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LEONARDO ALMEDA, petitioner, vs. HON. ONOFRE A.

VILLALUZ, in his capacity as presiding judge of the Circuit Criminal Court, Seventh Judicial District, Pasig, Rizal, and HON. GREGORIO PINEDA, City Fiscal of Pasay City, respondents. Honorio Makalintal, Jr. for petitioner. Pasay City Fiscal Gregorio Pineda for respondent.

CASTRO, J.: The petitioner Leonardo Almeda (alias Nardong Paa) was charged, together with five others, with the crime of qualified theft of a motor vehicle (criminal case 285-Pasay) in the Circuit Criminal Court of Pasig, Rizal, presided by the respondent Judge Onofre Villauz. The amount of the bond recommended for the provisional release of Almeda was P15,000, and this was approved by the respondent judge with a direction that it be posted entirely in cash. At the hearing of February 18, 1970, Almeda asked the trial court to allow him to post a surety bond in lieu of the cash bond required of him. This request was denied, and so was an oral motion for reconsideration, on the ground that the amended information imputed habitual delinquency and recidivism on the part of Almeda. At the same hearing, the respondent city fiscal, thru his assistant, reiterated his oral motion made at a previous hearing for amendment of the information so as to include allegations of recidivism and habitual delinquency in the particular case of Almeda. The latter vigorously objected, arguing that (a) such an amendment was premature since no copies of prior conviction could yet be presented in court, (b) the motion to amend should have been made in writing in order to enable him to object formally, and (c) the proposed amendment would place him in double jeopardy considering that he had already pleaded not guilty to the information. The trial court nevertheless granted the respondent fiscal's motion in open court. An oral motion for reconsideration was denied. Immediately thereafter, the assistant fiscal took hold of the original information and, then and there, entered his amendment by annotating the same on the back of the document. The petitioner forthwith moved for the dismissal of the charge on the ground of double jeopardy, but this motion and a motion for reconsideration were denied in open court. Hence, the present special civil action for certiorari with preliminary injunction. Two issues are posed to us for resolution: First, whether the respondent judge has the authority to require a strictly cash bond and disallow the petitioner's attempt to post a surety bond for his provisional liberty, and second, whether the amendment to the information, after a plea of not guilty thereto, was properly allowed in both substance and procedure.

1. As defined by section 1 of Rule 114 of the Rules of Court, bail is "the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance." The purpose of requiring bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. 1 In this jurisdiction, the accused, as of right, is entitled to bail prior to conviction except when he is charged with a capital offense and the evidence of guilt is strong. This right is guaranteed by the Constitution, 2 and may not be denied even where the accused has previously escaped detention, 3 or by reason of his prior absconding. 4 In order to safeguard the right of an accused to bail, the Constitution further provides that "excessive bail shall not be required." This is logical cause the imposition of an unreasonable bail may negate the very right itself. We have thus held that "where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we would not hesitate to exercise our supervisory powers to provide the required remedy." 5 Coming to the issue at hand, the amount fixed for bail, while reasonable if considered in terms of surety or property bonds, may be excessive if demanded in the form of cash. A surety or property bond does not require an actual financial outlay on the part of the bondsman or the property owner, and in the case of the bondsman the bond may be obtained by the accused upon the payment of a relatively small premium. Only the reputation or credit standing of the bondsman or the expectancy of the price at which the property can be sold, is placed in the hands of the court to guarantee the production of the body of the accused at the various proceedings leading to his conviction or acquittal. Upon the other hand, the posting of a cash bond would entail a transfer of assets into the possession of the court, and its procurement could work untold hardship on the part of the accused as to have the effect of altogether denying him his constitutional right to bail. Aside from the foregoing, the condition that the accused may have provisional liberty only upon his posting of a cash bond is abhorrent to the nature of bail and transgresses our law on the matter. The sole purpose of bail is to insure the attendance of the accused when required by the court, and there should be no suggestion of penalty on the part of the accused nor revenue on the part of the government. The allowance of a cash bond in lieu of sureties is authorized in this jurisdiction only because our rules expressly provide for it. Were this not the case, the posting of bail by depositing cash with the court cannot be countenanced because, strictly speaking, the very nature of bail presupposes the attendance of sureties to whom the body of the prisoner can be delivered. 6 And even where cash bail is allowed, the option to deposit cash in lieu of a surety bond primarily belongs to the accused. This is clearly deducible from the language of section 14 of Rule 114 of the Rules of Court: SEC. 14. Deposit of money as bail. At any time after the amount of bail is fixed by order, the defendant, instead of giving bail, may deposit with the nearest collector of internal revenue, or provincial, city, or municipal treasurer the sum mentioned in the order, and upon delivering to the court a proper certificate of the deposit, must be discharged from custody. Money thus deposited, shall be

applied to the payment of the fine and costs for which judgment may be given; and the surplus, if any, shall be returned to the defendant. Thus, the trial court may not reject otherwise acceptable sureties and insist that the accused obtain his provisional liberty only thru a cash bond. But while we repudiate the particular measure adopted by the respondent judge, we cannot fault the motive that caused him to demur to the petitioner's offer of a surety bond. Based on the petitioner's past record, 7 the range of his career in crime weighs heavily against letting him off easily on a middling amount of bail. The likelihood of his jumping bail or committing other harm to the citizenry while on provisional liberty is a consideration that simply cannot be ignored. Fortunately, the court is not without devices with which to meet the situation. First, it could increase the amount of the bail bond to an appropriate level. Second, as part of the power of the court over the person of the accused and for the purpose of discouraging likely commission of other crimes by a notorious defendant while on provisional liberty, the latter could be required, as one of the conditions of his bail bond, to report in person periodically to the court and make an accounting of his movements. And third, the accused might be warned, though this warning is not essential to the requirements of due process, that under the 1973 Constitution 8 "Trial may proceed notwithstanding his absence provided that he has been duly notified and his failure to appear is unjustified." With respect to the amount of the bail bond, the trial court is well advised to consider, inter alia, the following factors, where applicable: (1) the ability of the accused to give bail: (2) the nature of the offense; (3) the penalty for the offense charged; (4) the character and reputation of the accused (5) the health of the accused; (6) the character and strength of the evidence; (7) the probability of the accused's appearance or non-appearance at the trial; (8) forfeiture of previous bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) whether the accused is under bond for appearance at trial in other cases. 9 It is not amiss, at this point, to remind all courts to exercise extreme care and caution in the screening of bondsmen and sureties in regard to their reputation, solvency and promptitude. Aside from the other precautions hitherto considered useful courts should see to it that all surety bonds are accompanied by corresponding clearances from the Office of the Insurance Commissioner. Bondsmen who cannot make good their undertaking render inutile all efforts at making the bail system work in this jurisdiction. 2. Anent the second issue posed by the petitioner, the amendment of the information to include allegations of habitual delinquency and recidivism, after a previous plea thereto by the accused, is valid and in no way violates his right to be fully apprised before trial of the charges against him. Under section 13 of Rule 110 of the Rules of Court, the trial court has discretion to allow amendments to the information on all matters of form after the defendant has pleaded and during the trial when the same can be done without prejudice to the rights of the defendant. What are prohibited at this stage of the proceedings are amendments in substance. And the substantial matter in a complaint or information

is the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. 10 Under our law, a person is considered a habitual delinquent "if within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa orfalsification, he is found guilty of any of said crimes a third time or oftener." 11 The law imposes an additional penalty based on the criminal propensity of the accused apart from that provided by law for the last crime of which he is found guilty. Habitual delinquency is not however, a crime in itself, it is only a factor in determining a total penalty. 12 Article 62 of the Revised Penal Code which treats of habitual delinquency does not establish a new crime, but only regulates the "effect of the attendance of mitigating or aggravating circumstances and of habitual delinquency." as its caption indicates. In fact, the provision on habitual delinquency is found in a section of the Code prescribing rules for the application of penalties, not in a section defining offense. 13 A recidivist, upon the other hand, is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code. Recidivism is likewise not a criminal offense; it is but one of the aggravating circumstances enumerated by the said Code. 14 The additional allegations of habitual delinquency and recidivism do not have the effect of charging another offense different or distinct from the charge of qualified theft (of a motor vehicle) contained in the information. Neither do they tend to correct any defect in the jurisdiction of the trial court over the subject-matter of the case. The said new allegations relate only to the range of the penalty that the court might impose in the event of conviction. They do not alter the prosecution's theory of the case nor possibly prejudice the form of defense the accused has or will assume. Consequently, in authorizing the amendments, the respondent judge acted with due consideration of the petitioner's rights and did not abuse his discretion. Anent the petitioner's claim that the amendment of the information by the State places him in double jeopardy, it should be remembered that there is double jeopardy only when all the following requisites obtain in the original prosecution; (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his consent. 15 It is clear that the petitioner Almeda has not yet been convicted nor acquitted of the charge of qualified theft of a motor vehicle contained in the original information. Neither has the case against him been dismissed or otherwise terminated. The mere amendment of the information to include allegations of habitual delinquency and recidivism does not have the effect of a dismissal of the criminal action for qualified theft alleged in the original information.16 It cannot likewise be said that the accused is being placed in jeopardy a second time for the past crimes of which he had been convicted. The constitutional objection, on the ground of double jeopardy, to the statute providing an additional penalty to be meted out to habitual delinquents, has long been rejected. 17

The procedure taken by the respondent fiscal and allowed by the respondent judge in the amendment of the information does not, however, merit our approbation. Under section 2 of Rule 15 of the Rules of Court, "all motions shall be made in writing except motions for continuance made in the presence of the adverse party, or those made in the course of a hearing or trial." A motion to amend the information, after the accused has pleaded thereto, is certainly one that should be placed in writing and properly set for hearing. We are loath to give our imprimatur to the kind of shortcut devised by the respondents, especially as it relates to an alteration in the information. Considering, however, that the petitioner was not deprived of his day in court and was in fact given advance warning of the proposed amendment, although orally, we refrain from disturbing the said amendment. ACCORDINGLY, the order of the respondent judge of February 18, 1970 denying the motion of the petitioner Almeda that he be allowed to post a surety bond instead of a cash bond is hereby set aside, without prejudice, however, to increasing the amount of the bail bond and/or the imposition of such conditions as the respondent judge might consider desirable and proper for the purpose of insuring the attendance of the petitioner at the trial, provided they are consistent with the views herein expressed. No costs. FIRST DIVISION [G.R. No. 139599. February 23, 2000] ANICETO SABBUN MAGUDDATU and LAUREANA SABBUN MAGUDDATU, Petitioners, v. Honorable COURT OF APPEALS (FOURTH DIVISION) and PEOPLE OF THE PHILIPPINES, Respondents. DECISION KAPUNAN, J.: For a human being who has been inside a prison cell, a bail bond represents his only ticket to liberty, albeit provisional. But the right to bail is not always a demandable right. In certain instances, it is a matter of discretion. This discretion, however, is not full and unfettered because the law and the rules set the parameters for its proper exercise. Discretion is, of course, a delicate thing and its abuse of such grave nature would warrant intervention of this Court by way of the special civil action for certiorari. The primary issue in this case is whether or not under the facts thereof petitioners are entitled to bail as a matter of right or on the discretion of the trial court. Assuming it is a matter of discretion, whether or not the trial court in denying bail committed grave abuse of discretion. The facts are well established: Petitioners Aniceto Sabbun Maguddatu and Laureana Sabbun Maguddatu, Atty. Teodoro Rubino, Antonio Sabbun Maguddatu and several other "John Does" were charged with murder before the Regional Trial Court of Makati, Branch 64, for the killing of Jose S. Pascual.

On October 23, 1985, petitioners filed a motion to be admitted to bail on the ground that the prosecution's evidence is not strong. After partial trial on the merits, the trial court issued an order, dated December 20, 1985, granting petitioners' motion for bail and fixing the amount at P30,000.00 each. On the same day, petitioners posted bail through AFISCO Insurance Corporation. On January 6, 1987, the AFISCO Insurance Corporation filed a motion before the trial court praying for the cancellation of petitioner's bail bond because of the latter's failure to renew the same upon its expiration on December 20, 1986.1 There is no showing, however, of any action by the court on said motion. On January 2, 1998, the trial court convicted petitioners Aniceto Sabbun Maguddatu and Laureana Sabbun Maguddatu, together with Atty. Teodoro Rubino, of the crime of Homicide and sentenced them to suffer an indeterminate prison term of EIGHT (8) YEARS of PRISION MAYOR medium, as minimum, to FOURTEEN (14) YEARS and EIGHT (8) months of RECLUSION TEMPORAL medium, as maximum. The judgment of conviction was promulgated in absentia. Accordingly, on February 19, 1998, the trial court issued an order for the immediate arrest of petitioners and their commitment to the custody of proper authorities. While remaining at large, petitioners, on February 27, 1998, filed a Notice of Appeal from the order of conviction for homicide with a motion to be granted provisional liberty under the same bail bond pending appeal.2 The trial court does not appear to have resolved the motion for bail pending appeal. Instead, it forwarded the records to the Court of Appeals. On January 8, 1999, public respondent Court of Appeals issued a Resolution3 which states, viz: xxx 2. the accused-appellants to show cause within ten (10) days from notice why their appeal should not be deemed abandoned and accordingly dismissed for their failure to submit themselves to the proper authorities and to the jurisdiction of the court from which they seek relief in the meantime that no bail has yet been approved for their temporary liberty and, further considering that the approval of the same is discretionary and not to be presumed (Herrera, Remedial Law, v. VI-Criminal Procedure [1996], p. 611, citing, People v. Patajo, G.R. No. 57718, November 20, 1998, En Banc, Minute Resolution); and 3. in the meanwhile, the Station Commanders of the Manila Police Station, Manila and the Makati Police Station, Makati City to file a return of the Order of Arrest issued by the Regional Trial Court, Branch 64, Makati City on February 19, 1998 in Criminal Case No. 12010. A Compliance and Motion, dated February 8, 1999,4 filed by petitioners explained their failure to submit to the proper authorities, thus:

xxx 5. By way of comment and compliance therewith, the undersigned counsel hereby manifests that accused-appellants are willing to submit themselves to the proper authorities and to the jurisdiction of this Honorable Court. Further, it is manifested herein that the failure of accused-appellants to submit themselves to the proper authorities and to the jurisdiction of this Honorable Court was due only to the fact that, all the while, they were of the belief that theMotion accompanying the abovementioned Notice of Appeal was already approved and granted by the court of origin. xxx Despite the compliance and motion filed by petitioners, they remained at large. On June 23, 1999, the Court of Appeals issued the resolution under question denying petitioners' application for bail and ordering their arrest. The dispositive portion of said resolution reads: WHEREFORE, the Court resolves, as it is hereby resolved, to: (1) DENY accused-appellants application for bail and prayer for recall of the Order of Arrest issued by the trial court below; (2) ORDER the Station Commander of the Manila Police Station to file a return of the order of arrest issued by the Regional Trial Court, Branch 64, Makati City on February 19, 1998 in Criminal Case No. 12010; and (3) ORDER the accused-appellants for the last time to submit to the jurisdiction of the court with WARNING that failure to comply herewith within ten (10) days from notice shall compel the Court to DISMISS the appeal for failure to prosecute. SO ORDERED.5 Aggrieved by the foregoing resolution, petitioners brought the instant petition for certiorari with this Court on August 30, 1999, contending that the Court of Appeals committed grave abuse of discretion in denying their application for bail and their prayer to recall the order of arrest issued by the trial court. Pending resolution of the petition, the Court of Appeals issued a resolution, dated September 08, 1999, which states: For failure to submit to this court's jurisdiction pending appeal and conformable with this Court's resolution of June 23, 1999 the appeal filed in this case is deemed ABANDONED and DISMISSED pursuant to Section 8, Rule 128 (sic, should be 124), New Rules on Criminal Procedure. The Regional Trial Court, Branch 64, Makati City is hereby ORDEREDto issue warrants of arrest for the immediate apprehension and service of sentence of accused ANICETO SABBUN MAGUDDATU and LAUREANA SABBUN MAGUDDATU. SO ORDERED.6 The Court of Appeals committed no error in denying petitioners' plea to be granted bail. The Constitution guarantees the right to bail of all the accused except those charged with offenses punishable byreclusion perpetua when the evidence of guilt is strong.7

Sections 4, 5 and 7 of Rule 114 of the Rules of Court provide: SEC. 4. Bail, a matter of right.- All persons in custody shall: (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities and Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law or this Rule. SEC. 5. Bail, when discretionary.- Upon conviction by the Regional Trial Court of an offense not punishable by death,reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail. The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period to appeal subject to the consent of the bondsman. If the court imposed a penalty of imprisonment exceeding six (6) years but not more than twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That the accused is found to have previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification; (c) That the accused committed the offense while on probation, parole, or under conditional pardon; (d) That the circumstances of the accused or his case indicate the probability of flight if released on bail; or (e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime. The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the adverse party. xxx SEC. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable.- No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. Despite an order of arrest from the trial court and two warnings from the Court of Appeals, petitioners had remained at large. It is axiomatic that for one to be entitled to bail, he should be in the custody of the law, or otherwise, deprived of liberty. The purpose of bail is to secure one's release and it would be

incongruous to grant bail to one who is free.8 Petitioners' Compliance and Motion, dated February 08, 1999, came short of an unconditional submission to respondent court's lawful order and to its jurisdiction. The trial court correctly denied petitioners' motion that they be allowed provisional liberty after their conviction,under their respective bail bonds. Apart from the fact that they were at large, Section 5, Rule 114 of the Rules of Court, as amended by Supreme Court Administrative Circular 12-94, provides that: xxx The Court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period to appeal subject to the consent of the bondsman.9 The bail bond that the accused previously posted can only be used during the 15-day period to appeal (Rule 122) and not during the entire period of appeal. This is consistent with Section 2(a) of Rule 114 which provides that the bail "shall be effective upon approval and remain in force at all stages of the case, unless sooner cancelled, until the promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it."10 This amendment, introduced by SC Administrative Circular 12-94 is a departure from the old rules which then provided that bail shall be effective and remain in force at all stages of the case until its full determination, and thus even during the period of appeal. Moreover, under the present rule, for the accused to continue his provisional liberty on the same bail bond during the period to appeal, consent of the bondsman is necessary. From the record, it appears that the bondsman, AFISCO Insurance Corporation, filed a motion in the trial court on January 06, 1987 for the cancellation of petitioners' bail bond for the latter's failure to renew the same upon its expiration.11 Obtaining the consent of the bondsman was, thus, foreclosed. Pursuant to the same Section 5 of Rule 114, the accused may be admitted to bail upon the court's discretion after conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment. However, such bail shall be denied or bail previously granted shall be cancelled if the penalty imposed is imprisonment exceeding 6 years but not more than 20 years if any one of the circumstances enumerated in the third paragraph of Section 5 is present.12 From the records of the case, petitioners are not entitled to bail. Firstly, petitioners violated the conditions of their bail. Bail is defined as a security for the releaseof a person conditioned upon his appearance before any court.13 The accused shall also appear before the proper court whenever so required by the court or these Rules.14 Petitioners' non-appearance during the promulgation of the trial court's decision despite due notice and without justifiable reason, and their continued non-submission to the proper authorities as ordered by the Court of Appeals, constitute violations of the conditions of their bail. Moreover, it appears that petitioners failed to renew their expired bail bond,15 as shown by a Motion, dated January 06, 1987, filed by AFISCO Insurance Corporation, praying for the cancellation of petitioners' bail bond because of the latter's failure to renew the same upon its expiration.16 The petitioners complain that they were not informed of the date of promulgation of the decision of conviction in the trial court and that their counsel of record abandoned them. Even if we are to concede

that these allegations are true, petitioners still failed to surrender to the authorities despite two orders to that effect by the Court of Appeals. Moreover, petitioners had no cause to expect that their application for bail would be granted as a matter of course precisely because it is a matter of discretion. In fact, the filing of a notice of appeal effectively deprived the trial court of jurisdiction to entertain the motion for bail pending appeal because appeal is perfected by the mere filing of such notice. It has been held that trial courts would be well advised to leave the matter of bail, after conviction for a lesser crime than the capital offense originally charged, to the appellate court's sound discretion.17 In any event, the instant petition has become moot. During the pendency of the petition in this Court, the Court of Appeals in a Resolution, dated September 08, 1999 dismissed accused-appellant's appeal, thus: For failure to submit to this Court's jurisdiction pending appeal and conformable with this Court's resolution of June 23, 1999, the appeal filed in this case is deemed ABANDONED and DISMISSED pursuant to Section 8, Rule 128,18 New Rules on Criminal Procedure. The Regional Trial Court, Branch 64, Makati City is hereby ORDERED to issue warrants of arrest forthe immediate apprehension and service of sentence of accused ANICETO SABBUN MAGUDDATU and LAUREANA SABBUN MAGUDDATU. SO ORDERED.19 WHEREFORE , premises considered, the present petition is DISMISSED for lack of merit. SO ORDERED. ANTONIO M. BANGAYAN, complainant, vs. JUDGE JIMMY R. BUTACAN, respondent. DECISION MENDOZA, J.: This is an administrative complaint against Judge Jimmy R. Butacan, Presiding Judge of the Municipal Circuit Trial Court of Solana-Enrile, Cagayan for grave misconduct and grave abuse of discretion. The facts are as follows: Complainant Antonio M. Bangayan filed charges of grave threats against Antonio Cauilan, Sr. and Antonio Cauilan, Jr. The cases, docketed as Criminal Case Nos. 5944 and 5945, were assigned to respondent. Complainant alleges that respondent issued two warrants of arrest on April 23, 1999 in Criminal Case Nos. 5944 and 5945 for the apprehension of Antonio Cauilan, Sr. and Antonio Cauilan, Jr. and set the bail for the provisional liberty of the accused at P24,000.00 each. By virtue of these warrants, Antonio Cauilan, Sr. was arrested on April 29, 1999, while Antonio Cauilan, Jr. was apprehended on April 30, 1999. Both were, however, ordered released by respondent judge on April 30, 1999.

It is further alleged that on May 7, 1999, another order was issued by respondent for the release of Antonio Cauilan, Sr. in connection with Criminal Case No. 5945; that on May 11, 1999, Antonio Cauilan, Jr. filed a Motion for the Reduction of Bail in Criminal Case Nos. 5944 and 5945; and that the motion was approved by respondent and Antonio Cauilan, Jr. was ordered released. Complainant charges that Culled from the facts above, it was apparent that: (1) Judge Jimmy R. Butacan approved the Order of Release of Antonio Cauilan, Jr., on April 30, 1999 without the submission of the required bond which was supposed to precede the approval of the said Order of Release but nonetheless such bond was submitted only on May 11, 1999 after the approval of the reduction of bail; and, (2) Judge Jimmy Butacan did not give opportunity for the prosecution [to] oppose [the] motion for reduction of bail as the same was immediately approved on that very day.[1] Respondent says that the charges against him are irresponsible, and without any basis and should not be given the least degree of consideration.[2] He admits issuing the two warrants of arrest on April 23, 1999 and fixing the bail at P24,000.00 for each of the accused in the two criminal cases. He states, however, that when Antonio Cauilan, Sr. was arrested on April 29, 1999, it was only with respect to Criminal Case No. 5944 but not also with respect to Criminal Case No. 5945. Consequently, he claims that when Antonio Cauilan, Sr. posted bail on that day, it was only for his arrest in Criminal Case No. 5944 and that he approved the bail after finding it in order. Respondent further says that on May 7, 1999, Antonio Cauilan, Sr. was again arrested, this time in connection with Criminal Case No. 5945. Thus, when the latter posted bail on the same day, respondent approved it and issued an order for the release of the accused.[3] Respondent denies that Antonio Cauilan, Jr. was arrested on April 30, 1999. Respondent says that Cauilan, Jr. voluntarily surrendered on May 11, 1999. He filed a motion for the reduction of his bail on the same day which respondent claims to have approved for which reason Cauilan, Jr. was ordered released. Respondent argues that he exercised his discretion under the rules in granting a reduction of bail and prays that the complaint against him be dismissed. Complainant filed a reply disputing respondents claim that on April 29, 1999, only the warrant of arrest in Criminal Case No. 5944 was served. Complainant secured a certification from the arresting officer, SPO1 Larry T. Urbano, stating that the warrants of arrest issued in the two cases were served on April 29, 1999.[4] Complainant states that, contrary to respondents claim that Antonio Cauilan, Jr. was not arrested, a police report shows that said person was arrested in April 1999.[5] In his report, Court Administrator Alfredo L. Benipayo recommends that respondent be found guilty of grave misconduct and ordered to pay a fine of P3,000.00 with a warning that a repetition of the same or similar offense will be dealt with more severely.[6] We find the recommendation to be well taken.

First. With respect to the arrest and release of Antonio Cauilan, Sr., it is not disputed that two warrants of arrest were issued on April 23, 1999 against him in connection with Criminal Case Nos. 5944 and 5945. Under the rules, these warrants must be executed within 10 days from its receipt. Otherwise, a report must be made by the officer concerned to the judge who issued the warrant.[7] In this case, respondent judge would have us believe that the arresting officer served two warrants issued on the same day and against the same person on different dates. This is disputed by the warrant server himself in a certification presented to this Court by the complainant. Indeed, it is natural to assume that an arresting officer, who under the law is given only 10 days to serve an arrest warrant, would serve it as soon as possible. It is therefore puzzling why, in this case, the warrant server should serve two warrants for the arrest of the same person on different dates when he could do this on the same occasion. We are more inclined to give credence to the certification executed by warrant server SPO1 Larry T. Urbano showing that he served both warrants of arrest on Antonio Cauilan, Sr. on April 29, 1999. Second. Did respondent order the release of Antonio Cauilan, Sr. even if the latter did not post bail? The order of release dated April 30, 1999 on Criminal Case No. 5944 is proper. Antonio Cauilan, Sr. posted bail on that day, on the basis of which respondent issued an order of release. However, in Criminal Case No. 5945, no bail was posted by the accused, yet he was released. This is a violation of the rules on the part of respondent judge. Even if Antonio Cauilan, Sr. was arrested on April 29, 1999 in Criminal Case No. 5944 and posted bail, still respondent should not have ordered the release of the accused. Respondent knew very well that there was another case against Antonio Cauilan Sr. Even if the arresting officer did not serve the warrant in Criminal Case No. 5945, respondent should not have allowed the release on bail of the accused in that case. Third. As for the arrest and release of Antonio Cauilan, Jr., we find that respondent is likewise guilty of grave abuse of discretion. Respondent judge said that there is nothing from the records which would disclose that he was arrested.[8] He insists that Antonio Cauilan, Jr. voluntarily surrendered on May 11, 1999. On the same day, he filed a motion for the reduction of his bail, which respondent approved thereby paving the way for the release of the accused. The records show, however, that respondent ordered the release of Antonio Cauilan, Jr. on April 30, 1999. If Antonio Cauilan, Jr. was not arrested until his voluntary surrender on May 11, 1999, then respondent had no basis for ordering the release of the accused on April 30, 1999. Fourth. As the OCA noted, the motion for the reduction of bail of Antonio Cauilan, Jr. did not contain a notice of hearing to the prosecution. Indeed, the records disclose that no hearing was even conducted by respondent before granting reduction of the bail. This is contrary to Rule 15, 4 which requires written motions to be heard and served in such a manner as to ensure receipt by the other party at least three days before the date of hearing, unless the court for good cause sets the hearing on shorter

notice.[9] In Espiritu v. Jovellanos,[10] in which an oral motion was made to reduce the amount of bail, it was held: In this case, the failure to give notice to the prosecution may be due to the fact that there was no written motion filed but only, as respondent judge himself admitted, an oral request by Dumlao and his father that the amount of the bail be reduced. What respondent judge should have done was to have Dumlao put his request in writing and then schedule the incident for hearing with notice to the prosecution. Under the present rules, a hearing is required in granting bail whether it is a matter of right or discretion.[11] A motion to reduce the amount of bail likewise requires a hearing before it is granted in order to afford the prosecution the chance to oppose it. Respondents haste in granting Antonio Cauilan, Jr.s motion for reduction of bail certainly makes his act suspect. To sum up, the records show that respondent ordered the release of Antonio Cauilan, Jr. before the latter posted his bail. He granted the motion for reduction without giving the prosecution the chance to be heard. And he ordered the release of Antonio Cauilan, Sr. despite the latters failure to post bail in Criminal Case No. 5945. This is gross misconduct which cannot be allowed to go unpunished. It is also a gross violation of Rule 3.01, Canon 3 of the Code of Judicial Conduct, which requires judges to be faithful to the law and maintain professional competence. In this case, respondent not only failed to live up to his duties under the law, he has acted in bad faith. Despite the fact that he had ordered the release of persons lawfully arrested even before they had posted bail, he tried to cover up for what he did. This is serious misconduct for which he should be disciplined. A fine of P10,000.00 would be appropriate under the circumstance.[12] WHEREFORE, respondent is found GUILTY of gross misconduct and is hereby ORDERED to pay a FINE of P10,000.00 with a WARNING that repetition of the same will be dealt with more severely. SO ORDERED. G.R. No. L-61388 April 20, 1983 IN THE ISSUANCE OF THE WRIT OF HABEAS CORPUS FOR DR. AURORA PARONG, NORBERTO PORTUGUESE, SABINO PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE LOS SANTOS, BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG, LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ. JR., JUANITO GRANADA and TOM VASQUEZ. JOSEFINA GARCIA-PADILLA, petitioner, vs. MINISTER JUAN PONCE ENRILE, GEN, FABIAN C. VER, GEN. FIDEL V. RAMOS, and FIDEL V. RAMOS, and LT. COL. MIGUEL CORONEL, respondents. Lorenzo M. Tanada, Jose W. Diokno, Joker P. Arroyo, Efren M Mercado and Alexander Padilla for petitioner. The Solicitor General for respondents.

DE CASTRO, J.: Petition for a writ of habeas corpus and mandamus seeking the following relief: WHEREFORE, petitioners pray this Honorable Court: 1. To immediately issue a writ of habeas corpus directing respondents to appear and produce the bodies of Dr. AURORA PARONG, NORBERTO PORTUGUESE, SABINO PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE LOS SANTOS, BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG, LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ, JR., JUANITO GRANADA and TOM VASQUEZ, forthwith before this Honorable Court and to make due return of the writ therewith; 2. To issue, in addition or in the alternative to the writ of habeas corpus, a writ of mandamus compelling the respondents to disclose the petitioners' present place of detention and to order the respondents to allow counsel and relatives to visit and confer with the petitioners; 3. Pending the determination of the legality of their continued detention, to forthwith release the detainees on bail upon such terms and conditions as the Court may fix, and after hearing, to order petitioners' immediate release; and 4. To grant petitioners such other and further relief as may be deemed just and equitable in the premises. The records show that nine (9) of the fourteen (14) detainees herein were arrested on July 6, 1982 at about 1:45 p.m. when three (3) teams of the PC/INP of Bayombong, Nueva Viscaya led by Lt. Col. Coronel, lst Lt. de Guzman and lst Lt. Baria, after securing a Search Warrant No. S-82 issued by Judge Sofronio Sayo of the Court of First Instance of Nueva Viscaya conducted a raid at the residence of Dra. Aurora Parong. Apprehended during the said raid were Dra. Aurora Parong, Benjamin Pineda, Sabino Padilla, Francisco Divinagracia, Zenaida Mallari, Letty Ballogan, Norberto Portuguese, and Mariano Soriano who were then having a conference in the dining room of Dra. Parong's residence which had been doing on since 10:00 a.m. of that same day. The other four (4) detainees herein, namely: Imelda de los Santos, Eufronio Ortiz, Jr., Juanita Granada, and Bienvenida Garcia, were arrested on the following day, July 7, 1982 by the same PC teams. On July 15, 1982, Tom Vasquez was arrested, and his Volkswagen car, bearing Plate No. DAP 347, was seized by the PC authorities. The herein fourteen (14) detainees (hereafter referred to sometimes as petitioners) were all detained at the PC/INP Command Headquarters, Bayombong, Nueva Vizcaya from July 6, 1982 until their transfer on the morning of August 10, 1982 to an undisclosed place reportedly to Camp Crame, Quezon City, to Echague, Isabela, and to Tuguegarao, Cagayan.

Hence, this petition for the writ of habeas corpus and mandamus filed by Josefina Garcia-Padilla, mother of detained petitioner Sabino G. Padilla, Jr. on August 13, 1982. The mandamus aspect of the instant petition has, however, become moot and academic, and whereabouts of petitioners having already become known to petitioner Josefina Garcia-Padilla. It is alleged in the petition that the arrest of petitioners was patently unlawful and illegal since it was effected without any warrant of arrest; that the PC/INP raiding team which made the arrest were only armed with a search warrant (No. 3-82) issued by Judge Sofronio G. Sayo of the Court of First Instance of Nueva Viscaya, and nowhere in said warrant was authority given to make arrests, much less detention; that the search warrant which authorized respondents to seize "subversive documents, firearms of assorted calibers, medicine and other subversive paraphernalia" in the house and clinic of Dra. Aurora Parong was a roving and general warrant and is, therefore, illegal per se because it does not state specifically the things that are to be seized (Stonehill vs. Diokno, 20 SCRA 383); that no criminal charges have as of yet been filed against any of the detainees; that the fourteen (14) detainees were initially held at the PC/INP Command in Bayombong, Nueva Viscaya from July 6 up to August 10, 1982, but were subsequently transferred by helicopter in the morning of August 10, 1982 to a place or safehouse known only to respondents; that there is no judgment, decree, decision or order from a court of law which would validate the continued detention of the petitioner; that while it is true that a purported telegram stating the issuance of a Presidential Commitment Order (PCO) was shown to the detainees on or about July 11 and 12, 1982, but counsel and the detainees have not yet been given a copy of such PCO nor notified of its contents, raising a doubt whether such commitment order has in fact been issued. It is further alleged that respondents are denying the detainees their constitutional right to counsel, averring that the detainees were allowed regular visits by counsel and relatives during their period of detention from July 6 to August 10, 1982 at the PC/INP Command in Bayombong, Nueva Viscaya; however, when a certain Major Cristobal and Lt. Marcos (alleged to be from the Camp Crame Intelligence Units) took full control of the investigation, counsels were allowed to visit only on weekends; that when the detainees were transferred on August 10, 1982 to a place known only to respondents, the detainees' counsels and relatives were not notified, raising the apprehension that petitioners' constitutional rights to silence, to counsel and against self- incrimination are being violated; that counsels have tried to locate if the detainees were taken to Camp Crame or Camp Bago Bantay but to no avail; that Major Forondo of the PC Command in Nueva Viscaya informed Mrs. Josefina Padilla that the detainees were transferred to Tuguegarao, Cagayan, others to Echague, Isabela; that there seems to be a deliberate and concerted effort by respondents to conceal from counsel and relatives the detainees' place of detention, raising the apprehension that respondents are using force, violence, threat, intimidation and other means which vitiate free will to obtain confession and statements from the detainees in violation of their constitutional rights. In the resolution of this Court en banc dated August 17, 1982, the writ of habeas corpus was issued and respondents were required to make a return of the writ. Hearing on the petition was set on August 26, 1982.

In the return to the writ filed on August 23, 1982. respondents, through the Solicitor General, alleged, to wit: I. AS TO HABEAS CORPUS 1. The detainees mentioned in the petition, with the exception of Tom Vasquez who was temporarily released on July 17, 1982, after his arrest on July 15, 1982, are all being detained by virtue of a Presidential Commitment Order (PCO) issued on July 12, 1982, pursuant to LOI No. 1211 dated March 9, 1982, in relation to Presidential Proclamation No. 2045 dated January 17, 1981. The said PCO was issued by President Ferdinand E. Marcos for violation of P.D. No. 885. ... 2. The corresponding charges against the said detainees have been filed in court and before the Acting Provincial Fiscal of Nueva Viscaya where they are pleading. A warrant of arrest against detainee Dra. Aurora Parong was issued on August 4, 1982, by the Municipal Court of Bayombong, for illegal possession of firearm and ammunition. ... II. AFFIRMATIVE DEFENSE ON HABEAS CORPUS 3. The persons named in the above-mentioned Presidential Commitment Order were arrested and are being detained for offenses with respect to which under Proclamation No. 2045, the privilege of the writ of habeas corpus continues to be suspended, thus: NOW, THEREFORE, I, FERDINAND E. MARCOS, President/Prime Minister of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby revoke Proclamation No. 1081 (Proclaiming a state of Martial Law in the Philippines) and Proclamation No. 1104 (Declaring the Continuation of Martial Law) and proclaim the termination of the state of martial law throughout the Philippines; Provided, that the call to the Armed Forces of the Philippines to prevent or suppress lawless violence, insurrection, rebellion and subversion shall continue to be in force and effect; and Provided that in the two autonomous regions in Mindanao, upon the request of the residents therein, the suspension of the privilege of the writ of habeas corpus shag continue; and in all other places the suspension of the privilege of the writ shall also continue with respect to persons at present detained as well as others who may hereafter be similarly detained for the crimes of insurrection or rebellion, subversion, conspiracy or proposals to commit such crimes, and for all other crimes and offenses committed by them in furtherance or on the occasion thereof, or incident thereto, or in connection therewith. (Emphasis supplied) The privilege of the writ of habeas corpus is unavailing as to them. Courts cannot inquire into the validity and cause of their arrest and detention. 4. The power of the President in an emergency, such as that which necessitated the continued suspension of the privilege of the writ of habeas corpus, to order the detention of persons believed engaged in crimes related to national security is recognized. (Aquino vs. Enrile, 59 SCRA 83; Luneta, et al. vs. Special Military Commission, No. 1, et al., 102 SCRA 56).

5. In the instant petition, petitioner Josefina Garcia-Padilla does not appear to have been authorized by the thirteen (13) other detainees to represent them in the case at bar." Accordingly, the petition was duly heard on August 26, 1982. After hearing, the Court issued the following resolution, to wit: G.R. No. 61388 (In the Matter of the Petition for the Insurance of the Writ of Habeas Corpus of Dr. Aurora Parong, Norberto Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de los Santos, Benjamin Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr., Juanito Granada and Tom Vasquez; Josefina Garcia-Padilla vs. Minister Juan Ponce Enrile, Gen. Fabian C. Ver, Gen. Fidel V. Ramos and Lt. Col. Miguel Coronel.)- The return of the writ of habeas corpus and answer to the prayer for mandamus filed by the Solicitor General for respondents in compliance with the resolution of August 17, 1982 is NOTED. At the hearing of this case this morning, former Senator Jose W. Diokno, Attorneys Alexander A. Padilla and Efren H. Mercado appeared for petitioner. Solicitor General Estelito P. Mendoza and Assistant Solicitor General Ramon A. Barcelona, appeared for the respondents. All of the detainees, except Tom Vasquez, who was temporarily released on July 17, 1982, were present in Court; Dr. Aurora Parong, Norberto Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de los Santos, Benjamin Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr. and Juanito Granada. Attorney Alexander A. Padilla argued for the petitioner. Solicitor General Mendoza argued for the respondents. Former Senator Diokno argued in the rebuttal. The Court Resolved to require the Solicitor General to SUBMIT within five (5) days from date the documents relevant to the issuance of the Presidential Commitment Order. Thereafter, the case shall be considered SUBMITTED for resolution. As required, the Solicitor General submitted the documents relevant to the issuance of the Presidential Commitment Order on August 27, 1982, after which the case was submitted for resolution. The fundamental issue here, as in all petitioner for the writ of habeas corpus, is whether or not petitioners' detention is legal. We have carefully gone over the claims of the parties in their respective pleadings as well as in the oral argument during the hearing on August 26, 1982, and We find that petitioners have not been illegally deprived of their constitutional right to liberty, neither in the manner of their arrest, nor by their continued detention, and that the circumstances attendant in the herein case do not warrant their release on a writ of habeas corpus. 1. At the time of the arrest of the nine (9) of the fourteen (14) detainees herein on July 6, 1982, records reveal that they were then having conference in the dining room of Dra. Parong's residence from 10:00 a.m. of that same day. Prior thereto, all the fourteen (14) detainees were under surveillance as they were then Identified as members of the Communist Party of the Philippines (CPP) engaging in subversive activities and using the house of detainee Dra. Aurora Parong in Bayombong, Nueva Viscaya, as their headquarters. Caught in flagrante delicto, the nine (9) detainees mentioned scampered towards different directions leaving in top of their conference table numerous subversive documents, periodicals, pamphlets, books, correspondence, stationaries, and other papers, including a plan on how

they would infiltrate the youth and student sector (code-named YORK). Also found were one (1) .38 cal. revolver with eight (8) live bullets, nineteen (19) rounds of ammunition for M16 armalite, eighteen thousand six hundred fifty pesos (P18,650.00) cash believed to be CPP/NPA funds, assorted medicine packed and ready for distribution, as sizeable quantity of printing paraphernalia, which were then seized. There is no doubt that circumstances attendant in the arrest of the herein detainees fall under a situation where arrest is lawful even without a judicial warrant as specifically provided for under Section 6(a), Rule 113 of the Rules of Court and allowed under existing jurisprudence on the matter. As provided therein, a peace officer or a private person may, without a warrant, arrest a person when the person to be arrested has committed or actually committing, or is about to commit an offense in his presence. From the facts as above narrated, the claim of the petitioners that they were initially arrested illegally is, therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of the herein detainees was well within the bounds of the law and existing jurisprudence in our jurisdiction. 2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but equally in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities. If killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities which is of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them while any of these contingencies continues cannot be less justified. In the language ofMoyer vs. Peabody, 1 cited with approval in Aquino, et al. vs. Ponce Enrile, 2 the President " shall make the ordinary use of the soldiers to that end that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution, to prevent the exercise of hostile power." Thus characterized, the arrest and detention of persons ordered by the President through the issuance of Presidential Commitment Order PCO is merely preventive. "When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process." 3 What should be underscored is that if the greater violation against life itself such as

killing, will not be the subject of judicial inquiry, as it cannot be raised as transgressing against the due process clause that protects life, liberty and property, lesser violations against liberty, such as arrest and detention, may not be insisted upon as reviewable by the courts. 3. Transcendentally important, therefore, is the question of whether the issuance of a Presidential Commitment Order (PCO) has provided the legal basis of the detention of herein detainees following their arrest for Proclamation No. 2045 covered offenses. This question has to be set at rest promptly and decisively, if We are to break a seemingly continuous flow of petitions for habeas corpus, as what had been seen lately of such petitioners being filed in this Court one after the other. The function of the PCO is to validate, on constitutional ground, the detention of a person for any of the offenses covered by Proclamation No. 2045 which continues in force the suspension of the privilege of the writ of habeas corpus, if the arrest has been made initially without any warrant, its legal effect is to render the writ unavailing as a means of judicially inquiring into the legality of the detention in view of the suspension of the privilege of the writ. The grant of the power to suspend the said privilege provides the basis for continuing with perfect legality the detention as long as the invasion or rebellion has not been repelled or quelled, and the need therefor in the interest of public safety continues. The significance of the conferment of this power, constitutionally upon the President as Commander-inChief, is that the exercise thereof is not subject to judicial inquiry, with a view to determining its legality in the light of the bill of rights guarantee to individual freedom. This must be so because the suspension of the privilege is a military measure the necessity of which the President alone may determine as an incident of his grave responsibility as the Commander-in-Chief of the Armed Forces, of protecting not only public safety but the very life of the State, the government and duly constituted authorities. This should be clear beyond doubt in the case of "invasion," along which "rebellion" or "insurrection" is mentioned by the Constitution, which contingency does not present a legal question on whether there is a violation of the right to personal liberty when any member of the invading force is captured and detained. The presidential responsibility is one attended with all urgency when so grave a peril to the life of the Nation besets the country in times of the aforementioned contingencies. In the discharge of this awesome and sacred responsibility, the President should be free from interference. The existence of warlike conditions as are created by invasion, rebellion or insurrection, the direst of all emergencies that can possibly confront a nation, argues, beyond dispute, against subjecting his actions in this regard to judicial inquiry or interference from whatever source. If freedom from judicial review is conceded in the exercise of his peacetime powers as that of appointment and of granting pardon, denominated as political powers of the President, it should incontestably be more so with his wartime power, as it were, to adopt any measure in dealing with situations calling for military action as in case of invasion, rebellion or insurrection. The suspension of the privilege of the writ of habeas corpus is one such measure. To be effective, the occasion for its application on specific individuals should be left to the exclusive and sound judgment of the President, at least while the exigencies of invasion, rebellion or insurrection persist, and the public

safety requires it, a matter, likewise, which should be left for the sole determination of the President as Commander-in-Chief of the Nation's armed forces. The need for a unified command in such contingencies is imperative-even axiomatic-as a basic military concept in the art of warfare. 4. From the clear language of the Lansang case, 4 "the function of Court is merely to check not to supplant the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. " If, however, the constitutional right to bail is granted to the herein petitioners by the court, through the procedure laid down under Rule 114 of the Rules of court, what inevitably results is the supplanting of the decision of the President to detain pursuant to Proclamation No. 2045, of persons who come under its coverage. The specific mention in the Constitution of rebellion and insurrection along with invasion and imminent danger thereof, shows that the terms "rebellion and insurrection" are used therein in the sense of a state or condition of the Nation, not in the concept of a statutory offense. What, therefore, should determine the legality of imposing what is commonly referred to as "preventive detention" resulting from the suspension of the privilege of habeas corpus, is the necessity of its adoption as a measure to suppress or quell the rebellion, or beat off an invasion. The necessity for such measure as a means of defense for national survival quite clearly transcends in importance and urgency the claim of those detained to the right to bail to obtain their freedom. To hold otherwise would defeat the purpose of the constitutional grant of the power to suspend the privilege of the writ of habeas corpus on the occasions expressly mentioned in the charter. For what indeed could the purpose be of suspending the privilege of the writ of habeas corpus other than to restrict, at least for the duration of the emergency of invasion or rebellion, the right to personal liberty, dictated as it is, in the greater interest of public safety and national security. So it is that Proclamation No. 2045 mentions not only rebellion or insurrection as coming within the suspension of the privilege of the writ of habeas corpus, but also other offenses, including subversion which is not mentioned in the Constitution, committed by reason or on the occasion of the rebellion, or in connection therewith, or in the furtherance thereof. There need be no alarm over what libertarian jurists fear as violation of the constitutional right to personal liberty when the President decrees the suspension of the privilege of habeas corpus. Only those who give cause for it will be subject to restriction of their liberty, as the necessity therefor arises in the interest of national defense and survival. The constitutional guarantee of individual freedom is intact in all its plenitude and sanctity, save only as the Constitution has envisioned the need for its limitation, and only to a few, in relation to the entire population, as the Constitution itself permits in case of overwhelming and imperious necessity. 5. Worthy of profound notice and keen appreciation is the fact that the authority to suspend the privilege of the writ of habeas corpus has been deliberately vested on the President as the Commanderin-Chief of the armed forces, together with the related power to call out the armed forces to suppress lawless violence and impose martial law. 5 The choice could not have been more wise and sound, for no other official may, with equal capability and fitness, be entrusted with the grave responsibility that goes

with the grant of the authority. The legislature was considered in the alternative upon which to lodge the power, or to share in its exercise, but the distilled wisdom of the Constitutional Convention finally made its choice for the President alone. As previously noted, "invasion" which is not a statutorily-defined offense and "imminent danger thereof" as mentioned in the Constitution indicate that "rebellion and insurrection" are also mentioned therein not in their concept as statutorily-defined public crimes, but as a state or condition of extreme emergency resulting from the existence of the aforesaid events. Now, if captured enemies from the invading force may not be charged with any statutory offense that would provide the occasion to demand the right to bail, it is obvious that persons engaged in rebellion or insurrection may not claim the right to be released on bail when similarly captured or arrested during the continuance of the aforesaid contingency. They may not even claim the right to be charged immediately in court, as they may rightfully do so, were they being charged with an ordinary or common offense. This is so because according to legal writers or publicists, the suspension of the privilege of the writ of habeas corpus "has the sole effect of allowing the executive to defer the trials of persons charged with certain offenses during the period of emergency." 6 This clearly means denial of the right to be released on bail on being charged in court with bailable offenses. The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection. Realistically, a person engaged in the rebellion does not, upon being arrested or captured, cease to be as committed to the cause of the movement. Through a grand conspiracy, as is of the essence of how rebellion is committed, involving a great mass of confederates bound together by a common goal, he remains in a state of continued participation in the criminal act or design. His heart still beats with the same emotion for the success of the movement of which he continues to be an ardent adherent and ally. It is simple logic then to hold that there should be no legal compulsion for a captured rebel to be charged in court, only to be released on bail, while he is, realistically and legally, still as much as part and parcel of the movement, continuing as it is, as those still engaged in carrying on actively to attain their goal of overthrowing the established regime. Hence, it is easy to perceive how impressed with absolute verity is the opinion expressed by two acknowledged authorities on Constitutional law in our country, 7 which We quote: ... If the return to the writ shows that the person in custody was apprehended and detained in areas where the privileges of the writ have been suspended or for the crimes mentioned in the executive proclamation, the court will suspend further proceedings in the action. Impeccable as it is, the opinion could not but find a resonant echo as it did in the recent case of Buscayno vs. Military Commission; 8 decided after Proclamation No. 2045 was issued, which in terms

clear and categorical, held that the constitutional right to bail is unavailing when the privilege of the writ of habeas corpus is suspended with respect to certain crimes as enumerated or described in the abovementioned Proclamation. It is, likewise, all too well-known that when the rebel forces capture government troopers or kidnap private individuals, they do not accord to them any of the rights now being demanded by the herein petitioners, particularly to be set at liberty upon the filing of bail. As a matter of common knowledge, captives of the rebels or insurgents are not only not given the right to be released, but also denied trial of any kind. In some instances, they may even be liquidated unceremoniously. What is then sought by the suspension of the privilege of the writ of habeas corpus is, among others, to put the government forces on equal fighting terms with the rebels, by authorizing the detention of their own rebel or dissident captives as the rebellion goes on. In this way, the advantage the rebellion forces have over those of the government, as when they resort to guerilla tactics with sophisticated weapons, is, at least, minimized, thereby enhancing the latter's chances of beating their enemy. It would, therefore, seem to be ignoring realities in the name of misplaced magnanimity and compassion, and for the sake of humanity, to grant the demand for respect of rights supposedly guaranteed by the Constitution by those who themselves seek to destroy that very same instrument, trampling over it already as they are still waging war against the government. This stark actuality gives added force and substance to the rationale of the suspension of the privilege of the writ of habeas corpus in case of invasion, insurrection, rebellion, or imminent danger thereof, when public safety requires it. 6. Invoking the Lansang case, 9 however, petitioners would ask this Court to review the issuance of the PCO against them, intimating that arbitrariness attended its issuance because, relying on the evidence supposedly available in the hands of the military, they claim they are not guilty of rebellion. They also contend that the provisions of LOI No. 1211 have not been complied with. The Lansang case went no further than to pronounce the suspension of the writ of the privilege of habeas corpus on August 21, 1971, valid and constitutional, on a finding that there was no arbitrariness attendant to the suspension. It never intended to suggest that for every individual case of arrest and detention, the writ of habeas corpus is available, even after the suspension of this privilege, to question the legality of the arrest and detention on ground of arbitrariness. When a person is charged in court for an ordinary offense, the law does not authorize the filing of a petition for habeas corpus based on the ground that there is absolutely no evidence to hold him for trial, which, in effect, constitutes an allegation of arbitrariness in the filing of the case against him. The law has afforded him adequate safeguards against arbitrariness, such as the requirement of determining the existence of a probable cause by the judge before the issuance of the warrant of arrest. The finding of such probable cause may not be immediately brought for review by this Court in a habeas corpus proceeding, on the claim of arbitrariness. The matter is to be decided on the basis of the evidence, and this Court is not the proper forum for the review sought, not being a trier of facts. If such a procedure were allowed, it would be easy to delay and obstruct the prosecution of an offense by a resort to a petition for habeas corpus based on arbitrariness, which most accuse, if not all, would be most inclined, specially when they are out on bail. The petition now before Us is exactly one of this kind. If granted, the effect is to transfer the jurisdiction of the trial courts in criminal cases to this Court, which is simply inconceivable. Moreover,

arbitrariness, while so easy to allege, is hard to prove, in the face of the formidable obstacle built up by the presumption of regularity in the performance of official duty. Unexhilaratingly, this is the revealing experience of this Court in the Lansang case, where it doubtlessly realized how hardly possible it is to adduce evidence or proof upon which to show the President having acted with arbitrariness. 7. The last question relates to the legality of the Presidential Commitment Order (PCO) issued by the President on July 12, 1982, tested by the conformity of its issuance to the procedure laid down under LOI 1211, petitioners insisting that the LOI limits the authority of the President to cause the arrest and detention of persons engaged in or charged with, the crimes mentioned in Proclamation No. 2045. They contend that the procedure prescribed in the LOI not having been observed, the PCO issued thereunder did not validate the initial illegal arrest of the herein petitioners as wen as their continued detention. It must be noted that LOI No. 1211, which provides the guidelines in the arrest and detention of persons engaged in, or charged with, the crimes mentioned in Proclamation No. 2045, charged with, the crimes mentioned contemplates of three situations when an arrest can be made, to wit: 1. The arrest and detention effected by virtue of a warrant issued by a judge; 2. The arrest and detention effected by a military commander or the head of a law enforcement agency after it is determined that the person or persons to be arrested would probably escape or commit further acts which would endanger public order and safety. After the arrest, however, the case shall be immediately referred to the city or provincial fiscal or to the municipal, city, circuit, or district judge for preliminary examination or investigation who, if the evidence warrants, shall file the corresponding charges and, thereafter, we a warrant of arrest; 3. The military commander or the head of the law enforcement agency may apply to the President thru the Minister of National Defense, for a Presidential Commitment Order under the following circumstances: (a) When resort to judicial process is not possible or expedient without endangering public order and safety; or (b) When the release on bail of the person or persons already under arrest by virtue of a judicial warrant would endanger said public order and safety. Petitioners appear to place entire reliance on paragraphs 1 and 2 of LOI No. 1211, ignoring paragraph 3 of LOI No. 1211, which provides: 3. The above notwithstanding, the military commander or the head of the law enforcement agency may apply to the President thru the Minister of National Defense, for a Presidential Commitment Order covering the person or persons believed to be participants in the commission of the crimes referred to in paragraph 1 under the following circumstances: (a) When resort to judicial process is not possible or expedient without endangering public order and safety; or

(b) When the release on bail of the person or persons already under arrest by virtue of a judicial warrant would endanger said public order and safety. The reliance of petitioners on paragraphs 1 and 2 of LOI 1211 as to the alleged necessity of judicial warrant before a person may be arrested and detained is not well-founded. Neither is the contention that paragraph 3 of LOI 1211 applies only when judicial process is not possible. This is a narrow and constricted interpretation of LOI 1211 when viewed in its entirety. Even in instances when a resort to judicial process is possible, where, in the judgment of the President, a resort thereto would not be expedient because it would endanger the public order or safety, a PCO is justified. So, too, when release on bail in the ordinary judicial process will invite the same danger. By its very nature, and clearly by its language, LOI 1211 is a mere directive of the President as Commander-in-Chief of the Armed Forces of the Philippines to his subordinates or implementing officers for the ultimate objective of providing guidelines in the arrest and detention of the persons covered by Presidential Proclamation No. 2045. The purpose is "to insure protection to individual liberties without sacrificing the requirements of public order and safety and the effectiveness of the campaign against those seeking the forcible overthrow of the government and duty constituted authorities. " LOI 1211 does not, in any manner, limit the authority of the President to cause the arrest and detention of persons engaged in, or charged with the crimes or offenses mentioned in said Proclamation in that he (President) would subject himself to the superior authority of the judge who, under normal judicial processes in the prosecution of the common offenses, is the one authorized to issue a judicial warrant after a preliminary investigation is conducted with a finding of probable cause. Those who would read such an intention on the part of the President in issuing LOI 1211 seems to do so in their view that LOI forms part of the law of the land under the 1976 amendment of the Constitution. 10 They would then contend that a PCO issued not in compliance with the provisions of the LOI would be an illegality and of no effect. To form part of the law of the land, the decree, order or LOI must be issued by the President in the exercise of his extraordinary power of legislation as contemplated in Section 6 of the 1976 amendments to the Constitution, whenever in his judgment, there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasan Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action. There can be no pretense, much less a showing, that these conditions prompted the President to issue LOI 1211. Verily, not all LOI issued by the President should be dignified into forming part of the law of the land. In the event then that the judge believes no warrant shall issue, the President, under Presidential Proclamation No. 2045 and Letter of Instruction No. 1211, is not bound by such finding, as explicitly provided in paragraph 2 of LOI 1211. That the President avails of the facilities of the judicial machinery, as is the clear intent of LOI 1211, to aid him in exercising his power to restrain personal liberty, as dictated by the necessities and exigencies of the emergency, does not indicate any intention on his part to renounce or to allow even mere curtailment of his power such that the judicial process will thereupon take its normal course, under which the detainees or accused would then be entitled to demand their

right of due process, particularly in relation to their personal liberty. 11 The issuance of the PCO by the President necessarily constitutes a finding that the conditions he has prescribed in LOI 1211 for the issuance of that PCO have been met, and intends that the detention would be pursuant to the executive process incident to the government campaign against the rebels, subversives and dissidents waging a rebellion or insurrection. The ruling in the Nava vs. Gatmaitan case,* as above intimated, must have shown him that to prosecute the offense through the judicial process of forthwith instead of deferring it, would neither be wise nor expedient if he were to deal effectively with the grave emergency at hand. What has been said above shows the need of reexamining the Lansang case with a view to reverting to the ruling of Barcelon vs. Baker, 5 Phil. 87, a 1905 decision, and Montenegro vs. Castaneda, 91 Phil. 882 (1952), that the President's decision to suspend the privilege of the writ of habeas corpus is "final and conclusive upon the courts, and all other persons." This well-settled ruling was diluted in the Lansang case which declared that the "function of the Court is merely to check not to supplant the Executive, or ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction not to exercise the power vested in him or to determine the wisdom of his act." Judicial interference was thus held as permissible, and the test as laid down therein is not whether the President acted correctly but whether he acted arbitrarily. This would seem to be pure semanticism, if We consider that with particular reference to the nature of the actions the President would take on the occasion of the grave emergency he has to deal with, which, as clearly indicated in Section 9, Art. VII of the Constitution partakes of military measures, the judiciary can, with becoming modesty, ill afford to assume the authority to check or reverse or supplant the presidential actions. On these occasions, the President takes absolute command, for the very life of the Nation and its government, which, incidentally, includes the courts, is in grave peril. In so doing, the President is answerable only to his conscience, the people and to God. For their part, in giving him the supreme mandate as their President, the people can only trust and pray that, giving him their own loyalty with utmost patriotism, the President will not fail them. In his separate opinion in the Lansang case, then Justice Fernando, now our learned Chief Justice, went along with the proposition that the decision of the Executive in the exercise of his power to suspend the privilege of the writ of habeas corpus is his alone, and in his own language, is "ordinarily beyond the ken of the Courts." This is so, as the Founding Fathers must have felt that in the particular situations at hand, the Executive and the Judiciary should maintain a mutually deferential attitude. This is the very essence of the doctrine of "political question, " as determining the justiciability of a case. The wisdom of this concept remains well-recognized in advanced constitutional systems. To erase it from our own system as seems to be what was done in the Lansang case, may neither be proper nor prudent. A good example could be given in the exercise of the presidential power of pardon which is beyond judicial review, specially under the new Constitution where the condition that it may be granted only after final conviction has been done away with. True, the Constitution is the law "equally in war and in peace," 12 as Chief Justice Fernando cited in his brilliant separate opinion in the same Lansang case. Precisely, it is the Constitution that gives the President specific "military power" in times of warlike conditions as exist on the occasion of invasion, insurrection or rebellion. Both power and right are constitutionally granted, with the difference that the guarantee of the right to liberty is for personal benefit, while the grant of the presidential power is for

public safety. Which of the two enjoys primacy over the other is all too obvious. For the power is intended as a limitation of the right, in much the same way as individual freedom yields to the exercise of the police power of the State in the interest of general welfare. The difference again is that the power comes into being during extreme emergencies the exercise of which, for complete effectiveness for the purpose it was granted should not permit intereference, while individual freedom is obviously for full enjoyment in time of peace, but in time of war or grave peril to the nation, should be limited or restricted. In a true sense then, our Constitution is for both peacetime and in time of war; it is not that in time of war the Constitution is silenced. The Founding Fathers, with admirable foresight and vision, inserted provisions therein that come into play and application in time of war or similar emergencies. So it is that, as proclaimed by the Constitution, the defense of the State is a prime duty of government. Compulsory military service may be imposed, certainly a mandate that derogates on the right to personal liberty. It, therefore, becomes self-evident that the duty of the judiciary to protect individual rights must yield to the power of the Executive to protect the State, for if the State perishes, the Constitution, with the Bill of Rights that guarantees the right to personal liberty, perishes with it. In times of war or national emergency, the legislature may surrender a part of its power of legislation to the President. 13 Would it not be as proper and wholly acceptable to lay down the principle that during such crises, the judiciary should be less jealous of its power and more trusting of the Executive in the exercise of its emergency powers in recognition of the same necessity? Verily, the existence of the emergencies should be left to President's sole and unfettered determination. His exercise of the power to suspend the privilege of the writ of habeas corpus on the occasion thereof, should also be beyond judicial review. Arbitrariness, as a ground for judicial inquiry of presidential acts and decisions, sounds good in theory but impractical and unrealistic, considering how well-nigh impossible it is for the courts to contradict the finding of the President on the existence of the emergency that gives occasion for the exercise of the power to suspend the privilege of the writ. For the Court to insist on reviewing Presidential action on the ground of arbitrariness may only result in a violent collision of two jealous powers with tragic consequences, by all means to be avoided, in favor of adhering to the more desirable and long-tested doctrine of "political question" in reference to the power of judicial review. 14 Amendment No. 6 of the 1973 Constitution, as earlier cited, affords further reason for the reexamination of the Lansang doctrine and reversion to that of Barcelon vs. Baker and Montenegro vs. Castaneda. Accordingly, We hold that in times of war and similar emergency as expressly provided in the Constitution, the President may suspend the privilege of the writ of habeas corpus, which has the effect of allowing the Executive to defer the prosecution of any of the offenses covered by Proclamation No. 2045, including, as a necessary consequence, the withholding for the duration of the suspension of the privilege, of the right to bail. The power could have been vested in Congress, instead of the President, as it was so vested in the United States for which reason, when President Lincoln himself exercised the power in 1861, Chief Justice Taney of the U.S. Supreme Court expressed the opinion that Congress alone possessed this power under the Constitutional., 15 Incidentally, it seems unimaginable that the judiciary could subject the suspension, if decreed through congressional action, to the same inquiry as our

Supreme Court did with the act of the President, in the Lansang case, to determine if the Congress acted with arbitrariness. We further hold that under LOI 1211, a Presidential Commitment Order, the issuance of which is the exclusive prerogative of the President under the Constitution, may not be declared void by the courts, under the doctrine of "political question," as has been applied in the Baker and Castaneda cases, on any ground, let alone its supposed violation of the provision of LOI 1211, thus diluting, if not abandoning the doctrine of the Lansang case. The supreme mandate received by the President from the people and his oath to do justice to every man should be sufficient guarantee, without need of judicial overseeing, against commission by him of an act of arbitrariness in the discharge particularly of those duties imposed upon him for the protection of public safety which in itself includes the protection of life, liberty and property. This Court is not possessed with the attribute of infallibility that when it reviews the acts of the President in the exercise of his exclusive power, for possible fault of arbitrariness, it would not itself go so far as to commit the self-same fault. Finally, We hold that upon the issuance of the Presidential Commitment Order against herein petitioners, their continued detention is rendered valid and legal, and their right to be released even after the filing of charges against them in court, to depend on the President, who may order the release of a detainee or his being placed under house arrest, as he has done in meritorious cases. WHEREFORE, the instant petition should be, as it is hereby dismissed. SO ORDERED. G.R. No. 88555 November 21, 1991 EDUARDO N. ASWAT, petitioner, vs. BRIGADIER-GENERAL ALEJANDRO GALIDO, in his capacity as Commander of the Southern Luzon Command, Armed Forces of the Philippines, Camp Guillermo Nakar, Lucena City, respondent. Pacifico M. Monje for petitioner.

FELICIANO, J.:p In this Petition for Habeas Corpus, petitioner challenges the jurisdiction of the General Court-Martial which was convened by then respondent Brigadier General Alejandro Galido 1 as Commanding General of the Southern Luzon Command ("SOLCOM") to try petitioner for a specification (offense) committed outside a military reservation or installation. Petitioner Eduardo N. Aswat and victim Felix B. Nebres were both enlisted men of the Armed Forces of the Philippines ("AFP") respectively holding the ranks Private First Class and Corporal. Aswat and Nebres were assigned to the SOLCOM but Aswat was detailed as caretaker of Brigadier General Galido's Baguio

resthouse while Nebres was assigned to act as a personal driver of Brigadier General Galido's wife. On 29 December 1988, petitioner was involved in a shooting incident at Dominican Hills, Baguio City, which resulted in the death of Nebres. Records disclose that petitioner voluntarily surrendered to the Baguio City police authorities and was briefly incarcerated at the Baguio City Jail until he was transferred to a SOLCOM detention cell on 31 December 1988. Petitioner has been detained at the SOLCOM Headquarters in Camp Guillermo Nakar, Lucena City since then. On 20 April 1989, petitioner was charged before a SOLCOM General Court-Martial ("SOLCOM-GCM") with violation of Article 94 of the Articles of War ("A.W."), the specification being homicide. While the court-martial proceedings were going on, petitioner filed the instant petition, contending: (1) that the specification of homicide with which he was charged was committed outside a military installation and hence the offense was cognizable by a regular, civilian court; (2) that he is entitled to be released on bail as a matter of right pursuant to Section 13, Article III of the Constitution; and (3) that he should be given his due base pay and other pay, aside from the allowances he has been receiving, computed from the time of commencement of his detention. The Court en banc issued the writ of habeas corpus and required respondent to make a return of the writ before the Third Division of the Court. 2 After hearing, the Court, through the Third Division, resolved to require the parties to file their memoranda in amplification of their respective oral arguments. 3 Petitioner seeks to make a distinction between offenses committed outside and those committed inside a military installation or reservation. He assails the jurisdiction of the SOLCOM-GCM, alleging that the specification of homicide was committed in Baguio City and in an area outside any military installation or reservation. The distinction upon which petitioner anchors his argument was obliterated sometime ago. As the law now stands, as long as the accused is subject to military law, as defined under Article 2, A.W., 4 he shall be punished as a court-martial may direct. Art 94. Various Crimes.Any person subject to military law who commits any felony, crime, breach of law or violation of municipal ordinances which is recognized as an offense of a penal nature and is punishable under the penal laws of the Philippines or under municipal ordinances, (A) inside a reservation of the Armed Forces of the Philippines, or (B) outside any such reservation when the offended party (and each one of the offended parties if there be more than one) is a person subject to military law, shall be punished as a court-martial may direct: In imposing the penalties for offenses falling within this article, the penalties for such offenses provided in the penal laws of the Philippines or in such municipal ordinances shall be taken into consideration. 5(Emphasis supplied). Article 94, A.W., in its original form, did refer only to offenses committed inside a Philippine military reservation as falling within the jurisdiction of a court-martial. In 1948, however, R.A. No. 242 amended

Article 94, A.W. by providing that offenses committed outside a military reservation shall also be punished as a court-martial may direct, but only "when the offended party (and each one of the offended parties if there be more than one)" is similarly subject to military law. 6 There is no question that both petitioner and the deceased Nebres were subject to military law at the time the latter was shot and killed. Moreover, when the petitioner asked for the affirmative relief of bail from the SOLCOM-GCM, he in effect recognized the jurisdiction of the General Court-Martial. Hence, petitioner is properly deemed estopped to deny such jurisdiction. Petitioner next contends that his right to bail is explicitly guaranteed in Section 13, Article III of the Constitution. Although the right to bail applies to "all," the Court has very recently ruled that the guarantee is not without any exception. In Comendador vs. De Villa, et al., 7 the Court en banc, speaking through Mr. Justice Cruz, held: We find that the right to bail invoked by the private respondents in G.R. No. 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where We observed that the right to a speedy trial is given more emphasis in the military where the right to bail does not exist. The justification for this exception was well explained by the Solicitor General as follows: The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail. Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of the democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system. xxx xxx xxx The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guarantee requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. Butthey cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians. (Emphasis supplied) Petitioner, as already noted, is a person subject to military law, and under Article 70, A.W., "any person subject to military law charged with crime or with a serious offense under these article shall be placed in confinement or in arrest, as circumstances may require."

Confinement is one way of ensuring presence during sessions of the General Court-Martial; the more important reason underlying the authority to impose confinement is the need to enable the proper military authority to instill discipline with the command and thereby achieve command efficiency. By confining the petitioner, petitioner's unmilitary conduct may be curtailed from spreading within the ranks of the command. The necessity for such confinement is a matter properly left to the sound discretion of petitioner's superior officers. In Domingo vs.Minister of National Defense, 8 the Court en banc, speaking through Mr. Justice Vasquez, held: The petitioner is a person subject to military law facing charges before a general court-martial, and his release from confinement pending the trial of the charges against him is a matter that lies largely in the discretion of the military authorities. They are undeniably in a better position to appreciate the gravity of said charges and the feasibility and advisability of releasing him or relaxing the terms of his confinement pending the trial and disposition of the case filed against him. The authority of the respondent to order the arrest and confinement of the petitioner flows from his general jurisdiction over his command. Petitioner being assaigned to SOLCOM, he is directly under the command of then Brigadier General Galido. The third issue raised by the petitioner concerns his right to receive base pay and other pay during the pendency of his detention. At present, petitioner is receiving a monthly allowance of P540.00. 9 The law defines "pay" to include "base pay and all additional pay for the length of service or type of duty such as longevity pay and flying pay," and distinguishes "pay" from "allowances" which is limited to "quarters, subsistence, travel, and such other allowances as may by law become payable to army personnel." 10 Concerning this issue, Section 18, Article 6 of R.A. No. 138, as amended, provides: Sec. 18. An enlisted man awaiting trial by Court-martial or the result thereof, is not entitled to receive pay as distinguished allowances until the result of the trial is known; Provided, that any enlisted manwho is placed on a full duty status and performs regular duties while awaiting trial by court-martial, or the result thereof, shall be entitled to receive all his pay and allowances for the period of such duty unless the same shall have been lawfully forfeited by the approved sentence of a court-martial prior to actual payment thereof to the enlisted man. For the purposes of this section, the restoration to full duty status of enlisted men awaiting trial by court-martial, or the result thereof, shall be as directed by the Chief of Staff, with the approval of the Secretary of National Defense.' (as amended by R.A. 1067). (Emphasis supplied) Petitioner, during detention, ceased to perform his ordinary military duties. His continued detention necessarily restrains his freedom of work, and he cannot carry out his normal military functions. There is no showing by petitioner that he was placed on "full duty status" and performing "regular duties" pending trial. On the premise of "no work no pay", petitioner cannot insist on his right to receive base pay or any other pay while under detention. However, while petitioner is not entitled to receive any

base pay or any other pay during his detention, the law expressly permits him to receive his regular and other allowances, if otherwise entitled thereto, while under detention. ACCORDINGLY, the Court Resolved to DISMISS the Petition for Habeas Corpus for lack of merit. No pronouncement to costs. SO ORDERED. [G.R. No. 135045. December 15, 2000] PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. IRENEO GAKO, JR. (Presiding Judge of the Regional Trial Court, 7th Judicial Region, Branch 5, Cebu City) and VICENTE GO, respondents. DECISION GONZAGA-REYES, J.: Before us is an appeal by certiorari under Rule 45, Rules of Court of the Resolution[1] of public respondent Court of Appeals (Former Third Special Division) dated August 12, 1998 in CA-G.R. SP No. 47142, entitled PEOPLE OF THE PHILIPPINES versus HON. IRENEO GAKO, JR. ET. AL., dismissing the petition of the Office of the Solicitor General (OSG), herein petitioner. This instant petition stems from a murder case filed against private respondent Vicente Go (Go) and two co-accused Sonny Herodias (Herodias) and Leopoldo dela Pea (de la Pea). The victim, Rafael Galan, Sr. (Galan, Sr.), was shot dead on June 25, 1991. Judge Priscila S. Agana (Judge Agana) originally presided over the criminal case subject of this petition. The prosecution sought to inhibit said judge for her alleged collusion with the accused when she repeatedly sustained the objections of the defense every time the prosecution attempted to establish the conspiracy to kill the victim. Judge Agana denied the motion to inhibit and dismissed the case with prejudice on the ground that the rights of the accused to a speedy trial were violated. The prosecution challenged the dismissal in the Court of Appeals, docketed as CA-G.R. SP No. 32954. In its Decision dated April 18, 1994, the Court of Appeals set aside the order of dismissal, granted the inhibition of the judge, and ordered the re-raffle of the case. The decision of the Court of Appeals gained finality when this Court dismissed the appeal of private respondent Go and co-accused Herodias in a Minute Resolution dated June 26, 1995. The criminal case was thus set for retrial. A series of delays beset the case when the judges to whom the case was raffled inhibited themselves. The case was finally presided over by public respondent Judge Ireneo Gako, Jr (Judge Gako, Jr.). With the foregoing events as backdrop, the pertinent facts that led to the filing of this instant petition are as follows: On July 3, 1991, de la Pea executed an Extra-judicial Confession implicating therein Herodias and Go in the conspiracy to kill and murder the victim.

On July 9, 1991, an Information was filed against the three accused namely, de la Pea, Herodias and Go, charging them with the murder of Galan, Sr. and the case was docketed as Criminal Case No. CBU22474. Judge Godardo Jacinto,[2] then the Executive Judge of the Regional Trial Court of Cebu City, issued a Warrant of Arrest against the accused. On July 22, 1991 an Urgent Motion to Confine private respondent Go in a hospital was filed. On August 2, 1991, the hearing on said motion was conducted with the prosecution reserving its right to cross-examine Dr. Gonzales. On August 6, 1991 an Order was issued to confine private respondent Go in a hospital without the prosecution having cross-examined Dr. Gonzales on his medical report. On July 15, 1992, a hearing was conducted where de la Pea was presented as a witness for the prosecution. Presiding Judge Agana sustained the objections of the defense counsels each time that the prosecution attempted to establish the conspiracy to kill the victim. The prosecution filed a motion to inhibit Judge Agana, which motion was denied. On November 20, 1992, the Information against Go and Herodias was dismissed with prejudice on the ground that their right to a speedy trial had been violated, leaving de la Pea to face trial. The prosecution then challenged the Order of Dismissal with Prejudice before the Court of Appeals in CA-GR SP No. 32954. In its Decision dated April 18, 1994, the Court of Appeals annulled and set aside the Order of Dismissal, ordered the inhibition of Judge Agana, and ordered the raffle of the case to another branch. With the dismissal of the appeal of private respondent Go and co-accused Herodias by this Court in a Minute Resolution dated June 26, 1995, the criminal case was set anew for trial. The case was re-raffled to RTC-17 and on October 28, 1996, an Alias Warrant of Arrest was issued against private respondent Go and co-accused Herodias. On February 2, 1997, Dr. Matig-a, the physician of Go, filed a Clinical Summary on the illness of Go and on February 13, 1997 Go filed a Petition for Bail. On March 7, 1997 and March 10, 1997, the prosecution presented de la Pea who was acquitted in 1993. De la Pea testified on matters which he was not allowed by then presiding Judge Agana to testify on. On March 21, 1997, a Manifestation on the Confinement of private respondent Vicente Go was filed urging his arrest because he was out of the intensive care unit. The motion of the prosecution to transfer the criminal case to a Special Heinous Crimes Court was denied by then presiding Judge Jesus de la Pea (Judge de la Pea). The case was finally assigned to Branch 5 with public respondent Judge Gako, Jr. as presiding judge. On September 16 and 17, 1997, the hearing was resumed, now presided by public respondent Judge Gako, Jr.

On September 26, 1997, an Urgent Motion to Enforce the Alias Warrant of Arrest was filed praying for the arrest of private respondent Go first before his Clinical Summary Report could be heard. On November 10, 1997, public respondent Judge Gako, Jr. issued an Order granting the Petition for Bail of private respondent Go. On November 11, 1997, the prosecution filed a Vehement Motion to Inhibit public respondent Judge Gako, Jr. due to his alleged delay in resolving the incidents in connection with the arrest of private respondent Go. On November 12, 1992, the prosecution moved for the reconsideration of the Order of the court dated November 10, 1997, the order which granted bail to private respondent Go. On November 14, 1997, a Supplemental Motion to Inhibit public respondent Judge Gako, Jr. was filed by the counsel of the offended party because Judge Gako, Jr. allegedly pre-judged the evidence of the prosecution without carefully evaluating why it is short of the requirement to sustain a verdict of life imprisonment. On November 15, 1997, a Supplemental Motion for Reconsideration was filed from the Order dated November 10, 1997 because the transcripts were allegedly not read. On December 1, 1997, a Motion for the Issuance of Subpoena Duces Tecum to produce the records of Dr. Matig-a was filed to determine if the medical findings on private respondent Go were not exaggerated to prevent his arrest. On December 11, 1997, public respondent Judge Gako, Jr. issued an Order in which he denied the prosecutions Manifestation dated March 21, 1997 on the confinement of private respondent Go, and the Urgent Motion to Enforce the Alias Warrant of Arrest dated September 26, 1997 against private respondent Go. On January 20, 1998, public respondent Judge Gako, Jr. issued an Order denying the: (1) Motion for Reconsideration of the Order dated November 10, 1997; (2) Motion to Inhibit; and (3) Supplemental Motion to Inhibit the Presiding Judge. The prosecution received this order on February 10, 1998. On March 20, 1998, private complainant Guadalupe Galan (Galan), the widow of the victim, filed a petition for certiorari under Rule 65 of the Rules of Court docketed as CA-G.R. SP No. 471460 before public respondent Court of Appeals. The petition sought to annul or set aside the orders of public respondent Judge Gako, Jr. and then acting Presiding Judge de la Pea, to wit: a) Order dated May 23, 1997, which set aside the earlier order of the court that granted the re-raffle of this case to a heinous crime court upon the defenses motion for reconsideration. b) Order dated November 10, 1997, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the court hereby grants bail to accused Vicente Go which is fixed at P50,000.00, after taking into consideration, and this fact has not been disputed, that said accused is presently confined in the hospital and is suffering from the following ailments: a) Ischemic Heart Disease, S/P Coronary Angiogram, Single Vessel Disease, LAD, Chronic Stable Angina; b) Essential Hypertension; c) NIDDM d) Hypercholesterolemia; and e) Respiratory Tract Infection And, as per clerical summary report of Dr. Generoso Matiga, dated February 4, 1997, the confinement of accused Go in prison will cause his disease to terminate fatally. xxx c) Order dated December 11, 1997, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, the Manifestation dated March 3, 1997 and the Motion to Enforce the Alias Warrant of Arrest are hereby denied for want of merit. Besides the accused was already released on bail and the issue on the enforcement of the Alias Warrants of Arrest is already moot and academic. d) Order dated January 20, 1998, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, the Omnibus Motions for Reconsideration on the order of the court granting Bail to accused Vicente Go with Supplemental pleading, xxx and thirdly, to disqualify the herein Presiding Judge, are hereby denied for lack of merit. xxx[3] The petition was signed by the counsel of private complainant, Atty. Antonio Guerrero with the conformity of Vidal Gella, Prosecutor I of the Office of the City Prosecutor of Cebu City. On March 26, 1998, public respondent Court of Appeals (Special Third Division) issued a Resolution dismissing the said petition on these grounds: (1) that the petition was not filed by the Solicitor General in behalf of the People of the Philippines; and (2) that the certification on non-forum shopping was signed by counsel for petitioner Galan, not by petitioner herself.[4] On April 14, 1998, private complainant Galan, through counsel, filed a Motion for Reconsideration of said Resolution indicating that petitioner OSG was going to adopt her petition. On the same date, petitioner OSG manifested before public respondent Court of Appeals that it was joining private complainant Galan in her petition and was adopting her petition as its own. On June 18, 1998, the Court of Appeals issued a resolution that denied said motion for reconsideration of private complainant Galan on the ground that the certification on non-forum shopping was not signed

by therein petitioner Galan. The Court of Appeals also reasoned that the fact that the OSG joined petitioner Galan in her petition did not cure the above deficiency.[5] Petitioner OSG received copy of the resolution on June 29, 1998. On August 3, 1998 petitioner OSG filed a petition for certiorari under Rule 65 of the Rules of Court with the Court of Appeals docketed as CA-G.R. SP No. 47142. On August 12, 1998, said petition of petitioner OSG was dismissed by public respondent Court of Appeals, the pertinent portions of the resolution read: The Court notes that said petition is practically a reproduction of the petition earlier filed by complainant Guadalupe Galan, which was dismissed on March 26, 1998. The dismissal was reaffirmed by the Court in its resolution dated June 18, 1998, copy of which was received by the OSG on June 29, 1998. Instead of seeking, on time, the amendment of the first petition or a review of the resolution dismissing it, the OSG has come to this Court through the instant petition which not only raises the same matters ventilated in the same petition but also was filed beyond the 60-day period prescribed in Section 4, Rule 65 of the 1997 Rules of Civil Procedure. WHEREFORE, premises considered, the Petition dated July 17, 1998, is hereby DISMISSED. SO ORDERED.[6] In seeking the allowance of this instant petition, petitioner OSG relies upon the following grounds: I. PUBLIC RESPONDENT COURT OF APPEALS ERRED IN NOT GIVING DUE COURSE TO THE SPECIAL CIVIL ACTION OF (sic) CERTIORARI FILED BY PETITIONER DOCKETED AS CA-G.R. SP NO. 47142. II. PUBLIC RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT SAID SPECIAL CIVIL ACTION WAS FILED BEYOND THE SIXTY-DAY PERIOD PRESCRIBED IN SECTION 4, RULE 65 OF THE 1997 RULES OF CIVIL PROCEDURE. III.PUBLIC RESPONDENT COURT OF APPEALS ERRED IN NOT TOUCHING ON THE MERITS OF THE SAID PETITION.[7] Public respondent Court of Appeals correctly ruled that there was sufficient ground to dismiss the petition filed by private complainant Galan since it was her counsel who signed the certificate on nonforum shopping and not private complainant herself. The petition clearly failed to comply with the requirement imposed by Section 1, Rule 65[8], in relation to Section 3, Rule 46[9] of the 1997 Rules of Court. We also agree with the Court of Appeals, that the mere fact that petitioner OSG manifested that it was adopting the petition of therein petitioner Galan did not cure the defective petition considering that the certificate on non-forum shopping was still not signed by petitioner Galan but by her counsel. The manifestation of petitioner OSG also did not contain a certification on non-forum shopping. By the time that petitioner OSG filed its petition forcertiorari in behalf of the People of the

Philippines on August 3, 1998, the dismissal of the petition of private complainant Galan had already been reaffirmed and the 60-day period for petitioner OSG to file its petition had already lapsed. In dismissing the petition of petitioner OSG, public respondent Court of Appeals pointed out that private complainant Galan had no legal standing to file the petition before it because only the Solicitor General can represent the People before this Court (Court of Appeals) and the Supreme Court.[10] On this point, we differ. In the recent case of Narciso vs. Romana-Cruz[11], we reiterated the doctrine enunciated in People vs. Calo[12] that: While the rule is, as held by the Court of Appeals, only the Solicitor General may bring or defend actions on behalf of the Republic of the Philippines, or represent the People or the State in criminal proceeding pending in this Court and the Court of Appeals (Republic vs. Partisala, 118 SCRA 320 [1982]), the ends of substantial justice would be better served, and the issues in this action could be determined in a more just, speedy and inexpensive manner, by entertaining the petition at bar. As an offended party in a criminal case, private petitioner has sufficient personality and a valid grievance against Judge Adaos order granting bail to the alleged murderers of his (private petitioners) father. In Paredes vs. Gopengco, 29 SCRA 688 (1969), this Court ruled that the offended parties in criminal cases have sufficient interest and personality as person(s) aggrieved to file the special civil action of prohibition and certiorari under Sections 1 and 2 of Rule 65 in line with the underlying spirit of the liberal construction of the Rules of Court in order to promote their object, thus: Furthermore, as offended parties in the pending criminal case before petitioner judge, it cannot be gainsaid that respondents have sufficient interest and personality as person(s) aggrieved by petitioner judges ruling on his non-disqualification to file the special civil action under sections 1 and 2 of Rule 65. Recently in line with the underlying spirit of a liberal construction of the Rules of Court in order to promote their object, as against the literal application of Rule 110, section 2, we held, overruling the implication of an earlier case, that a widow possesses the right as an offended party to file a criminal complaint for the murder of her deceased husband. (Id., p. 699)[13] Hence, private complainant Galan had sufficient interest and personality as the aggrieved party[14] in a criminal case to file the special civil action for certiorari before public respondent Court of Appeals. The proper ground therefore for dismissing her petition is the fact that it was her counsel who signed the certificate on non-forum shopping and not herself as petitioner. Petitioner OSG submits that assuming that the petition for certiorari it filed with public respondent Court of Appeals was filed out of time, nonetheless the following issues raised in said petition warranted resolution: I. WHETHER OR NOT THE ORDER DATED NOVEMBER 10, 1997 GRANTING BAIL IS PROPER WITHOUT EXPRESSING THE COURTS FINDING THAT THE EVIDENCE OF GUILT OF THE ACCUSED IS NOT STRONG.

II. WHETHER OR NOT PRIVATE RESPONDENT VICENTE GO IS CONSIDERED UNDER LEGAL CUSTODY AS OF NOVEMBER 20, 1992 UNTIL THE PRESENT BECAUSE OF HIS HOSPITAL CONFINEMENT BY ORDER OF THE COURT DATED AUGUST 6, 1991. III. WHETHER OR NOT IT IS NECESSARY THAT CRIMINAL CASE NO. CBU-22474 SHOULD BE TRIED BY THE SPECIAL HEINOUS CRIMES COURT NOTWITHSTANDING THAT THE MURDER WAS COMMITTED IN 1991 BEFORE THE PASSAGE OF THE LAW CREATING THESE SPECIAL COURTS. This instant petition also seeks to set aside the following orders: (1) Order dated May 23, 1997 which set aside the earlier order of the trial court that granted the re-raffle of this case to a heinous crime court upon the motion for reconsideration of the defense; (2) Order dated November 10, 1997 that granted the bail of accused Go in the amount of P 50,000.00; (3) Order dated December 11, 1997 denying the Motion to Enforce the Alias Warrants of arrest; and (4) Order dated January 20, 1998 denying the Omnibus Motions for Reconsideration of the order of the court granting bail to accused Go and ruling against the disqualification of respondent Judge Gako, Jr. While the petition of private complainant Galan was indeed defective in form and the petition of petitioner OSG was demonstrably filed beyond the 60-day period, we however resolve to grant this petition in part in view of the primordial interest of substantial justice. The just cited issues in the petition before public respondent Court of Appeals presented extenuating circumstances that should have compelled the latter to pass upon the merits of said petition. In a number of cases,[15] we have set aside the strict application of procedural technicalities in the higher interest of justice. As we shall show hereunder, the issues raised by petitioner OSG deserve disposition to avoid a miscarriage of justice and to end the streaks of delay which have saddled the criminal case subject of this petition. First, the assailed Order dated November 10, 1997 granting bail is legally infirm for failing to conform with the requirement that in cases when the granting of bail is not a matter of right, a hearing for that purpose must first be conducted. Section 13, Article III of the Constitution provides the instances when bail is a matter of right or discretionary, to wit: All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Section 7, Article 114 of the Rules of Court, as amended, reiterates that: No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. Based on the foregoing, bail is not a matter of right with respect to persons charged with a crime the penalty for which is reclusion perpetua,life imprisonment, or death, when the evidence of guilt is

strong. Private respondent Go, accused in the criminal case, was charged with murder in 1991, before the passage of RA 7659, the law that re-imposed the death penalty. Murder then was a crime punishable by reclusion perpetua. Thus, accused Gos right to bail is merely discretionary. We have consistently held that when bail is discretionary, a hearing, whether summary or otherwise in the discretion of the court, should first be conducted to determine the existence of strong evidence or lack of it, against the accused to enable the judge to make an intelligent assessment of the evidence presented by the parties.[16] A summary hearing is defined as such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary examination and cross examination.[17] It is inconceivable how Judge Gako, Jr. could have appreciated the strength or weakness of the evidence of guilt of the accused when he did not even bother to hear the prosecution. The reliance of Judge Gako, Jr. on the voluminous records of the case simply does not suffice. As judge, he was mandated to conduct a hearing on the petition for bail of the accused since he knew that the crime charged is one that carries a penalty of reclusion perpetua, and in that hearing, the prosecution is entitled to present its evidence. It is worth stressing that the prosecution is equally entitled to due process.[18] Another compelling reason why a hearing of a petition for bail is necessary is to determine the amount of bail based on the guidelines set forth in Section 6, Rule 114 of the Rules of Court.[19] Without the required hearing, the bail granted to accused Go in the amount of P 50,000.00 is undoubtedly arbitrary and without basis. Second, the order granting bail issued by Judge Gako, Jr. merely made a conclusion without a summary of the evidence, a substantive and formal defect that voids the grant of bail. Well settled is the rule that after the hearing, whether the bail is granted or denied, the presiding judge is mandated to prepare a summary of the evidence for the prosecution. A summary is defined as a comprehensive and usually brief abstract or digest of a text or statement.[20] Based on the summary of evidence, the judge formulates his own conclusion on whether such evidence is strong enough to indicate the guilt of the accused. The importance of a summary cannot be downplayed, it is considered an aspect of procedural due process for both the prosecution and the defense; its absence will invalidate the grant or denial of bail.[21] Thus, we laid down the duties of a judge in case an application for bail is filed, viz: (1) Notify the prosecutor of the hearing for bail or require him to submit his recommendation;

(2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its discretion; (3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution; (Italics supplied) (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond. Otherwise, petition should be denied.[22] In dispensing with the required hearing for bail, Judge Gako, Jr. pointed out in the assailed order that the accused was confined in the hospital, was suffering from a number of ailments and that the eventual confinement of accused Go in prison will allegedly cause his disease to terminate fatally.[23] The irregularity in the grant of bail however is not attenuated since respondent judges findings were based on the summary clinical report of Dr. Matiga dated February 4, 1997 while the order granting bail was issued on November 10, 1997. It could not therefore be reasonably assumed that the actual state of health of accused Go could still be accurately reflected by the said medical report when nine months had already passed from the time that said medical report was prepared. It was therefore clear error for Judge Gako, Jr. to depend solely on the dated medical report in granting bail when the defense failed to present a more recent one that would convincingly raise strong grounds to apprehend that the imprisonment of the accused would endanger his life. Petitioner OSG advances the theory that the accused, private respondent Go, is not entitled to bail because he was allegedly not under the custody of the law at the time that he applied for bail. Petitioner OSG anchors this theory on the following arguments: that the August 6, 1991order commanding the confinement of accused Go in the hospital was void because the prosecution was not able to cross-examine the doctor who prepared the medical report pertaining to the accused illnesses; that when the Information in this case was ordered dismissed with prejudice on November 20, 1992 by then presiding Judge Agana, accused Go was bodily released from his confinement; that at that point, the trial court had lost its jurisdiction over the person of the accused; that before the dismissal with prejudice was voided by the Court of Appeals, accused traveled extensively abroad; that when the case was re-raffled and finally presided by Judge Gako, Jr. accused continued to be confined in the hospital on the strength of the allegedly void order of confinement dated August 6, 1991; that Judge Gako, Jr. refused to enforce the alias warrant of arrest on the ground that the order of confinement was still in effect; and that accused Go voluntarily admitted himself to the hospital, hence was not yet deprived of his liberty at the time that he applied for bail. We must first correct the perception that the trial court was ousted of its jurisdiction over the person of accused Go after Judge Agana erroneously dismissed the case and upon the refusal of Judge Gako, Jr. to enforce the alias warrant of arrest during the re-trial of the case. Applicable to this issue is the basic principle that the jurisdiction of a court, whether in criminal or civil cases, once it attaches cannot be ousted by subsequent happenings or events although of a character which would have prevented

jurisdiction from attaching in the first instance; and it retains jurisdiction until it finally disposes of the case.[24] Prior to the dismissal of the case by Judge Agana, the court had already acquired its jurisdiction over accused Go when he was duly arraigned on December 11, 1991.[25] The fact that this Court affirmed the decision of the Court of Appeals that voided the order dismissing the criminal case with prejudice is a clear declaration that the jurisdiction of the trial court over the criminal case and over the person of the accused continued to subsist. With the nullification of the dismissal of the case, it then became explicit that the court should have tried the case to its end. The case was ordered remanded and re-raffled because the inhibition of then presiding Judge Agana was granted, in no way was the jurisdiction of the trial court over the case and over the person of the accused ever placed in doubt. We now discuss the theory of petitioner OSG that the right of accused Go to bail did not accrue because he was not under the custody of the law or deprived of his liberty. Petitioner OSG rests this claim on the allegations that accused Go voluntarily admitted himself to the hospital during the re-trial of the case and that Judge Gako, Jr. refused to enforce the alias warrant of arrest as evidenced by the questioned Order dated December 11, 1997. By the very definition of bail in Section 1, Rule 114 of the Rules of Court[26], the person applying for bail must be in the custody of the law. A person is considered to be in the custody of the law (a) when he is arrested either by virtue of a warrant of arrest issued pursuant to Section 6, Rule 112, or even without a warrant under Section 5, Rule 113 in relation to Section 7, Rule 112 of the Revised Rules of Court, or (b) when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities.[27] We do not agree with petitioner OSG that accused Go was not in custody of the law at the time that he applied for bail. In the same assailed order, Judge Gako, Jr. explained his refusal to enforce the alias warrant of arrest in this manner: Secondly, the movant wanted this court to order the arrest of the accused in view of the Alias Warrant of Arrest issued by Acting Judge Andres Garalza, Jr. on October 28, 1996. For the information of the movant, there is another Alias Warrant of Arrest issued by Judge Jose Burgos on May 27, 1996 after he denied the Investigation Report submitted by the Office of the Cebu City Prosecutor which recommended the dismissal of the case against Vicente Go. The court believes honestly that these two (2) Alias Warrants of Arrest were improvidently issued because at that time the Warrant of Arrest issued by then Judge Godardo Jacinto on July 9, 1991 was still valid and subsisting. In fact it was this latter Warrant of Arrest that handed to this court jurisdiction over the person of the accused Go. The Alias Warrant of Arrest issued by Judge Burgos has no legal basis not only because the Warrant of Arrest issued by Judge Jacinto is still valid and subsisting but also for the fact that it was issued as an aftermath of the courts denial of the Reinvestigation Report of the Office of the Cebu City Prosecutor which recommended the dismissal of Gos case. Under Section 6, Rule 112 of the 1985 Rules of Criminal

Procedure, as amended, the Regional Trial Court may issue a warrant of arrest after a preliminary investigation, not after reinvestigation when one was already was (sic) issued. Likewise, the Alias Warrant of Arrest issued by Judge Garalza, which came about five months (5) later, had no legal basis, firstly, because there was already an Alias Warrant of Arrest issued by Judge Burgos on May 27, 1996, secondly, the Warrant of Arrest issued by Judge Jacinto on July 9, 1991 is still valid and subsisting. But what appears more funny is the Alias Warrant of Arrest issued by Judge Garalza against accused Go who was at that time lawfully confined in the hospital pursuant to an Order of the court, dated August 6, 1991. When Judge Garalza issued said alias (sic) Warrant of Arrest, there was no showing that accused Go had escaped, or refused to obey a lawful Order of the court. WHEREFORE, in view of the foregoing, the Manifestation, dated March 21, 1997, and the Motion to Enforce the Alias Warrant of Arrest are hereby denied for want of merit. Besides, the accused was already released on bail and the issue on the enforcement of the Alias Warrants of Arrest is already moot and academic.[28] As pointed out by Judge Gako, Jr., accused Go had already been arrested on the basis of a warrant of arrest issued by Judge Jacinto on July 9, 1991 which gave the trial court jurisdiction over the accused. As mentioned earlier, accused Go was duly arraigned before the case was erroneously dismissed. From the time that accused Go was arrested, he was already deprived of his liberty and was in the custody of the law. At the re-trial of the case, accused Gos confinement in the hospital was by virtue of a court order dated August 6, 1991; the restraint on the freedom of accused Go is evident. There was therefore no more need to enforce the alias warrant of arrest since accused Go was still under the custody of the law, and there being no evidence that accused Go had escaped or refused to obey a lawful order of the court. At this point, the setting aside of the questioned order dated December 11, 1997 that denied the enforcement of the alias warrant of arrest against accused Go has become moot and academic with the provisional freedom of accused Go after his bail was erroneously granted by Judge Gako, Jr. We however find merit in the argument of petitioner OSG that the order dated August 6, 1991 authorizing the confinement of accused Go in the hospital was, in the words of petitioner OSG, a continuing one and built-in license for the accused to automatically confine himself as many times as he likes. It may be true that said order subsisted for it was never quashed, but at the re-trial of the case, the prosecution through its motion to enforce the alias warrant of arrest dated September 26, 1997 had already put in issue the health of the accused. Yet, Judge Gako, Jr. in an Order dated December 11, 1997 justified the confinement of accused Go in the hospital on the basis of the August 6, 1991 order of confinement. The prosecution vigorously objected to the confinement of accused Go in the hospital, questioning the alleged ill health of the accused. Judge Gako, Jr. was called upon to rule on this matter and instead of ascertaining the true state of health of said accused, Judge Gako, Jr. instead inexplicably relied on a court order authorizing the confinement of accused Go in the hospital, an order that was issued six years ago. The proper course of action in this case should have been to recall the order of confinement and to order the detention of accused Go until the defense could prove through competent evidence that the

imprisonment of said accused would imperil his health. The order to arrest accused Go in such case would be the consequence of the recall of the order of confinement, not for the purpose of placing him under the custody of the law since to repeat, he already was under the custody of the law. As discussed earlier, accused Go is currently already out on bail,[29] the granting of which is void for want of a hearing and summary of evidence. In cases when the grant of bail is void, this Court will not hesitate to set aside the order granting bail and order that the accused be recommitted to jail pending his application for bail,[30] as this Court now holds in the case at bar. As to the issue of whether or not public respondent Judge Gako, Jr. should be inhibited on the ground of partiality, the relevant provision to consider is Section 1, Rule 137 of the Rules of Court, it provides: SECTION 1. Disqualification of judges.No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the records. A judge, may in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above. The ground of partiality is not one of the grounds enumerated in the first paragraph of the just quoted provision that would per se disqualify a judge from sitting in a case. Jurisprudence is clear that partiality is a recognized ground for the voluntary inhibition of the judge under the second paragraph of Section 1, Rule 137.[31] In this case, Judge Gako, Jr. has already ruled in the assailed Order dated January 20, 1998 that he will not inhibit himself. To overturn the ruling of Judge Gako, Jr. and rule for his disqualification, there must be clear and convincing evidence to prove the charge of partiality. Material to this issue are the following parameters we have set in disqualifying a judge: mere suspicion that a judge was partial to a party is not enough; that there should be adequate evidence to prove the charge; that there must be showing that the judge had an interest, personal or otherwise, in the prosecution of the case at bar; and that to be disqualifying, the bias and prejudice must be shown to have stemmed from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.[32] Petitioner OSG accuses Judge Gako, Jr. of partiality supposedly shown by the grant of bail without a hearing and the alleged suppression of the hearing on the Clinical Summary Report of the accused. Again, to successfully disqualify a judge on the ground of bias or partiality, there must be concrete proof that a judge has a personal interest in the case and his bias is shown to have stemmed from an extra-judicial source. This precept springs from the presumption that a judge shall decide on the merits of a case with an unclouded vision of its facts.[33] Thus, we have held that an erroneous ruling on

the grant of bail alone does not constitute evidence of bias.[34] Likewise, respondent judges reliance on the order of confinement even if erroneous is not sufficient to point to a conclusion that he was manifestly partial to the defense. To allow the disqualification of a judge on the mere allegation of partiality with nothing more would open the floodgates to forum shopping.[35] Corollary to the foregoing, we do not find well taken the recommendation of petitioner OSG that the criminal case be raffled to a Special Heinous Crimes Court. Even petitioner OSG concededly recognizes that Supreme Court Administrative Order No. 51-96 dated May 3, 1996 creating the Special Heinous Crimes Court provides that: All cases covered by this order where trial has already been commenced shall continue to be heard by the branches to which these were originally assigned. Supreme Court Administrative Order No. 104-96 dated October 21, 1996 which amended Supreme Court Administrative Order No. 51-96, also contains a similar provision, to wit: Where trial has already begun, the same shall continue to be heard by the respective branches to which they have been originally assigned. For purposes hereof, a criminal case is considered begun when the accused or any of them has already been arraigned; in a civil case, it is when pre-trial has already been conducted and a pre-trial order issued. We thus see no cogent reason to set aside the order dated May 23, 1997 that denied the transfer of Criminal Case No. CBU-22474 to a Special Heinous Crimes Court when the trial of the case has already begun and when the crime for which the accused is being charged with occurred prior to the creation of the Special Heinous Crimes Court. Furthermore, there are no extraordinary circumstances that would compel this Court to exercise its power under the Constitution to order a change of venue or place of trial. WHEREFORE, in view of the foregoing, the assailed resolution of public respondent Court of Appeals dated August 12, 1998 is SET ASIDE. The order dated November 10, 1997 of the trial court in Criminal Case No. CBU-22474 is SET ASIDE for being void in so far as it grants bail to the accused and the accused is ordered recommitted to jail pending the hearing on the bail application. The order dated May 23, 1997 denying the re-raffle of Criminal Case No. CBU-22474 to a Special Heinous Crimes Court and the resolution dated January 20, 1997 ruling against the inhibition of presiding Judge Ireneo Gako, Jr. are hereby AFFIRMED. The court a quo is ordered to proceed with dispatch in the disposition of this case. SO ORDERED. G.R. No. 115407 August 28, 1995 MIGUEL P. PADERANGA, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

REGALADO, J.: The adverse decision in this case promulgated by respondent Court of Appeals in CA-G.R. SP No. 32233 on November 24, 1993, as well as its resolution of April 26, 1994 denying the motion for reconsideration

thereof, are challenged by petitioner Miguel P. Paderanga in this appeal by certiorari through a petition which raises issues centering mainly on said petitioner's right to be admitted to bail. On January 28, 1990, petitioner was belatedly charged in an amended information as a co-conspirator in the crime of multiple murder in Criminal Case No. 86-39 of the Regional Trial Court, Branch 18 of Cagayan de Oro City for the killing of members of the Bucag family sometime in 1984 in Gingoog City of which petitioner was the mayor at the time. The original information, filed on October 6, 1986 with the Regional Trial Court of Gingoog City, 1 had initially indicted for multiple murder eight accused suspect, namely, Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe And Richard Doe as the alleged conspirators in the indiscriminate slaying of the spouses Romeo and Juliet Bucag and their son, Romeo, Jr. However, only one of the accused, Felipe Galarion, was apprehended, tried and eventually convicted. Galarion later escaped from prison. The others have remained at large up to the present. 2 In a bizarre twist of events, one Felizardo ("Ely") Roxas was implicated in the crime. In an amended information dated October 6, 1988, he was charged as a co-accused therein. As herein petitioner was his former employer and thus knew him well, Roxas engaged the former's services as counsel in said case. Ironically, in the course of the preliminary investigation therein, said accused, in a signed affidavit dated March 30, 1989 but which he later retracted on June 20, 1990, implicated petitioner as the supposed mastermind behind the massacre of the Bucag family. 3 Then, upon the inhibition of the City Prosecutor of Cagayan de Oro City from the case per his resolution of July 7, 1989, the Department of Justice, at the instance of said prosecutor, designated a replacement, State Prosecutor Henrick F. Gingoyon, for purposes of both the preliminary investigation and prosecution of Criminal Case No. 86-39. Pursuant to a resolution of the new prosecutor dated September 6, 1989, petitioner was finally charged as a co-conspirator in said criminal case in a second amended information dated October 6, 1992. Petitioner assailed his inclusion therein as a co-accused all the way to this Court in G.R. No. 96080 entitled "Atty. Miguel P. Paderanga vs. Hon. Franklin M. Drilon, Hon. Silvestre H. Bello III, Atty. Henrick F. Gingoyon, Helen B. Canoy and Rebecca B. Tan." In an en banc decision promulgated on April 19, 1991, the Court sustained the filing of the second amended information against him. 4 Under this backdrop, the trial of the base was all set to start with the issuance of an arrest warrant for petitioner's apprehension but, before it could be served on him, petitioner through counsel, filed on October 28, 1992 a motion for admission to bail with the trial court which set the same for hearing on November 5, 1992. Petitioner duly furnished copies of the motion to State Prosecutor Henrick F. Gingoyon, the Regional State Prosecutor's Office, and the private prosecutor, Atty. Benjamin Guimong. On November 5, 1992, the trial court proceeded to hear the application for bail. Four of petitioner's counsel appeared in court but only Assistant Prosecutor Erlindo Abejo of the Regional State Prosecution's Office appeared for the prosecution.5 As petitioner was then confined at the Cagayan Capitol College General Hospital due to "acute costochondritis," his counsel manifested that they were submitting custody over the person of their

client to the local chapter president of the integrated Bar of the Philippines and that, for purposes of said hearing of his bail application, he considered being in the custody of the law. Prosecutor Abejo, on the other hand, informed the trial court that in accordance with the directive of the chief of their office, Regional State prosecutor Jesus Zozobrado, the prosecution was neither supporting nor opposing the application for bail and that they were submitting the same to the sound discretion of the trail judge. 6 Upon further inquiries from the trial court, Prosecutor Abejo announced that he was waiving any further presentation of evidence. On that note and in a resolution dated November 5, 1992, the trial court admitted petitioner to bail in the amount of P200,000.00. The following day, November 6, 1992, petitioner, apparently still weak but well enough to travel by then, managed to personally appear before the clerk of court of the trial court and posted bail in the amount thus fixed. He was thereafter arraigned and in the trial that ensued, he also personally appeared and attended all the scheduled court hearings of the case. 7 The subsequent motion for reconsideration of said resolution filed twenty (20) days later on November 26, 1992 by Prosecutor Gingoyon who allegedly received his copy of the petition for admission to bail on the day after the hearing, was denied by the trial court in its omnibus order dated March 29, 1993. On October 1, 1993, or more than six (6) months later, Prosecutor Gingoyon elevated the matter to respondent Court of Appeals through a special civil action for certiorari. Thus were the resolution and the order of the trial court granting bail to petitioner annulled on November 24, 1993, in the decision now under review, on the ground that they were tainted with grave abuse of discretion. 8 Respondent court observed in its decision that at the time of petitioner's application for bail, he was not yet "in the custody of the law," apparently because he filed his motion for admission to bail before he was actually arrested or had voluntarily surrendered. It further noted that apart from the circumstance that petitioner was charged with a crime punishable by reclusion perpetua, the evidence of guilt was strong as borne out by the fact that no bail was recommended by the prosecution, for which reasons it held that the grant of bail was doubly improvident. Lastly, the prosecution, according to respondent court, was not afforded an opportunity to oppose petitioner's application for bail contrary to the requirements of due process. Hence, this appeal. Petitioner argues that, in accordance with the ruling of this Court in Santiago vs. Vasquez etc., et al., 9 his filing of the aforesaid application for bail with the trial court effectively conferred on the latter jurisdiction over his person. In short, for all intents and purposes, he was in the custody of the law. In petitioner's words, the "invocation by the accused of the court's jurisdiction by filing a pleading in court is sufficient to vest the court with jurisdiction over the person of the accused and bring him within the custody of the law." Petitioner goes on to contend that the evidence on record negates the existence of such strong evidence as would bar his provisional release on bail. Furthermore, the prosecution, by reason of the waiver by Prosecutor Abejo of any further presentation of evidence to oppose the application for bail and whose representation in court in behalf of the prosecution bound the latter, cannot legally assert

any claim to a denial of procedural due process. Finally, petitioner points out that the special civil action for certiorari was filed in respondent court after an unjustifiable length of time. On the undisputed facts , the legal principles applicable and the equities involved in this case, the Court finds for petitioner. 1. Section 1 of Rule 114, as amended, defines bail as the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearing before any court as required under the conditions specified in said Rule. Its main purpose, then, is to relieve an accused from the rigors of imprisonment until his conviction and yet secure his appearance at the trial. 10 As bail is intended to obtain or secure one's provisional liberty, the same cannot be posted before custody over him has been acquired by the judicial authorities, either by his lawful arrest or voluntary surrender. 11 As this Court has put it in a case "it would be incongruous to grant bail to one who is free." 12 The rationale behind the rule is that it discourages and prevents resort to the former pernicious practice whereby an accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements therefor. 13 Thus, inFeliciano vs. Pasicolan, etc., et al., 14 where the petitioner who had been charged with kidnapping with murder went into hiding without surrendering himself, and shortly thereafter filed a motion asking the court to fix the amount of the bail bond for his release pending trial, the Supreme Court categorically pronounced that said petitioner was not eligible for admission to bail. As a paramount requisite then, only those persons who have either been arrested, detained, or other wise deprived of their freedom will ever have occasion to seek the protective mantle extended by the right to bail. The person seeking his provisional release under the auspices of bail need not even wait for a formal complaint or information to be filed against him as it is available to "all persons" 15 where the offense is bailable. The rule is, of course, subject to the condition or limitation that the applicant is in the custody of the law. 16 On the other hand, a person is considered to be in the custody of the law (a) when he is arrested either by virtue of a warrant of arrest issued pursuant to Section 6, Rule 112, or by warrantless arrest under Section 5, Rule 113 in relation to Section 7, Rule 112 of the revised Rules on Criminal Procedure, or (b) when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities. 17in this light, the ruling, vis-a-vis the facts in Santiago vs. Vasquez, etc., et al., 18 should be explained. In said case, the petitioner who was charged before the Sandiganbayan for violation of the Anti-Graft and Corrupt Practices Act, filed through counsel what purported to be an "Urgent Ex-parte Motion for Acceptance of Cash Bail Bond." Said petitioner was at the time confined in a hospital recuperating from serious physical injuries which she sustained in a major vehicular mishap. Consequently, she expressly sought leave "that she be considered as having placed herself under the jurisdiction of (the Sandiganbayan) for purposes of the required trial and other proceedings." On the basis of said expartemotion and the peculiar circumstances obtaining in that incident, the Sandiganbayan authorized

petitioner to post a cash bail bond for her provisional liberty without need of her personal appearance in view of her physical incapacity and as a matter of humane consideration. When the Sandiganbayan later issued a hold departure order against her, she question the jurisdiction of that court over her person in a recourse before this Court, on the ground that "she neither been arrested nor has she voluntarily surrendered, aside from the fact that she has not validly posted bail since she never personally appeared before said court" In rejecting her arguments, the Court held that she was clearly estopped from assailing the jurisdiction of the Sandiganbayan for by her own representations in the urgentex parte motion for bail she had earlier recognized such jurisdiction. Furthermore, by actually posting a cash bail was accepted by the court, she had effectively submitted to its jurisdiction over her person. Nonetheless, on the matter of bail, the Court took pains to reiterate that the same cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender. In the case of herein petitioner, it may be conceded that he had indeed filed his motion for admission to bail before he was actually and physically placed under arrest. He may, however, at that point and in the factual ambience therefore, be considered as being constructively and legally under custody. Thus in the likewise peculiar circumstance which attended the filing of his bail application with the trail court, for purposes of the hearing thereof he should be deemed to have voluntarily submitted his person to the custody of the law and, necessarily, to the jurisdiction of the trial court which thereafter granted bail as prayed for. In fact, an arrest is made either by actual restraint of the arrestee or merely by his submission to the custody of the person making the arrest. 19 The latter mode may be exemplified by the so-called "house arrest" or, in case of military offenders, by being "confined to quarters" or restricted to the military camp area. It should be stressed herein that petitioner, through his counsel, emphatically made it known to the prosecution and to the trail court during the hearing for bail that he could not personally appear as he was then confined at the nearby Cagayan Capitol College General Hospital for acute costochondritis, and could not then obtain medical clearance to leave the hospital. The prosecution and the trial court, notwithstanding their explicit knowledge of the specific whereabouts of petitioner, never lifted a finger to have the arrest warrant duly served upon him. Certainly, it would have taken but the slightest effort to place petitioner in the physical custody of the authorities, since he was then incapacitated and under medication in a hospital bed just over a kilometer away, by simply ordering his confinement or placing him under guard. The undeniable fact is that petitioner was by then in the constructive custody of the law. Apparently, both the trial court and the prosecutors agreed on that point since they never attempted to have him physically restrained. Through his lawyers, he expressly submitted to physical and legal control over his person, firstly, by filing the application for bail with the trail court; secondly, by furnishing true information of his actual whereabouts; and, more importantly, by unequivocally recognizing the jurisdiction of the said court. Moreover, when it came to his knowledge that a warrant for his arrest had been issued, petitioner never made any attempt or evinced any intent to evade the clutches of the law

or concealed his whereabouts from the authorities since the day he was charged in court, up to the submission application for bail, and until the day of the hearing thereof. At the hearing, his counsel offered proof of his actual confinement at the hospital on account of an acute ailment, which facts were not at all contested as they were easily verifiable. And, as a manifestation of his good faith and of his actual recognition of the authority of trial court, petitioner's counsel readily informed the court that they were surrendering custody of petitioner to the president of the Integrated Bar of the Philippines, Misamis Oriental Chapter. 20 In other words, the motion for admission to bail was filed not for the purpose or in the manner of the former practice which the law proscribes for the being derogatory of the authority and jurisdiction of the courts, as what had happened in Feliciano. There was here no intent or strategy employed to obtain bail in absentia and thereby be able to avoid arrest should the application therefore be denied. 2. Section 13, Article III of the Constitution lays down the rule that before conviction, all indictees shall be allowed bail, except only those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. In pursuance thereof, Section 4 of Rule 114, as amended, now provides that all persons in custody shall, before conviction by a regional trial court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right. The right to bail, which may be waived considering its personal nature 21 and which, to repeat, arises from the time one is placed in the custody of the law, springs from the presumption of innocence accorded every accused upon whom should not be inflicted incarceration at the outset since after trial he would be entitled to acquittal, unless his guilt be established beyond reasonable doubt.22 Thus, the general rule is that prior to conviction by the regional trial court of a criminal offense, an accused is entitled to be released on bail as a matter of right, the present exceptions thereto being the instances where the accused is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment 23and the evidence of guilt is strong. Under said general rule, upon proper application for admission to bail, the court having custody of the accused should, as a matter of course, grant the same after a hearing conducted to specifically determine the conditions of the bail in accordance with Section 6 (now, Section 2) of Rule 114. On the other hand, as the grant of bail becomes a matter of judicial discretion on the part of the court under the exceptions to the rule, a hearing, mandatory in nature and which should be summary or otherwise in the discretion of the court, 24 is required with the participation of both the defense and a duly notified representative of the prosecution, this time to ascertain whether or not the evidence of guilt is strong for the provisional liberty of the applicant. 25 Of course, the burden of proof is on the prosecution to show that the evidence meets the required quantum. 26 Where such a hearing is set upon proper motion or petition, the prosecution must be give an opportunity to present, within a reasonable time, all the evidence that it may want to introduce before the court may resolve the application, since it is equally entitled as the accused to due process. 27 If the prosecution is denied this opportunity, there would be a denial of procedural due process, as a consequence of which the court's order in respect of the motion or petition is void. 28 At the hearing, the petitioner can rightfully cross-examine the witnesses presented by the prosecution and introduce

his own evidence in rebuttal. 29 When, eventually, the court issues an order either granting or refusing bail, the same should contain a summary of the evidence for the prosecution, followed by its conclusion as to whether or not the evidence of guilt is strong. 30 The court, though, cannot rely on mere affidavits or recitals of their contents, if timely objected to, for these represent only hearsay evidence, and thus are insufficient to establish the quantum of evidence that the law requires. 31 In this appeal, the prosecution assails what it considers to be a violation of procedural due process when the court below allowed Assistant Prosecutor Erlindo Abejo of the Regional State Prosecutor's Office to appear in behalf of the prosecution, instead of State Prosecutor Henrick P. Gingoyon who is claimed to be the sole government prosecutor expressly authorized to handle the case and who received his copy of the motion only on the day after the hearing had been conducted. Accordingly, the prosecution now insists that Prosecutor Abejo had no authority at all to waive the presentation of any further evidence in opposition to the application for bail and to submit the matter to the sound discretion of the trial court. In addition, they argue that the prosecution was not afforded "reasonable time" to oppose that application for bail. We disagree. Firstly, it is undisputed that the Office of the Regional State Prosecutor acted as the collaborating counsel, with State Prosecutor Henrick Gingoyon, in Criminal Case No. 86-39 on the basis of an authority from then Chief State Prosecutor Fernando de Leon which was sent through radio message on July 10, 1992 and duly received by the Office of the Regional State Prosecutor on the same date. This authorization, which was to be continuing until and unless it was expressly withdrawn, was later confirmed and then withdrawn only on July 12, 1993 by then Secretary of Justice Franklin M. Drilon. This was done after one Rebecca Bucag-tan questioned the authority of Regional State Prosecutor Jesus Zozobrado and State Prosecutor II Erlindo Abejo to enter their appearance as collaborating government prosecutors in said criminal case. 32 It was in fact by virtue of this arrangement that the same Prosecutor Zozobrado and Prosecutor Perseverando Arana entered their appearance as collaborating prosecutor in the previous hearing in said case. 33 Hence, on the strength of said authority and of its receipt of the notice of the hearing for bail, the Regional State Prosecutor's Office, through Prosecutor Abejo, could validly represent the prosecution in the hearing held on November 5, 1992. Secondly, although it is now claimed that Prosecutor Abejo was allegedly not familiar with the case, he nonetheless was explicitly instructed about the position of the Regional State Prosecutor's Office on the matter. Prosecutor Zozobrado, whose office received its copy of the motion on the very day when it was sent, that is, October 28, 1992, duly instructed Prosecutor Abejo to manifest to the court that the prosecution was neither supporting nor opposing the application for bail and that they were submitting the matter to its sound discretion. Obviously, what this meant was that the prosecution, at that particular posture of the case, was waiving the presentation of any countervailing evidence. When the court a quo sought to ascertain whether or not that was the real import of the submission by Prosecutor Abejo, the latter readily answered in the affirmative. The following exchanges bear this out:

PROSECUTOR ERLINDO ABEJO: I was informed to appear in this case just now Your Honor. COURT: Where is your Chief of Office? Your office received a copy of the motion as early as October 28. There is an element of urgency here. PROSECUTOR ABEJO: I am not aware of that, Your Honor, I was only informed just now. The one assigned here is State Prosecutor Perseverando Arena, Jr. who unfortunately is in the hospital attending to his sick son. I do not know about this but before I came I received an instruction from our Chief to relay to this court the stand of the office regarding the motion to admit bail. That office is neither supporting nor opposing it and we are submitting to the sound discretion of the Honorable Court. COURT: Place that manifestation on record. For the record, Fiscal Abejo, would you like to formally enter your appearance in this matter? PROSECUTOR ABEJO: Yes, Your Honor. For the government, the Regional State Prosecutor's Office represented by State Prosecutor Erlindo Abejo. COURT: By that manifestation do you want the Court to understand that in effect, at least, the prosecution is dispensing with the presentation of evidence to show that the guilt of the accused is strong, the denial . .. PROSECUTOR ABEJO: I am amenable to that manifestation, Your Honor. COURT: Final inquiry. Is the Prosecution willing to submit the incident covered by this particular motion for resolution by this court? PROSECUTOR ABEJO: Yes, Your Honor. COURT:

Without presenting any further evidence? PROSECUTOR ABEJO: Yes, Your Honor. 34 It is further evident from the foregoing that the prosecution, on the instructions of Regional State prosecutor Zozobrado, had no intention at all to oppose the motion for bail and this should be so notwithstanding the statement that they were "neither supporting nor opposing" the motion. What is of significance is the manifestation that the prosecution was "submitting (the motion) to the sound discretion of the Honorable Court." By that, it could not be any clearer. The prosecution was dispensing with the introduction of evidence en contra and this it did at the proper forum and stage of the proceedings, that is, during the mandatory hearing for bail and after the trial court had fully satisfied itself that such was the position of the prosecution. 3. In Herras Teehankee vs. Director of Prisons, 35 it was stressed that where the trial court has reasons to believe that the prosecutor's attitude of not opposing the application for bail is not justified, as when he is evidently committing a gross error or a dereliction of duty, the court, in the interest of Justice, must inquire from the prosecutor concerned as the nature of his evidence to determine whether or not it is strong. And, in the very recent administrative matter Re: First Indorsement Dated July 21, 1992 of Hon. Fernando de Leon, Chief State Prosecutor, Department of Justice; Alicia A. Baylon, City Prosecutor of Dagupan City vs.Judge Deodoro Sison, 36 the Court, citing Tucay vs. Domagas, etc., 37 held that where the prosecutor interposes no objection to the motion of the accused, the trial court should nevertheless set the application for hearing and from there diligently ascertain from the prosecution whether the latter is really not contesting the bail application. No irregularity, in the context of procedural due process, could therefore be attributed to the trial court here as regards its order granting bail to petitioner. A review of the transcript of the stenographic notes pertinent to its resolution of November 5, 1992 and the omnibus order of March 29, 1993 abundantly reveals scrupulous adherence to procedural rules. As summarized in its aforementioned order, the lower court exhausted all means to convince itself of the propriety of the waiver of evidence on the part of the prosecution. Moreover, the omnibus order contained the requisite summary of the evidence of both the prosecution and the defense, and only after sifting through them did the court conclude that petitioner could be provisionally released on bail. Parenthetically, there is no showing that, since then and up to the present, petitioner has ever committed any violation of the conditions of his bail. As to the contention that the prosecutor was not given the opportunity to present its evidence within a reasonable period of time, we hold otherwise. The records indicate that the Regional State Prosecutor's Office duly received its copy of the application for bail on the very same day that the it was filed with the trial court on October 28, 1992. Counted from said date up to the day of the hearing on November 5, 1992, the prosecution had more than one (1) week to muster such evidence as it would have wanted to adduce in that hearing in opposition to the motion. Certainly, under the circumstances, that period was more than reasonable. The fact that Prosecutor Gingoyon received his copy of the application only on

November 6, 1992 is beside the point for, as already established, the Office of the Regional State Prosecutor was authorized to appear for the People. 4. What finally militates against the cause of the prosecutor is the indubitably unreasonable period of time that elapsed before it questioned before the respondent court the resolution and the omnibus order of the trial court through a special civil action for certiorari. The Solicitor General submits that the delay of more than six (6) months, or one hundred eighty-four (184) days to be exact, was reasonable due to the attendant difficulties which characterized the prosecution of the criminal case against petitioner. But then, the certiorari proceeding was initiated before the respondent court long after trial on the merits of the case had ensued in the court below with the active participation of prosecution lawyers, including Prosecutor Gingoyon. At any rate, the definitive rule now in that the special civil action for certiorari should not be instituted beyond a period of the three months, 38 the same to be reckoned by taking into account the duration of time that had expired from the commission of the acts complained to annul the same. 39 ACCORDINGLY, the judgment of respondent Court of Appeals in CA-G.R. SP No. 32233, promulgated on November 24, 1993, annulling the resolution dated November 5, 1992 and the omnibus order dated March 29, 1993 of the Regional Trial Court of Cagayan de Oro City, as well as said respondent court's resolution of April 26, 1994 denying the motion for reconsideration of said judgment, are hereby REVERSED and SET ASIDE. The aforesaid resolution and omnibus order of the Regional Trail Court granting bail to petitioner Miguel P. Paderanga are hereby REINSTATED. SO ORDERED. G.R. No. L-65228 February 18, 1985 JOJO PASTOR BRAVO, JR., ETC., petitioner, vs. HON. MELECIO B. BORJA, ET AL., respondents.

PLANA, J.: In the Regional Trial Court of Naga City, petitioner Jojo Pastor Bravo, Jr., is charged with murder for the killing of one Ramon Abiog (Criminal Case No. 83-184). Detained in the city jail of Naga after his arrest, petitioner filed a motion for bail based on two reasons: (a) that the evidence against him is not strong in view of the retraction by Ferdinand del Rosario, one of the prosecution witnesses, of his previous statement naming petitioner as the assailant; and (b) that he is a minor of 16 years, entitled as such to a privileged mitigating circumstance under Article 68 of the Revised Penal Code which would make the murder charge against him non-capital. After a hearing during which the retracting witness (del Rosario) presented by petitioner made another turn-about and declared against the latter, respondent Judge Melecio B. Borja denied the motion for

bail on the finding that the evidence of petitioner's guilt is strong and his minority was not proved. Petitioner then filed a motion for reconsideration stating that his minority had been proved by his birth certificate which was attached to the memorandum in support of his motion for bail, showing that he was born on February 26, 1967, that his minority had never been challenged by the fiscal, and that the offense charged, as regards petitioner, is not capital because even if convicted, he could not be sentenced to death because of his minority. Again, attached to the motion for reconsideration was a duly certified copy of petitioner's birth certificate. The Fiscal opposed the motion on the ground that the evidence of guilt is strong, but did not contest the minority of petitioner. In his order of September 21, 1983, respondent Judge denied the motion for reconsideration. Failing in his bid for bail, petitioner then filed a motion with the lower court praying that he be placed in the care and custody of the Ministry of Social Services and Development (MSSD) pursuant to Article 191 of Presidential Decree No. 603 (Child and Youth Welfare Code) which provides: Care of Youthful Offender Held for Examination or Trial. A youthful offender held for physical and mental examination or trial or pending appeal, if unable to furnish bail, shall from time to time (sic) of his arrest be committed to the care of the Department of Social Welfare or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever required: Provided, That in the absence of any such center or agency within a reasonable distance from the venue of the trial, the provincial, city and municipal jail shall provide quarters for youthful offenders separate from other detainees. The court may, in its discretion upon recommendation of the Department of Social Welfare or other agency or agencies authorized by the Court, release a youthful offender on recognizance. to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required. On September 22, 1983, respondent judge denied the motion for lack of merit. Explaining the denial later, he said that the quoted Article 191 is not applicable since it could be invoked only where the minor is charged with a bailable offense, as could be gleaned from the phrase "if unable to furnish bail." On September 22, 1983, the NBI Regional Office at Naga City submitted its report, copy of which was sent to the City Fiscal of Naga. It found that it was the prosecution witness, Ferdinand del Rosario, and not the petitioner, who killed the deceased Ramon Abiog. When the murder case was next called for hearing on October 19, 1983, the defense unilaterally moved orally that the trial of petitioner be reset in order to give the City Fiscal more time to study the NBI report, but the motion was denied as dilatory. Again, on November 2, 1983, petitioner unilaterally filed with the trial court a formal Motion for Reinvestigation praying "that the proceedings be suspended and that the City Fiscal of Naga be ordered to reinvestigate this case." It does not appear what action, if any, the court has taken on this motion. Neither does it appear that the City Fiscal of Naga has taken any move to reinvestigate the case. Against this factual backdrop, petitioner has filed the instant petition for certiorari and mandamus, with two supplementary petitions, seeking the release of petitioner on bail or his transfer to the custody of the MSSD pending trial pursuant to Article 191 of PD No. 603. In view of the aforesaid NBI report, the

petition also seeks the issuance of a writ of mandamus commanding respondent Judge to remand the case to the City Fiscal of Naga for reinvestigation. The first question to be resolved is whether petitioner is entitled to bail as a matter of right. Under the Constitution, "all persons, except those charged with capital offenses when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties." (Article IV, Section 18.) Generally, therefore, bail is a matter of right before conviction, unless the accused is charged with a capital offense and the evidence of guilt is strong. The charge against petitioner is murder qualified by treachery and attended by two aggravating circumstances: evident premeditation and nocturnity. Punishable by reclusion temporal in its maximum period to death, the crime is therefore a capital offense. The petitioner however submits that even assuming that the evidence of guilt against him is strong, the charge of murder, as to him who is only 16 years old, cannot be capital because the death penalty cannot be imposed on account of his minority which entitles him to a penalty reduction of one degree. In effect, under petitioner's submission, the test to determine whether the offense charged is capital, is the penalty to be actually imposed on him in view of the attendant circumstances. Petitioner's posture hardly finds support in the law. Under Section 5 of Rule 114 of the Rules of Court, a capital offense is "an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death." It is clear from this provision that the capital nature of an offense is determined by the penalty prescribed by law, with reference to which it is relatively easy to ascertain whether the evidence of guilt against the accused is strong. Moreover, when the Constitution or the law speaks of evidence of guilt, it evidently refers to a finding of innocence or culpability, regardless of the modifying circumstances. To allow bail on the basis of the penalty to be actually imposed would require a consideration not only of the evidence of the commission of the crime but also evidence of the aggravating and mitigating circumstances. There would then be a need for a complete trial, after which the judge would be just about ready to render a decision in the case. As perceptively observed by the Solicitor General, such procedure would defeat the purpose of bail, which is to entitle the accused to provisional liberty pending trial. Nevertheless, where it has been established without objection that the accused is only 16 years old, it follows that, if convicted, he would be given "the penalty next lower than that prescribed by law," which effectively rules out the death penalty. The Constitution withholds the guaranty of bail from one who is accused of a capital offense where the evidence of guilt is strong. The obvious reason is that one who faces a probable death sentence has a particularly strong temptation to flee. This reason does not hold where the accused has been established without objection to be a minor who by law cannot be sentenced to death.

But respondent judge claims that petitioner has not proved his minority. This is inaccurate. In his motion for bail, petitioner alleged that he was a minor of 16 and this averment was never challenged by the prosecution. Subsequently, in his memorandum in support of the motion for bail, petitioner attached a copy of his birth certificate. And finally, after respondent Judge had denied the motion for bail, petitioner filed a motion for reconsideration, attaching thereto a certified true copy of his birth certificate. Respondents Judge however refused to take cognizance of petitioner's unchallenged minority allegedly because the certificate of birth was not offered in evidence. This was error because evidence of petitioner's minority was already a part of the record of the case. It was properly filed in support of a motion. It would be a needless formality to offer it in evidence. Respondent Judge therefore acted with grave abuse of discretion in disregarding it. Evidence on motion. When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (Rules of Court, Rule 133, Section 7.) It results that petitioner is entitled to bail as a matter of right, which makes it unnecessary to decide whether he, being a minor, is entitled to be placed pending trial in the care and custody of the MSSD pursuant to Article 191 of P.D. No. 603. Turning to the reinvestigation aspect of the petition, the plea therefor must be addressed to the City Fiscal of Naga, who has direction and control of the criminal prosecution and who is the primary official called upon to evaluate the evidence, ascertain the existence of a prima facie case and determine who should be criminally indicted. In case of unjustified refusal by the City Fiscal to conduct a reinvestigation, the proper recourse is to appeal to the Minister of Justice who exercises control and supervision over fiscals. WHEREFORE, the orders of respondent Judge denying bail to petitioner are set aside. In the interest of dispatch, bail for petitioner is fixed at P15,000.00 and his release is ordered upon the posting thereof and its approval by the trial judge, unless petitioner is held for some other cause. The petition for mandamus to compel reinvestigation of the case is denied. This decision is immediately executory. JOSELITO V. NARCISO, petitioner, vs. FLOR MARIE STA. ROMANA-CRUZ, respondent. DECISION PANGANIBAN, J.: When the penalty prescribed by law is death, reclusion perpetua or life imprisonment, a hearing must be conducted by the trial judge before bail can be granted to the accused. Absent such hearing, the order granting bail is void for having been issued with grave abuse of discretion. In parricide, the accused cannot be considered an offended party just because he was married to the deceased. In the interest of justice and in view of the peculiar circumstances of this case, the sister of the victim may be deemed to be an "offended party"; hence, she has the legal personality to challenge the void order of the trial court. Jlexj

The Case We invoke the foregoing principles in rejecting the Petition for Review on Certiorari before us, assailing the February 26, 1998 Decision[1] and the June 29, 1998 Resolution of the Court of Appeals (CA),[2] which reversed and set aside the Order of Executive Judge Pedro T. Santiago of the Regional Trial Court (RTC) of Quezon City, Branch 101, in Criminal Case No. Q-91-24179 entitled "People of the Philippines v. Joselito V. Narciso." S-l-x The dispositive portion of the challenged CA Decision reads: Esmmis "WHEREFORE, the petition for certiorari is hereby GRANTED and the order granting bail is annulled and set aside."[3] The assailed Resolution, on the other hand, denied petitioners Motion for Reconsideration. Lexjuris The full text of the August 3, 1992 RTC Order, which the Court of Appeals annulled and set aside, reads as follows: "Accused who is present filed thru counsel a Motion to Allow Accused Joselito V. Narciso to Post Bail. Me-sm "Considering that the Presiding Judge of Branch 83 who is hearing this case is on leave and the Pairing Judge Honorable Salvador Ceguerra is no longer within the premises, there being no objection by the City Prosecutor Candido Rivera to the accused posting a cashbond of P150,000.00, the undersigned in his capacity as Executive Judge hereby approves the same."[4] The Facts of the Case The undisputed antecedents of the case were summarized by the Court of Appeals as follows: Scmis "1) After conducting a preliminary investigation on the death of Corazon Sta. Romana-Narciso, wife of Joselito Narciso, Asst. City Prosecutor Myrna Dimaranan Vidal of Quezon City recommended and thereafter filed, the information for parricide against Joselito Narciso on November 13, 1991, with the Regional Trial Court of Quezon City, docketed therein as Criminal Case No. Q-91-24179. Xsc "2) Joselito Narciso thereafter asked for a review of the prosecutors resolution *before+ the Department of Justice (DOJ) which was however denied. Joselito Narciso moved for reconsideration, which was still denied by the DOJ. "3) Failing before DOJ, the accused on February 6, 1992, filed in Criminal Case No. Q-91-24179 an "Omnibus Motion for Reinvestigation and to Lift the Warrant of Arrest". The Motion was granted and the case was set for reinvestigation by another prosecutor. Esmso "4) Assistant Prosecutor Lydia A. Navarro, to whom the case was assigned for reinvestigation, found no reason to disturb the findings of the previous prosecutor and recommended the remand of the case to the court for arraignment and trial.

"5) On August 3, 1992, accused filed an Urgent Ex-Parte (Ex Abundanti Cautela) to Allow Accused Joselito Narciso to Post Bail. The Public Prosecutor registered no objection and said motion was granted on the same day, allowing accused to post bail at P150,000.00. xxxxxxxxx "6) On August 14, 1992, the private prosecutor representing private complainant Flor Marie Sta. Romana-Cruz, a sister of accuseds deceased wife, filed an "Urgent Motion to Lift Order Allowing Accused To Post Bail. "7) Accused objected to the aforesaid urgent motion by filing a Motion to Expunge 1) Notice of Appearance of the Private Prosecutor and the 2) Urgent Motion to Lift Order Allowing Accused to Post Bail". "8) Arraignment was conducted on September 14, 1992 and the case was set for hearing on November 9, 16, 23, December 2, 9, 1992, January 6, 13, 20, 27, 1993, February 3, 7, 10 and 24 1993. "9) On October 15, 1992, private complainant through counsel filed her opposition to the motion to expunge [filed by] accused. "10) On November 3, 1992 private complainant moved for the postponement of the trials set on November 9, 16 and 23 and the subsequent hearings thereon pending the resolution of their Urgent Motion to Lift Order Allowing Accused To Post Bail. "11) On November 9, 1992, the court issued the first assailed order stating therein to wit: ORDER Counsel for the accused, upon being informed of the motion for postponement dated November 3, 1992 filed by the private complainant, through counsel, offered no objection to the cancellation of todays trial but not the trial set on November 16, 23 and December 2 and 9, 1992 for the reason that the trial can proceed independently of the pending Urgent Motion to Lift Order Allowing the Accused to Post Bail. WHEREFORE, the trial set for today is hereby cancelled and re-set on November 16, 1992 at 10:30 oclock in the morning, as previously scheduled. SO ORDERED. "12) On November 16, 1992, the court cancelled the hearing upon motion of the public prosecutor because no prosecution witness was available. "13) [I]n the hearing of November 23, 1992, the private prosecutor again moved for postponement because of the pendency of his Motion to Lift Order Allowing Accused to Post Bail. On the same date, the court issued the second assailed order which reads: ORDER

On motion of the Asst. City Prosecutor, for the reason that there is no showing in the record that the private complainant was duly notified, hence there is no available witness this morning, the trial set for today is hereby cancelled and reset on December 2 and 9, 1992 both at 10:30 oclock in the morning, as previously scheduled. Let a subpoena be issued to complainant Corazon *sic+ Sta. Romana-Narciso, the same to be served personally by the Deputy Sheriff/Process server of this Court. The accused is notified of this Order in open court. SO ORDERED. "Not obtaining any resolution on her Motion To Lift Order Allowing Accused to Post Bail, private complainant filed this petition [before the CA]." As earlier mentioned, the Court of Appeals granted private respondents Petition for Certiorari. Hence, this recourse to us via Rule 45 of the Rules of Court.[5] The Issues Petitioner imputes to the Court of Appeals this alleged error: Korte "The Respondent Court of Appeals has erroneously decided questions of substance, in a manner not in accord with law, the Rules of Court and applicable jurisprudence, as exemplified in the decisions of this Honorable Court, when it reversed and set aside the order of the Regional Trial Court of Quezon City which granted the petitioner his constitutional right to bail, considering the absence of strong evidence or proof of his guilt, and more especially when the public prosecutors, who have direct control of the proceedings and after assessment of the evidence, have themselves recommended the grant of bail."[6] Respondent, on the other hand, poses the following issues:[7] "A Whether or not the Respondent Court of Appeals correctly ruled that the Order of the Regional Trial Court which granted bail to the petitioner is substantially and procedurally infirm notwithstanding the absence of any opposition from the public prosecutor. "B Whether or not the private respondent has the legal personality to intervene in the present criminal case." To resolve this case, the Court believes that two issues must be taken up; namely, (1) the validity of the grant of bail and (2) private respondents standing to file the Petition before the CA. Court The Courts Ruling

The Petition is devoid of merit. Esmsc First Issue: Validity of the Grant of Bail Section 13, Article III of the Constitution provides: "All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required." Furthermore, Section 7, Article 114 of the Rules of Court, as amended, also provides: "No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution." Rtc spped Although petitioner was charged with parricide which is punishable with reclusion perpetua, he argued before the CA that he was entitled to bail because the evidence of his guilt was not strong. He contended that the prosecutor's conformity to his Motion for Bail was tantamount to a finding that the prosecution evidence against him was not strong. Calr-ky The Court of Appeals ruled, however, that there was no basis for such finding, since no hearing had been conducted on the application for bail -- summary or otherwise. The appellate court found that only ten minutes had elapsed between the filing of the Motion by the accused and the Order granting bail, a lapse of time that could not be deemed sufficient for the trial court to receive and evaluate any evidence. We agree with the CA. Stressing in Basco v. Rapatalo[8] that the judge had the duty to determine whether the evidence of guilt was strong, the Court held: Supreme "When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. This discretion by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross examination and to introduce his own evidence in rebuttal. xxxxxxxxx "Consequently, in the application for bail of a person charged with a capital offense punishable by death, reclusion perpetua or life imprisonment, a hearing, whether summary or otherwise in the discretion of the court, must actually be conducted to determine whether or not the evidence of guilt against the accused is strong. A summary hearing means such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail. On such hearing, the court does

not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross examination. If a party is denied the opportunity to be heard, there would be a violation of procedural due process." (Emphasis supplied.) Jurisprudence is replete with decisions compelling judges to conduct the required hearings in bail applications, in which the accused stands charged with a capital offense. The absence of objection from the prosecution is never a basis for the grant of bail in such cases, for the judge has no right to presume that the prosecutor knows what he is doing on account of familiarity with the case. "Said reasoning is tantamount to ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt of the accused is strong. Judicial discretion is the domain of the judge before whom the petition for provisional liberty will be decided. The mandated duty to exercise discretion has never been reposed upon the prosecutor."[9] Imposed in Baylon v. Sison[10] was this mandatory duty to conduct a hearing despite the prosecution's refusal to adduce evidence in opposition to the application to grant and fix bail. We quote below the pertinent portion of the Decision therein: Sjcj "The importance of a hearing has been emphasized in not a few cases wherein the Court ruled that even if the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it, against the accused." In Gimeno v. Arcueno Sr.,[11] the Court also held: "The grant of bail is a matter of right except in cases involving capital offenses when the matter is left to the sound discretion of the court. That discretion lies, not in the determination whether or not a hearing should be held but in the appreciation and evaluation of the prosecutions evidence of guilt against the accused. x x x A hearing is plainly indispensable before a judge can aptly be said to be in a position to determine whether the evidence for the prosecution is weak or strong." And in Concerned Citizens v. Elma,[12] the Court ruled: Chief "It is true that the weight of the evidence adduced is addressed to the sound discretion of the court. However, such discretion may only be exercised after the hearing called to ascertain the degree of guilt of the accused for the purpose of determining whether or not he should be granted liberty." Basco v. Rapatalo[13] summarized several cases[14] that emphasized the mandatory character of a hearing in a petition for bail in a capital case. It enunciated the following duties of the trial judge in such petition: Esm "(1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court as amended;

"(2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Sections 7 and 8, supra); "(3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution (Baylon v. Sison, supra); "(4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. (Section 19, supra). Otherwise, petition should be denied." The Court added: "The above-enumerated procedure should now leave no room for doubt as to the duties of the trial judge in cases of bail applications. So basic and fundamental is it to conduct a hearing in connection with the grant of bail in the proper cases that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or awareness thereof." Ky-calr Additionally, the courts grant or refusal of bail must contain a summary of the evidence for the prosecution, on the basis of which should be formulated the judge's own conclusion on whether such evidence is strong enough to indicate the guilt of the accused. The summary thereof is considered an aspect of procedural due process for both the prosecution and the defense; its absence will invalidate the grant or the denial of the application for bail.[15] Clearly, the grant of bail by Executive Judge Santiago was laced with grave abuse of discretion and the Court of Appeals was correct in reversing him. Ky-le Second Issue: Respondent's Standing to File the Petition Petitioner attacks respondents legal standing to file the Petition for Certiorari before the appellate court, maintaining that only the public prosecutor or the solicitor general may challenge the assailed Order. He invokes People v. Dacudao,[16] which ruled: "x x x A private prosecutor in a criminal case has no authority to act for the People of the Philippines before this Court. It is the Governments counsel, the Solicitor General who appears in criminal cases or incidents before the Supreme Court. At the very least, the Provincial Fiscal himself, with the conformity of the Solicitor General, should have raised the issue (of whether or not the prosecution was deprived of procedural due process on account of the grant of bail to the accused without any hearing on the motion for bail) before us, instead of the private prosecutor with the conformity of the Assistant Provincial Fiscal of Cebu." He also cites Republic v. Partisala[17] which held as follows: Sda adsc "We make it known that only the Solicitor General can bring or defend actions on behalf of the Republic of the Philippines. Henceforth actions filed in the name of the Republic of the Philippines if not initiated by the Solicitor General will be summarily dismissed." Missdaa

Citing the "ends of substantial justice," People v. Calo,[18] however, provided an exception to the above doctrines in this manner: "While the rule is, as held by the Court of Appeals, only the Solicitor General may bring or defend actions on behalf of the Republic of the Philippines, or represent the People or the State in criminal proceedings pending in this Court and the Court of Appeals (Republic vs. Partisala, 118 SCRA 320 [1982]), the ends of substantial justice would be better served, and the issues in this action could be determined in a more just, speedy and inexpensive manner, by entertaining the petition at bar. As an offended party in a criminal case, private petitioner has sufficient personality and a valid grievance against Judge Adaos order granting bail to the alleged murderers of his (private petitioners) father. "In Paredes vs. Gopengco, 29 SCRA 688 (1969), this Court ruled that the offended parties in criminal cases have sufficient interest and personality as "person(s) aggrieved" to file the special civil action of prohibition and certiorari under Sections 1 and 2 of Rule 65 in line with the underlying spirit of the liberal construction of the Rules of Court in order to promote their object, thus: Furthermore, as offended parties in the pending criminal case before petitioner judge, it cannot be gainsaid that respondents have sufficient interest and personality as person(s) aggrieved by petitioner judges ruling on his non-disqualification to file the special civil action under sections 1 and 2 of Rule 65. Recently, in line with the underlying spirit of a liberal construction of the Rules of Court in order to promote their object, as against the literal interpretation of Rule 110, section 2, we held, overruling the implication of an earlier case, that a widow possesses the right as an offended party to file a criminal complaint for the murder of her deceased husband." (Id., p. 699) The ends of substantial justice indeed require the affirmation of the appellate courts ruling on this point. Clearly, the assailed Order of Judge Santiago was issued in grave abuse of discretion amounting to lack of jurisdiction. A void order is no order at all.[19] It cannot confer any right or be the source of any relief. This Court is not merely a court of law; it is likewise a court of justice. Xlaw To rule otherwise would leave the private respondent without any recourse to rectify the public injustice brought about by the trial court's Order, leaving her with only the standing to file administrative charges for ignorance of the law against the judge and the prosecutor. A party cannot be left without recourse to address a substantive issue in law. Moreover, we agree with the Office of the Solicitor General that "it is too late in the day for the petitioner to challenge the legal personality of private respondent considering that it was never disputed by [him] during the preliminary investigation of the case, in his appeal to the Department of Justice and during the reinvestigation of the case."[20] Corollary to the question of standing, petitioner submits that even if the exception were made to apply, private respondent is not an "offended party" who is granted the right to challenge the assailed RTC Order. He maintains that only the compulsory heirs of the deceased, who are the accused himself and his minor child, may file the instant action. We disagree. Sclex

It should be remembered that the crime charged against the private respondent is parricide; hence, the accused cannot be regarded as an offended party. That would be a contradiction in terms and an absurdity in fact. Nor can one expect the minor child to think and to act for himself. Hence, we rule that in view of the peculiar circumstances of this case, the sister of the deceased is a proper party-litigant who is akin to the "offended party," she being a close relative of the deceased. There is no closer kin who may be expected to take up the cudgels of justice for the deceased. WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against petitioner. Sclaw SO ORDERED. VILLASEOR VS. HON. ABAO, ET ALSANCHEZ, September 29, 196 NATURE ORIGINAL ACTION in the Supreme Court. Certiorari. FACTS -Petitioner, a mere government employee, earningbut a monthly salary, of P210.00, and the solebreadwinner of a family of five, was charged with themurder of a Boac police sergeant. He was admittedto a P60k bail which was reduced to P40k. Thepetitioner on May 29 posted a property bond and wasset at provisional liberty.-However, respondent Provincial Fiscal amended theinformation, now accusing the petitioner with DirectAssault Upon an Agent of a Person in Authority withMurder" before the arraignment on the murdercharge. So on August 7, respondent judge cancelledthe petitioners bond and ordered his immediatearrest.-On September 9 upon petitioners motion toreconsider, the respondent judge resolved to admitpetitioner to bail provided he puts up a cash bond of P60k.-On September 15, on petitioners motion thatoriginal bond previously given be reinstated,respondent judge resolved to fix "the bond anew inreal property in the amount of P60,000, but to beposted only by residents of the province of Marinduque actually staying, therein" with propertieswhich "must be in the possession and ownership of said residents for five years."-On October 1, petitioner filed a prayer for preliminjunction to SC, seeking to set aside respondent judge orders of August 7, September 9 and 15, andto reinstate the bail bond approved on May 29(original bond), charging the respondent judge of having acted w/o and/or in excess of his jurisdictionand w/grave abuse of discretion, and w/ violation of the Consti and the ROC in issuing the disputed orders-Oct 3: the Court issued a writ of preliminaryinjunction upon a P1k bond.-Nov 5: SC allowed continuation of the proceedings of the criminal case to avoid delay in its prosecution. ISSUES 1. WON the orders of August 7 and 9 should be setaside2. WON THE P60K bond fixed by respondent judgetransgress the constitutional injunction that"(e)xcessive bail shall not be required?3. WON the

condition that the property bond beposted only by "residents of the province of Marinduque actually staying therein" is within thepower of the respondent judge4. WON the requirement that properties to be offeredas bond must be "in the possession and ownership of the sureties for at least five years is within thepower of the respondent judge HELD1. NO NEED Ratio A rule of ancient respectability is that it is notthe function of a court of justice to furnish answers topurposeless questions that no longer exist. Reasoning The said orders were replaced by thelast order of September 15, 1964, by virtue of whichthe cash bond required was reverted back toproperty bond. The two orders of August 7 andSeptember 9, 1964 thus became functus offcio. 2. NO Ratio the principal factor considered, to thedetermination of which most other factors aredirected, is the probability of the appearance of theaccused, or of his flight to avoid punishment. Reasoning Guidelines in fixing bail: (1) ability of theaccused to give bail; (2)) nature of the offense; (3)penalty for the offense charged; (4) character andreputation of the accused; (5) health of the accused;(6) character and strength of the evidence; (7)probability of the accused appearing at trial; (8)forfeiture of other bonds; (9) whether the accusedwas a fugitive from justice when arrested; and (10) if the accused is under bond for appearance at trial inother cases.Section 1, Rule 114, Rules of Court (definitionof bail): "the security required and given for therelease of a person who is in the custody of the law,that he will appear before any court in which hisappearance may be required as stipulated in the bailbond or recognizance."-Circular 47 of the Department of Justice, reiteratedin Circular 48, directed prosecuting attorneys torecommend bail at the rate of P2,000.00 per year of imprisonment, corresponding to the medium periodof the penalty prescribed for the offense charged,unless circumstances warrant a higher penalty. Here,petitioner is charged with a capital offense, directassault upon an agent of a person in authority withmurder. A complex crime, it may call for theimposition of capital punishment. 3. YES Ratio

Bond A.M. No. RTJ-93-936 September 10, 1993 ALBINA BORINAGA, complainant, vs. JUDGE CAMILO E. TAMIN, Regional Trial Court, Branch 23, Molave, Zamboanga del Sur, respondent.

REGALADO, J.: In a sworn letter-complaint 1 dated November 20, 1992 filed by Albina Borinaga, herein respondent Judge Camilo E. Tamin of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 was charged with grave incompetence and ignorance of the law in connection with Criminal Case No. 92-10-300 for murder, entitled "People vs. Antonio Ruaya, et al.," which is now pending before said court. On January 26, 1993, this Court required respondent judge to file his comment and, upon receipt thereof, the matter was referred to the Office of the Court Administrator for evaluation, report and recommendation. On July 28, 1993, Deputy Court Administrator Juanito A. Bernad submitted a memorandum 2 with the corresponding evaluation and recommendation, duly approved by the Court Administrator. The records show that an amended criminal complaint for murder 3 dated March 4, 1992, or the killing of herein complainant's husband, Regino Borinaga, was filed by the Chief of Police of Dumingag, Zamboanga del Sur against Antonio Ruaya, alias Tony Ruaya; Roberto J. Rada, alias Totoy; Edwin Rada, alias Negger; and Jojo Valenzuela before the 27th Municipal Circuit Trial Court of Dumingag-Mahayag, Zamboanga del Sur, for preliminary investigation. It appears that while the case was pending with the said lower court, a petition for bail 4 dated March 25, 1992 was filed by one of the accused, Antonio Ruaya, before respondent Judge Camilo E. Tamin in Branch 23 of the Regional Trial Court of Molave where it was docketed as Special Civil Case No. 9250,005. In said petition, accused Ruaya averred that he was a detention prisoner at the Municipal Jail of Dumingag, Zamboanga del Sur; that he was charged with murder; that no bail was fixed by the investigating judge who issued a warrant of arrest against him; that he had waived the second stage of the preliminary investigation, with a reservation to challenge the criminal action against him; and that the evidence of guilt against him was not strong, hence he was entitled to bail as a matter of right. Accused Ruaya prayed that the bail be fixed at P20,000.00. In an order 5 dated March 25, 1992, respondent judge ordered the public prosecutor "to appear on March 30, 1992 at 8:30 in the morning to present evidence that the guilt of the petitioner for the crime charged (is) strong." At the scheduled hearing, the public prosecutor failed to appear, by reason of which respondent judge issued an order 6 dated March 30, 1992, granting bail to accused Ruaya in the amount of P20,000.00 and holding that:

Under Section 13 of Article III of our Constitution it (is) provided that "All persons, except those charged with offenses punishable by Reclusion Perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties." Under this provision of law, if the prosecutor fails to present evidence that the guilt of the accused is strong, then the accused would be entitled to the constitutional right to bail. No evidence have (sic) been introduced by the prosecution to prove that the guilt of the accused of the crime charged is strong. Necessarily, this court find (sic) that the accused is entitled to bail under Section 13, Article III of our Constitution. WHEREFORE, finding that the accused has the right to bail, the provisional liberty of the accused is set at P20,000.00 bail (sic) as prayed for in the petition. On the same day, March 30, 1992, Judge Dionisio C. Arriesgado of the 27th Municipal Circuit Trial Court of Dumingag-Mahayag, who conducted the preliminary investigation, issued a resolution recommending the filing of an information for murder against, among others, Antonio Ruaya, after said accused failed to file his counter-affidavit and other evidence in his defense. The resolution was affirmed by the Provisional Prosecutor, as a consequence of which an information for murder was later filed against all the accused with no bail recommended. Subsequently, the public prosecutor, together with complainant's counsel, filed a "Motion to Cancel Bailbond (sic) and to Arrest the Accused," on the ground that said accused is charged with a capital offense, the evidence of guilt is strong, and no bail was recommended in the information. However, on October 7, 1992, respondent Judge issued an order denying said motion without conducting a hearing thereon. In his comment, wherein he essayed his position on the controversy and which we quote at length to demonstrate his line of thought and mode of ratiocination, respondent judge averred: 1. That on March 25, 1992, accused Antonio Ruaya filed a petition for bail with the court of respondent in SPL Civ. Case No. 40,013 (sic), a true copy of which, together with the annexes, are hereto attached as Annexes "1" to "1-I", based on the ground that the evidence of guilt is not strong. 2. That on the date of receipt of said petition, the respondent issued an order, a true copy whereof is attached as annex "2", requiring the public prosecutor to appear on March 30, 1992 at 8:30 in the morning to present evidence that the guilt of the petitioner-accused for the crime charged is strong. A copy of this order was actually received by the Office of the Public Prosecutor on March 27, 1992. The respondent also noted that the office of the Public Prosecutor was likewise served with a copy of the said petition for bail, on March 25, 1992 by the petitioner-accused; 3. That on March 30, 1992, at the hearing of the petition for bail, the Public Prosecutor did not appear. It did not also send any public prosecutor, despite the fact that the office of the Provincial Prosecutor of Zamboanga del Sur had plenty of public prosecutors. Neither was there also any request to reset the hearing of the petition for bail to another date;

4. That for failure to present any evidence of guilt against the petitioner-accused, the respondent issued his order, dated March 30, 1992, a true copy of which is hereto attached as annex "3", finding that the petitioner-accused has the constitutional right to bail, and set the bail bond for the provisional liberty at P20,000, as prayed for in the petition; 5. That on the same day, March 30, 1992, the petitioner-accused posted a cash bond of P20,000 for his provisional liberty; 6. That before proceeding further with his comment, the respondent would like first to state the following relevant facts: 6.1) That the accused Antonio Ruaya has not jump (sic) bail but has been present in court every time his case is called and is asking for a speedy hearing of the criminal charge against him; 6.2) The the only evidence against the accused Antonio Ruaya is the extra-judicial statement of his coaccused Roberto J. Rada, alias "Totoy" who, when duly arraigned in open court with the assistance of counsel, entered a plea of not guilty; 6.3) That as the co-accused Roberto J. Rada, cannot be compelled to testify in court, the prosecutor (both the public and private prosecutor) admitted in open court that the prosecution does not have any admissible evidence against the accused Antonio Ruaya; 6.4) That the co-accused Roberto J. Rada, the only witness against the accused Antonio Ruaya, is a prisoner convicted for life for the commission of robbery with homicide (a crime involving moral turpitude) in Valencia, Bukidnon, and presently serving sentence at the Davao Prison and Penal Farm, Panabo, Davao del Norte; 6.5) That the respondent is particularly wary of uncorroborated statements of prisoners, specially of those convicted for life, because it is notoriously easy to let a prisoner sign any document for a fee as low as P100; 6.6) That considering the prevailing depressed economic condition in his judicial district, the respondent has adopted as a standard for granting bail at the rate of P1,000 for every year of probable imprisonment for common crimes, except when the offenses involved kidnapping for ransom, rebellion and prohibited drugs, in which cases, the respondent set the bail bond at P10,000 for every probable years (sic) of imprisonment. The respondent has consistently adhered to this standard in other cases situated, which standard is also followed by other Regional Trial Courts in the area; 6.7) That co-accused Edwin Rada, alias "Negger", subsequently also filed a similar petition for bail which was not opposed by the prosecution, and so the respondent likewise granted bail to said accused, also in the amount of P20,000; 7. That when the petition for bail was filed by accused Ruaya with the court of the respondent, the said accused has already waived his right to the second stage of the preliminary investigation, leaving

nothing further to be done by the municipal trial court but the performance of the ministerial duty to forward the case to the office of the Provincial Prosecutor with its recommendations; 8. That as alleged in the ninth paragraph of the letter-complaint, the case against the accused Ruaya was forwarded to the Office of the Provincial Prosecutor on March 30, 1992, with the recommendation to file an information for murder against said accused. In other words, the case against accused Ruaya was no longer pending preliminary investigation in the municipal court on March 30, 1992, when the respondent granted bail to said accused in his order on the same day (Annex "3"); 9. That the prosecution is making much of its argument in paragraph 4 and 9 of the complaint that the respondent granted bail when the case against the accused Ruaya was "still under preliminary investigation" in the Municipal Trial Court. The prosecution was given the opportunity to put up said argument on March 30, 1992 when it was ordered by the respondent to appear and present evidence that the guilt of the accused was strong. But despite due notice, the prosecution did not appear and thereby forfeit (sic) the opportunity to invoke said argument. The failure of the prosecution to invoke the aforesaid argument at the proper opportunity given to it constitute (sic) a waiver on its part to invoke the said argument and it is legally already under estoppel to rely on the same; 10. That not only did the prosecution not file a written opposition to, or a request to postpone the hearing of the application for bail, it did not even honor the hearing of the petition with its presence, despite the fact, that there are plenty of prosecutors in the office of the Provincial Prosecutor. Clearly, the prosecution was remissed (sic) in the performance of its duty and now it is asking the respondent to be punished because it (prosecution) failed to do its duty properly; 11. That it is now too late and unfair for the prosecution to invoke the argument that the respondent granted bail when the case was still under preliminary investigation in the lower court. It is too late because the prosecution is under estoppel and has already effectively waived to invoke (sic) said argument when it chose not to appear in the hearing of the petition for bail despite due notice given to it. The said argument is clearly an afterthought and the prosecution should be the one to suffer the consequences of its own negligence and not pass the matter unfairly to the respondent. It is unfair, because after the court has conferred upon the accused the right to bail at the proper hearing with due notice, the right to bail becomes thereafter a vested constitutional right which is already beyond the power and authority of the respondent to recall unless there is a violation of the condition of the bail. The respondent, therefore, cannot recall the right already vested, even if he wants to, without violating the right of the accused to due process. The prosecution did not then give the respondent an opportunity to rule upon said argument at the proper time before the right to bail becameirrevocably vested upon (sic) the accused. The actuations of the prosecution is (sic) nothing else but laying (sic) in ambush at and stabbing the respondent at the back after the prosecution neglected to perform its duty properly. 12. That contrary to the misinterpretation in paragraph 8 of the complaint, the MOTION TO CANCEL BAILBOND AND TO ARREST THE ACCUSED, dated September 22, 1992 was properly heard by the respondent on September 22, 1992, and the prosecution even submitted its MEMORANDUM, dated

October 5, 1992. However, since the motion involved purely a question of law, particularly, as to whether or not, the right to bail given to an accused charged for murder, pursuant to the provisions of sections 5, 6, 7 and 8 of Rule 114 of the Rules, can still be recalled by the court after its conferral, the respondent resolved the same in the negative under its order of October 7, 1992, and which is attached as Annex "A" to the instant complaint; 13. That judicial remedy exists to correct any error of judgment committed by the respondent; 14. That it is unkind for the counsel of the complaint (sic) to make the gratuitous, barb (sic) and snipping (sic) remark that the respondent is the counsel of the accused. Respondent vehemently denies it. The respondent only acted in accordance with what he then saw as the right and proper thing to do under the circumstances. (Emphasis supplied.) 7 The 1987 Constitution provides that all persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong shall, before conviction, be bailable by sufficient sureties or be released on recognizance as may be provided by law. Corollarily, the Rules of Court, under Section 3, Rule 114 thereof, provides that all persons in custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. As now revised in the 1985 Rules of Criminal Procedure and provided in Rule 114 thereof, the rules on availability of bail to an accused may be restated as follows: 1. Admission to bail is a matter of right at any stage of the action where the charge is not for a capital offense or is not punishable by reclusion perpetua. 8 2. Regardless of the stage of the criminal prosecution, no bail shall be allowed if the accused is charged with a capital offense or of an offense punishable by reclusion perpetua and the evidence of guilt is strong; 9 3. Even if a capital offense is charged and the evidence of guilt is strong, the accused may still be admitted to bail in the discretion of the court if there are strong grounds to apprehend that his continued confinement will endanger his life or result in permanent impairment of health, 10 but only before judgment in the regional trial court; and 4. No bail shall be allowed after final judgment, unless the accused has applied for probation and has not commenced to serve sentence, 11 the penalty and offense being within the purview of the probation law. On the foregoing bases, it is evident that bail is a matter of discretion where the accused is charged with a capital offense or an offense punishable by reclusion perpetua and the evidence of guilt is strong. This precept gains added significance from the fact that the situation it envisages determines the particular court where an application for bail should be filed.

Section 14 of Rule 114 pertinently provides: Sec. 14. Bail, where filed. (a) Bail in the amount fixed may be filed with the court where the case is pending, or, in the absence or unavailability of the judge thereof, with another branch of the same court within the province or city. If the accused is arrested in a province, city or municipality other than where the case is pending, bail may be filed also with any regional trial court of said place, or, if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein. (b) Whenever the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application therefor may be filed only in the particular court where the case is pending whether for preliminary investigation, trial, or on appeal. (c) Any person in custody who is not yet charged in court may apply for bail with any court in the province, city or municipality where he is held. (Emphasis ours.) Paragraph (a) allows the accused to post bail in certain specified courts, other than that where his case is pending, under the circumstances stated therein. On the other hand, paragraph (c) allows the detainee to post bail with any court in the province, city or municipality where he is held, if no complainant or information has as yet been filed against him. The situations contemplated under these two provisions of the rules clearly do not obtain in the case at bar. In the present case, accused Ruaya, who applied for bail, was charged with murder in an amended complaint filed before the municipal circuit trial court where he was named as the mastermind, which in all probability is the reason why no bail was recommended by the investigating judge who issued the warrant of arrest against him, in addition to the fact that murder is a capital offense punishable by reclusion perpetua. Perforce, bail in this case is a matter of discretion and the application therefor should have been filed in the court where the preliminary investigation was then pending, that is, before the Municipal Circuit Trial Court of Dumingag-Mahayag, Zamboanga del Sur, pursuant to paragraph (b), Section 14 of Rule 114 above quoted. The reason for the rule is that the court wherein the case against the accused is pending is assumed to be in a better position to pass upon the propriety and conditions for granting bail to the accused, since it is more conversant with the facts of said case and the representations of the prosecution therein. Furthermore, should the accused jump bail, the primary responsibility rests with the court where his case is pending. Although, as alleged by respondent judge, the order granting the petition for bail was issued on the same day that the preliminary investigation was supposedly terminated in the lower court, this did not cure the infirmity which attended the issuance thereof. Of greater import is the fact that the petition for bail was filed with the regional trial court, as a so-called "special civil case," while the preliminary investigation was still pending before the municipal circuit trial court. Hence, respondent judge had no jurisdiction to entertain the same, as the situation of the accused definitely did not fall under any of those contemplated in paragraphs (a) and (c), Section 14 of Rule 14. Further, respondent judge acted without jurisdiction in taking cognizance of and eventually granting the petition for bail there having been no information filed in his court against the accused-applicant. Actually, it was only on March 30,

1992 when the records of the criminal case were forwarded by the lower court to the Office of the Provincial Prosecutor with the recommendation that an information for murder be filed against accused Ruaya. On the other hand, even assuming arguendo that respondent judge had jurisdiction to hear the petition for bail, under the circumstances attendant to the case he should nonetheless be held liable for granting the same without benefit of a hearing. This requirement is so basic and fundamental that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or awareness thereof. It is true that at the hearing of an application for admission to bail, where admission to bail is a matter of discretion, the prosecution has the burden of showing that evidence of guilt is strong. 12 However, we have held that admission to bail as a matter of discretion presupposes the exercise thereof in accordance with law and guided by the applicable legal principles. The prosecution must first be accorded an opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed against in determining whether the guilt of the accused is strong. In other words, discretion must be exercised regularly, legally and within the confines of procedural due process, that is, after evaluation of the evidence submitted by the prosecution. Any order issued in the absence thereof is not a product of sound judicial discretion but of whim and caprice and outright arbitrariness. 13 Accordingly, while the determination of whether or not the evidence of guilt is strong is a matter of judicial discretion, this discretion, by the nature of things, may rightly be exercised only after the evidence is submitted to the court at such hearing. 14 Whether the motion for bail of an accused who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court may resolve the motion for bail. If the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground. 15 Consequent to the foregoing considerations, an order granting or refusing bail must contain a summary of the evidence by the prosecution. On the basis thereof, the judge should then formulate his own conclusion as to whether the evidence so presented is strong enough as to indicate guilt and thereby cause the continued detention of the accused. Otherwise, the accused must be released on bail. 16 In the case at bar, the petition for bail was granted by respondent judge on the simple reason that the prosecution failed to appear and present evidence despite due notice. Forthwith, he concludes that by reason of the failure of the prosecution to appear at the scheduled hearing, the applicant is entitled to bail as a matter of right. He aggravated this flagrant error when in his aforequoted comment, he justified his subsequent denial of the prosecution's motion for the cancellation of the bail bond and the arrest of the accused on the incredible theory that the prosecution's failure to appear was a "waiver on its part . . . .and it is allegedly already in estoppel" to challenge the grant of bail since that right to bail "became

irrevocably vested" in the accused who had thereby acquired "a vested constitutional right beyond the power and authority of the respondent to recall." In the first place, respondent judge did not have the authority to set the petition for bail for hearing in view of the fact that he had not even acquired jurisdiction over the criminal case since the information therefor had not yet been filed in the trial court. In doing so, he acted with grave abuse of discretion and in wanton disregard of established rules and jurisprudence. Secondly, it has been held that even where the prosecutor refuses to adduce evidence in opposition to the application to grant and fix bail, the court may ask the prosecution such questions as would ascertain the strength of the state's evidence or judge the adequacy of the amount of bail. 17 Here, the non-appearance of the prosecution at the hearing scheduled by respondent judge on March 30, 1992 was obviously justified since, to repeat, respondent had no authority to schedule and/or conduct the same. It is at once apparent, even from a cursory glance of the assailed order of respondent judge that, to say the least, there is much to be desired. It is utterly defective in form and substance; there is no recital of any evidence presented by the prosecution, much less a conclusion therefrom or a pronouncement therein that the requisite proof of guilt of the accused is not evident. As such, the challenged order of respondent judge cannot be sustained or be given a semblance of validity. 18 Parenthetically, the "vested constitutional right" theory of respondent judge does not merit judicial review and is best disregarded. It is apropos to repeat here what we explicated in the aforecited case of Libarios vs. Dabalos: . . . Generally, a judge cannot be held liable to account, or answer criminally, civilly or administratively, for an erroneous judgment or decision rendered by him in good faith. However, good faith may be negated by the circumstances on record. In the absence of fraud, dishonesty or corruption, the acts of a judge done in his judicial capacity are not subject to disciplinary action, even though such acts may be erroneous. But, while judges should not be disciplined for inefficiency on account merely of occasional mistakes or errors of judgment, yet, it is highly imperative that they should be conversant with basic legal principles. In every case, a judge should endeavor diligently to ascertain the facts and the applicable law unswayed by partisan or personal interests, public opinion or fear of criticism. Respondent judge should not have allowed himself to be swayed into issuing an order fixing bail for the temporary release of the accused charged with murder, without a hearing, which is contrary to established principles of law. A judge owes it to the public and the administration of justice to know the law he is supposed to apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. There will be faith in the administration of justice only if there be a belief on the part of litigants that the occupants of the bench cannot justly be accused of deficiency in their grasp of legal principles. (Emphases ours.) In resum, what stamps this case with a unique feature and makes the actuations of respondent judge more distressing is the fact that, aside from granting bail without a hearing and denying the prosecution

procedural due process, such irregularity was committed in connection with a criminal case over which respondent judge had not at that instance acquired jurisdiction. Furthermore, through that unauthorized procedure which he had adopted, respondent judge illegally granted bail not only to accused Ruaya but also to the latter's co-accused, Edwin Rada. On these environmental facts, the sanction to be imposed on respondent judge should not be less than that which we approved in Libarios. WHEREFORE, respondent Judge Camilo A. Tamin is hereby ordered to pay a fine of P20,000.00, with a stringent warning that the commission of a similar offense in the future will be dealt with more severely. This decision is without prejudice to whatever action the public prosecutor may deem appropriate with respect to Criminal Case No. 92-10-300 and Special Civil Case No. 92-50,005. SO ORDERED. SYNOPSIS Pursuant to the unsworn letter-complaint of a certain Victorino Cruz against respondent Judge Reynold Q. Yaneza of MeTC, Branch 54, Navotas, Metro Manila, the Office of the Court Administrator (OCA) conducted an independent investigation as well as directed Executive Judge Benjamin M. Aquino, Jr. to conduct a discreet investigation on the matter. Judge Aquino in his report confirmed that Judge Yaneza had been improperly approving several bail bonds and irregularly issuing release orders for accused persons who were neither arrested nor detained within the territorial jurisdiction of respondent Judges court and whose cases were not pending before his sala. In his answer Judge Yaneza admitted the findings of the OCA but he reasoned out that he did it in good faith and not for any pecuniary consideration. However, despite the filing of the administrative complaint against him and even after his attention was called to the matter, Judge Yaneza continued approving bail bonds and issuing release orders for cases outside of his jurisdiction. Hence, the OCA recommended that Judge Yaneza be immediately dismissed from the service. The Court ruled that as a judge, respondent must have the basic rules at the palm of his hands as he is expected to maintain professional competence at all times. Since Judge Yaneza presides over MeTC-Br. 54 in Navotas, Metro Manila, his territorial jurisdiction is confined therein. Therefore, to approve bail applications and issue corresponding release orders in cases pending in courts outside his territorial jurisdiction, some even in courts as far as Nueva Ecija and Palawan, particularly so where the accused are detained thereat and not in his jurisdiction and therefore cannot personally appear before him as required, constitute ignorance of the law so gross as to amount to incompetence and even corruption. Consequently, Judge Reynold Q. Yaneza was ordered DISMISSED from the service effective immediately with forfeiture of his retirement benefits and with prejudice to re-employment in any branch or instrumentality of the government including government-owned or controlled corporations. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; SEC. 17 (a) OF RULE 114 AS AMENDED BY ADMINISTRATIVE CIRCULAR NO. 12-94; EXPLAINED. -- The foregoing provision anticipates two (2)

situations. First, the accused is arrested in the same province, city or municipality where his case is pending. Second, the accused is arrested in the province, city or municipality other than where his case is pending. In the first situation, the accused may file bail in the court where his case is pending or, in the absence or unavailability of the judge thereof, with another branch of the same court within the province or city. In the second situation, the accused has two (2) options. First, he may file bail in the court where his case is pending or, second, he may file bail with any regional trial court in the province, city or municipality where he was arrested. When no regional trial court judge is available, he may file bail with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein. G.R. No. L-10724 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. MELQUIADES RABA, ET AL., defendants. CLEMENTE TALANTOR, defendant-appellee. Office of the Solicitor General Ambrosio Padilla and Solicitor Meliton G. Soliman for appellant. M.F. Zamora, Eduardo S. Dayot and Serafin L. Abogado for appellee. , J.: Clemente Talantor and Melquiades Raba were charged with murder before the Court of First Instance of Antique and the bail for each was fixed by the court at P30,000 as recomended by the provincial fiscal. On April 26, 1956, after the arraignment of the acccused at which both pleaded not guilty to the charge, Talantor filed with the court an urgent motion praying that the amount of the bond fixed for his provisional liberty be reduced from P30,000 to P14,000 in order to enable him to go on bail. While the motion setting the hearing thereof in the morning of the same date, contains a notification to the provincial fiscal, however, the latter was actually notified at 9:40 oclock in the morning of the same day. Despite this lack of due notice, the court promptly granted the motion for the reduction of bail one hour later. On April 28, 1956, the provincial fiscal presented a motion for reconsideration of the order granting the reduction of the bail to P14,000 on the ground that it is irregular because no proper notice of the hearing of the motion for such reduction was given to him as required by the rule to enable him to prove that there exist strong evidence which would warrant the denial of the motion. The motion was denied, hence this appeal. There is merit in this appeal. The Rules of Court make it a duty of a movant to serve notice of his motion on all parties concerned at least three days before the hearing thereof (section 4, Rule 26). This requirement is more imperative in a criminal case where a person is accused of a capital offense for in such a case admission to bail is a matter of discretion which can only be exercised after the fiscal has been heard regarding the nature of the evidence he has in his possession. Thus, it is provided that When admission to bail is a matter of discretion the court must require that reasonable notice of the hearing of the application for bail be given to the fiscal (section 8, Rule 110), and such notice is necessary because the burden of showing that evidence of guilt is strong is on the prosecution

(section 7, Rule 110). Here Talantor is charged with a capital offense and while the fiscal fixed a bail of P30,000 for his provisional liberty, its further reduction could not be granted without hearing him because the evidence in his possession may not warrant it. It has been held that The determination of whether or not the evidence of guilt is strong is a matter of judicial discretion. This discretion, by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of evidence and since evidence cannot properly be weighed if, not duly exhibited or produced before the court (Ramos vs. Ramos, 45 Phil. 362), it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross-examination and to introduce his own evidence in rebuttal. (Ocampo vs. Bernabe, 77 Phil. 55, 56; Emphasis supplied.) Considering that Talantor did not serve notice of his motion to reduce bail on the provincial fiscal at least three days before the hearing thereof and the court failed to require that a reasonable notice thereof be given to said fiscal, it is evident that the court acted improperly in reducing the bail without giving the fiscal an opportunity to be heard. We wish however to state that the remedy the fiscal should have availed of is certiorari and not appeal considering that the orders herein involved are interlocutory in nature (Rule 41, Section 2). The orders of April 26, 1956 reducing the bond of Talantor to P14,000, as well as that approving the bail bond as thus reduced, are hereby set aside. Bengzon, Montemayor, Reyes, A., Labrador, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur. Paras, C.J., concurs in the result. DANILO B. PARADA, complainant, vs. JUDGE LORENZO B. VENERACION, REGIONAL TRIAL COURT, BRANCH 47, MANILA, respondent. DECISION TORRES, JR., J.: The case before us stems from a verified complaint filed by Danilo B. Parada against respondent Judge Lorenzo B. Veneracion for gross ignorance of the law, abuse of authority and rendering unjust and erroneous interlocutory orders and judgment in connection with Criminal Cases Nos. 93-121385 to 88, entitled People vs. Danilo Parada, which led to complainant Paradas premature incarceration at the Makati City Jail and Muntinlupa National Penitentiary. The undisputed facts of the case as found by the Office of the Court Administrator are as follows : Complainant herein is the accused in the aforementioned case for four (4) counts of estafa which were initially raffled to Branch 30, RTC, Manila presided by Judge Senecio Ortile. Complainant is also duly bonded with the Eastern Assurance and Surety Corporation (EASCO). On October 23, 1993

complainant notified said court formally thru counsel of his change of address from 219 Cityland Condominium, Buendia Extension, Makati, Metro Manila to 2412 Nobel St., Bo. San Isidro, Makati, Metro Manila. On October 27, 1993 he also notified the Manager of the bonding company of his change of address. On February 8, 1994, Judge Ortile inhibited himself from trying the said case and thus, the case was re-raffled to the sala of respondent Judge Lorenzo Veneracion, and per order of April 26, 1994, the hearing of the case was set for June 3, 6, 7 and 8, 1994. Apparently, the notice of hearing dated April 27, 1994 was sent to complainants former address and that for failure of accused-complainant to appear on June 3, 1994, respondent ordered the arrest of herein accused-complainant, ordering the confiscation of the bond and a trial in absentia was conducted. Respondent Judge likewise assigned a counsel de officio, Atty. Jesse Tiburan of the Public Attorneys Office (PAO) as counsel for the accused. xxx Furthermore, a warrant of arrest was issued on June 3, 1994 with no bail recommended. On June 6, 7 and 8, 1994, respondent court issued orders noting the failure of the petitioner to appear and proceeded with the trial in absentia. On the hearing of June 8, 1994, the motion of counsel de officio of accused-complainant that defense be allowed to present evidence upon petitioners arrest, was denied and further held that the failure of the accused to appear is a waiver of his right to adduce evidence. xxx. On November 25, 1994, a decision was rendered convicting herein accused-appellant of the crime and the decision was promulgated despite his absence. Accused-complainant was arrested and brought to the Makati City Jail. Accused-complainant filed a Petition for Habeas Corpus, Certiorari and Annulment of Judgment with prayer for immediate relief with the Court of Appeals and was docketed as CA-G.R. SP No. 37340 entitled Danilo Parada vs. Judge Lorenzo B. Veneracion, et. al.. On August 18, 1995, the Court of Appeals promulgated a decision declaring the decision dated November 25, 1995 of respondent court null and void and further ordering the case to be remanded to respondent for further proceeding in order to afford accused-complainant the opportunity to rebut the testimonies of the prosecution witnesses and documentary evidence against him as well as present his evidence.[1] Subsequently, Parada filed with this Court the instant complaint dated March 11, 1996 against the respondent Judge Veneracion in connection with the decision and interlocutory orders rendered by the latter in Criminal Cases Nos. 93-121385 to 88. He alleged, inter alia, that the respondent Judge is guilty of ignorance of the law when he did not follow the legal requirements of a valid trial in absentia which led to his conviction and premature incarceration, that the order of his arrest with no recommendation for bail was erroneous, and that respondent Judge abused his authority when he issued the June 8, 1994 order denying the motion of Paradas counsel de oficio to allow him to present his evidence upon his arrest. Parada thus prayed for the dismissal from service of the respondent Judge and that the latter be barred from railroading the subject Criminal Cases Nos. 93-121385 to 88.

On June 4, 1996, the Office of the Court Administrator received the respondent Judges comment to Paradas complaint, the pertinent portion of which reads: xxx 1. That the herein complaint is purely and plainly a harassment suit arising from the Decision rendered in the case of People vs. Danilo Parada for estafa; 2. That the charges therein are denied because they are not based on the facts and of the records of the case, the herein Judge merely acted with compassion upon receipt of the records of these cases from another sala, after having been informed that the private complainants merely borrowed from loan sharks the money given to the accused Danilo Parada and that they are only interested in compelling said accused to return their money, not in sending said accused to jail; 3. That the herein Judge acted in good faith in the trial of the said cases.[2] Unfazed by the foregoing assertions of the respondent Judge, the Office of the Court Administrator on the contrary held that: xxx Respondents general denial of the allegations imputed to him does not belie any of the facts which lead to the incarceration of the complainant. Thus, his failure to deny each and every specific allegations can be construed as admission on his part. Moreover, trial in absentia may proceed only if the accused failed to appear at the trial without justification despite due notice. In this case, complainant was never notified of any hearing from the time he changed his address up to the promulgation of the decision despite the fact that he notified the court and his bonding company. xxx Respondent issued a warrant for the arrest of the accused-complainant with no bail recommended despite the fact that the crime charged was bailable and denied the motion of his counsel for the accused to adduce evidence upon accuseds arrest. Clearly, respondent denied complainant his right to due process.[3] On the basis of these observations, the Office of the Court Administrator recommended that respondent Judge Veneracion be fined in the amount of P10,000.00 with a warning that a commission of the same or similar infraction shall be dealt with more severely. We agree with the findings of the Office of the Court Administrator. Section 14 (2), Article 3 of the Constitution provides, inter alia, that trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is

unjustifiable. The requisites then of a valid trial in absentia are: (1) the accused has already been arraigned; (2) he has been duly notified of the trial; and (3) his failure to appear is unjustifiable.[4] In the subject criminal cases, requisite numbers two (2) and three (3) of a valid trial in absentia are clearly wanting. Parada had not been duly notified of the trial because the notice of hearing dated April 27, 1994 was sent to the former address of Paradas counsel despite the fact that the latter formally notified the court of his change of address. His failure to appear therefore in the June 3, 6, 7 and 8, 1994 hearings is justified by the absence of a valid service of notice of hearing to him. As a rule, where a party appears by attorney in an action or proceeding in a court of record, all notices required to be given therein must be given to the attorney of record.[5] Accordingly, notices to counsel should be properly sent to his address of record and unless the counsel files a notice of change of address, his official address remains to be that of his address of record.[6] It is undisputed that Paradas counsel filed a notice of change of address on October 23, 1993. As such, the respondent judge should have already taken cognizance of the new address when it sent the notice of hearing dated April 27, 1994. It is thus unwarranted for the respondent judge to still send the notice of hearing to the old address of Paradas counsel because it is not his official address nor his address of record. Concomitantly, the sending of notice of hearing to his former address is an invalid service and cannot in any way bind Parada. It is worthy to stress that due process of law in judicial proceedings requires that the accused must be given an opportunity to be heard. He has the right to be present and defend in person at every stage of the proceedings. Incidentally, the right to a hearing carries with it the right to be notified of every incident of the proceedings in court. Notice to a party is essential to enable him to adduce his own evidence and to meet and refute the evidence submitted by the other party.[7] No less than the Constitution provides that no person shall be held to answer for a criminal offense without due process of law. A violation therefore of any of the rights accorded the accused constitutes a denial of due process of law. The circumstantial setting of the instant case as weighed by the basic standards of fair play impels us to so hold that the trial in absentia of Parada and his subsequent conviction are tainted with the vice of nullity, for evidently Parada was denied due process of law. Judges, by the very delicate nature of their functions in dispensing justice, should be more circumspect in the performance of their duties.[8] In resolving matters in litigation, they should endeavor assiduously to ascertain the facts and the applicable laws. Had respondent judge carefully and diligently studied the records of the case, he would have surely noticed the change of address, and his questioned orders, which eventually led to Paradas unwarranted deprivation of liberty, could not have been precipitately issued. Likewise, the warrant of arrest with no recommendation for bail that was issued by respondent Judge on June 3, 1994 is a downright violation of Paradas constitutional right to bail. The rule is clear that unless charged with offenses punishable by reclusion perpetua and the evidence of guilt is strong, all persons detained, arrested or otherwise under the custody of the law are entitled to bail as a matter of right. It should be noted that the crime with which Parada was charged is estafa[9] which is

undoubtedly a bailable offense. This circumstance could not have escaped the attention of the respondent judge when he issued on June 3, 1994 the order of arrest of Parada with no recommendation for his bail. In so doing, respondent judge exhibited that degree of ignorance so gross which the Court can not countenance. Judges are required by Canon 3, Rule 3.01 of the Code of Judicial Conduct to be faithful to the law and maintain professional competence.[10] They are called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles.[11] WHEREFORE, respondent Judge Lorenzo B. Veneracion is FINED P10,000.00 for disregarding Paradas right to procedural due process and for showing gross ignorance of the law, with a STERN WARNING that a repetition of a similar act in the future will be dealt with more severely. SO ORDERED. G.R. No. L-1771 December 4, 1947

SY GUAN (alias LIM HONG), petitioner, vs. RAFAEL AMPARO, Judge of First Instance of Manila, respondent. Paredes, Gaw and Gonzales for petitioner. The respondent judge in his own behalf.

TUASON, J.: Sy Guan alias Lim Hong is under prosecution with two others for visiting an opium den. The case is now pending in the Court of First Instance of Manila, to which the accused appealed from a sentence of one month and one day of imprisonment imposed by the municipal court. Having failed to appear in the Court of First Instance when the case was called for trial, Sy Guan's bond, for P300, was ordered forfeited and a warrant for his arrest was issued. Upon being rearrested, this prisoner offered to put up a new bond. The offer was rejected by the Honorable Rafael Amparo, Judge "in view of the fact that Sy Guan has heretofore jumped his bail." The upshot is the present petition for certiorari, alleging lack or excess of jurisdiction. The appropriate remedy ismandamus, and, as the application contains sufficient allegations essential in a petition of this character, we shall consider this proceeding as one to compel the respondent judge to admit the petitioner to bail. The petitioner denies that he fled or avoided going to trial. He alleges misunderstanding on his part and change of address as the cause of his non-appearance. The point is unimportant. Assuming for the sake of this case that the petitioner purposely "jumped" his bail, that facts does not operate as a forfeiture of his right to temporary liberty. Except where bail is a matter of right, irrespective of such circumstance the breach of a prior bond is a compelling reason for the refusal of bail in the same cause. But where bail

is a matter of right and prior absconding and forfeiture is not excepted from such right bail must be allowed irrespective of such circumstance. (8 C.J.S., 77; Rowan vs. Randolph, 268 Fed., 527.)lawphil.net Bail before conviction is a constitutional right of an accused, except in prosecutions for capital offenses where the proof of guilt is strong. (Article III, section 1, paragraph 16, Philippine Constitution.) Other than this, the Constitution makes no exceptions. The existence of high degree of probability that the defendant will abscond confers upon the court no greater discretion than to intend to assure the presence of the defendant when it is wanted, such amount to be subject, of course, to the other provision of the same section and paragraph cited, that excessive bail shall not be required." It is so ordered that the petitioner be released upon filing a new bond with sufficient sureties, without special judgment as to costs. G.R. No. L-26886 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. SILVESTRE LORREDO, defendant, VICTOR AMADOR and CIRIACO MORALES, securities-appellants. Pedro Ynsua for appellants. Attorney-General Jaranilla for appelle. Villareal, J.: This is an appeal taken by Victor Amador and Ciriano Morales from an order of the Court of First Instance of Tayabas of November 4, 1925, decreeing the forfeiture of the bond executed and subscribed by said appellants for the temporary release of Silvestre Lorredo, who was accused of the crime of illegal possession of firearms. In support of their appeal, the appellants assign the following alleged errors as committed by the lower court in its order, to wit: 1. The lower court erred in denying the motion of October 12, 1926, holding it to be, (a) groundless, and (b) out of time, and in not granting the same and relieving the sureties from their obligation to present the accused before the court within the period of ten days after its judgment and his conviction. 2. The lower court erred in denying the motion of October 27, 1926, considering a judgment against the sureties for the amount of the bond, before the execution of the order of forfeiture thereof as unnecessary, and in not granting it, thus relieving the bondsmen from all liability arising therefrom, and ordering the stay of execution. It appears from the record that Victor Amador and Ciriaco Morales executed and subscribed a bail bond for the temporary release of Silvester Lorredo, accused of illegal possession of firearms in a justice of the peace court in Tayabas, reading as follows:

A complaint having been filed on the 7th day of July, 1924, in the court of the justice of the peace of the municipality of Atimonan, in the Province of Tayabas, charging Silvester Lorredo, the defendant herein, with the offense of illegal possession of firearms and having been admitted to bail in the sum of three hundred pesos (P300), Philippine currency; Now therefore, we Victor Amador and Ciriaco Morales, of the municipality of Atimonan, Province of Tayabas, jointly and severally, hereby undertake that the above defendant Silvester Lorredo will appear and answer the charge above-mentioned in whatever court it may be tried and will, at all times, hold himself amenable to the orders and process of the court and, if convicted, will appear for judgment and render himself amenable to the execution thereof; or, if he fails to perform any of these conditions, that will pay the United States the sum of three hundred pesos (P300), Philippine currency. In the presence of: (Sgd.) D. CAMPOMANESSISENANDO ALBERTO (Sgd.) VICTOR AMADORCIRIACO MORALES MUNICIPALITY OF ATIMONANPROVINCE OF TAYABAS We, Victor Amador and Ciriaco Morales, the sureties who executed the foregoing bond, having been duly sworn, individually depose and say: That we are residents and land owners in the Philippine Islands; that we are possessed of the of three hundred pesos (P300), Philippine currency, over and above our just debts, obligations, and property exempt from execution. F-1875212, February 5, 1924, Atimonan, Tayabas. (Sgd.) VICTOR AMADOR. F-1877252, April 26, 1924, Atimonan, Tayabas. (Sgd.) CIRIACO MORALES. Subscribed and sworn to before me this 7th day of July, 1924, in the municipality of Atimonan, Province of Tayabas, Philippine Islands. (Sgd.) VICTOR D. VILLAMIL.Justice of the Peace of the Municipality of Atimonan. Approved: (Sgd.) VICTOR D. VILLAMILJustice of the peace of theMunicipality of Atimonan. BONDED PROPERTY BY VICTOR AMADOR: A house and lot situated within the residential zone of the town of Atimonan, Tayabas, P. I. valued at P1,000, and assessed in his name under tax no. 24162, which is bounded on the north by the wall of the

Roman Catholic Church; on the east by the property of the heirs of the deceased Praxido Urgino; on the south by Mabini Street, and on the west by Lopez Jaena Street. (Sgd.) VICTOR AMADOR BY CIRIACO MORALES: A parcel of coconut land situated in the barrio of Tinandog, of the town of Atimonan, Tayabas, assessed in his name under tax No. 23921, and valued at P630. (Sgd.) CIRIACO MORALES On November 25, 1924, the Court of First Instance of Tayabas rendered judgment finding Silvester Lorredo guilty of the crime of illegal possession of firearm, and sentencing him to pay a fine of P50 with subsidiary imprisonment, in case of insolvency, and the costs of the action. The accused was notified of said judgment, and at the instance of his attorney Mr. Godofredo Reyes, who offered to go surety for him, he was given the period of ten days to go surety for him, he was given the period of ten days within which to comply with the judgment imposed upon him. On the same date, November 25, 1924, the aforesaid sureties Victor Amador and Ciriaco Morales presented the following motion in the lower court: The undersigned sureties appear before this court and respectfully state that they hereby withdraw the bond that they have filed for the temporary release of the herein accused, then and there delivering the body of the said accused to be taken into custody by the proper authorities. This petition is based on the ground that the accused being in another town and having no fixed residence, it is very difficult for the undersigned to comply with their duties as sureties, fearing that the said accused, for some reason or other, may not appear before the Honorable Court upon being summoned to do so, thus leading to the forfeiture of the bond which they have filed, besides the fact that the same has been causing them a great deal of trouble and annoyance. For the foregoing reasons, the undersigned pray that the bond filed by them withdrawn, relieving them of all liability in connection therewith. Lucena, Tayabas, November 25, 1924. Respectfully, (Sgd.) VICTOR AMADOR.Surety (Sgd.) CIRIACO MORALESSurety It does not appear that said petition was acted upon by the court.

The period of ten days granted to the accused within which to pay the fine of P50 imposed upon him by the judgment of November 25, 1924, having expired, without the same having been satisfied on December 11,1924, the provincial fiscal of Tayabas filed a motion wherein he prayed for the execution of the aforesaid judgment. On December 12, 1924, the court granted said motion and a writ of execution was issued on the same day. On January 3, 1925, the deputy provincial sheriff of Tayabas returned said writ of execution with the statement that the accused Silvester Lorredo had absented himself from the locality where he resided without any trace of his whereabouts, and that he had no property subject to execution. On January 14, 1925, the provincial fiscal of Tayabas filed a motion in the lower court wherein he prayed that a warrant of arrest be issued against the defendant Silvester Lorredo in order to serve the subsidiary imprisonment. On January 15, 1925, the court granted said motion and immediately issued the proper warrant of arrest. The accused not having been apprehended, the Provincial Fiscal of Tayabas asked in open court on May 16, 1925, that the sureties Victor Amador and Ciriaco Morales be summoned to appear and produce the body of Silvester Lorredo before the court on Saturday, July 16, 1925, at 8 oclock in the morning, without prejudice to complying with the order of arrest issued at the expense of the sureties. The court then and there granted said motion, and on May 21, the proper summons requiring them to appear was issued. On June 6, 1925, the sureties Victor Amador and Ciriaco Morales appeared before the court and stated that, according to their understanding, the bond filed by them had already been cancelled by virtue of the offer made by Mr. Godofredo Reyes, attorney for the accused, to act as surety for the latter, as shown by the minutes entered to that effect. The provincial fiscal who was present at the hearing asked for the forfeiture of the bond filed by them for the temporary release of the accused because it does not appear that the same had been cancelled. The court, not finding the explanation given by the sureties satisfactory, granted the motion of the fiscal and ordered the forfeiture of the bond filed by said sureties, Victor Amador and Ciriaco Morales, for the temporary release of the accused Silvester Lorredo, granting them thirty days for the appearance of the latter, and to explain why he failed to appear to comply with the judgment, and ordering that, if they failed to do so, that the fiscal shall proceed against the said sureties upon the obligation contracted by them, without prejudice to the warrant of arrest, already issued. On June 23, 1925, Victor Amador, one of the sureties and appellants, asked for the issuance of new warrant of arrest, and the same was granted by the court on July 2, 1925, immediately issuing the warrant of arrest prayed for.

On September 2, 1925, the clerk of the Court of First Instance of Tayabas received the body of Silvester Lorredo from the provincial commander of Lucena, Tayabas, he having been captured by the Constabulary. On the same date, the defendant Silvester Lorredo appeared before the court, which not finding the explanation given by him for his non-appearance satisfactory, and, upon the petition of the provincial fiscal, confirmed the order of forfeiture of the bond subscribed and filed by the aforesaid sureties Victor Amador and Ciracio Morales; and the defendant Silvestre Lorredo having paid the fine imposed upon him, the court ordered the withdrawal of the warrant of arrest issued against him. On October 27, 1925, the sureties filed a motion wherein they prayed that the orders of May 16, June 10, and September 2, 1925, be declared null and void, and that they be relieved of all liability in connection with the bond subscribed and executed by them, on the ground that when they appeared with the accused at the trial of the case on September 25, 1924, they presented and delivered the body of said accused, and asked for the cancellation of the bond, the court having received the body of the accused, turning him over to the custody of the sheriff, and cancelling the bond filed and subscribed by them, according to the minutes entered by the clerk on November 25, 1925. The motions presented by the provincial fiscal, and the sureties, respectively having been heard, the Court of First Instance of Tayabas denied that of the sureties and granted that of the fiscal, ordering the execution of the order of them in favor of the accused. On October 12, 1926, the sureties filed a motion for reconsideration of the order issued on November 4, 1925, for the reason alleged in their former motion, and for the additional reason that the court, when it informed the accused of the judgment, granted him a period of ten days within which to comply therewith under the guaranty of his attorney Mr. Godofredo Reyes. After hearing the provincial fiscal, who objected to said motion, the court denied the motion for consideration. On October 27, 1926, the sureties filed a motion asking for the suspension of the sale at public auction of their property, on the ground that there was no judgment against them whereby they were held liable under said bond. The court denied said motion by an order of October 30, 1926. On November 5, 1926 the aforesaid sureties excepted to the orders of October 25 and 30, 1926, and gave notice of their intention to appeal therefrom to this court for their revision. On the same date the Court of First Instance of Tayabas admitted said appeal and ordered that the record be brought to this court. As to the first assignment of error, it will be seen that the only thing which appears in the record is the minutes of the hearing entered by the clerk of the Court of First Instance of Tayabas, wherein it appears, among other things, that at 9:30 a.m. of November 25, 1924, the following proceedings took place: The accused accompanied by his attorney was notified of the foregoing judgment, and at the instance of his attorney Mr. Reyes who offered a guaranty that the accused would comply with the judgment rendered against him. After the said minutes, there appears attached to the record the motion of November 25, 1924, subscribed by the sureties, wherein they state that they are delivering the body of the accused

and asking that they be relieved of all liability in connection with the bond filed by them for the temporary release of said accused. Section 75 of General orders No. 58 prescribes the different forms and the time for the surrender of the body of the accused and for the discharge of the bond. The order of discharge will be entered by the court once the surrender of the person of the accused is proven, and notification thereof is made to the prosecuting attorney. In the present case it does not appear that the fiscal had been notified of the petition for the discharge of the bond, nor had the court issued an order of discharge. The mere presentation or presence of an accused in an open court is not sufficient to itself. The attention of the court must be called to his presence and the intention to surrender the body of the accused must be clearly and definitely stated and understood by the court (6 C. J., page 243, paragraph 313). A surety who desires to produce and surrender the body of the accused in open court is not relieved from further liability upon his bond until the court accepts said surrender, and the only evidence of such act is the record of the court. (Du Lawrence vs. State, 31 Oh. Cir., 418.) Moreover, one of the conditions of the bond subscribed by the appellants is that if the accused is convicted, he will render himself amenable to the judgment as well as to the execution thereof. After notification of the judgment, the accused had fifteen days within which to perfect his appeal, and it is only after the expiration of the said fifteen days, without the accused having made used of his right, that the said judgment becomes final. (Sec. 47, General Orders No. 58.) Neither the fact, then, that the court granted the accused ten days within which to comply with the judgment, nor the fact that his attorney guaranteed said compliance, relieves his sureties from their liability in case of non-compliance with said judgment, because, as we have already seen, in order to be relieved from the obligation contracted by them by virtue for their bond, a judicial order relieving them of their liability is necessary. From what has been said it follows that the mere filing of a motion stating the surrender of the person of the accused and asking for their release from liability upon the obligation contracted by virtue of bond for temporary release, where it does not appear that the attention of the court had been called to said surrender and that the latter had so understood it, and without an express order accepting said surrender and relieving the sureties from all liability, does not relieve them from the same, notwithstanding the fact that the court granted the accused the period of ten days within which to comply with the judgment under a verbal guaranty of his attorney. As to the second assignment of error, the fact that the order of the court of September 22, 1925, confirming that of September 6, 1925, wherein the bond of the sureties was declared forfeited, did not declare in clear and precise language that the latter were liable for the amount of said obligation for non-compliance with its conditions, does not annul the order of November 4, 1925, ordering the execution of the order of forfeiture of said, bond, inasmuch as the declaration of the court to the effect that the said sureties had not satisfactorily explained the non-appearance of the accused within the thirty days granted them for that purpose, and the order of execution of the judgment of forfeiture of

the bond, which had already been entered, are equivalent to a declaration of liability and were a substantial compliance of the mandate of the law. In view of the uncertainty as to the period within which an appeal from an order directing the execution of the order of forfeiture of a bail bond may be perfected, after the entry of said order of forfeiture and the expiration of the thirty days granted to the sureties within which to present the body of the accused and to show cause why the judgment of forfeiture of said bond should not be executed, without having done either one or the other, or, in case they did so, the explanation given not having been satisfactory, appeals taken out of the time required for perfecting an appeal in criminal, as well as in civil, cases have been brought to this court. Section 76 of General Orders No. 58 provides that, if within the thirty days granted the sureties for the appearance of the accused, they do not present the body of the latter, nor give a satisfactory explanation for such non-appearance the prosecuting attorney shall immediately proceed against the sureties upon the obligation contracted by them. The American doctrines on the subject are not uniform there are some, and which constitute the majority, holding that the proceeding for the execution of an order of forfeiture of a bail bond is civil in nature, and there are others holding that the same is of a criminal character, and that the appeal must be perfected in accordance with the law of criminal procedure relating to the subject. (6 C. J., 1057, 1075.) In the case of United States vs. Carmen (13 Phil., 455), this court laid down the following rule: The practice adopted by the Courts of First Instance, in actions against sureties on criminal bonds, is substantially as follows: 1. If the defendant does not appear after final sentence for the purpose of receiving the penalty imposed by the court, the court shall make a record of this fact; 2. The court shall declare the bond forfeited; 3. The court shall then notify the said bondsmen and give them thirty days within which to present the body of the defendant; 4. If the bondsmen do not present the body of the defendant within thirty days, at the expiration of that time the court shall give them notice to show cause why a judgment should not be rendered against them for the amount of the bond; and 5. If no sufficient reason appears or is given by the bondsmen for not presenting the body of the defendant within the time specified above, the court may then render a judgment against the said bondsmen for the amount represented by said bond, upon which judgment an execution should be issued at once against said bondsmen. In other words, in order to enforce the bond, the prosecuting attorney should not bring a new action, nor institute an ordinary action; he should only take the necessary steps for the execution of the prior judgment of forfeiture and require the bondsmen to pay

the amount of the bond or attach a portion of their property the proceeds of which on sale should be enough to satisfy the liability of the bondsmen. In view of the doctrine laid down by this court in the above cited case, it is not absolutely necessary to institute a separate and independent action for the execution of the order of forfeiture of a bail bond, which had been previously entered, and that a simple motion to that effect presented by the prosecuting attorney in the same criminal case is sufficient, we are of the opinion, and so hold, that the proceedings required by General Orders No. 58 must be followed in these cases, and that the appeal must be perfected within the unextendible fifteen days following the date upon which the sureties received notification of the order directing the execution of the judgment of forfeiture of the bond previously entered. In view of the fact that the accused has already complied with the judgment by paying the fine imposed upon him, and following the doctrine laid down in the case of People vs. Reyes (48 Phil., 139), we believe that the forfeiture of half of the bond filed and execution of said judgment of forfeiture will satisfy the public interest. For the forgoing, the order appealed from is hereby modified and one-half of the bond filed is hereby declared forfeited, with costs against the appellants. So ordered.

LUZVIMINDA C. COMIA, complainant, vs. JUDGE CONRADO R. ANTONA, respondent. DECISION


BUENA, J.:

The administrative matter at bar stems from a sworn affidavit-complaint dated 22 March 1999, filed by herein complainant Luzviminda C. Comia, imputing to respondent Judge Conrado R. Antona of the Regional Trial Court (RTC) of Batangas City, Branch 4, a plethora of charges involving gross ignorance of the law, by deliberately committing a mockery of judicial proceedings, (for) knowingly rendering an unjust judgment in favor of the accused, (for) capriciously allowing the accused in the custody of their counsel, (for) treating the private prosecutor in a despotic, tyrannical, oppressive and dictatorial manner during the January 6, 1999 hearing, (for) allowing accused to post bail despite the fact that the crime committed is a capital offense and a heinous crime, at that; (of) depriving the prosecution the procedural requirement of due process, (for) acting most prejudicial to the best interest, image, trust, confidence and integrity of the court, and (for) deliberately violating the existing doctrines and jurisprudence laid down by the Honorable Supreme Court. In a Memorandum dated 12 April 2000, Court of Appeals Justice Buenaventura J. Guerrero, who was tasked by this Court to conduct an investigation, and submit a report and recommendation on the instant administrative matter, classified the charges against respondent judge into three:[1]
A) Ignorance of the law;

B) Conduct prejudicial to the best interest of the Court; and C) Deliberately violating existing doctrines and jurisprudence laid down by the Supreme Court.

As borne by the records, this administrative matter arose as a result of respondent judges handling of Criminal Case No. 9309 for Murder, particularly the hearing and resolution of the petition for bail therein. Based on the Memorandum submitted by Investigating Justice Buenaventura J. Guerrero, the material antecedents and proceedings in the instant administrative case are as follows:

On 19 January 1998, an information for murder for the death of complainants husband, Numeriano Comia, was filed with the Regional Trial Court, Fourth judicial Region, and raffled to Branch 4, Batangas City, presided by respondent Judge. Docketed as Criminal Case No. 9309 and entitled People of the Philippines vs. Fajardo, et al., accused were Dante Fajardo, Sr. and Filipina Fajardo-Arce, as principals, the latters husband Pio Arce as accomplice. On 29 January 1998, counsels for accused Fajardo Sr., Filipina Arce and Pio Arce, filed an Urgent Motion to Defer Issuance of the Warrants of Arrest with Supplemental Petition to Quash, Lift and or Dissolve Warrant of Arrest if Already Issued. Private Prosecutor Atty. Isabelita Bathan Manigbas with the conformity of 2nd Assistant City Prosecutor Leonardo Suyo of Batangas City submitted a comment/opposition. Taking cognizance that a petition for review against the resolution of the City Prosecutor had been filed by the accused with the Department of Justice, respondent judge held that such fact does not in any way preclude the court from acting on the information already filed with the Court hence denied the urgent motion for lack of merit. Counsel for the accused filed a motion for reconsideration. On 10 March 1998, respondent Judge granted the motion decreeing that the efficacy of the said warrants of arrest against all the herein accused dated January 27, 1998 are hereby suspended until further order of the court. A motion for reconsideration was filed by the Private Prosecutor with the conformity of the 2nd Assistant City Prosecutor Leonardo Suyo. On 31 March 1998, respondent Judge denied the motion ruling, inter alia, that: X X X In any case, a reading of the subsequent orders of the Secretary of Justice merely gave the justification for the prosecutors to file informations with the Court even if there were appeals and/or petitions for review of their resolutions seasonably filed. There is, however, nothing in these orders and/or

circulars which in any way affects the discretion of the Court on whether or not warrants of arrest should be issued and although already issued, the Court may order its recall and as what had been made in this case, suspend the effectivity of said warrants of arrest. Moreover, the right of an accused to appeal and/or petition for review resolutions of Prosecutors to the Secretary of Justice had not been removed but only qualified. It is unfortunate that what impressed the Private prosecutor was the apparently no longer effective Circular No. 17 of the Department of Justice. But as can be gleaned from the order of March 10, 1998, the suspension of the efficacy of warrants of arrest was primarily premised on the sense of fair play of the Court to give full meaning to the due process that should be accorded every person accused of a criminal offense and in the interest of substantial justice in the face of the existence of warrants of arrest which undoubtedly would affect the rights of the accused to ventillate (sic) their arguments and evidence before the Secretary of Justice. On 04 November 1998, defenses appeal to the Department of Justice was dismissed. On 04 December 1998, respondent Judge issued the second warrants of arrest against accused Fajardo Sr., Filipina and Pio. While still at large, Atty. Reynaldo P. Dimayacyac, Sr. filed an Urgent Petition for the Grant of Bail to Accused Dante Fajardo, Sr. and Filipina Arce with Supplemental Motion for Reduction of Bail Recommended for Accused Pio Arce, Jr. dated 14 December 1998. On 16 December 1998, respondent Judge merely directed that the urgent petition be filed with the records it appearing the court has not yet acquired jurisdiction over the persons of all accused who are still at large. On 04 January 1999, acting on the manifestation/motion of counsel for the accused, respondent Judge issued an order setting tentatively the hearing of the petition for bail of Fajardo, Sr. and Filipina Arce and reduction of bail of Pio Arce, Jr. on 06 January 1999 at 9:30 a.m. In the same order, respondent judge directed that a copy thereof be furnished the City Prosecutor, and upon request of the defense counsel, subpoena ad testificandum be issued to three witnesses named in the request. On 06 January 1999, the scheduled hearing of the petition for bail was held. First to speak was the private prosecutor who manifested they only

learned today of the return of the warrant dated January 6, 1999 showing that the warrant was served by the PNP Criminal Investigation and Detection Group, Camp Crame, Quezon City in the evening on January 5, 1999. Inasmuch as the accused were present, she continued that a commitment order be issued for their confinement at the City Jail of Batangas, adding that a representative of the PNP Batangas is present for the purpose. Defenses counsel retorted the proceedings was for petition for bail and since the court had ruled that the petition could not be heard without the accused-movants submitting themselves to the jurisdiction of the court, they surrendered themselves to the Criminal Investigation and Detection Group of the PNP, Camp Crame and were pressing (sic) for a speedy trial. Respondent Judge then remarked that the matter to be heard as shown in the order setting the hearing, was subject to the conditionthat the accused voluntarily surrender themselves which they did. Regarding the plea of the private counsel that a commitment order for the confinement of the accused in Batangas City Jail be issued, he said it will be resolved later on but first things first. Continuing, he observed that the motion here set for hearing is the one for the movants to show their cause why this motion should be granted and in the matter of granting bail and with respect to the other accused in the matter of reduction of bail, so first things first. Private prosecutor then asserted that under the Rules of Criminal Procedure, in application for bail particularly for capital offense (the burden of) showing (that the evidence of) the guilt of the accused is strong, lies in the prosecution. It is the prosecution who should present evidence to prove (that the evidence of) the guilt of accused is strong. Citing Section 8 of Rule 114, she argues that all of the evidence presented by the prosecution shall [be] automatically form part (of) the trial on the merits of the case. So, it would be unprocedural (sic) Your Honor, with due respect to the Honorable Court and to defense counsel that this application for bail be conducted without first submitting the accused to the proper agency; that they be properly arraigned and the Prosecution then will be given the proper opportunity to file an opposition to the petition for bail and to give proper opportunity for the prosecution to present its evidence to prove that the evidence of guilt is strong; the accused here has not yet been arraigned; they had not been committed to the proper agency where they should had been properly detained, Your Honor. (Emphasis Ours)

During the course of the bail hearing, the defense further moved to the objection of the prosecution that the accused be held in custody at the Criminal Investigation and Detection Group, Camp Crame, claiming that accused, Fajardo, Sr., was then scheduled for medical operation as early as December 14th. [2] Respondent judge granted the motion of defense counsel. On 12 January 1999, the prosecution filed an Omnibus Motion to (a) reconsider the order of custody of the accused; (b) declare the proceedings on the bail null and void; (c) inhibit; and, (d) defer further proceedings. On 28 January 1999, the prosecution likewise filed a Supplement to the Omnibus Motion dated December 14, 1998 with Additional Arguments to Support its Motion for Reconsideration Anent the order of January 6, 1999. In an order[3] dated 01 February 1999, respondent judge denied the Omnibus Motion to which the prosecution moved to reconsider said order. On 03 February 1999, respondent judge denied the Motion for Reconsideration of the prosecution and declared the bail hearings terminated. Upon arraignment, accused Fajardo Sr. and Filipina Fajardo- Arce pleaded not guilty to the charge against them. In an order dated 15 February 1999,[4] respondent judge granted the petition for bail and fixed the amount thereof at P200,000.00 each for accused Fajardo Sr. and Filipina Fajardo-Arce, and reduced the amount of bail to P100,000.00 for accused Pio Arce, Jr. On 25 February 1999, respondent judge inhibited himself from the hearing and trial of Criminal Case No. 9309.[5]
ADMINISTRATIVE CASE

Acting on the sworn affidavit-complaint filed by herein complainant Luzviminda Comia and considering the gravity of the charges imputed therein, the Office of the Court Administrator (OCA) recommended to the High Court that the instant administrative matter be referred to the Court of Appeals for immediate raffle, investigation, report and recommendation. In a Resolution dated 06 December 1999, this Court referred the case to the Court of Appeals and, upon subsequent raffle, was assigned to Justice Buenaventura J. Guerrero for investigation, report and recommendation. On 23 February 2000, herein complainant, through counsel, filed a memorandum.[6] For his part, respondent judge submitted a Manifestation [7] on 06 March 2000, and a Memorandum[8] on 17 March 2000, to which complainant filed a Compliance with Reply-Memorandum[9] dated 28 March 2000. In a Memorandum dated 12 April 2000, Investigating Justice Buenaventura J. Guerrero submitted to the High Court his findings and recommendations on the administrative matter, to wit:

1. Ignorance of the law: On the basis of the foregoing, respondent Judge may be held administratively liable and ordered to pay a fine of P20,000.00 ; 2. Conduct prejudicial to the best interest of the Court: No Fraud, dishonesty or corruption has been charged much less proven against respondent Judge. Hence, he may be exonerated; and, 3. Deliberately violating existing doctrines and jurisprudence laid down by the Supreme Court: There is no evidence that respondent Judge was aware of herein aforecited jurisprudential doctrines on application for admission to bail in a capital offense. Not one of these casesor any case for that matter involving petition for bail in a charge for a capital offensewas brought to the attention of respondent Judge by the prosecution to show that his order was in violation of existing jurisprudence. Hence, respondent Judge may be exonerated.(Emphasis Ours)
THE COURTS RULING

The findings and recommendations of the investigating justice are well-taken. A thorough perusal of the records and evidence adduced by the complainant lend credible substantiation to the charge of gross ignorance of the law on the part of respondent judge. Verily, the actuation of respondent judge specifically in the handling, hearing and resolution of the petition for bail constitutes not only ignorance of fundamental rules relating to bail applications, but demands stern rebuke from this Court as well. Without doubt, the rules and principles relating to bail transgressed by respondent judge are to say the least basic that unfamiliarity therewith entails a finding of administrative liability and necessitates the imposition of the proper penalty. Section 8 of Rule 114 of the Rules of Court is explicit:

Sec. 8. Burden of Proof in Bail Application. At the hearing of an application for admission to bail filed by any person who is in custodyfor the commission of an offense punishable by death, reclusion perpetua or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearings shall be considered automatically reproduced at the trial, but upon motion of either party, the court may recall any witness for additional examination unless the witness is dead, outside of the Philippines or otherwise unable to testify. (Emphasis Ours)

Likewise, jurisprudence on the matter is crystalline. Bereft of any ambiguity of language, this Court, as early as Feliciano vs. Pasicolan,[10]articulated the principle in this jurisdiction that since bail is intended to obtain the provisional liberty of the accused, the same cannot be authorized or posted before custody of said accused has been acquired by the judicial authorities by his arrest or voluntary surrender. It is self evident that a court cannot authorize provisional liberty to one who is then actually in the enjoyment of his liberty, or as the Court quoted in Feliciano, it would be incongruous to grant bail to one who is free.[11] Stated differently, the right to bail can only be availed of by a person who is in custody of the law or otherwise deprived of his liberty and it would be premature, not to say incongruous, to file a petition for bailfor someone whose freedom has yet to be curtailed.[12] Thus in Borinaga vs. Tamin,[13] the High Court in categorical terms enunciated:

X X X Where admission to bail is a matter of discretion, the prosecution has the burden of showing that evidence of guilt is strong. X X X Admission to bail as a matter of discretion presupposes the exercise thereof in accordance with law and guided by the applicable legal principles. The prosecution must first be accorded an opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed against in determining whether the guilt of the accused is strong. In other words, discretion must be exercised regularly, legally and within the confines of procedural due process, that is, after evaluation of the evidence submitted by the prosecution. X X X
X X X

In the first place, respondent judge did not have the authority to set the petition for bail for hearing in view of the fact that he had not even acquired jurisdiction over the criminal case X X X. (Emphasis ours)
Under the present circumstances, respondent Judge Antona-- fully cognizant that the court had not yet acquired jurisdiction over the persons of the accused considering that the latter were at large-- still entertained the application for bail by setting a date of hearing therefor, albeit tentatively, and conditioned upon the voluntary surrender of the accused. In doing so, respondent judge indubitably violated settled jurisprudential doctrines regarding the purpose of bail which is to secure the temporary liberty of persons under the custody of the law, or otherwise deprived of freedom. It is of no moment that the accused eventually surrendered to the police authorities on the same date tentatively scheduled for the hearing of the application for bail. To our mind, such supervening event is of no bearing and immaterial; it does not absolve respondent judge from administrative liability considering that he should not have

accorded recognition to the application for bail filed on behalf of persons, who at that point, were devoid of personality to ask such specific affirmative relief from the court. The records reveal that at the time the application for bail was filed, the accused were, in fact, in the enjoyment of their liberty, having evaded the long arm of the law despite the existence of standing warrants for their arrest issued by no less than respondent Judge Antona himself. Similarly, respondent judge is guilty of a procedural lapse in the hearing of the petition for bail inasmuch as the order and manner of presentation of evidence in the bail hearings were flawed and highly irregular. In the case before us, the defense adduced and presented its evidence even ahead of the prosecution despite the unequivocal provision of the Rules to the effect that in bail petitions, the burden of proving that the evidence of guilt is strong lies within the fence of the prosecution. The clear import of the foregoing pronouncements is that the prosecution should be accorded all the opportunity to adduce, submit and present proof to bolster its stand that the evidence of guilt is indeed strong so as to warrant the denial of the petition for bail addressed to the court. Moreover, as gleaned from the order[14] dated 04 January 1999, only the defense witnesses were issued subpoenas Ad Testificandum to the exclusion of prosecution witnesses. Likewise, respondent judge transgressed the Rules in view of the fact that his order dated 15 February 1999, granting the petition for bail in favor of the accused Dante Fajardo, Sr. and Filipina Fajardo-Arce, and reducing the bail in favor of Pio Arce, Jr., failed to recite a summary of the evidence for the prosecution. The records show that said order merely made mention and invoked as its basis the evidence presented by the defense. Notably, respondent judges actuation is dissident to settled doctrine on this matter that the courts order granting or refusing bail must contain a summary of the evidence for the prosecution, otherwise the order may be invalidated because the summary of the evidence for the prosecution, which contains the judges evaluation of the evidence, may be considered as an aspect of procedural due process for both prosecution and the defense.[15] To appreciate the strength or weakness of the evidence of guilt, the prosecution must be consulted or heard. It is equally entitled, as the accused, to due process. [16] The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true. This norm is of the very essence of due process, as the embodiment of justice requires that the prosecution be given the opportunity to prove that there is strong evidence of guilt.[17] In the instant administrative matter, proof is extant that in the bail hearings the prosecution was not afforded adequate opportunity within a reasonable time to present evidence within its grasp to substantiate the degree and gravity of guilt of the accused, for purposes of resolving the bail petition. As gleaned from the order dated 15 February 1999, respondent judge relied solely on, and made strict mention of the evidence adduced by the defense without incorporating in said order a recital of the evidence for the prosecution. Respondent judge ruled and concluded, albeit erroneously, that the prosecution waived its right to adduce evidence; in effect, the prosecution was denied the opportunity to submit all the evidence it desired to present.

Evidently, respondent judge was remiss in performing the specific duty of reciting in the subject order the summary of evidence for the prosecution. For where the grant of bail is discretionary, as in the instant case, the issue of whether or not an accused should be admitted to bail lies on the strength of the prosecutions evidence as to their guilt,[18] without prejudice, however, to the right of the defense to cross-examine witnesses and introduce evidence in its own rebuttal.[19] Worth stressing too, is that no reasonable notice was given to the prosecution regarding the hearing of the petition for bail. As shown by the records, the order setting the 06 January 1999 bail hearing was received by the City Prosecutor and private prosecutor on 04 January 1999 and 05 January 1999, respectively. In this jurisdiction, whether bail is a matter of right or discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal, or at least, he must be asked for his recommendation.[20] Thus, in Depamaylo vs. Brotarlo,[21] the disregard by respondent judge of the mandatory three-day notice rule under Section 4, Rule 15 of the Rules of Court was deemed by the High Court to constitute undue haste:

The undue haste with which respondent judge granted bail also accounts for her disregard of the mandatory requirement in Rule 15, Section 4 that notice of a motion must be served on all parties at least three days in advance of the hearing.
In the same vein, despite lack of proper substantiation and presentation of documentary evidence by the defense and over the vigorous objection of the prosecution, respondent judge allowed that custody of the accused be transferred from the Batangas City Jail to the Criminal Investigation and Detection Group, specifically under Senior Inspector Eduardo S. Villena, Chief of Prosecution Department, on the ground of health and security reasons. As to the charge, however, of conduct prejudicial to the best interest of the court, we adopt the findings of the Investigating Justice that no fraud, dishonesty or corruption was imputed, nor proved by complainant; hence, respondent judge is not liable therefor. On the same score, this Court finds no compelling evidence on record to substantiate the charge that respondent judge deliberatelyviolated existing doctrines and jurisprudence enunciated by the High Court. To our mind, the procedural lapses and irregularities in the bail hearings were not consciously, purposely, and intentionally perpetrated by respondent judge so as to render him liable for said charge. At the most, respondent judges actuation were borne by an ignorance of the pertinent rules and applicable jurisprudence and were not, in our considered view, products of a grand design to deliberately perpetrate injustice. All told, this Court once again seizes the moment to remind judges to keep abreast of the rules and recent pronouncements of this Court, so they may evolve into more effective dispensers of justice magistrates of the law in the truest sense of the word.

WHEREFORE, in light of the foregoing disquisitions, the Court finds respondent Judge Conrado R. Antona liable for gross ignorance of the law. ACCORDINGLY, the Court hereby resolves to impose upon him a fine of P20,000.000 and sternly warns respondent judge that a repetition of the same or similar acts shall be dealt with more severely. SO ORDERED.
The (Moot and Academic)Facts*: November 7, 1968 Then Magsaysay Misamis Oriental Mayor de la Camara was arrested and detained at the Provincial Jail of Agusan, for his alleged participation in the killing of fourteen and the wounding of twelve other laborers of the Tirador Logging Co., on August 21, 1968. 18 days later, the Provincial Fiscal of Agusan filed with the CFI a cases of multiple frustrated murder and for multiple murder against petitioner, his co-accused Tagunan and Galgo. January 14, 1969- An application for bail filed by petitioner with the lower court, premised on the assertion that there was no evidence to link him with such fatal incident of August 21, 1968. He likewise maintained his innocence. Respondent Judge started the trial of petitioner on February 24, 1969, the prosecution resting its case on July 10, 1969. As of the time of the filing of the petition, the defense had not presented its evidence. August 10, 1970- Judge Enage issued an order granting petitioners application for bail, admitting that there was a failure on the part of the prosecution to prove that petitioner would flee even if he had the opportunity, but fixed the amount of the bail bond at the excessive amount of P1,195,200.00 (P840,000.00 for the 14 counts of multiple murder plus P355,200.00 for the 12 counts of multiple frustrated murder.) There was a motion for reconsideration to reduce the amount. Enage however remained adamant. De la Camara then files a petition for certiorari assailing Enages order and prays for its nullification. March 5, 1971- Enage answers that set forth the circumstances concerning the issuance of the above order and the other incidents of the case, which, to his mind, would disprove any charge that he was guilty of grave abuse of discretion. It stressed, moreover, that the challenged order would find support in circulars of the Department of Justice given sanction by this Court. He sought the dismissal of the petition for lack of merit. March 31, 1971- both De la Camara and Enage did not appear at the hearing with De la Camara, upon written motion was given 30 days to submit a memorandum in lieu of oral argument, Enage in turn having 30 days from receipt of memorandum to file his reply. De la Camara submitted the memorandum on April 6, 1971. May 26, 1971-Enage, instead of a reply, submitted a supplemental answer wherein he alleged that petitioner escaped from the provincial jail on April 28, 1971 and had since been remained at large. There was a reiteration then of the dismissal of his petition for lack of merit, to which petitioner countered in a pleading dated June 7, 1971, and filed with this Court the next day with this plea: The undersigned counsel, therefore, vehemently interpose opposition, on behalf of petitioner, to respondents prayer for dismissal of the present petition for lack of merit. For, the issue in this case is not alone the fate of petitioner Ricardo de la Camara. The issue in the present petition that calls for the resolution of this Honorable Tribunal is the fate of countless other Ricardo de la Camaras who may be awaiting the clear-cut definition and declaration of the power of trial courts in regard to the fixing of bail. * While the facts of this case is moot and academic, it did not preclude the SC from setting forth in language clear and unmistakable, the obligation of fidelity on the part of lower court judges to the unequivocal command of the Constitution that excessive bail shall not be required. ISSUE: WAS THE AMOUNT OF BAIL ORDERED BY ENAGE EXCESSIVE? HELD: Yes yes yo kabayo! Sayang lang at pumuga/tumakas si mayor, kaya nga moot (court) & academic ang petition DISPOSITIVE: WHEREFORE, this case is dismissed for being moot and academic. Without pronouncement as to costs. SCs rationale for requirement of non-excessive bail: 1. Before conviction, every person is bailable except if charged with capital offenses when the evidence of guilt is strong. Such a right flows from the presumption of innocence in favor of every accused who should not be subjected to the lass of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond

reasonable doubt. It is not beyond the realm of probability, however, that a person charged with a crime, especially so where his defense is weak, would just simply make himself scarce and the frustrate the hearing of his case. A bail is intended as a guarantee that such an intent would be thwarted. Nor is there anything unreasonable in denying this right to one charged with a capital offense when evidence of guilt is strong, as the likelihood is, rather than await the outcome of the proceeding against him with a death sentence, an ever present threat, temptation to flee the jurisdiction would be too great to be resisted. 2. Where, however, the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. So the Constitution commands. It is understandable why. If there were no such prohibition, the right to bail becomes meaningless. It would have been more forthright if no mention of such a guarantee were found in the fundamental law. Nothing can be clearer, therefore, than that the challenged order of August 10, 1970 fixing the amount of P1,195,200.00 is clearly violative of this constitutional provision. Under the circumstances, there being only two offenses charged, the amount required as bail could not possibly exceed P50,000.00 for the information for murder and P25,000.00 for the other information for frustrated murder. Nor should it be ignored in this case that the Department of Justice did recommend the total sum of P40,000.00 for the two offenses. 3. There is an attempt on the part of respondent Judge to justify what, on its face, appears to be indefensible by the alleged reliance on Villaseor v. Abao case. The guidelines in the fixing of bail was there summarized, in the opinion of Justice Sanchez, as follows: (1) ability of the accused to give bail; (2) nature of the offense; (3) penalty for the offense charged; (4) character and reputation of the accused; (5) health of the accused; (6) character and strength of the evidence; (7) probability of the accused appearing in trial; (8) forfeiture of other bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) if the accused is under bond for appearance at trial in other cases. Enage ignored the decisive consideration appearing at the end of the above opinion: Discretion, indeed, is with the court called upon to rule on the question of bail. We must stress, however, that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy. No attempt at rationalization can therefore give a color of validity to the challenged order. Nor is there any justification then for imputing his inability to fix a lesser amount by virtue of an alleged reliance on a decision of this Tribunal. Even if one were charitably inclined, the mildest characterization of such a result is that there was a clear misreading of the Abao opinion when such a meaning was ascribed to it. No doctrine refinement may elicit approval if to do so would be to reduce the right to bail to a barren form of words.

G.R. No. L-101

December 20, 1945

HAYDEE HERRAS TEEHANKEE, petitioner, vs. LEOPOLDO ROVIRA, ANTONIO QUIRINO, and POMPEYO DIAZ, respondents. Vicente J. Francisco for petitioner. Respondent Judges in their own behalf.

HILADO, J.: Petitioner Haydee Herras Teehankee is a political detainee delivered by the Counter Intelligence Corps, United States Army, to the Commonwealth Government, pursuant to the Proclamation of General of the Army Douglas MacArthur, dated December 29, 1944. She was one of the petitioners in case No. L-44, "Raquiza vs. Bradford," of this court (p. 50, ante). She is now confined in the Correctional Institution for Women under the custody of the Commonwealth Government since October, 1945, when she was thus delivered to the said government.

Under the date of October 2, 1945, petitioner, through her husband, Alberto Teehankee, filed with the People's Court a petition wherein, invoking the provisions of Executive Order No. 65, promulgated by His Excellency, the President of the Philippines, dated September 3, 1945, she prayed that her immediate release be ordered on the ground that no evidence exists upon which she could be charged with any act punishable by law, or, alternatively, that the People's Court fix the bail for her provisional liberty, in conformity with the aforesaid executive order, and upon approval of such bail, that an order be forthwith issued directing then officer having official custody of her person to immediately release her. On October 4, 1945, the Hon. Antonio Quirino, one of the Associate Judges of the People's Court, upon considering the said petition, required the Solicitor General "to file his comment and recommendation as soon as possible." On October 5, 1945, the Solicitor General filed recommendation in compliance with said order, stating: "that on the strength of the evidence at hand, the reasonable basil recommended for the provisional release of the petitioner be fixed at Fifty Thousand Pesos (50,000)." On October 9, 1945, the Hon. Leopoldo Rovira, Presiding Judge of the People's Court, entered an order referring the petition for provisional release above mentioned for consideration by the Fifth Division of said Court, but adding the following statement: "in my opinion, it should be denied notwithstanding the recommendation of the Solicitor General for her provisional release under a bond of Fifty Thousand Pesos (50,000)." On the same date, October 9, 1945, the Hon. Pompeyo Diaz, Associate Judge of said Court, entered an order disposing of said petition and denying the same "in view of the gravity of the offense as can be deduced from the fact that the office of the Special Prosecutors recommends as high as Fifty Thousand Pesos (50,000) for her provisional release." A motion having been filed by petitioner with the People's Court praying said court to reconsider its order of October 9, 1945, denying her petition for provisional release the Court, through Associate Judge Pompeyo Diaz, denied said motion. In her present petition for the writs of certiorari and mandamus originally filed with this Court on October 19, 1945, petitioner avers that the above-mentioned Judges of the People's Court, in denying her petition for provisional liberty under bail, as well as her motion for reconsideration, acted in excess of jurisdiction and with grave abuse of discretion. Paragraph VII of this petition contains her allegations in support of this charge. Under the date of October 21, 1945, respondent Judge Pompeyo Diaz filed his answer stating that the order denying bail "was issued under express mandate of the law", citing section 19 of Commonwealth Act No. 682. Article III, section 1 (16) of the Commonwealth Constitution provides that: All persons shall before conviction be bailable by sufficient sureties, except those charged with capital offenses when evidence of guilt is strong. Excessive bail shall not be required. Rule 110 of the Rules of Court provides in the following sections:

SEC. 3. Offenses less than capital before conviction by the Court of First Instance. After judgement by a justice of the peace and before conviction by the court of First Instance, the defendant shall be admitted to bail as of right. SEC. 4. Noncapital offenses after conviction by the Court of First Instance. After conviction by the Court of First Instance, defendant may, upon application, be bailed at the discretion of the court. SEC. 5. Capital offenses defined. A capital offense, as the term the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. SEC. 6. Capital offense not bailable. No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong. SEC. 7. Capital offenses burden of proof. On the hearing of an application for admission to bail made by any person who is in custody for the commission of a capital offense, the burden of showing that evidence of guilt is strong is on the prosecution.
lawphi1.net

SEC. 8. Notice of application to fiscal. When admission to bail is a matter of discretion, the court must require that reasonable notice of the hearing of the application for bail be given to the fiscal. Section 66 of General Orders, No. 58 stipulates: When admission to bail is a matter of discretion, the court must require that reasonable notice of the hearing of the application for bail be given to the promotor fiscal. Section 19 of Commonwealth Act No. 682 contains the following proviso: SEC. 19. . . . Provided, however, That existing provisions of law to the contrary notwithstanding, the aforesaid political prisoners may, in the discretion of the People's Court, after due notice to the office of Special Prosecutors and hearing, be released on bail, even prior to the presentation of the corresponding information, unless the Court finds that there is strong evidence of the commission of a capital offense. . . . . Section 22 of Commonwealth Act No. 682 ordains: SEC. 22. The prosecution, trial and disposal of cases before the People's Court shall be governed by existing laws and rules of court, unless otherwise expressly provided herein . . . . Against the petitioner herein no information had yet been presented when she filed her petition dated October 2, 1945, containing the alternative prayer for the fixing of bail for her provisional liberty. She there invokes Executive Order No. 65 of the President of the Philippines, date September 3, 1945. The proviso above quoted from section 19 of the People's Court Act (Commonwealth At No. 682) also existed in the statute books at the time. The able arguments adduced on both sides have received the most careful consideration of the Court as befits the importance of the questions involved. However, in the view we take of the case, a majority of the Court are of opinion that the only question calling for decision at this time are: (1)

whether Article III, section 1 (16) of the Commonwealth Constitution is applicable to the instant case; (2) whether a hearing should be held of the application for bail with attendance of the petitioner and the Solicitor General or the latter's representative; and (3) if so, what kind of hearing it should be. 1. As to the first question, we hold that Article III, section 1 (16) of the Commonwealth Constitution is applicable to the instant case. This Constitutional mandate refers to all persons, not only to persons against whom a complaint or information has already been formally filed. It lays down the rule that all persons shall before conviction be bailable except those charged with capital offenses when evidence of guilt is strong. According to this provision, the general rule is that any person, before being convicted of any criminal offense, shall be bailable, except when he is charged with a capital offense and the evidence of his guilt is strong. Of course, only those persons who have been either arrested, detained or otherwise deprived of their liberty will ever have occasion to seek the benefits of said provision. But in order that a person can invoke this constitutional precept, it is not necessary that he should wait until a formal complaint or information is filed against him. From the moment he is placed under arrest, detention or restraint by the officers of the law, he can claim this guarantee of the Bill of Rights, and this right he retains unless and until he is charged with a capital offense and evidence of his guilt is strong. Indeed if, as admitted on all sides, the precept protects those already charged under a formal complaint or information, there seems to be no legal or just reason for denying its benefits to one as against whom the proper authorities may even yet conclude that there exists no sufficient evidence of guilt. To place the former in a more favored position than the latter would be, to say the least, anomalous and absurd. If there is a presumption of innocence in favor of one already formally charged with criminal offense (Constitution, Article III, section 1[17], a fortiori, this presumption should be indulged in favor of one not yet so charged, although already arrested or detained. In Cooleys Constitutional Limitations, 7th edition, pages 436-438, we read the following: Perhaps the most important of the protections to personal liberty consists in the mode of trial which is secured to every person accused of crime. At the common law, accusations of felony were made in the form of an indictment by a grand jury; and this process is still retained in many of the States, while others have substituted in its stead an information filed by the prosecuting officer of the State or county. The mode of investigating the facts, however, is the same in all; and this is through a trial by jury, surrounded by certain safeguards which are a well-understood part of the system, and which the government cannot dispense with. First, we may mention that the humanity of our law always presumes an accused party innocent until he is proved to be guilty. This is a presumption which attends all the proceedings against him, from their initiation until they result in a verdict, which either finds the party guilty or converts the presumption of innocence into an adjudged fact. If there were any mode short of confinement which would, with reasonable certainty, insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him, in a greater or less degree, to the punishment of a guilty person, while as yet it is not determined that he has committed any crime. If the punishment on conviction cannot exceed in severity the forfeiture of a large sum of money, then it is reasonable to suppose that such a sum of money, or an agreement by responsible parties to pay it to the government in case the accused should fail to appear, would be sufficient security for his attendance; and therefore, at the common law, it was customary to take security of this character in all cases of misdemeanor; one or more friends of the accused undertaking for his appearance for trial, and agreeing that a certain sum of money should be levied of their goods and chattels, lands and tenements, if he made default.

But in the case of felonies, the privilege of giving bail before trial was not a matter of right; and in this country, although the criminal code is much more merciful than it formerly was in England, and in some cases the allowance of bail is almost a matter of course, there are others in which it is discretionary with the magistrate to allow it or not, and where it will sometimes be refused if the evidence of guilty is strong or the presumption great. Capital offenses are not generally regarded as bailable; at least, after indictment, or when the party is charged by the finding of a coroner's jury; . . . ." All the Justice Cooley says in the foregoing quotations regarding the humanity of the law in his jurisdiction and its presumption that an accused party is innocent until he is proved to be guilty, is distinctly true also in ours where the constitutional, statutory, and reglementary provisions on the point have been borrowed from America. The same should be said of what he says regarding the granting of bail for provisional liberty before conviction, and even after, in exceptional cases, of course, always subject to the limitation established by our own Constitutional, laws and rules of court. From the last part of said quotation it follows, firstly, that before indictment or charge by the corner's jury, in the jurisdiction to which the author refers, there may be cases in which even a capital offense is bailable, and, secondly, that even after indictment or the finding of a corner's jury in these jurisdictions, there may be exceptional cases where a capital offense is still bailable. Under our Constitution, as we have seen, all offenses are bailable before conviction except capital offenses when evidence of guilt is strong. In consonance with this constitutional provision, section 3 of Rule 110 of the Rules of Court stipulates that non-capital offenses before conviction by the Court of First Instance shall be bailable as of right; section 4 of the same Rule provides that after conviction by the Court of First Instance such offense may, upon application, be bailable at the discretion of the court; and section 6 of the said Rule provides that "no person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong." By the common law, all offenses including treason, murder, and other felonies, were bailable before indictment found, although the granting or refusing of such bail in case of capital offenses was a matter within the discretion of the court. (6 C. J., 953; emphasis supplied.) 2. As to the second question, we hold that upon application by a political prisoner or detainee to the People's Court for provisional release under bail, a hearing, summary or otherwise, should be held with due notice to the Office of Special Prosecutors, as well as to the prisoner or detainee. It will be remembered that section 22 of the People's Court Act subjects the prosecution, trial, and disposal of cases before the People's Court to existing laws and rules of court," unless otherwise expressly provide in said act. Consequently, the hearing and disposal of application for bail for provisional release before the People's Court should be governed by existing laws and rules of court, the hearing and disposal of such applications being a mere part of the "prosecution, trial, and disposal" of the corresponding cases before said court. If attention should be directed to the clause "unless otherwise expressly provided herein " in said section 22, in connection with the first proviso of section 19 of the same act, it should be borne in mind that the provisions of said act should be construed in harmony with those of the Constitution, under the well-settled rule of the statutory construction that legislative enactments should be construed, wherever possible, in manner that would avoid their conflicting with the fundamental law. 3. As to the third question. While it is true that the Solicitor General on October 3, 1945, recommended Fifty Thousand Pesos (P50,000) as a reasonable bail "on the strength of the evidence at hand," it may happen that thereafter his office may have secured additional evidence which in addition to or in connection with the already possessed, in his opinion is sufficiently strong to prove petitioner's guilt for a capital offense, in which case, he may yet decide to oppose the application for bail heretofore filed by petitioner at the hearing thereof hereinafter ordered. It will be remembered that petitioner, while under the custody of the Counter Intelligence Corps, United States Army, was charged with (a) "Active Collaboration with the Japanese" and (b) "Previous Association

with the enemy" (Raquiza vs. Bradford, p. 50, ante). Under the definition of the treason in the Revised Penal Code, active collaboration with the Japanese and association with them during the war in the Philippines may constitute treason, a capital offense. ART. 114. Any person who, owing allegiance to the United States or the Government of the Philippine Islands, not being a foreigner, . . . adheres to their enemies, giving them aid or comfort within the Philippine Islands or elsewhere, shall be punished by reclusion temporal to death and shall pay a fine not to exceed 20,000 pesos. (Revised Penal Code.) Of course, it may also happen that either because no such further evidence has come into his possession or because, in his judgement, the public interest would be better served by him withholding the evidence that he has until the trial in the merits, he would prefer not to oppose the application for bail. At the hearing of the application the Solicitor General will be free to adopt one course or the other. If he opposes, the burden of proof will be on him to show the petitioner is not entitled to bail. Petitioner will have the right to offer evidence to prove her right thereto. In fine, the hearing is for the purpose of enabling the People's Court to exercise its sound discretion as to whether or not under the Constitution and laws in force petitioner is entitled to provisional release under bail. WHEREFORE, it is the judgement of this Court that: (a) the order of the People's Court, dated October 9, 1945, denying petitioner's petition for provisional release under bail, and the order of said Court, dated October 13, 1945, denying petitioner's motion for reconsideration of said order of October 9, 1945, which we declare to have been entered with grave abuse of discretion, be set aside; and (b) that for the proper application of the pertinent constitutional, statutory, and reglementary provisions alluded to in the body of this decision, a hearing of the petitioner's application for bail be held before the People's Court with due notice to the Solicitor General, as well as to the petitioner, as hereinabove outlined, said hearing, whether summary or otherwise, to be such as would enable the People's Court to exercise its sound discretion in the disposal of the aforesaid petition. Without costs. So ordered.