circumstance, a matter which has not been established. Consistent with prevailing jurisprudence, 18 however, the victim is entitled to an indemnity of P50,000.00 for each count of rape. WHEREFORE, the decision of the Regional Trial Court of Bangued, Abra, in Criminal Case No. 1482, finding appellant SAMUEL BORCE guilty beyond reasonable doubt of the crime of frustrated murder and sentencing him accordingly, is AFFIRMED. The decision in Criminal Case No. 1481, finding the same appellant guilty beyond reasonable doubt of two counts of rape is AFFIRMED with the MODIFICATIONS, however, that the penalty imposed on accused-appellant for each count of rape is hereby reduced to reclusion perpetua, and appellant is ordered to pay, instead of the P250,000.00 damages awarded by the court a quo, an indemnity of P50,000.00 for each count of rape. Costs against accused-appellant. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing and Purisima, JJ., concur. Footnotes
1 Records, pp. 176-177. 2 Records of Crim. Case No. 1481, p. 1. 3 Records of Crim. Case No. 1482, p. 1. 4 Rollo, pp. 85-87. 5 Exh. F, Records of Crim. Case No. 1481, p. 9. 6 Rollo, p. 22. 7 Rollo, pp. 43-44. 8 Rollo, pp. 44-45. 9 See People vs. Villanueva, 265 SCRA 216, citing cases; People vs. Bernal, 254 SCRA 659. 10 TSN, 22 August 1994, pp. 3-8. 11 Ibid., pp. 21-34. 12 People vs. Peralta, 251 SCRA 6. 13 Rollo, p. 25. 14 The crime of rape has been reclassified under the recently enacted Republic Act No. 8353 as a "Crime Against Persons." 15 Webster's Third New International Dictionary. 16 Black's Law Dictionary, sixth ed., p. 1020, citing People vs. Bullington, 27 Cal. App. 2d 396, 80 P. 2d 1030, 1032. 17 Rose, pp. 90-91. 18 People vs. Espinoza, 247 SCRA 66; People vs. Malunes, 247 SCRA 317.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 138298 August 24, 2001

RAOUL B. DEL MAR, petitioner, vs. PHILIPPINE AMUSEMENT AND GAMING CORPORATION, BELLE JAI-ALAI CORPORATION, FILIPINAS GAMING ENTERTAINMENT TOTALIZATOR CORPORATION, respondents. x---------------------------------------------------------x G.R. No. 138982 August 24, 2001

FEDERICO S. SANDOVAL II and MICHAEL T. DEFENSOR, petitioners, vs. PHILIPPINE AMUSEMENT AND GAMING CORPORATION, respondent. JUAN MIGUEL ZUBIRI, intervenor. RESOLUTION VITUG, J.: In it's decision, dated 29 November 2000, the Court granted petitions filed by Raoul B. Del Mar, Federico S. Sandoval 11 and Michael T. Defensor to enjoin the Philippine Amusement and Gaming Corporation (PAGCOR), Belle Jai-Alai Corporation (BELLE) and Filipinas Gaming Entertainment Totalizator Corporation (FILGAME) from operating, maintaining or managing jai-alai games and from enforcing the 17th June 1999 Agreement entered into among said respondents for that purpose.1 The ponencia penned by Justice Reynato S. Puno, concurred in by Chief Justice Hilario G. Davide, Jr., and Justices Jose A.R. Melo, Artemio V. Panganiban, Bernardo P. Pardo, Arturo B. Buena, Minerva P. Gonzaga-Reyes and Consuelo Ynares-Santiago, enucleated that PAGCOR was bereft of any franchise to operate, maintain or manage jai-alai games whether by itself alone or in conjunction with its co-respondents. The dissenting opinion of Justice Sabino R. de Leon, Jr., subscribed to by Justices Josue N. Bellosillo, Santiago M. Kapunan and Leonardo A. Quisumbing, stated that PAGCOR had a valid franchise to conduct jai-alai games and had likewise the authority under that franchise to maintain, operate or manage jai-alai games through and in association with its co-respondents BELLE and FILGAME pursuant to their agreement. The separate opinion of Justice Jose c. Vitug, shared by Justice Vicente V. Mendoza, expressed the view that the franchise accorded to PAGCOR was broad enough to authorize it to operate

sports and gaming pools, inclusive of jai-alai, that authority, however, did not allow it to contract any part of that franchise to its co-respondents BELLE and FILGAME. The subsequent motion for reconsideration were resolved in the Court's resolution of 19 June 2001, in this wise; viz: "Acting on the motions for reconsideration filed by public respondent Philippine Amusement and Gaming Corporation (PAGCOR) and private respondents Belle Jai-Alai Corporation (BELLE), and Filipinas Gaming Entertainment Totalizator Corporation (FILGAME), seeking to reverse the court's Decision dated November 29, 2000, only seven (7) justices, namely, Josue Bellosillo, Jose Melo, Santiago Kapunan, Leonardo Quisumbing, Consuelo Y. Santiago, Sabino de Leon and Angelina Gutierrez voted to grant the motions. For lack of required number of votes, the said motions for reconsideration are denied. The opinions of Justices Puno, Melo, Vitug and De Leon are herewith made part of this resolution." Respondents have sought from the Court a clarification of the foregoing resolution. During the deliberations of the Court culminating in the promulgation of its 19th June 2001 resolution, the justices voted thusly: (a) Chief Justice Hilario G. Davide, Jr., and Justices Reynato S. Puno, Artemio V. Panganiban, Bernardo P. Pardo and Minerva P. Gonzaga-Reyes held that PAGCOR had no valid franchise and that, therefore, it had no authority to operate, maintain or manage jai-alai games, either by itself or in association with any other entity; (b) Justices Josue N. Bellosillo, Jose A.R. Melo, Santiago M. Kapunan, Leonardo A. Quisumbing, Consuelo Ynares-Santiago, Sabino R. de Leon, Jr., and Angelina Sandoval-Gutierrez concluded that PAGCOR had a valid franchise to conduct jai-alai games and that it could operate, maintain or manage such games by itself or in association with BELLE and FILGAME conformably with their agreement; while (c) Justices Jose C. Vitug, Vicente V. Mendoza and Arturo B. Buena maintained that PAGCOR alone could operate, maintain or manage jai-alai games but that it could not contract, either directly or indirectly, any of such activities to entities, including BELLE and FILGAME, which were not themselves holders of a valid franchise. In fine, the results of voting on the issues raised in the motions for reconsideration, can be summed up thusly: On the issue of whether PAGCOR itself has a valid franchise to conduct jai-alai games, five members of the Court (Chief Justice Hilario G. Davide, Jr., and Justices Reynato S. Puno, Artemio V. Panganiban, Bernardo P. Pardo, and Minerva P. Gonzaga-Reyes) have voted in the negative and ten members of the Court (Justices Josue N. Bellosillo, Jose A. R. Melo, Jose C. Vitug, Vitug, Vicente V. Mendoza, Santiago M. Kapunan, Leonardo A. Quisumbing, Arturo B. Buena, Consuelo Ynares-Santiago, Sabino R. De Leon, Jr. and Angelina Sandoval-Gutierrez) have voted in the affirmative; and on the issue of whether PAGCOR can operate, maintain or manage jai-alai games in association with Belle and Filgame according to their assailed agreement, only seven members of the Court (Justices Josue N. Bellosillo, Jose A. R. Melo, Santiago M. Kapunan, Leonardo A. Quisumbing, Consuelo Ynares-Santiago, Sabino R. De Leon, Jr., and Angelina Sandoval-Gutierrez) have voted in the affirmative; while eight members of the Court have voted in the negative – five justices (Chief Justice Hilario G. Davide, Jr., and Justices Reynato S. Puno, Artemio V. Panganiban, Bernardo P. Pardo, and Minerva P.

Gonzaga-Reyes) have voted in the negative on the thesis that PAGCOR has no franchise to operate, maintain, or manage jai-alai, and three justices (Justices Jose C. Vitug, Vicente V. Mendoza, and Arturo B. Buena) have voted in the negative on the ground that only PAGCOR by itself, not with any other person or entity, can operate, maintain, or manage jai-alai games. WHEREFORE, acting on the instant motions for clarification filed by respondents and on the basis of the results of the voting heretofore elucidated, the Court resolves (a) to partially GRANT the motions for clarification insofar as it is prayed that Philippine Amusement and Gaming Corporation (PAGCOR) has a valid franchise to, but only by itself (i.e., not in association with any other person or entity), operate, maintain and/or manage the game of jaialai, and (b) to DENY the motions insofar as respondents would also seek a reconsideration of the Court's decision of 29 November 2000 that has, since then, (i) enjoined the continued operation, maintenance, and/or management of jai-alai games by PAGCOR in association with its co-respondents Belle Jai-Alai Corporation and/or Filipinas Gaming Entertainment Totalizator Corporation and (ii) held to be without force and effect the agreement of 17 June 1999 among said respondents. SO ORDERED.1âwphi1.nêt Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

Footnote:
1

The dispositive portion of the decision reads: "WHEREFORE, the petitions are GRANTED. Respondents PAGCOR, Belle Jai alai Corporation and Filipinas Gaming Entertainment Totalizator Corporation are ENJOINED from managing, maintaining and operating jai-alai games, and from enforcing the agreement entered into by them for that purpose." (p. 42, Decision.)

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 97471 February 17, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y PUNO, alias "Enry," accused-appellants. The Solicitor General for plaintiff-appellee. Edward C. Castañeda for accused-appellants.

REGALADO, J.: The primal issue for resolution in this case is whether accused-appellants committed the felony of kidnapping for ransom under Article 267 of the Revised Penal Code, as charged in the information; or a violation of Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), as contended by the Solicitor General and found by the trial court; or the offense of simple robbery punished by Paragraph 5, Article 294 of the Revised Penal Code, as claimed by the defense. In an information dated and filed on May 31, 1989 in the Regional Trial Court of Quezon City, Branch 103, as Criminal Case No. Q-57404 thereof, appellants were charged with kidnapping for ransom allegedly committed in the following manner:
That on or about the 13th day of January, 1988 in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the said accused, being then private individuals, conspiring together, confederating with and mutually helping each other, did, then and there, wilfully, unlawfully and feloniously kidnap and carry away one MARIA DEL SOCORRO SARMIENTO y MUTUC * for the purpose of extorting ransom, to the damage and prejudice of the said offended party in such amount as may be awarded to her under the provisions of the Civil Code. 1

On a plea of not guilty when arraigned, 2 appellants went to trial which ultimately resulted in a judgment promulgated on September 26, 1990 finding them guilty of robbery with extortion committed on a highway, punishable under Presidential Decree No. 532, with this disposition in the fallo thereof:

ACCORDINGLY, judgment is hereby rendered finding the accused ISABELO PUNO and ENRIQUE AMURAO GUILTY as principals of robbery with extortion committed on a highway and, in accordance with P.D. 532, they are both sentenced to a jail term of reclusion perpetua. The two accused are likewise ordered to pay jointly and severally the offended private victim Ma. Socorro M. Sarmiento the sum of P7,000.00 as actual damages and P3,000.00 as temperate damages. 3

Before us now in this appeal, appellants contend that the court a quo erred (1) in convicting them under Presidential Decree No. 532 since they were not expressly charged with a crime therein; (2) in applying Sections 4 and 5, Rule 120 of the Rules of Court since the charge under said presidential decree is not the offense proved and cannot rightly be used as the offense proved which is necessarily included in the offense charged. 4 For the material antecedents of this case, we quote with approval the following counterstatement of facts in the People's brief 5 which adopted the established findings of the court a quo, documenting the same with page references to the transcripts of the proceedings, and which we note are without any substantial divergence in the version proffered by the defense.
This is a prosecution for kidnapping for ransom allegedly done on January 13, 1988 by the two accused (tsn, Jan. 8, 1990, p. 7). Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue, Quezon City called Nika Cakes and Pastries. She has a driver of her own just as her husband does (Ibid., pp. 4-6). At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo Puno, who is the personal driver of Mrs. Sarmiento's husband (who was then away in Davao purportedly on account of local election there) arrived at the bakeshop. He told Mrs. Socorro that her own driver Fred had to go to Pampanga on an emergency (something bad befell a child), so Isabelo will temporary (sic) take his place (Id., pp. 8-9). Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she got into the Mercedes Benz of her husband with Isabelo on (sic) the wheel. After the car turned right in (sic) a corner of Araneta Avenue, it stopped. A young man, accused Enrique Amurao, boarded the car beside the driver (Id., pp. 9-10). Once inside, Enrique clambered on top of the back side of the front seat and went onto where Ma. Socorro was seated at the rear. He poke (sic) a gun at her (Id., p. 10). Isabelo, who earlier told her that Enrique is his nephew announced, "ma'm, you know, I want to get money from you." She said she has money inside her bag and they may get it just so they will let her go. The bag contained P7,000.00 and was taken (Id., pp. 11-14). Further on, the two told her they wanted P100,000.00 more. Ma. Socorro agreed to give them that but would they drop her at her gas station in Kamagong St., Makati where the money is? The car went about the Sta. Mesa area. Meanwhile, Ma. Socorro clutched her

Rosary and prayed. Enrique's gun was menacingly storing (sic) at her soft bread (sic) brown, perfumed neck. He said he is an NPA and threatened her (Id., p.15). The car sped off north towards the North superhighway. There Isabelo, Beloy as he is called, asked Ma. Socorro to issue a check for P100,000.00. Ma. Socorro complied. She drafted 3 checks in denominations of two for P30 thousand and one for P40 thousand. Enrique ordered her to swallow a pill but she refused (Id., pp. 17-23). Beloy turned the car around towards Metro Manila. Later, he changed his mind and turned the car again towards Pampanga. Ma. Socorro, according to her, jumped out of the car then, crossed to the other side of the superhighway and, after some vehicles ignored her, she was finally able to flag down a fish vendors van. Her dress had blood because, according to Ma. Socorro, she fell down on the ground and was injured when she jumped out of the car. Her dress was torn too (Id., pp. 23-26). On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id., p. 27). Both accused were, day after, arrested. Enrique was arrested trying to encash Ma. Socorro's P40,000.00 check at PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13) 6

As observed by the court below, the defense does not dispute said narrative of complainant, except that, according to appellant Puno, he stopped the car at North Diversion and freely allowed complainant to step out of the car. He even slowed the car down as he drove away, until he saw that his employer had gotten a ride, and he claimed that she fell down when she stubbed her toe while running across the highway. 7 Appellants further testified that they brought the Mercedez Benz car to Dolores, San Fernando, Pampanga and parked it near a barangay or police outpost. They thereafter ate at a restaurant and divided their loot. 8 Much later, when he took the stand at the trial of this case, appellant Puno tried to mitigate his liability by explaining that he was in dire need of money for the medication of his ulcers. 9 On these relatively simple facts, and as noted at the start of this opinion, three theories have been advanced as to what crime was committed by appellants. The trial court cohered with the submission of the defense that the crime could not be kidnapping for ransom as charged in the information. We likewise agree. Prefatorily, it is worth recalling an accepted tenet in criminal law that in the determination of the crime for which the accused should be held liable in those instances where his acts partake of the nature of variant offenses, and the same holds true with regard to the modifying or qualifying circumstances thereof, his motive and specific intent in perpetrating the acts complained of are invaluable aids in arriving at a correct appreciation and accurate conclusion thereon. Thus, to illustrate, the motive of the accused has been held to be relevant or essential to determine the specific nature of the crime as, for instance, whether a murder was committed in the furtherance of rebellion in which case the latter absorbs the former, or whether the accused had his own personal motives for committing the murder independent of his membership in the rebellious movement in which case rebellion and

murder would constitute separate offenses. 10 Also, where injuries were inflicted on a person in authority who was not then in the actual performance of his official duties, the motive of the offender assumes importance because if the attack was by reason of the previous performance of official duties by the person in authority, the crime would be direct assault; otherwise, it would only be physical injuries. 11 In the case at bar, there is no showing whatsoever that appellants had any motive, nurtured prior to or at the time they committed the wrongful acts against complainant, other than the extortion of money from her under the compulsion of threats or intimidation. This much is admitted by both appellants, without any other esoteric qualification or dubious justification. Appellant Puno, as already stated, candidly laid the blame for his predicament on his need for funds for, in his own testimony, "(w)hile we were along the way Mam (sic) Corina was telling me "Beloy, I know your family very well and I know that your (sic) not (a) bad person, why are you doing this?" I told her "Mam, (sic), because I need money and I had an ulcer and that I have been getting an (sic) advances from our office but they refused to give me any bale (sic). . . ." 12 With respect to the specific intent of appellants vis-a-vis the charge that they had kidnapped the victim, we can rely on the proverbial rule of ancient respectability that for this crime to exist, there must be indubitable proof that the actual intent of the malefactors was to deprive the offended party of her liberty, 13 and not where such restraint of her freedom of action was merely an incident in the commission of another offense primarily intended by the offenders. Hence, as early as United States vs. Ancheta, 14 and consistently reiterated thereafter, 15 it has been held that the detention and/or forcible taking away of the victims by the accused, even for an appreciable period of time but for the primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such other offenses they committed in relation thereto, but the incidental deprivation of the victims' liberty does not constitute kidnapping or serious illegal detention. That appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her personal liberty is clearly demonstrated in the veritably confessional testimony of appellant Puno:
Q At what point did Mrs. Sarmiento handed (sic) the bag containing the P7,000.00 to your nephew? A Santo Domingo Exit. Q And how about the checks, where were you already when the checks was (sic) being handed to you? A Also at the Sto. Domingo exit when she signed the checks. Q If your intention was just to robbed (sic) her, why is it that you still did not allow her to stay at Sto. Domingo, after all you already received the money and the checks?

A Because we had an agreement with her that when she signed the checks we will take her to her house at Villa (sic) Verde. Q And why did you not bring her back to her house at Valle Verde when she is (sic) already given you the checks? A Because while we were on the way back I (sic) came to my mind that if we reach Balintawak or some other place along the way we might be apprehended by the police. So when we reached Santa Rita exit I told her "Mam (sic) we will already stop and allow you to get out of the car." 16

Neither can we consider the amounts given to appellants as equivalent to or in the nature of ransom, considering the immediacy of their obtention thereof from the complainant personally. Ransom, in municipal criminal law, is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity. 17 It can hardly be assumed that when complainant readily gave the cash and checks demanded from her at gun point, what she gave under the circumstances of this case can be equated with or was in the concept of ransom in the law of kidnapping. These were merely amounts involuntarily surrendered by the victim upon the occasion of a robbery or of which she was summarily divested by appellants. Accordingly, while we hold that the crime committed is robbery as defined in Article 293 of the Code, we, however, reject the theory of the trial court that the same constitutes the highway robbery contemplated in and punished by Presidential Decree No. 532. The lower court, in support of its theory, offers this ratiocination:
The court agrees that the crime is robbery. But it is also clear from the allegation in the information that the victim was carried away and extorted for more money. The accused admitted that the robbery was carried on from Araneta Avenue up to the North Superhighway. They likewise admitted that along the way they intimidated Ma. Socorro to produce more money that she had with her at the time for which reason Ma. Socorro, not having more cash, drew out three checks. . . . In view of the foregoing the court is of the opinion that the crimes committed is that punishable under P.D. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974) under which where robbery on the highway is accompanied by extortion the penalty is reclusion perpetua. 18

The Solicitor General concurs, with the observation that pursuant to the repealing clause in Section 5 of said decree, "P.D. No- 532 is a modification of the provisions of the Revised Penal Code, particularly Article 267 which are inconsistent with it." 19 Such opinion and complementary submission consequently necessitate an evaluation of the correct interplay between and the legal effects of Presidential Decree No. 532 on the pertinent Provisions of the Revised Penal Code, on which matter we are not aware that any definitive pronouncement has as yet been made.

Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not a modification of Article 267 of the Revised Penal Code on kidnapping and serious illegal detention, but of Articles 306 and 307 on brigandage. This is evident from the fact that the relevant portion thereof which treats of "highway robbery" invariably uses this term in the alternative and synonymously with brigandage, that is, as "highway robbery/brigandage." This is but in line with our previous ruling, and which still holds sway in criminal law, that highway robbers (ladrones) and brigands are synonymous. 20 Harking back to the origin of our law on brigandage (bandolerismo) in order to put our discussion thereon in the proper context and perspective, we find that a band of brigands, also known as highwaymen or freebooters, is more than a gang of ordinary robbers. Jurisprudence on the matter reveals that during the early part of the American occupation of our country, roving bands were organized for robbery and pillage and since the then existing law against robbery was inadequate to cope with such moving bands of outlaws, the Brigandage Law was passed. 21 The following salient distinctions between brigandage and robbery are succinctly explained in a treatise on the subject and are of continuing validity:
The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart of the offense consists in the formation of a band by more than three armed persons for the purpose indicated in art. 306. Such formation is sufficient to constitute a violation of art. 306. It would not be necessary to show, in a prosecution under it, that a member or members of the band actually committed robbery or kidnapping or any other purpose attainable by violent means. The crime is proven when the organization and purpose of the band are shown to be such as are contemplated by art 306. On the other hand, if robbery is committed by a band, whose members were not primarily organized for the purpose of committing robbery or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply because robbery was committed by a band of more than three armed persons, it would not follow that it was committed by a band of brigands. In the Spanish text of art. 306, it is required that the band "sala a los campos para dedicarse a robar." 22 (Emphasis supplied).

In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants. 23 The martial law legislator, in creating and promulgating Presidential Decree No. 532 for the objectives announced therein, could not have been unaware of that distinction and is presumed to have adopted the same, there being no indication to the contrary. This conclusion is buttressed by the rule on contemporaneous construction, since it is one drawn from the time when and the circumstances under which the decree to be construed originated. Contemporaneous exposition or construction is the best and strongest in the law. 24 Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts of robbery committed against only a predetermined or particular victim, is evident from the preambular clauses thereof, to wit:

WHEREAS, reports from law-enforcement agencies reveal that lawless elements are still committing acts of depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another, thereby disturbing the peace, order and tranquility of the nation and stunting the economic and social progress of the people: WHEREAS, such acts of depredations constitute . . . highway robbery/brigandage which are among the highest forms of lawlessness condemned by the penal statutes of all countries; WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such acts of depredaions by imposing heavy penalty on the offenders, with the end in view of eliminating all obstacles to the economic, social, educational and community progress of the people. (Emphasis supplied).

Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the accused as their specific victim could be considered as committed on the "innocent and defenseless inhabitants who travel from one place to another," and which single act of depredation would be capable of "stunting the economic and social progress of the people" as to be considered "among the highest forms of lawlessness condemned by the penal statutes of all countries," and would accordingly constitute an obstacle "to the economic, social, educational and community progress of the people, " such that said isolated act would constitute the highway robbery or brigandage contemplated and punished in said decree. This would be an exaggeration bordering on the ridiculous. True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307 of the Revised Penal Code by increasing the penalties, albeit limiting its applicability to the offenses stated therein when committed on the highways and without prejudice to the liability for such acts if committed. Furthermore, the decree does not require that there be at least four armed persons forming a band of robbers; and the presumption in the Code that said accused are brigands if they use unlicensed firearms no longer obtains under the decree. But, and this we broadly underline, the essence of brigandage under the Code as a crime of depredation wherein the unlawful acts are directed not only against specific, intended or preconceived victims, but against any and all prospective victims anywhere on the highway and whosoever they may potentially be, is the same as the concept of brigandage which is maintained in Presidential Decree No. 532, in the same manner as it was under its aforementioned precursor in the Code and, for that matter, under the old Brigandage Law. 25 Erroneous advertence is nevertheless made by the court below to the fact that the crime of robbery committed by appellants should be covered by the said amendatory decree just because it was committed on a highway. Aside from what has already been stressed regarding the absence of the requisite elements which thereby necessarily puts the offense charged outside the purview and intendment of that presidential issuance, it would be absurd to adopt a literal interpretation that any unlawful taking of property committed on our highways would be covered thereby. It is an elementary rule of statutory construction that the spirit or intent of the law should not be subordinated to

the letter thereof. Trite as it may appear, we have perforce to stress the elementary caveat that he who considers merely the letter of an instrument goes but skin deep into its meaning, 26 and the fundamental rule that criminal justice inclines in favor of the milder form of liability in case of doubt. If the mere fact that the offense charged was committed on a highway would be the determinant for the application of Presidential Decree No. 532, it would not be farfetched to expect mischievous, if not absurd, effects on the corpus of our substantive criminal law. While we eschew resort to a reductio ad absurdum line of reasoning, we apprehend that the aforestated theory adopted by the trial court falls far short of the desideratum in the interpretation of laws, that is, to avoid absurdities and conflicts. For, if a motor vehicle, either stationary or moving on a highway, is forcibly taken at gun point by the accused who happened to take a fancy thereto, would the location of the vehicle at the time of the unlawful taking necessarily put the offense within the ambit of Presidential Decree No. 532, thus rendering nugatory the categorical provisions of the Anti-Carnapping Act of 1972? 27 And, if the scenario is one where the subject matter of the unlawful asportation is large cattle which are incidentally being herded along and traversing the same highway and are impulsively set upon by the accused, should we apply Presidential Decree No. 532 and completely disregard the explicit prescriptions in the Anti-Cattle Rustling Law of 1974? 28 We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the present case was committed inside a car which, in the natural course of things, was casually operating on a highway, is not within the situation envisaged by Section 2(e) of the decree in its definition of terms. Besides, that particular provision precisely defines "highway robbery/brigandage" and, as we have amply demonstrated, the single act of robbery conceived and committed by appellants in this case does not constitute highway robbery or brigandage. Accordingly, we hold that the offense committed by appellants is simple robbery defined in Article 293 and punished under Paragraph 5 of Article 294 of the Revised Penal Code with prision correccional in its maximum period to prision mayor in its medium period. Appellants have indisputably acted in conspiracy as shown by their concerted acts evidentiary of a unity of thought and community of purpose. In the determination of their respective liabilities, the aggravating circumstances of craft 29 shall be appreciated against both appellants and that of abuse of confidence shall be further applied against appellant Puno, with no mitigating circumstance in favor of either of them. At any rate, the intimidation having been made with the use of a firearm, the penalty shall be imposed in the maximum period as decreed by Article 295 of the Code. We further hold that there is no procedural obstacle to the conviction of appellants of the crime of simple robbery upon an information charging them with kidnapping for ransom, since the former offense which has been proved is necessarily included in the latter offense with which they are charged. 30 For the former offense, it is sufficient that the elements of unlawful taking, with intent to gain, of personal property through intimidation of the owner or possessor thereof shall be, as it has been, proved in the case at bar.

Intent to gain (animus lucrandi) is presumed to be alleged in an information where it is charged that there was unlawful taking (apoderamiento) and appropriation by the offender of the things subject of the robbery. 31 These foregoing elements are necessarily included in the information filed against appellants which, as formulated, allege that they wilfully, unlawfully and feloniously kidnapped and extorted ransom from the complainant. Such allegations, if not expressly but at the very least by necessary implication, clearly convey that the taking of complainant's money and checks (inaccurately termed as ransom) was unlawful, with intent to gain, and through intimidation. It cannot be logically argued that such a charge of kidnapping for ransom does not include but could negate the presence of any of the elements of robbery through intimidation of persons. 32 WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is rendered CONVICTING accused-appellants Isabelo Puno y Guevarra and Enrique Amurao y Puno of robbery as Punished in Paragraph 5 of Article 294, in relation to Article 295, of the Revised Penal Code and IMPOSING on each of them an indeterminate sentence of four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum, and jointly and severally pay the offended party, Maria del Socorro M. Sarmiento, the amounts of P7,000.00 as actual damages and P20,000.00 as moral damages, with costs. SO ORDERED. Narvasa, C.J., Feliciano, Nocon and Campos, Jr., JJ., concur.

#

Footnotes
* Complainant testified under the name of "Corina Mutuc Sarmiento" but made the clarification that her baptismal name is "Maria del Socorro Mutuc Sarmiento" (TSN, January 8, 1990, 4). 1 Original Record, 1. 2 Ibid., 72. 3 Ibid., 137; per Judge Jaime N. Salazar, Jr. 4 Appellant's Brief, 5; Rollo, 47. 5 Brief for the Plaintiff-Appellee; Rollo, 68-84. 6 Ibid., 73-75. 7 TSN, August 13, 1990, 14-15.

8 Ibid., id., 16; September 5, 1990, 18, 25-26. 9 Ibid., id., 11. 10 People vs. Geronimo, 100 Phil. 90 (1956). 11 People vs. Cadag, et al., 2 SCRA 388 (1961). 12 TSN, August, 30, 1990, 11. 13 For this reason, kidnapping and serious illegal detention are jointly provided for in Article 267 under Chapter One, Title Nine, Book Two of the Revised Penal Code on Crimes Against Liberty. 14 1 Phil. 165 (1902); see also U.S. vs. De Leon, 1 Phil. 163 (1902). 15 People vs. Remalante, 92 Phil. 48 (1952); People vs. Guerrero, 103 Phil. 1136 (1958); People vs. Ong, et al., 62 SCRA 174 (1975); People vs. Ty Sui Wong, et al., 83 SCRA 125 (1978); People vs. Jimenez, et al., 105 SCRA 721 (1981). 16 TSN, August 13, 1990, 21-22. 17 Keith vs. State, 120 Fla. 847, 163 So. 136; People vs. Akiran, et al., 18 SCRA 239, 246 (1966). 18 Original Record, 136. 19 Rollo, 79. 20 U.S. vs. Ibañez, 19 Phil. 463 (1911). Art. 306 of the Code also specifically refers to them as "highway robbers or brigands." 21 U.S. vs. Carlos, 15 Phil. 47 (1910). 22 Aquino, R.C., The Revised Penal Code, Volume Three, 1989 ed., p. 174, citing U.S. vs. Decusin, 2 Phil. 536 (1903) and U.S. vs. Maaño, 2 Phil. 718 (1903). 23 U.S. vs. Feliciano, 3 Phil. 422 (1904). 24 Contemporanea expositio est optima et fortissima in lege (2 Inst. 11; Black's Law Dictionary, Fourth Edition, 390). 25 Act 518, as amended by Act 2036. 26 Qui haeret in litera haeret in cortice (Co. Litt. 289; Broom, Max. 685; Black's Law Dictionary, Fourth Edition, 1413). 27 Republic Act No. 6539. 28 Presidential Decree No. 533.

29 People vs. San Pedro, 95 SCRA 306 (1980); People vs. Masilang, 142 SCRA 673 (1986). 30 Section 4, Rule 120, 1985 Rules of Criminal Procedure. 31 U.S. vs. San Pedro, 4 Phil. 405 (1905); U.S. vs. alabot, 38 Phil. 698 (1918). 32 See Section 5, Rule 120, 1985 Rules of Criminal Procedure.

Chartered Bank Employees Association v. Ople GR L-44717, 28 August 1985 (138 SCRA 273) En Banc, Gutierrez, Jr. (p): 10 concur, 1 concur in result, 1 took no part, 1 on leave Facts: On 20 May 1975, the Chartered Bank Employees Association, in representation of its monthly paid employees/members, instituted a complaint with the Regional Office IV, Department of Labor, now Ministry of Labor and Employment (MOLE) against Chartered Bank, for the payment of 10 unworked legal holidays, as well as for premium and overtime differentials for worked legal holidays from 1 November 1974. Both the arbitrator and the National Labor Relations Commission (NLRC) ruled in favor of the petitioners ordering the bank to pay its monthly paid employees the holiday pay and the premium or overtime pay differentials to all employees who rendered work during said legal holidays. On appeal, the Minister of Labor set aside the decision of the NLRC and dismissed the petitioner’s claim for lack of merit basing its decision on Section 2, Rule IV, Book III of the Integrated Rules and Policy Instruction 9, claiming the rule that “If the monthly paid employee is receiving not less than P240, the maximum monthly minimum wage, and his monthly pay is uniform from January to December, he is presumed to be already paid the 10 paid legal holidays. However, if deductions are made from his monthly salary on account of holidays in months where they occur, then he is still entitled to the 10 paid legal holidays.” Issue: Whether the Ministry of Labor is correct in maintaining that monthly paid employees are not entitled to the holiday pay nor all employees who rendered work during said legal holidays are entitled to the premium or overtime pay differentials. Held: When the language of the law is clear and unequivocal the law must be taken to mean exactly what it says. An administrative interpretation, which diminishes the benefits of labor more than what the statute delimits or withholds, is obviously ultra vires. In the present case, the provisions of the Labor Code on the entitlement to the benefits of holiday pay are clear and explicit, it provides for both the coverage of and exclusion from the benefit. In Policy Instruction 9, the Secretary of Labor went as far as to categorically state that the benefit is principally intended for daily paid employees, when the law clearly states that every worker shall be paid their regular holiday pay. While it is true that the contemporaneous construction placed upon a statute by executive officers whose duty is to enforce it should be given great weight by the courts, still if such construction is so erroneous, the same must be declared as null and void. It is the role of the Judiciary to refine and, when necessary, correct constitutional (and/or statutory) interpretation, in the context of the interactions of the three branches of the government, almost always in situations where some agency of the State has engaged in action that stems ultimately from some legitimate area of governmental power. Section 2, Rule IV, Book III of the Rules to implement the Labor Code and Policy Instruction was declared null and void in IBAAEU v. Inciong, and thus applies in the case at bar. Since the private respondent premises its action on the invalidated rule and policy

instruction, it is clear that the employees belonging to the petitioner association are entitled to the payment of 10 legal holidays under Articles 82 and 94 of the Labor Code, aside from their monthly salary. They are not among those excluded by law from the benefits of such holiday pay The Supreme Court reversed and set aside the Labor Minister’s 7 September 1976 order, and reinstated with modification (deleting the interest payments) the 24 March 1976 decision of the NLRC affirming the 30 October 1975 resolution of the Labor Arbiter.

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