Section14_Right to be Heard by Himself and Counsel (17 pages)
(1) (People v. Holgado, G.R. No. L-2809, March 22, 1950)
(3) (People v. Agbayani y Mendoza, G.R. No. 122770, January 16, 1998)
(13) (Amion v. Chiongson, A.M. No. RTJ-97-1371, January 22, 1999)
(People v. Holgado, G.R. No. L-2809, March
22, 1950)
SECOND DIVISION
[G.R. No. L-2809. March 22, 1950.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. FRISCO HOLGADO, defendant-
appellant.
Mauricio Carlos for appellant.
Assistant Solicitor General Manuel P. Barcelona
and Solicitor Felix V. Makasiar for appellee.
SYLLABUS
1. CRIMINAL PROCEDURE OF; QUALIFIED PLEA OF
GUILTY; AMBIGUOUS INFORMATION; ACCUSED
WITHOUT COUNSEL; IMPOSITION OF HEAVY
PENALTY. M When an accused unaided by
counsel qualifiedly admits his guilt to an
ambiguous or vague information from which a
serious crime can be deduced, it is not prudent
for the trial court to render a serious judgment
finding the accused guilty of a capital offense
without absolutely any evidence to determine
and clarify the true facts of the case.
2. ID.; DUTIES OF COURT WHEN DEFENDANT
APPEARS WITHOUT ATTORNEY. Under the
provision of section 3 of rule 112 of the rules of
Court, when a defendant appears without
attorney, the court has four important duties to
comply with: (1) It must inform the defendant
that it is his right to have attorney before being
arraigned; (2) after giving him such information
the court must ask him if he desires the aid of an
attorney; (3) if he desires and is unable to employ
attorney, the court must assign attorney de oficio
to defend him; and 94) if the accused desires to
procure an attorney of his own the court must
grant him a reasonable time therefor.
3. ID.; DUE PROCESS OF LAW; RIGHT OF
ACCUSED TO BE REPRESENTED BY COUNSEL IS
CONSTITUTIONAL. One of the great principles
of justice guaranteed by our Constitution is that
"no person shall be held to answer for a criminal
offense without due process of law," and that all
accused "shall enjoy the right to be heard by
himself and counsel." In criminal cases there can
be no fair hearing unless the accused be given an
opportunity to be heard by counsel. The right to
be heard would be little avail if it does not include
the right to be heard by counsel. Even the most
intelligent or educated man may have no skill in
the science of the law, particularly in the rules of
procedure, and, without counsel, he may be
convicted not because he is guilty but because he
does not know how to establish his innocence.
And this can happen more easily to persons who
are ignorant or uneducated. It is for this reason
that the right to be assisted by counsel is deemed
so important that it has become a constitutional
1|CONSTI2_Section14_Right to be Heard by Himself and Counsel
right and it is so implemented that under our
rules of procedure it is not enough for the court to
apprise an accused of his right to have an
attorney, it is not enough to ask him whether he
desires the aid of an attorney, but it is essential
that the court should assign one de oficio for him
if he so desires and he is poor or grant him a
reasonable time to procure an attorney of his
own.
DECISION
MORAN, C.J p:
Appellant Frisco Holgado was charged in the
Court of First Instance of Romblon with slight
illegal detention because according to the
information, being a private person, he did
"feloniously and without justifiable motive, kidnap
and detain one Artemia Fabreag in the house of
Antero Holgado for about eight hours thereby
depriving said Artemia Fabreag of her personal
liberty."
On May 8, 1948, the day set for the trial, the trial
court proceeded as follows:
"Court:
"Is this case ready for trial?
"Fiscal:
"I am ready, your honor.
"Court: to the accused.
"Q. Do you have an attorney or are you going to
plead guilty? A. I have no lawyer and I will
plead guilty.
"Court:
Arraign the accused.
"Note:
"Interpreter read the information to the accused
in the local dialect after which he was asked this
question.
"Q. What do you plead? A. I plead guilty, but I
was instructed by one Mr. Ocampo.
"Q. Who is that Mr. Ocampo, what is his complete
name? A. Mr. Numeriano Ocampo.
"The provincial fiscal is hereby ordered to
investigate that man.
"Fiscal:
"I have investigated this case and found out that
this Ocampo has nothing to do with this case and
I found no evidence against this Ocampo.
"Court:
"Sentence reserved."
Two days later, or on May 10, 1948, the trial court
rendered the following judgment:
"[Criminal Case No. V-118]
"THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. FRISCO HOLGADO defendant-
appellant.
"SLIGHT ILLEGAL DETENTION
"SENTENCE.
"The accused, Frisco Holgado, stands charged
with the crime of kidnapping and serious illegal
detention in the following.
"INFORMATION
"That on or about December 11, 1947, in the
municipality of Concepcion, Province of Romblon,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused being a private
individual, did then and there wilfully, unlawfully
and feloniously, and without justifiable motive,
kidnap and detain one Artemia Fabreag in the
house of Antero Holgado for about 8 hours
thereby depriving said Artemia Fabreag of her
personal liberty.
"Contrary to Law.
"This case is called for trial on May 8, 1948. Upon
arraignment the accused pleaded guilty to the
information above described.
"The offense committed by the accused is
kidnapping and serious illegal detention as
defined by article 267 of the Revised Penal Code
as amended by section 2 of Republic Act No. 18
and punished by reclusion temporal in its
minimum period to death. Applying indeterminate
sentence law the penalty shall be prision mayor
in its maximum degree to reclusion temporal in
the medium degree, as minimum, or ten (10)
years and one (1) day of prision mayor to twenty
(20) years, with the accessory penalties provided
for by law, with costs. The accused is entitled to
one-half of his preventive imprisonment."
It must be noticed that in the caption of the case
as it appears in the judgment above quoted, the
offense charged is named SLIGHT ILLEGAL
DETENTION while in the body of the judgment it
is said that the accused "stands charged with the
crime of kidnapping and serious illegal
detention." In the information filed by the
provincial fiscal it is said that he "accuses Frisco
Holgado of the crime of slight illegal detention."
The facts alleged in said information are not clear
as to whether the offense charged is merely
"slight illegal detention" as the offense is named
therein or the capital offense of "kidnapping and
serious illegal detention" as found by the trial
judge in his judgment. Since the accused-
appellant pleaded guilty and no evidence appears
to have been presented by either party, the trial
judge must have deduced the capital offense
from the facts pleaded in the information.
Under the circumstances, particularly the
qualified plea given by the accused, who was
unaided by counsel, it was not prudent, to say the
least, for the trial court to render such a serious
judgment finding the accused guilty of a capital
offense, and imposing upon him such a heavy
penalty as ten years and one day of prision
mayor to twenty years, without absolutely any
evidence to determine and clarify the true facts
of the case.
The proceedings in the trial court are irregular
from the beginning. It is expressly provided in our
Rules of Court, Rule 112, section 3, that:.
"If the defendant appears without attorney, he
must be informed by the court that it is his right
to have attorney before being arraigned, and
must be asked if he desires the aid of attorney. If
he desires and is unable to employ attorney, the
Court must assign attorney de oficio to defend
him. A reasonable time must be allowed for
procuring attorney."
Under this provision, when a defendant appears
without attorney, the court has four important
duties to comply with: 1 It must inform the
defendant that it is his right to have attorney
2|CONSTI2_Section14_Right to be Heard by Himself and Counsel
before being arraigned; 2 After giving him such
information the court must ask him if he desires
the aid of an attorney; 3 If he desires and is
unable to employ attorney, the court must assign
attorney de oficio to defend him; and 4 If the
accused desires to procure an attorney of his own
the court must grant him a reasonable time
therefor.
Not one of these duties had been complied with
by the trial court. The record discloses that said
court did not inform the accused of his right to
have an attorney nor did it ask him if he desired
the aid of one. The trial court failed to inquire
whether or not the accused was to employ an
attorney, to grant him reasonable time to procure
one or to assign an attorney de oficio. The
question asked by the court to the accused was
"Do you have an attorney or are you going to
plead guilty?" Not only did such a question fail to
inform the accused that it was his right to have
an attorney before arraignment, but, what is
worse, the question was so framed that it could
have been construed by the accused as a
suggestion from the court that he plead guilty if
he had no attorney. And this is a denial of fair
hearing in violation of the due process clause
contained in our Constitution.
One of the great principles of justice guaranteed
by our Constitution is that "no person shall be
held to answer for a criminal offense without due
process of law", and that all accused "shall enjoy
the right to be heard by himself and counsel." In
criminal cases there can be no fair hearing unless
the accused be given an opportunity to be heard
by counsel. The right to be heard would be of
little avail if it does not include the right to be
heard by counsel. Even the most intelligent or
educated man may have no skill in the science of
the law, particularly in the rules of procedure,
and, without counsel, he may be convicted not
because he is guilty but because he does not
know how to establish his innocence. And this can
happen more easily to persons who are ignorant
or uneducated. It is for this reason that the right
to be assisted by counsel is deemed so important
that it has become a constitutional right and it is
so implemented that under our rules of procedure
it is not enough for the Court to apprise an
accused of his right to have an attorney, it is not
enough to ask him whether he desires the aid of
an attorney, but it is essential that the court
should assign one de oficio for him if he so
desires and he is poor or grant him a reasonable
time to procure an attorney of his own.
It must be added, in the instant case, that the
accused who was unaided by counsel pleaded
guilty but with the following qualification: "but I
was instructed by one Mr. Ocampo." The trial
court failed to inquire as to the true import of this
qualification. The record does not show whether
the supposed instruction was real and whether it
had reference to the commission of the offense or
to the making of the plea of guilty. No
investigation was opened by the court on this
matter in the presence of the accused and there
is now no way of determining whether the
supposed instruction is a good defense or may
vitiate the voluntariness of the confession.
Apparently the court became satisfied with the
fiscal's information that he had investigated Mr.
Ocampo and found that the same had nothing to
do with this case. Such attitude of the court was
wrong for the simple reason that a mere
statement of the fiscal was not sufficient to
overcome a qualified plea of the accused. But
above all, the court should have seen to it that
the accused be assisted by counsel specially
because of the qualified plea given by him and
the seriousness of the offense found to be capital
by the court.
The judgment appealed from is reversed and the
case is remanded to the Court below for a new
arraignment and a new trial after the accused is
apprised of his right to have and to be assisted by
counsel. So ordered.
Ozaeta, Pablo, Bengzon, Padilla, Tuason,
Montemayor and Reyes, JJ., concur.
(People v. Agbayani y Mendoza, G.R. No.
122770, January 16, 1998)
EN BANC
[G.R. No. 122770. January 16, 1998.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. EDUARDO AGBAYANI y MENDOZA, accused-
appellant.
The Solicitor General for plaintiff-appellee.
Froilan V. Siobal for accused-appellant.
SYNOPSIS
Eduardo Agbayani was sentenced to death by the
Regional Trial Court, Branch 106 of Quezon City
for raping her 14-year old daughter, Eden. The
conviction was based on the testimonies of
prosecution witnesses, Dr. Florante Baltazar, the
victim and SPO1 Salvador Buenviaje.
The defense, on the other hand, interpose the
defense of denial and alibi, and one of the
evidence presented was the affidavit of
desistance of the victim. However, it was
retracted by the victim during the presentation of
the rebuttal evidence claiming that she was only
pressured by her mother and sister to sign it.
Hence, in this appeal the appellant questioned
the credibility of the testimony of the victim in
view of her execution of the affidavit of
desistance.
The Court ruled that affidavits, being taken ex
parte, are generally considered inferior to the
testimony given in open court, and affidavits of
recantation have been invariably regarded as
exceedingly unreliable, since they can easily be
secured from poor and ignorant witnesses. It
would be a dangerous rule to reject the testimony
taken before a court of justice simply because the
witness who gave it later on changed his mind for
one reason or another. Such a rule would make a
solemn trial a mockery, and place the
3|CONSTI2_Section14_Right to be Heard by Himself and Counsel
proceedings at the mercy of unscrupulous
witnesses. cIHCST
The decision of the trial court is affirmed.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; PRESUMPTIONS;
PRESUMPTION OF REGULAR PERFORMANCE
OFFICIAL DUTY; TRIAL COURT PRESUMED TO
HAVE COMPLIED WITH ITS DUTY TO INFORM
ACCUSED OF HIS RIGHT TO COUNSEL. The trial
court's order of 22 December 1994 states that
said de oficio counsel were "duly appointed by
the Court with the consent of the accused." Since
appellant miserably failed to show that he was
not informed of his right to counsel, the
presumptions that the law has been obeyed and
official duty has been regularly performed by the
trial court stand. In other words, the trial court is
presumed to have complied with its four-fold
duties under Section 6 of Rule 116 of the Rules of
Court; namely, (1) to inform the accused that he
has the right to have his own counsel before
being arraigned; (2) after giving such information,
to ask accused whether he desires the aid of
counsel; (3) if he so desires to procure the
services of counsel, the court must grant him
reasonable time to do so; and (4) if he so desires
to have counsel but is unable to employ one, the
court must assign counsel de oficio to defend
him.
2. ID.; ID.; ID.; ID.; ID.; FAILURE OF THE RECORD
TO DISCLOSE AFFIRMATIVELY THAT TRIAL JUDGE
ADVISED ACCUSED OF HIS RIGHT TO COUNSEL,
NOT SUFFICIENT TO REVERSE CONVICTION. It
is settled that the failure of the record to disclose
affirmatively that the trial judge advised the
accused of his right to counsel is not sufficient
ground to reverse conviction. The reason being
that the trial court must be presumed to have
complied with the procedure prescribed by law
for the hearing and trial of cases, and that such a
presumption can only be overcome by an
affirmative showing to the contrary. Thus it has
been held that unless the contrary appears in the
record, or that it is positively proved that the trial
court failed to inform the accused of his right to
counsel, it will be presumed that the accused was
informed by the court of such right.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT
TO COUNSEL; RIGHT TO QUESTION FAILURE OF
TRIAL COURT TO INFORM ACCUSED OF RIGHT TO
COUNSEL DEEMED WAIVED BY HIS CONSENT TO
BE ASSISTED BY TWO (2) COUNSEL DE OFICIO.
In the instant case, the trial court appointed two
de oficio counsel who assisted the appellant at
his arraignment, one of whom extensively cross-
examined the first witness for the prosecution, Dr.
Florante Baltazar. Besides, it is only in this appeal
that appellant raised the issue of the failure of
the trial court to inform him of the right to
counsel. At no time did he previously raise it in
the trial court despite ample opportunity to do so.
His consent to be assisted by counsel de oficio,
coupled with said counsel's extensive cross-
examination of Dr. Baltazar, may even be
considered a waiver of his right to question the
alleged failure of the trial court to inform him of
his right to counsel.
4. REMEDIAL LAW; COURTS; TRIAL COURTS'
COMPLIANCE WITH THEIR PRE-ARRAIGNMENT
DUTIES MUST APPEAR ON RECORD. We take
this opportunity to admonish trial courts to
ensure that their compliance with their pre-
arraignment duties to inform the accused of his
right to counsel to ask him if he desires to have
one, and to inform him that, unless he is allowed
to defend himself in person or he has counsel of
his choice, a de oficio counsel will be appointed
for him, must appear on record.
5. ID.; CRIMINAL PROCEDURE; TWO (2) DAYS TIME
TO PREPARE FOR TRIAL MUST BE EXPRESSLY
DEMANDED, OTHERWISE, IT IS DEEMED WAIVED.
Turning to the alleged violation of appellant's
right to the 2-day period to prepare for trial
Section 9 of Rule 116 of the Rules of Court reads:
SEC. 9. Time to prepare for trial After a plea of
not guilty, the accused is entitled to two (2) days
to prepare for trial unless the court for good
cause grants him further time. It must be pointed
out that the right must be expressly demanded.
Only when so demanded does denial thereof
constitute reversible error and a ground for new
trial. Further, such right may be waived, expressly
or impliedly. In the instant case, appellant did not
ask for time to prepare for trial, hence, he
effectively waived such right.
6. ID.; EVIDENCE; CREDIBILITY; THIS COURT WILL
NOT GENERALLY INTERFERE WITH THE JUDGMENT
OF THE TRIAL COURT IN PASSING UPON
CREDIBILITY OF OPPOSING WITNESSES. The
second assigned error is equally unpersuasive. It
raises the issue of the credibility of EDEN as a
witness. One of the highly revered dicta Philippine
jurisprudence has established is that this Court
will not interfere with the judgment of the trial
court in passing upon the credibility of opposing
witnesses, unless there appears in the record
some facts or circumstances of weight and
influence which have been overlooked and, if
considered, would affect the result. This is
founded on practical and empirical
considerations, i.e., the trial judge is in a better
position to decide the question of credibility,
since he personally heard the witnesses and
observed their deportment and manner of
testifying. He had before him the essential aids to
determine whether a witness was telling the truth
or lying. Truth does not always stalk boldly forth
naked, she often hides in nooks and crannies
visible only to the mind's eye of the judge who
tried the case. To him appears the furtive glance,
the blush of conscious shame, the hesitation, the
sincere or flippant or sneering tone, the heat, the
calmness, the yawn, the sigh, the candor or lack
of it, the scant or full realization of the solemnity
of an oath, the carriage and mien. On the other
hand, an appellate court has only the cold record,
which generally does not reveal the thin line
between fact and prevarication that is crucial in
determining innocence or guilt
4|CONSTI2_Section14_Right to be Heard by Himself and Counsel
7. ID.; ID.; ID.; MOTIVE OF 14-YEAR OLD
DAUGHTER IN CHARGING HER OWN FATHER OF
RAPE. If EDEN did testify regardless of these
consequences and even allowed the examination
of her private parts, she did so inspired by no
other motive than to obtain justice and release
from the psychological and emotional burdens
the painful experience had foisted upon her. It
was then improbable that EDEN fabricated a story
of defloration and falsely charged her own father
with a heinous crime.
8. CRIMINAL LAW; RAPE; MAY BE COMMITTED
WHERE PEOPLE CONGREGATE. What appellant
claims to be improbabilities in the testimony of
EDEN are more apparent than real. The presence
of her sisters in the small room did not at all
make impossible the commission of rape. The evil
in man has no conscience. The beast in him bears
no respect for time and place; it drives him to
commit rape anywhere even in places where
people congregate such as in parks, along the
roadside, within school premises, and inside a
house where there are other occupants. In People
v. Opena, rape was committed in a room
occupied also by other persons. In the instant
case, EDEN's other companions in the room when
she was molested by appellant were young girls
who were all asleep. DHSaCA
9. ID.; ID.; FORCE OR INTIMIDATION;
SUBSTITUTED BY MORAL ASCENDANCY OR
INFLUENCE BY THE FATHER OVER HIS DAUGHTER.
That EDEN was unable to resist or shout for
help can easily be explained by the fact that
appellant threatened to kill her. Whether or not
he was armed was of no moment. That threat
alone coming from her father, a person who
wielded such moral ascendancy, was enough to
render her incapable of resisting or asking for
help. In any event, in a rape committed, by a
father against his own daughter, as in this case,
the former's moral ascendancy or influence over
the latter substitutes for violence or intimidation.
Likewise, it must not be forgotten that at her
tender age of 14 years, EDEN could not be
expected to act with equanimity of disposition
and with nerves of steel or to act like a mature
and experienced woman who would know what to
do under the circumstances, or to have courage
and intelligence to disregard the threat. Even in
cases of rape of mature women, this Court
recognized their different and unpredictable
reactions. Some may shout, some may faint, and
some may be shocked into insensibility; while
others may openly welcome the intrusion.
10. ID.; ID.; INTIMIDATION; SUFFICIENT IF IT
PRODUCED FEAR FOR VICTIM'S LIFE; RESISTANCE,
UNNECESSARY. Intimidation in rape cases is not
calibrated nor governed by hard and fast rules.
Since it is addressed to the victim and is
therefore subjective, it must be viewed in light of
the victim's perception and judgment at the time
of the commission of the crime. It is enough that
the intimidation produced fear fear that if the
victim did not yield to the bestial demands of the
accused, something far worse would happen to
her at that moment. Where such intimidation
existed and the victim was cowed into submission
as a result thereof, thereby rendering resistance
futile, it would be the height of unreasonableness
to expect the victim to resist with all her might
and strength. If resistance would nevertheless be
futile because of intimidation, then offering none
at all does not mean consent to the assault so as
to make the victim' s submission to the sexual act
voluntary.
11. REMEDIAL LAW; EVIDENCE; AFFIDAVIT OF;
DESISTANCE; CONSIDERED INFERIOR TO THE
TESTIMONY GIVEN IN OPEN COURT. Nor is there
merit in the insistent claim that EDEN's affidavit
of desistance "must have necessarily
contradicted her previous testimony." We have
earlier quoted in full this affidavit of desistance.
Plainly, nowhere therein did she retract her
previous testimony or claim that she was raped
by her father. In any case, EDEN withdrew her
affidavit of desistance and solemnly declared that
she was pressured by her mother and sister to
sign it. Moreover, affidavits, being taken ex parte,
are generally considered inferior to the testimony
given in open court; and affidavits of recantation
have been invariably regarded as exceedingly
unreliable, since they can easily be secured from
poor and ignorant witnesses. It would be a
dangerous rule to reject the testimony taken
before a court of justice simply because the
witness who gave it later on changed his mind for
one reason or another. Such a rule would make a
solemn trial a mockery, and place the
proceedings at the mercy of unscrupulous
witnesses.
12. CIVIL LAW; DAMAGES; P50,000.00 INDEMNITY
FOR RAPE. To take appellant who inflicted his
animal greed on his daughter in a disgusting
coercion of incestuous lust, thereby forsaking that
which is highest and noblest in his human nature
and reducing himself to lower than the lowliest
animal, the full force of the law must be weighed
against him, for he deserves no place in society.
All that we concede to him is a modification of
the award of "P75,000.00 as damages," which is
hereby reduced to P50,000.00 in accordance with
current case law.
DECISION
PER CURIAM p:
Nine years and four months ago this Court
declared:
Rape is a nauseating crime that deserves the
condemnation of all decent persons who
recognize that a woman's cherished chastity is
hers alone to surrender of her own free will.
Whoever violates that will descends to the level
of the odious beast. The act becomes doubly
repulsive where the outrage is perpetrated on
one's own flesh and blood for the culprit is
reduced to lower than the lowly animal. The latter
yields only to biological impulses and is
unfettered by social inhibitions when it mates
5|CONSTI2_Section14_Right to be Heard by Himself and Counsel
with its own kin, but the man who rapes his own
daughter violates not only her purity and her
trust but also the mores of his society which he
has scornfully defied. By inflicting his animal
greed on her in a disgusting coercion of
incestuous lust, he forfeits all respect as a human
being and is justly spurned by all, not least of all
by the fruit of his own loins whose progeny he
has forever stained with his shameful and
shameless lechery. 1
At the end of the day, after resolving this case of
14-year-old Eden Agbayani who charged her own
father with rape committed in the sanctity of their
rented room on 19 July 1994, this Court finds
itself repeating this declaration. 2
Before this Court on automatic review is the
decision 3 of the Regional Trial Court of Quezon
City, Branch 106, in view of the death penalty
imposed by it for the crime of rape, defined and
penalized under Article 335 of the Revised Penal
Code, as amended by R.A. NO. 7659. 4
On 12 September 1994, the Station Investigation
and Intelligence Division of the National Capital
Regional Command, Philippine National Police
(PNP), endorsed to the Office of the City
Prosecutor of Quezon City the complaint of Eden
Agbayani (hereafter EDEN) for rape against her
father, herein accused-appellant Eduardo
Agbayani y Mendoza. 5
After appropriate preliminary investigation, a
complaint 6 for rape signed by EDEN, assisted by
her sister Fedelina Agbayani, and subscribed and
sworn to before Asst. City Prosecutor Charito B.
Gonzales, was filed against appellant with the
Regional Trial Court of Quezon City on 27 October
1994. The case was docketed as Criminal Case
No. Q-94-59149, then set for arraignment, pre-
trial and trial on 22 December 1994. 7
At his arraignment on 22 December 1994,
appellant, assisted by Attys. Samuel Baldado and
Edwin de la Cruz as counsel de oficio, entered a
plea of not guilty. 8 Upon agreement of the
parties, trial on the merits immediately followed,
with the prosecution presenting the first witness,
Dr. Florante Baltazar, a Medico-Legal Officer of
the PNP Crime Laboratory, 9 who was cross-
examined by Atty. Baldado. 10 On the succeeding
dates of trial, the prosecution presented EDEN 11
and SPO1 Salvador Buenviaje. 12 During these
hearings, however, appellant was represented by
Atty. Arturo Temanil of the Public Attorney's
Office. 13
On its part, the defense presented appellant,
Adoracion M. Cruz, Fedelina Agbayani, as well as
EDEN who identified her and Fedelina's affidavit
of desistance, 14 which was subscribed and
sworn to before notary public Eranio Cedillo on 6
February 1995. Said affidavit reads as follows:
We, Eden Agbayani, 14 years old, complainant
and Fedelina Agbayani, 19 years old, sister of
Eden Agbayani, and presently residing at No.,
Phase 1, United Glorieta, Kaniogan, Pasig, Metro
Manila, after having been duly sworn to in
accordance with law do hereby depose and states
[sic]: dctai
That we are the complainant [sic] against our
father, Eduardo Agbayani pending before this
honorable Court docketed as Criminal Case No.
59149;
That after evaluating the circumstance that lead
[sic] to the filing of the instant case I formally
realize that the incident between us and my
father is purely family problem that arise from the
disciplinarian attitude of our father;
That this resulted to family misunderstanding,
hence we decided to formally forego this case
and withdraw the same:
That I am executing this affidavit for purposes of
finally withdrawing the instant case and
therefrom requesting this Honorable Court to
dismiss the case against our father.
That this affidavit was executed freely and
voluntarily.
As EDEN declared in open court that what she
said in her previous testimony and sworn
statement were not true, the trial court held her
in direct contempt of court, reasoning that her
"intentional falsehood" was "offensive to its
dignity and a blatant disrespect to the Court, and
actually degrading [to] the administration of
justice." Accordingly, the trial court ordered her
"committed to incarceration and imprisonment
within the period provided by law," 15 which
penalty, however, was modified to a fine of
P200.00 upon EDEN's motion for reconsideration.
16
On rebuttal, the prosecution had EDEN back on
the witness stand. She retracted her affidavit of
desistance and claimed that she had signed it
under coercion by her mother and elder sister.
The trial court's summary of the evidence for the
prosecution, with the references to the pages of
the stenographic notes and exhibits deleted, is as
follows:
The evidence adduced on record shows that
sometime in September of 1993 in Malolos,
Bulacan, the accused was charged by his two
daughters, FEDELINA and DODIMA AGBAYANI,
[with] the crime of rape which case was raffled to
the sala of Judge Danilo Manalastas of Branch 7,
Regional Trial Court, Bulacan. The case was,
however, provisionally dismissed by said Judge
after the complainants desisted from pursuing
the same in May 1994. Eduardo Agbayani was
thus consequently released from jail on July 13,
1994. Three (3) days thereafter, he began living
with four (4) of his six (6) daughters, Fedelina,
Eden, Diana and Edima, in a rented room at 30-A
Makabayan St., Bgy. Obrero, Quezon City.
The evidence of the prosecution, in part
consisting of the testimonies of Complainant
6|CONSTI2_Section14_Right to be Heard by Himself and Counsel
Eden Agbayani, Medico Legal Officer, Dr. Florante
Baltazar and SPO1 Salvador Buenviaje, shows
that at the above-mentioned address, the
complainant, Eden Agbayani, on the evening of
July 19, 1994, was sleeping on the floor of the
room with her father, the accused Eduardo
Agbayani and her youngest sister, Edima, while
her sisters, Fedelina and Diana slept on a bed. At
the time, complainant's mother was outside the
country, working in Saudi Arabia. At about 9:00
p.m. of July 19, Complainant Eden Agbayani was
awakened from her sleep by hands caressing her
breasts and vagina. She turned to discover that it
was her father who was then molesting her.
Frightened, she asked, "Tay bakit niyo po
ginagawa sa akin ito, gayong kalalabas mo lang
sa kulungan?" and threatened to kill her [sic]. The
accused then proceeded to undress her.
Thereafter he undressed himself and succeeded
in having carnal knowledge with the complainant
who could only cry helplessly. The complainant
thereafter felt blood dripping from her vagina and
felt pain.
The next day, or on July 20, 1994, the
complainant informed her elder sister, Fedelina,
of what had been done to her by her father. She
was told not to worry as they would go to Bulacan
to report the incident to Fiscal Caraeg of Bulacan,
who had, the year before, handled the rape case
filed by Fedelina and Dodima. Several attempts
were made by her sisters, Fedelina and Eden to
reach the said fiscal but it was only on September
9, 1994, that they were able to meet with him.
Fiscal Caraeg of Bulacan reported the complaint
to Judge Danilo Manalastas who reopened tile
previously provisionally dismissed case and
issued a warrant of arrest against the herein
accused.
With the assistance of police officers from Station
10 of the SIID in Quezon City, the accused was
arrested on the same day at his residence at 30-A
Makabayan St., Bgy. Obrero, Quezon City and was
later brought to Malolos, Bulacan where he is
currently detained. After the accused's arrest,
Eden and Fedelina returned to Station 10 where
they made individual statements before SPO1
Salvador Buenviaje narrating the events leading
to and occurring after the incident of July 19,
1994.
The next morning, Eden was examined by
Medico-Legal Officer and Chief of the PNP Crime
Laboratory, Dr. Florante Baltazar, a colonel, who,
accordingly, prepared the corresponding Medico-
Legal Report. 17
Appellant put up the defense of denial and alibi.
According to him, he could not have raped his
daughter EDEN, because on 19 July 1994, he was
in Barangay Victoria in Sual, Pangasinan, visiting
his eldest daughter. 18 He declared that EDEN
charged him with rape because he had hit her
with a belt after he caught her lying about her
whereabouts one night. Then on 24 July 1994,
she left their rented apartment and did not return
anymore. 19
Adoracion Cruz corroborated appellant's alibi. She
declared that on 17 July 1994, appellant
requested her to take care of his children because
he was going to Pangasinan to visit his sick
father, returning home only on 21 July 1994. 20
The trial court gave full credence to the
testimony of EDEN, who "appeared, during her
entire testimonies on January 20 and May 4,
1995, coherent, candid and responsive;" further,
it commended her "for her courage and her
unwavering strength in the midst of the
emotional and psychological strain and
humiliation, not to mention the pressure and lack
of moral support of her family, brought on by the
filing of this case." It also ruled that EDEN did not
voluntarily execute the affidavit of desistance as
it was procured "at the behest of her mother and
sister for whom the sanctity of the family and the
family's good name were more important than
demanding punishment for whatever injury the
complainant might have suffered in the hands of
the accused." Besides, even assuming arguendo
that no such pressure was exerted by her mother
and sister, the trial court declared that it
understood EDEN's moral predicament, viz., for a
child like EDEN, it was difficult to charge her own
father with rape; insist on his punishment; and
thereby inflict emotional stress and financial
strain upon the members of her family,
particularly her mother.
The trial court likewise gave full faith to the sworn
statement (Exhibit "E") of Fedelina Agbayani.
Turning to the defense of appellant, the trial court
found his alibi wholly self-serving, and
characterized the testimony of Adoracion Cruz
unworthy of belief. As to appellant's claim that
EDEN filed the complaint because of a grudge
against him, the trial court found this "incredible,
if not totally absurd," for:
The complainant is an innocent girl of tender
years who is unlikely to possess such
vindictiveness and dearth of conscience as to
concoct such a malicious and damaging story.
The complainant appeared, during her entire
testimonies on January 20 and May 4, 1995,
coherent, candid and responsive. Her retraction
on March 16 was sufficiently explained to this
Court (tsn, 5-4 95, testimony of Eden Agbayani,
pp. 2-3). She has shown to this Court the
seriousness of the injury upon her person and
dignity inflicted upon by the accused . . . Even
assuming argumenti gratia that the complainant
would indeed lodge a complaint against her
father solely on account of an altercation with
him, it is highly unlikely that the complainant
would concoct a charge which would damage her
and wreck havoc on her family's reputation,
destroy the household peace and subject her
father, the accused, to a grave punishment which
by dent of express of law, can obliterate him from
the face of this earth. Indeed, to uphold the
7|CONSTI2_Section14_Right to be Heard by Himself and Counsel
defense's proposition would be stretching the
imagination too far, if not to the extreme.
The trial court finally found that appellant
employed on EDEN force or intimidation by virtue
of his moral ascendancy over her and his threat
that he would kill her if she reported the incident
to anyone.
Accordingly, the trial court, applying Section 11 of
R.A. NO. 7659 which imposes the penalty of death
when the victim is under eighteen years of age
and the offender is a parent, ascendant,
stepparent, guardian, relative by consanguinity or
affinity within the third civil degree, or common-
law spouse of the parent of the victim, rendered
judgment against appellant, to wit:
WHEREFORE, considering all the foregoing,
judgment is hereby rendered finding the accused,
EDUARDO AGBAYANI, GUILTY beyond reasonable
doubt of the crime of RAPE committed against
complainant, Eden Agbayani, his minor daughter.
This Court, as a consequence thereof, hereby
imposes upon him the supreme penalty of
DEATH, conformably with the provisions of the
death penalty law, R.A. 7659. Further, Accused is
hereby ordered to pay the complainant, Eden
Agbayani, the sum of P75,000.00 as damages,
with all the necessary penalties provided for by
law without subsidiary imprisonment, however, in
the event of insolvency and to pay the costs.
Let the entire records of this case be forwarded to
the Supreme Court on automatic review.
SO ORDERED.
On 26 May 1995, appellant, through his new
counsel de parte Attorneys Froilan V. Siobal and
Domingo Floresta, filed a Motion for New Trial 21
on the ground that serious irregularities
prejudicial to his substantial rights were
committed during the trial, viz., the failure of the
counsel de oficio to: (a) present at trial the
Barangay Captain of Barangay Obrero, Quezon
City, who would have testified, on the basis of his
certification attached to the motion, that there
was a house bearing No. 30, Makabayan St., in
his barangay, but that there was no such place as
30-A Makabayan St. of said barangay, which was
the address given by EDEN; (b) consider the
futility of Adoracion Cruz's testimony; (c) present
private complainant's mother and sister Fedelina
on sur-rebuttal to testify as to the circumstances
which brought about he execution of the affidavit
of desistance; and (d) cross-examine complainant
and the police investigator exhaustively. He
further alleged that his counsel de oficio was
never prepared during all the scheduled hearings,
worse, even waived the presence of appellant
after the third witness for the prosecution was
presented. He also averred that the trial court
used its inherent power of contempt to intimidate
private complainant.
In their Comments/Opposition to the Motion for
New Trial, 22 the public and private prosecutors
alleged that there were no such irregularities;
neither was there new and material evidence to
be presented that appellant could not, with
reasonable diligence, have discovered and
produced at the trial and which if introduced and
admitted at trial would probably change the
judgment of the court.
In its Order 23 of 31 July 1995, the trial court
denied the motion for new trial for being devoid
of merit and for not being within the purview of
Sections 1 and 2, Rule 121 of the Rules of Court.
In his Appellant's Brief filed before this Court,
appellant contends that the trial court erred in:
(a) denying his motion for new trial; and (b)
holding that the prosecution proved beyond
reasonable doubt that he committed the crime
charged.
In support of the first assigned error, appellant
reiterates the grounds in his motion for new trial,
and adds two others, namely, (1) the lower court
failed to apprise him of his right to have counsel
of his own choice; and (2) the lower court did not
give him the opportunity to prepare for trial,
despite the mandated period of two days
prescribed in Section 9 of Rule 116 of the Rules of
Court.
In his second assigned error, appellant contends
that EDEN's testimony is not sufficient to convict,
since it is unclear and not free from serious
contradictions. Considering their proximity to
EDEN, it was impossible for her sisters or any one
of them not to have been awakened when EDEN
was allegedly being abused by him. Strangely,
EDEN simply kept quiet and allowed him to abuse
her; neither did she shout for help or put up a
fight that would have awakened her sisters.
Notably, EDEN and her sisters allowed him to live
and sleep with them again in their rented room
even after the alleged rape.
Finally, appellant asserts that EDEN's testimony is
unreliable because her affidavit of desistance
must have necessarily been contradictory
thereto. Her "subsequent turn-around . . . that
she was pressured and influenced to execute and
sign the affidavit of desistance further confirmed
her being untruthful and, in effect, demolished
whatsoever faith left on her charge against the
accused."
The Office of the Solicitor General (OSG)
considers the first assigned error as devoid of
merit. When appellant appeared without counsel
at the arraignment, the trial court informed him
that it would appoint de oficio counsel for him if
he so desired, to which appellant agreed.
Moreover, the 2-day period to prepare for trial
provided in Section 9 of Rule 116 is merely
directory and does not prohibit the court from
proceeding with trial after arraignment, especially
if the defense, as here, consented thereto. It
would have been entirely different if the defense
did not agree, in which case the court would have
no other alternative but to grant him the period.
As to appellant's other grievances, the OSG
points out that throughout all the hearings,
8|CONSTI2_Section14_Right to be Heard by Himself and Counsel
appellant never questioned the way his defense
was being handled by his counsel de oficio. The
latter's request for a continuance because he had
not yet conferred with appellant was not evidence
of counsel's lack of sincerity. On the contrary, it
showed counsel's awareness of his duty to confer
with appellant to ferret out the relevant facts as
regards the second witness for the prosecution.
Likewise, the waiver of appellant's presence
during the hearing of 18 March 1995 did not
prejudice him, because on that date, the defense
presented EDEN to testify as to her affidavit of
desistance, and Fedelina to corroborate the
statements of EDEN which testimonies were in
appellant's favor. As to the manner appellant's
counsel de oficio cross-examined the prosecution
witnesses, the OSG stresses that the record
shows that said counsel tried his best.
The OSG then characterizes the second assigned
error as "barren of merit." EDEN's positive
identification of appellant as the author of the
crime rendered appellant's defense of alibi
unavailing; moreover, she demonstrated clearly
and vividly what transpired that fateful evening of
19 July 1994. Thus in view of EDEN's candid and
categorical manner of testifying the OSG
concluded that she was a credible witness. 24
As to the commission of rape in a small room and
in the presence of other persons, the OSG
maintains that such was not at all improbable. 25
There was, as well, nothing unusual in EDEN's
silence; as she could only attempt to shout
because appellant had succeeded in covering her
mouth with his hands and exercised a high level
of moral ascendancy over EDEN, his daughter. 26
Hence the OSG invokes the principle that in a
rape committed by a father against his own
daughter, the former's moral ascendancy and
influence over the latter substitutes for violence
or intimidation. 27
As regards EDEN's affidavit of desistance, the
OSG maintains that courts look with disfavor on
retraction of testimonies previously given in
court, for such can easily be secured from poor
and ignorant witnesses usually for a monetary
consideration, 28 as well as the probability that it
may later be repudiated.
In his Reply Brief, appellant countered that his
consent to the appointment of counsel de oficio
at his arraignment did not relieve the court of its
duty under Section 6 of Rule 116 of the Rules of
Court to inform him of his right to counsel and
that it would be grievous error to deny an
accused such right. Appellant then elaborated on
this point as follows:
This is not without judicial precedent. In People
vs. Cachero, 73 Phil. 426 and People vs.
Domenden, 73 Phil. 349, cited in R.J. Francisco's
Criminal Procedure, Third Ed., 1966, p. 323 it was
held, that:
"The courts should comply with Rule 116, Sec. 3.
It would be a grievous error to proceed by
sentencing the accused without due process of
law and this is not complete, when the accused is
denied the right recognized by said rule. The
records must show compliance therewith or that
the accused renounced his right to be assisted by
counsel. This is demanded by the interest of
justice and remove all doubts that if the accused
had waived said right, he was fully informed
before giving his plea of its consequences.
Omission by courts whether voluntary should not
truly be censured but also condemned."
Discussing further the right to the 2-day period to
prepare for trial, the appellant contends that said
right:
[H]as been held to be mandatory and denial of
this right is a reversible error and a ground for
new trial. (R.J. Francisco's Criminal Procedure,
Third Ed., 1986, p. 404, citing People vs. Mijares,
et al., 47 OG 4606; Dumasig v. Morave, 23 SCRA
659). This must be so ". . . to prevent that any
accused be caught unaware and deprived of the
means of properly facing the charges presented
against him." LibLex
The first assigned error does not persuade this
Court. It is true that the transcript of the
stenographic notes of the proceedings of 22
December 1994 and the order issued by the trial
court after the conclusion of said proceedings
only state that the court appointed de oficio
counsel with the consent of the said accused.
They do not categorically disclose that the trial
informed appellant of his right to counsel of his
own choice. However, this does not mean that
the trial court failed to inform appellant of such
right. The precise time the two counsel de oficio
were appointed is not disclosed in the record
either. At the recorded portion of the arraignment
aspect of the proceedings on 22 December 1994,
the two formally entered their appearance, thus:
COURT:
Call the case.
(Interpreter calls the case).
FISCAL ROSARIO BARIAS:
For the prosecution, Your Honor.
ATTY. MARIETA AGUJA:
Respectfully appearing for the prosecution, Your
Honor under the control and direct supervision of
the Trial Prosecutor, Your Honor, we are ready to
present our first witness.
ATTY. BALDADO:
For the accused Your Honor, appointed as counsel
de oficio.
ATTY. DE LA CRUZ:
9|CONSTI2_Section14_Right to be Heard by Himself and Counsel
For the accused, Your Honor appointed by the
court as counsel de oficio. 29
This obviously means that the appointment had
taken place earlier. The trial court's order 30 of 22
December 1994 states that said de oficio counsel
were "duly appointed by the Court with the
consent of the accused." Since appellant has
miserably failed to show that he was not informed
of his right to counsel, the presumptions that the
law has been obeyed and official duty has been
regularly performed by the trial court stand. 31 In
other words, the trial court is presumed to have
complied with its four-fold duties under Section 6
32 of Rule 116 of the Rules of Court, namely, (1)
to inform the accused that he has the right to
have his own counsel before being arraigned; (2)
after giving such information, to ask accused
whether he desires the aid of counsel; (3) if he so
desires to procure the services of counsel, the
court must grant him reasonable time to do so;
and (4) if he so desires to have counsel but is
unable to employ one, the court must assign
counsel de oficio to defend him. 33
It is settled that the failure of the record to
disclose affirmatively that the trial judge advised
the accused of his right to counsel is not
sufficient ground to reverse conviction. The
reason being that the trial court must be
presumed to have complied with the procedure
prescribed by law for the hearing and trial of
cases, and that such a presumption can only be
overcome by an affirmative showing to the
contrary. Thus it has been held that unless the
contrary appears in the record, or that it is
positively proved that the trial court failed to
inform the accused of his right to counsel, it will
be presumed that the accused was informed by
the court of such right. 34
In U .S. v. Labial, 35 this Court held:
Adhering to the doctrine laid down in that case,
the only question to be determined in this case is
whether the failure of the record to disclose
affirmatively that the trial judge advised the
accused of their right to have counsel is sufficient
ground to reverse the judgment of conviction and
to send the case back for a new trial. Upon this
point we are all agreed that in the absence of an
affirmative showing that the court below did in
fact fail to advise the accused of their rights
under the provisions of sections 17 of General
Orders No. 58, as amended by section 1 of Act
No. 440, the mere omission from the record
brought here upon appeal of an entry
affirmatively disclosing that he did so, is not
reversible error.
In the absence of an affirmative showing to the
contrary, the court below must be presumed in
matters of this kind to have complied with the
provisions of law prescribing the procedure to be
followed in the trial had before him.
While in People v. Miranda 36 this Court explicitly
stated:
However, said counsel calls attention to the fact
that the record is silent as to whether or not, at
the time appellant was arraigned, the trial court
informed him of his right to be assisted by an
attorney, under section 3 of Rule 112 of the Rules
of Court.
This precise issue was determined in United
States vs. Labial (27 Phil. 87, 88), in the sense
that unless the contrary appears in the records, it
will be presumed that the defendant was
informed by the court of his right to counsel. ". . .
If we should insist on finding every fact fully
recorded before a citizen can be punished for an
offense against the laws, we should destroy
public justice, and give unbridled license to
crime. Much must be left to intendment and
presumption, for it is often less difficult to do
things correctly than to describe them correctly."
(United States vs. Labial, supra.) The same
doctrine was reiterated in People vs. Abuyen (52
Phil. 722) and in United States vs. Custan (28
Phil. 19). We see no reason to modify it now.
In the instant case, the trial court appointed two
de oficio counsel who assisted the appellant at
his arraignment, one of whom extensively cross-
examined the first witness for the prosecution, Dr.
Florante Baltazar. 37 Besides, it is only in this
appeal that appellant raised the issue of the
failure of the trial court to inform him of the right
to counsel. At no time did he previously raise it in
the trial court despite ample opportunity to do so.
His consent to be assisted by counsel de oficio,
coupled with said counsel's extensive cross-
examination of Dr. Baltazar, may even be
considered a waiver of his right to question the
alleged failure of the trial court to inform him of
his right to counsel. 38
The cases of People v. Domenden 39 and People
v. Cachero 40 cited by appellant are inapplicable.
In both cases the trial courts there clearly failed
to inform the accused of their right to counsel nor
appoint de oficio counsel during the arraignment.
Nevertheless, we take this opportunity to
admonish trial courts to ensure that their
compliance with their pre-arraignment duties to
inform the accused of his right to counsel, to ask
him if he desires to have one, and to inform him
that, unless he is allowed to defend himself in
person or he has counsel of his choice, a de oficio
counsel will be appointed for him, must appear on
record.
Turning to the alleged violation of appellant's
right to the 2-day period to prepare for trial,
Section 9 of Rule 116 of the Rules of Court reads:
SEC. 9. Time to prepare for trial. After a plea of
not guilty, the accused is entitled to two (2) days
to prepare for trial unless the court for good
cause grants him further time.
It must be pointed out that the right must be
expressly demanded. 41 Only when so demanded
does denial thereof constitute reversible error
and a ground for new trial. 42 Further, such right
may be waived, expressly or impliedly. 43 In the
10 | C O N S T I 2 _ S e c t i o n 1 4 _ R i g h t t o b e H e a r d b y H i m s e l f a n d C o u n s e l
instant case, appellant did not ask for time to
prepare for trial, hence, he effectively waived
such right.
During the succeeding hearings, appellant was
represented by Atty. Temanil of the Public
Attorney's Office in Quezon City, who entered his
appearance as de parte, and not as de oficio,
counsel. It is to be presumed that Atty. Temanil's
services were obtained pursuant to the law
creating the Public Attorney's Office (PAO),
formerly the Citizen's Legal Assistance Office
(CLAO). 44 There is at all no showing that Atty.
Temanil lacked the competence and skill to
defend appellant. The latter's contention that his
counsel was not ready at all times because at the
hearing on 20 January 1995 he asked for a
continuation as he has "not yet interviewed [his]
client," 45 is misleading. Atty. Temanil made that
statement after he cross-examined EDEN and
after the judge realized that it was almost 1:00
o'clock in the afternoon and both of them were
already hungry, thus:
ATTY. TEMANIL:
I just want to make it on record, Your Honor that
from the start of trial the witness appears to be
fluent and suffers no difficulty in answering the
questions, even the questions propounded by the
Private Prosecutor, Your Honor.
COURT:
Put that on record.
That is true, Atty. Temanil, it is almost 1:00 o'clock
in the afternoon and we are both hungry now.
ATTY. TEMANIL.
I will just asked [sic] for continuance considering
that I have not yet interviewed my client, Your
Honor. 46
Neither is there merit in appellant's claim that his
counsel committed irregularities: (1) in not
considering the futility of the testimony of
Adoracion Cruz; (2) in not presenting the
barangay captain in the evidence in chief for the
defense, and EDEN's mother and sister Fedelina
in sur-rebuttal; and (3) in not cross-examining
exhaustively EDEN.
Adoracion Cruz was presented to corroborate
appellant's alibi that he was in the province and
not in their rented room from 17 to 21 July 1994.
On the other hand, the testimony of the barangay
captain could not alter the fact that rape was
committed in a rented room in a house along
Makabayan Street in his barangay. Appellant
neither testified that he did not occupy a house
numbered 30-A nor denied that he was living with
EDEN and her sisters in that room. Besides, he
and his children were not renting the entire
house, but merely a room, which could probably
be the unit numbered "30-A" referred to by EDEN.
As to the presentation of EDEN's mother and
sister Fedelina as sur-rebuttal witnesses to
disprove the claim of EDEN that they coerced her
into signing the affidavit of desistance, suffice it
to state that there was nothing to show that they
were in fact willing to refute EDEN's claim.
Finally, contrary to appellant's allegation, a
meticulous examination of the transcripts of the
stenographic notes convinces this Court that Atty.
Temanil sufficiently cross-examined EDEN. If he
decided to terminate his cross-examination, it
could have been due to the futility of any further
cross-examination which might only prove
favorable to the prosecution, as it might have
opened another window of opportunity for EDEN
to strengthen her testimony.
The second assigned error is equally
unpersuasive. It raises the issue of the credibility
of EDEN as a witness. One of the highly revered
dicta Philippine jurisprudence has established is
that this Court will not interfere with the
judgment of the trial court in passing upon the
credibility or opposing witnesses, unless there
appears in the record some facts or
circumstances of weight and influence which
have been overlooked and if considered, would
affect the result. This is founded on practical and
empirical considerations, i.e., the trial judge is in
a better position to decide the question of
credibility, since he personally heard the
witnesses and observed their deportment and
manner of testifying. 47 He had before him the
essential aids to determine whether a witness
was telling the truth or lying. Truth does not
always stalk boldly forth naked; she often hides in
nooks and crannies visible only to the mind's eye
of the judge who tried the case. To him appears
the furtive glance, the blush of conscious shame,
the hesitation, the sincere or flippant or sneering
tone, the heat, the calmness, the yawn, the sigh,
the candor or lack of it, the scant or full
realization of the solemnity of an oath, the
carriage and mien. 48 On the other hand, an
appellate court has only the cold record, which
generally does not reveal the thin line between
fact and prevarication that is crucial in
determining innocence or guilt. 49
At any rate, in view of the gravity of the offense
charged and the extreme penalty of death
imposed, this Court took painstaking effort and
meticulous care in reviewing the transcripts of
the stenographic notes of the testimonies of the
witnesses.
This Court is fully satisfied that EDEN told the
truth that she was raped by her father, herein
appellant, on 19 July 1994, in their rented room in
Barangay Obrero, Quezon City. Her story was
made even more credible by the simplicity and
candidness of her answers, as well as by the fact
that it came from an innocent girl writhing in
emotional and moral shock and anguish. She
must have been torn between the desire to seek
justice and the fear that a revelation of her ordeal
might mean the imposition of capital punishment
on her father. By testifying in court, she made
11 | C O N S T I 2 _ S e c t i o n 1 4 _ R i g h t t o b e H e a r d b y H i m s e l f a n d C o u n s e l
public a painful and humiliating secret, which
others may have simply kept to themselves for
the rest of their lives. She thereby jeopardized
her chances of marriage, as even a
compassionate man may be reluctant to marry
her because her traumatic experience may be a
psychological and emotional impediment to a
blissful union. Moreover, such a revelation divided
her family and brought it shame and humiliation.
If EDEN did testify regardless of these
consequences and even allowed the examination
of her private parts, she did so inspired by no
other motive than to obtain justice and release
from the psychological and emotional burdens
the painful experience had foisted upon her. It
was then improbable that EDEN fabricated a story
of defloration and falsely charged her own father
with a heinous crime.
What appellant claims to be improbabilities in the
testimony of EDEN are more apparent than real.
The presence of her sisters in the small room did
not at all make impossible the commission of
rape. The evil in man has no conscience. The
beast in him bears no respect for time and place;
it drives him to commit rape anywhere even in
places where people congregate such as in parks,
along the roadside, within school premises, and
inside a house where there are other occupants.
50 In People v. Opena, 51 rape was committed in
a room occupied also by other persons. In the
instant case, EDEN's other companions in the
room when she was molested by appellant were
young girls who were all asleep.
That EDEN was unable to resist or shout for help
can easily be explained by the fact that appellant
threatened to kill her. Whether or not he was
armed was of no moment. That threat alone
coming from her father, a person who wielded
such moral ascendancy, was enough to render
her incapable of resisting or asking for help.
Intimidation in rape cases is not calibrated nor
governed by hard and fast rules. Since it is
addressed to the victim's and is therefore
subjective, it must be viewed in light of the
victim's perception and judgment at the time of
the commission of the crime. It is enough that the
intimidation produced fear fear that if the
victim did not yield to the bestial demands of the
accused, something far worse would happen to
her at that moment. Where such intimidation
existed and the victim was cowed into submission
as a result thereof, thereby rendering resistance
futile, it would be the height of unreasonableness
to expect the victim to resist with all her might
and strength. If resistance would nevertheless be
futile because of intimidation, then offering none
at all does not mean consent to the assault so as
to make the victim's submission to the sexual act
voluntary. 52
In any event, in a rape committed by a father
against his own daughter, as in this case, the
former's moral ascendancy or influence over the
latter substitutes for violence or intimidation. 53
Likewise, it must not be forgotten that at her
tender age of 14 years, EDEN could not be
expected to act with the equanimity of disposition
and with nerves of steel, or to act like a mature
and experienced woman who would know what to
do under the circumstances, or to have courage
and intelligence to disregard the threat. 54 Even
in cases of rape of mature women, this Court
recognized their different and unpredictable
reactions. Some may shout; some may faint; and
some may be shocked into insensibility; while
others may openly welcome the intrusion. 55
Neither does the fact that EDEN continued to live
with appellant in the same rented room disprove
the rape. While she was hurt physically,
psychologically and emotionally, yet the thought
must have been irresistible and compelling that
her assailant was her own father, who was both a
father and mother to her since her mother was in
Saudi Arabia and who provided her with the daily
wherewithal to keep her alive. Besides, a less
harsh life outside was uncertain. Instances are
not few when daughters raped by their fathers
stayed with the latter and kept in the deepest
recesses of their hearts the evil deed even if the
memory thereof haunted them forever. LibLex
Nor is there merit in the insistent claim that
EDEN's affidavit of desistance "must have
necessarily contradicted her previous testimony."
We have earlier quoted in full this affidavit of
desistance. Plainly, nowhere therein did she
retract her previous testimony or claim that she
was raped by her father. In any case, EDEN
withdrew her affidavit of desistance and solemnly
declared that she was pressured by her mother
and sister to sign it. Moreover, affidavits, being
taken ex parte, are generally considered inferior
to the testimony given in open court; 56 and
affidavits of recantation have been invariably
regarded as exceedingly unreliable, since they
can easily be secured from poor and ignorant
witnesses. It would be a dangerous rule to reject
the testimony taken before a court of justice
simply because the witness who gave it later on
changed his mind for one reason or another. Such
a rule would make a solemn trial a mockery, and
place the proceedings at the mercy of
unscrupulous witnesses. 57
This Court has no doubt that appellant is guilty as
charged. The penalty therefor is death under the
first circumstance mentioned in Article 335(7) of
the Revised Penal Code, as amended by R.A. NO.
7659, which provides, in part, as follows:
The death penalty shall also be imposed if the
crime of rape is committed with any of the
following attendant circumstances:
1. When the victim is under eighteen (18) years
of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity
or affinity within the third civil degree, or the
common-law spouse of the parent of the victim.
12 | C O N S T I 2 _ S e c t i o n 1 4 _ R i g h t t o b e H e a r d b y H i m s e l f a n d C o u n s e l
This law may be difficult to accept for those who
believe that the verdict of death for a sin or crime
is God's exclusive prerogative. But the
fundamental law of the land allows Congress, for
compelling reasons, to impose capital
punishment in cases of heinous crimes, 58 hence
the passage of R.A. NO. 7659. Hoc quidem per
quam durum est sed ita lex scripta est. The law
may be exceedingly hard but so the law is written
and the Court is duty-bound to apply it in this
case.
To the appellant who inflicted his animal greed on
his daughter in a disgusting coercion of
incestuous lust, thereby forsaking that which is
highest and noblest in his human nature and
reducing himself to lower than the lowliest
animal, the full force of the law must be weighed
against him, for he deserves no place in society.
All that we concede to him is a modification of
the award of "P75,000.00 as damages," which is
hereby reduced to P50,000.00 in accordance with
current case law.
WHEREFORE, judgment is hereby rendered
AFFIRMING the decision of the Regional Trial Court
of Quezon City, Branch 106, in Criminal Case No.
Q-94-59149 finding accused-appellant EDUARDO
AGBAYANI y MENDOZA guilty beyond reasonable
doubt as principal of the crime of rape defined
and penalized under Article 335 of the Revised
Penal Code, as amended by R.A. NO. 7659, and
imposing upon him the penalty of DEATH, subject
to the above modification as to the amount of
indemnity.
Two Justices voted to impose upon the accused-
appellant the penalty of reclusion perpetua.
Upon finality of this Decision, let certified true
copies thereof, as well as the records of this case,
be forwarded without delay to the Office of the
President for possible exercise of executive
clemency pursuant to Article 83 of the Revised
Penal Code, as amended by Section 25 of R.A.
NO. 7659.
With costs de oficio.
SO ORDERED.
Narvasa, C .J ., Regalado, Davide, Jr., Romero,
Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco, Panganiban and Martinez, JJ ., concur.
(Amion v. Chiongson, A.M. No. RTJ-97-1371,
January 22, 1999)
FIRST DIVISION
[A.M. No. RTJ-97-1371. January 22, 1999.]
BALTAZAR D. AMION, complainant, vs. JUDGE
ROBERTO S. CHIONGSON, Branch 50, Regional
Trial Court, Bacolod City, respondent.
SYNOPSIS
A verified complaint was filed by Baltazar D.
Amion charging Judge Roberto S. Chiongson with
ignorance of the law and oppression. The
complaint was relative to a murder case pending
before his court, in which the complainant is the
accused. The allegations against respondent
judge are premised on his appointment of a
counsel de oficio for accused-complainant despite
the latter's objection thereto on the ground that
he had his own retained counsel. In his comment,
respondent judge alleged that his appointment of
a counsel de oficio to represent the accused-
complainant is justified because of the vexatious
and oppressive delay on the latter's part who has
been represented by a counsel de parte who
refuses or fails to appear during hearings. He
averred that the records of the case will show
that the accused-complainant and his lawyers
have employed every means fair, but mostly foul,
to delay the resolution of the criminal case.
The Court found that the accused-complainant
has been the oppressor while respondent judge
appears to be the oppressed. Through the course
of the proceedings in the subject criminal case,
accused-complainant had filed several Motions
for Inhibition, a Petition for Certiorari and
Mandamus, and this administrative complaint
with the view of delaying the eventual disposition
of the case. The actuation of respondent judge in
the murder case does not warrant reproach and
reprimand, but in fact, merits the
acknowledgment and approval of the Supreme
Court. Such manifestation of zeal clearly shows
respondent judge's ardent determination to
expedite the case and render justice. The Court
resolved to dismiss the administrative complaint
against the respondent judge, imposed a fine of
P5,000.00 on accused-complainant, and
admonished said accused-complainant for filing a
malicious and unmeritorious complaint against
the respondent judge.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS;
PREFERENCE IN THE CHOICE OF COUNSEL,
CANNOT PARTAKE OF A DISCRETION SO
ABSOLUTE AND ARBITRARY AS WOULD MAKE
SUCH REFER EXCLUSIVELY TO THE PREDILECTION
OF THE ACCUSED; RATIONALE. An examination
of related provisions in the Constitution
concerning the right to counsel, will show that the
"preference in the choice of counsel" pertains
more aptly and specifically to a person under
investigation rather than one who is the accused
in a criminal prosecution. Even if we were to
extend the application of the concept of
"preference in the choice of counsel" to an
accused in a criminal prosecution, such
preferential discretion cannot partake of a
discretion so absolute and arbitrary as would
make the choice of counsel refer exclusively to
the predilection of the accused. As held by this
Court in the case of People vs. Barasina, (229
SCRA 450), withal, the word "preferably" under
Section 12(1), Article 3 of the 1987 Constitution
does not convey the message that the choice of a
lawyer by a person under investigation is
13 | C O N S T I 2 _ S e c t i o n 1 4 _ R i g h t t o b e H e a r d b y H i m s e l f a n d C o u n s e l
exclusive as to preclude other equally competent
and independent attorneys from handling his
defense. If the rule were otherwise, then, the
tempo of a custodial investigation, will be solely
in the hands of the accused who can impede,
nay, obstruct the progress of the interrogation by
simply selecting a lawyer, who for one reason or
another, is not available to protect his interest.
This absurd scenario could not have been
contemplated by the framers of the charter."
Applying this principle enunciated by the Court,
we may likewise say that the accused's discretion
in a criminal prosecution with respect to his
choice of counsel is not so much as to grant him
a plenary prerogative which would preclude other
equally competent and independent counsels
from representing him. Otherwise, the pace of a
criminal prosecution will be entirely dictated by
the accused to the detriment of the eventual
resolution of the case.
2. ID.; ID.; RIGHT TO DUE PROCESS; A PARTY
CANNOT FEIGN DENIAL THEREOF WHEN HE HAD
THE OPPORTUNITY TO PRESENT HIS SIDE; CASE
AT BAR. Accused-complainant was not, in any
way, deprived of his substantive and
constitutional right to due process as he was duly
accorded all the opportunities to be heard and to
present evidence to substantiate his defense but
he forfeited this right, for not appearing in court
together with his counsel at the scheduled
hearings. Accused-complainant had more than
sufficient time and every available opportunity to
present his side which would have led to the
expeditious termination of the case. A party
cannot feign denial of due process when he had
the opportunity to present his side. Moreover,
there is no denial of the right to counsel where a
counsel de oficio was appointed during the
absence of the accused's counsel de parte
pursuant to the court's desire to finish the case as
early as practicable under the continuous trial
system. Thus, it has been held by this Court in
the case of Lacambra vs. Ramos: (232 SCRA 435)
"the Court cannot help but note the series of
legal maneuvers resorted to and repeated
importunings of the accused or his counsel, which
resulted in the protracted trial of the case, thus
making a mockery of the judicial process, not to
mention the injustice caused by the delay to the
victim's family." Undoubtedly, it was accused-
complainant's own strategic machinations which
brought upon the need for the appointment of a
counsel de oficio in as much as the criminal case
had been dragging on its lethargic course. aETADI
3. LEGAL AND JUDICIAL ETHICS; CODE OF
JUDICIAL CONDUCT; JUDGES; SHOULD
ADMINISTER JUSTICE IMPARTIALLY AND WITHOUT
DELAY; CASE AT BAR. The actuation of
respondent judge in this murder case does not
warrant reproach and reprimand, but in fact,
merits the acknowledgment and approval of this
Court. Such manifestation of zeal clearly show
respondent judge's ardent determination to
expedite the case and render justice. The Code of
Judicial Conduct mandates that a judge should
administer justice impartially and without delay. A
judge should always be imbued with a high sense
of duty and responsibility in the discharge of his
obligation to promptly administer justice.
DECISION
MARTINEZ, J p:
A verified complaint dated August 29, 1996 1 was
filed by Baltazar D. Amion with this Court on
October 7, 1996 charging Judge Roberto S.
Chiongson, Regional Trial Court (RTC), Branch 50,
Bacolod City with Ignorance of the Law and
Oppression relative to Criminal Case No. 94-
159772 pending in said trial court and in which
complainant is the accused. LLphil
The allegations against respondent judge are
premised on his appointment of a counsel de
oficio for accused-complainant despite the latter's
objection thereto on the ground that he had his
own retained counsel in the person of Atty.
Reynaldo C. Depasucat.
Accused-complainant explains that respondent
judge appointed another lawyer in the person of
Atty. Manuel Lao Ong of the Free Legal Aid to act
as counsel de oficio for the scheduled hearing of
the aforecited criminal case on March 28 and 29
1996. He further avers that his retained counsel
was ready for hearing on said dates but on March
27, 1996, the day before the scheduled hearing,
he was informed that Atty. Depasucat was ill.
It was for this reason that accused-complainant
was not represented by his defense lawyer in the
scheduled hearing which prompted respondent
judge to appoint Free Legal Aid lawyer Atty.
Manuel Lao Ong. Notwithstanding complainant-
accused's vehement opposition, respondent
judge proceeded with the trial on March 28, 1996
with Atty. Ong representing the complainant-
accused as counsel de oficio. He also claims that
Atty. Ong did not have sufficient knowledge of the
case and that no prior conference was held
between said counsel de oficio and himself.
Complainant-accused asserts that the aforesaid
incidents constitute a clear violation of his right
to due process and a deprivation of his
constitutional and statutory right to be defended
by counsel of his own choice.
Consequently, complainant-accused filed a 1996, 5 accused-complainant's counsel de parte
Manifestation and Urgent Motion 2 stating therein
that he is not accepting the legal services of
counsel de oficio Atty. Ong since he can afford to
hire a counsel de parte of his own choice. He
further states that respondent judge is not fair
and just and does not have the cold neutrality of
an impartial judge. He likewise asseverates that
respondent judge is ignorant of the basic law
which makes him unfit to be a judge in any
judicial tribunal.
Complainant-accused also alludes oppression to
respondent judge when the latter was still a
Municipal Trial Judge of MTCC, Branch 3, Bacolod
City. Complainant was then the offended party in
14 | C O N S T I 2 _ S e c t i o n 1 4 _ R i g h t t o b e H e a r d b y H i m s e l f a n d C o u n s e l
a criminal case for Slander and it took a year
before respondent judge decided to dismiss the
same. He complains that now that he is the
accused in Criminal Case No. 94-15772,
respondent judge appears to be "very active" and
wants the case to be terminated immediately.
In addition, accused-complainant charges
respondent judge with gross ignorance of the law
when the latter, as then municipal trial judge of
Bacolod City, heard Criminal Case No. 55099 for
violation of B.P. 22 against accused-complainant
in the absence of his counsel.
In a resolution dated March 12, 1997, 3 this Court
required respondent judge to file his Comment on
the aforementioned charges.
Judge Roberto S. Chiongson, in his Comment
dated April 21, 1997, 4 explained that accused-
complainant would not have filed the
administrative case had he acceded to the
latter's plea for his inhibition which he denied,
there being no ground therefor. He claimed that
accused-complainant is a police officer charged in
Criminal Case No. 94-15772 for having allegedly
killed a fellow policeman on January 24, 1994.
From the time he assumed office as Presiding
Judge of said court on November 27, 1995, other
than the arraignment of accused-complainant on
September 25, 1995 before Judge Emma Labayen
(former judge of said court) in which accused-
complainant pleaded not guilty, the case has not
moved.
When respondent judge set the case for hearing
on January 9, 1996, trial was not held because
accused-complainant's counsel, Atty. Depasucat,
was not feeling well. The hearing was reset to
January 19, 1996 with a warning that no further
postponement would be entertained. On said
date of hearing, Atty. Depasucat again failed to
appear in court. In order to avoid further delay,
the court appointed Atty. Apollo Jacildo of the
Public Attorney's Office (PAO) as counsel de oficio.
Atty. Jacildo, however, filed a Manifestation
explaining that it is the policy of their office not to
represent a party who has retained the services
of a counsel of his own choice.
At the next scheduled hearing of February 21,
still did not show up in court, thus, prompting
private complainant Mrs. Antonietta Vaflor (the
victim's wife) to speak in open court and pour out
all her frustration about the long delay in the
resolution of the case.
In view of the fact that Mrs. Vaflor and another
government witness, PO3 Richard Dejores, both
reside at Escalante, about 70 to 80 kilometers
from Bacolod City, and that the appearance of
Atty. Depasucat remained uncertain, Judge
Chiongson appointed Atty. Manuel Lao-Ong from
the Free Legal Aid Office to represent accused-
complainant. The court, however, made it of
record that the appointment of Atty. Ong was
without prejudice to the appearance of counsel
de parte. 6 Due to the continued absence of Atty.
Depasucat, the counsel de parte, Atty. Ong,
represented the accused-complainant at the
March 28, 1996 hearing which was opposed by
the accused in a Manifestation and Motion filed
on March 29, seeking the nullification of the
March 28, 1998 hearing and the inhibition of
Judge Chiongson. The hearings were then
rescheduled on May 13 and 17, 1996.
On May 8, 1996, accused-complainant's counsel,
Atty. Depasucat, filed a motion for postponement
alleging that the motion for inhibition should be
resolved and that he would not be available on
the rescheduled dates for hearings as he would
be out of the country during those times.
An order denying the accused-complainant's
Motion for Inhibition and Motion to Set Aside the
proceedings of March 28, 1996 was issued by the
court on July 18, 1996 on the ground that the
claim of bias and prejudice was without legal
basis. 7
At the scheduled hearing on August 1, 1996, Atty.
Depasucat asked the court that he be allowed to
withdraw as counsel de parte of the accused-
complainant causing further delay. The trial of the
case was again reset to September 2, 5 and 6,
1996 with a warning that the court will not grant
any further postponement and that if the
accused-complainant was still without counsel, a
counsel de oficio will be appointed.
Thereafter, the accused-complainant engaged the
services of different counsels who continued to
adopt the dilatory tactics utilized by the previous
counsel de parte.
Atty. Rosslyn Morana, who entered his
appearance as counsel on September 2, 1996,
filed on October 14, 1996 a Motion for Voluntary
Inhibition of respondent judge on account of a
pending administrative case against the latter. On
October 24, 1996, Atty. Morana submitted an
Explanation to the court stating that he could not
represent the accused-complainant as the latter
failed to give him the records of the case.
On November 14, 1996, the prosecution filed a
motion to cite the accused in contempt for filing a
series of motions for inhibition and for filing an
administrative case against the presiding judge
which are plain acts of harassment. prll
Atty. Salvador Sabio entered his appearance as
counsel for the accused-complainant on
December 2, 1996 and asked for the cancellation
of the scheduled hearings on December 5 and 6,
1996 as he had to study the case. The court
granted the request for postponement of Atty.
Sabio and reset the case on January 24, 1997
with a strong warning that it will not allow any
further dilatory postponement. In the afternoon of
January 23, 1997, the court received another
motion for postponement filed by Atty. Sabio
requesting for the cancellation of the January 24
hearing. The court, considering the same as
15 | C O N S T I 2 _ S e c t i o n 1 4 _ R i g h t t o b e H e a r d b y H i m s e l f a n d C o u n s e l
another delaying tactic, immediately issued an
order denying the motion. In spite of the denial of
the motion for postponement, Atty. Sabio failed to
appear.
On February 4, 1997, accused-complainant again
asked for the voluntary inhibition of the presiding
judge which the court again denied for being
merely a dilatory scheme.
On March 24, 1997, when the case was called for
hearing, Atty. Sabio informed the court that he
received a written note from the accused-
complainant discharging him as counsel, to which
the court responded by ruling that Atty. Sabio
would only be allowed to withdraw as accused-
complainant's lawyer upon the entry of
appearance of a new defense counsel.
In a Resolution of the Court of Appeals
promulgated on April 29, 1997, Judge Chiongson
was required to submit a COMMENT 8 on a
Petition for Certiorari and Mandamus filed by
accused-complainant. Said document has also
been submitted to the Court as Supplemental
Comment to this administrative case. 9
Respondent judge reiterated his belief that his
appointment of a counsel de oficio to represent
the accused-complainant is justified because of
the vexatious and oppressive delay on the latter's
part who has been represented by a counsel de
parte who refuses or fails to appear during
hearings. He averred that the records of the case
will show that the accused-complainant and his
lawyers have employed every means fair, but
mostly foul, to delay the resolution of Criminal
Case No. 94-15772. He added that the Petition for
Certiorari and the Administrative Case were filed
for the purpose of not only delaying the
resolution of the case but also to pressure him
into inhibiting himself.
As to the allegation of oppression in connection
with a criminal case for slander where accused-
complainant was the alleged offended party while
respondent judge was then the Municipal Trial
Judge of MTC, Branch 3, Bacolod City to which the
case was being tried, Judge Chiongson belies the
same. He explains that the prosecution in the
said case had rested while the defense filed a
demurrer which was granted.
He narrates that the case for slander was filed by
herein accused-complainant against Mrs.
Esparcia, a school teacher and sister of a victim
alleged to have been killed by the accused-
complainant, when said Mrs. Esparcia told the
accused-complainant "Murderer, why are you not
in jail" or words to that effect. This was made
when accused-complainant was seen roaming
around the vicinity of the police station when he
was supposed to be a detention prisoner.
Accordingly, respondent judge granted the
Demurrer on the finding of the court that the
utterance of Mrs. Esparcia was not slanderous but
was merely an expression of exasperation and
disgust.
On the charge of Gross Ignorance of the Law, for
having tried Criminal Case No. 55099 for violation
of B.P. 22 against accused-complainant in the
absence of counsel, respondent judge asserts
that accused-complainant has nothing to do with
said criminal case as can be gleaned from the
Order relied upon as basis for the aforementioned
charge.
Respondent judge concludes that the sequence of
events hereinabove discussed, exposes clearly
the false and dissembled charges filed against
him as well as the determined efforts of the
accused-complainant and his counsel to frustrate
the ends of justice.
We find this administrative complaint devoid of
merit.
Verily, the facts and circumstances of this case
point to the pervasive and prevaricated
procrastination of the proceedings undertaken by
the accused-complainant and his counsel.
Contrary to what accused-complainant would
want to impress upon this Court, it seems that he
has been the oppressor while respondent judge
Roberto Chiongson appears to be the oppressed.
Through the course of the proceedings in the
subject criminal case, accused-complainant had
filed several Motions for Inhibition, a Petition for
Certiorari and Mandamus and this administrative
complaint with the view of delaying the eventual
disposition of the case.
A Memorandum of the Office of the Court
Administrator (OCA) dated January 14, 1998 10
noted that "Criminal Case No. 94-15772 has been
pending for almost four (4) years already and the
prosecution has yet to rest its case. Complainant
has thrown every legal strategy in the book to
delay the trial. . . ."
The claim of accused-complainant that
respondent judge's appointment of a counsel de
oficio constitutes a clear violation of his right to
due process and a deprivation of his
constitutional right to be defended by counsel of
his own choice cannot be countenanced by this
Court.
An examination of related provisions in the
Constitution concerning the right to counsel, will
show that the "preference in the choice of
counsel" pertains more aptly and specifically to a
person under investigation 11 rather than one
who is the accused in a criminal prosecution. 12
Even if we were to extend the application of the
concept of "preference in the choice of counsel"
to an accused in a criminal prosecution, such
preferential discretion cannot partake of a
discretion so absolute and arbitrary as would
make the choice of counsel refer exclusively to
the predilection of the accused.
As held by this Court in the case of People vs.
Barasina: 13
16 | C O N S T I 2 _ S e c t i o n 1 4 _ R i g h t t o b e H e a r d b y H i m s e l f a n d C o u n s e l
"Withal, the word "preferably" under Section
12(1), Article 3 of the 1987 Constitution does not
convey the message that the choice of a lawyer
by a person under investigation is exclusive as to
preclude other equally competent and
independent attorneys from handling his defense.
If the rule were otherwise, then, the tempo of a
custodial investigation, will be solely in the hands
of the accused who can impede, nay, obstruct the
progress of the interrogation by simply selecting
a lawyer, who for one reason or another, is not
available to protect his interest. This absurd
scenario could not have been contemplated by
the framers of the charter"
Applying this principle enunciated by the Court,
we may likewise say that the accused's discretion
in a criminal prosecution with respect to his
choice of counsel is not so much as to grant him
a plenary prerogative which would preclude other
equally competent and independent counsels
from representing him. Otherwise, the pace of a
criminal prosecution will be entirely dictated by
the accused to the detriment of the eventual
resolution of the case.
Accused-complainant was not, in any way,
deprived of his substantive and constitutional
right to due process as he was duly accorded all
the opportunities to be heard and to present
evidence to substantiate his defense but he
forfeited this right, for not appearing in court
together with his counsel at the scheduled
hearings. 14
Accused-complainant had more than sufficient
time and every available opportunity to present
his side which would have led to the expeditious
termination of the case. A party cannot feign
denial of due process when he had the
opportunity to present his side. 15
Moreover, there is no denial of the right to
counsel where a counsel de oficio was appointed
during the absence of the accused's counsel de
parte pursuant to the court's desire to finish the
case as early as practicable under the continuous
trial system. 16
Thus, it has been held by this Court in the case of
Lacambra v. Ramos: 17
"The Court cannot help but note the series of
legal maneuvers resorted to and repeated
importunings of the accused or his counsel, which
resulted in the protracted trial of the case, thus
making a mockery of the judicial process, not to
mention the injustice caused by the delay to the
victim's family."
Undoubtedly, it was accused-complainant's own
strategic machinations which brought upon the
need for the appointment of a counsel de oficio in
as much as the criminal case had been dragging
on its lethargic course.
As to the charges of oppression and gross
ignorance of the law against respondent judge
relative to cases under him while he was still in
the Municipal Trial Court, the same have been
sufficiently answered in the Comments submitted
in this case. The explanation by the respondent
judge indicate that the aforesaid allegations have
neither legal nor factual basis and that the
conclusions made therein are merely conjectural.

The actuation of respondent judge in this murder

case does not warrant reproach and reprimand,
but in fact, merits the acknowledgment and
approval of this Court. Such manifestation of zeal
clearly show respondent judge's ardent
determination to expedite the case and render
justice.

The Code of Judicial Conduct mandates that a

judge should administer justice impartially and
without delay. 18 A judge should always be
imbued with a high sense of duty and
responsibility in the discharge of his obligation to
promptly administer justice. 19

WHEREFORE, in view of the foregoing, the Court

RESOLVED to:

1. DISMISS the administrative complaint against

Judge Roberto S. Chiongson of RTC, Branch 50,
Bacolod City for lack of merit.

2. IMPOSE a FINE of FIVE THOUSAND PESOS

(P5,000.00) and ADMONISH accused-complainant
Baltazar D. Amion for filing a malicious and
unmeritorious complaint against Judge Roberto S.
Chiongson to delay and prolong the prosecution
of the case.

3. DIRECT Judge Roberto S. Chiongson to continue

hearing the case and finally dispose of the same
with utmost dispatch. LLphil

SO ORDERED.

Davide, Jr., C.J., Melo, Kapunan and Pardo, JJ.,

concur.

17 | C O N S T I 2 _ S e c t i o n 1 4 _ R i g h t t o b e H e a r d b y H i m s e l f a n d C o u n s e l