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Republic of the Philippines

SUPREME COURT
Manila

The charges against appellant stemmed from


the following Informations:
Criminal Case No. Q-03-122555
(Violation of Section 5 [Sale], Article II of RA
9165)

THIRD DIVISION

PEOPLE
OF
THE PHILIPPINES,
Plaintiff-Appellee,

G.R.
No. 186471
Present:

- versus -

RODANTE
LEON
DELAROSA,
AccusedAppellant.

DE
y

CORONA, J.,
Chairperson,
VELASCO, JR.,
NACHURA,
PERALTA, and
MENDOZA, JJ.

Promulgated:
January
25,
2010
x----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
The Case

This is an appeal from the April 4, 2008


Decision[1] of the Court of Appeals (CA) in CAG.R. CR-H.C. No. 01811 entitled People of the
Philippines v. Rodante De Leon y Dela
Rosa which affirmed the December 20, 2005
Decision[2] in Criminal Case Nos. Q-03-12255556 of the Regional Trial Court (RTC), Branch 82
in Quezon City. The RTC found accusedappellant Rodante De Leon guilty of violation of
Sections 5 and 11, Article II of Republic Act No.
(RA) 9165 or the Comprehensive Dangerous
Drugs Act of 2002.
The Facts

That on or about the 9th day of November,


2003, in the Quezon City, Philippines, the said
accused, not being authorized by law, to sell,
dispense, deliver, transport or distribute of any
dangerous drug, did, then and there, wilfully
and unlawfully sell, dispense, deliver, transport,
distribute or act as broker in the said
transaction zero point sixteen (0.16) gram of
methamphetamine hydrochloride a dangerous
drug.
Contrary to law.[3]
Criminal Case No. Q-03-122556
(Violation of Section 11 [Possession], Article II
of RA 9165)
That on or about the 9th day of November,
2003, in the Quezon City, Philippines, the said
accused, not being authorized by law, to
possess or use any dangerous drug, did, then
and there, wilfully, unlawfully and knowingly
have in his/her possession and control zero
point
eighteen
(0.18)
gram
of
methamphetamine hydrochloride, a dangerous
drug.
Contrary to law.[4]
On February 16, 2004, appellant was arraigned
and pleaded not guilty to the charge against
him. After the pre-trial conference, trial on the
merits ensued.
During the trial, the parties agreed to stipulate
on the testimonies of Engr. Leonard Jabonillo,
the Forensic Chemist, and Police Officer 1 (PO1)
Oliver Estrelles, the police investigator of these
cases. The prosecution thereafter presented
PO2 Noel Magcalayo as its witness. The
defense, on the other hand, presented Rodante
De Leon, the accused himself.

The trial court summarized the stipulation of


Engr. Jabonillo, as follows:
x x x that he is a Forensic Chemist of the
Philippine National Police, that his Office
received the request for laboratory examination
marked as Annex A; that together with the said
request was a plastic sachet marked as Exh. B
which contained two (2) plastic sachets marked
as Exhibits B-1 and B-2; that he conducted the
requested laboratory examination and, in
connection therewith he submitted a Chemistry
Report marked as Exhibit C, the finding thereon
showing
the
specimen
positive
for
Methylamphetamine
Hydrochloride
was
marked as Exhibit C-1 and the signature of said
police officer was marked as Exhibit C-2; that he
then issued a Certification marked as Exhibits D
and D-1 and thereafter turned over the
specimen to the evidence custodian x x x.
(Order dated September 14, 2004).[5]

Also, as regards PO1 Estrelles, the following was


agreed upon:
x x x that he was the investigator of these cases
and in connection with the investigation
conducted by him, he received the evidence,
namely: the Joint Affidavit of Apprehension
executed by PO2 Noel Magcalayo and PO2
Cesar Collado marked as Exhibit E and E-1; that
likewise prepared the request for examination
marked as Exhibit A and submitted the
specimen to the Crime Laboratory and receive
the Chemistry Report marked as Exhibit C; that
he received the Pre-Operation Report marked
as Exhibit E as well as the buy bust money
marked as Exhibits F and F-1, that he prepared
the letter request to the City Prosecutor Office
marked as Exhibit G; and that Exhibit A contains
superimposition of the date thereof. (Order
dated September 14, 2004).[6]

The Prosecutions Version of Facts

On November 9, 2003, at about 5 oclock in the


afternoon, a confidential informant arrived at
the office of the Station Anti-Illegal Drug Special
Operation Task Force at the Novaliches Police
Station in Quezon City and reported the illegal
activities of a person named Rodante De Leon.
Thereafter, Police Senior Inspector (P/SInsp.)
Nilo Wong formed a team for a buy-bust
operation with PO2 Magcalayo as poseur-buyer
and Senior Police Officer 3 (SPO3) Mario
Concepcion, PO2 Fernando Salonga, PO2 Cesar
Collado, PO2 Edmund Paculdar, and PO1
Emeterio Mendoza as team members. A preoperation report was prepared. P/SInsp. Wong
then handed to PO2 Magcalayo two (2) pieces
of PhP 100 bills as buy-bust money and on
which PO2 Magcalayo wrote his initials NM.
At around 6:30 p.m. in the evening, the team
proceeded to Sarmiento St., Barangay Sta.
Monica, Novaliches, Quezon City, where the
confidential
informant
introduced
PO2
Magcalayo to appellant as a buyer ofshabu. PO2
Magcalayo then asked appellant if he
had shabu and the latter answered in the
affirmative and asked him how much he would
buy. PO2 Magcalayo handed the money and, in
return, appellant handed him one (1) plastic
sachet containing white crystalline substance.
He then scratched his head, which was the prearranged signal that the transaction was
consummated, and thereafter arrested
appellant. He recovered the buy-bust money
from appellant as PO2 Collado approached
them and handcuffed appellant. Upon frisking
appellant, PO2 Collado discovered another
plastic sachet on the person of appellant.
Afterwards, appellant was brought to the police
station for investigation. PO2 Collado then
placed his initials on the sachet he found on
appellant. The evidence was subsequently
turned over to the police investigator, PO1
Estrelles, who prepared a request for its
laboratory examination.

PO2 Collado, PO1 Mendoza, PO2 Paculdar, and


PO2 Magcalayo then brought the transparent
plastic sachets containing the white crystalline
substance subject of the buy-bust operation to
the Philippine National Police (PNP) Crime
Laboratory, Eastern Police District on St. Francis
Street, Mandaluyong City for examination. Engr.
Jabonillo, a Forensic Chemical Officer,
conducted a qualitative examination on the
specimens, which yielded positive results for
Methylamphetamine
Hydrochloride,
a
dangerous drug. He issued Chemistry Report
No. D-1240-2003 dated November 9, 2003,
which showed the following results:
SPECIMEN SUBMITTED:
Two (2) heat-sealed transparent plastic sachets
each containing white crystalline substance
having the following markings and recorded net
weights:
A (NM) = 0.16 gm
B (CC) = 0.18 gm
xxxx
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of dangerous drugs.
xxxx
FINDINGS:
Qualitative examination conducted on the
above-stated specimens gave POSITIVE result to
the test for Methylamphetamine Hydrochloride,
a dangerous drug. x x x
CONCLUSION:
Specimen A and B contain Methylamphetamine
Hydrochloride, a dangerous drug. x x x

been connected with the PNP for 10 years. On


November 9, 2003, at around 3 oclock in the
afternoon,
he
went
to Sarmiento
St., Barangay Sta. Monica, Novaliches, Quezon
City to look for a kumpadrefrom whom he
intended to borrow money when policemen
accosted him and poked their guns at him. The
people around him ran, and as he was the only
one left on the scene, the policemen asked him
to sit down. He told SPO3 Concepcion, whom he
knew, that he was a police officer but he was
told to shut up and to explain his side at the
police station instead.
Upon arrival at the police station in
Novaliches, Quezon City, his wallet, with his I.D.
and police badge, were taken from him. PO2
Magcalayo told him that he had a fake police
I.D. When appellant tried to explain himself,
PO2 Magcalayo allegedly kicked him
saying, Hindi na uso ang pulis, sundalo na ang
nakaupo ngayon.
The following night, he was presented on
inquest during which he was charged with
violation of Secs. 5 and 11 of RA 9165. He
denied all the charges against him claiming that
the alleged shabu marked as Exhibits B-1 and B2 came from the arresting police officers. He did
not file a case against them, because he had no
money and because he knew that he was not
guilty.
On cross-examination, appellant further
testified that he was a follow-up operative at
the Station Investigation Division of Police
Station 7. He admitted that he was separated
from the service because he was absent
without official leave due to a business problem
he had to attend to. He likewise said that he did
not know his arresting officers, whom he saw
then for the first time, and that he was not
familiar with RA 9165.

Version of the Defense


Ruling of the Trial Court
On the other hand, appellant testified that,
prior to his arrest, he was a police officer of
Station 7, Araneta, Cubao, Quezon City and had

After trial, the RTC convicted appellant. The


dispositive portion of its Decision reads:

WHEREFORE, premises considered, judgment is


hereby rendered as follows:
Re: Criminal Case NO. Q-03-122555, the Court
finds accused RODANTE DE LEON y DELA
ROSA guiltybeyond reasonable doubt of a
violation of Section 5, Article II of R.A. No. 9165
otherwise known as the Comprehensive
Dangerous Drugs Act of 2002, and hereby
sentences him to suffer the penalty of life
imprisonment and to pay a fine in the amount
of P500,000.00;
Re: Criminal Case NO. Q-03-122556, the Court
finds accused RODANTE DE LEON y DELA
ROSA guiltybeyond reasonable doubt of a
violation of Section 11, Article II of R.A. No.
9165 otherwise known as the Comprehensive
Dangerous Drugs Act of 2002, and hereby
sentences him to suffer the indeterminate
penalty of twelve (12) years and one (1) day as
minimum to fifteen (15) years and one (1) day
as maximum and to pay a fine in the amount of
P300,000.00;
SO ORDERED.[7]

On appeal to the CA, appellant disputed the


trial courts decision finding him guilty beyond
reasonable doubt of the crimes charged. He
argued that the alleged buy-bust operation
conducted by the police officers was tainted
with irregularities and that the prosecution
failed to prove the chain of custody of the
evidence.

appellant Rodante De Leon y Dela Rosa guilty


beyond reasonable doubt in Criminal Case No.
Q-03-122555 for violation of Section 5, Article II
of Republic Act No. 9165 and sentencing him to
suffer the penalty of life imprisonment and to
pay a fine in the amount of P500,000.00, and
in Criminal Case No. Q-03-122556 for violation
of Section 11, Article II of R.A. No. 9165
otherwise known as the Comprehensive
Dangerous Drugs Act of 2002, sentencing him to
suffer the indeterminate penalty of twelve (12)
years and one (1) day as minimum to fifteen
(15) years and one (1) day as maximum and to
pay a fine in the amount of P300,000.00,
is AFFIRMED.
SO ORDERED.[8]

Appellant filed a timely notice of appeal of the


decision of the CA.
The Issues
Appellant assigns the following errors:
I.
The trial court gravely erred in ignoring the fact
that the prosecution failed to prove the chain of
custody of the alleged confiscated items from
the accused-appellant.
II.

Ruling of the Appellate Court

The trial court gravely erred in finding the


accused-appellant guilty of the crimes charged
despite the failure of the prosecution to prove
his guilt beyond reasonable doubt.

On April 4, 2008, the CA affirmed the judgment


of the trial court. The dispositive portion of its
Decision reads:

Our Ruling

WHEREFORE, premises considered, the appeal


is DENIED for lack of merit. The Decision dated
20 December 2005 of the Regional Trial Court of
Quezon City, Branch 82 finding accused-

We sustain appellants conviction.


Guilt of Appellant Was Proved Beyond
Reasonable Doubt

Appellant assails his conviction by contending


that the trial court failed to prove his guilt
beyond reasonable doubt. According to him,
the trial court erroneously convicted him on the
basis of the evidence of the prosecution despite
a question of the legality of the buy-bust
operation. Further, he asserts that the trial
court relied on the disputable presumption of
regularity in the performance of the police
function, despite the police officers violated the
rule on chain of custody of the alleged
confiscated items.
The contentions are unmeritorious.
It is a fundamental rule that findings of the trial
court which are factual in nature and which
involve the credibility of witnesses are accorded
with respect, when no glaring errors, gross
misapprehension of facts, and speculative,
arbitrary, and unsupported conclusions can be
gathered from such findings.[9] The reason for
this is that the trial court is in a better position
to decide the credibility of witnesses having
heard their testimonies and observed their
deportment and manner of testifying during the
trial.[10]
After a thorough examination of the entire
records of this case, this Court has failed to
identify any error committed by the trial court
in its appreciation of the evidence presented
before it and in the conclusion it reached.
In the prosecution for the crime of illegal sale of
prohibited drugs, the Court has reiterated the
essential elements in People v. Pendatun, to
wit: (1) the accused sold and delivered a
prohibited drug to another; and (2) he knew
that what he had sold and delivered was a
prohibited drug.[11] Therefore, what is material
is the proof that the transaction or sale actually
took place, coupled with the presentation in
court of evidence of the corpus delicti.[12] Corpus
delicti is the body or substance of the crime,
and establishes the fact that a crime has
actually been committed. It has two elements,

namely: (1) proof of the occurrence of a certain


event; and (2) some persons criminal
responsibility for the act.[13]
In the instant case, the prosecution sufficiently
established the elements of the crime.
Appellant sold and delivered the shabu for PhP
200 to PO2 Magcalayo posing as buyer; the said
drug was seized and identified as a prohibited
drug and subsequently presented in evidence;
there was actual exchange of the marked
money and contraband; and finally, appellant
was fully aware that he was selling and
delivering a prohibited drug. In fact, PO2
Magcalayo testified, thus:
Q: Mr. Witness, on November 9, 2003, did you
report for duty?
A: Yes, sir.
Q: What happened when you reported for
duty?
A: Our confidential informant personally
appeared in our station and reporting to us the
alleged drug pushing activity of Rodante De
Leon.
Q: What time was that when this confidential
informant arrived at your office?
A: Around 5:00 p.m., sir.
Q: What happened when this confidential
informant relayed to you the information about
this Rodante De Leon?
A: Our Chief sir, formed a team for possible buy
bust operation.
COURT:
Who formed?
A: P/Sr. Inspector Nilo Wong, your honor.
PROS. ANTERO:
Who composed this team?
A: Us, sir. SPO3 Mario Concepcion, PO2
Fernando Salonga, PO2 Cesar Collado, PO2
Edmund Paculdar and PO1 Emeterio Mendoza,
your Honor.
Q: What happened when this team was formed,
Mr. Witness?
A: We proceeded to Sarmiento Street, sir, for
buy bust operation.

COURT:
Were you among the team?
A: Yes, your Honor.
PROS. ANTERO:
Prior to the dispatch to conduct that buy-bust
operation, what happened, if any?
A: We prepared the pre-operation report and
our Chief handed to me the two (2) pieces of
P100.00 bills as buy bust money.
Q: What did you do with that two (2) P100.00
bills?
A: Before we were dispatched, I put my initial
on the buy-bust money.
Q: What initial?
A: NM, sir.
Q: What [does] NM stand for?
A: Noel Magcalayo, sir.
Q: I am showing you these two (2) P100.00 bills,
kindly examine the same whether you know
those P100.00 bills?
A: These are the buy bust money that we used
in the operation, sir.
xxxx
Q: What happened after you were given these
buy bust money?
A: We proceeded to Sarmiento Street, Barangay
Sta. Monica, Novaliches, Quezon City.
Q: What time was that when you proceeded
there?
A: At around 6:30 in the afternoon, sir.
Q: What happened, Mr. Witness?
A: We were able to meet Rodante De Leon.
Q: How did you meet this Rodante De Leon?
A: By the help of our confidential informant, sir.
Q: Can you tell this Hon. Court how you made a
contact with this Rodante De Leon?
A: We approached him and then our
confidential informant introduced me to him as
a buyer of shabu.
COURT:
What?
A: I was introduced to him by the confidential
informant as a buyer of shabu.

PROS. ANTERO:
What happened thereafter?
A: He made transaction with us, sir.
Q: What happened during the transaction?
A: I asked him sir if he has shabu and then he
answered yes and magkano.
Q: What did he tell you, if any?
A: He asked me how much I would buy shabu.
Q: What did you tell, if any?
A: That was the time when I handed to him the
money, sir.
Q: What happened when you handed the
money to him?
A: In return, sir, he handed to me one (1) plastic
sachet containing suspected shabu.
Q: One?
A: Yes, sir.
Q: What happened after he handed to you one
plastic sachet?
A: I gave pre-arranged signal to my back-up and
immediately effected the arrest, sir.
Q: What was the pre-arranged signal?
A: By scratching my head, sir.
Q: Scratching your head?
A: Yes, sir.
Q: What happened when you made that prearranged signal?
A: I effected the arrest, sir, and confiscated the
buy bust money from Rodante De Leon.[14]

Evidently, all the elements of the crime of illegal


sale of prohibited drugs were proved in the
instant case. The testimony cited above shows
clearly that a sale occurred between appellant,
as the seller, and PO2 Magcalayo, as the buyer,
for PhP 200 worth of shabu. In addition, the
said testimony illustrated the seizing of the
prohibited drug and the exchange of the
marked money. As a matter of fact, the trial
court, in disposing of the case, said:
x x x Set against this legal yardstick, the
evidence adduced by the prosecution have
sufficiently established the elements aforesaid.
The prosecution witnesses in the person of PO2
Noel Magcalayo, the one who acted as the
poseur buyer in the buy bust operation
conducted by his team, described in detail how

the operation was commenced with the help of


an informant, his introduction to the accused,
the ensuing negotiation and consummation of
the sale of shabu which ended up in the
exchange of the item as well as the buy bust
money. Accused was positively identified as the
seller thereof and the source of the plastic
sachet which contained crystalline substance
later on determined after laboratory
examination
as
positive
for
methylamphetamine, a dangerous drug. Said
evidence was presented in court and properly
identified as the subject of the buy bust and
which was submitted for examination by the
Forensic Chemist. All told, all the elements
aforementioned are hereby present.[15] x x x

Further, the chain of custody was clearly


established by the prosecution. It is elementary
that, in every prosecution for the illegal sale of
prohibited drugs, the presentation of the drug
as evidence in court is material.[16]It is,
therefore, essential that the identity of the
prohibited drug be established beyond doubt.
What is more, the fact that the substance
bought during the buy-bust operation is the
same substance offered in court should be
established. The chain of custody requirement
performs this function in that it ensures that
unnecessary doubts concerning the identity of
the evidence are removed.[17]
To ensure that the chain of custody is
established, the Implementing Rules and
Regulations of RA 9165 provide:
SECTION 21. Custody and Disposition of
Confiscated, Seized and/or Surrendered
Dangerous Drugs, Plant Sources of Dangerous
Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or
Laboratory
Equipment. The
PDEA
shall
take charge and have custody of all dangerous
drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals,
as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized

and/or surrendered, for proper disposition in


the following manner:
(a)
The apprehending officer/team
having initial custody and control of the drugs
shall,
immediately
after
seizure
and
confiscation,
physically
inventory
and
photograph the same in the presence of the
accused or the person/s from whom such items
were confiscated and/or seized, or his/her
representative or counsel, a representative
from the media and the Department of Justice
(DOJ), and any elected public official who shall
be required to sign the copies of the inventory
and be given a copy thereof; Provided, that the
physical inventory and photograph shall be
conducted at the place where the search
warrant is served; or at the nearest police
station or at the nearest office of the
apprehending officer/team, whichever is
practicable,
in
case
of
warrantless
seizures; Provided,
further,that
noncompliance with these requirements under
justifiable grounds, as long as the integrity and
evidentiary value of the seized items are
properly preserved by the apprehending
officer/team, shall not render void and invalid
such seizures of and custody over said items x
x x. (Emphasis supplied.)

A close examination of the law reveals that it


admits of certain exceptions. Thus, contrary to
the assertions of appellant, Sec. 21 of the
foregoing law need not be followed as an exact
science. Non-compliance with Sec. 21 does not
render an accuseds arrest illegal or the items
seized/confiscated
from
him
[18]
inadmissible. What is essential is the
preservation of the integrity and the evidentiary
value of the seized items, as the same would be
utilized in the determination of the guilt or
innocence of the accused.[19]
In the instant case, there was substantial
compliance with the law and the integrity of the
drugs seized from appellant was preserved. The
chain of custody of the drugs subject matter of

the case was shown not to have been broken.


The factual milieu of the case reveals that after
PO2 Magcalayo seized and confiscated the
dangerous drugs, as well as the marked money,
appellant was immediately arrested and
brought to the police station for investigation,
where the sachet of suspected shabu was
marked with NM. Immediately thereafter, the
confiscated substance, with a letter of request
for examination, was submitted to the PNP
Crime Laboratory for examination to determine
the presence of any dangerous drug.
Per Chemistry Report No. D-1240-2003 dated
November 9, 2003, the specimen submitted
contained methylamphetamine hydrochloride,
a dangerous drug. The examination was
conducted by one Engr. Jabonillo, a Forensic
Chemical Officer of the PNP Crime Laboratory,
whose stipulated testimony clearly established
the chain of custody of the specimens he
received. Thus, it is without a doubt that there
was an unbroken chain of custody of the illicit
drug purchased from appellant.
Likewise, the prosecution was able to prove
that appellant is guilty of illegal possession of
dangerous drugs with moral certainty. In the
prosecution for illegal possession of dangerous
drugs, the following elements must be proved
with moral certainty: (1) that the accused is in
possession of the object identified as a
prohibited or regulatory drug; (2) that such
possession is not authorized by law; and (3) that
the accused freely and consciously possessed
the said drug.[20]
Here, appellant was caught in actual possession
of the prohibited drugs without showing any
proof that he was duly authorized by law to
possess them. Having been caught in flagrante
delicto, there is prima facie evidence of animus
possidendi on appellants part. As held by this
Court, the finding of a dangerous drug in the
house or within the premises of the house of
the accused is prima facie evidence of
knowledge or animus possidendi and is enough
to convict in the absence of a satisfactory
explanation.[21] In the case at bar, appellant

failed to present any evidence to rebut


his animus possidendi of the shabu found in his
pocket during the buy-bust operation.
Buy-Bust Operation Was Valid
Appellant further argues that the buy-bust
operation was full of irregularities, rendering it
illegal. He notes that the Pre-Operation Report
was full of discrepancies and that the Joint
Sworn Affidavit of Apprehension of PO2
Magcalayo and PO2 Collado failed to mention
that they placed their markings on the plastic
sachets.
The arguments are specious. Such irregularities
cannot overturn the finding of the presence in
this case of the elements of violations of Secs. 5
and 11, Art. II of RA 9165.
A buy-bust operation is a form of entrapment
whereby ways and means are resorted to for
the purpose of trapping and capturing the
lawbreakers in the execution of their criminal
plan.[22] In this jurisdiction, the operation is legal
and has been proved to be an effective method
of apprehending drug peddlers, provided due
regard to constitutional and legal safeguards is
undertaken.[23]
In the case at bar, the evidence clearly shows
that the buy-bust operation conducted by the
police officers, who made use of entrapment to
capture appellant in the act of selling a
dangerous drug, was valid and legal.
Moreover, the defense has failed to show any
evidence of ill motive on the part of the police
officers. Even appellant himself declared that it
was the first time he met the police officers
during his cross-examination. There was,
therefore, no motive for the police officers to
frame up appellant.
Likewise, the identity of appellant as the person
who sold the dangerous drugs to PO2
Magcalayo and the one in possession of
the shabu cannot be doubted anymore. Such
positive identification prevails over appellants
defenses of denial and alibi. These defenses

have been invariably viewed by the Court with


disfavor, for they can easily be concocted but
difficult to prove, and they are common and
standard defense ploys in most prosecutions
arising from violations of the Comprehensive
Dangerous Drugs Act.[24]
Absent any proof of motive to falsely accuse
appellant of such a grave offense, the
presumption of regularity in the performance of
official duty and the findings of the trial court
with respect to the credibility of witnesses shall
prevail over appellants bare allegation.[25]
We, therefore, uphold the presumption of
regularity in the performance of official duties
and find that the prosecution has discharged its
burden of proving the guilt of appellant beyond
reasonable doubt.
WHEREFORE, the appeal is DENIED. The CAs
Decision in CA-G.R. CR-H.C. No. 01811 finding
appellant Rodante De Leon y Dela Rosa guilty of
the crimes charged is AFFIRMED.
SO ORDERED.

Republic
of
the
Philippines
SUPREME
COURT
Manila
FIRST DIVISION
G.R. No. 128587
March 16, 2007
PEOPLE
OF
THE
PHILIPPINES, Petitioner,
vs.
HON. PERFECTO A.S. LAGUIO, JR., in
his capacity as Presiding Judge, Branch
18, RTC, Manila, and LAWRENCE WANG
Y CHEN, Respondents.
DECISION
GARCIA, J.:
On pure questions of law, petitioner People
of the Philippines has directly come to this
Court via this petition for review on certiorari

to
nullify
and
set
aside
the
Resolution1 dated 13 March 1997 of the
Regional Trial Court of Manila, Branch 18,
in Criminal Case Nos. 96-149990 to 96149992, entitled People of the Philippines v.
Lawrence Wang y Chen, granting private
respondent Lawrence C. Wangs Demurrer
to Evidence and acquitting him of the three
(3) charges filed against him, namely: (1)
Criminal Case No. 96-149990 for Violation
of Section 16, Article III in relation to Section
2(e)(2), Article I of Republic Act (R.A.) No.
6425 (Dangerous Drugs Act); (2) Criminal
Case No. 96-149991 for Violation of
Presidential Decree No. 1866 (Illegal
Possession of Firearms); and (3) Criminal
Case No. 96-149992 for Violation of
Comelec Resolution No. 2828 in relation to
R.A. No. 7166 (COMELEC Gun Ban).
The three (3) separate Informations filed
against Lawrence C. Wang in the court of
origin respectively read:
Criminal Case No. 96-149990 (Violation of
Dangerous Drugs Act):
That on or about the 17th day of May 1996,
in the City of Manila, Philippines, the said
accused did then and there willfully,
unlawfully and knowingly have in his
possession and under his custody and
control a bulk of white and yellowish
crystalline substance known as SHABU
contained in thirty-two (32) transparent
plastic bags weighing approximately
29.2941
kilograms,
containing
methamphetamine
hydrochloride,
a
regulated drug, without the corresponding
license or prescription therefor.
Contrary to law.2
Criminal Case No. 96-149991 (Illegal
Possession of Firearms):
That on or about the 17th day of May 1996,
in the City of Manila, Philippines, the said
accused did then and there willfully,
unlawfully and knowingly have in his
possession and under his custody and
control one (1) DAEWOO Cal. 9mm,
automatic pistol with one loaded magazine
and one AMT Cal. .380 9mm automatic
backup pistol with magazine loaded with
ammunitions without first having secured

the necessary license or permit therefor


from the proper authorities.
Contrary to law. 3
Criminal Case No. 96-149992 (Violation of
Comelec Gun Ban):
That on or about the 17th day of May 1996,
in the City of Manila, Philippines, the said
accused did then and there willfully,
unlawfully and knowingly have in his
possession and under his custody and
control one (1) DAEWOO Cal. 9mm
automatic pistol with one loaded magazine
and one (1) AMT Cal. 380 9mm automatic
backup pistol with magazine loaded with
ammunitions, carrying the same along
Maria Orosa St., Ermita, Manila, which is a
public place, on the date which is covered
by an election period, without first securing
the written permission or authority from the
Commission on Elections, as provided by
the COMELEC Resolution 2828 in relation
to Republic Act 7166.
Contrary to law. 4
During his arraignment, accused Wang
refused to enter a plea to all the
Informations and instead interposed a
continuing objection to the admissibility of
the evidence obtained by the police
operatives. Thus, the trial court ordered that
a plea of "Not Guilty" be entered for
him.5 Thereafter, joint trial of the three (3)
consolidated cases followed.
The pertinent facts are as follows:
On 16 May 1996, at about 7:00 p.m., police
operatives of the Public Assistance and
Reaction Against Crime of the Department
of Interior and Local Government, namely,
Captain Margallo, Police Inspector Cielito
Coronel and SPO3 Reynaldo Cristobal,
arrested SPO2 Vergel de Dios, Rogelio
Anoble and a certain Arellano, for unlawful
possession
of
methamphetamine
hydrochloride, a regulated drug popularly
known as shabu. In the course of the
investigation of the three arrested persons,
Redentor Teck, alias Frank, and Joseph
Junio were identified as the source of the
drug. An entrapment operation was then set
after the three were prevailed upon to call
their source and pretend to order another
supply of shabu.

At around 11:00 p.m. that same date,


Redentor Teck and Joseph Junio were
arrested while they were about to hand over
another bag of shabu to SPO2 De Dios and
company. Questioned, Redentor Teck and
Joseph Junio informed the police operatives
that they were working as talent manager
and gymnast instructor, respectively, of
Glamour Modeling Agency owned by
Lawrence Wang. Redentor Teck and
Joseph Junio did not disclose their source
of shabu but admitted that they were
working for Wang.6 They also disclosed that
they knew of a scheduled delivery of shabu
early the following morning of 17 May 1996,
and that their employer (Wang) could be
found at the Maria Orosa Apartment in
Malate, Manila. The police operatives
decided to look for Wang to shed light on
the illegal drug activities of Redentor Teck
and Joseph Junio. Police Inspector Cielito
Coronel and his men then proceeded to
Maria Orosa Apartment and placed the
same under surveillance.
Prosecution witness Police Inspector Cielito
Coronel testified that at about 2:10 a.m. of
17 May 1996, Wang, who was described to
the operatives by Teck, came out of the
apartment and walked towards a parked
BMW car. On nearing the car, he (witness)
together with Captain Margallo and two
other police officers approached Wang,
introduced themselves to him as police
officers, asked his name and, upon hearing
that he was Lawrence Wang, immediately
frisked him and asked him to open the back
compartment of the BMW car. 7 When
frisked, there was found inside the front
right pocket of Wang and confiscated from
him an unlicensed AMT Cal. 380 9mm
automatic Back-up Pistol loaded with
ammunitions. At the same time, the other
members of the operatives searched the
BMW car and found inside it were the
following items: (a) 32 transparent plastic
bags containing white crystalline substance
with a total weight of 29.2941 kilograms,
which substance was later analyzed as
positive
for
methamphetamine
hydrochloride, a regulated drug locally
known as shabu; (b) cash in the amount

ofP650,000.00; (c) one electronic and one


mechanical scales; and (d) an unlicensed
Daewoo 9mm Pistol with magazine. Then
and there, Wang resisted the warrantless
arrest and search.8
On 6 December 1996, the prosecution
rested its case and upon motion, accused
Wang was granted 25 days from said date
within which to file his intended Demurrer to
Evidence.9 On 19 December 1996, the
prosecution filed a Manifestation 10 to the
effect that it had rested its case only in so
far as the charge for Violation of the
Dangerous Drugs Act in Criminal Case No.
96-149990 is concerned, and not as regards
the two cases for Illegal Possession of
Firearms (Crim. Case No. 96-149991) and
Violation of the Comelec Gun Ban (Crim.
Case No. 96-149992). Accordingly, trial
continued.
On 9 January 1997, Wang filed his undated
Demurrer to Evidence,11 praying for his
acquittal and the dismissal of the three (3)
cases against him for lack of a valid arrest
and search warrants and the inadmissibility
of the prosecutions evidence against him.
Considering that the prosecution has not yet
filed its Opposition to the demurrer, Wang
filed an Amplification12 to his Demurrer of
Evidence on 20 January 1997. On 12
February 1997, the prosecution filed its
Opposition13 alleging that the warrantless
search was legal as an incident to the lawful
arrest and that it has proven its case, so it is
now time for the defense to present its
evidence.
On 13 March 1997, the respondent judge,
the Hon. Perfecto A.S. Laguio, Jr., issued
the herein assailed Resolution 14 granting
Wangs Demurrer to Evidence and
acquitting him of all charges for lack of
evidence, thus:
WHEREFORE, the accused's undated
Demurrer to Evidence is hereby granted;
the accused is acquitted of the charges
against him for the crimes of Violation of
Section 16, Article III of the Dangerous
Drugs Act, Illegal Possession of Firearms,
and Violation of Comelec Gun Ban, for lack
of evidence; the 32 bags of shabu with a
total weight of 29.2941 kilograms and the

two unlicensed pistols, one AMT Cal. .380


9mm and one Daewoo Cal. 9mm. are
ordered confiscated in favor of the
government and the branch clerk is directed
to turn over the 32 bags of shabu to the
Dangerous Drugs Board in Intramuros,
Manila, and the two firearms to the Firearms
and Explosive Units, PNP, Camp Crame,
Quezon City, for proper disposition, and the
officer-in-charge of PARAC, Department of
Interior and Local Government, is ordered to
return
the
confiscated
amount
of
P650,000.00 to the accused, and the
confiscated BMW car to its registered
owner, David Lee. No costs.
SO ORDERED.
Hence, this petition15 for review on certiorari
by the People, submitting that the trial court
erred I
XXX
IN
HOLDING
THAT
THE
UNDISPUTED
FACTS
AND
CIRCUMSTANCES
DID
NOT
CONSTITUTE PROBABLE CAUSE WITHIN
THE CONTEMPLATION OF SECTION 2,
ARTICLE III OF THE CONSTITUTION,
AND IN HOLDING THAT SUCH FACTS
AND
CIRCUMSTANCES
NEITHER
JUSTIFIED
THE
WARRANTLESS
SEARCH OF ACCUSED'S VEHICLE AND
THE SEIZURE OF THE CONTRABAND
THEREIN.
ll
XXX IN HOLDING, IN EFFECT, THAT A
WARRANTLESS
SEARCH
IS
CONSTITUTIONALLY ALLOWABLE AND
CAN ONLY BE VALID AS AN INCIDENT
TO A LAWFUL ARREST.
lII
XXX IN DECLARING THE WARRANTLESS
ARREST OF THE ACCUSED AND THE
SEARCH AND SEIZURE OF HIS
HANDGUNS UNLAWFUL.
IV
XXX IN NOT DECLARING THE ACCUSED
AS HAVING WAIVED, AS A RESULT OF
HIS SUBMISSION AND FAILURE TO
PROTEST THE SEARCH AND HIS
ARREST, HIS CONSTITUTIONAL RIGHT
AGAINST UNREASONABLE SEARCH
AND SEIZURE AND HIS OBJECTION TO

THE ADMISSION OF THE EVIDENCE


SEIZED.
V
XXX IN NOT ADMITTING IN EVIDENCE
THE EVIDENCE SEIZED AND OFFERED
BY THE PROSECUTION AND IN NOT
DENYING ACCUSED'S DEMURRER TO
EVIDENCE.
In its Resolution16 of 9 July 1997, the Court,
without giving due course to the petition,
required the public and private respondents
to comment thereon within ten days from
notice. Private respondent Wang filed his
comment17on 18 August 1997.
On 10 September 1997, the Court required
the People to file a reply,18 which the Office
of the Solicitor General did on 5 December
1997, after several extensions. 19
On 20 October 2004, the Court resolved to
give due course to the petition and required
the parties to submit their respective
memoranda,20 which they did.
The case presents two main issues: (a)
whether the prosecution may appeal the
trial courts resolution granting Wangs
demurrer to evidence and acquitting him of
all the charges against him without violating
the constitutional proscription against
double jeopardy; and (b) whether there was
lawful arrest, search and seizure by the
police operatives in this case despite the
absence of a warrant of arrest and/or a
search warrant.
First off, it must be emphasized that the
present case is an appeal filed directly with
this Court via a petition for review on
certiorari under Rule 45 in relation to Rule
41, Section 2, paragraph (c) of the Rules of
Court raising only pure questions of law,
ordinary appeal by mere filing of a notice of
appeal not being allowed as a mode of
appeal directly to this Court. Then, too, it
bears stressing that the right to appeal is
neither a natural right nor a part of due
process, it being merely a statutory privilege
which may be exercised only in the manner
provided for by law (Velasco v. Court of
Appeals21). Although Section 2, Rule 122 of
the Rules on Criminal Procedure states that
any party may appeal, the right of the
People to appeal is, in the very same

provision, expressly made subject to the


prohibition against putting the accused in
double jeopardy. It also basic that appeal in
criminal cases throws the whole records of
the case wide open for review by the
appellate court, that is why any appeal from
a judgment of acquittal necessarily puts the
accused in double jeopardy. In effect, the
very same Section 2 of Rule 122 of the
Rules on Criminal Procedure, disallows
appeal by the People from judgments of
acquittal.
An order granting an accuseds demurrer to
evidence is a resolution of the case on the
merits, and it amounts to an acquittal.
Generally, any further prosecution of the
accused after an acquittal would violate the
constitutional proscription
on
double
jeopardy. To this general rule, however, the
Court
has
previously
made
some
exceptions.
The celebrated case of Galman v.
Sandiganbayan22 presents one exception to
the rule on double jeopardy, which is, when
the prosecution is denied due process of
law:
No court whose Presiding Justice has
received "orders or suggestions" from the
very President who by an amendatory
decree (disclosed only at the hearing of oral
arguments on November 8, 1984 on a
petition challenging the referral of the
Aquino-Galman murder cases to the
Tanodbayan and Sandiganbayan instead of
to a court martial, as mandatorily required
by the known P.D. 1850 at the time
providing for exclusive jurisdiction of courts
martial over criminal offenses committed by
military men) made it possible to refer the
cases to the Sandiganbayan, can be an
impartial court, which is the very essence of
due process of law. As the writer then
wrote, "jurisdiction over cases should be
determined by law, and not by preselection
of the Executive, which could be much too
easily transformed into a means of
predetermining the outcome of individual
cases." This criminal collusion as to the
handling and treatment of the cases by
public
respondents
at
the
secret
Malacaang conference (and revealed only

after fifteen months by Justice Manuel


Herrera) completely disqualified respondent
Sandiganbayan and voided ab initio its
verdict. This renders moot and irrelevant for
now
the
extensive
arguments
of
respondents accused, particularly Generals
Ver and Olivas and those categorized as
accessories, that there has been no
evidence or witness suppressed against
them, that the erroneous conclusions of
Olivas as police investigator do not make
him an accessory of the crimes he
investigated and the appraisal and
evaluation of the testimonies of the
witnesses presented and suppressed.
There will be time and opportunity to
present
all
these
arguments
and
considerations at the remand and retrial of
the cases herein ordered before a neutral
and impartial court.
The Supreme Court cannot permit such a
sham trial and verdict and travesty of justice
to stand unrectified. The courts of the land
under its aegis are courts of law and justice
and equity. They would have no reason to
exist if they were allowed to be used as
mere tools of injustice, deception and
duplicity to subvert and suppress the truth,
instead of repositories of judicial power
whose judges are sworn and committed to
render impartial justice to all alike who seek
the enforcement or protection of a right or
the prevention or redress of a wrong,
without fear or favor and removed from the
pressures of politics and prejudice. More so,
in the case at bar where the people and the
world are entitled to know the truth, and the
integrity of our judicial system is at stake. In
life, as an accused before the military
tribunal Ninoy had pleaded in vain that as a
civilian he was entitled to due process of
law and trial in the regular civil courts before
an impartial court with an unbiased
prosecutor. In death, Ninoy, as the victim of
the "treacherous and vicious assassination"
and the relatives and sovereign people as
the aggrieved parties plead once more for
due process of law and a retrial before an
impartial court with an unbiased prosecutor.
The Court is constrained to declare the
sham trial a mock trial the non-trial of the

century and that the predetermined


judgment of acquittal was unlawful and void
ab initio.
1. No double jeopardy. It is settled
doctrine that double jeopardy cannot be
invoked against this Court's setting aside of
the trial courts' judgment of dismissal or
acquittal where the prosecution which
represents the sovereign people in criminal
cases is denied due process. As the Court
stressed in the 1985 case of People vs.
Bocar,
Where the prosecution is deprived of a fair
opportunity to prosecute and prove its case,
its right to due process is thereby violated.
The cardinal precept is that where there is a
violation of basic constitutional rights, courts
are ousted of their jurisdiction. Thus, the
violation of the State's right to due process
raises a serious jurisdictional issue
(Gumabon vs. Director of the Bureau of
Prisons, L-30026, 37 SCRA 420 [Jan. 30,
1971]) which cannot be glossed over or
disregarded at will. Where the denial of the
fundamental right of due process is
apparent, a decision rendered in disregard
of that right is void for lack of jurisdiction
(Aducayen vs. Flores, L-30370 [May 25,
19731, 51 SCRA 78; Shell Co. vs. Enage,
L-30111-12, 49 SCRA 416 Feb. 27, 1973]).
Any judgment or decision rendered
notwithstanding such violation may be
regarded as a "lawless thing, which can be
treated as an outlaw and slain at sight, or
ignored wherever it exhibits its head"
(Aducayen vs. Flores, supra).
Respondent Judge's dismissal order dated
July 7, 1967 being null and void for lack of
jurisdiction, the same does not constitute a
proper basis for a claim of double jeopardy
(Serino vs. Zosa, supra).
xxx xxx xxx
Legal jeopardy attaches only (a) upon a
valid indictment, (b) before a competent
court, (c) after arraignment, (d) a valid plea
having been entered; and (e) the case was
dismissed or otherwise terminated without
the express consent of the accused (People
vs. Ylagan, 58 Phil. 851). The lower court
was not competent as it was ousted of its

jurisdiction when it violated the right of the


prosecution to due process.
In effect, the first jeopardy was never
terminated, and the remand of the criminal
case for further hearing and/or trial before
the lower courts amounts merely to a
continuation of the first jeopardy, and does
not expose the accused to a second
jeopardy.
Another exception is when the trial court
commits grave abuse of discretion in
dismissing a criminal case by granting the
accuseds demurrer to evidence. In point is
the fairly recent case of People v.
Uy,23 which involved the trial courts
decision which granted the two separate
demurrers to evidence filed by the two
accused therein, both with leave of court,
resulting in their acquittal of their respective
charges of murder due to insufficiency of
evidence. In resolving the petition for
certiorari filed directly with this Court, we
had the occasion to explain:
The general rule in this jurisdiction is that a
judgment of acquittal is final and
unappealable. People
v.
Court
of
Appeals explains the rationale of this rule:
In our jurisdiction, the finality-of-acquittal
doctrine as a safeguard against double
jeopardy faithfully adheres to the principle
first enunciated in Kepner v. United States.
In this case, verdicts of acquittal are to be
regarded
as
absolutely
final
and
irreviewable. The cases of United States v.
Yam
Tung
Way, People
v.
Bringas, Gandicela v. Lutero, People v.
Cabarles, People v. Bao, to name a few, are
illustrative
cases.
The
fundamental
philosophy
behind
the
constitutional
proscription against double jeopardy is to
afford the defendant, who has been
acquitted, final repose and safeguard him
from government oppression through the
abuse of criminal processes. As succinctly
observed in Green v. United States "(t)he
underlying idea, one that is deeply ingrained
in at least the Anglo-American system of
jurisprudence, is that the State with all its
resources and power should not be allowed
to make repeated attempts to convict an
individual for an alleged offense, thereby

subjecting him to embarrassment, expense


and ordeal and compelling him to live in a
continuing state of anxiety and insecurity, as
well as enhancing the possibility that even
though innocent, he may be found guilty."
(Underscoring supplied)
The same rule applies in criminal cases
where a demurrer to evidence is granted.
As held in the case of People v.
Sandiganbayan:
The demurrer to evidence in criminal cases,
such as the one at bar, is "filed after the
prosecution had rested its case," and when
the same is granted, it calls "for an
appreciation of the evidence adduced by the
prosecution and its sufficiency to warrant
conviction beyond reasonable doubt,
resulting in a dismissal of the case on the
merits, tantamount to an acquittal of the
accused." Such dismissal of a criminal case
by the grant of demurrer to evidence may
not be appealed, for to do so would be to
place the accused in double-jeopardy. The
verdict being one of acquittal, the case ends
there. (Italics in the original)
Like any other rule, however, the abovesaid rule is not absolute. By way of
exception, a judgment of acquittal in a
criminal case may be assailed in a petition
for certiorari under Rule 65 of the Rules of
Court upon a clear showing by the petitioner
that the lower court, in acquitting the
accused, committed not merely reversible
errors of judgment but also grave abuse of
discretion amounting to lack or excess of
jurisdiction or a denial of due process, thus
rendering the assailed judgment void.
(Emphasis supplied.)
In Sanvicente v. People,24 the Court allowed
the review of a decision of the Court of
Appeals (CA) which reversed the accuseds
acquittal upon demurrer to evidence filed by
the accused with leave of court, the CA
ruling that the trial court committed grave
abuse of discretion in preventing the
prosecution from establishing the due
execution and authenticity of certain letter
marked therein as Exhibit "LL," which
supposedly "positively identified therein
petitioner as the perpetrator of the crime
charged." The Court, in a petition for

certiorari, sustained the CAs power to


review the order granting the demurrer to
evidence, explaining thus:
Under Rule 119, Section 23 of the Revised
Rules of Criminal Procedure, as amended,
the trial court may dismiss the action on the
ground of insufficiency of evidence upon a
demurrer to evidence filed by the accused
with or without leave of court. In resolving
accuseds demurrer to evidence, the court is
merely required to ascertain whether there
is competent or sufficient evidence to
sustain the indictment or support a verdict of
guilt.
The grant or denial of a demurrer to
evidence is left to the sound discretion of
the trial court and its ruling on the matter
shall not be disturbed in the absence of a
grave abuse of discretion. Significantly,
once the court grants the demurrer, such
order amounts to an acquittal and any
further prosecution of the accused would
violate the constitutional proscription on
double jeopardy. This constitutes an
exception to the rule that the dismissal of a
criminal case made with the express
consent of the accused or upon his own
motion bars a plea of double jeopardy. The
finality-of-acquittal rule was stressed thus in
People v. Velasco:
The fundamental philosophy highlighting the
finality of an acquittal by the trial court cuts
deep into the "humanity of the laws and in
jealous watchfulness over the rights of the
citizens, when brought in unequal contest
with the State xxx. Thus Green expressed
the concern that "(t)he underlying idea, one
that is deeply ingrained in at least the
Anglo-American system of jurisprudence, is
that the State with all its resources and
power should not be allowed to make
repeated attempts to convict an individual
for an alleged offense thereby subjecting
him to embarrassment, expense and ordeal
and compelling him to live in a continuing
state of anxiety and insecurity, as well as
enhancing the possibility that even though
innocent, he may be found guilty."
It is axiomatic that on the basis of humanity,
fairness and justice, an acquitted defendant
is entitled to the right of repose as a direct

consequence of the finality of his acquittal.


The philosophy underlying this rule
establishing the absolute nature of
acquittals is "part of the paramount
importance criminal justice system attaches
to the protection of the innocent against
wrongful conviction." The interest in the
finality-of-acquittal rule, confined exclusively
to verdicts of not guilty, is easy to
understand: it is a need for "repose", a
desire to know the exact extent of ones
liability. With this right of repose, the
criminal justice system has built in a
protection to insure that the innocent, even
those whose innocence rests upon a jurys
leniency, will not be found guilty in a
subsequent proceeding.
Given the far-reaching scope of an
accuseds right against double jeopardy,
even an appeal based on an alleged
misappreciation of evidence will not lie. The
only instance when double jeopardy will not
attach is when the trial court acted with
grave abuse of discretion amounting to lack
or excess of jurisdiction, such as where the
prosecution was denied the opportunity to
present its case or where the trial was a
sham. However, while certiorari may be
availed of to correct an erroneous acquittal,
the petitioner in such an extraordinary
proceeding must clearly demonstrate that
the trial court blatantly abused its authority
to a point so grave as to deprive it of its very
power to dispense justice. (Emphasis
supplied.)
By this time, it is settled that the appellate
court may review dismissal orders of trial
courts granting an accuseds demurrer to
evidence. This may be done via the special
civil action of certiorari under Rule 65 based
on the ground of grave abuse of discretion,
amounting to lack or excess of jurisdiction.
Such dismissal order, being considered void
judgment, does not result in jeopardy. Thus,
when the order of dismissal is annulled or
set aside by an appellate court in an original
special civil action via certiorari, the right of
the accused against double jeopardy is not
violated.
Unfortunately, what petitioner People of the
Philippines, through then Secretary of

Justice Teofisto T. Guingona, Jr. and then


Solicitor General Silvestre H. Bello, III, filed
with the Court in the present case is an
appeal by way of a petition for review on
certiorari under Rule 45 raising a pure
question of law, which is different from a
petition for certiorari under Rule 65.
In Madrigal Transport Inc. v. Lapanday
Holdings
Corporation,25 we
have
enumerated the distinction between the two
remedies/actions, to wit:
Appeal and Certiorari Distinguished
Between an appeal and a petition for
certiorari, there are substantial distinctions
which shall be explained below.
As to the Purpose. Certiorari is a remedy
designed for the correction of errors of
jurisdiction, not errors of judgment. In Pure
Foods Corporation v. NLRC, we explained
the simple reason for the rule in this light:
"When a court exercises its jurisdiction, an
error committed while so engaged does not
deprive it of the jurisdiction being exercised
when the error is committed. If it did, every
error committed by a court would deprive it
of its jurisdiction and every erroneous
judgment would be a void judgment. This
cannot be allowed. The administration of
justice would not survive such a rule.
Consequently, an error of judgment that the
court may commit in the exercise of its
jurisdiction is not correct[a]ble through the
original civil action of certiorari."
The supervisory jurisdiction of a court over
the issuance of a writ of certiorari cannot be
exercised for the purpose of reviewing the
intrinsic correctness of a judgment of the
lower court -- on the basis either of the law
or the facts of the case, or of the wisdom or
legal soundness of the decision. Even if the
findings of the court are incorrect, as long
as it has jurisdiction over the case, such
correction is normally beyond the province
of certiorari. Where the error is not one of
jurisdiction, but of an error of law or fact -- a
mistake of judgment -- appeal is the
remedy.
As to the Manner of Filing. Over an appeal,
the CA exercises its appellate jurisdiction
and power of review. Over a certiorari, the
higher court uses its original jurisdiction in

accordance with its power of control and


supervision over the proceedings of lower
courts. An appeal is thus a continuation of
the original suit, while a petition for certiorari
is an original and independent action that
was not part of the trial that had resulted in
the rendition of the judgment or order
complained of. The parties to an appeal are
the original parties to the action. In contrast,
the parties to a petition for certiorari are the
aggrieved party (who thereby becomes the
petitioner) against the lower court or quasijudicial agency, and the prevailing parties
(the public and the private respondents,
respectively).
As to the Subject Matter. Only judgments or
final orders and those that the Rules of
Court so declared are appealable. Since the
issue is jurisdiction, an original action for
certiorari may be directed against an
interlocutory order of the lower court prior to
an appeal from the judgment; or where
there is no appeal or any plain, speedy or
adequate remedy.
As to the Period of Filing. Ordinary appeals
should be filed within fifteen days from the
notice of judgment or final order appealed
from. Where a record on appeal is required,
the appellant must file a notice of appeal
and a record on appeal within thirty days
from the said notice of judgment or final
order. A petition for review should be filed
and served within fifteen days from the
notice of denial of the decision, or of the
petitioners timely filed motion for new trial
or motion for reconsideration. In an appeal
by certiorari, the petition should be filed also
within fifteen days from the notice of
judgment or final order, or of the denial of
the petitioners motion for new trial or
motion for reconsideration.
On the other hand, a petition for certiorari
should be filed not later than sixty days from
the notice of judgment, order, or resolution.
If a motion for new trial or motion for
reconsideration was timely filed, the period
shall be counted from the denial of the
motion.
As to the Need for a Motion for
Reconsideration.
A
motion
for
reconsideration is generally required prior to

the filing of a petition for certiorari, in order


to afford the tribunal an opportunity to
correct the alleged errors. Note also that
this motion is a plain and adequate remedy
expressly available under the law. Such
motion is not required before appealing a
judgment or final order.
Also in Madrigal, we stressed that the
special civil action of certiorari and appeal
are two different remedies mutually
exclusive; they are neither alternative nor
successive. Where appeal is available,
certiorari will not prosper. In the dismissal of
a criminal case upon demurrer to evidence,
appeal is not available as such an appeal
will put the accused in double jeopardy.
Certiorari, however, is allowed.
For being the wrong remedy taken by
petitioner People of the Philippines in this
case, this petition is outrightly dismissible.
The Court cannot reverse the assailed
dismissal order of the trial court by appeal
without violating private respondents right
against double jeopardy.
Even assuming that the Court may treat an
"appeal" as a special civil action of
certiorari, which definitely this Court has the
power to do, when there is a clear showing
of grave abuse of discretion committed by
the lower court, the instant petition will
nevertheless fail on the merits as the
succeeding discussion will show.
There are actually two (2) acts involved in
this case, namely, the warrantless arrest
and the warrantless search. There is no
question that warrantless search may be
conducted as an incident to a valid
warrantless arrest. The law requires that
there be first a lawful arrest before a search
can be made; the process cannot be
reversed.26However, if there are valid
reasons to conduct lawful search and
seizure which thereafter shows that the
accused is currently committing a crime, the
accused may be lawfully arrested in
flagrante delicto27 without need for a warrant
of arrest.
Finding that the warrantless arrest preceded
the warrantless search in the case at bar,
the trial court granted private respondent's
demurrer to evidence and acquitted him of

all the three charges for lack of evidence,


because the unlawful arrest resulted in the
inadmissibility of the evidence gathered
from an invalid warrantless search. The trial
courts ratiocination is quoted as follows:
The threshold issue raised by the accused
in his Demurrer to Evidence is whether his
warrantless arrest and search were lawful
as argued by the prosecution, or unlawful as
asserted by the defense.
Under Section 5, Rule 113 of the New Rules
of Court, a peace officer may arrest a
person without a warrant: (a) when in his
presence, the person to be arrested has
committed, is actually committing, or is
attempting to commit an offense; (b) when
an offense has in fact just been committed,
and he has personal knowledge of facts
indicating that the person to be arrested has
committed it, and (c) when the person to be
arrested is a prisoner who has escaped
from a penal establishment or place where
he is serving final judgment or temporarily
confined while being transferred from one
confinement to another. None of these
circumstances were present when the
accused was arrested. The accused was
merely walking from the Maria Orosa
Apartment and was about to enter the
parked BMW car when the police officers
arrested and frisked him and searched his
car. The accused was not committing any
visible offense at the time of his arrest.
Neither was there an indication that he was
about to commit a crime or that he had just
committed an offense. The unlicensed AMT
Cal.380 9mm Automatic Back-up Pistol that
the accused had in his possession was
concealed inside the right front pocket of his
pants. And the handgun was bantam and
slim in size that it would not give an outward
indication of a concealed gun if placed
inside the pant's side pocket as was done
by the accused. The arresting officers had
no information and knowledge that the
accused was carrying an unlicensed
handgun, nor did they see him in
possession thereof immediately prior to his
arrest.
Ditto on the 32 bags of shabu and the other
unlicensed Daewoo Cal. 9mm Pistol with

magazine that were found and seized from


the car. The contraband items in the car
were not in plain view. The 32 bags of
shabu were in the trunk compartment, and
the Daewoo handgun was underneath the
drivers seat of the car. The police officers
had no information, or knowledge that the
banned articles were inside the car, or that
the accused had placed them there. The
police officers searched the car on mere
suspicion that there was shabu therein.
On this matter, pertinent portions of the
testimonies of Police Inspector Cielito
Coronel and SP03 Reynaldo are hereunder
quoted:
POLICE
INSPECTOR
CIELITO
CORONELS TESTIMONY
"PROSECUTOR TO WITNESS: DirectExamination
Q. Mr. Witness, what was your role or
participation in this case?
A. I am one of those responsible for the
arrest of the accused.
xxx xxx xxx
Q. Where did you make that arrest, Mr.
Witness?
A. The apprehension was made in front of
an apartment along Maria Orosa Street,
Ermita, Manila.
Q. What date was that when you arrested
the accused?
A. It was on May 17, 1996, at about 2:10
a.m.
xxx xxx xxx
Q. What was the reason why you together
with other policemen effected the arrest of
the accused?
A. We arrested him because of the
information relayed to us by one of those
whom we have previously apprehended in
connection with the delivery of shabu
somewhere also in Ermita, Manila.
xxx xxx xxx
Q. When you established that he was
somewhere at Maria Orosa, what did you
do?
A. We waited for him.
xxx xxx xxx
Q. You yourself, Mr. Witness, where did you
position yourself during that time?

A. I was inside a vehicle waiting for the


accused to appear.
Q. What about your other companions
where were they?
A. They were position in strategic places
within the area.
Q. What happened when you and your
companions were positioned in that place?
A. That was when the accused arrived.
Q. How many of your approached him.
A. Inspector Margallo, myself and two other
operatives.
Q. What happened when you approached
the accused, Mr. Witness?
A. We introduced ourselves as police
officers and we frisked him and we asked
him to open the back compartment of his
car.
Q. You said you frisked him, what was the
result of that?
A. He was found in possession of one backup pistol with one loaded magazine and
likewise when the compartment was opened
several plastic bags containing white
crystalline substance suspected to be shabu
(were found).
Q. What did you do when you found out Mr.
Witness?
A. When the car was further search we later
found another firearm, a Daewoo Pistol at
the place under the seat of the driver.
Q. Then what happened?
A. He was brought to our headquarters at
Mandaluyong for further investigation.
Q. What about the suspected shabu that
you recovered, what did you do with that?
A. The suspected shabu that we recovered
were forwarded to the NBI for laboratory
examination.
Q. Did you come to know the results?
A.
It
was
found
positive
for
methamphetamine hydrochloride. (TSN, pp.
3-8, November 15, 1996).
ATTY. LOZANO TO WITNESS: CROSS
Q. You arrested Joseph Junio and Redentor
Teck for alleged transporting of shabu on
May 16, 1996, at 11:00 p.m., is it not?
A. Yes, Sir.
Q. You asked Redentor Teck where he is
employed, is it not?
A. Yes, Sir.

xxx xxx xxx


Q. Redentor Teck told you that he is a talent
manager at the Glenmore Modeling Agency,
is it not?
A. Yes, Sir.
.Q. The Glenmore Modeling Agency is
owned by Lawrence Wang, is it not?
A. I supposed, Sir.
Q. And that is why immediately after
Redentor Teck told you that he is an
employee of the Glenmore Modeling
Agency owned by Lawrence Wang,
naturally, you and your companions look for
Lawrence Wang to shed light on the
transporting of shabu by Redentor Teck and
Joseph Junio, is it not?
A. Yes, Sir.
Q. Thereafter, you spotted a person
previously described by Redentor Teck as
Lawrence Wang, is it not?
A. Yes, Sir.
Q. While you were arresting Lawrence
Wang, your companions at the same time
searched the BMW car described in your
affidavit of arrest, is it not?
A. Yes, Sir.
xxx xxx xxx
Q. Lawrence Wang was not inside the BMW
car while the same was searched, is it not?
A. He was outside, Sir.
Q. The driver of the car was inside the car
when the arrest and search were made, is it
not?
A. He was likewise outside, Sir.
Q. Lawrence Wang did resist arrest and
search is it not?
A. Yes, Sir.
Q. When you effected the arrest, there was
no warrant of arrest, is it not?
A. Yes, Sir.
Q. When the search was made on the BMW
car, there was no search warrant, is it not?
A. Yes, none, Sir. (TSN, pp. 3-12,
November 15, 1996)
SPO3
REYNALDO
CRISTOBALS
TESTIMONY
PROSECUTOR TO WITNESS: DIRECT
EXAMINATION
Q. What is you role or participation in this
case?

A. I was one of the arresting officers and


investigator, Sir.
xxx xxx xxx
Q. What kind of specific offense did the
accused allegedly do so that you arrested
him, Mr. Witness?
A. He was arrested on the basis of the
recovered drugs in his possession placed
inside his car.
xxx xxx xxx
Q. Mr. witness, you said that you recovered
drug from the car of the accused, please tell
us the antecedent circumstances which led
you to recover or confiscate these items?
A. Earlier in the evening about 11:00 p.m. of
May 16, we arrested one Redentor Teck
and Joseph Junio.
COURT: Where did you arrest these
people?
A They were arrested in Metro Manila also.
COURT: The same date?
A. May 16, about 11:00 p.m. They were
arrested and when they were investigated,
Teck mentioned the name of Lawrence
Wang as his employer.
COURT: Why were these people, arrested?
A. For violation of R.A. 6425.
COURT: How were they arrested?
A. They were arrested while in the act of
transporting shabu or handling shabu to
another previously arrested person. It was a
series of arrest.
COURT: So, this involved a series of
operation?
A. Yes, Your Honor. About 11:00 p.m. of
May 16, we arrested three (3) persons,
SPO2 Vergel de Dios, a certain Arellano
and a certain Rogelio Noble. When they
were arrested they divulged the name of the
source.
COURT: They were arrested for what, for
possession?
A. Yes, Your Honor. For unlawful
possession of shabu . Then they divulged to
us the name of the person from whom they
get shabu.
COURT: Whose name did they mention:
A. One Alias Frank, who turned out to be
Redentor Teck and Joseph Junio. We let
them call Redentor Teck and Joseph Junio

thru the cellphone and pretend and to order


another supply of shabu.
COURT: So there was an entrapment?
A. Yes, Your Honor.
COURT: So, these two (2) were arrested?
A. While they were about to hand over
another bag of shabu to Noble and
company.
COURT: And these two reveals (revealed)
some information to you as to the source of
the shabu?
A. Yes, Your Honor.
COURT: What was the information?
A. Teck told us that he is an employee of
Lawrence Wang.
COURT: What did you do when you were
told about that?
A. They also told us that there was an
ongoing delivery of shabu on that morning.
COURT: When?
A. Of that date early morning of May 17,
1996.
COURT: At what place?
A. We asked them where we could find
Lawrence Wang and Teck lead us to Maria
Orosa Apartment where we conducted a
stake out which lasted up to 2:00 a.m.
xxx xxx xxx
COURT: What happened during the stake
out?
A. When the person of the accused was
identified to us, we saw him opening his car
together with his driver.
COURT: So, he was about to leave when
you saw him?
A. Probably, Sir.
COURT: What did you do?
A. We saw him opened his car and we have
a suspicion that there was a shabu inside
the compartment of the car.
xxx xxx xxx
COURT: All right, when you saw the
accused opened his car, what did you do?
A. We approached him.
COURT: What happened when you
approached him?
A. We suspected the shabu inside the
compartment of his car.
COURT: And this shabu that you saw inside
the compartment of the car, what did you do
with that?

A. Well, he was first arrested by Captain


Margallo and Lt. Coronel while I was the
one who inspected and opened the
compartment of the car and saw the shabu.
(TSN, pp. 15-24, December 16, 1996).
CLARIFICATORY
QUESTIONING
OF
SPO3 CRISTOBAL BY THE COURT
COURT: From your testimony and that of
Police Inspector Cielito Coronel, this Court
has gathered that prior to the arrest of the
accused there were three (3) men that your
team arrested. One of whom is a police
officer.
A: Yes, Sir.
xxx xxx xxx
COURT: And on the occasion of the arrest
of these three men shabu were confiscated
from them?
A: Yes, Sir.
Q: And in the course of the investigation of
these three men, you were able to discover
that Redentor Teck and Joseph Junio were
the source of the regulated drug that were
confiscated from the three men that you
have arrested?
A: Yes, Sir.
Q: Now, thru entrapment base[d] on your
testimony you were able to apprehend also
these two men, Redentor Teck and Joseph
Junio?
A: Yes, Sir.
xxx xxx xxx
Q: These two men, Redentor Teck and
Joseph Junio they were also investigated by
your team?
A: Yes, Sir.
Q: You were present while they were
investigated?
A: I was the one whom investigated them.
xxx xxx xxx
Q: Did you ask Redentor and Joseph the
source of shabu that you confiscated from
them at the time of the (their) arrest?
A: Yes, Sir. They refuse to say the source,
however, they told me that they were
working for the accused.
Q: You also testified that Redentor informed
you that there was another delivery of
shabu scheduled that morning of (stop) was
it May 16 or 17? The other delivery that is
scheduled on?

A: On the 17th.
xxx xxx xxx
Q: Did he tell you who was to make the
delivery?
A: No, Sir.
xxx xxx xxx
Q: At that time when you decided to look for
the accused to ask him to shed light on the
matter concerning the arrest of these two
employees in possession of shabu. Did you
and did your team suspect the accused as
being involved in the transaction that lead
(led) to the arrest of Redentor and Joseph?
A: Yes, Sir. We suspected that he was the
source of the shabu.
xxx xxx xxx
Q: When you saw the accused walking
towards his car, did you know whether he
was carrying a gun?
A: No, Sir. It cannot be seen.
Q: It was concealed?
A: Yes, Sir.
Q: So, the only time that you and your team
learned that he was in possession of the
gun is when he was bodily search?
A: Yes, Sir. That is the only time that I came
to know about when Capt. Margallo handed
to me the gun.
Q: Other than walking towards his car, the
accused was not doing anything else?
A: None, Sir.
Q: That would invite your suspicion or give
indication that he was intending to do
something unlawful or illegal?
A: No, Sir.
Q: When you searched the car, did the
accused protest or try to prevent your team
from searching his car?
A: No, Sir." (TSN pp. 3-16, Feb. 26, 1997)
Clearly therefore, the warrantless arrest of
the accused and the search of his person
and the car were without probable cause
and could not be licit. The arrest of the
accused did not fall under any of the
exception
to
the
requirements
of
warrantless arrests, (Sec. 5, Rule 113,
Rules of Court) and is therefore, unlawful
and derogatory of his constitutional right of
liberty. x x x
The trial court resolved the case on the
basis of its findings that the arrest preceded

the search, and finding no basis to rule in


favor of a lawful arrest, it ruled that the
incidental search is likewise unlawful. Any
and all pieces of evidence acquired as a
consequence thereof are inadmissible in
evidence. Thus, the trial court dismissed the
case for lack of evidence.
Contrary to its position at the trial court, the
People, however, now posits that "inasmuch
as it has been shown in the present case
that the seizure without warrant of the
regulated drugs and unlicensed firearms in
the accuseds possession had been validly
made upon probable cause and under
exigent circumstances, then the warrantless
arrest of the accused must necessarily have
to be regarded as having been made on the
occasion of the commission of the crime in
flagrante
delicto,
and
therefore
constitutionally and statutorily permissible
and lawful."28 In effect, the People now
contends that the warrantless search
preceded the warrantless arrest. Since the
case falls under an exception to the general
rule requiring search warrant prior to a valid
search and seizure, the police officers were
justified in requiring the private respondent
to open his BMW cars trunk to see if he
was carrying illegal drugs.
The conflicting versions as to whether the
arrest preceded the search or vice versa, is
a matter of credibility of evidence. It entails
appreciation of evidence, which may be
done in an appeal of a criminal case
because the entire case is thrown open for
review, but not in the case of a petition for
certiorari where the factual findings of the
trial court are binding upon the Court. Since
a dismissal order consequent to a demurrer
to evidence is not subject to appeal and
reviewable only by certiorari, the factual
finding that the arrest preceded the search
is conclusive upon this Court. The only legal
basis for this Court to possibly reverse and
set aside the dismissal order of the trial
court upon demurrer to evidence would be if
the trial court committed grave abuse of
discretion in excess of jurisdiction when it
ruled that there was no legal basis to
lawfully effect a warrantless arrest.

The pertinent provisions of Rule 113 of the


Rules on Criminal Procedure on warrantless
arrest provide:
Sec. 5. Arrest without warrant; when lawful.
- A peace officer or a private person may,
without a warrant, arrest a person:
a) When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense;
b) When an offense has just been
committed, and he has probable cause to
believe based on personal knowledge of
facts or circumstances that the person to be
arrested has committed it; and
c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving
final judgment or is temporarily confined
while his case is pending, or has escaped
while
being
transferred
from
one
confinement to another.
Section 5, above, provides three (3)
instances when warrantless arrest may be
lawfully effected: (a) arrest of a suspect in
flagrante delicto; (b) arrest of a suspect
where, based on personal knowledge of the
arresting officer, there is probable cause
that said suspect was the author of a crime
which had just been committed; (c) arrest of
a prisoner who has escaped from custody
serving final judgment or temporarily
confined while his case is pending.
For a warrantless arrest of an accused
caught in flagrante delicto under paragraph
(a) of Section 5 to be valid, two requisites
must concur: (1) the person to be arrested
must execute an overt act indicating that he
has just committed, is actually committing,
or is attempting to commit a crime; and (2)
such overt act is done in the presence or
within
the
view of
the
arresting
officer.291awphi1.nt
The facts and circumstances surrounding
the present case did not manifest any
suspicious behavior on the part of private
respondent Lawrence Wang that would
reasonably invite the attention of the police.
He was merely walking from the Maria
Orosa Apartment and was about to enter
the parked BMW car when the police

operatives arrested him, frisked and


searched his person and commanded him
to open the compartment of the car, which
was later on found to be owned by his
friend, David Lee. He was not committing
any visible offense then. Therefore, there
can be no valid warrantless arrest in
flagrante delicto under paragraph (a) of
Section 5. It is settled that "reliable
information" alone, absent any overt act
indicative of a felonious enterprise in the
presence and within the view of the
arresting officers, is not sufficient to
constitute probable cause that would justify
an in flagrante delicto arrest.30
Neither may the warrantless arrest be
justified under paragraph (b) of Section 5.
What is clearly established from the
testimonies of the arresting officers is that
Wang was arrested mainly on the
information that he was the employer of
Redentor Teck and Joseph Junio who were
previously arrested and charged for illegal
transport of shabu. Teck and Junio did not
even categorically identify Wang to be their
source of the shabu they were caught with
in flagrante delicto. Upon the duos
declaration that there will be a delivery of
shabu on the early morning of the following
day, May 17, which is only a few hours
thereafter, and that Wang may be found in
Maria Orosa Apartment along Maria Orosa
Street, the arresting officers conducted
"surveillance" operation in front of said
apartment, hoping to find a person which
will match the description of one Lawrence
Wang, the employer of Teck and Junio.
These circumstances do not sufficiently
establish the existence of probable cause
based on personal knowledge as required in
paragraph (b) of Section 5.
And doubtless, the warrantless arrest does
not fall under paragraph (c) of Section 5.
The inevitable conclusion, as correctly
made by the trial court, is that the
warrantless arrest was illegal. Ipso jure, the
warrantless search incidental to the illegal
arrest is likewise unlawful.
In People v. Aminnudin,31 the Court
declared as inadmissible in evidence the
marijuana found in appellants possession

during a search without a warrant, because


it had been illegally seized, in disregard of
the Bill of Rights:
In the case at bar, the accused-appellant
was not, at the moment of his arrest,
committing a crime nor was it shown that he
was about to do so or that he had just done
so. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there
was no outward indication that called for his
arrest. To all appearances, he was like any
of the other passengers innocently
disembarking from the vessel. It was only
when the informer pointed to him as the
carrier of the marijuana that he suddenly
became a suspect and so subject to
apprehension. It was the fugitive finger that
triggered his arrest. The identification of the
informer was the probable cause as
determined by the officer (and not a judge)
that authorized them to pounce upon
Aminnudin and immediately arrest him.
The Peoples contention that Wang waived
his right against unreasonable search and
seizure has no factual basis. While we
agree in principle that consent will validate
an otherwise illegal search, however, based
on the evidence on record, Wang resisted
his arrest and the search on his person and
belongings.32 The implied acquiescence to
the search, if there was any, could not have
been more than mere passive conformity
given under intimidating or coercive
circumstances and is thus considered no
consent at all within the purview of the
constitutional guarantee.33 Moreover, the
continuing objection to the validity of the
warrantless arrest made of record during
the arraignment bolsters Wangs claim that
he resisted the warrantless arrest and
search.
We cannot close this ponencia without a
word of caution: those who are supposed to
enforce the law are not justified in
disregarding the rights of the individual in
the name of order. Order is too high a price
for the loss of liberty. As Justice Holmes
once said, "I think it is less evil that some
criminals should escape than that the
government should play an ignoble part." It
is simply not allowed in free society to

violate a law to enforce another, especially if


the law violated is the Constitution itself.34
WHEREFORE, the instant petition is
DENIED.
SO ORDERED.

Republic
of
the
Philippines
SUPREME
COURT
Manila
SECOND DIVISION
G.R. No. 170180
November 23,
2007
ARSENIO VERGARA VALDEZ, Petitioner,
vs.
PEOPLE
OF
THE
PHILIPPINES, Respondent.
DECISION
TINGA, J.:
The sacred right against an arrest, search
or seizure without valid warrant is not only
ancient. It is also zealously safeguarded.
The Constitution guarantees the right of the
people to be secure in their persons,
houses, papers and effects against
unreasonable searches and seizures. 1 Any
evidence obtained in violation of said right
shall be inadmissible for any purpose in any
proceeding. Indeed, while the power to
search and seize may at times be
necessary to the public welfare, still it must
be exercised and the law implemented
without contravening the constitutional
rights of the citizens, for the enforcement of
no statute is of sufficient importance to
justify indifference to the basic principles of
government.2
On appeal is the Decision3 of the Court of
Appeals dated 28 July 2005, affirming the
Judgment4 of the Regional Trial Court
(RTC), Branch 31, Agoo, La Union dated 31
March 2004 finding petitioner Arsenio
Vergara Valdez guilty beyond reasonable
doubt of violating Section 11 of Republic Act
No. 9165 (R.A. No. 9165)5 and sentencing
him to suffer the penalty of imprisonment

ranging from eight (8) years and one (1) day


of prision mayor medium as minimum to
fifteen (15) years of reclusion temporal
medium as maximum and ordering him to
pay a fine ofP350,000.00.6
I.
On 26 June 2003, petitioner was charged
with violation of Section 11, par. 2(2) of R.A.
No. 9165 in an Information7 which reads:
That on or about the 17th day of March
2003, in the Municipality of Aringay,
Province of La Union, Philippines and within
the jurisdiction of this Honorable Court, the
above-named accused, did then and there
willfully, unlawfully and feloniously have in
his possession, control and custody dried
marijuana leaves wrapped in a cellophane
and newspaper page, weighing more or less
twenty-five (25) grams, without first securing
the necessary permit, license or prescription
from the proper government agency.
CONTRARY TO LAW.8
On arraignment, petitioner pleaded not
guilty. Thereafter, trial on the merits ensued
with the prosecution presenting the three (3)
barangay tanods of San Benito Norte,
Aringay, La Union namely, Rogelio Bautista
(Bautista), Nestor Aratas (Aratas) and
Eduardo Ordoo (Ordoo), who arrested
petitioner.
Bautista testified that at around 8:00 to 8:30
p.m. of 17 March 2003, he was conducting
the routine patrol along the National
Highway in Barangay San Benito Norte,
Aringay, La Union together with Aratas and
Ordoo when they noticed petitioner,
lugging a bag, alight from a mini-bus.
The tanods observed that petitioner, who
appeared suspicious to them, seemed to be
looking
for
something.
They
thus
approached him but the latter purportedly
attempted to run away. They chased him,
put him under arrest and thereafter brought
him to the house of Barangay Captain
Orencio Mercado (Mercado) where he, as
averred by Bautista, was ordered by
Mercado to open his bag. Petitioners bag
allegedly contained a pair of denim pants,
eighteen pieces of eggplant and dried
marijuana leaves wrapped in newspaper
and cellophane. It was then that petitioner

was taken to the police station for further


investigation.9
Aratas and Ordoo corroborated Bautistas
testimony on most material points. On
cross-examination,
however,
Aratas
admitted that he himself brought out the
contents of petitioners bag before petitioner
was
taken
to
the
house
of
Mercado.10 Nonetheless, he claimed that at
Mercados house, it was petitioner himself
who brought out the contents of his bag
upon orders from Mercado. For his part,
Ordoo testified that it was he who was
ordered by Mercado to open petitioners bag
and that it was then that they saw the
purported contents thereof.11
The prosecution likewise presented Police
Inspector Valeriano Laya II (Laya), the
forensic chemist who conducted the
examination of the marijuana allegedly
confiscated from petitioner. Laya maintained
that the specimen submitted to him for
analysis, a sachet of the substance
weighing 23.10 grams and contained in a
plastic bag, tested positive of marijuana. He
disclosed on cross-examination, however,
that he had knowledge neither of how the
marijuana was taken from petitioner nor of
how the said substance reached the police
officers. Moreover, he could not identify
whose marking was on the inside of the
cellophane wrapping the marijuana leaves. 12
The charges were denied by petitioner. As
the defenses sole witness, he testified that
at around 8:30 p.m. on 17 March 2003, he
arrived in Aringay from his place in Currooy, Santol, La Union. After alighting from the
bus, petitioner claimed that he went to the
house of a friend to drink water and then
proceeded to walk to his brothers house.
As he was walking, prosecution witness
Ordoo, a cousin of his brothers wife,
allegedly approached him and asked where
he was going. Petitioner replied that he was
going to his brothers house. Ordoo then
purportedly requested to see the contents of
his bag and appellant acceded. It was at
this point that Bautista and Aratas joined
them. After inspecting all the contents of his
bag, petitioner testified that he was
restrained by thetanod and taken to the

house of Mercado. It was Aratas who


carried the bag until they reached their
destination.13
Petitioner maintained that at Mercados
house, his bag was opened by the tanod
and Mercado himself. They took out an item
wrapped in newspaper, which later turned
out to be marijuana leaves. Petitioner
denied ownership thereof. He claimed to
have been threatened with imprisonment by
his arrestors if he did not give the prohibited
drugs to someone from the east in order for
them to apprehend such person. As
petitioner declined, he was brought to the
police station and charged with the instant
offense. Although petitioner divulged that it
was he who opened and took out the
contents of his bag at his friends house, he
averred that it was one of the tanod who did
so at Mercados house and that it was only
there that they saw the marijuana for the
first time.14
e. replied that he was going to his
brother'en proceeded to walk to his
brother'w
Finding that the prosecution had proven
petitioners guilt beyond reasonable doubt,
the RTC rendered judgment against him
and sentenced him to suffer indeterminate
imprisonment ranging from eight (8) years
and one (1) day of prision mayor medium as
minimum to fifteen (15) years of reclusion
temporal medium as maximum and ordered
him to pay a fine of P350,000.00.15
Aggrieved, petitioner appealed the decision
of
the
RTC
to
the
Court
of
Appeals.1wphi1 On 28 July 2005, the
appellate court affirmed the challenged
decision. The Court of Appeals, finding no
cogent reason to overturn the presumption
of
regularity
in
favor
of
the
barangay tanod in the absence of evidence
of ill-motive on their part, agreed with the
trial court that there was probable cause to
arrest petitioner. It observed further:
That the prosecution failed to establish the
chain of custody of the seized marijuana is
of no moment. Such circumstance finds
prominence only when the existence of the
seized prohibited drugs is denied. In this
case, accused-appellant himself testified

that the marijuana wrapped in a newspaper


was taken from his bag. The corpus delicti
of the crime, i.e.[,] the existence of the
marijuana and his possession thereof, was
amply
proven
by
accused-appellant
Valdezs own testimony.16
In this appeal, petitioner prays for his
acquittal and asserts that his guilt of the
crime charged had not been proven beyond
reasonable doubt. He argues, albeit for the
first time on appeal, that the warrantless
arrest effected against him by the
barangay tanod was unlawful and that the
warrantless search of his bag that followed
was likewise contrary to law. Consequently,
he maintains, the marijuana leaves
purportedly
seized
from
him
are
inadmissible in evidence for being the fruit
of a poisonous tree.
Well-settled is the rule that the findings of
the trial court on the credibility of witnesses
and their testimonies are accorded great
respect and weight, in the absence of any
clear showing that some facts and
circumstances of weight or substance which
could have affected the result of the case
have been overlooked, misunderstood or
misapplied.17
After meticulous examination of the records
and evidence on hand, however, the Court
finds and so holds that a reversal of the
decision a quo under review is in order.
II.
At the outset, we observe that nowhere in
the records can we find any objection by
petitioner to the irregularity of his arrest
before his arraignment. Considering this
and his active participation in the trial of the
case, jurisprudence dictates that petitioner
is deemed to have submitted to the
jurisdiction of the trial court, thereby curing
any defect in his arrest. The legality of an
arrest affects only the jurisdiction of the
court
over
his
person.18Petitioners
warrantless arrest therefore cannot, in itself,
be the basis of his acquittal.
However, to determine the admissibility of
the seized drugs in evidence, it is
indispensable to ascertain whether or not
the search which yielded the alleged
contraband was lawful. The search,

conducted as it was without a warrant, is


justified only if it were incidental to a lawful
arrest.19 Evaluating the evidence on record
in its totality, as earlier intimated, the
reasonable conclusion is that the arrest of
petitioner without a warrant is not lawful as
well.
Petitioner maintains, in a nutshell, that after
he was approached by the tanod and asked
to show the contents of his bag, he was
simply herded without explanation and
taken to the house of the barangay captain.
On their way there, it was Aratas who
carried his bag. He denies ownership over
the contraband allegedly found in his bag
and asserts that he saw it for the first time at
the barangay captains house.
Even casting aside petitioners version and
basing the resolution of this case on the
general thrust of the prosecution evidence,
the unlawfulness of petitioners arrest
stands out just the same.
Section 5, Rule 113 of the Rules on
Criminal Procedure provides the only
occasions on which a person may be
arrested without a warrant, to wit:
Section 5. Arrest without warrant; when
lawful.A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense;
(b) When an offense has just been
committed and he has probable cause to
believe based on personal knowledge of
facts or circumstances that the person to be
arrested has committed it; and
(c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving
final judgment or temporarily confined while
his case is pending, or has escaped while
being transferred from one confinement to
another.
xxx
It is obvious that based on the testimonies
of the arresting barangay tanod, not one of
these circumstances was obtaining at the
time petitioner was arrested. By their own
admission, petitioner was not committing an

offense at the time he alighted from the bus,


nor did he appear to be then committing an
offense.20 The tanod did not have probable
cause
either
to
justify
petitioners
warrantless arrest.
For the exception in Section 5(a), Rule 113
to operate, this Court has ruled that two (2)
elements must be present: (1) the person to
be arrested must execute an overt act
indicating that he has just committed, is
actually committing, or is attempting to
commit a crime; and (2) such overt act is
done in the presence or within the view of
the arresting officer.21 Here, petitioners act
of looking around after getting off the bus
was but natural as he was finding his way to
his destination. That he purportedly
attempted
to
run
away
as
the tanod approached him is irrelevant and
cannot by itself be construed as adequate to
charge the tanod with personal knowledge
that petitioner had just engaged in, was
actually engaging in or was attempting to
engage
in
criminal
activity.
More
importantly, petitioner testified that he did
not run away but in fact spoke with the
barangay tanod when they approached him.
Even taking the prosecutions version
generally as the truth, in line with our
assumption from the start, the conclusion
will not be any different. It is not
unreasonable to expect that petitioner,
walking the street at night, after being
closely observed and then later tailed by
three unknown persons, would attempt to
flee at their approach. Flight per se is not
synonymous with guilt and must not always
be attributed to ones consciousness of
guilt.22 Of persuasion was the Michigan
Supreme Court when it ruled in People v.
Shabaz23 that "[f]light alone is not a reliable
indicator
of
guilt
without
other
circumstances because flight alone is
inherently ambiguous." Alone, and under
the circumstances of this case, petitioners
flight lends itself just as easily to an
innocent explanation as it does to a
nefarious one.
Moreover, as we pointed out in People v.
Tudtud,24 "[t]he phrase in his presence
therein, connot[es] penal knowledge on the

part of the arresting officer. The right of the


accused to be secure against any
unreasonable searches on and seizure of
his own body and any deprivation of his
liberty being a most basic and fundamental
one, the statute or rule that allows exception
to the requirement of a warrant of arrest is
strictly construed. Its application cannot be
extended beyond the cases specifically
provided by law."25
Indeed, the supposed acts of petitioner,
even assuming that they appeared dubious,
cannot be viewed as sufficient to incite
suspicion of criminal activity enough to
validate his warrantless arrest.26 If at all, the
search most permissible for the tanod to
conduct under the prevailing backdrop of
the case was a stop-and-frisk to allay any
suspicion they have been harboring based
on petitioners behavior. However, a stopand-frisk situation, following Terry v.
Ohio,27 must precede a warrantless arrest,
be limited to the persons outer clothing, and
should be grounded upon a genuine reason,
in light of the police officers experience and
surrounding conditions, to warrant the belief
that the person detained has weapons
concealed about him.28
Accordingly, petitioners waiver of his right
to question his arrest notwithstanding, the
marijuana leaves allegedly taken during the
search cannot be admitted in evidence
against him as they were seized during a
warrantless search which was not
lawful.29 As we pronounced in People v.
Bacla-an
A waiver of an illegal warrantless arrest
does not also mean a waiver of the
inadmissibility of evidence seized during an
illegal warrantless arrest. The following
searches and seizures are deemed
permissible by jurisprudence: (1) search of
moving vehicles (2) seizure in plain view (3)
customs searches (4) waiver or consent
searches (5) stop and frisk situations (Terry
Search) and (6) search incidental to a lawful
arrest. The last includes a valid warrantless
search and seizure pursuant to an equally
valid warrantless arrest, for, while as a rule,
an arrest is considered legitimate if effected
with a valid warrant of arrest, the Rules of

Court recognize permissible warrantless


arrests, to wit: (1) arrests in flagrante
delicto, (2) arrests effected in hot pursuit,
and, (3) arrests of escaped prisoners. 30
When petitioner was arrested without a
warrant, he was neither caught in flagrante
delicto committing a crime nor was the
arrest effected in hot pursuit. Verily, it
cannot therefore be reasonably argued that
the warrantless search conducted on
petitioner was incidental to a lawful arrest.
In its Comment, the Office of the Solicitor
General posits that apart from the
warrantless search being incidental to his
lawful arrest, petitioner had consented to
the search. We are not convinced. As we
explained in Caballes v. Court of
Appeals31
Doubtless, the constitutional immunity
against
unreasonable
searches
and
seizures is a personal right which may be
waived. The consent must be voluntary in
order to validate an otherwise illegal
detention and search, i.e., the consent is
unequivocal, specific, and intelligently given,
uncontaminated by any duress or coercion.
Hence, consent to a search is not to be
lightly inferred, but must be shown by clear
and convincing evidence. The question
whether a consent to a search was in fact
voluntary is a question of fact to be
determined from the totality of all the
circumstances.
Relevant
to
this
determination
are
the
following
characteristics of the person giving consent
and the environment in which consent is
given: (1) the age of the defendant; (2)
whether he was in a public or secluded
location; (3) whether he objected to the
search or passively looked on; (4) the
education and intelligence of the defendant;
(5) the presence of coercive police
procedures; (6) the defendant's belief that
no incriminating evidence will be found; (7)
the nature of the police questioning; (8) the
environment in which the questioning took
place; and (9) the possibly vulnerable
subjective state of the person consenting. It
is the State which has the burden of
proving, by clear and positive testimony,

that the necessary consent was obtained


and that it was freely and voluntarily given. 32
In the case at bar, following the theory of
the prosecution albeit based on conflicting
testimonies on when petitioners bag was
actually opened, it is apparent that petitioner
was already under the coercive control of
the public officials who had custody of him
when the search of his bag was demanded.
Moreover, the prosecution failed to prove
any specific statement as to how the
consent was asked and how it was given,
nor the specific words spoken by petitioner
indicating his alleged "consent." Even
granting that petitioner admitted to opening
his bag when Ordoo asked to see its
contents, his implied acquiescence, if at all,
could not have been more than mere
passive conformity given under coercive or
intimidating circumstances and hence, is
considered no consent at all within the
contemplation
of
the
constitutional
33
guarantee. As a result, petitioners lack of
objection to the search and seizure is not
tantamount to a waiver of his constitutional
right or a voluntary submission to the
warrantless search and seizure.34
III.
Notably, the inadmissibility in evidence of
the seized marijuana leaves for being the
fruit of an unlawful search is not the lone
cause that militates against the case of the
prosecution. We likewise find that it has
failed to convincingly establish the identity
of the marijuana leaves purportedly taken
from petitioners bag.
In all prosecutions for violation of the
Dangerous Drugs Act, the following
elements must concur: (1) proof that the
transaction took place; and (2) presentation
in court of the corpus delicti or the illicit drug
as evidence.35 The existence of dangerous
drugs is a condition sine qua non for
conviction for the illegal sale of dangerous
drugs, it being the very corpus delicti of the
crime.36
In a line of cases, we have ruled as fatal to
the prosecutions case its failure to prove
that the specimen submitted for laboratory
examination was the same one allegedly
seized from the accused.37 There can be no

crime of illegal possession of a prohibited


drug when nagging doubts persist on
whether the item confiscated was the same
specimen examined and established to be
the prohibited drug.38 As we discussed
in People v. Orteza39 , where we deemed
the prosecution to have failed in
establishing all the elements necessary for
conviction of appellant for illegal sale
of shabu
First, there appears nothing in the record
showing that police officers complied with
the proper procedure in the custody of
seized drugs as specified in People v. Lim,
i.e., any apprehending team having initial
control of said drugs and/or paraphernalia
should, immediately after seizure or
confiscation, have the same physically
inventoried and photographed in the
presence of the accused, if there be any,
and or his representative, who shall be
required to sign the copies of the inventory
and be given a copy thereof. The failure of
the agents to comply with the requirement
raises doubt whether what was submitted
for laboratory examination and presented in
court was actually recovered from appellant.
It negates the presumption that official
duties have been regularly performed by the
police officers.
In People v. Laxa, where the buy-bust team
failed to mark the confiscated marijuana
immediately after the apprehension of the
accused, the Court held that the deviation
from the standard procedure in antinarcotics operations produced doubts as to
the origins of the marijuana. Consequently,
the Court concluded that the prosecution
failed to establish the identity of the corpus
delicti.
The Court made a similar ruling in People v.
Kimura, where the Narcom operatives failed
to place markings on the seized marijuana
at the time the accused was arrested and to
observe the procedure and take custody of
the drug.
More recently, in Zarraga v. People, the
Court held that the material inconsistencies
with regard to when and where the
markings on the shabu were made and the
lack of inventory on the seized drugs

created reasonable doubt as to the identity


of the corpus delicti. The Court thus
acquitted the accused due to the
prosecutions failure to indubitably show the
identity of the shabu.
In the case at bar, after the arrest of
petitioner by the barangay tanod, the
records only show that he was taken to the
house of the barangay captain and
thereafter to the police station. The Joint
Affidavit40 executed by the tanod merely
states that they confiscated the marijuana
leaves which they brought to the police
station together with petitioner. Likewise,
the Receipt41 issued by the Aringay Police
Station merely acknowledged receipt of the
suspected drugs supposedly confiscated
from petitioner.
Not only did the three tanod contradict each
other on the matter of when petitioners bag
was opened, they also gave conflicting
testimony on who actually opened the
same. The prosecution, despite these
material inconsistencies, neglected to
explain the discrepancies. Even more
damning to its cause was the admission by
Laya, the forensic chemist, that he did not
know how the specimen was taken from
petitioner, how it reached the police
authorities or whose marking was on the
cellophane wrapping of the marijuana. The
non-presentation, without justifiable reason,
of the police officers who conducted the
inquest proceedings and marked the seized
drugs, if such was the case, is fatal to the
case. Plainly, the prosecution neglected to
establish the crucial link in the chain of
custody of the seized marijuana leaves from
the time they were first allegedly discovered
until they were brought for examination by
Laya.
The Court of Appeals found as irrelevant the
failure of the prosecution to establish the
chain of custody over the seized marijuana
as such "[f]inds prominence only when the
existence of the seized prohibited drug is
denied."42We cannot agree.
To buttress its ratiocination, the appellate
court narrowed on petitioners testimony
that the marijuana was taken from his bag,
without taking the statement in full

context.43 Contrary to the Court of Appeals


findings, although petitioner testified that the
marijuana was taken from his bag, he
consistently
denied
ownership
thereof.44Furthermore, it defies logic to
require a denial of ownership of the seized
drugs before the principle of chain of
custody comes into play.
The onus of proving culpability in criminal
indictment falls upon the State. In
conjunction with this, law enforcers and
public officers alike have the corollary duty
to preserve the chain of custody over the
seized drugs. The chain of evidence is
constructed by proper exhibit handling,
storage, labeling and recording, and must
exist from the time the evidence is found
until the time it is offered in evidence. Each
person who takes possession of the
specimen is duty-bound to detail how it was
cared for, safeguarded and preserved while
in his or her control to prevent alteration or
replacement while in custody. This
guarantee of the integrity of the evidence to
be used against an accused goes to the
very heart of his fundamental rights.
The presumption of regularity in the
performance of official duty invoked by the
prosecution and relied upon by the courts a
quo cannot by itself overcome the
presumption of innocence nor constitute
proof
of
guilt
beyond
reasonable
doubt.45 Among the constitutional rights
enjoyed by an accused, the most primordial
yet often disregarded is the presumption of
innocence. This elementary principle
accords every accused the right to be
presumed innocent until the contrary is
proven beyond reasonable doubt. Thus, the
burden of proving the guilt of the accused
rests upon the prosecution.
Concededly, the evidence of the defense is
weak and uncorroborated. Nevertheless,
this "[c]annot be used to advance the cause
of the prosecution as its evidence must
stand or fall on its own weight and cannot
be allowed to draw strength from the
weakness of the defense."46 Moreover,
where the circumstances are shown to yield
two or more inferences, one inconsistent
with the presumption of innocence and the

other compatible with the finding of guilt, the


court must acquit the accused for the
reason that the evidence does not satisfy
the test of moral certainty and is inadequate
to support a judgment of conviction. 47
Drug addiction has been invariably
denounced as "an especially vicious
crime,"48 and "one of the most pernicious
evils that has ever crept into our
society,"49 for those who become addicted
to it "not only slide into the ranks of the
living dead, what is worse, they become a
grave menace to the safety of law-abiding
members of society,"50whereas "peddlers of
drugs
are
actually
agents
of
51
destruction." Indeed, the havoc created by
the ruinous effects of prohibited drugs on
the moral fiber of society cannot be
underscored enough. However, in the
rightfully vigorous campaign of the
government to eradicate the hazards of
drug use and drug trafficking, it cannot be
permitted to run roughshod over an
accuseds right to be presumed innocent
until proven to the contrary and neither can
it shirk from its corollary obligation to
establish such guilt beyond reasonable
doubt.
In this case, the totality of the evidence
presented utterly fails to overcome the
presumption of innocence which petitioner
enjoys. The failure of the prosecution to
prove all the elements of the offense
beyond reasonable doubt must perforce
result in petitioners exoneration from
criminal liability.
IV.
A final word. We find it fitting to take this
occasion to remind the courts to exercise
the highest degree of diligence and
prudence in deliberating upon the guilt of
accused persons brought before them,
especially in light of the fundamental rights
at stake. Here, we note that the courts a
quo neglected to give more serious
consideration to certain material issues in
the determination of the merits of the case.
We are not oblivious to the fact that in some
instances, law enforcers resort to the
practice of planting evidence to extract
information or even harass civilians.

Accordingly, courts are duty-bound to be


"[e]xtra vigilant in trying drug cases lest an
innocent person be made to suffer the
unusually severe penalties for drug
offenses."52 In the same vein, let this serve
as an admonition to police officers and
public officials alike to perform their
mandated duties with commitment to the
highest degree of diligence, righteousness
and respect for the law.
WHEREFORE, the assailed Decision is
REVERSED and SET ASIDE. Petitioner
Arsenio Vergara Valdez is ACQUITTED on
reasonable doubt. The Director of the
Bureau of Corrections is directed to cause
the immediate release of petitioner, unless
the latter is being lawfully held for another
cause; and to inform the Court of
the date of his release, or the reasons for
his continued confinement, within ten (10)
days from notice. No costs.
SO ORDERED.

Republic
SUPREME
Manila
EN BANC

of

the

Philippines
COURT

G.R. No. 101837 February 11, 1992


ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON.
BENJAMIN V. PELAYO, Presiding Judge,
Branch 168, Regional Trial Court, NCJR
Pasig, M.M., and PEOPLE OF THE
PHILIPPINES, respondents.
FELICIANO, J.:
According to the findings of the San Juan
Police in their Investigation Report, 1 on 2
July 1991, Eldon Maguan was driving his
car along Wilson St., San Juan, Metro
Manila, heading towards P. Guevarra St.
Petitioner entered Wilson St., where it is a

one-way street and started travelling in the


opposite or "wrong" direction. At the corner
of Wilson and J. Abad Santos Sts.,
petitioner's and Maguan's cars nearly
bumped each other. Petitioner alighted from
his car, walked over and shot Maguan
inside his car. Petitioner then boarded his
car and left the scene. A security guard at a
nearby restaurant was able to take down
petitioner's car plate number. The police
arrived shortly thereafter at the scene of the
shooting and there retrieved an empty shell
and one round of live ammunition for a 9
mm caliber pistol. Verification at the Land
Transportation Office showed that the car
was registered to one Elsa Ang Go.
The following day, the police returned to the
scene of the shooting to find out where the
suspect had come from; they were informed
that petitioner had dined at Cravings Bake
Shop shortly before the shooting. The police
obtained a facsimile or impression of the
credit card used by petitioner from the
cashier of the bake shop. The security
guard of the bake shop was shown a picture
of petitioner and he positively identified him
as the same person who had shot Maguan.
Having established that the assailant was
probably the petitioner, the police launched
a manhunt for petitioner.
On 8 July 1991, petitioner presented himself
before the San Juan Police Station to verify
news reports that he was being hunted by
the police; he was accompanied by two (2)
lawyers. The police forthwith detained him.
An eyewitness to the shooting, who was at
the police station at that time, positively
identified petitioner as the gunman. That
same day, the police promptly filed a
complaint for frustrated homicide 2 against
petitioner with the Office of the Provincial
Prosecutor of Rizal. First Assistant
Provincial Prosecutor Dennis Villa Ignacio
("Prosecutor") informed petitioner, in the
presence of his lawyers, that he could avail
himself of his right to preliminary
investigation but that he must first sign a
waiver of the provisions of Article 125 of the
Revised Penal Code. Petitioner refused to
execute any such waiver.

On 9 July 1991, while the complaint was still


with the Prosecutor, and before an
information could be filed in court, the
victim, Eldon Maguan, died of his gunshot
wound(s).
Accordingly, on 11 July 1991, the
Prosecutor, instead of filing an information
for frustrated homicide, filed an information
for murder 3 before the Regional Trial Court.
No bail was recommended. At the bottom of
the information, the Prosecutor certified that
no preliminary investigation had been
conducted because the accused did not
execute and sign a waiver of the provisions
of Article 125 of the Revised Penal Code.
In the afternoon of the same day, 11 July
1991, counsel for petitioner filed with the
Prosecutor an omnibus motion for
immediate release and proper preliminary
investigation, 4 alleging that the warrantless
arrest of petitioner was unlawful and that no
preliminary
investigation
had
been
conducted before the information was filed.
Petitioner also prayed that he be released
on recognizance or on bail. Provincial
Prosecutor Mauro Castro, acting on the
omnibus motion, wrote on the last page of
the motion itself that he interposed no
objection to petitioner being granted
provisional liberty on a cash bond of
P100,000.00.
On 12 July 1991, petitioner filed an
urgent ex-parte motion for special raffle 5 in
order to expedite action on the Prosecutor's
bail recommendation. The case was raffled
to the sala of respondent Judge, who, on
the same date, approved the cash
bond 6 posted by petitioner and ordered his
release. 7 Petitioner was in fact released
that same day.
On 16 July 1991, the Prosecutor filed with
the Regional Trial Court a motion for leave
to conduct preliminary investigation 8 and
prayed that in the meantime all proceedings
in the court be suspended. He stated that
petitioner had filed before the Office of the
Provincial Prosecutor of Rizal an omnibus
motion for immediate release and
preliminary investigation, which motion had
been granted by Provincial Prosecutor
Mauro Castro, who also agreed to

recommend cash bail of P100,000.00. The


Prosecutor attached to the motion for leave
a copy of petitioner's omnibus motion of 11
July 1991.
Also on 16 July 1991, the trial court issued
an Order 9 granting leave to conduct
preliminary investigation and cancelling the
arraignment set for 15 August 1991 until
after the prosecution shall have concluded
its preliminary investigation.
On 17 July 1991, however, respondent
Judge motu
proprio issued
an
Order, 10 embodying the following: (1) the 12
July 1991 Order which granted bail was
recalled; petitioner was given 48 hours from
receipt of the Order to surrender himself; (2)
the 16 July 1991 Order which granted leave
to the prosecutor to conduct preliminary
investigation was recalled and cancelled; (3)
petitioner's omnibus motion for immediate
release and preliminary investigation dated
11 July 1991 was treated as a petition for
bail and set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition
for certiorari,
prohibition
and mandamus before the Supreme Court
assailing the 17 July 1991 Order,
contending that the information was null and
void because no preliminary investigation
had been previously conducted, in violation
of his right to due process. Petitioner also
moved for suspension of all proceedings in
the case pending resolution by the Supreme
Court of his petition; this motion was,
however, denied by respondent Judge.
On 23 July 1991, petitioner surrendered to
the police.
By a Resolution dated 24 July 1991, this
Court remanded the petition for certiorari,
prohibition and mandamus to the Court of
Appeals.
On 16 August 1991, respondent Judge
issued an order in open court setting the
arraignment of petitioner on 23 August
1991.
On 19 August 1991, petitioner filed with the
Court of Appeals a motion to restrain his
arraignment.
On 23 August 1991, respondent judge
issued a Commitment Order directing the
Provincial Warden of Rizal to admit

petitioner into his custody at the Rizal


Provincial Jail. On the same date, petitioner
was arraigned. In view, however, of his
refusal to enter a plea, the trial court
entered for him a plea of not guilty. The Trial
court then set the criminal case for
continuous hearings on 19, 24 and 26
September; on 2, 3, 11 and 17 October; and
on 7, 8, 14, 15, 21 and 22 November
1991. 11
On 27 August 1991, petitioner filed a
petition for habeas corpus 12 in the Court of
Appeals. He alleged that in view of public
respondent's failure to join issues in the
petition for certiorari earlier filed by him,
after the lapse of more than a month, thus
prolonging his detention, he was entitled to
be released on habeas corpus.
On 30 August 1991, the Court of Appeals
issued the writ of habeas corpus. 13 The
petition
for certiorari,
prohibition
and mandamus, on the one hand, and the
petition for habeas corpus, upon the other,
were subsequently consolidated in the
Court of Appeals.
The Court of Appeals, on 2 September
1991, issued a resolution denying
petitioner's
motion
to
restrain
his
arraignment on the ground that that motion
had become moot and academic.
On 19 September 1991, trial of the criminal
case commenced and the prosecution
presented its first witness.
On 23 September 1991, the Court of
Appeals
rendered
a
consolidated
decision 14 dismissing the two (2) petitions,
on the following grounds:
a. Petitioner's warrantless arrest was valid
because the offense for which he was
arrested and charged had been "freshly
committed." His identity had been
established through investigation. At the
time he showed up at the police station,
there had been an existing manhunt for him.
During the confrontation at the San Juan
Police Station, one witness positively
identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted
waiver of any irregularity attending his
arrest. He waived his right to preliminary

investigation by not invoking it properly and


seasonably under the Rules.
c. The trial court did not abuse its discretion
when it issued the 17 July 1991 Order
because the trial court had the inherent
power to amend and control its processes
so as to make them conformable to law and
justice.
d. Since there was a valid information for
murder against petitioner and a valid
commitment order (issued by the trial judge
after petitioner surrendered to the
authorities whereby petitioner was given to
the custody of the Provincial Warden), the
petition for habeas corpus could not be
granted.
On 3 October 1991, the prosecution
presented three (3) more witnesses at the
trial. Counsel for petitioner also filed a
"Withdrawal of Appearance" 15 with the trial
court, with petitioner's conformity.
On 4 October 1991, the present Petition for
Review on Certiorari was filed. On 14
October 1991, the Court issued a
Resolution directing respondent Judge to
hold in abeyance the hearing of the criminal
case below until further orders from this
Court.
In this Petition for Review, two (2) principal
issues need to be addressed: first, whether
or not a lawful warrantless arrest had been
effected by the San Juan Police in respect
of petitioner Go; and second, whether
petitioner had effectively waived his right to
preliminary investigation. We consider these
issues seriatim.
In respect of the first issue, the Solicitor
General argues that under the facts of the
case, petitioner had been validly arrested
without warrant. Since petitioner's identity
as the gunman who had shot Eldon Maguan
on 2 July 1991 had been sufficiently
established by police work, petitioner was
validly arrested six (6) days later at the San
Juan Police Station. The Solicitor General
invokes Nazareno v. Station Commander,
etc., et al., 16 one of the seven (7) cases
consolidated with In the Matter of the
Petition for Habeas Corpus of Roberto Umil,
etc., v. Ramos, et al. 17 where a majority of
the Court upheld a warrantees arrest as

valid although effected fourteen (14) days


after the killing in connection with which
Nazareno had been arrested. Accordingly,
in the view of the Solicitor General, the
provisions of Section 7, Rule 112 of the
Rules of Court were applicable and because
petitioner had declined to waive the
provisions of Article 125 of the Revised
Penal Code, the Prosecutor was legally
justified in filing the information for murder
even without preliminary investigation.
On the other hand, petitioner argues that he
was not lawfully arrested without warrant
because he went to the police station six (6)
days after the shooting which he had
allegedly perpetrated. Thus, petitioner
argues, the crime had not been "just
committed" at the time that he was arrested.
Moreover, none of the police officers who
arrested him had been an eyewitness to the
shooting of Maguan and accordingly none
had the "personal knowledge" required for
the lawfulness of a warrantees arrest. Since
there had been no lawful warrantless arrest.
Section 7, Rule 112 of the Rules of Court
which establishes the only exception to the
right to preliminary investigation, could not
apply in respect of petitioner.
The reliance of both petitioner and the
Solicitor General upon Umil v. Ramos is, in
the circumstances of this case, misplaced.
In Umil v. Ramos, by an eight-to-six vote,
the Court sustained the legality of the
warrantless arrests of petitioners made from
one (1) to fourteen days after the actual
commission of the offenses, upon the
ground that such offenses constituted
"continuing crimes." Those offenses were
subversion, membership in an outlawed
organization like the New People's Army,
etc. In the instant case, the offense for
which petitioner was arrested was murder,
an
offense
which
was
obviously
commenced and completed at one definite
location in time and space. No one had
pretended that the fatal shooting of Maguan
was a "continuing crime."
Secondly, we do not believe that the
warrantees "arrest" or detention of petitioner
in the instant case falls within the terms of
Section 5 of Rule 113 of the 1985 Rules on

Criminal Procedure which provides as


follows:
Sec. 5 Arrest without warrant; when lawful.
A peace officer or a private person may,
without warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense;
(b) When an offense has in fact just been
committed, and he has personal knowledge
of facts indicating that the person to be
arrested has committed it; and
(c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving
final judgment or temporarily confined while
his case is pending, or has escaped while
being transferred from one confinement to
another.
In cases falling under paragraphs (a) and
(b) hereof, the person arrested without a
warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be
proceed against in accordance with Rule
112, Section 7.
Petitioner's "arrest" took place six (6) days
after the shooting of Maguan. The
"arresting" officers obviously were not
present, within the meaning of Section 5(a),
at the time petitioner had allegedly shot
Maguan. Neither could the "arrest" effected
six (6) days after the shooting be
reasonably regarded as effected "when [the
shooting had] in fact just been committed"
within the meaning of Section 5(b).
Moreover, none of the "arresting" officers
had any "personal knowledge" of facts
indicating that petitioner was the gunman
who had shot Maguan. The information
upon which the police acted had been
derived from statements made by alleged
eyewitnesses to the shooting one stated
that petitioner was the gunman; another
was able to take down the alleged
gunman's car's plate number which turned
out to be registered in petitioner's wife's
name. That information did not, however,
constitute "personal knowledge." 18
It is thus clear to the Court that there was no
lawful warrantless arrest of petitioner within

the meaning of Section 5 of Rule 113. It is


clear too that Section 7 of Rule 112, which
provides:
Sec. 7 When accused lawfully arrested
without warrant. When a person is
lawfully arrested without a warrant for an
offense cognizable by the Regional Trial
Court the complaint or information may be
filed by the offended party, peace officer or
fiscal without a preliminary investigation
having been first conducted, on the basis of
the affidavit of the offended party or
arresting office or person
However, before the filing of such complaint
or information, the person arrested may ask
for a preliminary investigation by a proper
officer in accordance with this Rule, but he
must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as
amended, with the assistance of a lawyer
and in case of non-availability of a lawyer, a
responsible
person
of
his
choice. Notwithstanding such waiver, he
may apply for bail as provided in the
corresponding rule and the investigation
must be terminated within fifteen (15) days
from its inception.
If the case has been filed in court without a
preliminary investigation having been first
conducted, the accused may within five (5)
days from the time he learns of the filing of
the information, ask for a preliminary
investigation with the same right to adduce
evidence in his favor in the manner
prescribed in this Rule. (Emphasis supplied)
is also not applicable. Indeed, petitioner was
not arrested at all. When he walked into San
Juan Police Station, accompanied by two
(2) lawyers, he in fact placed himself at the
disposal of the police authorities. He did not
state that he was "surrendering" himself, in
all probability to avoid the implication he
was admitting that he had slain Eldon
Maguan or that he was otherwise guilty of a
crime. When the police filed a complaint for
frustrated homicide with the Prosecutor, the
latter should have immediately scheduled a
preliminary investigation to determine
whether there was probable cause for
charging petitioner in court for the killing of
Eldon Maguan. Instead, as noted earlier,

the Prosecutor proceed under the


erroneous supposition that Section 7 of
Rule 112 was applicable and required
petitioner to waive the provisions of Article
125 of the Revised Penal Code as a
condition for carrying out a preliminary
investigation. This was substantive error, for
petitioner was entitled to a preliminary
investigation and that right should have
been accorded him without any conditions.
Moreover, since petitioner had not been
arrested, with or without a warrant, he was
also entitled to be released forthwith subject
only to his appearing at the preliminary
investigation.
Turning to the second issue of whether or
not petitioner had waived his right to
preliminary investigation, we note that
petitioner had from the very beginning
demanded that a preliminary investigation
be conducted. As earlier pointed out, on the
same day that the information for murder
was filed with the Regional Trial Court,
petitioner filed with the Prosecutor an
omnibus motion for immediate release and
preliminary investigation. The Solicitor
General contends that that omnibus motion
should have been filed with the trial court
and not with the Prosecutor, and that the
petitioner should accordingly be held to
have waived his right to preliminary
investigation. We do not believe that waiver
of petitioner's statutory right to preliminary
investigation may be predicated on such a
slim basis. The preliminary investigation
was to be conducted by the Prosecutor, not
by the Regional Trial Court. It is true that at
the time of filing of petitioner's omnibus
motion, the information for murder had
already been filed with the Regional Trial
Court: it is not clear from the record whether
petitioner was aware of this fact at the time
his omnibus motion was actually filed with
the Prosecutor. In Crespo v. Mogul, 19 this
Court held:
The preliminary investigation conducted by
the fiscal for the purpose of determining
whether a prima facie case exists to
warranting the prosecution of the accused is
terminated upon the filing of the information
in the proper court. In turn, as above

stated, the filing of said information sets in


motion the criminal action against the
accused in Court. Should the fiscal find it
proper to conduct a reinvestigation of the
case, at such stage, the permission of the
Court must be secured. After such
reinvestigation
the
finding
and
recommendations of the fiscal should be
submitted to the Court for appropriate
action. While it is true that the fiscal has
the quasi-judicial discretion to determine
whether or not a criminal case should be
filed in court or not, once the case had
already been brought to Court whatever
disposition the fiscal may feel should be
proper in the case thereafter should be
addressed for the consideration of the
Court. The only qualification is that the
action of the Court must not impair the
substantial rights of the accused., or the
right of the People to due process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is
that once a complaint or information is filed
in Court any disposition of the case [such]
as its dismissal or the conviction or acquittal
of the accused rests in the sound discretion
of the Court. Although the fiscal retains the
direction and control of the prosecution of
criminal cases even while the case is
already in Court he cannot impose his
opinion on the trial court. The Court is the
best and sole judge on what to do with the
case before it. . . . 20 (Citations omitted;
emphasis supplied)
Nonetheless, since petitioner in his omnibus
motion was asking for preliminary
investigation and not for a re-investigation
(Crespo
v.
Mogul
involved
a reinvestigation), and since the Prosecutor
himself did file with the trial court, on the 5th
day after filing the information for murder, a
motion for leave to conduct preliminary
investigation (attaching to his motion a copy
of petitioner's omnibus motion), we
conclude that petitioner's omnibus motion
was in effect filed with the trial court. What
was crystal clear was that petitioner did ask
for a preliminary investigation on the very
day that the information was filed without
such preliminary investigation, and that the

trial court was five (5) days later apprised of


the desire of the petitioner for such
preliminary investigation. Finally, the trial
court did in fact grant the Prosecutor's
prayer for leave to conduct preliminary
investigation. Thus, even on the (mistaken)
supposition apparently made by the
Prosecutor that Section 7 of Rule 112 of the
Revised Court was applicable, the 5-day
reglementary period in Section 7, Rule 112
must be held to have been substantially
complied with.
We believe and so hold that petitioner did
not waive his right to a preliminary
investigation. While that right is statutory
rather than constitutional in its fundament,
since it has in fact been established by
statute, it is a component part of due
process in criminal justice. 21 The right to
have a preliminary investigation conducted
before being bound over to trial for a
criminal offense and hence formally at risk
of incarceration or some other penalty,
is not a mere formal or technical right; it is
a substantive right. The accused in a
criminal trial is inevitably exposed to
prolonged anxiety, aggravation, humiliation,
not to speak of expense; the right to an
opportunity to avoid a process painful to any
one save, perhaps, to hardened criminals, is
a valuable right. To deny petitioner's claim
to a preliminary investigation would be to
deprive him the full measure of his right to
due process.
The question may be raised whether
petitioner still retains his right to a
preliminary investigation in the instant case
considering that he was already arraigned
on 23 August 1991. The rule is that the right
to preliminary investigation is waived when
the accused fails to invoke it before or at the
time of entering a plea at arraignment.22 In
the instant case, petitioner Go had
vigorously insisted on his right to preliminary
investigation before his arraignment.At the
time of his arraignment, petitioner was
already before the Court of Appeals
on certiorari,
prohibition
and mandamusprecisely asking for a
preliminary investigation before being forced
to stand trial.

Again, in the circumstances of this case, we


do not believe that by posting bail petitioner
had waived his right to preliminary
investigation. In People v. Selfaison, 23 we
did hold that appellants there had waived
their right to preliminary investigation
because immediately after their arrest, they
filed bail and proceeded to trial "without
previously claiming that they did not have
the
benefit
of
a
preliminary
24
investigation." In
the
instant
case,
petitioner Go asked for release on
recognizance or on bail and for preliminary
investigation in one omnibus motion. He
had thus claimed his right to preliminary
investigation before respondent
Judge
approved the cash bond posted by
petitioner and ordered his release on 12
July 1991. Accordingly, we cannot
reasonably imply waiver of preliminary
investigation on the part of petitioner. In
fact, when the Prosecutor filed a motion in
court asking for leave to conduct preliminary
investigation, he clearly if impliedly
recognized that petitioner's claim to
preliminary investigation was a legitimate
one.
We would clarify, however, that contrary to
petitioner's contention the failure to accord
preliminary investigation, while constituting
a denial of the appropriate and full measure
of the statutory process of criminal justice,
did not impair the validity of the information
for murder nor affect the jurisdiction of the
trial court. 25
It must also be recalled that the Prosecutor
had actually agreed that petitioner was
entitled to bail. This was equivalent to an
acknowledgment on the part of the
Prosecutor that the evidence of guilt then in
his hands was not strong. Accordingly, we
consider that the 17 July 1991 order of
respondent Judge recalling his own order
granting bail and requiring petitioner to
surrender himself within forty-eight (48)
hours from notice, was plainly arbitrary
considering that no evidence at all and
certainly no new or additional evidence
had been submitted to respondent Judge
that could have justified the recall of his
order issued just five (5) days before. It

follows that petitioner was entitled to be


released on bail as a matter of right.
The final question which the Court must
face is this: how does the fact that, in the
instant case, trial on the merits has already
commenced, the Prosecutor having already
presented four (4) witnesses, impact upon,
firstly, petitioner's right to a preliminary
investigation and, secondly, petitioner's right
to be released on bail? Does he continue to
be entitled to have a preliminary
investigation conducted in respect of the
charge against him? Does petitioner remain
entitled to be released on bail?
Turning first to the matter of preliminary
investigation, we consider that petitioner
remains
entitled
to
a
preliminary
investigation although trial on the merits has
already began. Trial on the merits should be
suspended or held in abeyance and a
preliminary investigation forthwith accorded
to petitioner. 26 It is true that the Prosecutor
might, in view of the evidence that he may
at this time have on hand, conclude that
probable cause exists; upon the other hand,
the Prosecutor conceivably could reach the
conclusion that the evidence on hand does
not warrant a finding of probable cause. In
any event, the constitutional point is that
petitioner was not accorded what he was
entitled to by way of procedural due
process. 27 Petitioner was forced to undergo
arraignment and literally pushed to trial
without preliminary investigation, with
extraordinary haste, to the applause from
the audience that filled the courtroom. If he
submitted to arraignment at trial, petitioner
did so "kicking and screaming," in a manner
of speaking . During the proceedings held
before the trial court on 23 August 1991, the
date set for arraignment of petitioner, and
just before arraignment, counsel made very
clear petitioner's vigorous protest and
objection to the arraignment precisely
because of the denial of preliminary
investigation. 28 So
energetic
and
determined were petitioner's counsel's
protests and objections that an obviously
angered court and prosecutor dared him to
withdraw or walkout, promising to replace
him with counsel de oficio. During the trial,

before the prosecution called its first


witness, petitioner through counsel once
again reiterated his objection to going to trial
without preliminary investigation: petitioner's
counsel made of record his "continuing
objection." 29 Petitioner had promptly gone
to the appellate court on certiorari and
prohibition to challenge the lawfulness of
the procedure he was being forced to
undergo and the lawfulness of his
detention. 30 If he did not walk out on the
trial, and if he cross-examined the
prosecution's witnesses, it was because he
was extremely loath to be represented by
counsel de oficio selected by the trial judge,
and to run the risk of being held to have
waived also his right to use what is
frequently the only test of truth in the judicial
process.
In respect of the matter of bail, we similarly
believe and so hold that petitioner remains
entitled to be released on bail as a matter of
right. Should the evidence already of record
concerning petitioner's guilt be, in the
reasonable belief of the Prosecutor, strong,
the Prosecutor may move in the trial court
for cancellation of petitioner's bail. It would
then be up to the trial court, after a careful
and objective assessment of the evidence
on record, to grant or deny the motion for
cancellation of bail.
To reach any other conclusions here, that
is, to hold that petitioner's rights to a
preliminary investigation and to bail were
effectively
obliterated
by
evidence
subsequently admitted into the record would
be to legitimize the deprivation of due
process and to permit the Government to
benefit from its own wrong or culpable
omission and effectively to dilute important
rights of accused persons well-nigh to the
vanishing point. It may be that to require the
State to accord petitioner his rights to a
preliminary investigation and to bail at this
point, could turn out ultimately to be largely
a ceremonial exercise. But the Court is not
compelled to speculate. And, in any case, it
would not be idle ceremony; rather, it would
be a celebration by the State of the rights
and liberties of its own people and a reaffirmation
of
its
obligation
and

determination to respect those rights and


liberties.
ACCORDINGLY, the Court resolved to
GRANT
the
Petition
for
Review
on Certiorari. The Order of the trial court
dated 17 July 1991 is hereby SET ASIDE
and NULLIFIED, and the Decision of the
Court of Appeals dated 23 September 1991
hereby REVERSED.
The Office of the Provincial Prosecutor is
hereby ORDERED to conduct forthwith a
preliminary investigation of the charge of
murder against petitioner Go, and to
complete such preliminary investigation
within a period of fifteen (15) days from
commencement thereof. The trial on the
merits of the criminal case in the Regional
Trial Court shall be SUSPENDED to await
the
conclusion
of
the
preliminary
investigation.
Meantime, petitioner is hereby ORDERED
released forthwith upon posting of a cash
bail bond of One Hundred Thousand Pesos
(P100,000.00). This release shall be without
prejudice to any lawful order that the trial
court may issue, should the Office of the
Provincial Prosecutor move for cancellation
of bail at the conclusion of the preliminary
investigation.
No pronouncement as to costs. This
Decision is immediately executory.
SO ORDERED.
SECOND DIVISION
[A.M. No. RTJ-03-1817. June 8, 2005]
P/SR. SUPT. ORLANDO M. MABUTAS,
Regional Director, Philippine Drug
Enforcement Agency, Metro Manila
Regional Office, complainant, vs. JUDGE
NORMA C. PERELLO, Presiding Judge,
Regional Trial Court, Branch 276,
Muntinlupa City, respondent.
[A.M. No. RTJ-04-1820. June 8, 2005]
CITY
PROSECUTOR
EDWARD
M.
TOGONONON, complainant, vs. JUDGE
NORMA C. PERELLO,respondent.
RESOLUTION
AUSTRIA-MARTINEZ, J.:
Subject
matters
of
the
present
administrative cases are two complaints
against respondent Judge Norma C.

Perello, Presiding Judge of the Regional


Trial Court (Branch 276) of Muntinlupa City.
Admin. Matter No. RTJ-03-1817
This case originated from a letter of Police
Senior Supt. Orlando M. Mabutas, Regional
Director of the Philippine Drug Enforcement
Agency, Metro Manila Regional Office. P/Sr.
Supt. Mabutas complained of certain
irregularities committed by respondent
Judge in the grant of bail to accused Aiza
Chona Omadan in Criminal Case No. 03265. Omadan was charged in an
Information, dated April 21, 2003, with
Violation of Section 11 of Republic Act No.
9165, or the Comprehensive Dangerous
Drugs Act of 2002, for the possession,
custody and control of 57.78 grams of
Methamphetamine Hydrochloride (shabu),
with no bail recommended.
P/Sr. Supt. Mabutass complaint was based
on the memorandum submitted by Police
Inspector Darwin S. Butuyan, who stated in
his report, as follows:
In the evening of May 5, 2003, a colleague
notified him of a scheduled preliminary
investigation of Omadans case on the
following day (May 6). When P/Insp.
Butuyan, together with PO2 Saturnino
Mayonte and PO2 Allan Lising, went to the
Office of the City Prosecutor, Assistant City
Prosecutor (ACP) Florante E. Tuy merely
asked them to sign the minutes of the
preliminary investigation. Omadan and her
counsel were not around, and the police
officers were not furnished with a copy of
Omadans counter-affidavit.
On May 8, 2003, someone handed P/Insp.
Butuyan a subpoena for the arraignment of
Omadan on May 9, 2003. During the
scheduled arraignment, they were surprised
when ACP Vicente Francisco called PO2
Mayonte to the witness stand. Apparently,
Omadan filed a petition for bail and it was
being heard on the same day. PO2 Mayonte
and PO2 Lising asked ACP Francisco for a
rescheduling of the hearing because they
were not prepared to testify but the former
declined, saying that it is just a motion for
bail. After PO2 Mayonte testified, PO2
Lising asked ACP Francisco to present him
as witness but again, the former declined

since his testimony would only be


corroborative.
ACP
Francisco
also
presented two (2) barangay tanods.
On May 12, 2003, P/Insp. Butuyan went to
deliver a communiqu to ACP Francisco from
P/Sr. Supt. Mabutas requesting that in the
event bail was granted, its implementation
be held in abeyance so that the police
authorities may file the necessary motion,
and in order to prevent Omadan from
escaping. Since ACP Francisco was not
around, they went to Branch 276 to secure
a copy of the motion for bail. However, the
police officers were shocked to learn that
Omadan has already been released on
a P1,000,000.00 bail on May 9, 2003, which
was a Friday. Court personnel also informed
them that they spent overtime work for the
processing of the release papers. They
asked for a copy of the transcript of
stenographic notes of the hearing held on
May 9, 2003, but it was not available.
Respondent Judges Order dated May 9,
2003, granting Omadans petition for bail,
reads in part:
Clearly, the evidence of guilt is not very strong
for the denial of the bail. It was not proven that
the object that SPO1 Mayonte allegedly saw
wrapped in a tissue paper was indeed
methamphetamine hydrochloride. He is not
very sure if the specimen was in fact subjected
to an analysis to determine what it was. There is
also no specifying the quantity of the item.
There also seem to be an irregularity in the
service of the search warrant for it was NOT
witnessed by two disinterested persons.
Admittedly two Barangay Tanods were brought
to the residence of accused, but they never
witnessed the search because when they
arrived the search had already been completed.
The wife of the owner of the residence was
allegedly found in the house but she was not
made to go with the searching team to witness
the search. An evaluation of the record of the
search, it appears also the search warrant,
showed some material defect, because no
witness who appeared to have personal
knowledge of the illegal activities of the accused
and husband, executed an Affidavit before the

officer who issued the search warrant. In fact


the searching questions were conducted on the
applicant but not on the confidential informant,
who alone had the personal knowledge of the
alleged illegal activities in the vicinity. No
deposition was taken of the applicant. Only the
applying officers executed an affidavit, yet had
no personal knowledge of the crime as they
were only told by his confidential informant. No
copy of the deposition is attached to the
application. Although this court has no
jurisdiction to hear the MOTION TO QUASH the
search warrant however this fact are [sic] taken
into consideration for the petition to bail if only
to show the strength or weakness of the
prosecution evidence, to ascertain if
Prosecution have [sic] a witness who has
personal knowledge of the alleged illegal
activities of the accused in her home. There is
none. Even the Barangay policemen Arturo
Villarin, cannot tell with certainty if drugs were
indeed found in the residence of the accused.
Bail is therefore allowed in the sum of ONE
MILLION PESOS (Php 1,000,000.00) which
accused AIZA CHONA OMADAN may post in
cash, by property or thru a reputable bonding
company, and under the additional condition
that her counsel, Atty. GENE CASTILLO QUILAS
guarantees her appearance in court whenever
so required.
It is SO ORDERED.[1]
Admin. Matter No. RTJ-04-1820
This case proceeded from a letter of
Prosecutor Edward M. Togononon of
Muntinlupa City, accusing respondent
Judge of partiality, serious misconduct in
office and gross ignorance of the law,
concerning the latters grant of bail in four
criminal cases for Violations of R.A. No.
9165 pending before her.
In Criminal
Case
No.
03065, entitled, People of the Philippines vs.
Rosemarie Pascual y Mozo @ Rosema, for
Violation of Section 5 of R.A. No. 9165,
accused Pascual was charged with selling,
trading, delivering and giving away to
another 0.20 grams of Methamphetamine
Hydrochloride (shabu), with no bail
recommended.[2] Pascual filed, on February

5, 2003, a motion for bail on the grounds


that the quantity of shabu involved is
minimal and the imposable penalty is
likewise minimal in degree; and that she is
nine months pregnant and due to give birth
anytime.[3]
On the day of arraignment, February 7,
2003, respondent Judge issued an order
granting Pascuals motion for bail without
hearing, which reads:
The MOTION FOR BAIL filed by Accused through
counsel is granted on the reason cited thereat.
Accordingly, Accused ROSEMARIE PASCUAL Y
MOZO may post her bail in the amount
of P200,000.00 in cash or thru a reputable
bonding company, or by property bond for her
provisional liberty.
It is SO ORDERED.[4]
ACP Francisco filed a motion for
reconsideration, arguing that since the
crime charged against Pascual is a capital
offense, bail is not allowed as a matter of
right, and a hearing is indispensable.
Respondent Judge denied the motion in her
Order dated March 12, 2003, which reads,
in part:
...
This Court is immediately appalled and shocked
by the thirst for blood of these officials, were
selling shabu in the quantity of 0.20 gram, they
would put the accused to DEATH. It seems that,
to these officials LIFE IMPRISONMENT and
DEATH is the only solution to this problem,
without considering the intended provision of
the law, and the possible dislocation that the
death of the accused will cause to his family and
even to society itself. The prosecution and some
City Officials have distorted the provision of the
law by considering shabu as a dangerous drug,
in the category of opium puppy (sic) or
morphine. They cannot be more wrong!
In the 1961 Single Convention on Narcotic
Drugs, as amended by the 1972 Protocol,
Methamphetamine Hydrochloride is NEVER
considered as dangerous drugs to come under
the provision of the first paragraph of Sec. 5,
Republic Act No. 9165. The definition of
dangerous drugs under Sec. 3, letter J of the
said law, specifies those considered as

dangerous drugs. Instead Methamphetamine


Hydrochloride is considered as a controlled
precursor or essential chemical, which is found
and listed in No. 7, LIST OF SUBSTANCES in
SCHEDULE NO. 111 of the 1971 United Nations
Single Convention on Psychotropic Substances.
Therefore, Methamphetamine Hydrochloride is
a chemical substance or psychotropic substance
and NOT a dangerous drug.!
Since the quantity is very much less than a gram
of this essential chemical, is punishable with
imprisonment of only 12 years, as paragraph 2
of Sec. 5, R.A. 9165 provides. There is no law,
statute, or jurisprudence that classifies 12 years
imprisonment as a capital punishment, and
non-bailable. Only bloodsuckers who thirst for
blood will consider death for these offenders
for this kind of offense!
Prosecution will probably argue that this drug is
considered dangerous under Sec. 11, R.A. 9165,
but this section does not define what are
dangerous drugs, and the term is used generally
to encompass all drugs. Still, this section only
shows that for possession of certain quantities
of shabu, is punishable with 12 years
imprisonment only, NEVER DEATH!
This Court has no quarrel with the Prosecutors
if the drugs accused is pushing or found in the
custody of accused are of large volume, for then
they would really deserve to DIE! Then be richer
by several millions, and foster a society of drug
abusers yet! But this Court cannot agree with
Prosecutors when the quantity that is peddled
is not even enough to put body and soul
together of accused. Foisting death on these
kind of offenders, is death itself to him who
imposes such a penalty! This court cannot be
that unjust and unfeeling, specially as the law
itself does not so allow!
The prosecutors are also reminded that the
grant of bail to all offenses is constitutionally
guaranteed. Even those punishable with death
or capital offenses, only the EXCEPTIONS! It is
never the rule.
...
Perhaps if these questioning individuals will
provide employment to their constituents, the

latter will not engage in this kind of trade to


survive.[5]
In Criminal
Case
No.
03082, entitled, People of the Philippines vs.
Rolando Uy y Manata @ Nono, for Violation
of Section 5, paragraph 1 of R.A. No. 9165,
accused Uy was charged with selling,
trading, delivering and giving away to
Philippine National Police (PNP) operatives
after a buy-bust operation 0.12 grams of
Methamphetamine Hydrochloride (shabu).
ACP Romeo B. Senson recommended no
bail. Uy filed a petition for bail cum motion to
suppress prosecution evidence on February
18, 2003, alleging, among others, that the
arrest was illegal as no buy-bust operation
happened, and the shabu confiscated was
planted
on
him.
Without
hearing,
respondent Judge granted Uys petition for
bail since the quantity of drug allegedly
pushed is only 0.12 grams[6] Uy was
released on a P200,000.00 bail. The motion
for reconsideration filed by ACP Francisco
remains unresolved.
The antecedents of Criminal Case No. 03265 entitled People of the Philippines vs.
Aiza Chona Omadan y Chua and John Doe,
for Violation of Section 11 of R.A. No. 9165,
are set forth and dealt with in Admin.
Matter No. RTJ-03-1817.
In Criminal Case No. 03-288 entitled People
of the Philippines vs. Mary Jane Regencia y
Mozo @ Grace, for Violation of Section 5 of
R.A. No. 9165, accused Regencia was
charged with selling, delivering, trading and
giving away to another 0.07 grams of
Methamphetamine Hydrochloride (shabu).
Respondent
Judge
likewise
granted
Regencias motion for bail without hearing,
on the ground that the quantity of shabu
involved is minimal and the imposable
penalty is also minimal.[7]
Respondent Judge was required to
comment on these two complaints.
In Admin. Matter No. RTJ-03-1817,
respondent Judge contends that P/Sr. Supt.
Mabutass charges against her are baseless;
that the preliminary investigation conducted
on Omadans case was outside her
jurisdiction; that she did not have any hand
or influence in ACP Franciscos handling of

the hearing on the petition for bail as it is


within the latters control and supervision;
that she denies that there was undue haste
in the grant of bail in Omadans favor; and
that bail was granted because the
prosecutions evidence of Omadans guilt
was not strong.[8]
In Admin. Matter No. RTJ-04-1820,
respondent Judge explains that she did not
conduct
any
hearings
on
the
motions/petitions for bail filed in the criminal
cases subject of the complaint because the
crimes charged are not capital offenses as
the quantity of shabu involved therein was
minimal. Criminal Case Nos. 03-065, 03082, and 03-288 all involve selling of less
than 5 grams of shabu. Respondent Judge
believes that under R.A. No. 9165, shabu is
not a dangerous drug but merely a
controlled precursor, in which the selling of
less than 5 grams is punishable only with
imprisonment of 12 years to 20 years. Such
being the case, respondent Judge maintains
that bail is a matter of right and a hearing is
not required.[9]
The two complaints were consolidated and
referred to Court of Appeals Associate
Justice Jose C. Reyes, Jr. for investigation,
report, and recommendation.
After due proceedings, the Investigating
Justice
submitted
his
Report
and
Recommendation, with the following
findings and conclusion:
The charges arose out of the same set of facts
and are interrelated and will be discussed
together.
Before proceeding further, the investigating
justice will first dispose respondent judges
assertion that the complaints should be
dismissed outright claiming that where
sufficient judicial remedy exists, the filing of
administrative complaint is not the proper
remedy to correct actions of a judge citing the
case of Barbers vs. Laguio, Jr. (351 SCRA 606
[2001])
Anent the charge of partiality and serious
misconduct, the investigating justice notes that
these particular charges were not touched upon
in the testimony of any of the witnesses
presented by the complainants. Therefore, the

investigating justice finds that no evidence as to


partiality nor serious misconduct exists and
these charges should be dismissed for lack of
evidence.
The investigating justice will now therefore
tackle only the charge of gross ignorance of the
law against respondent judge.
A close scrutiny of the said Barbers case shows
that it is not applicable in the present
administrative complaints because in the said
case it was clear that complainants-petitioners
were not merely concerned with the alleged act
of the judge of rendering an unjust judgment
but was also seeking the reversal of the
judgment of acquittal. They had even filed an
appeal from the judgment therein of
respondent judge. Thus, the Supreme Court
held:
It has been held that the pendency of an appeal
from a questioned judgment renders the filing
of administrative charges premature. Where a
sufficient judicial remedy exists, the filing of an
administrative complaint is not the proper
remedy to correct the actions of a judge.
In the present administrative complaints, it was
not shown that an appeal or any other
proceeding had been filed to reverse the
respondent judges orders granting bail. It had
not been shown that the present administrative
complaints had any purpose other then seeking
administrative sanctions against respondent
judge.
Turning now to the merits of the administrative
complaints, the primordial issue is: Whether or
not there is an ambiguity in the law as to the
classification
of
methamphetamine
hydrochloride.
Under Section 3(x) of the R.A. No. 9165 the
substance was defined as:
Methamphetamine Hydrochloride or commonly
known as Shabu, Ice, Meth, or by its any other
name. Refers to the drug having such chemical
composition, including any of its isomers or
derivatives in any form.
It can be noted that nothing in this provision
indicates the classification of the substance
either as a dangerous or regulated drug.

It is respondent judges position that shabu is


not expressly classified as a dangerous drug
under Section 5 of R.A. No. 9165 and should
therefore be considered merely as a chemical
precursor, to wit:
...
For clarity, the UN Single Convention was
referred to in Section 3 of R.A. No. 9165 in
relation to the definitions of dangerous drugs
and controlled precursors, to wit:
(h) Controlled Precursors and Essential
Chemicals. Include those listed in Tables I and II
of the 1988 UN Convention Against Illicit Traffic
in Narcotic Drugs and Psychotropic Substances
as enumerated in the attached annex, which is
an integral part of this Act.
...
(j) Dangerous Drugs. Include those listed in the
Schedules annexed to the 1961 Single
Convention on Narcotic Drugs, as amended by
the 1972 Protocol, and in the Schedules
annexed to the 1971 Single Convention on
Psychotropic Substances as enumerated in the
attached annex which is an integral part of this
Act.
It should be noted, however, that by the plain
wordings of R.A. No. 9165 dangerous drugs are
not limited to those substances listed in the
schedules attached to the 1961 United Nations
Single Convention on Narcotic Drugs because of
the use of the word include. That is, there are
other substances which may be considered
dangerous drugs even if not listed in the abovementioned schedules.
It is also worth noting that under Section 11 of
R.A.
No.
9165,
Methamphetamine
Hydrochloride was specifically mentioned as a
dangerous drug, to wit:
...
(5) 50 grams or more of methamphetamine
hydrochloride or shabu;
...
It is clear, therefore, that the lawmakers
intended to classify Methamphetamine
Hydrochloride or shabu as a dangerous drug.
Moreover, it would be absurd to consider
methamphetamine hydrochloride a dangerous
drug under Section 11 of R.A. No. 9165 and

merely a precursor under Section 5 of the same


law.
In fine, there is no question that
methamphetamine hydrochloride is classified as
a dangerous drug.
Having made the foregoing findings, the next
issue that calls for resolution is the penalty
imposable to the criminal cases under
consideration. This is necessary in order to
determine if the accused are entitled to bail.
Under Section 13 of Article III of the 1987
Constitution, an accused shall be entitled to bail
as a matter of right unless charged with an
offense punishable with a capital penalty.
The Court notes that the criminal cases under
consideration can be grouped into two (2): A)
Crim. Case No. 03-065 (against Rosemarie
Pascual, Crim. Case No. 03-082 (against Rolando
Uy), and Crim. Case No. 03-288 (against Mary
Jane Regencia), which involve selling, trading,
delivering or giving away Methamphetamine
Hydrochloride; and B) Crim. Case No. 03-265
(against Aiza Chona Omadan) which involve
possession of the said substance.
The investigating justice would first discuss
Crim. Case No. 03-265 where the accused was
charged with possession of 57.78 grams of
Methemphetamine Hydrochloride. Section 11
of R.A. No. 9165 provides that the penalty
imposable is life imprisonment to death.
Therefore, in the Crim. Case No. 03-265 accused
therein is not entitled to bail as a matter of
right. Rightly so, a hearing was conducted
before the bail was granted.
The investigating justice, after a careful
consideration of the evidence presented by the
complainants, opines that there is insufficient
evidence to support the allegation that bail was
hastily granted to accused Aiza Chona Omadan.
Therefore, the charge of gross ignorance in
relation to this case should be dismissed for lack
of factual basis.
The investigating justice will now tackle the
other set of cases (Crim. Case No. 03-065; Crim.
Case No. 03-082; Crim. Case No. 03-288). Under
the law, these are punishable with penalty
ranging from life imprisonment to death.

Pertinent portions of Section 5 of R.A. No. 9165


reads:
...
As held in Managuelod vs. Paclibon, et al. (A.M.
No. RTJ-02-1726, March 29, 2004).
It is imperative that judges be conversant with
basic legal principles and possess sufficient
proficiency in the law. In offenses punishable by
reclusion perpetua or death, the accused has no
right to bail when the evidence of guilt is strong.
Respondent Judge Go should have known the
procedure to be followed when a motion for
admission to bail is filed by the accused.
Extreme care, not to mention the highest sense
of personal integrity, is required of him in
granting bail, specially in case where bail is not
a matter of right. The fact that the provincial
prosecutor interposed no objection to the
application for bail by the accused did not
relieve respondent judge of the duty to set the
motion for bail for hearing. A hearing is of
utmost necessity because certain guidelines in
fixing bail (the nature of the crime, character
and reputation of the accused, weight of
evidence against him, the probability of the
accused appearing at the trial, among other
things) call for the presentation of evidence. It
was impossible for respondent judge to
determine the application of these guidelines in
an ex-parte determination of the propriety of
Palacols motion for bail. Thus, for his failure to
conduct any hearing on the application for bail,
we hold respondent Judge Go guilty of gross
ignorance of the law justifying the imposition of
the severest disciplinary sanction on him.
(Emphasis supplied)
It is clear, therefore, that as to said criminal
cases the accused were likewise not entitled to
bail as a matter of right, hence, a hearing for
the grant of bail should have been conducted.
However, in this last instance, no such hearing
was conducted.
In fine, respondent judge erred in granting bail
to the accused in Crim. Case No. 03-065, Crim.
Case No. 03-082, and Crim. Case No. 03-288
without hearing because the crime charge
carries with it capital penalty.

As to Crim. Case No. 03-065, Crim. Case No. 03082, and Crim. Case No. 03-288, the next issue
to be resolved is: whether or not the mistake
amounted to gross ignorance of the law which
would justify an administrative sanction against
respondent judge.
Respondent judge, naturally, argued that she
cannot be held liable asserting that to be held
guilty of gross ignorance, the error must have
been gross, deliberate and malicious (Rollo, RTJ04-1820, p. 74) and in absence of fraud,
dishonesty, or corruption that judge cannot be
held liable (Rollo, RTJ-04-1820, p. 75).
However, the Supreme Court does not always
require the presence of malice to find erring
judges liable for gross ignorance.
In the above-cited Managuelod case the
Supreme Court held that failure to hold a
hearing before granting bail in crimes involving
capital punishment constitutes gross ignorance
of the law, thus:
. . . Thus, for his failure to conduct any hearing
on the application for bail, we hold respondent
Judge Go guilty of gross ignorance of the law
justifying the imposition of the severest
disciplinary sanction on him.
The same should hold true in the present
administrative cases considering that the
criminal cases involved drugs, a major problem
of the country today.
In conclusion, the investigating justice finds
respondent judge guilty of gross ignorance of
the law in relation to the granting of bail
without hearing in Crim. Case Nos. 03-065, 03082 and 03-288 and exonerate her as to the
charge in relation to Criminal Case No. 03-265.
...
The next issue then is the penalty imposable on
respondent judge. In Mupas vs. Espanol (A.M.
No. RTJ-04-185014, July 14, 2004) the Supreme
Court enumerated the proper penalty for gross
negligence (sic), thus:
Under Section 8 of A.M. No. 01-8-10-SC
amending Rule 140 of the Rules of Court on the
Discipline of Justices and Judges, which took
effect on October 1, 2001, gross ignorance of
the law is classified as a serious charge which
carries with it a penalty of either dismissal from

service, suspension or a fine of more


than P20,000.00
but
not
[10]
exceeding P40,000.00.
Based on the foregoing, the Investigating
Justice
made
the
following
recommendation:
WHEREFORE, in view of the foregoing, it is
respectfully recommended that respondent
Judge Norma C. Perello be DISMISSED on the
ground of gross ignorance of law in relation to
the grant of bail in Criminal Case No. 03-065,
Criminal Case No. 03-082, Criminal Case No. 03288.[11]
The issue in these administrative cases is
whether respondent Judge may be
administratively held liable for the grant of
bail in the particular criminal cases subject
of the complaints. As earlier stated, the
criminal cases subject of the present
administrative
complaints all
involve
violations of R.A. No. 9165, or the
Comprehensive Dangerous Drugs Act of
2002.
Admin.
Matter
No.
RTJ-031817 particularly relates to Criminal Case
No. 03-265 (People of the Philippines vs.
Aiza Chona Omadan), involving the
possession, custody, and control of 57.78
grams of shabu, punishable under Section
11 thereof, which reads:
SEC. 11. Possession of Dangerous Drugs.-- The
penalty of life imprisonment to death and a fine
ranging from Five Hundred Thousand Pesos
(P500,000.00)
to
Ten
Million
Pesos
(P10,000,000.00) shall be imposed upon any
person, who unless authorized by law, shall
possess any dangerous drug in the following
quantities, regardless of the degree of purity
thereof:
...
(5) 50 grams or more of methamphetamine
hydrochloride or shabu; (Emphasis supplied)
...
Under the foregoing provision, possession
of 50 grams or more of methamphetamine
hydrochloride or shabu is punishable by life
imprisonment to death; hence, a capital
offense.[12] As such, bail becomes a matter

of discretion. In this regard, Rule 114, Sec.


7 of the Rules of Court states:
No person charged with the capital offense, or
an offense punishable by reclusion perpetua or
life imprisonment, shall be admitted to bail
when the evidence of guilt is strong, regardless
of the stage of the criminal prosecution.
This provision is based on Section 13,
Article III of the 1987 Constitution, which
reads:
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.
The matter of determining whether or not
the evidence is strong is a matter of judicial
discretion
that
remains
with
the
judge.[13] Such discretion must be sound
and exercised within reasonable bounds. [14]
Under the present rules, a hearing on an
application
for
bail
is
mandatory.[15] Whether bail is a matter of
right or of discretion, the prosecutor should
be given reasonable notice of hearing, or at
least his recommendation on the matter
must be sought. In case an application for
bail is filed, the judge is entrusted to
observe the following duties:
1. In all cases, whether bail is a matter of right
or discretion, notify the prosecutor of the
hearing of the application for bail or require him
to submit his recommendation;
2. Where bail is a matter of discretion, 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;
3. Decide whether the guilt of the accused is
strong based on the summary of evidence of
the prosecution; and
4. If the guilt of the accused is not strong,
discharge the accused upon the approval of the

bail bond. Otherwise the bail should be


denied.[16]
Based on the above-cited procedure and
requirements, after the hearing, the courts
order granting or refusing bail must contain
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. 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.[17]
In this case, respondent Judge complied
with the foregoing duties. A hearing was
held on the petition; the prosecution was
given the opportunity to present its evidence
in support of its stance; respondent Judge
based her findings on the prosecutions
evidence, namely, the testimonies of P02
Saturnino Mayonte and Arturo Villarin;
respondent Judges Order dated May 9,
2003 granting the accuseds petition for bail
contained a summary of the prosecutions
evidence; and since it was her conclusion
that the evidence of accused Omadans guilt
is not strong, the petition for bail was
granted.[18]Respondent Judge did not violate
procedural requirements. Records show
that respondent Judge afforded the
prosecution ample opportunity to present all
the evidence it had and there was no
protest from the prosecution that it had been
deprived of its right to present against the
accused. Thus, the Court does not find any
irregularity in the grant of bail in Criminal
Case No. 03-265 that would render
respondent Judge administratively liable.
It is noted that the other circumstances,
complained of in this case, do not relate
solely to respondent Judges acts, but to the
prosecutions conduct in handling the case.
Thus, P/Insp. Darwin S. Butuyan stated in
his report that there is something wrong in
the procedures and circumstances adopted
by the Office of the City Prosecutor of
Muntinlupa City and Branch 276, RTC,
Muntinlupa City in handling the case leading
to the granting of bail to accused Aiza
Chona Omadan y Chua.[19]

The Court recognizes that the manner in


which the strength of an accuseds guilt is
proven still primarily rests on the
prosecution. The prosecutor has the right to
control the quantum of evidence and the
order of presentation of the witnesses, in
support of the denial of bail. After all, all
criminal actions are prosecuted under the
direction and control of the public
prosecutor.[20] It was the prosecutions
judgment to limit the presentation of
evidence to two witnesses, as it felt that the
testimonies of the other witnesses would be
merely corroborative. It is beyond
respondent Judges authority to compel the
public prosecutor to exercise its discretion in
a way respondent Judge deems fit, so long
as such exercise of discretion will not defeat
the purpose for which the hearing was
held, i.e., to determine
whether
strong
evidence of guilt exists such that the
accused may not be entitled to bail.
In any event, the complainant in this case
had also filed a letter-complaint with the
Department of Justice against the
concerned
public
prosecutors.[21] Such
matter is best left handled by the
Department, and the Court will not interfere
on the matter.
Admin. Matter No. RTJ-04-1820, however,
portrays an entirely different picture.
In this case, respondent Judge granted bail
in Criminal Cases Nos. 03-065, 03-082, and
03-288 without the requisite hearing. In so
doing, it was respondent Judges defense
that under R.A. No. 9165, shabu is not a
dangerous drug but merely a controlled
precursor, in which the selling of less than 5
grams is punishable only with imprisonment
of 12 years to 20 years, and as such, bail is
a matter of right and a hearing is not
required. Respondent Judge argued that:
In determining whether methamphetamine
hydrochloride or shabu is indeed classified as a
dangerous drug under the said Republic Act,
undersigned exhaustively studied the provision
of this law and found that in Letter H, Art. 1,
Section
3:
Definition
of
Terms,
Methamphetamine Hydrochloride is listed in
Table II, No. 12 of the 1988 UN Convention

Against Illicit Traffic in Narcotic Drugs and


Psychotropic Substances, which list is attached
annex, an integral part of this Act,
Methamphetamine and is listed as a
CONTROLLED PRECURSOR or ESSENTIAL
CHEMICAL. This is more imperatively classified
as a chemical, in Letter X of the Definition, Sec.
3, Art. 1, where shabu is considered as such
chemical. Therefore, under the definition by law
itself,
shabu
or
methamphetamine
hydrochloride is classified as a controlled
precursor or essential chemical.
The definition of what are considered as
DANGEROUS DRUGS, is (sic) those in Letter J,
Sec. 3, Art. 1 of R.A. 9165, listed in 1961 Singled
Convention on Narcotic Drugs, as amended by
the 1972 Protocol, which list is again an integral
part of this Act. Methamphetamine is NOT one
of the enumerations of dangerous drugs.
Therefore, the selling or trading of this
substance in a quantity less than a gram is
punishable with an imprisonment of only
twelve (12) years as provided by the second
paragraph of Section 5, Article II, is not on
capital offense punishable with death or life
imprisonment, is bailable.
Section 11, Art. II, of the same Act, treats of
POSSESSION NOT SELLING, where possession of
this substance is considered as a capital offense,
punishable with death or life imprisonment,
only if the accused is in possession of it in the
quantity of 50 GRAMS (50 grams), irrespective
of the purity of the substance. It becomes a
capital offense only if it is in the quantity of fifty
grams (50 GRAMS) under No. 5 of Section 11,
Art. II. Corollarilly, if it is less than this quantity,
possession of methamphetamine hydrochloride
is NOT punishable with a capital penalty, hence,
bailable!
To
stress
POSSESSION
of
Methamphetamine Hydrochloride is considered
as capital offense punishable with capital
penalty if the quantity is 50 GRAMS (50
GRAMS), (Sec. 11, Art. II) while PUSHING of
methamphetamine hydrochloride (Paragraph 2,
Sec. 5) to be punishable with capital penalty
must be in the quantity of FIVE GRAMS (5
GRAMS), (Guidelines for RA 9165).[22]

To justify her granting bail in the three


criminal cases, respondent Judge insists
that she did so because of her belief that
methamphetamine
hydrochloride
or shabu is merely a precursor and
therefore the sale thereof is not a capital
offense. This opinion is blatantly erroneous.
One need not even go beyond the four
corners of R.A. No. 9165 to see respondent
Judges palpable error in the application of
the law.
Respondent Judge need not exhaustively
study R.A. No. 9165, as she asserted, to
determine the nature of methamphetamine
hydrochloride. A plain reading of the law
would
immediately
show
that methamphetamine hydrochloride is
a dangerous drug and not a controlled
precursor. If only respondent Judge
prudently went over the pertinent provisions
of R.A. No. 9165, particularly Section 3,
items (h) and (j), and properly made the
corresponding reference to the schedules
and tables annexed thereto, she would have
easily ascertained that methamphetamine
hydrochloride is listed in the 1971 UN Single
Convention on Psychotropic Substances,
which are considered dangerous drugs. It is
not listed in the 1988 UN Convention
Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, as respondent
Judge stated.[23]
Dangerous Drugs are defined by Section 3,
paragraph (j) of R.A. No. 9165, as including
those in the Schedules listed annexed to the
1961 Single Convention on Narcotic Drugs,
as amended by the 1972 Protocol, and in
the Schedules annexed to the 1971 UN
Single
Convention
on
Psychotropic
Substances, which were made an integral
part of R.A. No. 9165.
Under the foregoing section, dangerous
drugs are classified into: (1) narcotic
drugs, as listed in the 1961 Single
Convention on Narcotic Drugs, as amended
by the 1972 Protocol; and (2) psychotropic
substances, as listed in the 1971 UN
Single
Convention
on
Psychotropic
Substances.
For purposes of this case, the list of
substances in Schedule II of the 1971 UN

Single
Convention
of
Psychotropic
Substances is hereby reproduced, to wit:
LIST OF SUBSTANCES IN SCHEDULE II
1.
AMFETAMINE (AMPHETAMINE)
2.
DEXAMFETAMINE (DEXAMPHETAMINE)
3.
FENETYLLINE DRONABINOL
4.
LEVAMFETAMINE
5.
LEVOMETHAMPHETAMINE
6.
MECLOQUALONE
7.
METAMFETAMINE
(METHAMPHETAMINE)
8.
METAMFETAMINE RACEMATE
9.
METHAQUALONE
10.
METHYLPHE NIDATE
11.
PHENCYCLIDINE (PCP)
12.
PHENMETRAZINE
13.
SECOBARBITAL
14.
DRONABINOL
(delta-9-tetrahydrocannabinol and its stereochemical
variants)
15.
ZIPEPROL
16.
2C-B
(4-bromo-2,5dimethoxyphenethylamine)
It clearly shows that methamphetamine is a
psychotropic substance, or a dangerous
drug.
On the other hand, under Section 3,
paragraph (h) of R.A. No. 9165, controlled
precursors and essential chemicals, refer to
those listed in Tables I and II of the 1988
UN Convention Against Illicit Traffic in
Narcotic
Drugs
and
Psychotropic
Substances, which were likewise made
integral part of R.A. No. 9165, to wit:
TABLE I
TABLE II
1 ACETIC ANHYDRIDE
1 ACETONE
.
.
2 N-ACETYLANTHRANILIC 2 ANTHRANILIC
. ACID
. ACID
3 EPHEDRIN
3 ETHYL ETHER
.
.
4 ERGOMETRINE
4 HYDROCHLO
.
. RIC ACID
5 ERGOTAMINE
5 METHYL
.
. ETHYL
KETONE
6 ISOSAFROLE
6 PHENYLACETI

.
7
.
8
.
9
.
10.

LYSERGIC ACID
3,4METHYLENEDIOXYPHE
NYL-2 PROPANONE
NOREPHEDRINE

.
7
.
8
.

C ACID
PIPERIDINE
SULPHURIC
ACID

9 TOLUENE
.
1-PHENYL-2-PROPANONE

11.

PIPERONAL

12.

POTASSIUM PERMANGANATE

13.

PSEUDOEPHEDRINE

14.

SAFROLE

It readily reveals that methamphetamine is


not one of those listed as controlled
precursor or essential chemical.
Given the foregoing, methamphetamine
hydrochloride is a dangerous drug, and not
a controlled precursor or essential chemical.
That
methamphetamine
and
not
methamphetamine hydrochloride is the term
specifically listed in Schedule II of the 1971
UN Single Convention of Psychotropic
Substances does not detract from the fact
that it is a dangerous drug. Section 3,
paragraph (x) of R.A. No. 9165, states that
methamphetamine hydrochloride is a drug
having
such
chemical
composition,
including any of its isomers or derivatives in
any form.
This is further strongly manifest in Section
11 of R.A. No. 9165, wherein it is
specifically provided that the possession of
dangerous
drugs,
such
as
methamphetamine hydrochloride or shabu,
is punishable with life imprisonment to death
and a fine ranging from Five Hundred
Thousand Pesos (P500,000.00) to Ten
Million Pesos (P10,000,000.00), if the
quantity thereof is 50 grams or more. It
would be absurd, to say the least, that
Section 11 of R.A. No. 9165 would qualify
methamphetamine hydrochloride as a

dangerous drug, while Section 5 of the


same law, penalizing the sale thereof, would
treat it as a controlled precursor.
Had respondent Judge been more
circumspect in going over the pertinent
provisions of R.A. No. 9165, she would
certainly arrive at the same conclusion. It
does not even take an interpretation of the
law but a plain and simple reading thereof.
Furthermore, had respondent judge kept
herself abreast of jurisprudence and
decisions of the Court,[24] she would have
been apprised that in all the hundreds and
hundreds of cases[25] decided by the Court,
methamphetamine
hydrochloride
or shabu had always been considered as a
dangerous drug.
Given that methamphetamine hydrochloride
is a dangerous drug, the applicable
provision in Criminal Case Nos. 03-065, 03082, and 03-288 subject of Admin. Matter
No. RTJ-04-1820, is Section 5, paragraph 1
of R.A. No. 9165, which reads:
SECTION 5. Sale, Trading, Administration,
Dispensation, Delivery, Distribution and
Transportation of Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals.
The penalty of life imprisonment to death and
fine ranging from Five hundred thousand pesos
(P500,000.00)
to
Ten
million
pesos
(P10,000,000.00) shall be imposed upon any
person, who, unless authorized by law, shall
sell, trade, administer, dispense, deliver, give
away to another, distribute, dispatch in transit
or transport any dangerous drug, including any
and all species of opium poppy regardless of
the quantity and purity involved, or shall act as
a broker in any of such transactions.
Regardless of quantity, the sale, trade,
administration,
dispensation,
delivery,
distribution and transportation of shabuis
punishable by life imprisonment to death.
Being a capital offense, it is incumbent upon
respondent Judge to hold a hearing on the
petitions/motions for bail filed by the
accused therein to determine whether
evidence of guilt is strong. To grant an
application for bail and fix the amount
thereof without a hearing duly called for the
purpose of determining whether the

evidence of guilt is strong constitutes gross


ignorance
or
incompetence
whose
grossness cannot be excused by a claim of
good faith or excusable negligence.[26]
In Gallardo vs. Tabamo,[27] the Court
rejected the defense that the judges failure
to apply the clear provisions of the law is
merely an error of judgment, and the judge
was held administratively liable for gross
ignorance of the law where the applicable
legal provisions are crystal clear and need
no interpretation.
Moreover, such gross ignorance of law is in
violation of Rule 3.01 of the Code of Judicial
Conduct, which states that a judge shall be
faithful to the law and maintain professional
competence.
The indispensable nature of a bail hearing in
petitions for bail has always been ardently and
indefatigably stressed by the Court. The Code of
Judicial Conduct enjoins judges to be faithful to
the law and maintain professional competence.
A judge is 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 and be
aware of well-settled authoritative doctrines.
He should strive for excellence exceeded only
by his passion for truth, to the end that he be
the personification of justice and the Rule of
Law.[28]
Although judges cannot be held to account
or
answer
criminally,
civilly
or
administratively
for
every
erroneous
judgment or decision rendered by him in
good faith, it is imperative that they should
have basic knowledge of the law. [29]
Even if a judge acted in good faith but his
ignorance is so gross, he should be held
administratively liable.[30]
Under Rule 140 of the Rules of Court, as
amended by A.M. No. 01-8-10-SC, which
took effect on October 1, 2001, gross
ignorance of the law is classified as a
serious charge and is now punishable with
severe sanctions, to wit:
Sec. 11. Sanctions. A. If the respondent is guilty
of a serious charge, any of the following
sanctions may be imposed:

1. Dismissal from the service, forfeiture of all or


part of the benefits as the Court may
determine,
and
disqualification
from
reinstatement or appointment to any public
office, including government-owned or
controlled corporations. Provided, however,
that the forfeiture of benefits shall in no case
include accrued leave credits.
2. Suspension from office without salary and
other benefits for more than three (3) but not
exceeding six (6) months; or
3. A fine of more than P20,000.00 but not
exceeding P40,000.00.
In this case, the Investigating Justice
recommended that respondent Judge be
dismissed from the service. The Court finds
such penalty to be too harsh. In similar
cases,[31] the Court imposed a fine on the
respondents therein for gross ignorance of
the law for having granted bail to the
accused without notice and hearing.
However, the Court takes judicial notice that
this is not the first time that respondent
Judge was administratively fined. In A.M.
No. RTJ-02-1686,[32] a fine ofP5,000.00 and
a reprimand was imposed on respondent
Judge for dereliction of duty for her failure to
act on Civil Case No. 9-138 for three years.
In A.M. No. RTJ-04-1846,[33] respondent
Judge was held administratively liable for
gross ignorance of the law, grave
misconduct and oppression for the delay of
almost nine (9) months in the transmittal of
the records of Civil Case No. 01-268 to the
Court
of
Appeals,
and
was
fined P20,000.00. Thus, the Court is
imposing a penalty more severe than a fine.
Suspension from office for six (6) months
in Admin. Matter No. RTJ-04-1820,
excludingCriminal Case No. 03-265 (People
of the Philippines vs. Aiza Chona Omadan),
is sufficient and reasonable.
The Office of the Court Administrator (OCA)
also notes, in its Memorandum dated
November 22, 2002, that respondent Judge
caused the release from the National Bilibid
Prison of several persons convicted of
violation of the drugs law by granting the
petitions for habeas corpus filed in her
court, i.e., Spl. Proc. Nos. 02-002, 02-008,

02-10, 98-023 and 98-048. The OCA further


stated that in Spl. Proc. Nos. 98-023 and
98-048, respondent Judge granted the
petitions without determining the veracity of
the allegations therein; without any material
evidence in support of her findings and
conclusion; and that at the time the petitions
were granted, an appeal from the
convictions in these two cases is pending
before the Court (G. R. Nos. 131622-23).
Thus, the OCA recommends that an
investigation, report, and recommendation
on these two cases be made, and that it be
authorized to conduct an audit on all the
petitions for habeas corpus in all the courts
of the Regional Trial Court of Muntinlupa
City from 1998 to the present.[34]
WHEREFORE,
judgment
is
hereby
rendered:
(1) In Admin. Matter No. RTJ-031817, DISMISSING the complaint against
respondent Judge; and,
(2) In Admin. Matter No. RTJ-04-1820,
finding respondent Judge Norma C. Perello,
Presiding Judge of the Regional Trial Court
(Branch 276) of Muntinlupa City GUILTY of
gross ignorance of law, and she is
hereby SUSPENDED for Six (6) Months,
with warning that a repetition of similar acts
shall be dealt with more severely.
AS TO OTHER MATTERS:
(a) The Court ORDERS the Office of the
Court
Administrator
to
initiate
the
appropriate complaint for grave misconduct
and/or gross ignorance of the law against
respondent Judge, insofar as Spl. Proc.
Nos. 02-002, 02-008, 02-10, 98-023 and 98048 are concerned; and to conduct
preliminary investigation and submit report
thereon within ninety (90) days from notice
hereof.
(b) The Office of the Court Administrator
is AUTHORIZED to conduct an audit and
submit a report within ninety (90) days from
notice hereof, on all the petitions for habeas
corpus in all the courts of the Regional Trial
Court of Muntinlupa City from 1998 to
present.
SO ORDERED.

THIRD DIVISION
JOSE ANTONIO LEVISTE, G.R. No. 189122
Petitioner,
Present:
CORONA, J., Chairperson,
VELASCO, JR.,
- v e r s u s - NACHURA,
PERALTA and
MENDOZA, JJ.
THE COURT OF APPEALS
and PEOPLE OF THE
PHILIPPINES,
Respondents. Promulgated:
March 17, 2010
x--------------------------------------------------x

DECISION

CORONA, J.:
Bail, the security given by an accused who is in
the custody of the law for his release to
guarantee his appearance before any court as
may be required,[1] is the answer of the criminal
justice system to a vexing question: what is to
be done with the accused, whose guilt has not
yet been proven, in the dubious interval, often
years long, between arrest and final
adjudication?[2] Bail acts as a reconciling
mechanism
to
accommodate
both
the accuseds interest in pretrial liberty and

societys
interest
in
the accuseds presence at trial.[3]

assuring

Upon conviction by the Regional Trial Court of


an
offense
not
punishable
by
death, reclusion perpetua or
life
imprisonment, the accused who has been
sentenced to prison must typically begin serving
time immediately unless, on application, he is
admitted to bail.[4] An accused not released on
bail is incarcerated before an appellate court
confirms that his conviction is legal and proper.
An erroneously convicted accused who is denied
bail loses his liberty to pay a debt to society he
has never owed.[5] Even if the conviction is
subsequently
affirmed,
however,
the accuseds interest in bail pending appeal
includes freedom pending judicial review,
opportunity to efficiently prepare his case and
avoidance of potential hardships of prison.[6] On
the other hand, society has a compelling
interest in protecting itself by swiftly
incarcerating an individual who is found
guilty beyond reasonable doubt of a crime serious
enough to warrant prison time.[7] Other
recognized societal interests in the denial of bail
pending appeal include the prevention of
the accuseds flight from court custody, the
protection of the community from potential
danger and the avoidance of delay in
punishment.[8] Under what circumstances an
accused may obtain bail pending appeal, then,
is a delicate balance between the interests of
society and those of the accused.[9]
Our rules authorize the proper courts to
exercise discretion in the grant of bail pending
appeal to those convicted by the Regional Trial
Court of an offense not punishable by
death, reclusion perpetua or life imprisonment.
In the exercise of that discretion, the proper
courts are to be guided by the fundamental
principle that the allowance of bail pending
appeal should be exercised not with laxity but
with grave caution and only for strong
reasons,considering that the accused has been
in fact convicted by the trial court.[10]
THE FACTS

Charged with the murder of Rafael de las Alas,


petitioner Jose Antonio Leviste was convicted by
the Regional Trial Court of Makati City for the
lesser crime of homicide and sentenced to
suffer an indeterminate penalty of six years and
one day of prision mayor as minimum to 12
years and one day of reclusion temporal as
maximum.[11]
He appealed his conviction to the Court of
Appeals.[12] Pending appeal, he filed an urgent
application for admission to bail pending
appeal, citing his advanced age and health
condition, and claiming the absence of any risk
or possibility of flight on his part.
The Court of Appeals denied petitioners
application for bail.[13] It invoked the bedrock
principle in the matter of bail pending appeal,
that the discretion to extend bail during the
course of appeal should be exercised with grave
caution and only for strong reasons. Citing wellestablished jurisprudence, it ruled that bail is
not a sick pass for an ailing or aged detainee or
a prisoner needing medical care outside the
prison facility. It found that petitioner
failed to show that he suffers from ailment of

such gravity that his continued confinement


during trial will permanently impair his health
or put his life in danger. x x x Notably, the
physical condition of [petitioner] does not
prevent him from seeking medical attention
while confined in prison, though he clearly
preferred to be attended by his personal
physician.[14]

For purposes of determining whether


petitioners application for bail could be allowed
pending appeal, the Court of Appeals also
considered the fact of petitioners conviction. It
made a preliminary evaluation of petitioners
case and made a prima facie determination that
there was no reason substantial enough to
overturn the evidence of petitioners guilt.
Petitioners motion for reconsideration was
denied.[15]

Petitioner now questions as grave abuse of


discretion the denial of his application for bail,
considering that none of the conditions
justifying denial of bail under the third
paragraph of Section 5, Rule 114 of the Rules of
Court was present. Petitioners theory is that,
where the penalty imposed by the trial court is
more than six years but not more than 20 years
and the circumstances mentioned in the third
paragraph of Section 5 are absent, bail must be
granted to an appellant pending appeal.
THE ISSUE

The question presented to the Court is this: in


an application for bail pending appeal by an
appellant sentenced by the trial court to a
penalty of imprisonment for more than six
years, does the discretionary nature of the
grant of bail pending appeal mean that bail
should automatically be granted absent any of
the circumstances mentioned in the third
paragraph of Section 5, Rule 114 of the Rules of
Court?

appeal under the same bail subject to the


consent of the bondsman.
If the penalty imposed by the trial court is
imprisonment exceeding six (6) years, the
accused shall be denied bail, or his bail shall be
cancelled upon a showing by the prosecution,
with notice to the accused, of the following or
other similar circumstances:
(a) That he is a recidivist, quasi-recidivist, or
habitual delinquent, or has committed the
crime aggravated by the circumstance of
reiteration;
(b) That he has previously escaped from legal
confinement, evaded sentence, or violated the
conditions of his bail without a valid
justification;
(c) That he committed the offense while under
probation, parole, or conditional pardon;
(d) That the circumstances of his case indicate
the probability of flight if released on bail; or

Section 5, Rule 114 of the Rules of Court


provides:

(e) That there is undue risk that he may


commit another crime during the pendency of
the appeal.

Sec. 5. Bail, when discretionary. Upon conviction

The

by the Regional Trial Court of an offense not


punishable by death, reclusion perpetua, or life
imprisonment,
admission
to
bail
is
discretionary. The application for bail may be
filed and acted upon by the trial court despite
the filing of a notice of appeal, provided it has
not transmitted the original record to the
appellate court. However, if the decision of the
trial court convicting the accused changed the
nature
of
the
offense
from
nonbailable to bailable, the application for bail can
only be filed with and resolved by the appellate
court.
Should the court grant the application, the
accused may be allowed to continue on
provisional liberty during the pendency of the

appellate court may, motu proprio or on


motion of any party, review the resolution of the
Regional Trial Court after notice to the adverse
party in either case. (emphasis supplied)
Petitioner claims that, in the absence of any of
the circumstances mentioned in the third
paragraph of Section 5, Rule 114 of the Rules of
Court, an application for bail by an appellant
sentenced by the Regional Trial Court to a
penalty of more than six years imprisonment
should automatically be granted.
Petitioners stance is contrary to fundamental
considerations of procedural and substantive
rules.
BASIC PROCEDURAL CONCERNS

FORBID GRANT OF PETITION

Petitioner filed this special civil action for


certiorari under Rule 65 of the Rules of Court to
assail the denial by the Court of Appeals of his
urgent application for admission to bail pending
appeal. While the said remedy may be resorted
to challenge an interlocutory order, such
remedy is proper only where the interlocutory
order was rendered without or in excess of
jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction.[16]
Other than the sweeping averment that [t]he
Court of Appeals committed grave abuse of
discretion in denying petitioners application for
bail pending appeal despite the fact that none
of the conditions to justify the denial thereof
under Rule 114, Section 5 [is] present, much
less proven by the prosecution,[17] however,
petitioner actually failed to establish that the
Court of Appeals indeed acted with grave abuse
of discretion. He simply relies on his claim that
the Court of Appeals should have granted bail in
view of the absence of any of the circumstances
enumerated in the third paragraph of Section 5,
Rule 114 of the Rules of Court. Furthermore,
petitioner asserts that the Court of Appeals
committed a grave error and prejudged the
appeal by denying his application for bail on the
ground that the evidence that he committed a
capital offense was strong.
We disagree.
It cannot be said that the Court of Appeals
issued the assailed resolution without or in
excess of its jurisdiction. One, pending appeal of
a conviction by the Regional Trial Court of an
offense
not
punishable
by
death, reclusionperpetua, or life imprisonment,
admission to bail is expressly declared to
be discretionary. Two, the discretion to allow or
disallow bail pending appeal in a case such as
this where the decision of the trial court
convicting the accused changed the nature of
the offense from non-bailable to bailable is
exclusively lodged by the rules with the

appellate court. Thus, the Court of Appeals had


jurisdiction to hear and resolve petitioners
urgent application for admission to bail pending
appeal.
Neither can it be correctly claimed that the
Court of Appeals committed grave abuse of
discretion when it denied petitioners
application for bail pending appeal. Grave
abuse of discretion is not simply an error in
judgmentbut it is such a capricious and
whimsical exercise of judgment which is
tantamount to lack of jurisdiction.[18]Ordinary
abuse of discretion is insufficient. The abuse of
discretion must be grave, that is, the power is
exercised in an arbitrary or despotic manner by
reason of passion or personal hostility.[19] It
must be so patent and gross as to amount to
evasion of positive duty or to a virtual refusal to
perform the duty enjoined by or to act at all in
contemplation of the law. In other words, for a
petition for certiorari to prosper, there must be
a clear showing of caprice and arbitrariness in
the exercise of discretion.[20]
Petitioner never alleged that, in denying his
application for bail pending appeal, the Court of
Appeals exercised its judgment capriciously and
whimsically. No capriciousness or arbitrariness
in the exercise of discretion was ever imputed
to the appellate court. Nor could any such
implication or imputation be inferred. As
observed earlier, the Court of Appeals
exercised grave caution in the exercise of its
discretion. The denial of petitioners application
for bail pending appeal was not unreasonable
but was the result of a thorough assessment of
petitioners claim of ill health. By making a
preliminary appraisal of the merits of the case
for the purpose of granting bail, the court also
determined whether the appeal was frivolous
or not, or whether it raised a substantial
question. The appellate court did not exercise
its discretion in a careless manner but followed
doctrinal rulings of this Court.
At best, petitioner only points out the Court of
Appeals
erroneous
application
and

interpretation of Section 5, Rule 114 of the


Rules of Court. However, the extraordinary writ
of certiorari will not be issued to cure errors in
proceedings or erroneous conclusions of law or
fact.[21] In
this
connection, Lee
[22]
v. People is apropos:
Certiorari may not be availed of where it is not
shown that the respondent court lacked or
exceeded its jurisdiction over the case, even if
its findings are not correct. Its questioned acts
would at most constitute errors of law and not
abuse of discretion correctible by certiorari.
In other words, certiorari will issue only to
correct errors of jurisdiction and not to correct
errors of procedure or mistakes in the courts
findings and conclusions. An interlocutory order
may be assailed by certiorari or prohibition only
when it is shown that the court acted without
or in excess of jurisdiction or with grave abuse
of discretion. However, this Court generally
frowns upon this remedial measure as regards
interlocutory orders. To tolerate the practice of
allowing interlocutory orders to be the subject
of review by certiorari will not only delay the
administration of justice but will also unduly
burden the courts.[23] (emphasis supplied)

WORDING OF THIRD PARAGRAPH OF SECTION


5,
RULE 114 CONTRADICTS PETITIONERS
INTERPRETATION

The third paragraph of Section 5, Rule 114


applies to two scenarios where the penalty
imposed on the appellant applying for bail is
imprisonment exceeding six years. The first
scenario deals with the circumstances
enumerated in the said paragraph (namely,
recidivism,
quasi-recidivism,
habitual
delinquency or commission of the crime
aggravated by the circumstance of reiteration;
previous escape from legal confinement,
evasion of sentence or violation of the

conditions of his bail without a valid


justification; commission of the offense while
under probation, parole or conditional pardon;
circumstances indicating the probability of flight
if released on bail; undue risk of committing
another crime during the pendency of the
appeal; or other similar circumstances) not
present. The second scenario contemplates the
existence of at least one of the said
circumstances.
The implications of this distinction are discussed
with erudition and clarity in the commentary of
retired
Supreme
Court
Justice Florenz D. Regalado, an authority in
remedial law:
Under the present revised Rule 114, the
availability of bail to an accused may be
summarized in the following rules:
xxxxxxxxx
e. After conviction by the Regional Trial Court
wherein a penalty of imprisonment exceeding 6
years but not more than 20 years is imposed,
and not one of the circumstances stated in Sec.
5 or any other similar circumstance is present
and proved, bail is a matter of discretion (Sec.
5);
f. After conviction by the Regional Trial Court
imposing a penalty of imprisonment exceeding
6 years but not more than 20 years, and any of
the circumstances stated in Sec. 5 or any other
similar circumstance is present and proved, no
bail shall be granted by said court (Sec. 5);
x x x[24] (emphasis supplied)

Retired Court of Appeals Justice Oscar M.


Herrera, another authority in remedial law, is of
the same thinking:
Bail is either a matter of right or of discretion. It
is a matter of right when the offense charged is
not punishable by death, reclusion perpetua or
life imprisonment. On the other hand, upon

conviction by the Regional Trial Court of an


offense
not
punishable
death, reclusion perpetua or life imprisonment,
bail becomes a matter of discretion.
Similarly, if the court imposed a penalty of
imprisonment exceeding six (6) years then bail
is a matter of discretion, except when any of
the
enumerated
circumstances
under
paragraph 3 of Section 5, Rule 114 is present
then bail shall be denied.[25] (emphasis supplied)
In the first situation, bail is a matter of sound
judicial discretion. This means that, if none of
the circumstances mentioned in the third
paragraph of Section 5, Rule 114 is present, the
appellate court has the discretion to grant or
deny bail. An application for bail pending appeal
may be denied even if the bailnegating[26]circumstances in the third paragraph
of Section 5, Rule 114 are absent. In other
words, the appellate courts denial of bail
pending appeal where none of the said
circumstances exists does not, by and of itself,
constitute abuse of discretion.
On the other hand, in the second situation, the
appellate court exercises a more stringent
discretion, that is, to carefully ascertain
whether any of the enumerated circumstances
in fact exists. If it so determines, it has no other
option except to deny or revoke bail pending
appeal. Conversely, if the appellate court grants

bail pending appeal, grave abuse of discretion


will thereby be committed.
Given these two distinct scenarios, therefore,
any application for bail pending appeal should
be viewed from the perspective of two stages:
(1) the determination of discretion stage, where
the appellate court must determine whether
any of the circumstances in the third paragraph
of Section 5, Rule 114 is present; this will
establish whether or not the appellate court will
exercise sound discretion or stringent discretion
in resolving the application for bail pending
appeal and (2) the exercise of discretion stage
where, assuming the appellants case falls within

the first scenario allowing the exercise of sound


discretion, the appellate court may consider all
relevant circumstances, other than those
mentioned in the third paragraph of Section 5,
Rule 114, including the demands of equity and
justice;[27] on the basis thereof, it may either
allow or disallow bail.
On the other hand, if the appellants case falls
within the second scenario, the appellate courts
stringent discretion requires that the exercise
thereof be primarily focused on the
determination of the proof of the presence
of any of the circumstances that are prejudicial
to the allowance of bail. This is so because the
existence of any of those circumstances is by
itself sufficient to deny or revoke
bail. Nonetheless, a finding that none of the
said circumstances is present will not
automatically result in the grant of bail. Such
finding will simply authorize the court to use
the less stringent sound discretion approach.
Petitioner disregards the fine yet substantial
distinction between the two different situations
that are governed by the third paragraph of
Section 5, Rule 114. Instead, petitioner insists
on a simplistic treatment that unduly dilutes the
import of the said provision and trivializes the
established policy governing the grant of bail
pending appeal.
In particular, a careful reading of petitioners
arguments reveals that it interprets the third
paragraph of Section 5, Rule 114 to cover all
situations where the penalty imposed by the
trial court on the appellant is imprisonment
exceeding six years. For petitioner, in such a
situation, the grant of bail pending appeal is
always subject to limited discretion, that is,
one restricted to the determination of whether
any of the five bail-negating circumstances
exists. The implication of this position is that, if
any such circumstance is present, then bail will
be denied. Otherwise, bail will be granted
pending appeal.

Petitioners theory therefore reduces the


appellate court into a mere fact-finding body
whose authority is limited to determining
whether any of the five circumstances
mentioned in the third paragraph of Section 5,
Rule 114 exists. This unduly constricts its
discretion into merely filling out the checklist of
circumstances in the third paragraph of Section
5, Rule 114 in all instances where the penalty
imposed by the Regional Trial Court on the
appellant is imprisonment exceeding six years.
In short, petitioners interpretation severely
curbs the discretion of the appellate court by
requiring it to determine a singular factual issue
whether any of the five bail-negating
circumstances is present.
However, judicial discretion has been defined as
choice.[28] Choice occurs where, between two
alternatives or among a possibly infinite
number (of options), there is more than one
possible outcome, with the selection of the
outcome left to the decision maker.[29] On the
other hand, the establishment of a clearly
defined rule of action is the end of
discretion.[30] Thus, by severely clipping the
appellate courts discretion and relegating that
tribunal to a mere fact-finding body in
applications for bail pending appeal in all
instances where the penalty imposed by the
trial court on the appellant is imprisonment
exceeding six years, petitioners theory
effectively renders nugatory the provision
that upon conviction by the Regional Trial
Court of an offense not punishable by
death, reclusionperpetua,
or
life
imprisonment, admission
to
bail
is discretionary.
The judicial discretion granted to the proper
court (the Court of Appeals in this case) to rule
on applications for bail pending appeal must
necessarily involve the exercise of judgment on
the part of the court. The court must be allowed
reasonable latitude to express its own view of
the case, its appreciation of the facts and its
understanding of the applicable law on the
matter.[31] In view of the grave caution required

of it, the court should consider whether or not,


under all circumstances, the accused will be
present to abide by his punishment if his
conviction is affirmed.[32] It should also give due
regard to any other pertinent matters beyond
the record of the particular case, such as the
record, character and reputation of the
applicant,[33] among other things. More
importantly, the discretion to determine
allowance or disallowance of bail pending
appeal necessarily includes, at the very least, an
initial determination that the appeal is not
frivolous but raises a substantial question of law
or fact which must be determined by the
appellate court.[34] In other words, a threshold
requirement for the grant of bail is a showing
that the appeal is not pro forma and merely
intended for delay but presents a fairly
debatable issue.[35] This must be so; otherwise,
the appellate courts will be deluged
with frivolous and time-wasting appeals made
for the purpose of taking advantage of a lenient
attitude on bail pending appeal. Even more
significantly, this comports with the very strong
presumption on appeal that the lower courts
exercise of discretionary power was
sound,[36] speciallysince the rules on criminal
procedure require that no judgment shall be
reversed or modified by the Court of Appeals
except for substantial error.[37]
Moreover, to limit the
bail-negating
circumstances to the five situations mentioned
in the third paragraph of Section 5, Rule 114 is
wrong. By restricting the bail-negating
circumstances to those expressly mentioned,
petitioner
applies
the expressio unius est exclusio alterius[38] rule
in
statutory construction. However, the very
language of the third paragraph of Section 5,
Rule 114 contradicts the idea that the
enumeration of the five situations therein was
meant to be exclusive. The provision
categorically refers to the following or other
similar circumstances. Hence, under the rules,
similarly relevant situations other than those
listed in the third paragraph of Section 5, Rule

114 may be considered in the allowance, denial


or revocation of bail pending appeal.

conviction by the Court of First Instance, the


defendant shall be admitted to bail as of right.

Finally, laws and rules should not be interpreted


in such a way that leads to unreasonable or
senseless consequences. An absurd situation
will result from adopting petitioners
interpretation that, where the penalty imposed
by the trial court is imprisonment exceeding six
years, bail ought to be granted if none of the
listed bail-negating circumstances exists.
Allowance of bail pending appeal in cases
where the penalty imposed is more than six
years of imprisonment will be more lenient than
in cases where the penalty imposed does not
exceed six years. While denial or revocation of
bail in cases where the penalty imposed is more
than six years imprisonment must be made only
if any of the five bail-negating conditions is
present, bail pending appeal in cases where the
penalty imposed does not exceed six years
imprisonment may be denied even without
those conditions.

Sec. 4. Non-capital offenses after conviction by

Is it reasonable and in conformity with the


dictates of justice that bail pending appeal be
more accessible to those convicted of serious
offenses, compared to those convicted of less
serious crimes?

PETITIONERS THEORY DEVIATES FROM HISTORY

AND EVOLUTION OF RULE ON BAIL PENDING


APPEAL

Petitioners interpretation deviates from, even


radically alters, the history and evolution of the
provisions on bail pending appeal.
The relevant original provisions on bail were
provided under Sections 3 to 6, Rule 110 of the
1940 Rules of Criminal Procedure:
3. Offenses less than capital before
conviction by the Court of First Instance. After
judgment by a municipal judge and before
Sec.

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 offense defined. A capital offense,

as the term is used in this rule, 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.
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.

The
aforementioned
provisions
were
reproduced as Sections 3 to 6, Rule 114 of the
1964 Rules of Criminal Procedure and then of
the 1985 Rules of Criminal Procedure. They
were modified in 1988 to read as follows:
Sec. 3. Bail, a matter of right; exception. 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.
Sec. 4. Capital

offense, defined. A capital


offense, as the term is used in this Rules, 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. (emphasis supplied)
The significance of the above changes was
clarified in Administrative Circular No. 2-92
dated January 20, 1992 as follows:

The basic governing principle on the right of the


accused to bail is laid down in Section 3 of Rule
114 of the 1985 Rules on Criminal Procedure, as
amended, which provides:

after trial is convicted by the trial court of a


lesser offense than that charged in the
complaint or information, the same rule set
forth in the preceding paragraph shall be
applied;

Sec. 3. Bail, a matter of right; exception. 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.
Pursuant
to
the aforecited provision,
an
accused who is charged with a capital offense or
an offense punishable by reclusion perpetua,
shall no longer be entitled to bail as a matter of
right even if he appeals the case to this Court
since his conviction clearly imports that the
evidence of his guilt of the offense charged is
strong.
Hence, for the guidelines of the bench and bar
with respect to future as well as pending cases
before the trial courts, this Court en banc lays
down the following policies concerning
the effectivity of the bail of the accused, to wit:
1) When an accused is charged with an offense
which under the law existing at the time of its
commission and at the time of the application
for bail is punishable by a penalty lower
than reclusion perpetua and is out on bail, and
after trial is convicted by the trial court of the
offense charged or of a lesser offense than that
charged in the complaint or information, he
may be allowed to remain free on his original
bail pending the resolution of his appeal, unless
the proper court directs otherwise pursuant to
Rule 114, Sec. 2 (a) of the Rules of Court, as
amended;
2) When an accused is 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 and is out on bail, and

3) When an accused is 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 and is out on bail and after
trial is convicted by the trial court of the offense
charged, his bond shall be cancelled and the
accused shall be placed in confinement pending
resolution of his appeal.
As to criminal cases covered under the third
rule abovecited, which are now pending appeal
before his Court where the accused is still on
provisional liberty, the following rules are laid
down:
1) This Court shall order the bondsman to
surrender the accused within ten (10) days from
notice to the court of origin. The
bondsman thereupon, shall inform this Court of
the fact of surrender, after which, the
cancellation of the bond shall be ordered by this
Court;
2) The RTC shall order the transmittal of the
accused to the National Bureau of Prisons thru
the Philippine National Police as the accused
shall remain under confinement pending
resolution of his appeal;
3) If the accused-appellant is not surrendered
within the aforesaid period of ten (10) days, his
bond shall be forfeited and an order of arrest
shall be issued by this Court. The appeal taken
by the accused shall also be dismissed under
Section 8, Rule 124 of the Revised Rules of
Court as he shall be deemed to have jumped his
bail. (emphasissupplied)
Amendments were further introduced in
Administrative Circular No. 12-94 dated August

16, 1994 which brought about important


changes in the said rules as follows:
SECTION 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 of this Rule.
(3a)
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.
SECTION

The court, in its discretion, may allow the


accused to continue on provisional liberty under
the same bail bond during the period of 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, quasirecidivist, 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, 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. (n)
SECTION 6. Capital offense, defined. A capital

offense, as the term is used in these Rules, 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, maybe
punished with death. (4)
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. (emphasissupplied)
SECTION

7. Capital

The above amendments of Administrative


Circular No. 12-94 to Rule 114 were thereafter
amended by A.M. No. 00-5-03-SC to read as
they do now.
The development over time of these rules
reveals an orientation towards a more
restrictive approach to bail pending appeal. It
indicates a faithful adherence to the bedrock
principle, that is, bail pending appeal should be
allowed not with leniency but with grave
caution and only for strong reasons.
The earliest rules on the matter made all grants
of bail after conviction for a non-capital offense
by the Court of First Instance (predecessor of
the Regional Trial Court) discretionary. The
1988 amendments made applications for bail
pending appeal favorable to the appellant-

applicant. Bail before final conviction in trial


courts for non-capital offenses or offenses not
punishable by reclusion perpetua was a matter of
right, meaning, admission to bail was a matter
of right at any stage of the action where the
charge was not for a capital offense or was not
punished by reclusion perpetua.[39]

circumstances under the third paragraph of


Section 5, Rule 114? Or is it a rule that
authorizes the denial of bail after due
consideration of all relevant circumstances,
even if none of the circumstances under the
third paragraph of Section 5, Rule 114 is
present?

The amendments introduced by Administrative


Circular No. 12-94 made bail pending appeal (of
a conviction by the Regional Trial Court of an
offense
not
punishable
by
death, reclusion perpetua or
life
imprisonment) discretionary.
Thus,
Administrative Circular No. 12-94 laid down
more stringent rules on the matter of postconviction grant of bail.

The present inclination of the rules on criminal


procedure to frown on bail pending appeal
parallels the approach adopted in the United
States where our original constitutional and
procedural
provisions
on
bail
[41]
emanated. While this is of course not to be
followed blindly, it nonetheless shows that our
treatment of bail pending appeal is no different
from that in other democratic societies.
In our jurisdiction, the trend towards a strict
attitude towards the allowance of bail pending
appeal is anchored on the principle that judicial
discretion particularly with respect to extending
bail should be exercised not with laxity but with
caution and only for strong reasons.[42] In fact, it
has even been pointed out that grave caution
that must attend the exercise of judicial
discretion in granting bail to a convicted
accused is best illustrated and exemplified in
Administrative Circular No. 12-94 amending
Rule 114, Section 5.[43]

A.M. No. 00-5-03-SC modified Administrative


Circular No. 12-94 by clearly identifying which
court has authority to act on applications for
bail pending appeal under certain conditions
and in particular situations. More importantly, it
reiterated the tough on bail pending appeal
configuration of Administrative Circular No. 1294. In particular, it amended Section 3 of the
1988 Rules on Criminal Procedure which
entitled the accused to bail as a matter of right
before final conviction.[40] Under the present
rule, bail is a matter of discretion upon
conviction by the Regional Trial Court of an
offense
not
punishable
by
death, reclusion perpetua or life imprisonment.
Indeed, pursuant to the tough on bail pending
appeal policy, the presence of bail-negating
conditions mandates the denial or revocation of
bail pending appeal such that those
circumstances are deemed to be as grave as
conviction by the trial court for an offense
punishable by death, reclusion perpetua or life
imprisonment where bail is prohibited.
Now, what is more in consonance with a
stringent standards approach to bail pending
appeal? What is more in conformity with
an ex abundante cautelam view of bail pending
appeal? Is it a rule which favors the automatic
grant of bail in the absence of any of the

Furthermore, this Court has been guided by the


following:
The importance attached to conviction is due to
the underlying principle that bail should be
granted only where it is uncertain whether the
accused is guilty or innocent, and therefore,
where that uncertainty is removed by
conviction it would, generally speaking, be
absurd to admit to bail. After a person has been
tried and convicted the presumption of
innocence which may be relied upon in prior
applications is rebutted, and the burden is
upon the accused to show error in the
conviction. From another point of view it may
be properly argued that the probability of
ultimate punishment is so enhanced by the
conviction that the accused is much more likely

to attempt to escape if liberated on bail than


before conviction.[44] (emphasis supplied)
As a matter of fact, endorsing the reasoning
quoted above and relying thereon, the Court
declared
in Yap
v.
Court
of
Appeals[45] (promulgated in 2001 when the
present rules were already effective),
that denial of bail pending appeal is a matter of
wise discretion.

A FINAL WORD

accused faces a certain prison sentence and


thus may be more likely to flee regardless of
bail bonds or other release conditions. Finally,
permitting bail too freely in spite of conviction
invites frivolous and time-wasting appeals
which will make a mockery of our criminal
justice system and court processes.
WHEREFORE, the petition is hereby DISMISSED.
The Court of Appeals is hereby directed to
resolve and decide, on the merits, the appeal of
petitioner Jose Antonio Leviste docketed as CAG.R. CR No. 32159, with dispatch.

Section 13, Article II of the Constitution


provides:

Costs against petitioner.

SEC. 13. All persons, except those charged with


offenses punishable by reclusion perpetua when

SO ORDERED.

evidence of guilt is strong, shall, before


conviction, be bailable by sufficient sureties, or
be released on recognizance as may be
provided by law. x x x (emphasis supplied)

After conviction by the trial court, the


presumption of innocence terminates and,
accordingly, the constitutional right to bail
ends.[46] From then on, the grant of bail is
subject to judicial discretion. At the risk of being
repetitious, such discretion must be exercised
with grave caution and only for strong reasons.
Considering that the accused was in fact
convicted by the trial court, allowance of bail
pending appeal should be guided by astringentstandards approach. This judicial disposition
finds strong support in the history and evolution
of the rules on bail and the language of Section
5, Rule 114 of the Rules of Court. It is likewise
consistent with the trial courts initial
determination that the accused should be in
prison. Furthermore, letting the accused out on
bail despite his conviction may destroy the
deterrent effect of our criminal laws. This is
especially germane to bail pending appeal
because long delays often separate sentencing
in the trial court and appellate review. In
addition, at the post-conviction stage, the

SECOND DIVISION
[A.M. No. RTJ-03-1751. June 10, 2003]
COMMISSIONER
ANDREA
D.
DOMINGO, complainant, vs. EXECUTIVE
JUDGE ERNESTO P. PAGAYATAN, RTC,
Branch 46, San Jose, Occidental
Mindoro, respondent.
RESOLUTION
AUSTRIA-MARTINEZ, J.:
In a letter-complaint dated December 7,
2001 filed with the Office of the Court
Administrator, Commissioner Andrea D.
Domingo of the Bureau of Immigration (BOI)
charged Executive Judge Ernesto P.
Pagayatan of the Regional Trial Court of
San Jose, Occidental Mindoro (Branch 46)
with Gross Ignorance of the Law relative to
Criminal Case No. R-5075for Estafa,
entitled People of the Philippines vs.
Ernesto M. Peaflorida.
Complainant alleged: On September 14,
2001, the Bureau of Immigration (BOI)
Board of Commissioners (BOC) issued
Summary Deportation Order (SDO) No.

ADD-2001-057
against
Ernesto
M.
Peaflorida, a U.S. citizen, after finding that
he is an overstaying and undocumented
alien, in violation of Section 37(a)(7) of
Commonwealth Act No. 613, otherwise
known as the Philippine Immigration Act of
1940. Peaflorida is also a fugitive from
justice since he stands indicted in the
United States for health care fraud which
resulted in more than $1,376,000.00 losses
to the U.S. Federal Government. No appeal
was filed with the Office of the President.
The SDO became final and executory on
October 15,2001. On the same date,
respondent issued a Notice of Arraignment
requiring the production of Peaflorida on
November 19 and 20, 2001. On the
scheduled hearing of November 19, 2001,
respondent denied the P40,000.00 bail
recommended by the Provincial Prosecutor
for the provisional release of the accused on
the ground that the crime Peaflorida was
charged with involved large scale estafa, a
non-bailable offense. Respondent ordered
the commitment of Peaflorida to the
Provincial Jail in Magbay, San Jose,
Occidental Mindoro. However, later on that
same day, the BOI received information that
respondent had allowed the release from
detention of Peaflorida, who is an alien
federal
fugitive,
without
the
interdepartmental courtesy of affording prior
notice to the BOI of such action. She is
appalled not only by the respondents
employment of legal subterfuges in ordering
the release of Peaflorida whose Summary
Deportation Order had already become final
and executory, but also by the respondents
bad faith in deceiving them into
surrendering the custody of an undesirable
alien federal fugitive to the Provincial Jail at
Magbay, San Jose, Occidental Mindoro. [1]
In his Comment, dated March 22, 2002,
respondent explained: On November 20,
2001, Peaflorida filed an urgent motion to fix
bail. When the prosecution and the defense
jointly manifested that it would be fair and
just if the court would fix the bail bond for
the provisional release of the accused
Peaflorida at P250,000.00, he granted the
motion to fix bail on November 21, 2001;

and, at the time he issued the Order fixing


the bail bond of the accused at
P250,000.00, he was not aware that a
deportation order had already been issued
by the BOI against the latter.[2]
In a Resolution dated January 15, 2003, the
Court re-docketed the administrative
complaint as a regular administrative matter
and required the parties to manifest within
ten days from notice if they are willing to
submit the case for decision based on the
pleadings filed by the parties.[3]
In compliance, the complainant and the
respondent manifested their willingness to
submit the case on the basis of the
pleadings.[4] In addition to his manifestation,
however,
respondent
averred:
Upon
learning that an order of deportation was
issued against Peaflorida, he ordered the
cancellation of the bail bond posted by
Peaflorida and issued a warrant for the
latters arrest on April 26, 2002; and that
Peaflorida voluntarily surrendered himself
on October 24, 2002 and is presently
detained at the Provincial Jail of Occidental
Mindoro.[5]
In its Evaluation Report, the Office of the
Court Administrator (OCA) recommends to
the Court that respondent be fined
P5,000.00 for Gross Ignorance of the Law,
reasoning that:
After going over the records of the case, it is
very evident that respondent Judge acted with
undue haste in issuing the order granting bail
considering the fact that in his earlier Order
dated November 19, 2001, he did not grant a
bail of P40,000.00 which the Provincial
Prosecutor had previously recommended for
the provisional release of the accused. His
denial was based on the ground that the case
filed against the accused could be considered
large-scale Estafa, an unbailable offense.
Respondent Judge should not have granted bail
simply on the lack of readiness on the part of
the prosecution to present any witness to prove
that the evidence of guilt of the accused was
strong but should have endeavored to
determine the existence of such evidence.
Under the present rules, a hearing is required
before granting bail whether it is a matter of

right or discretion. The prosecution must always


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
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 and clarificatory questions.
Moreover, since the accused was accompanied
by the personnel of the Bureau of Immigration
when brought to the RTC, Branch 46, San Jose,
Occidental Mindoro, for his arraignment in
Criminal Case No. R-5075 respondent Judge
could have easily verified from his escort if the
former was being detained for other crimes
aside from the one where he was being
arraigned in respondents sala. Had he done so,
respondent could have been informed outright
by the B.I. personnel escort that the accused
had already been the subject of a Summary
Deportation Order and, thus, he could have
deferred action on the latters (accused) Motion
to Fix Bail and afforded the Bureau of
Immigration the chance and opportunity to
interpose their objection to the grant
thereof.[6] (Citations omitted).
The Court agrees with the findings and
recommendation of the OCA.
Under the rules on bail, a hearing is
mandatory in granting bail whether it is a
matter of right or discretion.[7] A hearing is
indispensable for the court to ask searching
questions from which it may infer the
strength of the evidence of guilt, or the lack
of it, against the accused, in cases where
the
offense
is
punishable
by
death, reclusion
perpetua or
life
imprisonment.[8] After hearing, the courts
order granting or refusing bail must contain
a summary of the evidence for the
prosecution and based thereon, the judge
should then formulate his own conclusion as
to whether the evidence so presented is
strong enough as to indicate the guilt of the
accused.[9] Otherwise, the order granting or
denying the application for bail may be
invalidated because the summary of
evidence for the prosecution which contains

the judges evaluation of the evidence may


be considered as an aspect of procedural
due process for both the prosecution and
the defense.[10]
The herein respondent granted bail to the
accused Peaflorida without conducting a
hearing despite his earlier pronouncement
in the Order dated November 19, 2001
denying bail as he considered the crime the
accused Peaflorida was charged with to be
a non-bailable offense. The manifestation of
the prosecutor that he is not ready to
present any witness to prove that the
prosecutions evidence against the accused
is strong, is never a basis for the outright
grant of bail without a preliminary hearing
on the matter.[11] A hearing is required even
when the prosecution refuses to adduce
evidence or fails to interpose an objection to
the motion for bail.[12]
The joint manifestation of the prosecution
and the defense that it would be fair and just
if the court would fix the bail bond for the
provisional release of the accused at
P250,000.00 does not justify the granting of
bail without a hearing in a case involving a
non-bailable offense. A hearing is
necessary for the court to take into
consideration the guidelines in fixing the
amount of bail[13] set forth in Section 9, Rule
114 of the Revised Rules of Criminal
Procedure, which reads:
SEC. 9. Amount of bail; guidelines. - The judge
who issued the warrant or granted the
application shall fix a reasonable amount of bail
considering primarily, but not limited to the
following factors:
(a) Financial liability of the accused to give
bail;
(b) Nature and circumstance of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the
accused;
(g) Probability of the accused appearing at
the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive
from justice when arrested; and

(j) Pendency of other cases where the


accused is on bail. Excessive bail shall not
be required.
Needless to stress, judicial discretion is the
domain of the judge and the duty to
exercise discretion cannot be reposed upon
the will or whim of the prosecution or the
defense.
Respondent
should
have
ascertained
personally
whether
the
evidence of guilt is strong and endeavored
to determine the propriety of the amount of
bail recommended. To do away with the
requisite bail hearing is to dispense with this
time-tested
safeguard
against
arbitrariness.[14] It
must
always
be
remembered that imperative justice requires
the proper observance of indispensable
technicalities precisely designed to ensure
its proper dispensation.[15]
There is no evidence of malice or bad faith
on the part of respondent when he granted
bail to Peaflorida. Complainant failed to
prove that respondent had prior knowledge
of the existence of a deportation order or
that the latter was informed by the BOl of
the deportation order dated September 14,
2001. The deportation order became final
only on October 15, 2001. Prior thereto,
respondent issued on September 18, 2001
a hold-departure order against Peaflorida.
Respondent directed the BOI not to allow
Peaflorida from leaving the country since a
warrant for his arrest was already issued by
the court.[16] On October 15, 2001, the
Notice of Arraignment in Criminal Case No.
R-5075 was served to Peaflorida through
the BOI.[17] In the hearing of November 19,
2001, the personnel of the BOI escorted
Peaflorida by reason of the warrant of arrest
and hold departure order issued by the
court.18
From these facts, we cannot simply
conclude that respondent had prior
knowledge of the deportation order and
maliciously thwarted its effect by granting
bail to Peaflorida. However, respondent
cannot escape administrative liability by
invoking unawareness of the deportation
order. Absent evidence of
malice,
respondents lack of knowledge of the
deportation order will only free him from

administrative liability for gross misconduct


but not for gross ignorance of the law for
disregarding the rules on bail.
The Court has held that a judge cannot be
held administratively liable for an erroneous
ruling on first impression, and malice cannot
be inferred from his having rendered a
decision rectifying an earlier impression
without proof beyond doubt of a conscious
and deliberate intent on his part to commit
an injustice by such acts.20 Nonetheless, so
basic and fundamental is it to conduct a
hearing in connection with the grant of bail
that it would amount to judicial apostasy for
any member of the judiciary to disclaim
knowledge or awareness thereof. 21 Having
accepted the exalted position of a judge,
respondent owes the public and the court
the duty to be proficient in the law. When a
judge displays utter lack of familiarity with
the basic rules of law, he erodes the publics
confidence in the competence of our
courts.22 Ignorance of the law excuses no
one - certainly not a judge.23
Respondents explanations that he ordered
the cancellation of the bail bend posted by
the accused Peaflorida and issued a
warrant for the latters arrest on April 26,
2002 upon learning that an order of
deportation was issued against the
latter;24 that accused Peaflorida voluntarily
surrendered himself on October 24, 2002
and that he is presently detained at the
Provincial
Jail
of
Occidental
25
Mindoro, cannot serve to exonerate him or
even mitigate the penalty due him.
Significantly, the order of revocation was
made only on April 26, 2002, or five months
after the issuance of the erroneous Order of
November 21, 2001 which was sought to be
corrected.
It
is
unfathomable
that
respondent realized his fallacious granting
of bail only after he filed his Comment
herein dated March 22, 2002. The Order of
April 26, 2002 is but a futile attempt to
evade respondents administrative liability
which had already attached five months
before when he granted bail without the
required hearing. Fundamental knowledge
of the law and a reasonable understanding
of recent jurisprudence ought to have

guarded respondent against the precipitate


and unjustified granting of bail or should
have at least prompted him to invalidate the
same immediately thereafter,26 not five
months later after a complaint against him
had been filed by BOl Commissioner
Domingo.
As to the recommended penalty by the
OCA, the amount of P5,000.00 appears to
be
commensurate
with
respondents
infraction which amounts to gross ignorance
of law. Under Section 8 of A.M. No. 01-810-SC amending Rule 140 of the Rules of
Court on the Discipline of Justices and
Judges, which took effect on October 1,
2001, gross ignorance of the law is
classified as a serious charge which carries
with it a penalty of either dismissal from
service, suspension or a fine of more then
P20,000.00 but not exceeding P40,000.00.
However, considering that malice or bad
faith on the part of respondent has not been
established by the complainant, and, in the
absence of a showing that respondent had
earlier been found to have committed an
administrative offense,27 the Court deems it
just and reasonable to impose upon
respondent a fine of P5,000.00.
WHEREFORE,
respondent
Executive
Judge Ernesto P. Pagayatan of the
Regional Trial Court of San Jose,
Occidental Mindoro (Branch 46) is found
guilty of Gross Ignorance of the Law and is
hereby FINED the amount of Five Thousand
Pesos (P5,000.00). He is further STERNLY
WARNED that the commission of similar
acts in the future shall be dealt with more
severely by this Court.
SO ORDERED.

FIRST DIVISION

TRINIDAD O. LACHICA, A.M. No. MTJ-05-1609


Complainant, [OCA-IPI No. 03-1490-MTJ]
Present:
Davide, Jr., C.J.,
- versus - Quisumbing,
Ynares-Santiago,
Carpio, and
Azcuna, JJ.
JUDGE ROSABELLA M. TORMIS,
Municipal Trial Court in Cities, Promulgated:
Branch 4, Cebu City,
Respondent. September 20, 2005
x --------------------------------------------------------------------------------------- x
DECISION
YNARES-SANTIAGO, J:

In an Affidavit dated October 2, 2003,[1] Trinidad


O. Lachica charged Judge Rosabella M. Tormis
of the Municipal Trial Court in Cities of Cebu
City, Branch IV, with Abuse of Authority relative
to Criminal Cases Nos. 57220-R to 57223R.[2] Complainant alleged that since the filing of
the information, accused Domugho has
remained at large. Thus, the cases were ordered
archived[3] but an alias warrant of arrest[4] was
issued by respondent judge on January 14,
2000.
On July 2, 2003, Domugho was apprehended by
PO3 Epifanio G. Sanjorjo at around 8:45 p.m.
and was brought to the police station for
booking and custody at 9:30 p.m.[5]
However, on July 3, 2003, at around 8:30 a.m.,
complainant was surprised to receive a call
from the accused informing her that she was
released from confinement on July 2, 2003 at
10:00 p.m. Complainant inquired from the

police station if an Order of Release was issued


by the court, but she was informed that the
accused was released because the respondent
judge called the police station and told the desk
officer that the accused had posted a cash bail
bond and may already be released.
Complainant checked the case records but the
expediente contained no copy of the release
order. It was only at 1:00 p.m. that she was
shown a copy thereof. Meanwhile, the case
records could not be located. It was only on
4:30 p.m. of July 3, 2003 that the same was
found.
The police blotter showed no entry that an
order of release was received by the police.
Only a notation that the accused had put up a
cash bail bond was entered therein.
Complainant also averred that it was improper
for the respondent judge to receive the cash
bail bond as the function belongs exclusively to
the Office of the Clerk of Court. She claimed
that respondent judge committed an act of
impropriety when she called the police station
to verbally order the release of the accused. She
claimed that it was irregular that no copy of the
release order was found in the expediente in
the morning of July 3, 2003 considering that it
was supposedly issued on July 2, 2003.
In her Comment[6] dated December 3, 2003
respondent judge denied the charges of
complainant. She maintained that on July 2,
2003 at 7:00 p.m., she issued the Order of
Release after the accused posted a cash bond.
She claimed that the accused was released by
virtue of the Order of Release and not on the
basis of her alleged telephone call to the police
station.
On August 2, 2004, the Court resolved to refer
the case to the Executive Judge, Regional Trial
Court, Cebu City for investigation, report and
recommendation.[7]
The
investigating
judge
Report[8] dated
November

submitted a
18,
2004

recommending that respondent judge be fined


in the amount of P20,000.00 or suspended for
three (3) months based on the following
findings:
1. The accused was arrested at 8:45 in the
evening of July 2, 200[4], was booked at the
Waterfront Police Station at 9:00 p.m., and
released without a Release Order at 10:00 that
same night.
2. The arresting officer and the accused never
appeared before the respondent judge on the
night of July 2, 200[4], as claimed by respondent
judge. The accused was arrested at 8:45 p.m.,
after her classes at Southwestern University.
She could not have appeared before
respondent judge prior to her arrest since she
was in school. Had it been true that the
arresting officer appeared before the judge that
night, it would have been highly improbable for
the arresting officer not to have asked for a
copy of the Release Order.
3. No one saw the Release Order on July 2,
200[4], except the respondent judge, as per
testimony of the complainant and Helen
Mongoya, and as shown by the police blotter,
and the affidavit of the arresting officer
claiming that they were reprimanded by their
Chief because they released the accused
without a Release Order.
4. The accused was released without the
Release Order, and only upon the telephone call
of respondent judge.
5. The Release Order was never issued on the
night of July 2, 200[4]. No judge in his right
mind would issue a Release Order without the
record of the case, more so if the case had been
archived.
5. The Release Order appeared only in the
afternoon of July 3, 200[4].
6. The record of the case was found by court
aide, Juan Aos, in the bodega of MTCC, Branch

4, together with the records of other archived


cases, at about 4:30 in the afternoon of July 3,
200[4].
7. Respondent judge was in Manila early
morning of July 3, 200[4].
8. It was physically impossible for the
respondent judge to have signed the Release
Order before 1:00 p.m. of July 3, 200[4], since
she was in Manila. Questions may be raised
whether the Receipt for the Cash Bond and the
Release Order were signed by a person other
than the respondent judge. As can be gleaned
from the record, the signature appearing on the
Receipt for the Cash Bond, the Release Order
and the signature of the respondent judge on
her Comment dated December 10, 2003, do not
appear to be signed by the same person.
9. Respondent judge authenticated the Release
Order during the Investigation proper as the
Release Order she issued on July 2, 2003.[9]
The Office of the Court Administrator (OCA)
agreed with the findings of the investigating
judge but recommended that respondent judge
be suspended for three (3) months.[10]
We agree with the findings of the investigating
judge and the OCA except for the
recommended penalty.
During the investigation, it was established that
the accused was arrested on July 2, 2003 at 8:45
p.m. and was brought directly to the
Waterfront Police Station where she was
booked at 9:00 p.m. At about 10:00 p.m. the
accused was set free without a release order.[11]
Respondent judge, however, claimed that she
issued the Order of Release on July 2, 2003 at
around 7:00 p.m. after the accused and her
counsel, together with the arresting officer,
came to her office and posted a cash bond. It
was by virtue of this order that the accused was
released.

A circumspect scrutiny of the testimonies given


by respondent judge reveals that she made
several untruthful statements possibly with the
intent to mislead the Court.
It was improbable that, as claimed by
respondent judge, she issued the Order of
Release on July 2, 2003 at around 7:00 p.m.
considering that the accused was apprehended
at 8:45 p.m. The complainant and the arresting
officer, as well as the entry in the police blotter
all declared that the arrest was made at 8:45
p.m. and not earlier. Verily, respondent judge
could not have issued the release order at
around 7:00 p.m. as the accused has not yet
been arrested at that time.
She also insisted that on July 2, 2003, the
accused and her counsel, and the arresting
officer went to her office and posted a bond
whereupon she issued the Order of Release.
However, this is belied by the testimonies of the
arresting officer and the complainant who both
claimed that the accused was brought directly
to the police station after the arrest. We agree
with the observation of the OCA that, it would
be impossible for complainant or the arresting
officer not to have mentioned anything
regarding this incident if the same actually
transpired. Likewise, as pointed out by the
investigating judge, it is highly improbable for
the arresting officer not to have demanded a
copy of the release order if he really appeared
before the respondent.
Incidentally, the arresting officer denied
receiving any order of release from respondent
judge on July 2, 2003. In fact, he claimed that
they were reprimanded by their commanding
officer for releasing from their custody the
person of the accused without any
accompanying court order. The following day,
July 3, 2003, he went to the court to secure a
copy of the said order.
Respondent judge also averred that the Order
of Release was received by SP01 James Estrera,
which receipt was duly noted in the police

blotter. An examination of the records,


however, discloses that what SPO1 Estrera
received was only a copy of the Receipt of the
Cash Bail Bond dated July 2, 2003 and not the
Order of Release. In fact, there was no mention
of a release order in the police blotter.[12]
It is also undisputed that respondent judge
personally received the cash bail bond for the
accused. For this act alone, respondent is
already administratively liable. Section 14, Rule
114 of the Revised Rules of Criminal Procedure
specifies the persons with whom a cash bail
bond may be deposited, namely: the collector
of internal revenue or the provincial, city or
municipal treasurer. A judge is not authorized
to receive the deposit of cash as bail nor should
such cash be kept in his office.
The respondent judge is guilty of gross
misconduct for having abused her judicial
authority when she personally accepted the
cash bail bond of the accused and for
deliberately making untruthful statements in
her comment and during the investigation of
the instant administrative case with intent to
mislead this Court.
The foregoing acts not only seriously undermine
and adversely reflect on the honesty and
integrity of respondent judge as an officer of
the court; they also betray a character flaw
which speaks ill of her person. Making false
representations is a vice which no judge should
imbibe. As the judge is the visible
representation of the law, and more
importantly justice, he must therefore, be the
first to abide by the law and weave an example
for the others to follow.[13]
In the Judiciary, moral integrity is more than a
cardinal virtue, it is a necessity.[14] Respondent
must bear in mind that the exacting standards
of conduct demanded from judges are designed
to promote public confidence in the integrity
and impartiality of the judiciary.[15] When the
judge himself becomes the transgressor of the
law which he is sworn to apply, he places his
office in disrepute, encourages disrespect for

the law and impairs public confidence in the


integrity of the judiciary itself.[16]
Misconduct is defined as any unlawful conduct
of a person concerned in the administration of
justice prejudicial to the rights of parties or to
the right determination of the cause. It
generally means wrongful, improper or
unlawful conduct motivated by a premeditated,
obstinate or intentional purpose.[17] To justify
the taking of drastic disciplinary action, as is
what is sought by complainant in this case, the
law requires that the error or mistake must be
gross or patent, malicious, deliberate or in bad
faith.[18]
It need not be overemphasized that in receiving
the cash bond respondent judge ran afoul with
Rule 114 of the Rules of Criminal Procedure.
Indeed, in the case of Office of the Court
Administrator v. Fernandez,[19] the Court held
that:
The rules specify the persons with whom a cash
bail bond may be deposited namely: the
collector of internal revenue, or the provincial,
city or municipal treasurer. Section 14 of Rule
114 of the Revised Rules of Criminal Procedure
(effective December 1, 2000) provides:
SEC. 14. Deposit of Cash as bail The accused or
any person acting in his behalf may deposit in
cash with the nearest collector of internal
revenue or provincial, city or municipal
treasurer the amount of the bail fixed by the
court, or recommended by the prosecutor who
investigated or filed the case. Upon submission
of a proper certificate of deposit and of a
written undertaking showing compliance with
the requirements of section 2 of this Rule, the
accused shall be discharged from custody. The
money deposited shall be considered as bail
and applied to the payment of fine and costs
while the excess, if any, shall be returned to the
accused or to whoever made the deposit.

A judge is not one of those authorized to


receive the deposit of cash as bail, nor should
such cash be kept in the office of the judge.
Gross misconduct under Section 8(3), Rule 140
of the Revised Rules of Court, as amended, is
classified as a serious offense punishable by any
of the sanctions enumerated in Section 11 of
the same Rule which provides that:
SEC. 11. Sanctions. A. If the respondent is guilty
of a serious charge, any of the following
sanctions may be imposed:
1. Dismissal from the service, forfeiture of all or
part of the benefits as the Court may
determine,
and
disqualification
from
reinstatement or appointment to any public
office, including government-owned or
controlled
corporations. Provided, however,
that the forfeiture of benefits shall in no case
include accrued leave credits;
2. Suspension from office without salary and
other benefits for more than three (3) but not
exceeding six (6) months; or
3. A fine of more than P20,000.00 but not
exceeding P40,000.00.
This is not the first time that respondent judge
was sanctioned by this Court. It appears that
aside from this case, respondent judge has been
administratively
charged eight (8)
other
times.[20] Of these cases three (3) have been
dismissed.[21]
On April 27, 2004 in Administrative Matter No.
MTJ-00-1337,[22] the Court found respondent
guilty of improper conduct for trying to
influence the course of litigation in Criminal
Case No. 99796-12 and was accordingly
reprimanded. She was also admonished for
conduct unbecoming of a judge.
On December 17, 2004, respondent was fined in
the amount of P5,000.00 in Administrative
Matters Nos. 04-7-373-RTC[23] and 04-7-374RTC,[24] for gross violation of Section 17, Rule
114, for having approved the bail of an accused

in Criminal Cases Nos. CEB-BRL-783 and 922


pending before the RTC, Branch 60, Barili, Cebu,
absent showing of unavailability of all RTC
judges in Cebu City.
On March 16, 2005, respondent judge was
admonished in Administrative Matter No. 041554-MTJ and reminded to be more
circumspect in granting postponements.
Clearly, being chastised thrice has not reformed
respondent. For the foregoing considerations,
we find that the penalties recommended by the
investigating judge and the OCA are not
commensurate
to
respondent
judges
misconduct which is aggravated by her past
misdeeds. Respondent judges infraction merits
suspension from the service for six (6) months.
WHEREFORE, Rosabella M. Tormis, Presiding
Judge, Municipal Trial Court in Cities, Cebu City,
Branch IV, is found GUILTY of gross misconduct
and is SUSPENDED from office for six (6)
months without salary and other benefits
and STERNLY WARNED that a repetition of the
same or similar acts shall be dealt with more
severely.
SO ORDERED.

EN BANC
[G.R. No. 148468. January 28, 2003]
ATTY. EDWARD SERAPIO, petitioner, vs.
SANDIGANBAYAN (THIRD DIVISION),
PEOPLE OF THE PHILIPPINES, and
PHILIPPINE
NATIONAL
POLICE
DIRECTOR-GENERAL
LEANDRO
MENDOZA, respondents.

[G.R. No. 148769. January 28, 2003]


EDWARD
S.
SERAPIO, petitioner, vs. HONORABLE
SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
[G.R. No. 149116. January 28, 2003]
EDWARD
S.
SERAPIO, petitioner, vs. HONORABLE
SANDIGANBAYAN (THIRD DIVISION) and
PEOPLE
OF
THE
PHILIPPINES, respondents.
DECISION
CALLEJO, SR., J.:
Before the Court are two petitions for
certiorari filed by petitioner Edward Serapio,
assailing the resolutions of the Third
Division of the Sandiganbayan denying his
petition for bail, motion for a reinvestigation
and motion to quash, and a petition
for habeas corpus, all in relation to Criminal
Case No. 26558 for plunder wherein
petitioner is one of the accused together
with former President Joseph E. Estrada,
Jose Jinggoy P. Estrada and several others.
The records show that petitioner was a
member of the Board of Trustees and the
Legal Counsel of the Erap Muslim Youth
Foundation,
a
non-stock,
non-profit
foundation established in February 2000
ostensibly for the purpose of providing
educational opportunities for the poor and
underprivileged but deserving Muslim youth
and students, and support to research and
advance studies of young Muslim educators
and scientists.
Sometime in April 2000, petitioner, as
trustee of the Foundation, received on its
behalf a donation in the amount of Two
Hundred Million Pesos (P200 Million) from
Ilocos Sur Governor Luis Chavit Singson
through the latters assistant Mrs. Yolanda
Ricaforte. Petitioner received the donation
and turned over the said amount to the
Foundations treasurer who later deposited it
in the Foundations account with the
Equitable PCI Bank.
In the latter part of the year 2000, Gov.
Singson publicly accused then President
Joseph E. Estrada and his cohorts of
engaging in several illegal activities,
including its operation on the illegal

numbers game known as jueteng. This


triggered the filing with the Office of the
Ombudsman of several criminal complaints
against Joseph Estrada, Jinggoy Estrada
and petitioner, together with other
persons. Among
such
complaints
were: Volunteers Against Crime and
Corruption, versus Joseph Ejercito Estrada,
Edward Serapio, et al., docketed as OMB
Crim. Case No. 0-00-1754; Graft Free
Philippines Foundation, Inc., versus Joseph
Ejercito Estrada, Edward Serapio, et al.,
docketed as OMB Crim. Case No. 0-001755; and Leonardo De Vera, Romeo T.
Capulong and Dennis B. Funa, versus
Joseph Estrada, Yolanda Ricaforte, Edward
Serapio, Raul De Guzman, Danilo Reyes
and Mila Reforma, docketed as OMB Crim.
Case No. 0-00-1757.
Subsequently, petitioner filed his CounterAffidavit dated February 21, 2001. The other
respondents likewise filed their respective
counter-affidavits.The
Office
of
the
Ombudsman conducted a preliminary
investigation of the complaints and on April
4, 2001, issued a joint resolution
recommending, inter alia, that Joseph
Estrada, petitioner and several others be
charged with the criminal offense of plunder.
On April 4, 2001, the Ombudsman filed with
the Sandiganbayan several Informations
against former President Estrada, who
earlier had resigned from his post as
President of the Republic of the
Philippines. One of these Informations,
docketed as Criminal Case No. 26558,
charged Joseph Estrada with plunder. On
April 18, 2001, the Ombudsman filed an
amended Information in said case charging
Estrada and several co-accused, including
petitioner, with said crime. No bail was
recommended for the provisional release of
all the accused, including petitioner. The
case was raffled to a special division which
was subsequently created by the Supreme
Court. The amended Information reads:
That during the period from June, 1998 to
January, 2001, in the Philippines, and within the
jurisdiction of this Honorable Court, accused
Joseph Ejercito Estrada, THEN A PUBLIC

OFFICER, BEING THEN THE PRESIDENT OF THE


REPUBLIC
OF
THE
PHILIPPINES,
by
himself AND/OR in CONNIVANCE/CONSPIRACY
with his co-accused, WHO ARE MEMBERS OF
HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY,
BUSINESS
ASSOCIATES,
SUBORDINATES AND/OR OTHER PERSONS, BY
TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION,
AUTHORITY,
RELATIONSHIP,
CONNECTION OR INFLUENCE, did then and
there wilfully, unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY
OR INDIRECTLY, ill-gotten wealth in the
aggregate amount OR TOTAL VALUE of FOUR
BILLION NINETY SEVEN MILLION EIGHT
HUNDRED FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS [P4,097,804,173.17],
more
or
less, THEREBY UNJUSTLY ENRICHING HIMSELF
OR THEMSELVES AT THE EXPENSE AND TO THE
DAMAGE OF THE FILIPINO PEOPLE AND THE
REPUBLIC OF THE PHILIPPINES, through ANY OR
A combination OR A series of overt OR criminal
acts, OR SIMILAR SCHEMES OR MEANS,
described as follows:
(a) by receiving OR collecting, directly or
indirectly, on SEVERAL INSTANCES,
MONEY IN THE AGGREGATE AMOUNT
OF
FIVE
HUNDRED
FORTY-FIVE
MILLION
PESOS
(P545,000,000.00),
MORE OR LESS, FROM ILLEGAL
GAMBLING IN THE FORM OF GIFT,
SHARE, PERCENTAGE, KICKBACK OR
ANY FORM OF PECUNIARY BENEFIT, BY
HIMSELF AND/OR in connivance with coaccused CHARLIE ATONG ANG, Jose
Jinggoy Estrada, Yolanda T. Ricaforte,
Edward Serapio, AND JOHN DOES AND
JANE DOES, in consideration OF
TOLERATION OR PROTECTION OF
ILLEGAL GAMBLING;
(b) by
DIVERTING,
RECEIVING,
misappropriating, converting OR misusing
DIRECTLY OR INDIRECTLY, for HIS OR
THEIR PERSONAL gain and benefit public
fund in the amount of ONE HUNDRED
THIRTY
MILLION
PESOS
(P130,000,000.00),
more
or
less,
representing a portion of the TWO

HUNDRED
MILLION
PESOS
[P200,000,000.00]) tobacco excise tax
share allocated for the Province of Ilocos
Sur under R.A. No. 7171, BY HIMSELF
AND/OR in CONNIVANCE with co-accused
Charlie Atong Ang, Alma Alfaro, JOHN DOE
a.k.a. Eleuterio Tan OR Eleuterio Ramos
Tan or Mr. Uy, and Jane Doe a.k.a. Delia
Rajas, AND OTHER JOHN DOES AND
JANE DOES;
(c) by directing, ordering and compelling
FOR HIS PERSONAL GAIN AND
BENEFIT,
the
Government
Service
Insurance System (GSIS) TO PURCHASE,
351,878,000 SHARES OF STOCKS, MORE
OR LESS, and the Social Security System
(SSS), 329,855,000 SHARES OF STOCK,
MORE OR LESS, OF THE BELLE
CORPORATION IN THE AMOUNT OF
MORE OR LESS ONE BILLION ONE
HUNDRED
TWO
MILLION
NINE
HUNDRED SIXTY FIVE THOUSAND SIX
HUNDERED SEVEN PESOS AND FIFTY
CENTAVOS
[P1,102,965,607.50]
AND
MORE OR LESS SEVEN HUNDRED
FORTY FOUR MILLION SIX HUNDRED
TWELVE
THOUSAND
AND
FOUR
HUNDRED
FIFTY
PESOS
[P744,612,450.00], RESPECTIVELY, OR A
TOTAL OR MORE OR LESS ONE BILLION
EIGHT
HUNDRED
FORTY
SEVEN
MILLION FIVE HUNDRED SEVENTY
EIGHT THOUSAND FIFTY SEVEN PESOS
AND
FIFTY
CENTAVOS
[P1,847,578,057.50];
AND
BY
COLLECTING OR RECEIVING, DIRECTLY
OR INDIRECTLY, BY HIMSELF AND/OR
IN CONNIVANCE WITH JOHN DOES AND
JANE
DOES,
COMMISSIONS
OR
PERCENTAGES OF SHARES OF STOCK
IN THE AMOUNT OF ONE HUNDRED
EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND
PESOS
[189,700,000.00]
MORE OR LESS, FROM THE BELLE
CORPORATION WHICH BECAME PART
OF THE DEPOSIT IN THE EQUITABLEPCI BANK UNDER THE ACCOUNT NAME
JOSE VELARDE;
(d) by unjustly enriching himself FROM
COMMISSIONS,
GIFTS,
SHARES,
PERCENTAGES, KICKBACKS, OR ANY

FORM OF PECUNIARY BENEFITS, IN


CONNIVANCE WITH JOHN DOES AND
JANE DOES, the amount of MORE OR
LESS THREE BILLION TWO HUNDRED
THIRTY THREE MILLION ONE HUNDRED
FOUR THOUSAND ONE HUNDRED
SEVENTY
THREE
PESOS
AND
SEVENTEEN
CENTAVOS
[P3,233,104,173.17] AND DEPOSITING
THE SAME UNDER HIS ACCOUNT NAME
JOSE VELARDE AT THE EQUITABLE-PCI
BANK.
CONTRARY TO LAW.[1]
On April 5, 2001, petitioner obtained a copy
of the Ombudsmans Joint Resolution finding
probable cause against him for plunder. The
next day, April 6, 2001, he filed with the
Office of the Ombudsman a Motion for
Reconsideration
and/or
Reinvestigation.[2] Petitioner likewise filed on
said date, this time with the Sandiganbayan,
an Urgent Omnibus Motion: (a) To Hold in
Abeyance the Issuance of Warrant of Arrest
and Further Proceedings; (b) To Conduct a
Determination of Probable Cause; (c) For
Leave to File Accuseds Motion for
Reconsideration and/or Reinvestigation;
and (d) To Direct the Ombudsman to
Conduct a Reinvestigation of the Charges
against accused Edward Serapio. [3]
On April 10, 2001, the Ombudsman issued
an order denying petitioners motion for
reconsideration and/or reinvestigation on
the ground of lack of jurisdiction since the
amended Information charging petitioner
with plunder had already been filed with the
Sandiganbayan.[4]
In
a
parallel
development,
the
Sandiganbayan issued a Resolution on April
25, 2001 in Criminal Case No. 26558 finding
probable cause to justify the issuance of
warrants of arrest for the accused, including
petitioner. Accordingly, the Sandiganbayan
issued an Order on the same date for the
arrest of petitioner.[5] When apprised of said
order, petitioner voluntarily surrendered at
9:45 p.m. on the same day to Philippine
National Police Chief Gen. Leandro
Mendoza.Petitioner
has
since
been
detained at Camp Crame for said charge.

The Sandiganbayan set the arraignment of


the accused, including petitioner, in Criminal
Case No. 26558 on June 27, 2001. In the
meantime, on April 27, 2001, petitioner filed
with the Sandiganbayan an Urgent Petition
for Bail which was set for hearing on May 4,
2001.[6] For his part, petitioners co-accused
Jose Jinggoy Estrada filed on April 20, 2001
a Very Urgent Omnibus Motion alleging that
he was entitled to bail as a matter of right.
During the hearing on May 4, 2001 on
petitioners Urgent Petition for Bail, the
prosecution moved for the resetting of the
arraignment of the accused earlier than the
June 27, 2001 schedule. However, the
Sandiganbayan denied the motion of the
prosecution and issued an order declaring
that the petition for bail can and should be
heard before petitioners arraignment on
June 27, 2001 and even before the other
accused in Criminal Case No. 26558 filed
their
respective
petitions
for
bail. Accordingly, the Sandiganbayan set
the hearing for the reception of evidence on
petitioners petition for bail on May 21 to 25,
2001.
On May 17, 2001, four days before the
hearing on petitioners petition for bail, the
Ombudsman filed an urgent motion for early
arraignment of Joseph Estrada, Jinggoy
Estrada and petitioner and a motion for joint
bail hearings of Joseph Estrada, Jinggoy
Estrada and petitioner. The following day,
petitioner filed a manifestation questioning
the propriety of including Joseph Estrada
and Jinggoy Estrada in the hearing on his
(petitioners) petition for bail.
The Sandiganbayan issued a Resolution on
May 18, 2001 resetting the hearings on
petitioners petition for bail to June 18 to 28,
2001 to enable the court to resolve the
prosecutions pending motions as well as
petitioners motion that his petition for bail be
heard as early as possible, which motion
the prosecution opposed.
On May 31, 2001, the Sandiganbayan
issued a Resolution denying petitioners
April 6, 2001 Urgent Omnibus Motion.The
court ruled that the issues posed by
petitioner had already been resolved in its
April 25, 2001 Resolution finding probable

cause to hold petitioner and his co-accused


for trial.[7] Petitioner filed a motion for
reconsideration of the said May 31, 2001
Resolution.
On June 1, 2001, the Sandiganbayan
issued a resolution requiring the attendance
of petitioner as well as all the other accused
in Criminal Case No. 26558 during the
hearings on the petitions for bail under pain
of
waiver
of
cross-examination. The
Sandiganbayan, citing its inherent powers to
proceed with the trial of the case in the
manner it determines best conducive to
orderly proceedings and speedy termination
of the case, directed the other accused to
participate in the said bail hearing
considering that under Section 8, Rule 114
of the Revised Rules of Court, whatever
evidence is adduced during the bail hearing
shall
be
considered
automatically
reproduced at the trial.[8]
However, instead of proceeding with the bail
hearing set by it on June 18, 2001, the
Sandiganbayan issued an Order on June
15, 2001 canceling the said bail hearing due
to pending incidents yet to be resolved and
reset anew the hearing to June 26, 2001. [9]
On the eve of said hearing, the
Sandiganbayan issued a resolution denying
petitioners motion for reconsideration of its
May 31, 2001 Resolution. The bail hearing
on June 26, 2001 did not again proceed
because on said date petitioner filed with
the Sandiganbayan a motion to quash the
amended Information on the grounds that
as against him, the amended Information
does not allege a combination or series of
overt or criminal acts constitutive of plunder;
as against him, the amended Information
does not allege a pattern of criminal acts
indicative of an overall unlawful scheme or
conspiracy; the money alleged in paragraph
(a) of the amended Information to have
been illegally received or collected does not
constitute ill-gotten wealth as defined in
Section 1(d) of Republic Act No. 7080; and
the amended Information charges him of
bribery and illegal gambling. [10] By way of
riposte, the prosecution objected to the
holding of bail hearing until petitioner
agreed to withdraw his motion to

quash. The prosecution contended that


petitioners motion to quash the amended
Information was antithetical to his petition
for bail.
The Sandiganbayan reset the arraignment
of accused and the hearing on the petition
for bail of petitioner in Criminal Case No.
26558 for July 10, 2001 to enable it to
resolve the pending incidents and the
motion to quash of petitioner.However, even
before the Sandiganbayan could resolve the
pending motions of petitioner and the
prosecution, petitioner filed with this Court
on June 29, 2001 a Petition for Habeas
Corpus and Certiorari, docketed as G.R.
No. 148468, praying that the Court declare
void the questioned orders, resolutions and
actions of the Sandiganbayan on his claim
that he was thereby effectively denied of his
right to due process. Petitioner likewise
prayed for the issuance of a writ of habeas
corpus; that the People be declared to have
waived their right to present evidence in
opposition to his petition for bail; and,
premised on the failure of the People to
adduce strong evidence of petitioners guilt
of plunder, that he be granted provisional
liberty on bail after due proceedings.[11]
Meanwhile, on June 28, 2001, Jose Jinggoy
Estrada filed with the Sandiganbayan a
motion praying that said court resolve his
motion to fix his bail.
On July 9, 2001, the Sandiganbayan issued
a Resolution denying petitioners motion to
quash the amended Information. Petitioner,
through counsel, received on said date a
copy of said resolution.[12] The motion to fix
bail filed by Jose Jinggoy Estrada was also
resolved by the Sandiganbayan.
On July 10, 2001, just before his
arraignment in Criminal Case No. 26558,
petitioner manifested to the Sandiganbayan
that he was going to file a motion for
reconsideration of the July 9, 2001
Resolution denying his motion to quash and
for the deferment of his arraignment. The
Sandiganbayan, however, declared that
there was no provision in the Rules of Court
or in the Sandiganbayans rules granting the
right to petitioner to file a motion for the
reconsideration of an interlocutory order

issued by it and ordered petitioner to orally


argue his motion for reconsideration. When
petitioner refused, the Sandiganbayan
proceeded with his arraignment. Petitioner
refused to plead, impelling the court to enter
a plea of not guilty for him.
On July 20, 2001, petitioner filed with the
Court a Petition for Certiorari, docketed
as G.R. No. 148769, alleging that the
Sandiganbayan acted without or in excess
of jurisdiction or with grave abuse of
discretion amounting to lack or excess of
jurisdiction in issuing its July 9, 2001
Resolution denying his motion to quash,
notwithstanding the fact that material
inculpatory allegations of the amended
Information against him do not constitute
the crime of plunder; and that he is charged,
under the said amended Information, for
more than one offense. Jose Jinggoy
Estrada likewise filed petition for certiorari
with the Court docketed as G.R. No. 148965
for the nullification of a resolution of the
Sandiganbayan denying his motion to fix
bail.
On August 9, 2001, petitioner filed with the
Court
another
Petition
for
Certiorari, docketed as G.R. No. 149116,
assailing the Sandiganbayans Resolution
dated 31 May 2001 which denied his April 6,
2001 Urgent Omnibus Motion and its June
25, 2001 Resolution denying his motion for
reconsideration of its May 31, 2001
Resolution.
Re: G.R. No. 148769
Petitioner avers that:
THE SANDIGANBAYAN ACTED WITHOUT
OR IN EXCESS OF JURISDICTION OR
WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION,
IN
DENYING
PETITIONER
SERAPIOSMOTION
TO
QUASH NOTWITHSTANDING THAT
I
THE FACTS ALLEGED IN THE AMENDED
INFORMATION AS AGAINST PETITIONER
SERAPIO DO NOT CONSTITUTE THE
CRIME OF PLUNDER.
A. The Amended Information, as against
petitioner Serapio, does not allege a

combination or series of overt or criminal


acts constitutive of plunder.
B. The Amended Information, as against
petitioner Serapio, does not allege a pattern
of criminal acts indicative of an overall
unlawful scheme or conspiracy.
C. The money described in paragraph (a) of
the Amended Information and alleged to
have been illegally received or collected
does not constitute ill-gotten wealth as
defined in Section 1(d), Republic Act No.
7080, as amended.
II
THE AMENDED
INFORMATION CHARGES MORE THAN
ONE OFFENSE.[13]
Petitioner asserts that, on the face of the
amended Information, he is charged with
plunder only in paragraph (a) which reads:
(a) by receiving OR collecting, directly or
indirectly, on SEVERAL INSTANCES,
MONEY IN THE AGGREGATE AMOUNT
OF
FIVE
HUNDRED
FORTY-FIVE
MILLION
PESOS
(P545,000,000.00),
MORE OR LESS, FROM ILLEGAL
GAMBLING IN THE FORM OF GIFT,
SHARE, PERCENTAGE, KICKBACK OR
ANY FORM OF PECUNIARY BENEFIT, BY
HIMSELF AND/OR in connivance with coaccused CHARLIE ATONG ANG, Jose
Jinggoy Estrada, Yolanda T. Ricaforte,
Edward Serapio, AND JOHN DOES AND
JANE DOES, in consideration OF
TOLERATION OR PROTECTION OF
ILLEGAL GAMBLING;[14]
Petitioner asserts that there is no allegation
in paragraph (a) of the amended Information
of a combination or series of overt or
criminal acts constituting plunder as
described in Section 1(d) of R.A. 7080 as
amended. Neither does the amended
Information allege a pattern of criminal
acts. He avers that his single act of
toleration or protection of illegal gambling
impelled by a single criminal resolution does
not constitute the requisite combination or
series of acts for plunder. He further claims
that the consideration consisting of gifts,
percentages or kickbacks in furtherance of
said resolution turned over to and received
by former President Joseph E. Estrada on

several occasions does not cure the defect


in the amended information. Petitioner
insists that on the face of the amended
Information he is charged only with bribery
or illegal gambling and not of plunder.
Petitioner argues that the P540 million
which forms part of the P4,097,804,173.17
amassed by former President Joseph E.
Estrada in confabulation with his coaccused is not ill-gotten wealth as defined in
Section 1(d) of R.A. 7080.
We do not agree with petitioner. Section 6,
Rule 110 of the Revised Rules of Criminal
Procedure provides that:
Sec. 6. Sufficiency of complaint or information. A
complaint or information is sufficient if it states
the name of the accused, the designation of the
offense given by the statute; the acts or
omissions complained of as constituting the
offense; the name of the offended party; the
approximate date of the commission of the
offense; and the place where the offense was
committed.
When the offense was committed by more
than one person, all of them shall be
included in the complaint or information. [15]
The acts or omissions complained or must
be alleged in such form as is sufficient to
enable a person of common understanding
to know what offense is intended to be
charged and enable the court to know the
proper judgment. The Information must
allege clearly and accurately the elements
of the crime charged. What facts and
circumstances are necessary to be included
therein must be determined by reference to
the definition and elements of the specific
crimes.The purpose of the requirement of
alleging all the elements of the crime in the
Information is to inform an accused of the
nature of the accusation against him so as
to enable him to suitably prepare for his
defense.[16] Another purpose is to enable
accused, if found guilty, to plead his
conviction in a subsequent prosecution for
the same offense.[17] The use of derivatives
or synonyms or allegations of basic facts
constituting the offense charged is
sufficient.[18]

In this case, the amended Information


specifically alleges that all the accused,
including petitioner, connived and conspired
with former President Joseph E. Estrada to
commit plunder through any or a
combination or a series of overt or criminal
acts or similar schemes or means. And in
paragraph (a) of the amended Information,
petitioner and his co-accused are charged
with receiving or collecting, directly or
indirectly, on several instances money in the
aggregate
amount
of P545,000,000.00. In Jose
Jinggoy
Estrada vs. Sandiganbayan (Third Division),
et al.,[19] we held that the word series is
synonymous with the clause on several
instances; it refers to a repetition of the
same predicate act in any of the items in
Section 1(d) of the law. We further held that
the word combination contemplates the
commission of at least any two different
predicate acts in any of the said items. We
ruled that plainly, subparagraph (a) of the
amended information charges accused
therein, including petitioner, with plunder
committed by a series of the same predicate
act under Section 1(d)(2) of the law and
that:
x x x Sub-paragraph (a) alleged the predicate act
of receiving, on several instances, money from
illegal gambling, in consideration of toleration
or protection of illegal gambling, and expressly
names petitioner as one of those who conspired
with former President Estrada in committing
the offense. This predicate act corresponds with
the offense described in item [2] of the
enumeration in Section 1(d) of R.A. No. 7080. x
x x.[20]
It is not necessary to allege in the amended
Information a pattern of overt or criminal
acts indicative of the overall unlawful
scheme or conspiracy because as Section 3
of R.A. 7080 specifically provides, the same
is evidentiary and the general rule is that
matters of evidence need not be alleged in
the Information.[21]
The Court also ruled in Jose Jinggoy
Estrada vs. Sandiganbayan [22] that the
aggregate amount of P4,097,804,173.17
inclusive of the P545 million alleged in

paragraph (a) of the amended information is


ill-gotten wealth as contemplated in Section
1, paragraph 1(d) of Republic Act 7080, as
amended, and that all the accused in
paragraph (a) to (d) of the amended
information conspired and confederated
with former President Estrada to enable the
latter to amass, accumulate or acquire illgotten wealth in the aggregate amount
of P4,097,804,173.17.
Under the amended Information, all the
accused, including petitioner, are charged of
having conspired and confabulated together
in committing plunder. When two or more
persons conspire to commit a crime, each is
responsible for all the acts of others. In
contemplation of law, the act of the
conspirator is the act of each of
them.[23] Conspirators are one man, they
breathe one breath, they speak one voice,
they wield one arm and the law says that
the acts, words and declarations of each,
while in the pursuit of the common design,
are the acts, words and declarations of
all.[24]
Petitioner asserts that he is charged under
the amended Information of bribery and
illegal
gambling
and
others. The
Sandiganbayan, for its part, held that
petitioner is not charged with the predicate
acts of bribery and illegal gambling but is
charged only with one crime that of plunder:
THE ISSUE OF WHETHER OR NOT THE
INFORMATION
CHARGES MORE THAN ONE OFFENSE
According to the accused Estradas and Edward
Serapio the information charges more than one
offense, namely, bribery (Article 210 of the
Revised Penal Code), malversation of public
funds or property (Article 217, Revised Penal
Code) and violations of Sec. 3(e) of Republic Act
(RA No. 3019) and Section 7(d) of RA 6713.
This contention is patently unmeritorious. The
acts alleged in the information are not charged
as separate offenses but as predicate acts of the
crime of plunder.
It should be stressed that the Anti-Plunder law
specifically Section 1(d) thereof does not make
any express reference to any specific provision
of laws, other than R.A. No. 7080, as amended,

which coincidentally may penalize as a separate


crime any of the overt or criminal acts
enumerated therein. The said acts which form
part of the combination or series of act are
described in their generic sense.Thus, aside
from malversation of public funds, the law also
uses the generic terms misappropriation,
conversion or misuse of said fund. The fact that
the acts involved may likewise be penalized
under other laws is incidental. The said acts are
mentioned only as predicate acts of the crime
of plunder and the allegations relative thereto
are not to be taken or to be understood as
allegations charging separate criminal offenses
punished under the Revised Penal Code, the
Anti-Graft and Corrupt Practices Act and Code
of Conduct and Ethical Standards for Public
Officials and Employees.[25]
This
Court
agrees
with
the
Sandiganbayan. It is clear on the face of the
amended Information that petitioner and his
co-accused are charged only with one crime
of plunder and not with the predicate acts or
crimes of plunder. It bears stressing that the
predicate acts merely constitute acts of
plunder and are not crimes separate and
independent
of
the
crime
of
plunder. Resultantly then, the petition is
dismissed.
Re: G.R. No. 149116
Petitioner assails the May 31, 2001 Joint
Resolution of the Sandiganbayan denying
his April 4, 2001 Urgent Omnibus Motion
contending that:
GROUNDS FOR THE PETITION
THE SANDIGANBAYAN ACTED WITHOUT
OR IN EXCESS OF JURISDICTION OR
WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN SUMMARILY DENYING
PETITIONER
SERAPIOS URGENT
OMNIBUS MOTION AND MOTION FOR
RECONSIDERATION (RE: RESOLUTION
DATED
31
MAY
2001), NOTWITHSTANDING THAT THE
OMBUDSMAN
HAD
TOTALLY
DISREGARDED
EXCULPATORY
EVIDENCE AND COMMITTED GRAVE
AND MANIFEST ERRORS OF LAW
SERIOUSLY PREJUDICIAL TO THE

RIGHTS
AND
INTERESTS
OF
PETITIONER SERAPIO, AND THERE IS
NO PROBABLE CAUSE TO SUPPORT AN
INDICTMENT
FOR
PLUNDER
AS
AGAINST PETITIONER SERAPIO.[26]
Petitioner claims that the Sandiganbayan
committed grave abuse of discretion in
denying his omnibus motion to hold in
abeyance the issuance of a warrant for his
arrest as well as the proceedings in Criminal
Case No. 26558; to conduct a determination
of probable cause; and to direct the
Ombudsman to conduct a reinvestigation of
the charges him. Petitioner asseverates that
the Ombudsman had totally disregarded
exculpatory evidence and committed grave
abuse of discretion in charging him with
plunder. He further argues that there exists
no probable cause to support an indictment
for plunder as against him.[27]
Petitioner points out that the joint resolution
of the Ombudsman does not even mention
him in relation to the collection and receipt
of jueteng money
which
started
in
1998[28] and
that
the
Ombudsman
inexplicably arrived at the conclusion that
the Erap Muslim Youth Foundation was a
money laundering front organization put up
by Joseph Estrada, assisted by petitioner,
even though the latter presented evidence
that said Foundation is a bona fide and
legitimate
private
foundation. [29] More
importantly, he claims, said joint resolution
does not indicate that he knew that
the P200 million he received for the
Foundation came from jueteng.[30]
Petitioner insists that he cannot be charged
with plunder since: (1) the P200 million he
received does not constitute ill-gotten
wealth as defined in Section 1(d) of R.A.
No. 7080;[31] (2) there is no evidence linking
him to the collection and receipt
of jueteng money;[32] (3) there was no
showing that petitioner participated in a
pattern of criminal acts indicative of an
overall unlawful scheme or conspiracy to
amass, accumulate or acquire ill-gotten
wealth, or that his act of receiving theP200
million constitutes an overt criminal act of
plunder.[33]

Petitioner argues further that his motion for


reinvestigation is premised on the absolute
lack of evidence to support a finding of
probable cause for plunder as against
him,[34] and hence he should be spared from
the inconvenience, burden and expense of
a public trial.[35]
Petitioner also avers that the discretion of
government prosecutors is not beyond
judicial scrutiny. He asserts that while this
Court does not ordinarily look into the
existence of probable cause to charge a
person for an offense in a given case, it may
do so in exceptional circumstances, which
are present in this case: (1) to afford
adequate protection to the constitutional
rights of the accused; (2) for the orderly
administration of justice or to avoid
oppression; (3) when the acts of the officer
are without or in excess of authority; and (4)
where the charges are manifestly false and
motivated
by
the
lust
for
[36]
vengeance. Petitioner claims that he
raised proper grounds for a reinvestigation
by asserting that in issuing the questioned
joint
resolution,
the
Ombudsman
disregarded evidence exculpating petitioner
from the charge of plunder and committed
errors of law or irregularities which have
been prejudicial to his interest. [37] He also
states that during the joint preliminary
investigations for the various charges
against Joseph Estrada and his associates,
of which the plunder charge was only one of
the eight charges against Estrada et al., he
was not furnished with copies of the other
complaints nor given the opportunity to
refute the evidence presented in relation to
the other seven cases, even though the
evidence presented therein were also used
against him, although he was only charged
in the plunder case.[38]
The
People
maintain
that
the
Sandiganbayan committed no grave abuse
of discretion in denying petitioners omnibus
motion. They assert that since the
Ombudsman found probable cause to
charge petitioner with the crime of plunder,
the Sandiganbayan is bound to assume
jurisdiction over the case and to proceed to
try the same. They further argue that a

finding of probable cause is merely


preliminary and prefatory of the eventual
determination of guilt or innocence of the
accused, and that petitioner still has the
chance to interpose his defenses in a full
blown trial where his guilt or innocence may
finally be determined.[39]
The People also point out that the
Sandiganbayan did not commit grave abuse
of discretion in denying petitioners omnibus
motion asking for, among others, a
reinvestigation
by
the
Ombudsman,
because his motion for reconsideration of
the Ombudsmans joint resolution did not
raise the grounds of either newly discovered
evidence, or errors of law or irregularities,
which under Republic Act No. 6770 are the
only grounds upon which a motion for
reconsideration may be filed.[40]
The People likewise insist that there exists
probable cause to charge petitioner with
plunder as a co-conspirator of Joseph
Estrada.[41]
This Court does not agree with petitioner.
Case law has it that the Court does not
interfere with the Ombudsmans discretion in
the
conduct
of
preliminary
investigations. Thus,
in Raro
vs.
[42]
Sandiganbayan , the Court ruled:
x x x. In the performance of his task to
determine probable cause, the Ombudsmans
discretion is paramount. Thus, in Camanag vs.
Guerrero, this Court said:
x x x. (S)uffice it to state that this Court has
adopted a policy of non-interference in the
conduct of preliminary investigations, and
leaves to the investigating prosecutor sufficient
latitude of discretion in the exercise of
determination of what constitutes sufficient
evidence as will establish probable cause for
filing of information against the supposed
offender.
In Cruz, Jr. vs. People,[43] the Court ruled
thus:
Furthermore, the Ombudsmans findings are
essentially factual in nature. Accordingly, in
assailing said findings on the contention that
the Ombudsman committed a grave abuse of
discretion in holding that petitioner is liable for
estafa through falsification of public

documents, petitioner is clearly raising


questions of fact here. His arguments are
anchored on the propriety or error in the
Ombudsmans appreciation of facts. Petitioner
cannot be unaware that the Supreme Court is
not a trier of facts, more so in the consideration
of the extraordinary writ of certiorari where
neither question of fact nor even of law are
entertained, but only questions of lack or excess
of
jurisdiction
or
grave
abuse
of
discretion. Insofar as the third issue is
concerned, we find that no grave abuse of
discretion has been committed by respondents
which would warrant the granting of the writ of
certiorari.
Petitioner is burdened to allege and
establish that the Sandiganbayan and the
Ombudsman for that matter committed
grave abuse of discretion in issuing their
resolution
and
joint
resolution,
respectively. Petitioner failed to discharge
his burden. Indeed, the Court finds no grave
abuse of discretion on the part of the
Sandiganbayan and the Ombudsman in
finding probable cause against petitioner for
plunder. Neither did the Sandiganbayan
abuse its discretion in denying petitioners
motion for reinvestigation of the charges
against him in the amended Information. In
its Resolution of April 25, 2001, the
Sandiganbayan affirmed the finding of the
Ombudsman that probable cause exists
against petitioner and his co-accused for the
crime of plunder, thus:
In the light of the foregoing and considering the
allegations of the Amended Information dated
18 April 2001 charging the accused with the
offense of PLUNDER and examining carefully
the evidence submitted in support thereof
consisting of the affidavits and sworn
statements and testimonies of prosecution
witnesses and several other pieces of
documentary evidence, as well as the
respective counter-affidavits of accused former
President Joseph Estrada dated March 20, 2001,
Jose Jinggoy Pimentel Estrada dated February
20, 2001, Yolanda T. Ricaforte dated January 21,
2001 and Edward S. Serapio dated February 21,
2001, the Court finds and so holds that

probable cause for the offense of PLUNDER


exists to justify issuance of warrants of arrest of
accused former President Joseph Ejercito
Estrada, Mayor Jose Jinggoy Estrada, Charlie
Atong Ang, Edward Serapio, Yolanda T.
Ricaforte,
Alma
Alfaro,
John
Doe.
a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or
Mr. Uy, and Jane Doe a.k.a Delia Rajas.[44]
Likewise, in its Resolution dated May 31,
2001 of petitioners omnibus motion, the
Sandiganbayan noted that a preliminary
investigation was fully conducted in
accordance with Rule II, Administrative
Order No. 7 of the Office of the
Ombudsman, pursuant to Sections 18, 23
and 27 of Republic Act No. 6770 (The
Ombudsman Act of 1989); and that all the
basic complaints and evidence in support
thereof were served upon all the
accused.[45] It was in light of such findings
that the Sandiganbayan held that there was
no basis for the allegation that accused
therein (including petitioner) were deprived
of the right to seek a reconsideration of the
Ombudsmans Resolution dated April 4,
2001 finding probable cause to charge them
with plunder after the conduct of preliminary
investigation in connection therewith. In
addition, the Sandiganbayan pointed out
that petitioner filed a motion for
reconsideration of the Ombudsmans
resolution, but failed to show in his motion
that there were newly discovered evidence,
or that the preliminary investigation was
tainted by errors of law or irregularities,
which are the only grounds for which a
reconsideration of the Ombudsmans
resolution may be granted.[46]
It bears stressing that the right to a
preliminary
investigation
is
not
a
constitutional right, but is merely a right
conferred by statute.[47] The absence of a
preliminary investigation does not impair the
validity of the Information or otherwise
render the same defective and neither does
it affect the jurisdiction of the court over the
case or constitute a ground for quashing the
Information.[48] If the lack of a preliminary
investigation
does
not
render
the
Information invalid nor affect the jurisdiction

of the court over the case, with more reason


can it be said that the denial of a motion for
reinvestigation
cannot
invalidate
the
Information or oust the court of its
jurisdiction over the case. Neither can it be
said that petitioner had been deprived of
due process. He was afforded the
opportunity to refute the charges against
him during the preliminary investigation.
The purpose of a preliminary investigation is
merely to determine whether a crime has
been committed and whether there is
probable cause to believe that the person
accused of the crime is probably guilty
thereof and should be held for trial. [49] As the
Court held in Webb vs. De Leon, [a] finding
of probable cause needs only to rest on
evidence showing that more likely than not
a crime has been committed and was
committed by the suspect. Probable cause
need not be based on clear and convincing
evidence of guilt, neither on evidence
establishing guilt beyond reasonable doubt
and definitely, not on evidence establishing
absolute certainty of guilt.[50]
Absent any showing of arbitrariness on the
part of the prosecutor or any other officer
authorized
to
conduct
preliminary
investigation, courts as a rule must defer to
said officers finding and determination of
probable cause, since the determination of
the existence of probable cause is the
function of the prosecutor. [51] The Court
agrees with the Sandiganbayan that
petitioner failed to establish that the
preliminary investigation conducted by the
Ombudsman was tainted with irregularity or
that its findings stated in the joint resolution
dated April 4, 2001 are not supported by the
facts, and that a reinvestigation was
necessary.
Certiorari will not lie to invalidate the
Sandiganbayans
resolution
denying
petitioners motion for reinvestigation since
there is nothing to substantiate petitioners
claim that it gravely abused its discretion in
ruling that there was no need to conduct a
reinvestigation of the case.[52]
The ruling in Rolito Go vs. Court of
Appeals[53] that an accused shall not be
deemed to have waived his right to ask for a

preliminary investigation after he had been


arraigned over his objection and despite his
insistence on the conduct of said
investigation prior to trial on the merits does
not apply in the instant case because
petitioner
merely
prayed
for
areinvestigation on the ground of a newlydiscovered
evidence. Irrefragably,
a
preliminary
investigation
had
been
conducted by the Ombudsman prior to the
filing of the amended Information, and that
petitioner had participated therein by filing
his
counter-affidavit. Furthermore,
the
Sandiganbayan had already denied his
motion for reinvestigation as well as his
motion for reconsideration thereon prior to
his arraignment.[54] In sum then, the petition
is dismissed.
Re: G.R. No. 148468
As synthesized by the Court from the
petition and the pleadings of the parties, the
issues for resolution are: (1) Whether or not
petitioner should first be arraigned before
hearings of his petition for bail may be
conducted; (2) Whether petitioner may file a
motion to quash the amended Information
during the pendency of his petition for
bail; (3) Whether a joint hearing of the
petition for bail of petitioner and those of the
other accused in Criminal Case No. 26558
is mandatory;(4) Whether the People
waived their right to adduce evidence in
opposition to the petition for bail of petitioner
and failed to adduce strong evidence of guilt
of petitioner for the crime charged; and (5)
Whether petitioner was deprived of his right
to due process in Criminal Case No. 26558
and should thus be released from
detention via a writ of habeas corpus.
On the first issue, petitioner contends that
the Sandiganbayan committed a grave
abuse of its discretion amounting to excess
or lack of jurisdiction when it deferred the
hearing of his petition for bail to July 10,
2001, arraigned him on said date and
entered a plea of not guilty for him when he
refused to be arraigned. He insists that the
Rules on Criminal Procedure, as amended,
does not require that he be arraigned first
prior to the conduct of bail hearings since
the latter can stand alone and must, of

necessity,
be
heard
immediately.[55] Petitioner maintains that his
arraignment before the bail hearings are set
is not necessary since he would not plead
guilty to the offense charged, as is evident
in his earlier statements insisting on his
innocence during the Senate investigation
of the jueteng scandal and the preliminary
investigation
before
the
Ombudsman.[56] Neither
would
the
prosecution be prejudiced even if it would
present all its evidence before his
arraignment because, under the Revised
Penal Code, a voluntary confession of guilt
is mitigating only if made prior to the
presentation
of
evidence
for
the
prosecution,[57] and petitioner admitted that
he cannot repudiate the evidence or
proceedings taken during the bail hearings
because Rule 114, Section 8 of the Revised
Rules of Court expressly provides that
evidence present during bail hearings are
automatically
reproduced
during
the
trial.[58] Petitioner likewise assures the
prosecution that he is willing to be arraigned
prior to the posting of a bail bond should he
be granted bail.[59]
The People insist that arraignment is
necessary before bail hearings may be
commenced, because it is only upon
arraignment that the issues are joined. The
People stress that it is only when an
accused pleads not guilty may he file a
petition for bail and if he pleads guilty to the
charge, there would be no more need for
him to file said petition. Moreover, since it is
during arraignment that the accused is first
informed of the precise charge against him,
he must be arraigned prior to the bail
hearings to prevent him from later assailing
the validity of the bail hearings on the
ground that he was not properly informed of
the charge against him, especially
considering that, under Section 8, Rule 114
of the Revised Rules of Court, evidence
presented during such proceedings are
considered automatically reproduced at the
trial.[60] Likewise,
the
arraignment
of
accused prior to bail hearings diminishes
the possibility of an accuseds flight from the
jurisdiction of the Sandiganbayan because

trial in absentia may be had only if an


accused escapes after he has been
arraigned.[61] The People also contend that
the conduct of bail hearings prior to
arraignment would extend to an accused
the undeserved privilege of being appraised
of the prosecutions evidence before he
pleads guilty for purposes of penalty
reduction.[62]
Although petitioner had already been
arraigned on July 10, 2001 and a plea of not
guilty had
been
entered
by the
Sandiganbayan on his behalf, thereby
rendering the issue as to whether an
arraignment is necessary before the
conduct of bail hearings in petitioners case
moot, the Court takes this opportunity to
discuss the controlling precepts thereon
pursuant to its symbolic function of
educating the bench and bar.[63]
The contention of petitioner is welltaken. The arraignment of an accused is not
a prerequisite to the conduct of hearings on
his petition for bail. A person is allowed to
petition for bail as soon as he is deprived of
his liberty by virtue of his arrest or voluntary
surrender.[64] An accused need not wait for
his arraignment before filing a petition for
bail.
In Lavides vs. Court of Appeals, [65] this
Court ruled on the issue of whether an
accused must first be arraigned before he
may be granted bail. Lavides involved an
accused charged with violation of Section
5(b) Republic Act No. 7610 (The Special
Protection of Children Against Abuse,
Exploitation and Discrimination Act), an
offense punishable by reclusion temporal in
its
medium
period
to reclusion
perpetua. The
accused
therein
assailed, inter alia, the trial courts imposition
of the condition that he should first be
arraigned before he is allowed to post
bail. We held therein that in cases where it
is authorized, bail should be granted before
arraignment, otherwise the accused may be
precluded from filing a motion to quash.[66]
However, the foregoing pronouncement
should not be taken to mean that the
hearing on a petition for bail should at all
times precede arraignment, because the

rule is that a person deprived of his liberty


by virtue of his arrest or voluntary surrender
may apply for bail as soon as he is deprived
of his liberty, even before a complaint or
information is filed against him. [67] The
Courts pronouncement in Lavides should be
understood in light of the fact that the
accused in said case filed a petition for bail
as well as a motion to quash the
informations filed against him. Hence, we
explained therein that to condition the grant
of bail to an accused on his arraignment
would be to place him in a position where
he has to choose between (1) filing a motion
to quash and thus delay his release on bail
because until his motion to quash can be
resolved, his arraignment cannot be held,
and (2) foregoing the filing of a motion to
quash so that he can be arraigned at once
and thereafter be released on bail. This
would undermine his constitutional right not
to be put on trial except upon a valid
complaint or Information sufficient to charge
him with a crime and his right to bail. [68]
It is therefore not necessary that an
accused be first arraigned before the
conduct of hearings on his application for
bail. For when bail is a matter of right, an
accused may apply for and be granted bail
even prior to arraignment. The ruling
in Lavides also implies that an application
for bail in a case involving an offense
punishable by reclusion perpetua to death
may also be heard even before an accused
is arraigned. Further, if the court finds in
such case that the accused is entitled to bail
because the evidence against him is not
strong, he may be granted provisional
liberty even prior to arraignment; for in such
a situation, bail would be authorized under
the
circumstances. In
fine,
the Sandiganbayan committed a grave
abuse of its discretion amounting to excess
of jurisdiction in ordering the arraignment of
petitioner before proceeding with the
hearing of his petition for bail.
With respect to the second issue of whether
petitioner may file a motion to quash during
the pendency of his petition for bail,
petitioner maintains that a motion to quash
and a petition for bail are not inconsistent,

and may proceed independently of each


other. While he agrees with the prosecution
that a motion to quash may in some
instances result in the termination of the
criminal proceedings and in the release of
the accused therein, thus rendering the
petition for bail moot and academic, he
opines that such is not always the case;
hence, an accused in detention cannot be
forced to speculate on the outcome of a
motion to quash and decide whether or not
to file a petition for bail or to withdraw one
that has been filed.[69] He also insists that
the grant of a motion to quash does not
automatically result in the discharge of an
accused from detention nor render moot an
application for bail under Rule 117, Section
5 of the Revised Rules of Court.[70]
The Court finds that no such inconsistency
exists between an application of an accused
for bail and his filing of a motion to
quash. Bail is the security given for the
release of a person in the custody of the
law, furnished by him or a bondsman, to
guarantee his appearance before any court
as required under the conditions set forth
under the Rules of Court.[71] Its purpose is to
obtain the provisional liberty of a person
charged with an offense until his conviction
while at the same time securing his
appearance at the trial.[72] As stated earlier,
a person may apply for bail from the
moment that he is deprived of his liberty by
virtue of his arrest or voluntary surrender. [73]
On the other hand, a motion to quash an
Information is the mode by which an
accused assails the validity of a criminal
complaint or Information filed against him
for insufficiency on its face in point of law, or
for defects which are apparent in the face of
the Information.[74] An accused may file a
motion to quash the Information, as a
general rule, before arraignment. [75]
These two reliefs have objectives which are
not necessarily antithetical to each
other. Certainly, the right of an accused
right to seek provisional liberty when
charged with an offense not punishable by
death, reclusion
perpetua or
life
imprisonment, or when charged with an
offense punishable by such penalties but

after due hearing, evidence of his guilt is


found not to be strong, does not preclude
his right to assail the validity of the
Information charging him with such
offense. It must be conceded, however, that
if a motion to quash a criminal complaint or
Information on the ground that the same
does not charge any offense is granted and
the case is dismissed and the accused is
ordered released, the petition for bail of an
accused may become moot and academic.
We now resolve the issue of whether or not
it is mandatory that the hearings on the
petitions for bail of petitioner and accused
Jose Jinggoy Estrada in Criminal Case No.
26558 and the trial of the said case as
against former President Joseph E. Estrada
be heard jointly.
Petitioner argues that the conduct of joint
bail hearings would negate his right to have
his petition for bail resolved in a summary
proceeding since said hearings might be
converted into a full blown trial on the merits
by the prosecution.[76]
For their part, the People claim that joint bail
hearings will save the court from having to
hear the same witnesses and the parties
from presenting the same evidence where it
would allow separate bail hearings for the
accused who are charged as coconspirators in the crime of plunder. [77]
In issuing its June 1, 2001 Order directing
all accused in Criminal Case No. 26558 to
participate in the bail hearings, the
Sandiganbayan explained that the directive
was made was in the interest of the speedy
disposition of the case. It stated:
x x x The obvious fact is, if the rest of the
accused other than the accused Serapio were to
be excused from participating in the hearing on
the motion for bail of accused Serapio, under
the pretext that the same does not concern
them and that they will participate in any
hearing where evidence is presented by the
prosecution only if and when they will already
have filed their petitions for bail, or should they
decide not to file any, that they will participate
only during the trial proper itself, then
everybody will be faced with the daunting
prospects of having to go through the process

of introducing the same witness and pieces of


evidence two times, three times or four times,
as many times as there are petitions for bail
filed. Obviously, such procedure is not
conducive to the speedy termination of a
case. Neither can such procedure be
characterized as an orderly proceeding.[78]
There is no provision in the Revised Rules
of Criminal Procedure or the Rules of
Procedure of the Sandiganbayan governing
the hearings of two or more petitions for bail
filed by different accused or that a petition
for bail of an accused be heard
simultaneously with the trial of the case
against the other accused. The matter of
whether or not to conduct a joint hearing of
two or more petitions for bail filed by two
different accused or to conduct a hearing of
said petition jointly with the trial against
another accused is addressed to the sound
discretion of the trial court. Unless grave
abuse of discretion amounting to excess or
lack of jurisdiction is shown, the Court will
not interfere with the exercise by the
Sandiganbayan of its discretion.
It may be underscored that in the exercise
of its discretion, the Sandiganbayan must
take into account not only the convenience
of the State, including the prosecution, but
also that of the accused and the witnesses
of both the prosecution and the accused
and the right of accused to a speedy
trial. The
Sandiganbayan
must
also
consider the complexities of the cases and
of the factual and legal issues involving
petitioner and the other accused. After all, if
this Court may echo the observation of the
United States Supreme Court, the State has
a stake, with every citizen, in his being
afforded our historic individual protections,
including
those
surrounding
criminal
prosecutions. About them, this Court dares
not become careless or complacent when
that fashion has become rampant over the
earth.[79]
It must be borne in mind that in Ocampo vs.
Bernabe,[80] this Court held that in a petition
for bail hearing, the court is to conduct only
a summary hearing, meaning such brief and
speedy method of receiving and considering

the evidence of guilt as is practicable and


consistent with the purpose of the hearing
which is merely to determine the weight of
evidence for purposes of bail. The court
does not try the merits or enter into any
inquiry as to the weight that ought to be
given to the evidence against the accused,
nor will it speculate on the outcome of the
trial or on what further evidence may be
offered therein. It may confine itself to
receiving such evidence as has reference to
substantial matters, avoiding unnecessary
thoroughness in the examination and crossexamination of witnesses, and reducing to a
reasonable minimum the amount of
corroboration particularly on details that are
not essential to the purpose of the hearing.
A joint hearing of two separate petitions for
bail by two accused will of course avoid
duplication of time and effort of both the
prosecution and the courts and minimizes
the prejudice to the accused, especially so if
both movants for bail are charged of having
conspired in the commission of the same
crime and the prosecution adduces
essentially the same evident against
them. However, in the cases at bar, the
joinder of the hearings of the petition for bail
of petitioner with the trial of the case against
former President Joseph E. Estrada is an
entirely different matter. For, with the
participation of the former president in the
hearing of petitioners petition for bail, the
proceeding assumes a completely different
dimension.The proceedings will no longer
be summary. As against former President
Joseph E. Estrada, the proceedings will be
a full-blown trial which is antithetical to the
nature of a bail hearing. Moreover, following
our
ruling
in Jose
Estrada
vs.
Sandiganbayan, supra where we stated that
Jose Jinggoy Estrada can only be charged
with conspiracy to commit the acts alleged
in sub-paragraph (a) of the amended
Information since it is not clear from the
latter if the accused in sub-paragraphs (a) to
(d) thereof conspired with each other to
assist Joseph Estrada to amass ill-gotten
wealth, we hold that petitioner can only be
charged with having conspired with the
other co-accused named in sub-paragraph

(a) by receiving or collecting, directly or


indirectly, on several instances, money x x x
from illegal gambling, x x x in consideration
of toleration or protection of illegal
gambling.[81] Thus, with respect to petitioner,
all that the prosecution needs to adduce to
prove that the evidence against him for the
charge of plunder is strong are those related
to the alleged receipt or collection of money
from illegal gambling as described in subparagraph
(a)
of
the
amended
Information. With the joinder of the hearing
of petitioners petition for bail and the trial of
the former President, the latter will have the
right to cross-examine intensively and
extensively
the
witnesses
for
the
prosecution in opposition to the petition for
bail of petitioner. If petitioner will adduce
evidence in support of his petition after the
prosecution shall have concluded its
evidence, the former President may insist
on cross-examining petitioner and his
witnesses. The joinder of the hearing of
petitioners bail petition with the trial of
former President Joseph E. Estrada will be
prejudicial to petitioner as it will unduly
delay the determination of the issue of the
right of petitioner to obtain provisional liberty
and seek relief from this Court if his petition
is denied by the respondent court. The
indispensability of the speedy resolution of
an application for bail was succinctly
explained
by
Cooley
in
his
treatise Constitutional Limitations, thus:
For, 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
lesser degree, to the punishment of a guilty
person, while as yet it is not determined that he
has not committed any crime.[82]
While the Sandiganbayan, as the court
trying Criminal Case No. 26558, is
empowered to proceed with the trial of the
case in the manner it determines best
conducive to orderly proceedings and
speedy termination of the case, [83] the Court
finds that it gravely abused its discretion in

ordering that the petition for bail of petitioner


and the trial of former President Joseph E.
Estrada be held jointly. It bears stressing
that the Sandiganbayan itself acknowledged
in its May 4, 2001 Order the pre-eminent
position and superiority of the rights of
[petitioner] to have the matter of his
provisional
liberty
resolved
without
unnecessary delay,[84] only to make a volte
face and declare that after all the hearing of
petition for bail of petitioner and Jose
Jinggoy Estrada and the trial as against
former President Joseph E. Estrada should
be held simultaneously. In ordering that
petitioners petition for bail to be heard jointly
with the trial of the case against his coaccused former President Joseph E.
Estrada, the Sandiganbayan in effect
allowed further and unnecessary delay in
the resolution thereof to the prejudice of
petitioner. In fine then, the Sandiganbayan
committed a grave abuse of its discretion in
ordering a simultaneous hearing of
petitioners petition for bail with the trial of
the case against former President Joseph
E. Estrada on its merits.
With respect to petitioners allegations that
the prosecution tried to delay the bail
hearings by filing dilatory motions, the
People aver that it is petitioner and his coaccused who caused the delay in the trial of
Criminal Case No. 26558 by their filing of
numerous manifestations and pleadings
with the Sandiganbayan.[85] They assert that
they filed the motion for joint bail hearing
and motion for earlier arraignment around
the original schedule for the bail hearings
which was on May 21-25, 2001.[86]
They argue further that bail is not a matter
of right in capital offenses.[87] In support
thereof, they cite Article III, Sec 13 of the
Constitution, which states 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. 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.[88]
The People also cited Rule 114, Secs. 7
and 4 of the Revised Rules of Court which
provide:
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 imprisonement, shall be
admitted to bail when evidence of guilt is
strong, regardless of the stage of the criminal
prosecution.
Sec. 4. Bail, a matter of right, exception.All
persons in custody shall be admitted to bail as a
matter of right, with sufficient sureties, or
released on recognizance as prescribed by law
or this Rule x x x (b) and before conviction by
the Regional Trial Court of an offense not
punishable by death, reclusion perpetua or life
imprisonment.[89]
Irrefragably, a person charged with a capital
offense is not absolutely denied the
opportunity to obtain provisional liberty on
bail pending the judgment of his
case. However, as to such person, bail is
not a matter of right but is discretionary
upon the court.[90] Had the rule been
otherwise, the Rules would not have
provided for an application for bail by a
person charged with a capital offense under
Rule 114, Section 8 which states:
Sec. 8. Burden of proof in bail application. At the
hearing of an application for bail filed by a
person who is in custody for the commission of
an offense punishable by death, reclusion
perpetua, or life imprisonment, the prosecution
has the burden of showing that the evidence of
guilt is strong. The evidence presented during
the
bail
hearing
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
latter is dead, outside the Philippines, or
otherwise unable to testify.[91]
Under the foregoing provision, there must
be a showing that the evidence of guilt
against a person charged with a capital
offense is not strong for the court to grant

him bail. Thus, upon an application for bail


by the person charged with a capital
offense, a hearing thereon must be
conducted, where the prosecution must be
accorded an opportunity to discharge its
burden of proving that the evidence of guilt
against an accused is strong. [92] The
prosecution shall be accorded the
opportunity to present all the evidence it
may
deems
necessary
for
this
[93]
purpose. When
it
is
satisfactorily
demonstrated that the evidence of guilt is
strong, it is the courts duty to deny the
application for bail. However, when the
evidence of guilt is not strong, bail becomes
a matter of right.[94]
In this case, petitioner is not entitled to bail
as a matter of right at this stage of the
proceedings. Petitioners claim that the
prosecution had refused to present
evidence to prove his guilt for purposes of
his bail application and that the
Sandiganbayan has refused to grant a
hearing thereon is not borne by the
records. The prosecution did not waive,
expressly or even impliedly, its right to
adduce evidence in opposition to the
petition for bail of petitioner. It must be
noted that the Sandiganbayan had already
scheduled the hearing dates for petitioners
application for bail but the same were reset
due to pending incidents raised in several
motions filed by the parties, which incidents
had to be resolved by the court prior to the
bail hearings. The bail hearing was
eventually scheduled by the Sandiganbayan
on July 10, 2001 but the hearing did not
push through due to the filing of this petition
on June 29, 2001.
The delay in the conduct of hearings on
petitioners application for bail is therefore
not imputable solely to the Sandiganbayan
or to the prosecution. Petitioner is also
partly to blame therefor, as is evident from
the following list of motions filed by him and
by the prosecution:
Motions filed by petitioner:
Urgent Omnibus Motion, dated April 6,
2001, for (1) leave to file motion for
reconsideration/reinvestigation and to direct
ombudsman to conduct reinvestigation; (2)

conduct a determination of probable cause


as would suggest the issuance of house
arrest; (3) hold in abeyance the issuance of
warrant of arrest and other proceedings
pending determination of probable cause;
Motion for Early Resolution, dated May 24,
2001;
Urgent Motion to Hold in Abeyance
Implementation or Service of Warrant of Arrest
for Immediate Grant of bail or For Release on
Recognizance, dated April 25, 2001;
Urgent Motion to allow Accused Serapio to
Vote at Obando, Bulacan, dated May 11, 2001;
Urgent Motion for Reconsideration, dated
May 22, 2001, praying for Resolution of May 18,
2001 be set aside and bail hearings be set at the
earliest possible time;
Urgent Motion for Immediate Release on
Bail or Recognizance, dated May 27, 2001;
Motion for Reconsideration of denial of
Urgent Omnibus Motion, dated June 13, 2001,
praying that he be allowed to file a Motion for
Reinvestigation; and
Motion to Quash, dated June 26, 2001.[95]
Motions filed by the prosecution:
Motion for Earlier Arraignment, dated May
8, 2001;[96]
Motion for Joint Bail Hearings of Accused
Joseph Estrada, Jose Jinggoy Estrada and
Edward Serapio, dated May 8, 2001;[97]
Opposition to the Urgent Motion for
Reconsideration and Omnibus Motion to Adjust
Earlier
Arraignment,
dated
May
25,
2001;[98] and
Omnibus Motion for Examination,
Testimony and Transcription in Filipino, dated
June 19, 2001.[99]
The other accused in Criminal Case No. 26558
also contributed to the aforesaid delay by their
filing of the following motions:
Motion to Quash or Suspend, dated April
24, 2001, filed by Jinggoy Estrada, assailing the
constitutionality of R.A. No. 7080 and praying
that the Amended Information be quashed;
Very Urgent Omnibus Motion, dated April
30, 2001, filed by Jinggoy Estrada, praying that
he be (1) excluded from the Amended
Information for lack of probable cause; (2)

released from custody; or in the alternative, (3)


be allowed to post bail;
Urgent Ex-Parte Motion to Place on House
Arrest, dated April 25, 2001, filed by Joseph and
Jinggoy Estrada, praying that they be placed on
house arrest during the pendency of the case;
Position Paper [re: House Arrest], dated
May 2, 2001, filed by Joseph and Jinggoy
Estrada;
Supplemental Position Paper [re: House
Arrest], dated May 2, 2001, filed by Joseph and
Jinggoy Estrada;
Omnibus Motion, dated May 7, 2001, filed
by Joseph Estrada, praying by reinvestigation of
the case by the Ombudsman or the outright
dismissal of the case;
Urgent
Ex-Parte
Motion
for
Extension, dated May 2, 2001, filed by Jinggoy
Estrada, requesting for five (5) within which to
respond to the Opposition to Motion to Quash
in view of the holidays and election-related
distractions;
Opposition to Urgent Motion for Earlier
Arraignment, dated May 10, 2001, filed by
Joseph Estrada;
Omnibus Manifestation on voting and
custodial arrangement, dated May 11, 2001,
filed by Joseph and Jinggoy Estrada, praying
that they be placed on house arrest;
Manifestation regarding house arrest,
dated May 6, 2001, filed by Joseph and Jinggoy
Estrada;
Summation regarding house arrest, dated
May 23, 2001, filed by Joseph and Jinggoy
Estrada;
Urgent Manifestation & Motion, dated
May 6, 2001 filed by Jinggoy Estrada;
Manifestation, dated May 28, 2001, filed
by Joseph and Jinggoy Estrada, praying that
they be allowed to be confined in Tanay;
Motion to charge as Accused Luis Chavit
Singson, filed by Joseph Estrada;
Omnibus Motion, dated June 11, 2001,
filed by Joseph and Jinggoy Estrada, seeking
reconsideration of denial of requests for house
arrest, for detention in Tanay or Camp Crame;
motion for inhibition of Justice Badoy;

Urgent Motion to Allow Accused to Clear


His Desk as Mayor of San Juan, Metro Manila,
dated June 28, 2001, filed by Jinggoy Estrada;
Motion for Reconsideration, dated June 9,
2001, filed by Joseph and Jinggoy Estrada,
praying that the resolution compelling them to
be present at petitioner Serapios hearing for
bail be reconsidered;
Motion to Quash, dated June 7, 2001, filed
by Joseph Estrada;
Still Another Manifestation, dated June 14,
2001, filed by Joseph and Jinggoy Estrada
stating that Bishop Teodoro Bacani favors their
house arrest;
Manifestation, dated June 15, 2001, filed
by Joseph and Jinggoy Estrada, waiving their
right to be present at the June 18 and 21, 2001
bail hearings and reserving their right to trial
with assessors;
Omnibus Motion for Instructions: 30-Day
House Arrest; Production, Inspection and
Copying of Documents; and Possible Trial with
Assessors, dated June 19, 2001, filed by Joseph
and Jinggoy Estrada;
Urgent Motion for Additional Time to Wind
Up Affairs, dated June 20, 2001, filed by Jinggoy
Estrada;
Manifestation, dated June 22, 2001, filed
by Jinggoy Estrada, asking for free dates for
parties, claiming that denial of bail is cruel and
inhuman, reiterating request for gag order of
prosecution witnesses, availing of production,
inspection and copying of documents,
requesting for status of alias case; and
Compliance, dated June 25, 2001, filed by
Jinggoy Estrada, requesting for permission to
attend some municipal affairs in San Juan,
Metro Manila.[100]
Furthermore, the Court has previously ruled
that even in cases where the prosecution
refuses to adduce evidence in opposition to
an application for bail by an accused
charged with a capital offense, the trial court
is still under duty to conduct a hearing on
said application.[101] The rationale for such
requirement was explained in Narciso vs.
Sta. Romana-Cruz (supra), citing Basco vs.
Rapatalo:[102]

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.[103]
Accordingly, petitioner cannot be released
from detention until the Sandiganbayan
conducts a hearing of his application for bail
and resolve the same in his favor. Even
then, there must first be a finding that the
evidence against petitioner is not strong
before he may be granted bail.
Anent the issue of the propriety of the
issuance of a writ of habeas corpus for
petitioner, he contends that he is entitled to
the issuance of said writ because the State,
through the prosecutions refusal to present
evidence and by the Sandiganbayans
refusal to grant a bail hearing, has failed to
discharge its burden of proving that as
against him, evidence of guilt for the capital
offense of plunder is strong. Petitioner
contends that the prosecution launched a
seemingly endless barrage of obstructive
and dilatory moves to prevent the conduct
of
bail
hearings. Specifically,
the
prosecution
moved
for
petitioners
arraignment before the commencement of
bail hearings and insisted on joint bail
hearings for petitioner, Joseph Estrada and
Jinggoy Estrada despite the fact that it was
only petitioner who asked for a bail hearing;
manifested that it would present its
evidence as if it is the presentation of the
evidence in chief, meaning that the bail
hearings would be concluded only after the
prosecution presented its entire case upon

the accused; and argued that petitioners


motion to quash and his petition for bail are
inconsistent, and therefore, petitioner
should choose to pursue only one of these
two remedies.[104] He further claims that the
Sandiganbayan, through its questioned
orders and resolutions postponing the bail
hearings effectively denied him of his right
to bail and to due process of law. [105]
Petitioner also maintains that the issuance
by the Sandiganbayan of new orders
canceling the bail hearings which it had
earlier set did not render moot and
academic the petition for issuance of a writ
of habeas corpus, since said orders have
resulted in a continuing deprivation of
petitioners right to bail.[106] He argues further
that the fact that he was arrested and is
detained pursuant to valid process does not
by itself negate the efficacy of the remedy
of habeas corpus. In support of his
contention, petitioner cites Moncupa vs.
Enrile,[107] where the Court held that habeas
corpus extends to instances where the
detention, while valid from its inception, has
later become arbitrary.[108]
However, the People insist that habeas
corpus is not proper because petitioner was
arrested pursuant to the amended
information which was earlier filed in
court,[109] the warrant of arrest issuant
pursuant thereto was valid, and petitioner
voluntarily surrendered to the authorities. [110]
As a general rule, the writ of habeas
corpus will not issue where the person
alleged to be restrained of his liberty in
custody of an officer under a process issued
by the court which jurisdiction to do
so.[111] In exceptional circumstances,habeas
corpus may be granted by the courts even
when the person concerned is detained
pursuant to a valid arrest or his voluntary
surrender, for this writ of liberty is
recognized as the fundamental instrument
for safeguarding individual freedom against
arbitrary and lawless state action due to its
ability to cut through barriers of form and
procedural mazes.[112] Thus, in previous
cases, we issued the writ where the
deprivation of liberty, while initially valid
under the law, had later become

invalid,[113] and even though the persons


praying for its issuance were not completely
deprived of their liberty.[114]
The Court finds no basis for the issuance of
a writ of habeas corpus in favor of
petitioner. The general rule thathabeas
corpus does not lie where the person
alleged to be restrained of his liberty is in
the custody of an officer under process
issued by a court which had jurisdiction to
issue
the
same[115] applies,
because
petitioner is under detention pursuant to the
order
of
arrest
issued
by
the
Sandiganbayan on April 25, 2001 after the
filing by the Ombudsman of the amended
information for plunder against petitioner
and his co-accused. Petitioner had in fact
voluntarily surrendered himself to the
authorities on April 25, 2001 upon learning
that a warrant for his arrest had been
issued.
The
ruling
in Moncupa
vs.
[116]
Enrile
that habeas corpus will lie where
the deprivation of liberty which was initially
valid has become arbitrary in view of
subsequent
developments
finds
no
application in the present case because the
hearing on petitioners application for bail
has yet to commence. As stated earlier, the
delay in the hearing of petitioners petition
for bail cannot be pinned solely on the
Sandiganbayan or on the prosecution for
that matter. Petitioner himself is partly to be
blamed. Moreover, a petition for habeas
corpus is not the appropriate remedy for
asserting ones right to bail.[117] It cannot be
availed of where accused is entitled to bail
not as a matter of right but on the discretion
of the court and the latter has not abused
such discretion in refusing to grant
bail,[118] or has not even exercised said
discretion. The proper recourse is to file an
application for bail with the court where the
criminal case is pending and to allow
hearings thereon to proceed.
The issuance of a writ of habeas
corpus would not only be unjustified but
would also preempt the Sandiganbayans
resolution of the pending application for bail
of petitioner. The recourse of petitioner is to

forthwith proceed with the hearing on his


application for bail.
IN THE LIGHT OF ALL THE FOREGOING,
judgment is hereby rendered as follows:
1. In G.R. No. 148769 and G.R. No.
149116, the petitions are DISMISSED. The
resolutions of respondent Sandiganbayan
subject of said petitions are AFFIRMED;
and
2. In G.R. No. 148468, the petition is
PARTIALLY GRANTED. The resolution of
respondent Sandiganbayan, Annex L of the
petition, ordering a joint hearing of
petitioners petition for bail and the trial of
Criminal Case No. 26558 as against former
President Joseph E. Estrada is SET ASIDE;
the arraignment of petitioner on July 10,
2001 is also SET ASIDE.
No costs.
SO ORDERED.

FIRST DIVISION
[G.R. No. 152398. April 14, 2005]
EDGAR CRISOSTOMO, petitioner, vs.
SANDIGANBAYAN, respondent.
DECISION
CARPIO, J.:
The Case
This is an appeal by certiorari under Rule 65
of the Revised Rules on Civil Procedure of
the SandiganbayanResolutions
promulgated on 17 September 2001 and 14
January 2002, denying the Motion for
Reconsideration filed by petitioner SPO1
Edgar Crisostomo (Crisostomo) assailing
the courts Decision[1] promulgated on 28
November 2000. The Decision found
Crisostomo guilty of the crime of murder
and sentenced him to suffer the
indeterminate penalty of twelve (12) years,
five (5) months and eleven (11) days
of prision mayor as minimum, to eighteen
(18) years, eight (8) months and one (1) day
of reclusion temporal as maximum.
The Charge

On 19 October 1993, Crisostomo, a


member of the Philippine National Police
and a jail guard at the Solano Municipal Jail
was charged with the murder of Renato
Suba (Renato), a detention prisoner at the
Solano Municipal Jail. The Information
alleged that Crisostomo conspired with his
co-accused, Dominador C. dela Cruz (dela
Cruz), Efren M. Perez (Perez), Raki T.
Anggo (Anggo), Randy A. Lumabo
(Lumabo), Rolando M. Norberte (Norberte)
and Mario Calingayan (Calingayan), all
inmates at the Solano Municipal Jail, in
murdering Renato. The Information reads in
full:
That on or about the 14th day of February 1989,
in Solano, Nueva Vizcaya, Philippines, and
within the jurisdiction of this Honorable Court,
the above-named accused Pat. Edgar T.
Crisostomo, a public officer, being then a
member of the Philippine National Police (PNP)
stationed at Solano Police Station and a jailer
thereat, taking advantage of his public position
and thus committing the offense in relation to
his office, conspiring, confederating and
conniving with his co-accused who are inmates
of the Solano Municipal Jail, namely:
Dominador C. dela Cruz, Efren M. Perez, Raki T.
Anggo, Randy A. Lumabo, Rolando M. Norberte
and Mario B. Calingayan, with intent to kill and
with treachery, taking advantage of superior
strength and with the aid of armed men or
employing means to weaken the defense or of
means or persons to insure or afford impunity,
did then and there wil[l]fully, unlawfully and
feloniously attack and assault one Renato Suba,
a detention prisoner, with the use of roughsurfaced instruments, including fist blows,
inflicting upon him serious injuries causing his
internal organs to be badly damaged such as his
liver, messentery and stomach resulting to the
death of said Renato Suba to the damage and
prejudice of the heirs of the latter.
CONTRARY TO LAW.[2]
Arraignment and Plea
On 15 December 1993, Crisostomo
assisted by counsel, pleaded not guilty to
the crime charged.[3] Thereafter, trial
ensued.

Version of the Prosecution


On 13 February 1989, Renato was detained
at the municipal jail in Solano, Nueva
Vizcaya for allegedly hitting the head of one
Diosdado Lacangan. The following day, 14
February 1989, at 5:00 p.m., Renatos
brother Rizalino Suba (Rizalino) visited him
at the municipal jail. Renato asked Rizalino
to bring him blanket, toothbrush, clothes
and food. Rizalino left the municipal jail that
day at 5:20 p.m. At that time, Renato was in
good physical condition and did not
complain of any bodily pain. Renato was 26
years old, single, and was employed in a
logging concession.
At 9:00 p.m., a barangay councilman
informed Rizalino that policemen assigned
at the Solano municipal jail wanted Rizalino
to go to the municipal building. Rizalino
arrived at the municipal jail at 9:10 p.m. and
saw his brother Renato already dead on the
floor outside his cell.
Renato was detained alone in the third cell,
one of the four cells at the municipal jail.
Although each of the four cells had an iron
grill door equipped with a padlock, the doors
were usually left open. The keys to the
padlocks were with the jail guard. There
was a common front door, which no one
could enter but the jail guard. Only one jail
guard at a time was assigned at the
municipal jail. Crisostomo was the one on
duty at the time of the death of Renato. At
no time was Renato brought out of the cell
during his detention on 13 February 1989
until his death in the evening of the following
day. Crisostomos position in relation to the
cell where the victim was killed was such
that Crisostomo as jail guard could have
heard if not seen what was going on inside
the cell at the time that Renato was killed.
There are unexplained discrepancies in the
list of detainees/prisoners and police blotter.
The list of detainees/prisoners dated 20
February 1989 shows that there were eight
prisoners on 14 February 1989, including
Renato, but after Renatos death, only six
were turned over by Crisostomo to the
incoming jail guard. On 15 February 1989,
nine prisoners/detainees were on the list,
including Renato who was already dead.

However, the police blotter shows that only


six prisoners were under custody. The
persons who were detained with Renato at
the time of his death were released without
being investigated by the Solano police.
Renato did not commit suicide. His body
bore extensive injuries that could have been
inflicted
by
several
persons.
The
exhumation and autopsy reports ruled out
suicide as the cause of Renatos death. The
deafening silence of the inmates and the jail
guard, Crisostomo, point to a conspiracy.
Crisostomos guilt is made apparent when
he jumped bail during trial.
Version of the Defense
The
presentation
of
evidence
for
Crisostomos defense was deemed waived
for his failure to appear at the scheduled
hearings despite notice.
Calingayan, Crisostomos co-accused, was
the sole witness for the defense. Calingayan
was only 16 years old at the time that he
was charged with the murder of Renato.
Calingayan denied killing Renato.
Calingayan was detained at the Solano
Municipal Jail on 12 February 1989 because
his brother-in-law, Patrolman Feliciano Leal
(Leal), also a jail guard, had him arrested for
pawning some of the belongings of Leal.
Leal told Calingayan that he had him
detained for safekeeping to teach him a
lesson.
Renato was detained on 13 February 1989.
Calingayan learned that Renato was
detained for hitting somebodys head.
There were four cells at the municipal jail.
Calingayan was detained with five other
inmates in the second cell. Renato was
detained alone in the third cell. The four
cells had their own separate doors with
padlocks but each door was always open. It
was up to the inmates to close the doors. A
common door leading to the four cells was
always padlocked and no one could enter
the door without the jail guards permission.
The jail guard had the keys to the cells and
the common door. Only one jail guard was
assigned to guard the cells. Crisostomo was
the jail guard on duty at the time that
Renato died.

Calingayan was in jail for three days or until


15 February 1989. Calingayan last saw
Renato alive between 5 to 6 p.m. of 14
February 1989. Just as Calingayan was
about to take a bath after 6 p.m., he saw
Renato lying down. One of the inmates
asked for Renatos food because he did not
like to eat his food. After taking a bath,
Calingayan went back to his cell and played
cards with his three cellmates whose names
he could not recall. Calingayan did not leave
his cell during the four hours that he played
cards but one of his cellmates went out.
Calingayan discovered Renatos body on 14
February 1989 between 9:00 p.m. to 10:00
p.m. Calingayan went to the fourth cell,
where the comfort room was located, to
urinate. While urinating, Calingayan saw at
the corner of the cell a shadow beside him.
A bulb at the alley lighted the cell.
Calingayan ran away and called the other
inmates, telling them that the person in cell
number four was in the dark place. The
other inmates ran towards the place and
shouted si kuwan, si kuwan. Crisostomo
was in the room at the left side from where
Calingayan was detained, about fifteen
meters away. Upon hearing the shouts,
Crisostomo opened the main door. Once
inside the cell, Crisostomo instructed the
inmates to bring down Renatos body that
was hanging from the iron bars of the
window of the cell. At that time, Calingayan
did not notice what was used in hanging
Renato but when the body was brought
outside, Calingayan saw that Renato had
hanged himself with a thin blanket.
The four cells are not similar in area and
size. The cell where Renato stayed is the
smallest. The cells are separated by a
partition made of hollow blocks as high as
the ceiling. The four cells are in one line so
that if you are in one cell you cannot see
what is happening in the other cells. The
inmates could go to any of the four cells in
the prison but they could not get out of the
main door without the permission of the jail
guard. The comfort room is in the fourth cell,
which is also open so that the inmates
would not anymore ask for the key from the
office of the jail guard.

The blanket that Renato used to hang


himself was tied to the iron grills of the
window of the cell. The window is small,
only about two feet by one and one-half feet
with eight iron bars. The window is nine feet
from the floor.
No other person was admitted on 14
February 1989. Calingayan does not have a
grudge against Renato. He could not recall
if there was any untoward incident between
Renato and the other inmates. The Solano
police investigated Calingayan the next
morning.
The Ruling of the Sandiganbayan
Only Crisostomo and Calingayan stood trial.
The other accused, dela Cruz, Perez,
Anggo, Lumabo and Norberte were at large.
The Sandiganbayan found
sufficient
circumstantial
evidence
to
convict
Crisostomo and Calingayan of murder.
The Sandiganbayan relied on the autopsy
and exhumation reports in disregarding the
defense theory that Renato committed
suicide by hanging himself with a blanket.
The Sandiganbayan thus held:
Premises considered, accused Edgar Crisostomo
and Mario Calingayan are hereby found guilty of
the crime of murder.
xxx
There being no attending mitigating or
aggravating circumstance in the case of accused
Edgar Crisostomo, and taking into consideration
the Indeterminate Sentence Law, he is hereby
sentenced to suffer the penalty of
imprisonment for the period from twelve (12)
years, five (5) months and eleven (11) days
of prision mayor, minimum, to eighteen (18)
years, eight (8) months and one (1) day
of reclusion temporal, maximum.
xxx
As to the other accused, Dominador C. Dela
Cruz, Efren M. Perez, Raki T. Anggo, Randy A.
Lumabo and Rolando M. Norberte, considering
they are still at-large up to the present time, let
an alias warrant of arrest be issued against
them. In the meantime, the cases against them
are hereby ordered archived.
SO ORDERED.[4]
The Issues

Crisostomo continues to assail the


Sandiganbayans jurisdiction. He raises the
following issues:
WHETHER
THE
SANDIGANBAYAN
HAS
JURISDICTION OVER THE CRIME OF MURDER
CHARGED AGAINST CRISOSTOMO WHO IS A
SENIOR POLICE OFFICER 1 (SPO1) AT THE TIME
OF THE FILING OF THE INFORMATION AGAINST
HIM.
EVEN
ASSUMING ARGUENDO THAT
THE
RESPONDENT COURT HAS JURISDICTION,
WHETHER THE SANDIGANBAYAN COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT
RULED THAT CRISOSTOMO IS GUILTY OF
HAVING CONSPIRED IN THE MURDER OF
RENATO DESPITE THE SANDIGANBAYANS
ADMISSION IN ITS DECISION THAT THERE IS NO
DIRECT EVIDENCE THAT WILL SHOW THE
PARTICIPATION OF CRISOSTOMO IN THE DEATH
OF THE VICTIM.[5]
The Courts Ruling
The Sandiganbayan had jurisdiction to try
the case. However, the prosecution failed to
prove Crisostomo and Calingayans guilt
beyond reasonable doubt. Thus, we acquit
Crisostomo and Calingayan.
The Sandiganbayan had Jurisdiction to
Try the Case
Crisostomo argues that the Sandiganbayan
was without jurisdiction to try the case.
Crisostomo points out that the crime of
murder is not listed in Section 4 of
Presidential Decree No. 1606 (PD 1606) as
one of the crimes that the Sandiganbayan
can
try.
Crisostomo
faults
the
Sandiganbayan for not applying the ruling
in Sanchez v. Demetriou[6] to this case.
In Sanchez v. Demetriou, the Court ruled
that public office must be a constituent
element of the crime as defined in the
statute before the Sandiganbayan could
acquire jurisdiction over a case. Crisostomo
insists that there is no direct relation
between the commission of murder and
Crisostomos public office. Crisostomo
further contends that the mere allegation in
the Information that the offense was
committed in relation to Crisostomos office
is not sufficient to confer jurisdiction on the

Sandiganbayan. Such allegation without the


specific factual averments is merely a
conclusion of law, not a factual averment
that would show the close intimacy between
the offense charged and the discharge of
Crisostomos official duties.
We are not convinced.
Since the crime was committed on 14
February 1989, the applicable provision of
law is Section 4 of PD 1606, as amended by
Presidential Decree No. 1861 (PD 1861),
which took effect on 23 March 1983. The
amended provision reads:
Sec. 4. Jurisdiction. The Sandiganbayan shall
exercise:
(a) Exclusive original jurisdiction in all cases
involving:
xxx
(2) Other offenses or felonies committed by
public officers and employees in relation to
their office, including those employed in
government-owned or controlled corporations,
whether simple or complexed with other
crimes, where the penalty prescribed by law is
higher
than prision correccional or
imprisonment for six (6) years, or a fine
of P6,000.00: PROVIDED, HOWEVER, that
offenses or felonies mentioned in this
paragraph where the penalty prescribed by law
does
not
exceedprision correccional or
imprisonment for six (6) years or a fine
of P6,000.00 shall be tried by the proper
Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court and Municipal Circuit Trial
Court.
Crisostomo was charged with murder, the
penalty for which is reclusion temporal in its
maximum period to death, a penalty within
the jurisdiction of the Sandiganbayan.
Crisostomo would have the Court believe
that being a jail guard is a mere incidental
circumstance that bears no close intimacy
with
the
commission
of
murder.
Crisostomos theory would have been
tenable if the murdered victim was not a
prisoner under his custody as a jail guard.
The function of a jail guard is to insure
the safe
custody and
properconfinement of persons detained in

the jail. In this case, the Information alleges


that the victim was a detention prisoner
when Crisostomo, the jail guard, conspired
with the inmates to kill him.
Indeed, murder and homicide will never be
the main function of any public office. No
public office will ever be a constituent
element of murder. When then would
murder or homicide, committed by a public
officer, fall within the exclusive and original
jurisdiction of the Sandiganbayan? People
v. Montejo[7] provides the answer. The
Court explained that a public officer
commits an offense in relation to his office if
he perpetrates the offense while performing,
though in an improper or irregular manner,
his official functions and he cannot commit
the offense without holding his public office.
In such a case, there is an intimate
connection between the offense and the
office of the accused. If the information
alleges the close connection between the
offense charged and the office of the
accused, the case falls within the jurisdiction
of
the
Sandiganbayan. People
v.
Montejo is an exception that Sanchez v.
Demetriou recognized.
Thus, the jurisdiction of the Sandiganbayan
over this case will stand or fall on this test:
Does the Information allege a close or
intimate connection between the offense
charged and Crisostomos public office?
The Information passes the test.
The Information alleged that Crisostomo a
public officer, being then a member of the
Philippine National Police (PNP) stationed
at
Solano
Police
Station
and
a jailer thereat, taking advantage of his
public position and thus committing the
offense in relation to his office conspired,
confederated and connived with his coaccused who are inmates of the Solano
Municipal Jail to kill Renato, a detention
prisoner.
If the victim were not a prisoner, the
Information would have to state particularly
the intimate relationship between the
offense charged and the accused public
officers office to vest jurisdiction on the
Sandiganbayan. This is not the case here.
The law restrains the liberty of a prisoner

and puts him under the custody and


watchful eyes of his jail guard. Again, the
two-fold duties of a jail guard are to insure
the safe
custody and
proper confinement of persons detained in
the jail. The law restricts access to a
prisoner. However, because of the very
nature of the work of a jail guard, he has
access to the prisoner. Crisostomo, as the
jail guard, could not have conspired with
the inmates to murder the detention
prisoner in his cell if Crisostomo were
not a jailer.
The Information accused Crisostomo of
murdering a detention prisoner, a crime that
collides directly with Crisostomos office as a
jail guard who has the duty to insure the
safe custody of the prisoner. Crisostomos
purported act of killing a detention prisoner,
while irregular and contrary to Crisostomos
duties, was committed while he was
performing his official functions. The
Information sufficiently apprised Crisostomo
that he stood accused of committing the
crime in relation to his office, a case that is
cognizable by the Sandiganbayan, not the
Regional Trial Court. There was no
prejudice to Crisostomos substantive rights.
Assuming that the Information failed to
allege that Crisostomo committed the crime
in relation to his office, the Sandiganbayan
still had jurisdiction to try the case. The
Information
was
filed
with
the
Sandiganbayan
on
19
October
1993. Deloso v. Domingo,[8] promulgated
on 21 November 1990, did not require that
the information should allege that the
accused public officer committed the
offense in relation to his office before the
Sandiganbayan could assume jurisdiction
over the case. The ruling in Deloso v.
Domingo relied solely on PD 1606.
Aguinaldo v. Domagas,[9] promulgated on
26 September 1991, modified Deloso v.
Domingo. Aguinaldo v. Domagas clarified
that offenses specified in Section 4(a)(2) of
PD 1606, as amended by PD 1861, must be
committed by public officers and employees
in relation to their office and the information
must allege this fact. The succeeding cases
ofSanchez v. Demetriou[10] and Natividad

v.
Felix,[11] reiterated
the Aguinaldo v.
Domagas ruling.
However, despite the subsequent cases
clarifying Deloso v. Domingo, the Court
in Republic v. Asuncion,[12]promulgated on
11 March 1994, applied the ruling in Deloso
v. Domingo. Since the effects of the
misapprehension
ofDeloso
v.
Domingo doctrine were still persistent, the
Court set out the following directives
in Republic v. Asuncion:
The dismissal then of Criminal Case No. Q-9123224 solely on the basis of Deloso vs.
Domingo was erroneous. In the light
ofAguinaldo and Sanchez, and considering the
absence of any allegation in the information
that the offense was committed by private
respondent in relation to his office, it would
even appear that the RTC has exclusive
jurisdiction over the case. However, it may yet
be true that the crime of homicide charged
therein was committed by the private
respondent in relation to his office, which fact,
however, was not alleged in the information
probably because Deloso vs. Domingo did not
require such an allegation. In view of this
eventuality and the special circumstances of
this case, and to avoid further delay, if not
confusion, we shall direct the court a quo to
conduct a preliminary hearing in this case to
determine whether the crime charged in
Criminal Case No. Q-91-23224 was committed
by the private respondent in relation to his
office. If it be determined in the affirmative,
then it shall order the transfer of the case to the
Sandiganbayan which shall forthwith docket
and proceed with the case as if the same were
originally filed with it. Otherwise, the court a
quo shall set aside the challenged orders,
proceed with the trial of the case, and render
judgment thereon.
Republic v. Asuncion ordered the trial
court to conduct a preliminary hearing to
determine whether the accused public
officer committed the crime charged while
performing his office. If so, the trial court
must order the transfer of the case to the
Sandiganbayan as if the same were
originally filed with the Sandiganbayan.

In the present case, the Information was


filed with the Sandiganbayan upon the
recommendation of the Office of the Deputy
Ombudsman in a Resolution dated 30 June
1993. That Crisostomo committed the crime
in relation to his office can be gleaned from
the Deputy Ombudsmans resolution as it
stated that: (1) Crisostomo was the jail
guard on duty at the time that Renato was
killed; (2) from the time that Crisostomo
assumed his duty up to the discovery of
Renatos body, no one had entered the jail
and no one could enter the jail, as it was
always locked, without the permission of the
jail guard; (3) the key is always with the jail
guard; (4) Renato sustained severe and
multiple injuries inflicted by two or more
persons indicating conspiracy; and (5) the
relative position of the jail guard to the cell is
in such a way that any activity inside the cell
could be heard if not seen by the jail guard.
Based on the foregoing findings, as well as
on the Deloso v. Domingo ruling and the
Courts
instructions
in Republic
v.
Asuncion, the Sandiganbayan had every
reason to assume jurisdiction over this
case. Crisostomo waited until the very last
stage of this case, the rendition of the
verdict,
before
he
questioned
the
Sandiganbayans jurisdiction. Crisostomo is
already estopped from questioning the
Sandiganbayans jurisdiction.[13]
Crisostomos Guilt was not Proven
Beyond Reasonable Doubt
In the exercise of the Courts judicial
discretion, this petition for certiorari will be
treated as an appeal from the decision of
the Sandiganbayan to prevent the manifest
miscarriage of justice[14] in a criminal case
involving a capital offense. An appeal in a
criminal case opens the entire case for
review.[15] The reviewing tribunal can correct
errors though unassigned in the appeal, or
even reverse the lower courts decision on
grounds other than those the parties raised
as errors.[16]
In this case, the prosecution had the burden
to prove first, the conspiracy to murder
Renato,
and
second,
Crisostomos
complicity
in
the
conspiracy.
The
prosecution must prove that Renatos death

was not the result of suicide but was


produced by a deliberate intent to kill him
with the attendant circumstances that would
qualify the killing to murder. Since
Crisostomo had no direct hand in the killing
of Renato, the conviction could only be
sustained if the murder was carried out
through a conspiracy between Crisostomo
and his co-accused, the inmates. It must be
proven beyond reasonable doubt that
Crisostomos action and inaction were all
part of a scheme to murder Renato.
Renato was Killed with Deliberate Intent
To prove that Renatos death is a case of
homicide or murder, there must be
incontrovertible
evidence,
direct
or
circumstantial, that he was deliberately
killed.[17] Intent to kill can be deduced from
the weapons used by the malefactors, the
nature, location and number of wounds
sustained by the victim and the words
uttered by the malefactors before, at the
time or immediately after the killing of the
victim.[18] If the victim dies because of a
deliberate act of the malefactor, intent to kill
is conclusively presumed.[19]
The prosecution established that Renato did
not commit suicide. Witnesses for the
prosecution vouched that Renato was in
good health prior to his death. Calingayan,
the sole witness for the defense, did not
point out that there was any thing wrong
with Renato prior to his death. The autopsy
and exhumation reports debunked the
defenses theory that Renato hanged himself
to death. Renatos injuries were so massive
and grave that it would have been
impossible for these injuries to have been
self-inflicted by Renato.
The extent of Renatos injuries indicates the
perpetrators deliberate intent to kill him. Dr.
Ruben M. Agobung (Dr. Agobung), the NBI
Medico Legal Officer[20] who exhumed and
re-autopsied Renatos body, stated in his
affidavit[21] that Renato sustained several
external and internal injuries, the most
significant of which are the ruptured liver,
torn messentery and torn stomach. The
injuries caused massive intra-abdominal
hemorrhage that ultimately caused Renatos
death. Dr. Agobung further declared that

Renatos injuries could bring about death in


a matter of minutes to a few hours from the
time of infliction, if not promptly and properly
attended to by a competent surgeon.
Renatos internal injuries were so severe
that the injuries could not have been
sustained prior to his detention at the
Solano Municipal Jail. If this were so,
Renato would have experienced continuous
and severe body pains and he would have
fallen into shock, which could have been
obvious even to those who are not doctors.
Dr. Agobung also concluded that Renatos
injuries could have been inflicted by the
application of considerable force with the
use of a hard and rough surface as well as
hard smooth surface instruments, fist blows
included.
While the blanket that was tied around
Renatos neck caused abrasion and
contusion on the neck area, these injuries,
however, did not cause Renatos death
because the blood vessels on his neck were
still intact.[22] The Exhumation Report[23] and
Exhumation Findings[24] stated that Renato
died due to hemorrhagic shock, secondary
to multiple internal organ injuries. These
findings lead to the inevitable conclusion
that Renato was killed with deliberate intent
and his body was hanged just to simulate
suicide.
Prosecution Failed to Prove Crisostomos
Involvement in the Killing
No direct evidence linked Crisostomo to the
killing of Renato. The prosecution relied on
circumstantial evidence to prove that there
was a conspiracy to kill Renato and
Crisostomo participated in carrying out the
conspiracy.
Circumstantial
evidence
consists of proof of collateral facts and
circumstances from which the existence of
the main fact may be inferred according to
reason and common experience. [25] Section
4, Rule 133 of the Revised Rules of
Evidence
states
that
circumstantial
evidence is sufficient if: (a) there is more
than one circumstance; (b) the facts from
which the inferences are derived are
proven; (c) the combination of all the
circumstances is such as to produce a
conviction beyond reasonable doubt.

In
convicting
Crisostomo,
the
Sandiganbayan
cited
the
following
circumstantial evidence:
1. The deceased, Renato Suba, was brought to
the police station on the night of February 13,
1989 for investigation for allegedly hitting the
head of a certain Diosdado Lacangan; and that
after investigation, the deceased was brought
to the detention cell (tsn, hearing of April 21,
1994, pp. 5-11).
2. On the following day at 5:00 oclock in the
afternoon, the deceased was visited by his
brother, Rizalino Suba; that the deceased asked
his brother to bring him a blanket, toothbrush,
clothes and foods (ibid, pp. 13-14).
3. Rizalino Suba left the municipal jail on
February 14, 1989, at almost 5:20 p.m., while
his other brother, Rolando, brought the things
to the deceased in jail; and that Rolando left
their house at about 5:30 p.m. and came back
at 6:00 oclock in which Rizalino asked him
(Rolando) if he (Renato Suba) was able to finish
the food that he sent and he answered in the
affirmative (ibid, pp. 16, 18-19).
4. At that time, the deceased was in good
health and in good condition and that he was
not complaining anything about his body; and
that the deceased was then 26 years old, single
and had finished advance ROTC and worked in a
logging concession (ibid, pp. 16-18).
5. Accused Mario Calingayan saw the deceased
still alive lying down after 6:00 p.m. when he
was about to take a bath; and that after taking a
bath, he (witness) went to his cell and played
cards with his three (3) cellmates (whose names
he could not recall) for about four (4) hours
(tsn, hearing of April 4, 1995, pp. 16-17).
6. At around 9:00 oclock of the same day, Mr.
Baldovino, a barangay councilman, informed
them that they should go to the municipal
building as per request of the policemen; that
Rizalino Suba, first asked his uncle David Suba
and Manuel Rollo, a barangay councilman, to
accompany him; that they arrived at the
municipal building at 9:10 p.m. and they saw
that the deceased was already lying dead on the
cement floor outside the cell 1 in the municipal

building (tsn, hearing of April 21, 1994, pp. 2022).


7. Accused Mario Calingayan was detained with
five (5) others at the second cell among four (4)
cells in the jail; that the deceased, Renato Suba,
was detained alone at the third cell (tsn,
hearing of April 4, 1995, pp. 6-7).
8. The four (4) cells, although having their own
separate doors, made of iron grills and
equipped each with a padlock, were always
open; that it was up to them whether to close
the doors; that the keys of the padlocks are
held by the guard; and that any detention
prisoner could go to any cell inside the prison
(ibid, pp. 7-8, 21, 23).
9. There was a common door located in front,
leading inside to the cells which no one could
enter because it is padlocked, except with the
jail guards permission; and that the comfort
room is located in the 4th cell which is not
equipped with a padlock so that if you want to
go to the comfort room, you do not anymore
need the key in the office of the jail guard (ibid,
p. 22).
10. There is only one guard assigned in the cells
and accused Edgar Crisostomo was the one who
was rendering duty at the time of the death of
the victim (ibid, pp. 9, 13).
11. There was no other person who was
admitted on February 12, 13 and 14, 1989, and
there was no instance when Suba was brought
out of the prison cell from the time he was
detained on February 14, 1989 (ibid, p. 29).
12. The persons who were detained together
with the deceased at the time of his death were
released without any investigation having been
conducted by the local police (tsn, hearing of
April 21, 1994, pp. 28-29).
13. The apparent inconsistency in the list of
detainees/prisoners dated February 20, 1989
(Exhibit I) and the police blotter (Exhibits J and
J-1) whereby in the former there were eight
prisoners on February 14, 1989 including the
victim but only six were turned over by accused
Crisostomo to the incoming jail guard after the
death of the victim; the list contains nine (9)
detainees/prisoners on February 15, 1989
which includes the victim, who was then dead,

while the police blotter shows that only six


prisoners were under their custody. Why the
apparent inconsistency?
14. Accused Mario Calingayans claim that he
was detained on February 12, 1989, which is
contrary to the master list of detainees showing
that he was detained only on February 14, 1989
(tsn, hearing of April 4, 1995, p. 19).
15. Accused Mario Calingayans allegation that
when Renato Suba was brought outside, he saw
that he hanged himself with a thin blanket (tsn,
hearing of April 4, 1995, pp. 12-13) which was
what the policemen also told the brother of the
victim (tsn, hearing of April 21, 1994, pp. 23-24).
16. After the prosecution rested its case and
after co-accused Mario Calingayan was finished
with his testimony in court, accused Edgar
Crisostomo jumped bail and up to this day had
remained at large (Rollo, pp. 297-298, 305).
17. The fact that accused Dominador C. Dela
Cruz, Efren M. Perez, Raki T. Anggo, Randy A.
Lumabo and Rolando M. Norberte are also still
at-large.[26]
The Sandiganbayan also relied on the
Memorandum Report[27] dated 22 October
1991 of Oscar Oida, then National Bureau
of Investigation (NBI) Regional Director for
Region II, who evaluated the NBIs
investigation
of
the
case.
The
Sandiganbayan quoted the following
portions of the report:
xxx
5. That when he [victim] was brought to the
Solano Municipal Jail at around 12:00
midnight on 14 February 1989 (the same
was corrected by witness Oscar Oida to be
February 13, 1989 when he testified in open
court), he was accompanied by his brother,
Rizalino Suba, his cousin, Rodolfo Suba
and Brgy. Councilman Manuel Rulloda in
good physical condition with no injuries[;]
6. That when Luis Suba, father of the victim,
Renato Suba, visited him in jail at around
8:00 a.m., on February 14, 1989 and
brought food for his breakfast, he was in
good physical condition, and did not
complain of any physical injury or pain. In
fact, he was able to eat all the food[;]

7. That when Rizalino Suba, brother of the


victim, visited the latter at around 5:00
oclock p.m. on 14 February 1989, victim
was in good spirit and never complained of
any injury or bodily pain. He was in good
physical condition. He even requested that
he be brought his clothes, beddings and
food[;]
8. That when Rolando Suba, another
brother of victim, brought the clothes,
bedding and food as requested by the latter
at around 6:00 oclock p.m. on 14 February
1989, he was in good physical condition and
did not complain of any injury or body pain[;]
9. That the good physical condition of
victim, Renato Suba was even corroborated
by his four co-inmates, namely, Arki Anggo,
Randy A. Lumabo, Rolando M. Norberte
and Mario B. Calingayan and by the jailer,
Pat. Edgar T. Crisostomo, when he was
placed under detention in the Solano
Municipal Jail;
10. That the jailer Pat. Edgar Crisostomo
from the time he assumed his tour of duty
from 4:00 oclock p.m. on 14 February 1989,
up to the time the victim was discovered
allegedly dead and hanging inside the jail at
9:00 oclock p.m. on that same day, nobody
entered the jail and no one would enter said
jail, as it was always locked, without the
permission of the jailer. The key is always
with the jailer;
11. That the only companions of the victim
at the time of the discovery of his death on
14 February 1989 at around 9:00 p.m. were
his six (6) co-inmates namely: Dominador
C. dela Cruz, Edren M. Perez, Raki T.
Anggo, Randy A. Luma[b]o, Rolando M.
Norbert[e] and Mario Calingayan;
12. That definitely the cause of death was
not suicide by hanging but due to several
injuries sustained by the victim. The most
significant and remarkable of which are the
ruptured liver, torn messentery and a torn
stomach which injuries resulted into
massive intra-abdominal hemorrhage that
ultimately caused the death of said victim
per autopsy examination;
13. That said injuries can bring about death
in a matter of minutes to a few hours if not

promptly and properly attended by a


competent surgeon;
14. That said injuries could not have been
sustained by victim before he was detained
at the Solano Municipal Jail as he could
have been experiencing continuous severe
pain which can easily be observed by the
policemen who arrested him on 14 February
1989 at around 12:00 midnight and
therefore should have been brought to the
hospital and not confined in the detention
cell;
15. That the several injuries sustained by
victim were caused by hard rough-surfaced
as well as hard smooth surfaced
instruments, fist blows included;
16. That the multiple injuries and the gravity
of the injuries sustained by victim indicate
that they were inflicted by more than two
persons;
17. That the nature of the injuries sustained
by victim were almost in one particular part
of the body, shown by the fact that the
internal organs badly damaged were the
liver, messentery and stomach indicating
that the victim was defenseless and
helpless thus affording the assailants to
pounce on continuously with impunity
almost on one spot of the body of the victim.
The victim could have been held by two or
more assailants while the others were
alternately or giving victim blows on his
body with hard rough surfaced as well as
hard smooth surfaced instruments, fist
blows included;
18. That with the location and gravity of the
injuries sustained by victim, the persons
who inflicted the injuries know fully well that
victim will die and knew the consequences
of their acts;
19. That the motive was revenge, as victim
before he was killed, hit in the head a
certain Diosdado Lacangan with a wood
causing serious injury. Lacangan was in
serious condition at the time victim was
killed[;]
20. That the claims of the Solano police and
the six (6) co-inmates of victim that the latter
committed suicide by hanging is only a
cover up to hide a heinous offense[;]

21. That the extreme silence of the suspects


regarding the death of victim is so deafening
that it established only one thing,
conspiracy. It is unusual for a person not to
volunteer information as to who could be the
author of the offense if he is not a
participant to a heinous offense particularly
in this case where the circumstances show
that there can be no other person
responsible for the death of the victim
except the suspects in this instant case[;]
22. That the victim was killed between 6:00
PM to 9:00 PM on 14 February 1989 inside
the Solano Municipal Jail[;]
xxx
The relative position of the jailer to the cell
where victim was killed was such that the jailer
and the policemen present, could hear if not
see what was going inside the cell at the time
the victim was killed. The injuries sustained by
victim could not be inflicted without victim
shouting and crying for help. Even the assailants
when they inflicted these injuries on victim
could not avoid making loud noises that could
attract the attention of the police officers
present. Conspiracy to kill the victim among the
inmates and the police officers was clearly
established from the circumstances preceding
and after the killing of victim.[28]
In sum, the Sandiganbayan believed that
Crisostomo took part in the conspiracy to kill
Renato
because
of
these
three
circumstances: 1) Crisostomo as the jail
guard on duty at the time of Renatos killing
had in his possession the keys to the main
door and the cells; (2) Crisostomo was in
such a position that he could have seen or
heard the killing of Renato; and (3) there are
discrepancies
between
the
list
of
detainees/prisoners and the police blotter.
According to the Sandiganbayan, there is
a prima facie case against Crisostomo.
Except for the extensive injuries that
Renatos body bore, there is no other
evidence that proves that there was a prior
agreement between Crisostomo and the six
inmates to kill Renato. In People v.
Corpuz,[29] one of the inmates killed by the
other inmates sustained stab wounds that
were possibly inflicted by ten persons. The

Court ruled that conspiracy could not be


inferred from the manner that the accused
inmates attacked their fellow inmate
because there was no sufficient showing
that all the accused inmates acted pursuant
to a previous common accord. Each of the
accused inmates was held liable for his
individual act.
Although no formal agreement is necessary
to establish conspiracy because conspiracy
may be inferred from the circumstances
attending the commission of the crime, yet
conspiracy must be established by clear
and convincing evidence.[30] Even if all the
malefactors joined in the killing, such
circumstance alone does not satisfy the
requirement of conspiracy because the rule
is that neither joint nor simultaneous action
is per
se sufficient
proof
of
conspiracy.[31]Conspiracy must be shown to
exist as clearly and convincingly as the
commission of the offense itself.[32]
Thus, even assuming that Renato was
simultaneously attacked, this does not
prove conspiracy. The malefactors who
inflicted the fatal injuries may have intended
by their own separate acts to bring about
the death of the victim.[33] No evidence was
presented to show that Crisostomo and the
inmates planned to kill Renato or that
Crisostomos overt acts or inaction facilitated
the alleged plan to kill Renato. The
prosecution had the burden to show
Crisostomos intentional participation to the
furtherance of the common design and
purpose.
The pieces of circumstantial evidence are
not sufficient to create a prima facie case
against Crisostomo. When the three
circumstances are examined with the other
evidence on record, it becomes all the more
clear that these circumstances do not lead
to a logical conclusion that Crisostomo lent
support to an alleged conspiracy to murder
Renato.
First, while Crisostomo as jail guard had in
his possession the keys to the main door
and individual cells, there is no proof that
Crisostomo allowed an outsider inside the
prison. Calingayan, the sole witness for the
defense, testified that no new detainee was

admitted from 13 to 14 of February


1989.[34] The NBI Report[35] relied upon by
the Sandiganbayan confirms Calingayans
testimony that nobody entered the jail and
that Renatos only companions inside the jail
were the six inmates.[36]
There is also no proof that Crisostomo
purposely left the individual cells open to
allow the inmates to attack Renato who was
alone in the third cell. Calingayan, who was
detained ahead of Renato,[37] testified that
while each of the four cells had a padlock,
the cells had always been kept open. [38] The
inmates had always been allowed to enter
the cells and it was up to the inmates to
close the doors of the cells.[39] The inmates
could freely go to the fourth cell, which was
the inmates comfort room so that they
would no longer ask for the key from the jail
guard every time the inmates would use the
comfort room.[40]
Second, the Sandiganbayan should not
have absolutely relied on the NBI
Report[41] stating that Crisostomo as jail
guard was in such a position that he could
have seen or heard the killing. The
prosecution failed to establish that
Crisostomo actually saw and heard the
killing of Renato.
Based on Calingayans testimony, it was not
impossible for Crisostomo not to have
actually seen and heard the killing of
Renato. On cross-examination, Calingayan
testified that all of the cells were in one
line.[42] Crisostomos office was at the left
side of the cells about 15 meters away from
cell number two, the cell where Calingayan
was detained.[43] Hollow blocks from the
floor to the ceiling separated each of the
four cells.[44] With the partition, an inmate in
one cell could not see what was happening
in the other cells.[45] Calingayan further
testified that Renatos body was in a dark
place,[46] as it was lighted from outside only
by a bulb at the alley, at the corridor.[47]
Since Renatos body was found in cell
number four, this would make the distance
between Crisostomos office and the crime
scene more than 15 meters. Crisostomo
could not have had a full view of cell
number four because of the distance

between Crisostomos office and cell


number four, the partitions of the four cells
and poor lighting in the jail.
Calingayans description of the jail, the cells,
the location of Renatos body and
Crisostomos actual position was not
contradicted by the prosecution. There is no
other evidence on record that describes the
layout and conditions of the jail at the time
of Renatos death.
The prosecution had the burden to present
evidence that Crisostomo indeed saw and
heard Renatos killing and Crisostomo
consented to the killing as part of the plan to
kill Renato. The absence of such evidence
does not preclude the possibility that
Renato was covertly killed and the sounds
were muffled to conceal the crime from
Crisostomo, the jail guard. Or Crisostomo
as jail guard was simply negligent in
securing the safety of the inmates under his
custody. If Crisostomo were negligent, this
would be incompatible with conspiracy
because negligence denotes the absence of
intent while conspiracy involves a meeting
of the minds to commit a crime.[48] It was the
prosecutions burden to limit the possibilities
to only one: that Crisostomo conspired with
the inmates to kill Renato. The prosecution
failed to do so.
Third, the prosecution was not clear as to
the implication of the discrepancies between
the list of detainees/prisoners and police
blotter to the conspiracy to murder Renato.
The prosecution did not even pinpoint which
of the two documents is the accurate
document. The prosecution merely asked:
why the apparent inconsistency? [49]
Courts must judge the guilt or innocence of
the accused based on facts and not on
mere
conjectures,
presumptions
or
suspicions.[50] The inconsistency between
the two documents without anything more
remains as merely that an inconsistency.
The inconsistency does not even have any
bearing on the prosecutions conspiracy
theory. The NBI Report and Calingayans
testimony stated that six inmates were with
Renato inside the jail. This was also the
same number of inmates turned over by

Crisostomo to the incoming jail guard after


Renatos death.[51]
The alleged motive for Renatos killing was
to avenge the attack on Lacangan who was
then in a serious condition because Renato
hit him on the head with a piece of wood.
No evidence was presented to link
Crisostomo to Lacangan or to show what
compelling motive made Crisostomo, a jail
guard, abandon his duty and instead
facilitate the killing of an inmate under his
custody. Motive is generally held to be
immaterial because it is not an element of
the crime.[52]However, motive becomes
important when the evidence on the
commission of the crime is purely
circumstantial or inconclusive.[53] Motive is
thus vital in this case.
Clearly, the Sandiganbayan had no basis to
convict Crisostomo because the prosecution
failed to produce the evidence necessary to
overturn the presumption of innocence. The
insufficiency of evidence was the same
reason why the National Police Commission
dismissed the administrative case for grave
misconduct (murder) against Crisostomo on
24 October 1990.[54] The circumstances in
this case did not constitute an unbroken
chain that would lead to a reasonable
conclusion that Crisostomo played a role in
the inmates supposed preconceived effort
to kill Renato. Thus, Crisostomo must be
acquitted.
The deafening silence of all of the accused
does not necessarily point to a conspiracy.
In the first place, not all of the accused
remained silent. Calingayan put himself on
the witness stand. Calingayan further
claimed that the Solano police investigated
him and his handwritten statements were
taken the morning following Renatos
death.[55] Secondly, an accused has the
constitutional right to remain silent and to be
exempt from being compelled to be a
witness against himself.[56]
A judgment of conviction must be
predicated on the strength of the evidence
for the prosecution and not on the
weakness of the evidence for the
defense.[57] The circumstantial evidence in
this case is not sufficient to create

a primafacie case to shift the burden of


evidence
to
Crisostomo.
Moreover,
Calingayans
testimony
inured
to
Crisostomos favor. The supposed waiver of
presentation of evidence did not work
against
Crisostomo
because
the
prosecution failed to prove Crisostomos
guilt beyond reasonable doubt.
In Salvatierra v. CA,[58] upon ruling for the
defendants acquittal, the Court disregarded
the issue of whether the defendants jumped
bail for failing to attend trial and whether
their absence should be considered as flight
and as evidence of guilt. Even with this
ruling in Salvatierra v. CA, which is
applicable to this case, and Crisostomos
failure to question the violation of his right to
procedural due process before the Court,
we
cannot
simply
ignore
the
Sandiganbayans grave abuse of discretion.
The records show that the Sandiganbayan
set the hearing of the defenses presentation
of evidence on 21, 22 and 23 June 1995.
The 21 June 1995 hearing was cancelled
because of lack of quorum in the regular
membership of the Sandiganbayans
Second Division and upon the agreement of
the parties.[59] The hearing was reset the
next day, 22 June 1995. Crisostomo and his
counsel failed to attend the 22 June 1995
hearing. The Sandiganbayan, on the very
same day, issued an order[60] directing the
issuance of a warrant for the arrest of
Crisostomo and ordering the confiscation of
his surety bond. The order further declared
that Crisostomo had waived his right to
present evidence because of his nonappearance at yesterdays and todays
scheduled hearings.[61] The Sandiganbayan
terminated the trial and gave the parties
thirty days within which to file their
memoranda, after which, with or without the
memoranda, the case would still be deemed
submitted for decision.
The Sandiganbayans error is obvious.
Strictly speaking, Crisostomo failed to
appear only on the 22 June 1995 hearing.
Crisostomos appearance on the 21 June
1995 hearing would not have mattered
because the hearing on this date was

cancelled for lack of quorum of justices in


the Sandiganbayans Second Division.
Under Section 2(c), Rule 114 and Section
1(c), Rule 115 of the Rules of Court,
Crisostomos non-appearance during the 22
June 1995 trial was merely a waiver of his
right to be present for trial on such date
only and not for the succeeding trial
dates.[62] Section 1(c) of Rule 115 clearly
states that:
xxx The absence of the accused without any
justifiable cause at the trial on a particular date
of which he had notice shall be considered a
waiver of his right to be present during that
trial. When an accused under custody had been
notified of the date of the trial and escapes, he
shall be deemed to have waived his right to be
present on said date and on all subsequent trial
dates until custody is regained.
Moreover, Crisostomos absence on the 22
June 1995 hearing should not have been
deemed as a waiver of his right to present
evidence. While constitutional rights may be
waived, such waiver must be clear and must
be coupled with an actual intention to
relinquish the right.[63] Crisostomo did not
voluntarily waive in person or even through
his counsel the right to present evidence.
The Sandiganbayan imposed the waiver
due to the agreement of the prosecution,
Calingayan, and Calingayans counsel.
In criminal cases where the imposable
penalty may be death, as in the present
case, the court is called upon to see to it
that the accused is personally made aware
of the consequences of a waiver of the right
to present evidence.[64] In fact, it is not
enough that the accused is simply warned
of the consequences of another failure to
attend the succeeding hearings. [65] The
court must first explain to the accused
personally in clear terms the exact nature
and
consequences
of
a
waiver.[66] Crisostomo
was
not
even
forewarned. The Sandiganbayan simply
went ahead to deprive Crisostomo of his
right to present evidence without even
allowing Crisostomo to explain his absence
on the 22 June 1995 hearing.

Clearly, the waiver of the right to present


evidence in a criminal case involving a
grave penalty is not assumed and taken
lightly. The presence of the accused and his
counsel is indispensable so that the court
could personally conduct a searching
inquiry into the waiver.[67] Moreover, the
searching inquiry must conform to the
procedure recently reiterated inPeople v.
Beriber,[68] to wit:
1. The trial court shall hear both the
prosecution and the accused with their
respective counsel on the desire or
manifestation of the accused to waive the right
to present evidence and be heard.
2. The trial court shall ensure the attendance of
the prosecution and especially the accused with
their respective counsel in the hearing which
must be recorded. Their presence must be duly
entered in the minutes of the proceedings.
3. During the hearing, it shall be the task of the
trial court to
a. ask the defense counsel a series of
question[s] to determine whether he had
conferred with and completely explained to the
accused that he had the right to present
evidence and be heard as well as its meaning
and consequences, together with the
significance and outcome of the waiver of such
right. If the lawyer for the accused has not done
so, the trial court shall give the latter enough
time to fulfill this professional obligation.
b. inquire from the defense counsel with
conformity of the accused whether he wants to
present evidence or submit a memorandum
elucidating on the contradictions and
insufficiency of the prosecution evidence, if any
or in default thereof, file a demurrer to
evidence with prior leave of court, if he so
believes that the prosecution evidence is so
weak that it need not even be rebutted. If there
is a desire to do so, the trial court shall give the
defense enough time for this purpose.
c. elicit information about the personality
profile of the accused, such as his age, socioeconomic status, and educational background,
which may serve as a trustworthy index of his
capacity to give a free and informed waiver.

d. all questions posed to the accused should be


in a language known and understood by the
latter, hence, the record must state the
language used for this purpose as well as reflect
the corresponding translation thereof in
English.
If no waiver of the right to present evidence
could be presumed from Crisostomos failure
to attend the 22 June 1995 hearing, with
more reason that flight could not be logically
inferred from Crisostomos absence at that
hearing. Crisostomos absence did not even
justify the forfeiture of his bail bond. A bail
bond may be forfeited only in instances
where the presence of the accused is
specifically required by the court or the
Rules of Court and, despite due notice to
the bondsmen to produce him before the
court on a given date, the accused fails to
appear
in
person
as
so
required.[69]Crisostomo was not specifically
required by the Sandiganbayan or the Rules
of Court to appear on the 22 June 1995
hearing. Thus, there was no basis for the
Sandiganbayan to order the confiscation of
Crisostomos surety bond and assume that
Crisostomo had jumped bail.
Prior to his absence on the 22 June 1995
hearing, Crisostomo had regularly attended
the hearings of the case. When it was
Crisostomos turn to present his evidence,
Atty. Anecio R. Guades (Atty. Guades),
Crisostomos former counsel, instructed
Crisostomo to wait for the notice of hearing
from him and the Sandiganbayan.
Crisostomo did not receive any notice from
the Sandiganbayan or from Atty. Guades
who
disappeared
without
informing
Crisostomo of his new office address. Upon
notification of the promulgation of the case
scheduled on 28 November 2000,
Crisostomo voluntarily appeared before the
Sandiganbayan.
Crisostomo
then
terminated the services of Atty. Guades and
engaged the services of another counsel. In
the omnibus motion for new trial filed by
Crisostomos new counsel, Crisostomo
denied that he went into hiding. If given the
chance, Crisostomo would have presented
his pay slips and certificates of attendance

to prove that he had been reporting for work


at the Police Station in Solano, Nueva
Vizcaya.[70]
We could not absolutely fault the
Sandiganbayan for not correcting its 22
June 1995 Order. The Sandiganbayan lost
the opportunity to review the order when
Crisostomos new counsel changed his legal
strategy by withdrawing the omnibus motion
for new trial and instead sought the
nullification of the Sandiganbayans decision
for lack of jurisdiction over the case.
However, the withdrawal of the omnibus
motion could not erase the Sandiganbayans
violation of Crisostomos right to procedural
due process and Atty. Guades gross
negligence. Atty. Guades failed to protect
his clients interest when he did not notify
Crisostomo of the scheduled hearings and
just vanished without informing Crisostomo
and the Sandiganbayan of his new office
address. The 22 June 1995 Order was
served on Atty. Guades but he did not even
comply with the directive in the Order to
explain in writing his absence at the 21 and
22 June 1995 hearings. Atty. Guades did
not file the memorandum in Crisostomos
behalf required by the same Order. Atty.
Guades did not also question the violation
of Crisostomos right to procedural due
process. The subsequent notices of hearing
and promulgation were not served on Atty.
Guades as he could not be located in the
building where his office was located. [71]
Clearly, Atty. Guadess negligence was so
gross that it should not prejudice
Crisostomos constitutional right to be
heard,[72] especially in this case when the
imposable penalty may be death. At any
rate, the remand of the case is no longer
necessary.[73] The prosecutions evidence
failed to overturn the constitutional
presumption of innocence warranting
Crisostomos acquittal.
The
Sandiganbayan
imposed
an
indeterminate sentence on Crisostomo. The
Indeterminate Sentence Law (ISL) is not
applicable to persons convicted of offenses
punished with the death penalty or reclusion
perpetua.[74] Since Crisostomo was accused
of murder, the penalty for which is reclusion

temporal in its maximum period to death,


the Sandiganbayan should have imposed
the penalty in its medium period since it
found no aggravating circumstance. [75]The
medium period of the penalty is reclusion
perpertua.
Calingayan must be also Acquitted
The Sandiganbayan cited only two
circumstances as evidence of Calingayans
guilt. The Sandiganbayan held that
Calingayans claim that he was detained on
12 February 1989 is contrary to the master
list of detainees showing that Calingayan
was
detained
on
14
February
1989.[76] Second is Calingayans allegation
that when Renato Suba was brought
outside, he saw that he hanged himself with
a thin blanket, which was what the
policemen also told the brother of the
victim.[77] The Sandiganbayan did not
elaborate on this circumstance. The
Sandiganbayan was apparently suspicious
of Renatos knowledge of the material that
was used to hang Renato.
Renato could have been killed by two or
more inmates or possibly even by all of the
inmates. However, since no conspiracy was
proven to exist in this case, the perpetrators
of the crime needed to be identified and
their independent acts had to be
proven.[78] The two circumstances that were
held against Calingayan are not sufficient
proof that Calingayan was one of the
inmates who
killed
Renato.
Thus,
Calingayan must be also acquitted.
Section 11(a) of Rule 122 of the Rules of
Court provides that [a]n appeal taken by
one or more [of] several accused shall not
affect those who did not appeal, except
insofar as the judgment of the appellant
court is favorable and applicable to the
latter. In this case, only Crisostomo
questioned the jurisdiction and decision of
the Sandiganbayan. However, the evidence
against Crisostomo and Calingayan are
inextricably linked as their conviction hinged
on the prosecutions unproven theory of
conspiracy. Thus, Crisostomos acquittal,
which is favorable and applicable to
Calingayan, should benefit Calingayan. [79]

WHEREFORE, the Decision of the


Sandiganbayan in Criminal Case No. 19780
convicting
appellant
EDGAR
CRISOSTOMO and co-accused MARIO B.
CALINGAYAN is hereby REVERSED.
EDGAR CRISOSTOMO and co-accused
MARIO B. CALINGAYAN are ACQUITTED
of the crime of murder and ordered
immediately released from prison, unless
held for another lawful cause. The Director
of Prisons is directed to report to this Court
compliance within five (5) days from receipt
of this Decision. No costs.
SO ORDERED.

THIRD DIVISION
[G.R. No. 135222. March 04, 2005]
PETER ANDRADA, petitioner, vs. THE
PEOPLE
OF
THE
PHILIPPINES, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us is a petition for review
on certiorari filed
by
Peter
Andrada,
petitioner, assailing the Decision [1] of the
Court of Appeals dated September 18, 1997
in CA-G.R. CR No. 15851 and its
Resolution[2] dated August 13, 1998.
In an Information dated January 7, 1987,
the Office of the City Prosecutor of Baguio
City charged petitioner with frustrated
murder committed as follows:
That on or about the 24th day of September
1986, in the City of Baguio, Philippines and
within the jurisdiction of this Honorable Court,
the above-named accused with intent to kill,

with evident premeditation and with treachery,


did then and there willfully, unlawfully, and
feloniously attack, assault and hack one
ARSENIO UGERIO on the head twice with a bolo
thereby inflicting upon latter: hacking wound,
head, resulting in 1) skull and scalp avulsion
vertex; 2) depressed comminuted skull fracture,
right parieto occipital with significant brain
laceration; operation done; craniectomy; vertex
debridement; craniectomy; right parieto
occipital; dural repair; debridement, thus
performing all the acts of execution which
would produce the crime of Murder as a
consequence thereof, but nevertheless, the
felony was not consummated by reason of
causes independent of the will of the accused,
that is, by the timely medical attendance
extended to Arsenio Ugerio which prevented
his death.
CONTRARY TO LAW.[3]
When arraigned on February 9, 1987,
petitioner, with the assistance of counsel de
parte, pleaded not guilty to the crime
charged. The hearing of the case ensued.
Evidence for the prosecution shows that on
September 23, 1986, at around 11:30 in the
evening, T/Sgt. Teodolfo Sumabong, of the
defunct Philippine Constabulary (PC), was
resting in the PC barracks at Camp Dado
Dangwa, La Trinidad, Benguet when one
Rommel Alcate called up requesting police
assistance. Alcate claimed that a group of
persons was suspiciously roaming around
his boarding house in Ferguson Street,
Baguio City.
Sgt. Sumabong and two of his companions,
Sgt. Gaces and Cpl. Arsenio Ugerio, went to
Alcetes boarding house, arriving there past
midnight. However, according to Alcate, the
suspicious persons have left.
On their way back to the camp at around
1:15 in the morning, the group dropped by
Morlows Restaurant, Bokawkan Street,
Baguio City, for a snack. They ordered
coffee and sandwiches.
While they were waiting to be served, a
woman passed by their table. While Cpl.
Ugerio was talking to her, a man, later
identified as Peter Andrada, herein

petitioner, approached the former and


scolded him. Sgt. Sumabong, identifying
himself as a PC non-commissioned officer,
advised petitioner to pay his bill and go
home as he was apparently drunk.
Petitioner heeded Sgt. Sumabongs advice
for he paid his bill and left the restaurant
with his companions. While Sgt. Sumabong
was paying his bill, he heard Cpl. Ugerio,
seated about a meter away, moaning in
pain. When Sgt. Sumabong turned around,
he saw Cpl. Ugerio sprawled on the floor.
Petitioner was hacking him on the head with
a bolo. Sgt. Sumabong approached them
but petitioner ran away, followed by a
companion. Sgt. Sumabong chased them
but to no avail.
Upon Sgt. Sumabongs instruction, Sgt.
Gaces brought Cpl. Ugerio, the victim, to
the St. Louis University Hospital. Then Sgt.
Sumabong reported the incident to the
police station at Camdas Road and
thereafter proceeded to the hospital. When
he returned to the police station, he learned
that petitioner was arrested in a waiting
shed at the corner of Camdas Road and
Magsaysay Avenue.
The arresting officers then brought
petitioner back to the restaurant where they
recovered the bolo used in hacking the
victim. Witnesses to the incident were
interviewed by the police and they pointed
to petitioner as the culprit.
Dr. Francisco Fernandez, a neuro-surgery
consultant, found that the victim suffered
two (2) major injuries. The first was a
scalping avulsion, around 5 centimeters
wide, i.e., the chopping off of a part of the
victims skull. The second was a depressed
fracture, about 6 centimeters wide, found on
the right parieto occipital area of the skull.
Either wound, being fatal, would have
caused the death of the victim had it not
been for a timely medical treatment. After
three (3) days, the victim was transferred to
the V. Luna Hospital in Quezon City.
Because of the injuries he sustained, he has
remained incapable to remember or recall
visual stimuli or information.
Petitioner interposed self-defense and
invoked the mitigating circumstance of

voluntary surrender. His version is that he


and one Romy Ramos were drinking beer
with a hospitality girl named Liza inside
Morlows Restaurant, when three military
men occupied the table next to them. They
had pistols tucked in their waists. Without
any warning or provocation, two of the men,
whom he identified as Cpl. Ugerio and Sgt.
Sumabong, approached him, slapped his
face several times and pointed their guns to
his head. They cursed him and threatened
to summarily execute him because he was
so boastful. Cpl. Ugerio then collared him
and dragged him outside the restaurant,
while Sgt. Sumabing followed. Fearful that
he might be killed, petitioner pulled out his
bolo, wrapped in a newspaper, from his
waist and swung it at the two military men.
He did not see if he hit any of them. Then
he ran to his house in Camdas Subdivision.
He checked to see if his mother or
grandmother was at home so either of them
could assist him in surrendering to the
police. But neither was present. On his way
to surrender to the police, he met his mother
accompanied by a policeman. They then
proceeded to the police sub-station at
Magsaysay Avenue where he surrendered.
After hearing, the trial court rendered its
Decision, the dispositive portion of which is
quoted below, thus:
WHEREFORE, premises considered, the Court
finds the accused PETER ANDRADA guilty
beyond reasonable doubt of the crime of
frustrated murder.
The Court hereby sentences him to suffer the
penalty of imprisonment of 8 years and 20 days
as MINIMUM to 14 years, 10 months and 20
days as MAXIMUM; to indemnify the sum of
P3,000.00, representing part of the victims
expenses for medical services and medicine,
and to pay the costs.
SO ORDERED.[4]
On appeal, the Court of Appeals affirmed
with modification the trial courts Decision,
thus:
WHEREFORE, THE DECISION APPEALED FROM IS
HEREBY AFFIRMED WITH THE MODIFICATION
THAT THE APPELLANT IS SENTENCED TO AN
INDETERMINATE PENALTY OF FOUR (4) YEARS

AND
TWO
(2)
MONTHS
OFPRISION
CORRECIONAL, AS MINIMUM, TO EIGHT (8)
YEARS AND TWENTY (20) DAYS OF PRISION
MAYOR, AS MAXIMUM.
SO ORDERED.[5]
The Court of Appeals, in modifying the
imposable penalty, found that petitioner is
entitled to the privileged mitigating
circumstance of minority as he was only 17
years, 9 months and 20 days old at the time
of the incident.
Petitioner then filed a motion for
reconsideration, but this was denied by the
Appellate Court in its Resolution dated
August 13, 1998.
Hence, the instant petition.
The issues for our resolution are: (1)
whether petitioners right to due process was
violated; (2) whether his plea of self-defense
is in order; (3) whether the crime committed
is frustrated murder or frustrated homicide;
and (4) whether he is entitled to any
mitigating circumstance, assuming he is
guilty.
On the first issue, petitioner argues that the
Court of Appeals erred in not holding that
the trial court violated his constitutional right
to due process. He contends that his
counsel:
1. Failed to present all the witnesses who could
have testified that he is innocent of the crime
charged;
2. Failed to present the medical certificate
showing the injuries inflicted upon him by the
victim;
3. Did not notify him to attend the hearing
when Sgt. Sumabong was cross-examined; and
4. Failed to submit a memorandum.
In
sum,
petitioner
ascribes
gross
incompetence or gross negligence to his
counsel.
The Office of the Solicitor General (OSG)
counters that there was no violation of
petitioners right to due process. Petitioner
was represented by counsel of his choice. If
the latters performance and competence fell
short of petitioners expectations, then he
should not blame either the trial court or the
Court of Appeals.

In criminal cases, the negligence or


incompetence of counsel to be deemed
gross
must
have
prejudiced
the
constitutional right of an accused to be
heard.[6]
In the following cases, we held that there
has been gross negligence or incompetence
on the part of counsel for the accused, thus:
In US v. Gimenez,[7] we remanded a
criminal case for new trial when counsel for
an accused inadvertently substituted a plea
of guilty for an earlier plea of not guilty, thus
resulting in the precipitate conviction of his
client.
In Aguilar v. Court of Appeals and
People,[8] we ordered a dismissed appeal
from a conviction for estafa to be reinstated
after it was shown that the failure to file the
appellants brief on time was due to sheer
irresponsibility on the part of appellants
counsel.
In De Guzman v. Sandiganbayan,[9] we
remanded the case for reception of
evidence after counsel for the accused filed
a demurrer to the evidence notwithstanding
that his motion for leave of court was
denied, thus precluding the accused to
present his evidence.
In Reyes v. Court of Appeals,[10] we ordered
a new trial after a showing that counsel for
the accused abandoned her without
explanation.
In People v. Bascuiguin,[11] we held that the
arraignment is not valid. The accused was
not properly represented by counsel de
officio since he merely conferred with his
client for a few minutes and advised him to
plead guilty to the crime of rape with
homicide.
None of the foregoing incidents is present in
the instant case. Instead, records show that
counsel for petitioner actively participated in
the cross-examination of the witnesses for
the prosecution to test their credibility. At
any rate, the fact that he did not choose to
present other witnesses did not affect any of
petitioners substantial rights. Besides, said
counsel might have valid reasons why he
did not call to the witness stand those
witnesses.

We note that petitioner was present during


the hearing. If he believed that his
counsel de parte was not competent, he
could have secured the services of a new
counsel. He did not. Having decided to
retain the services of his counsel during the
entire proceedings, petitioner must be
deemed bound by any mistake committed
by him. For if an accused feels that his
counsel is inept, he should take action by
discharging him earlier, instead of waiting
until an adverse decision is rendered and
thereupon
blame
his
counsel
for
incompetence.[12]
The long-standing rule in this jurisdiction is
that a client is bound by the mistakes of his
lawyer. Mistakes of attorneys as to the
competency of a witness, the sufficiency,
relevancy or irrelevancy of certain evidence,
the proper defense or the burden of proof,
failure to introduce evidence, to summon
witnesses, and to argue the case, unless
they prejudice the client and prevent him
from properly presenting his case, do not
constitute
gross
incompetence
or
negligence.[13]
Having found that petitioners counsel was
not so inept or motivated by bad faith, or so
careless and negligent of his duties as to
seriously prejudice the substantial rights of
petitioner or prevent him from putting up a
proper defense, we hold that he is bound by
the decisions of his counsel regarding the
conduct of the case.[14]
On the second issue, petitioner invokes selfdefense. Hence, it is incumbent upon him to
prove by clear and convincing evidence that
he indeed acted in defense of himself. For
in invoking self-defense, the accused admits
killing or seriously wounding the victim and
thus, has the burden to justify his act. [15] The
requisites of self-defense are: (1) unlawful
aggression; (2) reasonable necessity of the
means employed to repel or prevent it; and
(3) lack of sufficient provocation of the part
of the person defending himself. [16]
We find that the petitioner has not
adequately discharged his burden of
proving the elements of self-defense. The
trial court and the Court of Appeals found
that at the time he hacked the victim, the

latter was still seated while he (petitioner)


was behind him. Indeed, how could there
be an unlawful aggression on the part of the
victim at that instance? Petitioners bare
assertions that the victim slapped him,
poked a handgun at him, and threatened to
salvage him were not duly proved by the
evidence for the defense. Rather, the
prosecution established that it was
petitioner who unexpectedly attacked the
victim from behind. Clearly, the aggressor
was petitioner. Since the first element of
self-defense is not present here, such
defense must fail.
On the third issue, petitioner contends that
assuming he is guilty, he should only be
convicted of frustrated homicide, not
frustrated murder. He insists that treachery
was not present. His hacking the victim was
a spur-of-the-moment act prompted by selfpreservation.
We
are
not
persuaded.
There
is alevosia when the offender commits any
of the crimes against persons employing
means, methods, or forms in the execution
thereof which tend directly and especially to
ensure the execution of the crime without
risk to himself from any defense which the
offended party might make.[17] We agree
with the lower courts that the petitioner
planned to kill the victim with treachery in
mind. At that time, the victim was seated,
having just finished a meal at a late hour.
His back was towards petitioner when the
latter, without warning, hacked him twice on
his head with a bolo. The attack was so
sudden and unexpected that the victim had
no opportunity either to avert the attack or to
defend himself.
Considering that petitioner had performed
all the acts of execution which would have
resulted in the death of the victim, had it not
been for timely medical assistance, a cause
not of the will of the petitioner, and
considering further the presence of
treachery, then, the crime committed is
frustrated murder, not frustrated homicide.
On the fourth issue, petitioner insists that
the mitigating circumstance of voluntary
surrender should have been appreciated in
his favor.

Evidence for the prosecution shows that


petitioner, after attacking the victim, ran
away. He was apprehended by responding
police officers in the waiting shed at the
corner of Cambas Road and Magsaysay
Avenue. For voluntary surrender to be
appreciated,
the
surrender
must
be spontaneous, made in such a manner
that it shows the interest of the accused to
surrender unconditionally to the authorities,
either because he acknowledges his guilt or
wishes to save them the trouble and
expenses that would be necessarily
incurred in his search and capture. [18] Here,
the surrender was not spontaneous.
Anent the modification of the penalty by the
Court of Appeals, the same is in order.
WHEREFORE, the petition is DENIED. The
Decision of the Court of Appeals dated
September 18, 1997 and its Resolution
dated August 13, 1998 in CA-G.R. CR No.
15851 are AFFIRMED. Costs against
petitioner.
SO ORDERED.

Ynares-Santiago,
Carpio, and
Azcuna, JJ.
COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES,
Respondents. Promulgated:
July 29, 2005
x --------------------------------------------------------------------------------------- x
DECISION

YNARES-SANTIAGO, J.:
For review is the Court of Appeals decision in
CA-G.R. CR No. 22860[1] which affirmed the
judgment[2]rendered by the Regional Trial Court
of San Pedro, Laguna, Branch 93,[3] in Crim. Case
No. 0505-SPL finding petitioner Isidro Olivarez
guilty of violating Section 5, Republic Act No.
7610;[4] and
its
resolution
denying
reconsideration thereof.[5]
The case originated from a complaint filed by
the offended party with the Municipal Trial
Court of San Pedro, Laguna which was the basis
upon which an information for violation of R.A.
7610 was filed against Isidro Olivarez, to wit:
The undersigned 4th Assistant Provincial
Prosecution (sic) of Laguna upon a sworn
complaint filed by the private complainant,
CRISTINA B. ELITIONG, hereby accuses ISIDRO
OLIVAREZ of the crime of VIOLATION OF RA
7610, committed as follows:

FIRST DIVISION

ISIDRO OLIVAREZ, G.R. No. 163866


Petitioner,
Present:
Davide, Jr., C.J. (Chairman),
- versus - Quisumbing,

That on or about July 20, 1997, in the


Municipality of San Pedro, Province of Laguna,
within the jurisdiction of this Honorable Court,
said accused actuated by lewd design did then
and there wilfully, unlawfully and feloniously by
means of force and intimidation commit acts of
lasciviousness on the person of one CRISTINA B.
ELITIONG, by touching her breasts and kissing
her lips, against her will, to her damage and
prejudice.

CONTRARY TO LAW.[6]
The established facts of this case are as follows:
... The offended party Cristina Elitiong was a 16year old high school student who with her
brothers were employed by the accused, 64year old Isidro Olivarez, in the making of
sampaguita garlands. For one year she had
been reporting for work during weekends at the
residence of the accused. Within the compound
and at about three armslength from the main
door of the house was her workplace.
At about 11:30 oclock in the morning of July 20,
1997, Cristina, her two brothers Macoy and
Dodong, and one named Liezel were at their
work when the accused who was near the main
door called for her. She dutifully approached
him. The accused asked her if she had told her
mother that he gave her money, and when she
said that she did not, he embraced her and held
her breast. The workers were facing the street
so that the two were not seen. He pulled her to
the kitchen and, closing the kitchen door, kissed
her on the lips. She pushed him away and went
back to her station. Her brother Macoy saw her
crying when she came out of the house. She did
not say a word, but went to the faucet and
washed her face.
The offended party continued to finish the
garlands she was working on, and waited until
the afternoon for her wages. When she arrived
at her home, she first told her mother that she
no longer wished to go back. When pressed for
a reason, she said basta po mama ayaw ko ng
magtuhog. Finally, she told her mother what
happened.

the accused. When Isidro woke up in the early


morning to relieve himself, he saw the girl
sleeping on the sofa. He admonished her to join
her brothers in the basement. He went back to
his room and slept until 8 A.M. Two hours later,
at 10 A.M., he left for the Caltex Service Station
which was only a five minute ride from his
home by tricycle. His daughter Analee Olivarez
was staying in another house in the compound
and attended a morning mass. When she
returned at 10:30 A.M., she no longer saw her
father. Maritess Buen, the laundrywoman, who
was washing clothes outside the kitchen, saw
the accused earlier. By 10 A.M., when she
entered the house, he already left. He returned
by noontime.
The accused testified that he was at the Caltex
station for two and a half hours waiting for the
shipment of flowers from Pampanga. The goods
arrived at 12:15 P.M. He left shortly thereafter
and passed by the market before going home.
He arrived at 12:30 P.M. The next several days
were uneventful for him until his
laundrywoman Maritess told him that there
was a complaint against him at the barangay
office. A meeting took place between him and
the girls family in the presence of the barangay
authorities. The girls mother was demanding
P30,000 for the settlement of the case, but he
refused to cave in and told a barangay official
Jaime Ramos that he would rather see his
accusers in court than give a centavo because
he did not commit the crime.[7]

Aurora Elitiong, the mother, accompanied the


offended party to the San Vicente Barangay Hall
on July 26 to report the incident and give a
statement. Days later, Cristina gave another
statement to the local police.

The trial court found Olivarez guilty of violating


Section 5 of R.A. 7610 and sentenced him to
suffer
an
indeterminate
penalty
of
imprisonment from eight (8) years and one (1)
day of prision mayor as minimum to seventeen
(17) years, four (4) months and one (1) day
of reclusion temporal as maximum, to indemnify
the minor Cristina Elitiong in the amount of
P15,000.00 as moral damages and to pay the
costs.

In the defense version, the offended party and


her brothers had slept overnight in the house of

On appeal, the decision of the trial court [8] was


affirmed by the Court of Appeals. The motion

for reconsideration[9] filed by the accused was


denied.[10] Hence, this petition for review[11] on
the following grounds:

The penalty of reclusion temporal in its medium


period to reclusion perpetua shall be imposed
upon the following:

I. The Honorable Court of Appeals committed


grave abuse of discretion in not holding that the
essential elements in Violation of Section 5,
Article III of Republic Act 7610, which are age of
the offended party and that she is an abused or
exploited child as defined in the law, not having
been
alleged
in
the
Information,
petitioner/accused cannot be found guilty of
said offense and must be acquitted.

...
(b) Those who commit the act of sexual
intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other
sexual abuse: Provided, That when the victim is
under twelve (12) years of age, the perpetrators
shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No.
3815, as amended, the Revised Penal Code, for
rape or lascivious conduct, as the case may
be: Provided, That the penalty for lascivious
conduct when the victim is under twelve (12)
years of age shall be reclusion temporal in its
medium period; ... (Italics supplied)

II. The Honorable Court of Appeals erred and


committed grave abuse of discretion in holding
that
the
Information
charging
petitioner/accused of Violation of Section 5,
Republic Act 7610, but failing to allege the
essential elements of said offense, had
substantially complied with the requirements of
due process for the accused.
III. The Honorable Court of Appeals erred and
gravely abused its discretion in not reversing
the judgment of the trial court convicting the
accused/petitioner and sentencing him to suffer
the penalty of imprisonment for alleged
Violation of Section 5, Republic Act 7610, which
was not alleged in the Information.[12]
Petitioner alleges that his right to be informed
of the nature and cause of the accusation
against him was violated for failure to allege in
the information the essential elements of the
offense for which he is being charged.
Section 5, Article III of R.A. 7610 states:
SEC. 5. Child Prostitution and Other Sexual
Abuse. Children, whether male or female, who
for money, profit, or any other consideration
or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed
to be children exploited in prostitution and
other sexual abuse.

The elements of sexual abuse under Section 5,


Article III of R.A. 7610 are as follows:
1. The accused commits the act of sexual
intercourse or lascivious conduct.
2. The said act is performed with a child
exploited in prostitution or subjected to other
sexual abuse.
3. The child, whether male or female, is below
18 years of age.[13]
Section 32, Article XIII, of the Implementing
Rules and Regulations of R.A. 7610 defines
lascivious conduct as follows:
[T]he intentional touching, either directly or
through clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia,
anus or mouth, of any person, whether of the
same or opposite sex, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the
genitals or pubic area of a person.[14] (Emphasis
supplied)
The first element obtains in this case. It was
established beyond reasonable doubt that
petitioner kissed Cristina and touched her
breasts with lewd designs as inferred from the
nature of the acts themselves and the
environmental circumstances.[15]
The second element, i.e., that the act is
performed with a child exploited in prostitution
or subjected to other sexual abuse, is likewise
present. As succinctly explained in People v.
Larin:[16]
A child is deemed exploited in prostitution
or subjected to other sexual abuse, when the
child indulges insexual intercourse or lascivious
conduct (a) for money, profit, or any other
consideration; or (b) under the coercion or
influence of any adult, syndicate or group. ...

It must be noted that the law covers not only a


situation in which a child is abused for profit,
but also one in which a child, through coercion
or intimidation, engages in lascivious conduct.
(Emphasis supplied)

We reiterated
People:[17]

this

ruling

in Amployo

v.

... As we observed in People v. Larin, Section 5


of Rep. Act No. 7610 does not merely cover a
situation of a child being abused for profit, but
also one in which a child engages in any
lascivious conduct through coercion or
intimidation...
Thus, a child is deemed subjected to other
sexual abuse when the child indulges in
lascivious conduct under the coercion or
influence of any adult. In this case, Cristina was
sexually abused because she was coerced or
intimidated by petitioner to indulge in a
lascivious conduct. Furthermore, it is
inconsequential that the sexual abuse occurred
only once. As expressly provided in Section 3 (b)
of R.A. 7610, the abuse may be habitual or not.
It must be observed that Article III of R.A. 7610
is captioned as Child Prostitution and Other
Sexual Abuse because Congress really intended
to cover a situation where the minor may have
been coerced or intimidated into lascivious
conduct, not necessarily for money or profit.
The law covers not only child prostitution but
also other forms of sexual abuse. This is clear
from the deliberations of the Senate:
Senator Angara. I refer to line 9, who for money
or profit. I would like to amend this, Mr.
President, to cover a situation where the minor
may have been coerced or intimidated into this
lascivious conduct, not necessarily for money or
profit, so that we can cover those situations and
not leave loophole in this section.
The proposal I have is something like this: WHO
FOR MONEY, PROFIT, OR ANY OTHER
CONSIDERATION OR DUE TO THE COERCION OR

INFLUENCE OF ANY ADULT, SYNDICATE OR


GROUP INDULGE, et cetera.
The President Pro Tempore. I see. That would
mean also changing the subtitle of Section 4.
Will it no longer be child prostitution?
Senator Angara. No, no. Not necessarily, Mr.
President, because we are still talking of the
child who is being misused for sexual purposes
either for money or for consideration. What I
am trying to cover is the other consideration.
Because, here, it is limited only to the child
being abused or misused for sexual purposes,
only for money or profit.
I am contending, Mr. President, that there may
be situations where the child may not have been
used for profitor ...
The President Pro Tempore. So, it is no longer
prostitution. Because the essence of prostitution
is profit.
Senator Angara. Well, the Gentleman is right.
Maybe the heading ought to be expanded. But,
still, the President will agree that that is a form
or manner of child abuse.
The President Pro Tempore. What does the
Sponsor say? Will the Gentleman kindly restate
the amendment?
ANGARA AMENDMENT
Senator Angara. The new section will read
something like this, Mr. President: MINORS,
WHETHER MALE OR FEMALE, WHO FOR
MONEY,
PROFIT,
OR
ANY
OTHER
CONSIDERATION OR INFLUENCE OF ANY ADULT,
SYNDICATE OR GROUP INDULGE IN SEXUAL
INTERCOURSE, et cetera.
Senator Lina. It is accepted, Mr. President.
The President Pro Tempore. Is there any
objection? [Silence] Hearing none, the
amendment is approved.

How about the title, Child Prostitution, shall we


change that too?
Senator Angara. Yes, Mr. President, to cover the
expanded scope.
The President Pro Tempore. Is that not what we
would call probable child abuse?
Senator Angara. Yes, Mr. President.
The President Pro Tempore. Subject to
rewording. Is there any objection? [Silence]
Hearing none, the amendment is approved. x x
x. (Italicization supplied)[18]
Petitioner makes much of the failure to allege in
the information that Cristina was a child below
18 years of age at the time the offense was
committed. He insists that the Court of Appeals
mistakenly relied on the case ofPeople v.
Rosare[19] because unlike in Rosare, he had no
personal knowledge of Cristinas age, which he
claims was not proven beyond reasonable
doubt.
In all criminal prosecutions, the accused is
entitled to be informed of the nature and cause
of the accusation against him.[20] A complaint is
sufficient if it states the name of the accused;
the designation of the offense given by the
statute; the acts or omissions complained of as
constituting the offense; the name of the
offended party; the approximate date of the
commission of the offense; and the place where
the offense was committed.[21]
The complaint or information shall state the
designation of the offense given by the statute,
aver the acts or omissions constituting the
offense, and specify its qualifying and
aggravating circumstances. If there is no
designation of the offense, reference shall be
made to the section or subsection of the statute
punishing it.[22] The acts or omissions
complained of as constituting the offense and
the qualifying and aggravating circumstances

must be stated in ordinary and concise language


and not necessarily in the language used in the
statute but in terms sufficient to enable a
person of common understanding to know
what offense is being charged as well as its
qualifying and aggravating circumstances and
for the court to pronounce judgment.[23]
In the present case, the Court of Appeals found
the information to be sufficient. Relying on the
principle laid down in People v. Rosare, it held:

Before us is an information for violation of RA


7610 that, as in Rosare, fails to mention an
indispensable element of the offense, the age
of the offended party, but makes allusion to
another document, the sworn complaint of the
offended party, and declares it to be the basis
upon which the information was filed. This
instrument is the complaint filed by the
offended party with the Municipal Trial Court of
San Pedro, Laguna in which she stated that she
was 16 years old at the time of the offense. It
forms part of the initial records of the case and
comes before the posting of bail and entry of
the plea of not guilty before the RTC. It appears
that after the charge was filed with the MTC,
and as the preliminary investigation went
underway, the accused filed a manifestation
stating that he had filed a counter-affidavit to
the charge and reserved the right to file a
motion to quash the information if it was filed.
The MTC found probable cause against him and
elevated the records to the provincial
prosecutor for filing of the information.
A complaint is under the Rules one of the two
charging instruments for the offense of which
the accused was tried and convicted here.
While the criminal action was instituted by the
complaint of the offended party, the
information signed only by the fiscal ushered in
the formal trial process. But both are
accusations in writing against the accused and
serve the purpose of enabling him to take the
necessary legal steps for his defense. What is
important is that the information states that the

accused is being charged of an offense under


RA 7610 based on the complaint of the
offended party, to which the accused had
adequately responded. Under these conditions,
the accused was fully apprised of the accusation
against him. The purpose and objective of the
constitutional mandate are discharged and
satisfied. The accused may not be said to be
taken by surprise by the failure of the
information to state the age of the offended
party, when he had received the initiatory
complaint where he was told how old the
offended party was.[24]
We agree with the ruling of the Court of
Appeals. In People v. Rosare, the information
did not allege that the victim was a mental
retardate which is an essential element of the
crime of statutory rape. This Court however
sustained the trial courts judgment of
conviction holding that the resolution of the
investigating prosecutor which formed the basis
of the information, a copy of which is attached
thereto, stated that the offended party is
suffering from mental retardation. It ruled that
there was substantial compliance with the
mandate that an accused be informed of the
nature of the charge against him. Thus:
Appellant contends that he cannot be convicted
of statutory rape because the fact that the
victim was a mental retardate was never
alleged in the information and, absent this
element, the acts charged negate the
commission of the offense for which he was
convicted by the lower court.
Pursuant to Section 8, Rule 112 of the Rules of
Court, we have decided to motu proprio take
cognizance of the resolution issued by the
investigating prosecutor in I.S. No. 92-0197
dated June 2, 1992, which formed the basis of
and a copy of which was attached to the
information for rape filed against herein
appellant. Therein, it is clearly stated that the
offended party is suffering from mental
retardation. We hold, therefore, that this
should be deemed a substantial compliance

with the constitutional mandate that an


accused be informed of the nature of the
charge against him. ...[25]
In People v. Villamor,[26] the information failed
to allege the age of the offended party but since
a copy of the order issued by the investigating
judge was attached in the record of the
preliminary investigation clearly stating that the
complainant was nine years old, it was held that
there was substantial compliance with the
mandate to inform the accused of the nature of
the accusation. It was also declared that the
defense cannot invoke the element of surprise
as to deprive it of the opportunity to suitably
prepare for the accuseds defense, thus:
... Furthermore, even if the information filed did
not allege that the complainant was nine years
old, there was substantial compliance with the
constitutional mandate that an accused be
informed of the nature of the charge against
him when the Order issued by the investigating
judge, a copy of which was attached in the
record of the preliminary investigation, clearly
stated that the complainant was nine years old.
Consequently, the defense cannot invoke the
element of surprise as to deprive it of the
opportunity to suitably prepare for the
accuseds defense.[27]
In People v. Galido,[28] the information for rape
failed to allege the element of force or
intimidation. The Court ruled that this omission
is not fatal since the complaint specifically
charged the accused with three counts of rape
committed by means of force and intimidation.
Thus:
Appellant avers that because the Informations
on which he was arraigned and convicted did
not allege the element of force or intimidation,
he was deprived of his constitutional right to be
informed of the nature and cause of the
accusation against him. He insists that such
failure was a fatal defect that rendered the
Informations void.

As a rule, the accused cannot be convicted of an


offense, unless it is clearly charged in the
complaint or information. Otherwise, their
constitutional right to be informed of the
nature and cause of the accusation against
them would be violated.
In the present case, appellant correctly pointed
out that the element of force or intimidation
should have been expressly alleged in the
Informations. This omission is not fatal,
however, because the Complaint specifically
accused him of three counts of rape committed
by means of force and intimidation...[29]
The same ground was adopted in People v.
Mendez[30] which involved an information for
rape that failed to allege force or intimidation.
We ruled therein that it was not a fatal
omission because it was stated in the complaint
that accused Rosendo raped Virginita by means
of force.
In People v. Torellos,[31] the Court treated the
information for rape which failed to allege force
and intimidation as merely defective and that
the deficiency was cured by the failure of the
accused to assail the insufficiency of the
allegations in the Information and by
competent evidence presented during trial.
Thus, while it is necessary to allege the essential
elements of the crime in the information, the
failure to do so is not an irremediable vice.
When the complaint or the resolution by the
public prosecutor which contain the missing
averments is attached to the information and
form part of the records, the defect in the latter
is effectively cured, and the accused cannot
successfully invoke the defense that his right to
be informed is violated.
In the instant case, the missing averment in the
information is supplied by the Complaint which
reads in full:
COMPLAINT

The undersigned complainant, accuses ISIDRO


OLIVAREZ, of the crime of VIOLATION OF RA
7610, committed as follows:
That on or about 11:30 A.M. of July 20, 1997 at
Brgy. San Vicente, San Pedro, Laguna,
Philippines and within the jurisdiction of this
Honorable Court the said accused with lewd
design did then and there willfully, unlawfully
and feloniously commit an act of lasciviousness
against one CRISTINA ELITIONG Y BALDONO, 16
years old, by kissing and touching her private
parts and embracing her against her will.
CONTRARY TO LAW.[32]
Petitioner was furnished a copy of the
Complaint which was mentioned in the
information, hence he was adequately informed
of the age of the complainant. The prosecution
has also established the minority of the
offended party through competent evidence.
Cristina testified that she was 16 years old and a
certification from the Office of the Local
Registrar of San Pedro, Laguna was presented
showing that she was born on October 17,
1980.[33] The third element of sexual abuse is
therefore present.
The information merely states that petitioner
was being charged for the crime of violation of
R.A. 7610 without citing the specific sections
alleged to have been violated by petitioner.
Nonetheless, we do not find this omission
sufficient to invalidate the information. The
character of the crime is not determined by the
caption or preamble of the information nor
from the specification of the provision of law
alleged to have been violated, they may be
conclusions of law, but by the recital of the
ultimate facts and circumstances in the
complaint or information.[34] The sufficiency of
an information is not negated by an incomplete
or defective designation of the crime in the
caption or other parts of the information but by
the narration of facts and circumstances which
adequately depicts a crime and sufficiently

apprise the accused of the nature and cause of


the accusation against him.
True, the information herein may not refer to
specific section/s of R.A. 7610 alleged to have
been violated by the petitioner, but it is all to
evident that the body of the information
contains an averment of the acts alleged to
have been performed by petitioner which
unmistakably refers to acts punishable under
Section 5 of R.A. 7610. As to which section of
R.A. 7610 is being violated by petitioner is
inconsequential. What is determinative of the
offense is the recital of the ultimate facts and
circumstances in the complaint or information.
The prosecution has proved beyond reasonable
doubt that petitioner committed acts of sexual
abuse against Cristina. The trial court found
Cristinas testimony to be clear, candid, and
straightforward.[35] Her testimony, given in a
categorical, straightforward, spontaneous and
candid manner, is worthy of faith and
belief.[36] In the face of the accusations against
him, petitioner could only interpose
uncorroborated alibi and denial. Denial, like
alibi, is an inherently weak defense and cannot
prevail over the positive and categorical
identification provided by eyewitnesses.[37] Not
only did Cristina identify the petitioner as her
assailant but no ill-motive was adduced why she
would impute against him so grave a charge.
This Court will not interfere with the trial courts
assessment of the credibility of witnesses,
absent any indication that some material fact
was overlooked or a grave abuse of discretion
committed. None of the exceptions obtain in
the instant case.[38]
In addition to moral damages, a fine in the
amount of P15,000.00 should likewise be
imposed pursuant to our ruling in Amployo v.
People:[39]
It does not end there. In People v. Abadies, and
with respect specifically to lascivious conduct
amounting to child abuse under Section 5(b) of
Rep. Act No. 7610, we imposed a fine of
P30,000 for each count of lascivious conduct in

addition to the award of moral damages on the


justification that
It will be noted that Section 5, Article II of
Republic Act No. 7610 provides for the penalty
of imprisonment. Nevertheless, Section 31(f),
Article XII (Common Penal Provisions) thereof
allows the imposition of a fine subject to the
discretion of the court, provided that the same
is to be administered as a cash fund by the
Department of Social Welfare and Development
and disbursed for the rehabilitation of each
child victim, or any immediate member of his
family if the latter is the perpetrator of the
offense. This provision is in accord with Article
39 of the Convention on the Rights of the Child,
to which the Philippines became a party on
August 21, 1990, which stresses the duty of
states parties to ensure the physical and
psychological recovery and social reintegration
of abused and exploited children in an
environment which fosters their self-respect
and human dignity.
With the case of Abadies as guidepost, we
impose a fine of Fifteen Thousand Pesos
(P15,000.00) on petitioner.

WHEREFORE, the petition is DENIED. The


decision of the Court of Appeals dated January
9, 2004 in CA-G.R. CR No. 22860 and its
resolution dated June 4, 2004, are AFFIRMED
with MODIFICATION. In addition to the award
of P15,000.00 as moral damages, petitioner
Isidro Olivarez is also ordered to pay a fine in
the amount of P15,000.00.
SO ORDERED.

FIRST DIVISION
[G.R. No. 154363. September 13, 2005]
JOEL P. LIBUIT, petitioner, vs. PEOPLE
OF THE PHILIPPINES, respondent.
DECISION
QUISUMBING, J.:
Before us is the petition for review
on certiorari filed by Joel P. Libuit, seeking
to
reverse
and
set
aside
theDecision[1] dated March 11, 2002, of the
Court of Appeals in CA-G.R. CR No. 22766.
The assailed decision affirmed the
petitioners conviction by the Regional Trial
Court of Lipa City, Branch 85, for estafa as
defined and penalized under Article 315
1(b) of the Revised Penal Code.[2]
The Amended Information filed against the
petitioner reads as follows:
That during the period from May 1993 to
August 31, 1994, at Lipa City, Philippines and
within the jurisdiction of this Honorable Court,
the above-named accused wilfully, unlawfully
and feloniously committed the crime of estafa
in the manner, to wit: sometime in May 1993,
Domingo del Mundo delivered and brought his
car, described as follows: Make & Type Chevy
2dr. HT: Plate No. EDD-725, Motor No. 18R9597750, Chassis No. 1Y17H4W151340 valued
at P60,000.00, to the motor shop located at
Brgy. Sico, Lipa City, and owned and/or
operated by Joel Libuit and Julius Libuit for
repair of its damaged parts, which car was
received by Jose Bautista, then mechanic in the
said motor shop, but accused Joel Libuit, once
in possession of the said car, and far from
complying with his obl[i]gation or duty to make
the appropriate repairs and to return or deliver
the said car as properly repaired to Domingo del
Mundo, with intent to defraud and with abuse
of confidence, wilfully, unlawfully and
feloniously misappropriated, converted and/or
misapplied the said car to his own personal use
and benefit and despite repeated demands to
return the said car to the owner thereof,

accused refused and failed to do so, to the


damage and prejudice of Domingo del Mundo,
owner of the said car, in the amount of
P60,000.00, Philippine Currency.
Contrary to law.[3]
On arraignment, the petitioner, assisted by
counsel, pleaded not guilty.
It appears from the prosecution evidence
that sometime in May 1993, the private
complainant, Domingo del Mundo, brought
his car for repair at the Paeng Motorworks
operated by the petitioner. The car was
received by Jose Bautista, a mechanic, in
the presence of the petitioner who assured
the private complainant that it would be safe
in his motor shop.
When private complainant del Mundo
returned to the motor shop in January 1994,
he saw his car by the roadside while the
engine was inside the shop. Bautista
explained that the engine was pulled out
because
it
also
needed
repairs.
Nevertheless, the petitioner and Bautista
assured him that they would finish the repair
work and deliver the car to del Mundos
house after two weeks. However, the
petitioner failed to deliver the car to the
owner. Private complainant gave him
another two weeks to finish the repairs.
Thereafter, the private complainant returned
to the motor shop and found that his car
was already missing. He reported the matter
to the police, who discovered that the
petitioner had sold the cars differential and
cylinder head, while the engine could no
longer be found.
The petitioner (Libuit) testified on direct
examination. However, his defense counsel,
Atty. Glenn P. Mendoza of De Jesus Linatoc
and Associates, withdrew from the case
after his initial cross-examination.[4] On
motion of the petitioner, the continuation of
his cross-examination was reset to give him
time to engage the services of another
counsel.[5] The petitioner eventually secured
the services of Atty. Jose Dimayuga.
At the subsequent hearings on October 13,
1997, and November 26, 1997, Atty.
Dimayuga failed to appear despite notices.
On motion of the prosecution, the trial court

issued an Order dated November 26,


1997,[6] striking from the records the
petitioners direct testimony and declaring
the case submitted for decision on the basis
of the evidence already on record.
After further proceedings, the trial court
rendered judgment on January 27, 1999,
finding herein petitioner guilty beyond
reasonable doubt of the crime of estafa. The
dispositive portion of the RTC decision
reads:
WHEREFORE,
the
foregoing
premises
considered, judgment is hereby rendered
finding the accused JOEL LIBUIT guilty beyond
reasonable doubt of the crime of Estafa, as the
same is defined and penalized under Article 315
1(b) of the Revised Penal Code, and, with the
application of the Indeterminate Sentence Law,
the Court sentences him to suffer the penalty of
imprisonment ranging from Eight (8) years and
Eight (8) months of Prision Mayor as minimum
to Fourteen (14) years and Ten (10) months of
Reclusion Temporal as maximum. The accused
is moreover ordered to pay Domingo del
Mundo the amount of P60,000.00 representing
the value of the car, plus costs of suit.
SO ORDERED.[7]
On appeal, the Court of Appeals
affirmed in toto the decision of the trial court.
The appellate court gave credence to the
trial courts findings that the elements of the
crime of estafa with abuse of confidence
were present. The private complainants car
was received at the motor shop operated by
the petitioner who was under the obligation
to repair and deliver it to the private
complainants house. Although it was
Bautista, the petitioners mechanic, who
personally received the car, the fact
remained that the petitioner was then
present and even assured the private
complainant that the car would be safe in
his motor shop. Like the trial court, the
Court of Appeals ruled that the private
complainant would not have returned to the
petitioners motor shop after the two-week
extension were it not precisely to demand
for the return of his car.
The Court of Appeals likewise held that the
trial court never deprived the petitioner of

his right to counsel as he was represented


by a counsel de parte, Atty. Glenn P.
Mendoza. When said counsel withdrew, the
trial court allowed the resetting of the
petitioners cross-examination to give him
time to engage the services of another
counsel. It ordered the striking of his
testimony from the records only after his
new counsel failed to appear at the
subsequent hearings.
Before us, the petitioner raises now the
following issues:
I
WHETHER THE COURT OF APPEALS GRAVELY
ERRED WHEN IT DID NOT CONSIDER THAT THE
PROSECUTION FAILED TO PROVE THAT THE
SUBJECT VEHICLE WAS ENTRUSTED TO THE
PETITIONER-ACCUSED.
II
WHETHER THE COURT OF APPEALS GRAVELY
ERRED WHEN IT AFFIRMED THE TRIAL COURTS
FINDING OF GUILT AGAINST THE PETITIONERACCUSED DESPITE THE ABSENCE OF FORMAL
DEMAND FOR THE PETITIONER-ACCUSED TO
FULFILL THE TRUST OR TO RETURN THE THING
RECEIVED.
III
WHETHER THE COURT OF APPEALS GRAVELY
ERRED WHEN IT RULED THAT THE TRIAL COURT
NEVER DEPRIVED THE PETITIONER-ACCUSED OF
HIS CONSTITUTIONAL RIGHT TO COUNSEL.[8]
Simply put: the issues for our resolution are:
(1) Was there sufficient evidence to sustain
the petitioners conviction? (2) Was
petitioner deprived of his right to counsel?
Petitioner argues on the first issue, that the
Court of Appeals committed a reversible
error in convicting him without sufficient
evidence of his guilt. He contends that the
trial court gravely misapprehended the
facts in finding that the elements of estafa
with abuse of confidence, under Article 315
1(b) of the Revised Penal Code, were
present. He stresses that the car was not
entrusted to him and that he had no duty to
deliver it to the private complainant. He
adds that the private complainant did not
demand for the return of his car.
The elements of estafa under Article 315
1(b) of the Revised Penal Code are as

follows: (1) that money, goods, or other


personal properties are received by the
offender in trust, or on commission, or for
administration, or under any other obligation
involving the duty to make delivery of, or to
return, the same; (2) that there is a
misappropriation or conversion of such
money or property by the offender or denial
on his part of such receipt; (3) that such
misappropriation or conversion or denial is
to the prejudice of another; and, (4) that
there is a demand made by the offended
party on the offender.[9]
Based on the evidence, we entertain no
doubt that petitioner operated the Paeng
Motorworks. Private complainant Domingo
del Mundo categorically identified the
petitioner as the owner.[10] There is no
denying that Jose Bautista, to whom the car
was entrusted, was a mechanic in
petitioners shop. Petitioner could not
disclaim responsibility for the return of the
car simply because it was his mechanic who
received it. In fact, when the car was left
with Bautista, the petitioner was present,
and petitioner even assured the private
complainant that it would be safe in his
motor shop.[11]
Even if we give credence to petitioners
allegation that at the time the car was left, it
was Bautista who operated the motor shop
by virtue of a verbal lease with his mother,
he is still liable for estafa. As alleged by the
petitioner himself, Bautista abandoned the
motor shop on October 1993. Yet, he never
denied the fact that when the private
complainant returned to the motor shop in
January 1994, the car and its engine were
still there. By then, the petitioner should
have been put on notice as to the cars
ownership. Notwithstanding this information,
however, petitioner still sold its differential
and cylinder head.
On the issue of demand, it is our view that
demand was properly made when the
private complainant returned to the motor
shop after giving the petitioner a two-week
extension to complete the cars repair. When
the private complainant went to the motor
shop on January 1994, the petitioner
promised to deliver the car after two weeks.

When he failed in his promise, petitioner


was given by the private complainant
another two-week extension. It was only
when the car was still not delivered to the
private complainant, that he went back to
the motor shop again, and finally discovered
that his car was missing there.
Given the circumstances on record, we find
the petitioners acts inexcusable and his
testimony
on
the
witness
stand
unconvincing. Petitioners allegations now
are nothing but a rehash of arguments he
unsuccessfully raised before the trial court
and the Court of Appeals. It must be
stressed that except for the petitioners claim
that he was deprived of his constitutional
right to counsel, all the grounds raised by
him now involve factual issues already
passed upon twice below, and are
inappropriate in a petition for review under
Rule 45, which allows only questions of law
to be raised.
Factual findings and conclusions of the trial
court and the Court of Appeals are entitled
to great weight and respect, and will not be
disturbed on review by us, in the absence of
any clear showing that the lower courts
overlooked certain facts or circumstances
which would substantially affect the
disposition of the case. The jurisdiction of
this Court over cases elevated from the
Court of Appeals is limited to reviewing or
revising errors of law ascribed to the Court
of Appeals. The factual findings of the
appellate court generally are conclusive,
and carry even more weight when said court
affirms the findings of the trial court, absent
any showing that the findings are totally
devoid of support in the record or that they
are so glaringly erroneous as to constitute
grave abuse of discretion.[12]
Now, in this case, the only question of law
properly raised is whether the petitioner was
deprived of his constitutional right to
counsel. In his Reply,[13] petitioner contends
that the trial court should have appointed a
counsel de
oficio when
his
counsel
consistently failed to appear for his crossexamination.
The duty of the court to appoint a
counsel de oficio for the accused who has

no counsel of choice and desires to employ


the services of one is mandatory only at the
time of arraignment. No such duty exists
where the accused has proceeded to
arraignment and then trial with a counsel of
his own choice. Worth noting, when the time
for the presentation of evidence for the
defense arrived, and the defendant
appeared by himself alone, the absence of
his counsel was inexcusable.[14]
In the present case, since the petitioner was
represented by counsel de parte at the
arraignment and trial, the trial court could
not be deemed duty-bound to appoint a
counsel de oficio for the continuation of his
cross-examination. Indeed, after his initial
cross-examination, the trial court granted
the petitioners motion to postpone, giving
him sufficient time to engage the services of
another counsel. The failure of Atty. Jose
Dimayuga, his newly hired lawyer, to appear
at the subsequent hearings without reason
was sufficient legal basis for the trial court to
order the striking from the records of his
direct testimony, and thereafter render
judgment upon the evidence already
presented. In fact, the repeated failure to
appear of defendants counsel at the trial
may even be taken as a deliberate attempt
to delay the courts proceedings.
At the most, the appointment of a
counsel de oficio in a situation like the
present case would be discretionary with
the trial court, which discretion will not be
interfered with in the absence of grave
abuse.[15] This Court is convinced that the
trial court had been liberal in granting
postponements asked by the petitioner
himself. We think that such liberality
removes any doubt that its order was
tainted with grave abuse of discretion.
WHEREFORE, the instant petition is
DENIED. The decision dated March 11,
2002, of the Court of Appeals upholding the
decision of the Regional Trial Court of Lipa
City, Branch 85, in Criminal Case No. 97294 is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.

Cielito Salud, Clerk IV, Mailing Section of the


Judicial Records Division, Court of Appeals (CA)
stands charged with the following offenses:

EN BANC

ASSOCIATE JUSTICE DELILAH A.M. No. CA-0520-P


VIDALLON-MAGTOLIS,
COURT
(Formerly OCA IPI No. 05OF APPEALS, 81-CA-P)
Complainant,
Present:
DAVIDE, JR., C.J.,
PUNO,*
PANGANIBAN,**
QUISUMBING,*
YNARES-SANTIAGO,*
SANDOVAL-GUTIERREZ,
- versus - CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,*
CALLEJO, SR.,
AZCUNA,*
TINGA,
CHICO-NAZARIO, and
GARCIA, JJ.
CIELITO M. SALUD,
CLERK IV, COURT OF APPEALS, Promulgated:
Respondent.
September 9, 2005
x-------------------------------------------------x
DECISION

CALLEJO, SR., J.:

1. Inefficiency and incompetence in the


performance of official duties;
2. Conduct grossly prejudicial to the best
interest of the service; and
3. Directly or indirectly having financial and
material interest in an official transaction,
under Section 22, paragraphs (p), (t) and (u),
Rule XIV of the Omnibus Rules Implementing
the Civil Service Law.[1]

The Facts

Melchor Lagua was found guilty of homicide in


Criminal Case Nos. 118032-H and 118033-H
before the Regional Trial Court of Pasig City,
Branch 163.[2] On appeal, the case was assigned
to the Sixth Division of the Court of Appeals,
docketed as CA-G.R. CR No. 27423. Lagua, who
was then detained at the Bureau of Prisons
National Penitentiary in Muntinlupa City, filed a
Very Urgent Petition for Bail. Finding the
petition well-taken, the appellate court issued a
Resolution on October 9, 2003, directing him to
post a P200,000.00 bond.
Laguas
bond
was
approved
in
a
[3]
Resolution dated November 6, 2003, where
the appellate court also directed the issuance of
an order of release in favor of Lagua. The
resolution was then brought to the Office of the
Division Clerk of Court, Atty. Maria Isabel M.
Pattugalan-Madarang, for promulgation.
Irma Del Rosario, Utility Worker, noticed the
respondents unusual interest in the Lagua case.
The respondent had apparently been making
inquiries whether the appellate court had
already directed the issuance of an order of
release in the said case and was initially told
there was none yet. Due to his persistence, the
records of the case were eventually
found.[4] Atty. Madarang then directed the

typing of the Order of Release Upon Bond,[5]and


to notify the mailing section that there were
orders requiring personal service.[6] At around
4:00 p.m., the respondent then went to Atty.
Madarangs office and assisted in arranging and
stapling the papers for release. He brought the
said resolutions and other papers himself to the
Mailing Section.[7]
On November 7, 2003, the respondent went to
the National Penitentiary to serve the
resolution and order of release in the Lagua
case. The respondent left the prison compound
at around 2:30 p.m.[8]
In the meantime, Atty. Madarang received a
telephone call from a certain Melissa Melchor,
who introduced herself as Laguas relative. It
was about 2:00 p.m. The caller asked her how
much more they had to give to facilitate Laguas
provisional liberty. The caller also told Atty.
Madarang that they had sought the help of a
certain Rhodora Valdez of the Regional Trial
Court (RTC) of Pasig, where the criminal case
originated, but were told that they still had a
balance to be given to Justice Magtolis and Atty.
Madarang through the respondent. Atty.
Madarang then called the said court and asked
to speak to Ms. Valdez, pretending to be Laguas
relative.
What transpired thereafter is contained in Atty.
Madarangs Affidavit dated December 8, 2003,
as follows:
4. That upon telephone queries made with
the office of the Clerk of Court of RTC Pasig, I
learned that Rhodora Valdez is the incumbent
Process Server of RTC, [Branch] 163, Pasig City,
from which the original case against accusedappellant Lagua originated. Disguising myself as
accused-appellant Laguas relative, I dialed
[Branch] 163, RTC, Pasig (6314273) but Rhodora
Valdez did not report for work that day,
according to Baby (also known as Ester), her
officemate (who) answered my call. She added
that Rhodora Valdez has been waiting for us
(Laguas relatives) to call. Her exact words were

these: Wala si Rhodora. Meron lang siyang


nilakad. Pero kahapon pa nya hinihintay ang
tawag nyo. May kulang pa kayo eh. Kailangan
kasing i-en banc sa Court of Appeals ang kaso ni
Lagua.
5. That I coordinated with Ms. Cecil Secarro,
the Acting Chief of the Mailing Section, to
inquire if it was usual/normal for her to text her
process servers on the field for an update of
their deliveries, to which she answered in the
affirmative. While she was in the office, she
texted Salud for his whereabouts and he
replied, that he was on his way back to Quezon
City. That was before 4 p.m., adding that his
deliveries were ok.
6. That I got Saluds mobile phone number
from Ms. Secarro and started texting him at
about the same time Ms. Secarro did. I
represented myself as Arlyn, Laguas relative.
Most of his text messages are still stored in my
mobile phone. In fact, I received one text
message from him while I was at the office of
Justice Magtolis, (the Chairman of the
6th Division and the ponente of C.R. No. 27423)
in the late afternoon of November 7, 2003
while reporting to her this incident. Those
stored in my phone are the following:
1. bkit, C rhodora to. 639204439082. Nov. 2003,
15:36:15
2. CNO KAMAGANAK AT ANONG PANGALAN
MO 639204439082, 7 Nov 2003 16:14:47
3. SINO K KC NAGHIWALAY N
639204439082, 7 Nov 2003 16:40:21

KAMI

4. TAWAG K S AKIN 639204439082 7 Nov 2003


17:18:47
5. NARELEASE N C MR. LAGUA. NAGKITA N B
KAYO 639204439082-7 Nov 2003 19:44:52
6. Magkano b and binigay nyo sa middle nyo.
Puede bang malaman 639184470111-7 Nov
2003 20:32:05

7. Gud evening. May gusto lng akong malaman.


Sana alang makaalam kahit cino. Lito
6391844701117 Nov. 2003 19:54:20
8. Cno ang kausap n Rhodora. Pwede bang
malaman 639184470111-7 Nov 2003 20:37:57
9. May landline ka. Tawagan kta bukas nang
umaga 639184470111-7 Nov 2003 20:56:31
10. Wag s Court of Appeal. Txt na lang kta kung
saan. 639184470111-7 Nov 2003 20:52:58
11. Gusto mo bukas nang umaga magkita tyo.
639184470111 7 Nov 2003 20:57:10
12. D ba pwede bukas tyo kita. May gusto lang
ako malaman 639184470111 7 Nov 2003
21:02:41
13. D 2ngkol kay rhodora duon sa kasama ko
kaninang lalakeng pinsan 639184470111 7 Nov
2003, 21:04:28
14. Ala po ako sa Lunes sa opis. Sa hapon po
puede kyo 639184470111, 7 Nov 2003 21:07:23
15. Kay Melchor Lagua 639184470111 7 Nov
2003 21:08:19
16. Kasama ko cya kanina nang lumabas
639184470111 7 Nov. 2003 21:13:05
17. Ano m ba Melchor Lagua 639184470111 7
Nov 2003 21:15:52
18. Between 5 and 5:30 ng hapon. Bkit.
639184470111 7 Nov. 2003 21:54:24
19. 3 PM PUWEDE KB 639004039082 10 Nov
2003 12:09:32
20. Kilala mo b c rhodora. Nagkita na b kayo. Ala
naman problema sa kanya. Ok naman
639184470111 7 Nov 2003, 21:57:13

21. MAGKITA N LANG TAYO 639204439082 10


Nov. 2003, 12:20:16
22. A, OK, NAGKITA N B KAYO NG KAMAGANAK
MO 639204439082 10 Nov 2003 15:12:14
23. D TALAGA AKO DARATING DAHIL WALA
AKONG KAILANGAN S IYO. 639204439082 10
Nov 2003 18:36:03
7. That Salud called me up in the morning of
November 8, 2003 at around 7:33 but I
purposely did not answer him. Why did he need
to call me up?
8. That I personally called up the Bureau of
Prisons for the exact time the Order of Release
was delivered and when accused appellant
Lagua was released. I learned that the Order of
Release was received at 9:15 A.M. and that
Lagua was released between 5-5:30 P.M. of
November 7, 2003.
9. That I was able to talk to Rhodora Valdez
the following Monday, November 10, 2003.
Again, I introduced myself as Laguas relative,
Arlyn and told her I only wanted to know how
much more we had to pay for Laguas release.
She refused to entertain me because according
to her, Hindi ikaw ang kausap ko. Duda ako sa
yo. Kung gusto mo, puntahan mo ako dito
bukas, para magkita tayo. Pero lumabas na si
Lagua. Itinawag sa akin ni Lito Salud. Then, she
[hung] up.
10. That on Tuesday, November 11, 2003, I
brought Salud, accompanied by Ms. Secarro to
Justice Magtolis. Out of the confrontation, we
discovered that Salud did not properly serve the
copies of the Resolution and Order of Release
upon the accused-appellant and his counsel,
Atty. Salvador C. Quimpo of the Quimpo
Dingayan-Quimpo and Associates. He gave
them to a certain Art, allegedly Laguas relative
who he claimed approached him at the Bureau
of Prisons in the morning of November 7, 2003.
He told Justice Magtolis that he gave these
documents to Art, who promised to take care of

them, even before he could deliver the copy


addressed to the Director of Prisons. He never
mentioned that this Art was connected with the
office of accused-appellants counsel. Because of
this information from Salud himself, I did not
sign the Certificate of Service, Annex C.

In view of the foregoing, it is respectfully


requested that Cielito Salud be subjected to an
administrative investigation and disciplinary
action.[11]
Attached to the complaint were the following
documents to support the charges:

11. That several days later, Salud accompanied


by Ms. Secarro, came to my office to apologize.
But before he could even say a word, he broke
down in [wails]. In between his loud cries, he
uttered, Boss, patawad po, alang-alang sa aking
mga anak.[9]

ANNEX A - Record of the cases received by


Salud on November 6, 2003 for delivery/service
the following day, November 7, 2003. Please
note that in each of the 3 cases assigned to him,
there are several parties/counsels to be served.

On November 11, 2003, Justice Magtolis called


the respondent to her office. When confronted,
the respondent denied extorting or receiving
money for Laguas release, or in any other case.
He, however, admitted serving the copies of
resolution and order of release intended for
Lagua and his counsel to Art Baluran.[10] Justice
Magtolis then called the respondent to a
meeting with Clerk of Court Atty. Tessie L.
Gatmaitan, who stated that she would transfer
the respondent to another office which has
nothing to do with cases.
Justice Magtolis lodged the complaint against
the respondent in a Letter dated November 14,
2003, containing, among others, the following
allegations:
The delivery of resolutions/orders to
unauthorized persons and complete strangers
who promised to take care thereof (siya na raw
ang bahala) constitutes not only neglect of duty
but also conduct prejudicial to the best interest
of the service. Staying for the whole day within
the vicinity of the National Bilibid Prisons to the
point of failing to fulfill his other duties for the
day constitutes inefficiency and incompetence
in the performance of official duties. On the
other hand, the use of my name and that of our
Division Clerk of Court to illegally solicit
financial or material benefit from parties with
pending cases before this Court is illegal per se.

ANNEX B - Certificate of Service signed by Salud,


attested by the Acting Chief of the Mailing
Section and Division Clerk of Court Ma. Ramona
L. Ledesma, showing that the parties/counsel in
SP-67586 were served only on November 10,
2003 (not on November 7, 2003).
ANNEX C - Certificate of Service for CR-27423,
and corresponding Delivery Receipts.
C-1 - Delivery Receipts for Defense Counsel
Salvador Quimpo signed by someone whose
signature was identified by Salud [as] Art a
cousin of appellant Melchor Lagua.
C-2 - Delivery Receipt for the accused-appellant,
received by the same Art and not served thru
the Director of Prisons.
C-3 - Delivery Receipt for the OSG, showing that
it was delivered/received by the said office on
November 10, 2003, not on November 7, 2003.
C-4 - Delivery Receipt for the Director of Prisons
showing receipt on November 7, 2003.
ANNEX D - Record of Resolutions in 3 other
cases (SP-80241, SP-65404 and SP-77957)
received for service by Salud on November 10,
2003. The resolutions/processes in these 3
cases
were
delivered/served
to
the
parties/counsel on November 10, 2003 together
with
undelivered
resolutions
left
unserved/undelivered on November 7, 2003.

ANNEX E - Certification signed by Salud showing


service to parties/counsel in SP-65404 (received
by Salud on November 10, 2003) on November
10, 2003 (same date)
ANNEX F, F-1 & F-2 - Delivery Receipts for
parties/counsel
in
SP-65404,
showing
service/delivery on November 10, 2003 in
contrast to his minimal delivery/services on
November 7, 2003 only in Muntinlupa.
ANNEX G - Copy of the resolution dated
November 6, 2003 of the 6th Division approving
the appellants bond and directing the issuance
of an order of release.
ANNEX H - Copy of the Order of Release upon
Bond, which Salud was supposed to deliver,
among others on November 7, 2003 to the
defense counsel, the appellant and the OSG.[12]
In his counter-affidavit,[13] the respondent
vehemently denied the charges. He never
demanded money from Laguas relative; his
name had been used by someone and was,
thus, a mere victim of the circumstances.
Moreover, the fact that he immediately
released the CA order in question was clear
proof that he had no financial interest in the
transaction. His version of the events that
occurred that day is as follows:
4.1
That on November 6, 2003 at around
1:38 p.m. the Acting Chief of the Mailing
Section gave me an assignment to deliver the
Writ of Habeas Corpus (hearing on November
26, 2003 at RTC, Zamboanga) for CA-G.R. SP No.
80238 for delivery to NBI, PAO, Quezon City,
Muntinlupa;
4.2
That I delivered a copy of the Writ of
Habeas Corpus to [the National] Bureau of
Investigation (NBI);
4.3
That while I was at the NBI, I
received a text message from my boss,
requesting me to return to the office

immediately because there is another notice of


resolution coming from Atty. Ledesma which I
have to serve to Quezon City and Las Pias;
4.4
In compliance with the request, I
returned to the Office and arrived at around
3:15 p.m.;
4.5
That when I received the resolution, I
read the same and found out that the hearing is
still scheduled on December 10, 2003 at 10:30
a.m.;
4.6
That when I was about to leave to
deliver the Writ of Habeas Corpus and the
Notice of Hearing to the PAO, Quezon City, my
officemate Jun Vicencio told me to wait
because Irma, the staff of Atty. Madarang
requested me to standby because I need to
deliver the Order of Release to the New Bilibid
Prison, Muntinlupa;
4.7
That because of the request I waited
until 4:00 p.m.;
4.8
That because its already late, I
decided to go to Atty. Madarangs office to
inquire about the Order of Release which I need
to deliver to the New Bilibid Prison, Muntinlupa;
4.9
That Atty. Madarang told me to wait
a little while because the order is about to be
finished. So I waited.
4.10
That Atty. Madarang gave to me the
Order of Release at 4:15 p.m.
4.11
That because I am aware that I may
not reach [the] New Bilibid Prison on time, I told
Atty. Madarang that I can deliver it on
November 7, 2003, early in the morning. She
agreed and told me THANK YOU Ikaw na ang
bahala;
4.12
That I informed my boss about the
Order of Release that was assigned to me and
she had it listed in our logbook. I asked my boss
[Cecil Secarro] if I can deliver the Notice of

Hearing for SP 67586 and the others on Monday


if I cannot finish delivering them on November
7, 2003. She agreed but told me to be sure that
the Order of Release will be served first and the
others be served not later than Monday,
November 10, 2003. Thereafter, I went home.
4.13
That on November 7, 2003, I went
straight to [the] New Bilibid Prison and arrived
there before 8:00 [a.m.] Unfortunately, all the
staff wearing white uniforms and the security
guards were falling in line in front of the
building of the New Bilibid Prison. So I could not
enter the administration office.
4.14
That while I was standing in front of
the building where the administrative office is
located, a certain ART approached me and
asked me if I am the personnel of the Court of
Appeals who will deliver the Order of Release.
4.15
That I said yes, and he told me his
name and said that he is a relative of MELCHOR
LAGUA (prisoner) and is connected with the
office of Atty. [Quimpo].
4.16
That at around 9:30 [a.m.] I was able
to enter the administrative offices but because
there was no staff inside I went to the
documentation office. The staff in the
documentation office told me to submit the
Order of Release to the administrative office.
He said that they will prepare the documents of
MELCHOR LAGUA (prisoner) but also told me
that the prisoner might be released on Monday
yet because the signatories are busy attending
the ongoing 98 anniversary celebration;
4.17
That I returned to the administrative
office and was able to find Mr. JUANITO
TORRES, Administrative Officer III, who received
the copy for the Director but refused to receive
the copy of Mr. LAGUA. He told me to wait for
his staff to receive the copy of Mr. LAGUA;
4.18
That because the staff were not
around, I went to the canteen to buy softdrinks
to quench my thirst;

4.19
That Mr. ART followed me in the
canteen and told me to assist in the release of
Mr. LAGUA because there were no personnel
attending to the Order of Release;
4.20
That since my boss told me to insure
the release of the prisoner, I waited for my staff
to arrive who will attend to the matter;
4.21
That I delivered the copy of Mr.
LAGUA to the staff. But ART told them he can
receive the copy of Mr. LAGUA because he is his
relative so, the staff told me to give the copy to
ART.
4.22
That I gave the copy of the Order of
Release for the accused to ART. ART also told
me that he is authorized to receive the copy for
Atty. Quimpo because he is also the
representative of the law office. Hence, I also
gave the copy for Atty. Quimpo to ART;
4.23
That I was able to finish my duty at
the New Bilibid Prison at around 2:30 [p.m.] and
I proceeded to Purok I, 6A Bayanan, Muntinlupa
to serve the Writ of Habeas Corpus in CA-G.R.
SP No. 80238;
4.24
That because of [sic] the address of
the addressee was incomplete, I found a hard
time locating the address of the addressee and
when I found Purok I, 6A, the persons thereat
do not know JOEL DE LA PAZ. I asked for their
help but nobody in the place knew JOEL DE LA
PAZ;
4.25
That I left Muntinlupa late in the
afternoon and due to the lack of time I decided
to deliver the other documents on the next
working day which is Monday, November 10,
2003;
4.26
That I delivered the other documents
on Monday, November 10, 2003, without any
problem;

4.27
That I was surprised when Atty.
Madarang later on accused me that I used her
name and the name of Justice Magtolis to
demand money from Mr. LAGUAS relative.[14]

Considering the gravity of the charges, then


Acting
Presiding
Justice
Cancio
C.
Garcia[15] referred the matter to Atty. Elisa B.
Pilar-Longalong, Assistant Clerk of Court, for
investigation, report, and recommendation.

The Investigation
The requisite hearings were held
December 12, 2003 to August 4, 2004.

from

Atty. Madarang affirmed the contents of her


Affidavit[16] dated December 8, 2003. She
testified that the respondent later came to her
office along with Ms. Secarro. Amidst his cries,
he pleaded, Boss, patawad po, alang-alang sa
aking mga anak. She replied, Wait, wala ka
namang kasalanan sa akin. Ikaw ang
nagpasimuno ng lahat ng ito. The respondent
repeated, Boss, patawad po alang alang sa
aking mga anak, and Atty. Madarang
answered,Okey lang, pinatawad na kita. Hindi
naman ako galit sa iyo.[17]
Justice Magtolis testified that Atty. Madarang
reported having received a telephone call from
the alleged relative of Lagua. She narrated that
she gave the name Arlyn to the caller, and,
thereafter, exchanged text messages with the
respondent. Justice Magtolis instructed Atty.
Madarang to continue communicating with the
respondent and, if possible, to see it through a
possible pay-off where a National Bureau of
Investigation (NBI) agent would be asked to
assist them. However, the entrapment did not
materialize. The respondent thereafter came to
her office, where he was asked why he was
unable to serve all the other papers and
documents that day.[18] He also admitted that
he served a copy of the resolution to the wrong
person (Baluran). Justice Magtolis also stated
that she threatened to transfer the respondent,
and that the latter vehemently objected,
pleaded, and cried saying, Huwag naman pong
pa-transfer. When asked why, the respondent
said that he has children in school and
something like,Dyan po ako kumikita.[19]
Another witness was Cristy Flores, convicted of
three counts of estafa who served time at the
Correctional Institute for Women in Batangas
City. She testified that the respondent was
introduced to her in December 1998 by a
certain Crisanta Gamil.[20] Gamil was also

detained at the correctional facility; the


respondent had worked on her appeal bond
papers and asked for P20,000.00 to facilitate
the issuance of the appeal bond.[21] The
payment was made right in front of her, and the
respondent issued a receipt.[22] The witness also
testified that Gamil told her, O, at least dyan mo
ipalakad ang papel mo. Okay yan,
sigurado.[23] The respondent visited her in May
1999, as she had asked him to fix her appeal
bond. During the visit, the respondent took the
pertinent documents from her.[24] The witness
also stated that she gave the respondent a
partial payment of P7,000.00[25] on May 16,
1999 and he issued a receipt.[26] They then
proceeded to the Documents Section where
they secured copies of the court decision,
certificate of manifestation and her picture. She
made the last payment of P13,000.00 in June
13, 1999, and also issued a receipt. The
respondent was also asking for an additional
payment of P15,000.00, which she was unable
to give.
Flores narrated that she introduced another
detainee to the respondent, Dalawangbayan,
whom the latter was also able to help. She
stated that according to Dalawangbayan, the
respondent asked for P200,000.00. She further
testified that she knew the respondent as
Joselito M. Salud, and not Cielito Salud.[27] After
the incident, she wrote a letter to Associate
Justice Conrado Vasquez, Jr. to ask for
assistance regarding her appeal bond.
Atty. Salvador Quimpo, Laguas counsel, testified
that it was Engineer Art Baluran who hired him
as counsel of the said accused. He stated that
he gave an oral authorization to Baluran to get
the CA resolutions or orders; Baluran was the
one who furnished him a copy of the
resolution.[28] He called Mr. Baluran to say that
an order for Laguas release had already been
issued by the appellate court. The witness
stated, however, that he had never seen the
respondent before.[29]
The respondent testified that he has been a CA
employee since 1991. He admitted that he
knew Flores, and met her in January 1999 when

he brought Gamils order of release in the


Batangas City Jail. He claimed that he was
waiting for the relatives of Gamil as they were
the ones who would pay for his fare home, and
while
waiting,
he
talked
to
the
jailguard/warden. Flores then approached him
and asked him if he was from the CA. When the
respondent answered in the affirmative, Flores
replied that Justice Vasquez was her neighbor in
Bian, Laguna.
The respondent admitted that he was in the
Correctional
Institute
for Women in
Mandaluyong City on May 16, 1999, as he was
then visiting Vilma Dalawangbayan. He also saw
Flores.[30] When asked why he visited
Dalawangbayan, the respondent replied that
Flores had written a letter to him (which he
dubbed as maintrigang sulat)[31] addressed Lito
Salud, Mailing Section, Court of Appeals. In the
said letter, Flores asked him to help
Dalawangbayan, just like he had helped Gamil.
The respondent then showed the letter to then
Chief of Office Prudencio B. Aguilar, who told
him, Puntahan mo yan, Lito at maintriga yang
sulat na yan, baka tayo mapahamak
dyan.[32] Thus, he went to the Correctional
Institute in Mandaluyong City to sort things out
with Dalawangbayan and Gamil. The
respondent, however, stated that he could not
find the letter anywhere and had already been
lost.[33]
During his May 16, 1999 visit to the correctional
facility, Flores approached him in the visiting
hall, and said suddenly, Sandali lang, Kuya, then
left. He then talked to Dalawangbayan about
the controversial letter, explaining that his job
in the Court of Appeals was only to remand the
records and deliver the Orders for release, just
like what he did in Gamils case. [34] He again
visited Dalawangbayan on June 13, 1999[35] as
evidenced by the entries in the visitors logbook.
He was no longer able to speak to Flores, but
made five other such visits to Dalawangbayan in
the correctional facility.

The Findings of the Investigating Officer


In her Report dated January 21, 2005, Atty.
Longalong found that the respondent was guilty
as charged, and made the following
recommendation:
In view of all the foregoing, there is substantial
evidence to hold respondent liable for the
offenses charged. He is liable for inefficiency
and incompetence in the performance of his
official duties and for conduct prejudicial to the
best interest of the service when he admittedly
served the copies of the resolution and order of
release in the Lagua case intended for detained
appellant and his counsel on Mr. Baluran whom
he admitted to have met only on that day,
against the rules and normal office procedure
on personal service. His long stay in the Bureau
of Prisons also caused the delay in the service of
other court processes assigned to him for
service on that day. He is also liable for having
financial or material interest in an official
transaction considering his undue interest in
the service of the order of release and actual
release of Lagua to the point of staying almost
the whole day in the Bureau of Prisons and the
aborted deal as can be concluded from the
phone call of Melissa Melchor to Atty.
Madarang and subsequent exchange of text
messages with Atty. Madarang disguising as
Laguas relative.
RECOMMENDATION:
1. Rule IV, Section 52 of Civil Service
Commission Memorandum Circular No. 19, S.
1999, issued pursuant to Book V of the
Administrative Code of 1987, provides that the
penalty for the first offense of inefficiency and
incompetence in the performance of official
duties, for conduct prejudicial to the best
interest of the service and for directly or
indirectly having financial and material interest
in any official transaction is suspension for a
period of 6 months, 1 day to 1 year. Pursuant to
Section 55 of the same Memorandum Circular,
if the respondent is found guilty of 2 or more

charges, the penalty to be imposed should be


that corresponding to the most serious charge
and the rest shall be considered as aggravating
circumstances. Section 54-c of the same
Memorandum Circular provides that the
maximum of the penalty shall be imposed
where only aggravating and no mitigating
circumstances are present. Since in this case,
the penalty is the same for all 3 offenses, the
maximum of the penalty for the first offense
which is suspension for 1 year [may be]
imposed on the respondent.
2. Considering that the prescribed penalty for
the offense exceeds one month suspension, the
case may now be referred to the Supreme Court
for appropriate action, pursuant to Circular No.
30-91 of the Office of the Court
Administrator.[36]

The Ruling of the Court


On the charge of inefficiency, the respondent is
clearly administratively liable. After serving
Laguas copy of the resolution and order of
release to the prison Director, he should have
immediately returned to his station or served
the other resolutions and documents for
personal service. As an officer of the court, the
respondent plays an essential part in the
administration of justice. He is required to live
up to the stringent standards of his office, and
his conduct must, at all times, be above
reproach and suspicion. He must steer clear of
any act which would tend to undermine his
integrity, or erode somehow the peoples faith
and trust in the courts.[37] As the respondent
himself admitted, he stayed on until 2:30 p.m.
without any valid reason, despite the fact that
he knew he still had to serve several orders and
resolutions. As pointed out by the Investigating
Officer, inefficiency and incompetence in the
performance of official duties is classified as a
grave offense, and is punishable by suspension
for six months and one day to one year.[38]
Indeed, the complainant in administrative
proceedings has the burden of proving the
allegations in the complaint by substantial
evidence. If a court employee is to be
disciplined for a grave offense, the evidence
against him must be competent and derived
from direct knowledge; as such, charges based
on mere suspicion and speculation cannot be
given credence. Thus, if the complainant fails to
substantiate a claim of corruption and bribery,
relying on mere conjectures and suppositions,
the administrative complaint must be dismissed
for lack of merit.[39] However, in administrative
proceedings, the quantum of proof required to
establish malfeasance is not proof beyond
reasonable doubt but substantial evidence, i.e.,
that amount of relevant evidence that a
reasonable mind might accept as adequate to
support a conclusion, is required.[40] The
findings of investigating magistrates on the
credibility of witnesses are given great weight
by reason of their unmatched opportunity to

see the deportment of the witnesses as they


testified.[41]
To determine the credibility and probative
weight of the testimony of a witness, such
testimony must be considered in its entirety
and not in truncated parts. To determine which
contradicting statements of a witness is to
prevail as to the truth, the other evidence
received must be considered.[42] Thus, while it is
true that there is no direct evidence that the
respondent received any money to facilitate the
release of detained Lagua, the following
circumstances must be taken as contrary to the
respondents plea of innocence:
First. The respondent admitted that he was the
sender of the first three text messages in Atty.
Madarangs cellphone: bkit, C rhodora
to; CNO KAMAGANAK AT ANONG PANGALAN
MO; and SINO K KC NAGHIWALAY N KAMI. The
respondents testimony on the matter is as
follows:
Q: In the hearing of December 2, 2003, in the
TSN on page 32 onwards
ATTY. ROSERO:
Is that the testimony of Atty. Madarang,
Justice?
JUSTICE MAGTOLIS:
Oo. I will just refer to your admission through
your
counsel
that
Cellphone
No.
6392044390[8]2 is yours. You admitted that?
ATTY. ROSERO:
I think we made an admission as to that matter,
Justice. Well just check the affidavit of Atty.
Madarang.
JUSTICE MAGTOLIS:
Here, admitted. Basahin mo.
ATTY. ROSERO:

Yes, Justice, admitted but not the cellphone


number
JUSTICE MAGTOLIS:
Sige, ulitin natin, 6392044390[9]2.
ATTY. ROSERO:
Yes, admitted. That is his cellphone.
JUSTICE MAGTOLIS:
This cellphone is yours.
Q: Do you also admit that you called Atty.
Madarang several times on November 7, 2003?
ATTY. ROSERO:
November 7 is a Friday. Tumawag ka daw
several times kay Atty. Madarang, November 7?
JUSTICE MAGTOLIS:
Texted, Im sorry I will correct that, texted.
A: Nauna po siyang magtext sa akin, Justice,
hindi po ako nagtext sa kanya. Nagtext po siya
sa akin sumagot po ako sa kanya.
Q: There was an exchange several times?
A: Nuong pong text niya sa akin hindi po several
times dahil kung makita nyo po dyan.

JUSTICE MAGTOLIS:
Let me see the affidavit of Atty. Madarang.
After this question, may I ask for a continuance?

Q: So at that time you already knew about


Rhodora?
A: Hindi po, dun, duon po sa text niya nakalagay
po dun eh, Si Rhodora kasama ba? So ikinuan ko
po na si Rhodora to, dun po sa text nya.

ATTY. ROSERO:
No objection, Your Honor.

Q: Nakipaglokohan ka?
A: Sa text niya nakalagay dun na Si Rhodora ba
kasama kaya po ako nakipaglokohan dun.[43]

JUSTICE MAGTOLIS:
All these text messages were checked by us
with your counsel in the cellphone of Atty.
Madarang which were preserved until we
allowed her to erase these. There are
exchanges here: 6392044390[8]2, November 7.
When she texted she answered, Bkit c Rhodora
2 and then second was, Cnong kamaganak
anong pangalan mo? This is addressed to you,
this is your telephone?
A: Opo.
Q: But the one who answered is Rhodora?
A: Ako po yun.
Q: Ikaw ang sumasagot. Why did you say that
you are Rhodora?
A: Justice, nung ma-receive ko po yong text
niya apat na beses ko pong na-receive ang text
ni Arlene.
INVESTIGATOR:
Who is Arlene?
A: Atty. Madarang. Arlene, sa text po niya sa
akin, Sir Lito, kamaganak po ito ni Mr. Lagua.
Magkano pa po ba ang kakulangang pera para
ibigay ko sa inyo. Si Rhodora ba kasama? Hindi
ko po sinagot yon. Pangalawa, yun din po ang
message nya. Ano ito? Sa akin pong kuan, sa
pag-iisip ko lang po, bakit dahil si Mr. Art
Baluran kamag-anak na, ano ito? Text pa ulit pa
sya ng pangatlo. Nang-iintriga na to. Pang-apat,
intriga to. Text ko nga rin to, lokohan lang
tayo. Bkit si Rhodora to yun po ang sagot ko sa
kanya.

As pointed out by the Investigating Officer, the


respondents
claim
of
joking
around
(nakipaglokohan) with an unknown sender of a
text message by replying thereto is contrary to
a normal persons reaction. This is made even
more apparent by the fact that the respondent
even admitted that he called Atty. Madarang
twice, and when asked why, gave a vague
answer, and, when further questioned, even
broke down in tears.[44]
The respondents claim that the admission of
the text messages as evidence against him
constitutes a violation of his right to privacy is
unavailing. Text messages have been classified
as ephemeral electronic communication under
Section 1(k), Rule 2 of the Rules on Electronic
Evidence,[45] and shall be proven by the
testimony of a person who was a party to the
same or has personal knowledge thereof. Any
question as to the admissibility of such
messages is now moot and academic, as the
respondent himself, as well as his counsel,
already admitted that he was the sender of the
first three messages on Atty. Madarangs cell
phone.
This was also the ruling of the Court in the
recent case of Zaldy Nuez v. Elvira CruzApao.[46] In that case, the Court, in finding the
respondent therein guilty of dishonesty and
grave misconduct, considered text messages
addressed to the complainant asking for a
million pesos in exchange for a favorable
decision in a case pending before the CA. The
Court had the occasion to state:

The text messages were properly admitted by


the Committee since the same are now covered
by Section 1(k), Rule 2 of the Rules on Electronic
Evidence, which provides:
Ephemeral electronic communication refers to
telephone conversations, text messages and
other electronic forms of communication the
evidence of which is not recorded or retained.
Under Section 2, Rule 11 of the [said rules],
Ephemeral electronic communications shall be
proven by the testimony of a person who was a
party to the same or who has personal
knowledge thereof . In this case, complainant
who was the recipient of the said messages and
therefore had personal knowledge thereof
testified on their contents and import.
Respondent herself admitted that the cellphone
number reflected in complainants cellphone
from which the messages originated was hers.
Moreover, any doubt respondent may have had
as to the admissibility of the text messages had
been laid to rest when she and her counsel
signed and attested to the veracity of the text
messages between her and complainant. It is
also well to remember that in administrative
cases, technical rules of procedure and
evidence are not strictly applied. We have no
doubt as to the probative value of the text
messages as evidence in determining the guilt
or lack thereof of respondent in this case.

Second. The respondents testimony during the


hearings held before Investigating Officer Atty.
Longalong is replete with inconsistencies and
loopholes. He claimed that he made inquiries
from other CA staff and learned that there was
indeed a deal between someone in the criminal
section and a certain Rhodora of the RTC, Pasig.
He further claimed that the said parties wanted
to get back at him for immediately serving the
release order which prevented them from
demanding the balance of the deal from Laguas
relative. However, this bare claim was not
corroborated by any witness. Moreover, the
respondent alleged that two anonymous callers

claimed to know something about the case


against him; when asked about it, he stated that
he no longer exerted efforts to find out who
they were as they did not give out their names:
JUSTICE MAGTOLIS:
Q: On page 5 of your affidavit, you said in
paragraph 8 That I made some inquiry and
some personnel of the Court of Appeals told me
that there is indeed a deal between a staff in
the Criminal Section and Rhodora of RTC, Pasig.
Can you tell us who is this staff?
A: Ah dito po Justice, hindi po siya nagpakilala,
sa telephono po.

INVESTIGATOR:
Hinahanap daw siya.
Sino siya?
JUSTICE MAGTOLIS:
A: Hindi po siya yong tawag po niya sa akin sa
telepono nang malaman po dito sa CA na ako ay
kinasuhan ninyo tumawag po siya sa Personnel.
JUSTICE MAGTOLIS:
Q: Who is siya?
A: Ay hindi po siya nagpakilala.
INVESTIGATOR:
Lalaki o babae?
A: Una po babae tapos yong pangalawa po
lalaki.
INVESTIGATOR:
Sinong kinakausap?
A: Ako po.
INVESTIGATOR:
Hinahanap ka?
A: Hinahanap po nila ako.
JUSTICE MAGTOLIS:
Q: What did he tell you? He, lalaki, ano?
A: Sa babae muna po?
Q: Oo, babaet lalake ba?
A: Opo.
Q: Who was the first caller, the lady or the
gentleman?
A: Babae po.
Q: Were you the one who answered the phone?
A: Hindi po.
INVESTIGATOR:

Q: Hinahanap ka, okay, when you answered the


phone, what did you say?
A: Ang sabi ko po sa kanya, pupuwede mo ba
akong matulungan sa paggawa ng affidavit dahil
kinasuhan nga ako ni Justice Magtolis.

Q: But you do not know who you were talking


to?
A: Tinanong ko nga po kung sino siya eh
tumutulong lang daw siya sa akin dahil ang
naririnig niyang tsismis din dyan eh baka po si
Rhodora ang may ka-kuan sa Criminal.

JUSTICE MAGTOLIS:

Q: Saan yong ka-kuan?


A: Ang may kausap sa Criminal.

Q Ano ang sagot mo?


A: Eh iyon nga ang gusto kong malaman, ang
katotohanan. Baka naman pupuwede mo akong
matulungan. Sino ba to?

Q: Who said na baka si Rhodora ang may


kausap sa Criminal?
A: Yon pong kausap ko sa kabilang linya.
Q: The name you do not know?
A: Eh tinanong ko naman po kung sino siya
ayaw naman po niyang magpakilala.
Matutulungan mo ba ako, ibinaba na po ang
telepono.
INVESTIGATOR:
Anonymous caller.

Q: Anong sagot niya sa


nakakarinig siyang tsismis?

tulungan kasi

INVESTIGATOR:

JUSTICE MAGTOLIS:
Q: Di ba she was the one who offered to help?
A: Ay ayaw daw po naman niyang masabit po
ang pangalan niya.
Q: But she was the one who called you?
A: Opo.
Q: Okay. How did your talk end with this girl or
lady?
A: Nung pagsalita ko nga pong baka pupuwede
akong tulungan, wala na.

JUSTICE MAGTOLIS:
You are very fond of answering calls. You dont
even know the name.

Q: How about the man, the gentleman or the


boy who called?
A: Same kuan din po ang kanilang kuan e.

Q: That anonymous caller told you that there


must be some deals between Rhodora and
someone from the Criminal Section?
A: Yun din daw po ang naririnig niyang tsismis
dyan sa labas.

JUSTICE MAGTOLIS:

Q: Tsismis, that was that the caller told you?


A: Opo.

Sige, Lito, ipaliwanag mo.

Q: And she wanted to help you?


A: Kaya po sinabi din sa akin na tsismis eh hindi
pa po pwedeng
Q: What did you answer her?
INVESTIGATOR:
Anong sagot mo raw?

Dont use kuan.


ATTY. ROSERO:

A: Same kuento rin po, sinabi niya na ganuon


din po na narinig din po niya sa labas.
JUSTICE MAGTOLIS:
Q: Alright, you were not the one who answered
the call?
A: Hindi po.
Q: Somebody called you that theres a phone
call?

A: Opo.
Q: When you answered, what was your first
word?
A: Hello!
Q: What was the answer at the other end of the
line?
A: Hello rin po.
Q: What next?
A: Alam mo, ang sabi po niya sa akin ganito po
Q: Who was the first one who said something
other than hello?
A: Siya po ang nauna.
Q: What did she say, the exact words?
A: Exact words, sa naalala kong sinabi niya Alam
mo, Mr. Salud, Salud po ang kuan niya sa akin,
narinig ko sa labas, istoryahan dyan sa labas na
baka si Rhodora ang may ka-kuan dito sa
Criminal. Ang sabi ko po sa kanya Iyan din ang
itinawag sa akin kahapon. Eh dalawa na kayo eh
baka naman pupuwede nyo akong matulungan.
Puede ko bang malaman ang pangalan mo?
Ganun din po, ayaw na pong magsalita ibinaba
na [ang] telepono.
Q: Do you know Rhodora?
A: Hindi po.
Q: You never met her?
A: Hindi po.
Q: You never talked to her?
A: Nung pong ipinakiusap nyo sa akin sa
telepono po nung tayo poy
Q: After the conversation with the lady and that
gentleman who called you to offer some help
and afterwards did not help at all, what
happened?
A: Wala na po.
Q: Did you not check with Rhodora, What is this
they are talking about that it might be between

you and someone in the Criminal Section? You


never asked her that?
A: Hindi ko na rin po
Q: You did not. But I thought you wanted help
from those people who can help you?
A: Eh hindi na nga po sila nagbanggit po ng
pangalan dahil po sabi ng unang babae ayaw
nga rin po niyang sumabit sa kaso.[47]

This respondents actuation on this matter, if at


all true, is again contrary to the normal reaction
of one who has been administratively charged,
and wants to clear his name of any wrongdoing.
The respondent also admitted visiting an
inmate (Vilma Dalawangbayan) at the
correctional facility eight times for no apparent
reason. This admission lends some credence to
the testimony of Flores, that she was the one
who introduced him to Dalawangbayan, the
person he was visiting. When asked why he
frequently visited, he stated that he found her
beautiful (Maganda po siya, Justice), and was
on the verge of courting her (Para na nga po
akong nanliligaw). The Court believes that this
allegation was concocted by the respondent as
a mere afterthought, to cover up for his
misdeeds.
The Investigating Officer also found that the
respondent was high-strung during his
testimony, and this finding must be accorded
respect. Indeed, when the issue is the credibility
of witnesses, the function of evaluating it is
primarily lodged in the investigating judge. The
rule which concedes due respect, and even
finality, to the assessment of the credibility of
witnesses by trial judges in civil and criminal
cases where preponderance of evidence and
proof beyond reasonable doubt, respectively,
are required, applies a fortiori in administrative
cases where the quantum of proof required is
only substantial evidence. The investigating
judge is in a better position to pass judgment on
the credibility of witnesses, having personally
heard them when they testified, and observed

their
deportment
and
manner
of
testifying.[48] Thus, the following findings of
Atty. Longalong are well taken:
However, respondent denied receiving P20,000
from Gamil and P15,000 from Flores and signing
LM Salud on Flores notebooks (Exhibits E-1 and
F-1) but admitted visiting Vilma at the
Correctional Institute for Women 8 times from
May to August 1999. Respondents denial here
appears self-serving and incredible considering
his admission of going to the Correctional
Institute for Women several times for no valid
official reason. Moreover, although Flores is a
convict
for estafa,
her
testimony on the matter was more consistent
and credible. Likewise, respondent admitted
seeing Flores at the Correctional Institute for
Women and that Flores mailed her letter to him
on May 16, 1999 which he called maintriga. He
also admitted that he told Flores to seek the
help of Justice Vasquez on her case. The
foregoing, plus the fact that Flores eventually
wrote Justice Vasquez, confirms the truth of
Flores testimony on the matter.
With the aforecited admissions by respondent,
the substantial evidence presented by the
complainant and her witnesses with their
positive and forthright testimonies deserve
more credence than respondents self-serving
denial and inconsistent and vague testimony.
Even the demeanor of complainant and her
witnesses give credence to their testimonies
than the nervous and [high-strung] demeanor
of respondent during his testimony. Moreover,
complainant and her witnesses, including the
superiors of respondent, have no reason or
motive whatsoever to testify falsely against
him. Respondents defense of denial is
inherently a weak defense. It is well settled that
denial, to be believed, must be buttressed by
strong evidence of non-culpability, otherwise
the denial is purely self-serving and with nil
evidentiary value (People of the Philippines v.
Arlee, 323 SCRA 201). Like the defense of alibi,
denial crumbles in the light of positive
declarations (People of the Philippines vs.
Ricafranca, 323 SCRA 652).

Indeed, the Court is looked upon by people with


high respect, a sacred place where litigants are
heard, rights and conflicts settled and justice
solemnly dispensed with. Misbehavior within or
around the vicinity diminishes its sanctity and
dignity. The conduct and behavior required of
every court personnel, from the presiding judge
to the lowliest clerk, must always be beyond
reproach and circumscribed with the heavy
burden of responsibility. Their conduct must, at
all times, be characterized by, among other
things, propriety and decorum so as to earn and
keep the publics respect and confidence in the
judicial service.[49] Public service requires the
utmost integrity and strictest discipline. Thus, a
public servant must exhibit at all times the
highest sense of honesty and integrity not only
in the performance of his official duties but in
his personal and private dealings with other
people.[50]
While there is no direct evidence to suggest
that he actually extorted money to facilitate the
issuance of the appeal bond and release order
which he himself served, the surrounding
circumstances, as well as the inconsistencies in
his testimony, point towards administrative
culpability. The respondents actuations fall
short of the standard required of a public
servant. He is guilty of gross or grave
misconduct. Misconduct is a transgression of
some established and definite rule of action, a
forbidden act, a dereliction from duty, unlawful
behavior, willful in character, improper or
wrong behavior,[51] while gross, has been
defined as out of all measure; beyond
allowance; flagrant; shameful; such conduct as
is not to be excused.[52] Under the Omnibus Civil
Service Rules and Regulations, grave
misconduct is punishable by dismissal from the
service even for the first offense, as it is
classified as a grave offense. However,
considering that the respondent has not been
previously charged nor administratively
sanctioned, the Court finds that a penalty of
suspension for one year and six months will
serve the purpose of disciplining the
respondent.

Court personnel, from the lowliest employee to


the clerk of court or any position lower than
that of a judge or justice, are involved in the
dispensation of justice, and parties seeking
redress from the courts for grievances look
upon them as part of the Judiciary. They serve
as sentinels of justice, and any act of
impropriety on their part immeasurably affect
the honor and dignity of the Judiciary and the
peoples confidence in it.[53] Thus, any conduct
which tends to diminish the image of the
Judiciary cannot be countenanced.
IN LIGHT OF ALL THE FOREGOING, respondent
Cielito M. Salud is found GUILTY of inefficiency
and gross misconduct. He is SUSPENDED for a
period of One (1) Year and Six (6) Months,
effective
immediately.
He
is
further DIRECTED to inform the Court as to the
date of his receipt of this Decision to determine
when his suspension shall have taken effect.
The Office of the Court Administrator is
also DIRECTED to
conduct
a
discreet
investigation on the possible involvement of
Rhodora Valdez (Utility Worker), and other
personnel of the Regional Trial Court of Pasig
City, Branch 163.
SO ORDERED.

FIRST DIVISION
[G.R. No. 148220. June 15, 2005]
ROSENDO
HERRERA, petitioner, vs.
ROSENDO ALBA, minor, represented by
his mother ARMI A. ALBA, and HON.
NIMFA CUESTA-VILCHES, Presiding
Judge, Branch 48, Regional Trial Court,
Manila, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review[1] to set aside the
Decision[2] dated 29 November 2000 of the
Court of Appeals (appellate court) in CAG.R. SP No. 59766. The appellate court
affirmed two Orders[3] issued by Branch 48
of the Regional Trial Court of Manila (trial

court) in SP No. 98-88759. The Order dated


3 February 2000 directed Rosendo Herrera
(petitioner) to submit to deoxyribonucleic
acid (DNA) paternity testing, while the Order
dated 8 June 2000 denied petitioners
motion for reconsideration.
The Facts
On 14 May 1998, then thirteen-year-old
Rosendo Alba (respondent), represented by
his mother Armi Alba, filed before the trial
court a petition for compulsory recognition,
support and damages against petitioner. On
7 August 1998, petitioner filed his answer
with counterclaim where he denied that he
is the biological father of respondent.
Petitioner also denied physical contact with
respondents mother.
Respondent filed a motion to direct the
taking of DNA paternity testing to abbreviate
the proceedings. To support the motion,
respondent presented the testimony of
Saturnina C. Halos, Ph.D. When she
testified, Dr. Halos was an Associate
Professor at De La Salle University where
she taught Cell Biology. She was also head
of the University of the Philippines Natural
Sciences Research Institute (UP-NSRI), a
DNA analysis laboratory. She was a former
professor at the University of the Philippines
in Diliman, Quezon City, where she
developed the Molecular Biology Program
and taught Molecular Biology. In her
testimony, Dr. Halos described the process
for DNA paternity testing and asserted that
the test had an accuracy rate of 99.9999%
in establishing paternity.[4]
Petitioner opposed DNA paternity testing
and contended that it has not gained
acceptability. Petitioner further argued that
DNA paternity testing violates his right
against self-incrimination.
The Ruling of the Trial Court
In an Order dated 3 February 2000, the trial
court granted respondents motion to
conduct DNA paternity testing on petitioner,
respondent and Armi Alba. Thus:
In view of the foregoing, the motion of
the petitioner is GRANTED and the
relevant individuals, namely: the
petitioner, the minor child, and

respondent
are
directed
to
undergo DNA paternity testing in a
laboratory of their common choice
within a period of thirty (30) days
from receipt of the Order, and to
submit the results thereof within a
period of ninety (90) days from
completion. The parties are further
reminded of the hearing set on 24
February 2000 for the reception of
other evidence in support of the
petition.
IT IS SO ORDERED.[5] (Emphasis in the
original)
Petitioner filed a motion for reconsideration
of the 3 February 2000 Order. He asserted
that under the present circumstances, the
DNA test [he] is compelled to take would be
inconclusive, irrelevant and the coercive
process to obtain the requisite specimen,
unconstitutional.
In an Order dated 8 June 2000, the trial
court denied petitioners motion for
reconsideration.[6]
On 18 July 2000, petitioner filed before the
appellate court a petition for certiorari under
Rule 65 of the 1997 Rules of Civil
Procedure. He asserted that the trial court
rendered the Orders dated 3 February 2000
and 8 June 2000 in excess of, or without
jurisdiction and/or with grave abuse of
discretion amounting to lack or excess of
jurisdiction. Petitioner further contended that
there is no appeal nor any [other] plain,
adequate and speedy remedy in the
ordinary
course
of
law.
Petitioner
maintained his previous objections to the
taking of DNA paternity testing. He
submitted the following grounds to support
his objection:
1. Public respondent misread and
misapplied the ruling in Lim vs. Court
of Appeals (270 SCRA 2).
2. Public respondent ruled to accept
DNA test without considering the
limitations
on,
and
conditions
precedent for the admissibility of DNA
testing and ignoring the serious
constraints affecting the reliability of

the test as admitted by private


respondents expert witness.
3. Subject Orders lack legal and
factual
support,
with
public
respondent
relying
on
scientific
findings and conclusions unfit for
judicial notice and unsupported by
experts in the field and scientific
treatises.
4. Under the present circumstances
the DNA testing petitioner [is]
compelled to take will be inconclusive,
irrelevant and the coercive process to
obtain the requisite specimen from the
petitioner, unconstitutional.[7]
The Ruling of the Court of Appeals
On 29 November 2000, the appellate court
issued a decision denying the petition and
affirming the questioned Orders of the trial
court. The appellate court stated that
petitioner merely desires to correct the trial
courts evaluation of evidence. Thus, appeal
is an available remedy for an error of
judgment that the court may commit in the
exercise of its jurisdiction. The appellate
court also stated that the proposed DNA
paternity testing does not violate his right
against self-incrimination because the right
applies only to testimonial compulsion.
Finally, the appellate court pointed out that
petitioner can still refute a possible adverse
result of the DNA paternity testing. The
dispositive portion of the appellate courts
decision reads:
WHEREFORE,
foregoing
premises
considered,
the
Petition
is
hereby DENIED DUE COURSE,
and
ordered dismissed, and the challenged
orders of the Trial Court AFFIRMED,
with costs to Petitioner.
SO ORDERED.[8]
Petitioner moved for reconsideration, which
the appellate court denied in its Resolution
dated 23 May 2001.[9]
Issues
Petitioner raises the issue of whether a DNA
test is a valid probative tool in this
jurisdiction to determine filiation. Petitioner
asks for the conditions under which DNA
technology may be integrated into our

judicial system and the prerequisites for the


admissibility of DNA test results in a
paternity suit.[10]
Petitioner further submits that the appellate
court gravely abused its discretion when it
authorized the trial court to embark in [sic] a
new procedure xxx to determine filiation
despite the absence of legislation to ensure
its reliability and integrity, want of official
recognition as made clear in Lim vs. Court
of Appeals and the presence of technical
and legal constraints in respect of [sic] its
implementation.[11] Petitioner maintains that
the proposed DNA paternity testing violates
his right against self-incrimination.[12]
The Ruling of the Court
The petition has no merit.
Before discussing the issues on DNA
paternity testing, we deem it appropriate to
give an overview of a paternity suit and
apply it to the facts of this case. We shall
consider the requirements of the Family
Code and of the Rules of Evidence to
establish paternity and filiation.
An Overview of the Paternity and
Filiation Suit
Filiation proceedings are usually filed not
just to adjudicate paternity but also to
secure a legal right associated with
paternity, such as citizenship, [13] support (as
in the present case), or inheritance. The
burden of proving paternity is on the person
who alleges that the putative father is the
biological father of the child. There are four
significant procedural aspects of a
traditional paternity action which parties
have to face: a prima facie case, affirmative
defenses, presumption of legitimacy, and
physical resemblance between the putative
father and child.[14]
A prima facie case exists if a woman
declares that she had sexual relations with
the putative father. In our jurisdiction,
corroborative proof is required to carry the
burden forward and shift it to the putative
father.[15]
There are two affirmative defenses available
to the putative father. The putative father
may show incapability of sexual relations
with the mother, because of either physical
absence or impotency.[16] The putative

father may also show that the mother had


sexual relations with other men at the time
of conception.
A child born to a husband and wife during a
valid
marriage
is
presumed
legitimate.[17] The childs legitimacy may be
impugned only under the strict standards
provided by law.[18]
Finally, physical resemblance between the
putative father and child may be offered as
part of evidence of paternity. Resemblance
is a trial technique unique to a paternity
proceeding. However, although likeness is a
function of heredity, there is no
mathematical formula that could quantify
how much a child must or must not look like
his biological father.[19]This kind of evidence
appeals to the emotions of the trier of fact.
In the present case, the trial court
encountered three of the four aspects. Armi
Alba, respondents mother, put forward
a prima facie case when she asserted that
petitioner is respondents biological father.
Aware that her assertion is not enough to
convince the trial court, she offered
corroborative proof in the form of letters and
pictures. Petitioner, on the other hand,
denied Armi Albas assertion. He denied
ever having sexual relations with Armi Alba
and stated that respondent is Armi Albas
child with another man. Armi Alba countered
petitioners denial by submitting pictures of
respondent and petitioner side by side, to
show how much they resemble each other.
Paternity and filiation disputes can easily
become credibility contests. We now look to
the law, rules, and governing jurisprudence
to help us determine what evidence of
incriminating acts on paternity and filiation
are allowed in this jurisdiction.
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code
provide as follows:
ART. 175. Illegitimate children may
establish their illegitimate filiation in
the same way and on the same
evidence as legitimate children.
xxx

ART. 172. The filiation of legitimate


children is established by any of the
following:
(1) The record of birth appearing in
the civil register or a final judgment;
or
(2) An admission of legitimate filiation
in a public document or a private
handwritten instrument and signed by
the parent concerned.
In the absence of the foregoing
evidence, the legitimate filiation shall
be proved by:
(1)
The
open
and
continuous
possession of the status of a
legitimate child; or
(2) Any other means allowed by the
Rules of Court and special laws.
The Rules on Evidence include provisions
on pedigree. The relevant sections of Rule
130 provide:
SEC. 39. Act or declaration about
pedigree.The act or declaration of a
person deceased, or unable to testify,
in respect to the pedigree of another
person related to him by birth or
marriage, may be received in evidence
where
it
occurred
before
the
controversy, and the relationship
between the two persons is shown by
evidence other than such act or
declaration.
The
word
pedigree
includes
relationship,
family
genealogy, birth, marriage, death, the
dates when and the places where
these facts occurred, and the names of
the relatives. It embraces also facts of
family history intimately connected
with pedigree.
SEC. 40. Family reputation or tradition
regarding pedigree.The reputation or
tradition existing in a family previous
to the controversy, in respect to the
pedigree of any one of its members,
may be received in evidence if the
witness testifying thereon be also a
member of the family, either by
consanguinity or affinity. Entries in

family bibles or other family books or


charts, engraving on rings, family
portraits and the like, may be received
as evidence of pedigree.
This Courts rulings further specify what
incriminating acts are acceptable as
evidence to establish filiation. In Pe Lim v.
CA,[20] a case petitioner often cites, we
stated that the issue of paternity still has to
be resolved by such conventional evidence
as the relevant incriminating verbal and
written acts by the putative father. Under
Article 278 of the New Civil Code, voluntary
recognition by a parent shall be made in the
record of birth, a will, a statement before a
court of record, or in any authentic writing.
To be effective, the claim of filiation must be
made by the putative father himself and the
writing must be the writing of the putative
father.[21] A notarial agreement to support a
child whose filiation is admitted by the
putative father was considered acceptable
evidence.[22] Letters to the mother vowing to
be a good father to the child and pictures of
the putative father cuddling the child on
various occasions, together with the
certificate
of
live
birth,
proved
filiation.[23] However, a student permanent
record, a written consent to a fathers
operation, or a marriage contract where the
putative father gave consent, cannot be
taken as authentic writing.[24] Standing
alone, neither a certificate of baptism[25] nor
family pictures[26] are sufficient to establish
filiation.
So far, the laws, rules, and jurisprudence
seemingly limit evidence of paternity and
filiation to incriminating acts alone.
However, advances in science show that
sources of evidence of paternity and filiation
need not be limited to incriminating acts.
There is now almost universal scientific
agreement that blood grouping tests are
conclusive on non-paternity, although
inconclusive on paternity.[27]
In Co Tao v. Court of Appeals,[28] the
result of the blood grouping test showed
that the putative father was a possible father
of the child. Paternity was imputed to the
putative father after the possibility of
paternity was proven on presentation during

trial of facts and circumstances other than


the results of the blood grouping test.
In Jao v. Court of Appeals,[29] the child, the
mother, and the putative father agreed to
submit themselves to a blood grouping test.
The National Bureau of Investigation (NBI)
conducted the test, which indicated that the
child could not have been the possible
offspring of the mother and the putative
father. We held that the result of the blood
grouping test was conclusive on the nonpaternity of the putative father.
The present case asks us to go one step
further. We are now asked whether DNA
analysis may be admitted as evidence to
prove paternity.
DNA Analysis as Evidence
DNA is the fundamental building block of a
persons entire genetic make-up. DNA is
found in all human cells and is the same in
every cell of the same person. Genetic
identity is unique. Hence, a persons DNA
profile can determine his identity. [30]
DNA analysis is a procedure in which DNA
extracted from a biological sample obtained
from an individual is examined. The DNA is
processed to generate a pattern, or a DNA
profile, for the individual from whom the
sample is taken. This DNA profile is unique
for each person, except for identical
twins.[31] We quote relevant portions of the
trial courts 3 February 2000 Order with
approval:
Everyone is born with a distinct
genetic
blueprint
called DNA (deoxyribonucleic acid). It
is exclusive to an individual (except in
the rare occurrence of identical twins
that share a single, fertilized egg), and
DNA is unchanging throughout life.
Being a component of every cell in the
human body, the DNA of an individuals
blood is the very DNA in his or her skin
cells, hair follicles, muscles, semen,
samples from buccal swabs, saliva, or
other body parts.
The chemical structure of DNA has
four
bases.
They
are
known
as A (adenine), G (guanine), C (cystosi
ne) and T (thymine). The order in

which the four bases appear in an


individuals DNA determines his or her
physical makeup. And since DNA is a
double-stranded
molecule,
it
is
composed of two specific paired
bases, A-T or T-A and G-C or C-G.
These are called genes.
Every gene has a certain number of
the above base pairs distributed in a
particular sequence. This gives a
person his or her genetic code.
Somewhere in the DNA framework,
nonetheless, are sections that differ.
They
are
known
as polymorphic
loci, which are the areas analyzed in
DNA
typing
(profiling,
tests,
fingerprinting,
or
analysis/DNA
fingerprinting/genetic
tests
or
fingerprinting). In other words, DNA
typing simply means determining
thepolymorphic loci.
How is DNA typing performed? From a
DNA sample obtained or extracted, a
molecular biologist may proceed to
analyze it in several ways. There are
five (5) techniques to conduct DNA
typing. They are: the RFLP (restriction

fragment
length
polymorphism);
reverse dot blot or HLA DQ a/Pm loci

which was used in 287 cases that were


admitted as evidence by 37 courts in
the U.S. as of November 1994; mtDNA
process; VNTR (variable number
tandem repeats); and the most recent
which is known as the PCR([polymerase] chain reaction) based
STR (short tandem repeats) method
which, as of 1996, was availed of by
most forensic laboratories in the
world. PCR is the process of
replicating or copying DNA in an
evidence sample a million times
through repeated cycling of a reaction
involving
the
so-called
DNA
polymerize enzyme. STR, on the other
hand, takes measurements in 13
separate places and can match two (2)
samples with a reported theoretical

error rate of less than one (1) in a


trillion.
Just like in fingerprint analysis, in DNA
typing, matches are determined. To
illustrate, when DNA or fingerprint
tests are done to identify a suspect in
a criminal case, the evidence collected
from the crime scene is compared with
the known print. If a substantial
amount of the identifying features are
the same, the DNA or fingerprint is
deemed to be a match. But then, even
if only one feature of the DNA or
fingerprint
is different,
it
is
deemed not to have come from the
suspect.
As earlier stated, certain regions of
human DNA show variations between
people. In each of these regions, a
person possesses two genetic types
calledallele, one inherited from each
parent. In [a] paternity test, the
forensic scientist looks at a number of
these variable regions in an individual
to produce a DNA profile. Comparing
next the DNA profiles of the mother
and child, it is possible to determine
which half of the childs DNA was
inherited from the mother. The other
half must have been inherited from
the biological father. The alleged
fathers profile is then examined to
ascertain whether he has the DNA
types in his profile, which match the
paternal types in the child. If the mans
DNA types do not match that of the
child, the man is excluded as the
father. If the DNA types match, then
he
is not excluded as
the
[32]
father. (Emphasis in the original)
Although the term DNA testing was
mentioned in the 1995 case of People v.
Teehankee, Jr.,[33] it was only in the 2001
case of Tijing v. Court of Appeals[34] that
more than a passing mention was given to
DNA analysis. In Tijing, we issued a writ
of habeas corpus against respondent who
abducted
petitioners
youngest
son.
Testimonial and documentary evidence and

physical resemblance were used to


establish parentage. However, we observed
that:
Parentage will still be resolved using
conventional methods unless we adopt
the modern and scientific ways
available. Fortunately, we have now
the facility and expertise in using DNA
test for identification and parentage
testing.
The
University
of
the
Philippines Natural Science Research
Institute (UP-NSRI) DNA Analysis
Laboratory has now the capability to
conduct DNA typing using short
tandem repeat (STR) analysis. xxx For
it was said, that courts should apply
the results of science when completely
obtained
in
aid
of
situations
presented, since to reject said result is
to deny progress. Though it is not
necessary in this case to resort to DNA
testing, in [the] future it would be
useful to all concerned in the prompt
resolution of parentage and identity
issues.
Admissibility of
DNA Analysis as Evidence
The
2002
case
of People
v.
Vallejo[35] discussed DNA analysis as
evidence. This may be considered a 180
degree turn from the Courts wary attitude
towards
DNA
testing
in
the
1997 Pe Lim case,[36] where we stated that
DNA, being a relatively new science, xxx
has not yet been accorded official
recognition by our courts. In Vallejo, the
DNA profile from the vaginal swabs taken
from the rape victim matched the accuseds
DNA profile. We affirmed the accuseds
conviction of rape with homicide and
sentenced him to death. We declared:
In assessing the probative value of
DNA evidence, therefore, courts
should consider, among other things,
the following data: how the samples
were collected, how they were
handled,
the
possibility
of
contamination of the samples, the
procedure followed in analyzing the

samples,
whether
the
proper
standards
and
procedures
were
followed in conducting the tests, and
the qualification of the analyst who
conducted the tests.[37]
Vallejo discussed the probative value, not
admissibility, of DNA evidence. By 2002,
there was no longer any question on the
validity of the use of DNA analysis as
evidence. The Court moved from the issue
of according official recognition to DNA
analysis as evidence to the issue of
observance of procedures in conducting
DNA analysis.
In 2004, there were two other cases that
had a significant impact on jurisprudence on
DNA testing: People v. Yatar[38]and In re:
The Writ of Habeas Corpus for Reynaldo
de Villa.[39] In Yatar, a match existed
between the DNA profile of the semen
found in the victim and the DNA profile of
the blood sample given by appellant in open
court.
The
Court,
following Vallejos footsteps, affirmed the
conviction of appellant because the physical
evidence, corroborated by circumstantial
evidence, showed appellant guilty of rape
with homicide. In De Villa, the convictpetitioner presented DNA test results to
prove that he is not the father of the child
conceived at the time of commission of the
rape. The Court ruled that a difference
between the DNA profile of the convictpetitioner and the DNA profile of the victims
child does not preclude the convictpetitioners commission of rape.
In the present case, the various pleadings
filed by petitioner and respondent refer to
two United States cases to support their
respective positions on the admissibility
of DNA analysis as evidence: Frye v.
U.S.[40] and Daubert v. Merrell Dow
Pharmaceuticals.[41] In Frye v. U.S., the
trial court convicted Frye of murder. Frye
appealed his conviction to the Supreme
Court of the District of Columbia. During
trial, Fryes counsel offered an expert
witness to testify on the result of a systolic
blood pressure deception test [42] made on
defendant. The state Supreme Court

affirmed Fryes conviction and ruled that the


systolic blood pressure deception test has
not yet gained such standing and scientific
recognition among physiological and
psychological authorities as would justify the
courts in admitting expert testimony
deduced from the discovery, development,
and
experiments
thus
far
made.
The Frye standard of general acceptance
states as follows:
Just when a scientific principle or
discovery crosses the line between the
experimental and demonstrable stages
is difficult to define. Somewhere in
this twilight zone the evidential force
of the principle must be recognized,
and while courts will go a long way in
admitting expert testimony deduced
from a well recognized scientific
principle or discovery, the thing from
which the deduction is made must be
sufficiently established to have gained
general acceptance in the particular
field in which it belongs.
In
1989, State
v.
Schwartz[43] modified the Frye standard.
Schwartz was charged with stabbing and
murder. Bloodstained articles and blood
samples of the accused and the victim were
submitted for DNA testing to a government
facility and a private facility. The prosecution
introduced the private testing facilitys results
over Schwartzs objection. One of the issues
brought before the state Supreme Court
included the admissibility of DNA test
results in a criminal proceeding. The state
Supreme Court concluded that:
While we agree with the trial court
that forensic DNA typing has gained
general acceptance in the scientific
community, we hold that admissibility
of specific test results in a particular
case hinges on the laboratorys
compliance
with
appropriate
standards and controls, and the
availability of their testing data and
results.[44]
In
1993, Daubert v. Merrell
Dow
[45]
Pharmaceuticals, Inc. further modified
the Frye-Schwartz standard. Daubertwas a

product liability case where both the trial


and appellate courts denied the admissibility
of an experts testimony because it failed to
meet
the Frye standard
of
general
acceptance. The United States Supreme
Court ruled that in federal trials, the Federal
Rules of Evidence have superseded
the Frye standard. Rule 401 defines
relevant evidence, while Rule 402 provides
the foundation for admissibility of evidence.
Thus:
Rule 401. Relevant evidence is defined
as that which has any tendency to
make the existence of any fact that is
of consequence to the determination
of the action more probable or less
probable than it would be without the
evidence.
Rule 402. All relevant evidence is
admissible, except as
otherwise
provided by the Constitution of the
United States, by Act of Congress, by
these rules, or by other rules
prescribed by the Supreme Court
pursuant to statutory authority.
Evidence which is not relevant is not
admissible.
Rule 702 of the Federal Rules of Evidence
governing expert testimony provides:
If scientific, technical, or other
specialized knowledge will assist the
trier of fact to understand the
evidence or to determine a fact in
issue, a witness qualified as an expert
by knowledge, skill, experience,
training, or education, may testify
thereto in the form of an opinion or
otherwise.
Daubert cautions that departure from
the Frye standard of general acceptance
does not mean that the Federal Rules do
not place limits on the admissibility of
scientific evidence. Rather, the judge must
ensure that the testimonys reasoning or
method is scientifically valid and is relevant
to the issue. Admissibility would depend on
factors such as (1) whether the theory or
technique can be or has been tested; (2)
whether the theory or technique has been

subjected to peer review and publication; (3)


the known or potential rate of error; (4) the
existence and maintenance of standards
controlling the techniques operation; and (5)
whether the theory or technique is generally
accepted in the scientific community.
Another product liability case, Kumho Tires
Co. v. Carmichael,[46] further modified
the Daubert standard. This led to the
amendment of Rule 702 in 2000 and which
now reads as follows:
If scientific, technical or other
specialized knowledge will assist the
trier of fact to understand the
evidence or to determine a fact in
issue, a witness qualified as an expert
by knowledge, skill, experience,
training, or education, may testify
thereto in the form of an opinion or
otherwise, if (1) the testimony is
based upon sufficient facts or data, (2)
the testimony is the product of reliable
principles and methods, and (3) the
witness has applied the principles and
methods reliably to the facts of the
case.
We now determine the applicability in this
jurisdiction of these American cases.
Obviously,
neither
the FryeSchwartzstandard
nor
the DaubertKumho standard is controlling in the
Philippines.[47] At
best,
American
jurisprudence merely has a persuasive
effect on our decisions. Here, evidence is
admissible when it is relevant to the fact in
issue and is not otherwise excluded by
statute or the Rules of Court.[48] Evidence is
relevant when it has such a relation to the
fact in issue as to induce belief in its
existence or non-existence.[49] Section 49 of
Rule 130, which governs the admissibility of
expert testimony, provides as follows:
The opinion of a witness on a matter
requiring special knowledge, skill,
experience or training which he is
shown to possess may be received in
evidence.
This Rule does not pose any legal obstacle
to the admissibility of DNA analysis as
evidence. Indeed, even evidence on

collateral matters is allowed when it tends in


any reasonable degree to establish the
probability or improbability of the fact in
issue.[50]
Indeed, it would have been convenient to
merely refer petitioner to our decisions
in Tijing, Vallejo and Yatar to illustrate that
DNA analysis is admissible as evidence. In
our jurisdiction, the restrictive tests for
admissibility
established
by FryeSchwartz and Daubert-Kumho go into the
weight of the evidence.
Probative Value of
DNA Analysis as Evidence
Despite our relatively liberal rules on
admissibility, trial courts should be cautious
in giving credence to DNA analysis as
evidence. We reiterate our statement
in Vallejo:
In assessing the probative value of
DNA evidence, therefore, courts
should consider, among other things,
the following data: how the samples
were collected, how they were
handled,
the
possibility
of
contamination of the samples, the
procedure followed in analyzing the
samples,
whether
the
proper
standards
and
procedures
were
followed in conducting the tests, and
the qualification of the analyst who
conducted the tests.[51]
We also repeat the trial courts explanation
of DNA analysis used in paternity cases:
In [a] paternity test, the forensic
scientist looks at a number of these
variable regions in an individual to
produce a DNA profile. Comparing
next the DNA profiles of the mother
and child, it is possible to determine
which half of the childs DNA was
inherited from the mother. The other
half must have been inherited from
the biological father. The alleged
fathers profile is then examined to
ascertain whether he has the DNA
types in his profile, which match the
paternal types in the child. If the mans
DNA types do not match that of the

child, the man is excluded as the


father. If the DNA types match, then
he is not excluded as the father.[52]
It is not enough to state that the childs DNA
profile matches that of the putative father. A
complete match between the DNA profile of
the child and the DNA profile of the putative
father does not necessarily establish
paternity. For this reason, following the
highest standard adopted in an American
jurisdiction,[53] trial courts should require at
least 99.9% as a minimum value of the
Probability of Paternity (W) prior to a
paternity inclusion. W is a numerical
estimate for the likelihood of paternity of a
putative father compared to the probability
of a random match of two unrelated
individuals. An appropriate reference
population database, such as the Philippine
population database, is required to compute
for W. Due to the probabilistic nature of
paternity inclusions, W will never equal to
100%. However, the accuracy of W
estimates is higher when the putative father,
mother and child are subjected to DNA
analysis compared to those conducted
between the putative father and child
alone.[54]
DNA analysis that excludes the putative
father from paternity should be conclusive
proof of non-paternity. If the value of W is
less than 99.9%, the results of the DNA
analysis should be
considered as
corroborative evidence. If the value of W is
99.9%
or
higher,
then
there
is refutable presumption
of
paternity.[55] This refutable presumption of
paternity
should
be
subjected
to
the Vallejo standards.
Right Against
Self-Incrimination
Section 17, Article 3 of the 1987
Constitution provides that no person shall
be compelled to be a witness against
himself. Petitioner asserts that obtaining
samples from him for DNA testing violates
his right against self-incrimination. Petitioner
ignores our earlier pronouncements that the
privilege is applicable only to testimonial
evidence. Again, we quote relevant portions

of the trial courts 3 February 2000 Order


with approval:
Obtaining DNA samples from an
accused in a criminal case or from the
respondent in a paternity case,
contrary to the belief of respondent in
this action, will not violate the right
against
self-incrimination.
This
privilege applies only to evidence that
is communicative in essence taken
under duress (People vs. Olvis, 154
SCRA 513, 1987). The Supreme Court
has ruled that the right against selfincrimination is just a prohibition on
the use of physical or moral
compulsion to extort communication
(testimonial
evidence)
from
a
defendant, not an exclusion of
evidence taken from his body when it
may be material. As such, a defendant
can be required to submit to a test to
extract virus from his body (as cited in
People vs. Olvis, Supra); the substance
emitting from the body of the accused
was received as evidence for acts of
lasciviousness (US vs. Tan Teng, 23
Phil. 145); morphine forced out of the
mouth was received as proof (US vs.
Ong Siu Hong, 36 Phil. 735); an order
by the judge for the witness to put on
pair of pants for size was allowed
(People vs. Otadora, 86 Phil. 244); and
the court can compel a woman
accused of adultery to submit for
pregnancy test (Villaflor vs. Summers,
41 Phil. 62), since the gist of the
privilege
is
the
restriction
[56]
on testimonial compulsion.
The policy of the Family Code to liberalize
the rule on the investigation of the paternity
and filiation of children, especially of
illegitimate children, is without prejudice to
the right of the putative parent to claim his
or her own defenses.[57] Where the evidence
to aid this investigation is obtainable
through the facilities of modern science and
technology, such evidence should be
considered subject to the limits established
by the law, rules, and jurisprudence.

WHEREFORE, we DISMISS the petition.


We AFFIRM the Decision of the Court of
Appeals dated 29 November 2000 in CAG.R. SP No. 59766. We also AFFIRM the
Orders dated 3 February 2000 and 8 June
2000 issued by Branch 48 of the Regional
Trial Court of Manila in Civil Case No. SP98-88759.
SO ORDERED.

THIRD DIVISION
[G.R. No. 142762. March 04, 2005]
LILANY YULO y BILLONES, petitioner,
vs. THE
PEOPLE
OF
THE
PHILIPPINES, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us is a petition for review
on certiorari under Rule 45 of the 1997
Rules of Civil Procedure, as amended,
seeking to reverse the Decision [1] of the
Court of Appeals dated January 31, 1997 in
CA-G.R. CR No. 17513 and its
Resolution[2] dated March 16, 2000.

The facts, as culled from the findings of the


trial court and affirmed by the Court of
Appeals are:
Sometime in August 1992, Lilany B. Yulo,
petitioner, and Josefina Dimalanta went to
the house of Myrna Roque, private
complainant, in Caloocan City. Josefina,
introduced to Myrna petitioner Yulo as her
best friend and a good payer. Josefina told
Myrna that petitioner wanted her checks
encashed. In view of Josefinas assurance
that petitioner is trustworthy, Myrna agreed
to encash the checks. Petitioner then issued
to Myrna three checks: (a) Equitable Bank
(EB) Check No. 237936 in the amount
of P40,000.00, postdated September 30,
1992; (b) EB Check No. 237941 in the
amount of P16,200.00; and (c) Bank of the
Philippine Islands (BPI) Check No. 656602
in the amount of P40,000.00, postdated
November 18, 1992.
When Myrna presented the checks for
payment to the drawee banks, they were
dishonored. The EB checks were Drawn
Against Insufficient Funds, while the BPI
check was stamped Account Closed.
As Myrna did not know petitioners address,
she immediately informed Josefina about
the dishonored checks. The latter told
Myrna not to worry and repeated her
assurance that petitioner is her best friend
and a good payer. Myrna tried to get
petitioners address from Josefina, but the
latter refused and instead made the
assurance that she will inform petitioner that
the checks were dishonored.
When no payment was forthcoming, Myrna
lodged a complaint against petitioner with
the Office of the City Prosecutor of
Caloocan City.
On August 23, 1993, three (3) Informations
were filed by the Caloocan City Prosecutor
with the Regional Trial Court, Branch 130,
same city, for violation of Batas Pambansa
Blg. 22, docketed as Criminal Cases Nos.
C-44774, 44775, and 44776.
When arraigned with the assistance of
counsel de parte, petitioner pleaded not
guilty to the charges. The cases were then
consolidated and jointly heard.

Petitioner admitted having issued the


checks in question but claimed that she
merely lent them to Josefina. In turn,
Josefina delivered the checks to her friend
who showed them to a jeweler as show
money. It was understood that the checks
were not to be deposited. Petitioner
vehemently denied having any transaction
with Myrna.
Petitioner also claimed that that when she
issued the checks, she knew she had no
funds in the banks; and that she was aware
that the checks would be dishonored if
presented for payment.
After hearing, the trial court rendered its
Decision, the dispositive portion of which
reads:
WHEREFORE, the Court finds the accused
LILANY YULO y BILLONES, guilty beyond
reasonable doubt of a violation of Batas
Pambansa Blg. 22, and is hereby sentenced as
follows:
(1) In Criminal Case No. C-44774, to an
imprisonment of ONE (1) YEAR, and to
indemnify the offended party Myrna Roque
in the amount of P16,200.00, representing
the face value of Equitable Bank Check No.
227941, and to pay the costs;
(2) In Criminal Case No. C-44775, to an to
an imprisonment of ONE (1) YEAR, and to
indemnify the offended party Myrna Roque
in the amount of P40,000.00, representing
the face value of Bank of the Philippine
Islands Check No. 656602, and to pay the
costs;
(3) In Criminal Case No. C-44776, to an
imprisonment of ONE (1) YEAR, and to
indemnify the offended party Myrna Roque
in the amount of P40,000.00, representing
the face value of Equitable Bank Check No.
237936, and to pay the costs.
Pursuant to Rule 114, Section 2(a) of the Rules
of Court, as amended, the bail bond of the
accused is cancelled and the accused is hereby
committed to the City Jail.
SO ORDERED.[3]
Upon appeal, docketed as CA-G.R. CR No.
17513, the Court of Appeals affirmed in
toto the Decision of the trial court.

Petitioner filed a motion for reconsideration


but was denied.
Hence, the instant petition raising the
following assignments of error:
I. WHETHER OR NOT THE PETITIONER
WAS DEPRIVED OF HER RIGHT TO
SPEEDY DISPOSITION OF CASES;
II. WHETHER OR NOT THE COURT OF
APPEALS ERRED IN AFFIRMING THE
CONVICTION FOR VIOLATION OF BATAS
PAMBANSA BLG. 22. EVEN IF THE
REQUISITES THEREFORE ARE NOT
COMPLETE;
III. WHETHER OR NOT THE COURT OF
APPEALS ERRED IN AFFIRMING THE
DECISION OF THE TRIAL COURT
ALTHOUGH THE LATTERS DECISION
WAS
BASED
ON
THE
UNCORROBORATED, INCREDIBLE, AND
UNNATURAL STATEMENTS OF THE
COMPLAINANT AND ALTHOUGH THE
TESTIMOMY OF THE ACCUSED WAS
SUPPORTED
BY
CORROBORATING
EVIDENCE.[4]
The issues for our resolution are: (1)
whether the Court of Appeals violated
petitioners right to a speedy trial; and (2)
whether the same court erred in holding that
the prosecution has proved petitioners guilt
beyond reasonable doubt.
On the first issue, petitioner contends that
the Court of Appeals resolved her motion for
reconsideration only after three (3) years
from its filing. Such inaction violates her
right to a speedy disposition of her case.
In his comment, the Solicitor General
counters that the Appellate Court has
explained satisfactorily why petitioners
motion for reconsideration was not resolved
immediately.
Article III, Section 16 of the Constitution
provides:
SEC.16. All persons shall have the right to a
speedy disposition of their cases before all
judicial, quasi-judicial, or administrative bodies.
Under the foregoing provision, any party to
a case has the right to demand on all
officials tasked with the administration of
justice to expedite its disposition. However,
the concept of speedy disposition is a
relative term and must necessarily be a

flexible concept.[5] A mere mathematical


reckoning of the time involved is not
sufficient.[6] In applying the Constitutional
guarantee, particular regard must be taken
of the facts and circumstances of each
case.
The right to a speedy disposition of a case,
like the right to speedy trial, [7] is deemed
violated only when the proceedings are
attended by vexatious, capricious, and
oppressive delays, or when unjustified
postponements of the trial are asked for and
secured, or when without cause or
justifiable motive a long period of time is
allowed to elapse without the party having
his case tried.[8] To determine whether the
right has been violated, the following factors
may be considered: (1) the length of the
delay; (2) the reasons for such delay; (3) the
assertion or failure to assert such right by
the accused; and (4) the prejudice caused
by the delay.[9]
In the instant case, we agree with the
Solicitor General that the delay was
sufficiently explained by the Court of
Appeals. The ponente of the decision in CAG.R. CR No. 17513, Associate Justice
Jainal D. Rasul, retired during the pendency
of petitioners motion for reconsideration
filed on March 4, 1997. However, the case
was assigned to Associate Justice
Mercedes Gozo-Dadole only on February
28, 2000 and brought to her attention on
March 2, 2000. We note that it took Justice
Gozo-Dadole only two (2) weeks from
notice to resolve the motion. Clearly, she
did not incur any delay. We, therefore, rule
that there has been no violation of the
petitioners right to a speedy trial.
On the second issue, petitioner submits that
the prosecution failed to prove her guilt
beyond reasonable doubt. Not all the
elements of the offense of violation of Batas
Pambansa Blg. 22 were adequately
established. For one, Myrna Roque, private
complainant, did not send her any notice of
dishonor. It was Josefina whom Myrna
contacted, not her. For another, petitioner
merely lent the checks to Josefina to be
shown by her friend to a jeweler.
Petitioners arguments are simply untenable.

The elements of the offense penalized by


Batas Pambansa Blg. 22 are: (1) the
making, drawing, and issuance of any check
to apply for account or for value; (2) the
knowledge of the maker, drawer, or issuer
that at the time of issue he does not have
sufficient funds in or credit with the drawee
bank for the payment of the check in full
upon its presentment; and (3) the
subsequent dishonor of the check by the
drawee bank for insufficient funds or credit
or dishonor for the same reason had not the
drawer, without any valid cause, ordered the
bank to stop payment.[10]
We agree with the Court of Appeals that the
prosecution has proved all the elements of
the offense.
Petitioner admitted having issued the three
dishonored checks for value. Her purpose
was to encash them. She also admitted that
at the time she issued the checks, she was
aware that she had only P1,000.00 in her
account with the Equitable Bank and that
her BPI account was already closed.
Significantly, what Batas Pambansa Blg. 22
penalizes is the issuance of a bouncing
check. It is not the non-payment of an
obligation which the law punishes, but the
act of making and issuing a check that is
dishonored
upon
presentment
for
payment.[11] The purpose for which the
check was issued and the terms and
conditions relating to its issuance are
immaterial. What is primordial is that the
issued checks were worthless and the fact
of worthlessness was known to the
petitioner at the time of their issuance, as in
this case. This is because under Batas
Pambansa Blg. 22, the mere act of issuing a
worthless check is malum prohibitum.[12]
We likewise find no reason to sustain
petitioners contention that she was not
given any notice of dishonor. Myrna had no
reason to be suspicious of petitioner. It will
be recalled that Josefina Dimalanta assured
Myrna that petitioner is her best friend and a
good payer. Consequently, when the
checks bounced, Myrna would naturally turn
to Josefina for help. We note that Josefina
refused to give Myrna petitioners address

but promised to inform petitioner about the


dishonored checks.
The Court of Appeals affirmed the findings
of the trial court. Settled is the rule that
factual findings of the trial court which have
been affirmed in toto by the Court of
Appeals are entitled to great weight and
respect by this Court and will not be
disturbed absent any showing that the trial
court overlooked certain facts and
circumstances which could substantially
affect the outcome of the case. [13] This
exception is not present here. That Myrna
was the sole witness for the prosecution is
of no moment. There is no law requiring that
the testimony of a single witness must be
corroborated. The rule in this jurisdiction is
that the testimony of witnesses is weighed,
not numbered, and the testimony of a single
witness, if found trustworthy and credible,
as in this case, is sufficient to sustain a
conviction.[14]
WHEREFORE, the petition is DENIED. The
Decision of the Court of Appeals dated
January 31, 1997 and its Resolution dated
March 16, 2000, in CA-G.R. CR No. 17513,
sustaining the Joint Decision of the trial
court in Criminal Cases Nos. C-44774, C44775, and C-44776 are AFFIRMED. Costs
against petitioner.
SO ORDERED.

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

RESOLUTION
EN BANC

CARPIO MORALES, J.:

RE: PETITION FOR RADIO AND TELEVISION


COVERAGE OF THE MULTIPLE MURDER CASES
AGAINST MAGUINDANAO GOVERNOR ZALDY
AMPATUAN, ET AL.,
x ----------------------------------- x
RE: PETITION FOR THE CONSTITUTION OF THE
PRESENT COURT HANDLING THE TRIAL OF
THE MASSACRE OF 57 PERSONS, INCLUDING
32
JOURNALISTS,
IN
AMPATUAN,
MAGUINDANAO INTO A SPECIAL COURT
HANDLING THIS CASE ALONE FOR THE
PURPOSE OF ACHIEVING GENUINE SPEEDY
TRIAL and FOR THE SETTING UP OF
VIDEOCAM AND MONITOR JUST OUTSIDE THE
COURT FOR JOURNALISTS TO COVER AND
FOR THE PEOPLE TO WITNESS THE TRIAL OF
THE DECADE TO MAKE IT TRULY PUBLIC AND
IMPARTIAL AS COMMANDED BY THE
CONSTITUTION,
x ---------------------------------x

A.M. No.
On10-11-5-SC
November 23, 2009, 57 people including 32
journalists and media practitioners were killed
while on their way to Shariff Aguak in
Maguindanao. Touted as the worst electionrelated violence and the most brutal killing of
journalists in recent history, the tragic incident
which came to be known as the Maguindanao
Massacre spawned charges for 57 counts of
A.M. No.
murder
10-11-6-SC
and an additional charge of rebellion
against 197 accused, docketed as Criminal Case
Nos. Q-09-162148-72, Q-09-162216-31, Q-10Present:
162652-66, and Q-10-163766, commonly
entitled People v. Datu Andal Ampatuan, Jr., et
CORONA,
al. *Following
C.J.,
the transfer of venue and the
CARPIO,
reraffling of the cases, the cases are being tried
CARPIObyMORALES,
Presiding Judge Jocelyn Solis-Reyes of Branch
VELASCO,
221JR.,
of the Regional Trial Court (RTC) of Quezon
LEONARDO-DE
Cityinside
CASTRO,
Camp Bagong Diwa in Taguig City.
BRION,
PERALTA,
Almost a year later or on November 19, 2010,
BERSAMIN,
the National Union of Journalists of the
DEL CASTILLO,
Philippines (NUJP), ABS-CBN Broadcasting
RE: LETTER OF PRESIDENT BENIGNO S. ABAD, Corporation, GMA Network, Inc., relatives of
AQUINO III FOR THE LIVE MEDIA COVERAGE VILLARAMA,
the JR.,
victims,[1] individual
journalists[2] from
OF THE MAGUINDANAO MASSACRE TRIAL.
PEREZ, various media entities, and members of the
MENDOZA,
academe
and [3] filed a petition before this Court
SERENO,
praying
JJ.
that live television and radio coverage
of the trial in these criminal cases be allowed,
Promulgated:
recording devices (e.g., still cameras, tape
recorders) be permitted inside the courtroom
June 14,
to2011
assist the working journalists, and reasonable
guidelines be formulated to govern the
broadcast coverage and the use of
devices.[4] The Court docketed the petition
A.M. No.
as A.M.
10-11-7-SC
No. 10-11-5-SC.
In a related move, the National Press Club of
the
Philippines[5] (NPC)
and Alyansa
ng

Filipinong Mamamahayag[6] (AFIMA) filed on


November 22, 2010 a petition praying that the
Court constitute Branch 221 of RTC-Quezon City
as a special court to focus only on the
Maguindanao Massacre trial to relieve it of all
other pending cases and assigned duties, and
allow the installation inside the courtroom of a
sufficient number of video cameras that shall
beam the audio and video signals to the
television monitors outside the court.[7] The
Court docketed the petition as A.M. No. 10-116-SC.
President Benigno S. Aquino III, by letter of
November 22, 2010[8] addressed to Chief Justice
Renato Corona, came out in support of those
who have petitioned [this Court] to permit
television and radio broadcast of the trial."The
President expressed earnest hope that [this
Court] will, within the many considerations that
enter into such a historic deliberation,

attend to this petition with the dispatch,


dispassion and humaneness, such a petition
merits.[9] The Court docketed the matter
as A.M. No. 10-11-7-SC.
By separate Resolutions of November 23,
2010,[10] the Court consolidated A.M. No. 10-117-SC with A.M. No. 10-11-5-SC. The Court shall
treat in a separate Resolution A.M. No. 10-11-6SC.
Meanwhile, various groups[11] also sent to the
Chief Justice their respective resolutions and
statements bearing on these matters.
The principal accused in the cases, Andal
Ampatuan, Jr. (Ampatuan), filed a Consolidated
Comment of December 6, 2010 in A.M. No. 1011-5-SC and A.M. No. 10-11-7-SC. The
President, through the Office of the Solicitor
General (OSG), and NUJP, et al. filed their
respective
Reply
of January
18,
2011 and January 20, 2011. Ampatuan also filed
a Rejoinder of March 9, 2011.
On Broadcasting the Trial of the Maguindanao
Massacre Cases
Petitioners seek the lifting of the absolute ban
on live television and radio coverage of court
proceedings. They principally urge the Court to
revisit the 1991 ruling in Re: Live TV and Radio
Coverage of the Hearing of President Corazon C.
Aquinos Libel Case[12] and the 2001 ruling in Re:
Request Radio-TV Coverage of the Trial in the
Sandiganbayan of the Plunder Cases Against the
Former President Joseph E. Estrada[13] which
rulings, they contend, violate the doctrine that
proposed restrictions on constitutional rights
are to be narrowly construed and outright
prohibition cannot stand when regulation is a
viable alternative.
Petitioners state that the trial of the
Maguindanao Massacre cases has attracted
intense media coverage due to the
gruesomeness of the crime, prominence of the
accused, and the number of media personnel

killed. They inform that reporters are being


frisked and searched for cameras, recorders,
and cellular devices upon entry, and that under
strict orders of the trial court against live
broadcast coverage, the number of media
practitioners allowed inside the courtroom has
been limited to one reporter for each media
institution.
The record shows that NUJP Vice-Chairperson
Jose Jaime Espina, by January 12, 2010
letter[14] to Judge Solis-Reyes, requested a
dialogue to discuss concerns over media
coverage of the proceedings of the
Maguindanao Massacre cases. Judge SolisReyes replied, however, that matters
concerning media coverage should be brought
to the Courts attention through appropriate
motion.[15] Hence, the present petitions which
assert the exercise of the freedom of the press,
right to information, right to a fair and public
trial, right to assembly and to petition the
government for redress of grievances, right of
free access to courts, and freedom of
association, subject to regulations to be issued
by the Court.
The Court partially GRANTS pro hac
vice petitioners prayer for a live broadcast of
the trial court proceedings, subject to the
guidelines which shall be enumerated shortly.
Putts Law[16] states that technology is
dominated by two types of people: those who
understand what they do not manage, and
those who manage what they do not
understand. Indeed, members of this Court
cannot strip their judicial robe and don the
experts gown, so to speak, in a pretense to
foresee and fathom all serious prejudices or
risks from the use of technology inside the
courtroom.
A
decade
after Estrada and
a
score
after Aquino, the Court is once again faced with
the same task of striking that delicate balance
between
seemingly
competing
yet
certainly complementary rights.

The indication of serious risks posed by live


media coverage to the accuseds right to due
process, left unexplained and unexplored in the
era obtaining in Aquino and Estrada, has left a
blow to the exercise of press freedom and the
right to public information.
The rationale for an outright total prohibition
was shrouded, as it is now, inside the
comfortable cocoon of a feared speculation
which no scientific study in the Philippine
setting confirms, and which fear, if any, may
be dealt with by safeguards and safety nets
under existing rules and exacting regulations.
In this day and age, it is about time to craft
a win-win situation that shall not compromise
rights in the criminal administration of justice,
sacrifice press freedom and allied rights, and
interfere with the integrity, dignity and
solemnity of judicial proceedings. Compliance
with regulations, not curtailment of a right,
provides a workable solution to the concerns
raised in these administrative matters, while, at
the same time, maintaining the same
underlying principles upheld in the two previous
cases.
The basic principle upheld in Aquino is firm [a]
trial of any kind or in any court is a matter of
serious importance to all concerned and should
not be treated as a means of entertainment[,
and t]o so treat it deprives the court of the
dignity which pertains to it and departs from
the orderly and serious quest for truth for
which
our
judicial
proceedings
are
formulated. The observation that [m]assive
intrusion of representatives of the news media
into the trial itself can so alter and destroy the
constitutionally necessary atmosphere and
decorum stands.
The Court concluded in Aquino:
Considering the prejudice it poses to the
defendant's right to due process as well as to
the fair and orderly administration of justice,

and considering further that the freedom of the


press and the right of the people to information
may be served and satisfied by less distracting,
degrading and prejudicial means, live radio and
television coverage of court proceedings shall
not be allowed. Video footages of court
hearings for news purposes shall be restricted
and limited to shots of the courtroom, the
judicial officers, the parties and their counsel
taken prior to the commencement of official
proceedings. No video shots or photographs
shall be permitted during the trial proper.
Accordingly, in order to protect the parties'
right to due process, to prevent the distraction
of the participants in the proceedings and in the
last analysis, to avoid miscarriage of justice, the
Court resolved to PROHlBIT live radio and
television coverage of court proceedings. Video
footage of court hearings for news purposes
shall be limited and restricted as above
indicated.[17]

The Court had another unique opportunity


in Estrada to revisit the question of live radio
and television coverage of court proceedings in
a criminal case. It held that [t]he propriety of
granting or denying the instant petition
involve[s] the weighing out of the constitutional
guarantees of freedom of the press and the
right to public information, on the one hand,
and the fundamental rights of the accused, on
the other hand, along with the constitutional
power of a court to control its proceedings in
ensuring a fair and impartial trial. The Court
disposed:
The Court is not all that unmindful of recent
technological and scientific advances but to
chance forthwith the life or liberty of any
person in a hasty bid to use and apply them,
even before ample safety nets are provided and
the concerns heretofore expressed are aptly
addressed, is a price too high to pay.
WHEREFORE, the petition is DENIED.

SO ORDERED.[18]
In resolving the motion for reconsideration, the
Court in Estrada, by Resolution of September
13, 2001, provided a glimmer of hope when it
ordered the audio-visual recording of the trial
for documentary purposes, under the following
conditions:
x x x (a) the trial shall be recorded in its entirety,
excepting such portions thereof as the
Sandiganbayan may determine should not be
held public under Rule 119, 21 of the Rules of
Criminal Procedure; (b) cameras shall be
installed inconspicuously inside the courtroom
and the movement of TV crews shall be
regulated consistent with the dignity and
solemnity of the proceedings; (c) the audiovisual recordings shall be made for
documentary purposes only and shall be made
without comment except such annotations of
scenes depicted therein as may be necessary to
explain them; (d) the live broadcast of the
recordings before the Sandiganbayan shall have
rendered its decision in all the cases against the
former President shall be prohibited under pain
of contempt of court and other sanctions in
case of violations of the prohibition; (e) to
ensure that the conditions are observed, the
audio-visual recording of the proceedings shall
be made under the supervision and control of
the Sandiganbayan or its Division concerned
and shall be made pursuant to rules
promulgated by it; and (f) simultaneously with
the release of the audio-visual recordings for
public broadcast, the original thereof shall be
deposited in the National Museum and the
Records Management and Archives Office for
preservation and exhibition in accordance with
law.[19]

Petitioners note that the 1965 case of Estes v.


Texas[20] which Aquino and Estrada heavily
cited, was borne out of the dynamics of a jury
system, where the considerations for the
possible infringement of the impartiality of a
jury, whose members are not necessarily

schooled in the law, are different from that of a


judge who is versed with the rules of
evidence. To petitioners, Estes also does not
represent the most contemporary position of
the United Statesin the wake of latest
jurisprudence[21] and statistical figures revealing
that as of 2007 all 50 states, except theDistrict
of Columbia, allow television coverage with
varying degrees of openness.
Other jurisdictions welcome the idea of media
coverage. Almost all the proceedings of United
Kingdoms Supreme Court are filmed, and
sometimes broadcast.[22] The International
Criminal Court broadcasts its proceedings via
video streaming in the internet.[23]
On the media coverages influence on judges,
counsels and witnesses, petitioners point out
that Aquino and Estrada,
like Estes,
lack
empirical evidence to support the sustained
conclusion. They
point out
errors of
generalization where the conclusion has been
mostly supported by studies on American
attitudes, as there has been no authoritative
study on the particular matter dealing with
Filipinos.
Respecting the possible influence of media
coverage on the impartiality of trial court
judges, petitioners correctly explain that
prejudicial publicity insofar as it undermines the
right to a fair trial must pass the totality of
circumstances test, applied in People v.
Teehankee, Jr.[24] and Estrada v. Desierto,[25] that
the right of an accused to a fair trial is not
incompatible to a free press, that pervasive
publicity is not per se prejudicial to the right of
an accused to a fair trial, and that there must be
allegation and proof of the impaired capacity of
a judge to render a bias-free decision. Mere
fear of possible undue influence is not
tantamount to actual prejudice resulting in the
deprivation of the right to a fair trial.
Moreover, an aggrieved party has ample legal
remedies. He may challenge the validity of an
adverse judgment arising from a proceeding

that transgressed a constitutional right. As


pointed out by petitioners, an aggrieved party
may early on move for a change of venue, for
continuance until the prejudice from publicity is
abated, for disqualification of the judge, and for
closure of portions of the trial when
necessary. The trial court may likewise exercise
its power of contempt and issue gag orders.
One apparent circumstance that sets the
Maguindanao Massacre cases apart from the
earlier cases is the impossibility of
accommodating even the parties to the cases
the private complainants/families of the victims
and other witnesses inside the courtroom. On
public trial, Estrada basically discusses:
An accused has a right to a public trial but it is a
right that belongs to him, more than anyone
else, where his life or liberty can be held
critically in balance. A public trial aims to ensure
that he is fairly dealt with and would not be
unjustly condemned and that his rights are not
compromised in secrete conclaves of long
ago. A public trial is not synonymous with
publicized trial; it only implies that the court
doors must be open to those who wish to come,
sit in the available seats, conduct themselves
with decorum and observe the trial process. In
the constitutional sense, a courtroom should
have enough facilities for a reasonable number
of the public to observe the proceedings, not
too small as to render the openness negligible
and not too large as to distract the trial
participants from their proper functions, who
shall then be totally free to report what they
have
observed
during
the
proceedings.[26] (underscoring supplied)

Even before considering what is a reasonable


number of the public who may observe the
proceedings, the peculiarity of the subject
criminal cases is that the proceedings already
necessarily entail the presence of hundreds of
families. It cannot be gainsaid that the families
of the 57 victims and of the 197 accused have

as much interest, beyond mere curiosity, to


attend or monitor the proceedings as those of
the impleaded parties or trial participants.It
bears noting at this juncture that the
prosecution and the defense have listed more
than 200 witnesses each.

The impossibility of holding such judicial


proceedings in a courtroom that will
accommodate all the interested parties,
whether private complainants or accused, is
unfortunate enough. What more if the right
itself commands that a reasonable number of
the general public be allowed to witness the
proceeding as it takes place inside the
courtroom. Technology tends to provide the
only solution to break the inherent limitations
of the courtroom, to satisfy the imperative of
a transparent, open and public trial.
In so allowing pro hac vice the live broadcasting
by radio and television of the Maguindanao
Massacre cases, the Court lays down the
following guidelines toward addressing the
concerns mentioned in Aquino and Estrada:
(a) An audio-visual recording of the
Maguindanao massacre cases may be made
both for documentary purposes and for
transmittal to live radio and television
broadcasting.
(b) Media entities must file with the trial court a
letter of application, manifesting that they
intend to broadcast the audio-visual recording
of the proceedings and that they have the
necessary technological equipment and
technical plan to carry out the same, with an
undertaking that they will faithfully comply with
the guidelines and regulations and cover the
entire
remaining
proceedings
until
promulgation of judgment.
No selective or partial coverage shall be
allowed. No media entity shall be allowed to
broadcast the proceedings without an
application duly approved by the trial court.

(c) A single fixed compact camera shall be


installed inconspicuously inside the courtroom
to provide a single wide-angle full-view of the
sala of the trial court. No panning and zooming
shall be allowed to avoid unduly highlighting or
downplaying incidents in the proceedings. The
camera and the necessary equipment shall be
operated and controlled only by a duly
designated official or employee of the Supreme
Court. The camera equipment should not
produce or beam any distracting sound or light
rays.Signal lights or signs showing the
equipment is operating should not be visible. A
limited number of microphones and the least
installation of wiring, if not wireless technology,
must be unobtrusively located in places
indicated by the trial court.
The Public Information Office and the Office of
the Court Administrator shall coordinate and
assist the trial court on the physical set-up of
the camera and equipment.
(d) The transmittal of the audio-visual recording
from inside the courtroom to the media entities
shall be conducted in such a way that the least
physical disturbance shall be ensured in keeping
with the dignity and solemnity of the
proceedings and the exclusivity of the access to
the media entities.
The
hardware
for
establishing
an
interconnection or link with the camera
equipment monitoring the proceedings shall be
for the account of the media entities, which
should employ technology that can (i) avoid the
cumbersome snaking cables inside the
courtroom, (ii) minimize the unnecessary
ingress or egress of technicians, and (iii)
preclude undue commotion in case of technical
glitches.
If the premises outside the courtroom lack
space for the set-up of the media entities
facilities, the media entities shall access the
audio-visual recording either via wireless
technology accessible even from outside the
court premises or from one common web

broadcasting platform from which streaming


can be accessed or derived to feed the images
and sounds.
At all times, exclusive access by the media
entities to the real-time audio-visual recording
should be protected or encrypted.
(e) The broadcasting of the proceedings for a
particular day must be continuous and in its
entirety, excepting such portions thereof where
Sec. 21 of Rule 119 of the Rules of
Court[27] applies, and where the trial court
excludes, upon motion, prospective witnesses
from the courtroom, in instances where, inter
alia, there are unresolved identification issues
or there are issues which involve the security of
the witnesses and the integrity of their
testimony (e.g., the dovetailing of corroborative
testimonies is material, minority of the
witness).
The trial court may, with the consent of the
parties, order only the pixelization of the image
of the witness or mute the audio output, or
both.
(f) To provide a faithful and complete broadcast
of the proceedings, no commercial break or any
other gap shall be allowed until the days
proceedings are adjourned, except during the
period of recess called by the trial court and
during portions of the proceedings wherein the
public is ordered excluded.
(g) To avoid overriding or superimposing the
audio output from the on-going proceedings,
the proceedings shall be broadcast without any
voice-overs, except brief annotations of scenes
depicted therein as may be necessary to explain
them at the start or at the end of the scene. Any
commentary shall observe the sub judice rule
and be subject to the contempt power of the
court;
(h) No repeat airing of the audio-visual
recording shall be allowed until after the finality
of judgment, except brief footages and still

images derived from or cartographic sketches of


scenes based on the recording, only for news
purposes, which shall likewise observe the sub
judice rule and be subject to the contempt
power of the court;
(i) The original audio-recording shall be
deposited in the National Museum and the
Records Management and Archives Office for
preservation and exhibition in accordance with
law.
(j) The
audio-visual
recording
of
the
proceedings shall be made under the
supervision and control of the trial court which
may issue supplementary directives, as the
exigency requires, including the suspension or
revocation of the grant of application by the
media entities.

(k) The Court shall create a special committee


which shall forthwith study, design and
recommend
appropriate
arrangements,
implementing regulations, and administrative
matters referred to it by the Court concerning
the live broadcast of the proceedings pro hac
vice, in accordance with the above-outlined
guidelines. The Special Committee shall also
report and recommend on the feasibility,
availability and affordability of the latest
technology that would meet the herein
requirements. It may conduct consultations
with resource persons and experts in the field
of information and communication technology.
(l) All other present directives in the conduct of
the proceedings of the trial court (i.e.,
prohibition on recording devices such as still
cameras, tape recorders; and allowable number
of media practitioners inside the courtroom)
shall be observed in addition to these
guidelines.

Indeed, the Court cannot gloss over what


advances technology has to offer in distilling the
abstract discussion of key constitutional
precepts
into
the
workable
context. Technology per se has always been
neutral. It is the use and regulation thereof that
need fine-tuning. Law and technology can work
to the advantage and furtherance of the various
rights herein involved, within the contours of
defined guidelines.
WHEREFORE, in light of the foregoing
disquisition, the Court PARTIALLY GRANTS PRO
HAC VICE the request for live broadcast by
television and radio of the trial court
proceedings of the Maguindanao Massacre
cases, subject to the guidelines herein outlined.
SO ORDERED.