RULE 114 – BAIL
He further points out
[A.M. No. RTJ-03-1774. May 27, 2004]
PROV. PROSECUTOR DORENTINO Z. FLORESTA, complainant, vs.
Judge ELIODORO G. UBIADAS, Regional Trial Court, Olongapo City,
Branch 72respondent.
DECISION
CARPIO MORALES, J.:
By a Sworn Complaint[1] dated January 24, 2000, then Provincial
Prosecutor, now Regional Trial Court Judge Dorentino Z. Floresta
(complainant) administratively charged Judge Eliodoro G. Ubiadas of
the Olongapo City Regional Trial Court (RTC), Branch 72 with gross
ignorance of [the] law, grave abuse of authority and violations of the
Code of Judicial Conduct.
Complainant faults respondent for dismissing for lack of jurisdiction,
on motion of the accused, by Order[2] of July 9, 1997, Crim. Case No.
212-97, People of the Philippines v. Chia Say Chaw, et al., for illegal
entry.
Complainant alleges that by dismissing Crim. Case No. 219-97
[d]espite . . . the provision of P.D. 1599 which established the
Exclusive Economic Zone of the Philippines and [the apprehension of
the accused] within the 200 nautical miles of the . . . Zone,
respondent virtually surrender[ed] our sovereignty and criminal
jurisdiction to the Chinese government. [3]
Complainant likewise faults respondent for failure to resolve, as he
has yet to resolve, the Motion for Reconsideration and/or
Clarification of the abovesaid Order of July 9, 1997, despite the lapse
of more than two years since the filing of the motion. By such failure,
complainant charges respondent with violation of Canon 3, Rule 3.05
of the Code of Judicial Conduct which enjoins judges to dispose of
the courts business promptly and decide cases within the required
periods, and of SC Circular No. 13 (July 1, 1987) which requires lower
courts to resolve cases or matters before them within three months
or ninety days from date of submission.
Complainant furthermore faults respondent for granting, without
giving notice to the prosecution, the petition for bail of Jose
Mangohig, Jr. who was arrested by virtue of a warrant issued by the
Municipal Trial Court of Subic, Zambales which found probable cause
against him for violation of Section 5(b), Art. III of Republic Act No.
7610 (Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act). [4]
Finally, complainant faults respondent for disqualifying him
(complainant) from appearing in Crim Case No. 634-99, People v.
Esmane-Diaz, despite his (complainants) designation to handle the
prosecution of the case by the Ombudsman.
By Second Indorsement-Comment of March 20, 2000,[5] respondent
contends that petitioner has no personality to initiate the complaint
against him as he is not a party to the cases subject thereof.
On the merits of the charges, respondent counters that territorial
jurisdiction over the area where the accused in Crim. Case No. 212-
97 were arrested within the vicinity of Scarborough Shoal has not yet
been established by controlling jurisprudence, given the conflicting
claims thereover by the Philippines and China and the absence of an
inter-country agreement determining the common boundaries of the
Exclusive Economic Zone.[6]
As to his failure to resolve the Motion for Reconsideration of his July
9, 1997 Order dismissing, for lack of jurisdiction, Crim. Case No. 212-
97, respondent points out that said motion was filed after the
accused were already released from detention.
that during the pendency of said motion, representatives of the
Department of Foreign Affairs (DFA) informed him that said office
was not interested in setting aside the order of dismissal but that it
was suggesting an amendment of the order. [7] Respondent explains
though that since the accused had already been released from
detention and had left the Philippines, and the interest of the DFA
was merely for the amendment of the order of dismissal, the motion
had already become academic.
As to the second charge, respondent informs that the petition for
bail of Mangohig who was then under preliminary investigation,
which motion was filed on January 3, 2000 on which same date a
copy of said petition was furnished the public prosecutor, was as set
by Mangohig heard on the morning of January 4, 2000 during which
there was no appearance from the Prosecutors Office; and that as
the offense for which Mangohig was charged is ordinarily a bailable
offense, respondent granted him bail.
As for his order disqualifying complainant in Crim. Case No. 634-99,
respondent explains that he had already reconsidered the same
through his February 10, 2000 Order, [8] he having earlier failed to see
petitioners designation by the Ombudsman.
In its August 16, 2002 Report, [9] the Office of the Court Administrator
(OCA) found, as to the first charge, that it was not shown that
respondent acted with malice, oppression or bad faith sufficient to
find him guilty of gross ignorance of the law, it having appeared that
respondent based his dismissal order on his interpretation of a
provision of law. The OCA thus concluded that as respondents
conclusions in his assailed order are not without logic or reason, and
unattended by fraud, dishonesty, corruption or bad faith,[10] he could
not be faulted for gross ignorance of the law. The OCA hastened to
add, however, that respondent is nonetheless required to act on the
motion for reconsideration.
As to the second charge, the OCA stressed that the Rules of Court
requires a movant to serve notice of his motion on all parties
concerned at least three days before the hearing thereof,
hence, respondent erred in granting the petition for bail without
hearing the prosecutions side.
Finally, on the third charge, the OCA found that respondents
explanations were fraught with inconsistencies since his allegation
that he failed to see complainants designation as Ombudsman-
Prosecutor in Crim. Case No. 634-99 is belied by his December 17,
2000 Order[11] wherein he noted that complainant was deputized by
the Office of the Ombudsman to prosecute said case. The OCA in fact
noted that respondents subsequent February 10, 2001 Order
reconsidering his December 17, 2000 Order was issued only after the
latter order had attained finality and the instant case was filed.
The OCA accordingly recommended that respondent be FINED in the
amount of Twenty Thousand (P20,000.00) Pesos.
By Resolution of February 26, 2003,[12] this Court noted the OCA
Report and required the parties to MANIFEST within twenty (20)
days from notice, whether they are submitting the case on the basis
of the pleadings/records already filed and submitted.
By Manifestation dated April 1, 2003,[13] complainant proffered
additional charges against respondent and submitted in support
thereof, among other things an administrative complaint filed by one
Dr. Reino Rosete against respondent and photocopies of orders
issued by respondent. Dr. Rosetes complaint, which was addressed
to then Court Administrator Alfredo Benipayo, is both undated and
1
unsigned, however. In the same Manifestation, complainant
submitted the case for decision.
On May 9, 2003, the Docket and Clearance Division of this Court
received an undated manifestation [14] of respondent stating that he
was submitting the case on the basis of the pleadings/records
already filed in the case.
This Courts Findings
I. On the dismissal of Crim. Case No. 212-97
On innumerable occasions this Court has impressed upon judges
that, as mandated by the Code of Judicial Conduct, they owe it to the
public and the legal profession to know the very law they are
supposed to apply to a given controversy. [15] They are called upon to
exhibit more than just a cursory acquaintance with statutes and
procedural rules, to be conversant with the basic law, and to
maintain the desired professional competence. [16]
The propriety of the dismissal, on motion of the accused, of Crim.
Case No. 212-97 on jurisdictional grounds is, however, a matter for
judicial adjudication and the proper recourse of a party aggrieved by
the decision of a judge is to appeal to the proper court, not file an
administrative complaint.[17]
For, as a matter of public policy, in the absence of fraud, dishonesty
or corruption, the acts of a judge in his judicial capacity are generally
not subject to disciplinary action, even though such acts are
erroneous. [18] Only in cases where the error is gross or patent,
deliberate and malicious, or incurred with evident bad faith may
administrative sanctions be imposed.[19] There is no showing that this
was the case here.
With respect to the non-resolution of the prosecutions Motion for
Reconsideration of the order of dismissal of Crim. Case No. 212-
97 no resolution of which has been issued, complainant, in his Reply
to the Comment of respondent, refutes respondents explanation in
this wise:
When the said motion was filed in Court on July 11, 1997, the
Chinese fishermen were not yet released from detention. It was
during the pendency of the motion that the Chinese fishermen were
allowed to leave by the Chief of Police of Subic, Zambales despite our
representation that they should not be released from jail as another
case for illegal fishing was still pending investigation. . . . The
representatives from the Foreign Affairs merely wanted to convey to
Judge Ubiadas the serious implications of his Order of dismissal on
the ground of lack of jurisdiction on the territorial integrity and
national security of our country. In fact, Foreign Secretary Domingo
Siazon publicly denounced the Order of dismissal issued by Judge
Ubiadas as evidenced of an article which appeared in the July 13,
1997 issue of the Philippine Daily Inquirer. Copy of said article is
hereto attached as Annex A and made integral part hereof.
There is no truth that they told Judge Ubiadas that they are no
longer interested in the setting aside of his Order of dismissal. In
fact, the Motion for Reconsideration of the said Order of dismissal
was already filed in his Court and he even issued an Order dated 18
July 1997 submitting the said Motion for resolution. Copy of said
Order dated 18 July 1997 is hereto attached as Annex B and made
integral part hereof. Since the said Motion for Reconsideration of his
Order of dismissal was already considered by him as submitted for
resolution as of 18 July 1997, Judge Ubiadas should have resolved
one way or the other, the said motion. [20] (Underscoring supplied)
Whether the accused in Crim. Case No. 212-97 were already
released at the time of the filing of the motion for reconsideration
did not relieve respondent from resolving it as in fact he even issued
an order stating that it was submitted for resolution.
Article VIII, Section 15(1) of the 1987 Constitution and Canon 3, Rule
3.05 of the Code of Judicial Conduct direct judges to dispose of their
cases promptly and within the prescribed periods, failing which they
are liable for gross inefficiency.[21]
To thus ensure that the mandates on the prompt disposition of
judicial business are complied with, this Court laid down guidelines
in SC Administrative Circular No. 13[22] which provides, inter alia,
that:
Judges shall observe scrupulously the periods prescribed by Article
VIII, Section 15, of the Constitution for the adjudication and
resolution of all cases or matters submitted in their courts. Thus, all
cases or matters must be decided or resolved within twelve months
from date of submission by all lower collegiate courts while all other
lower courts are given a period of three months to do so.
(Underscoring supplied)
This injunction is reiterated in SC Administrative Circular No. 3-
99[23] which requires all judges to scrupulously observe the periods
prescribed in the Constitution for deciding cases, failure to observe
which is a serious violation of the constitutional right of the parties
to speedy disposition of their cases. [24]
Having failed to resolve the Motion for Reconsideration, respondent
is liable for undue delay in rendering a decision or order which is a
less serious charge under Section 9 of Rule 140 of the Rules of Court
and which carries the penalty of suspension from office without
salary and other benefits for not less than one (1) nor more than
three (3) months or a fine of more thanP10,000 but not
exceeding P20,000.
II. On the grant of bail to the accused in Crim. Case No. 271-99
Whether bail is a matter of right or discretion, and even if no charge
has yet been filed in court against a respondent-suspect-detainee,
reasonable notice of hearing is required to be given to the
prosecutor, or at least his recommendation must be sought.
[25]
So Fortuna v. Penaco-Sitaca[26] instructs:
[A]dmission to bail as a matter of discretion presupposes
the exercise thereof in accordance with law and guided by the
applicable legal principles. The prosecution must first be accorded an
opportunity to present evidence because by the very nature of
deciding applications for bail, it is on the basis of such evidence that
judicial discretion is weighed against in determining whether the
guilt of the accused is strong. In other words, discretion must be
exercised regularly, legally and within the confines of procedural due
process, that is, after the evaluation of the evidence submitted by
the prosecution. Any order issued in the absence thereof is not a
product of sound judicial discretion but of whim and caprice and
outright arbitrariness. (Italics in the original; underscoring supplied)
[27]
True, a hearing of the petition for bail was conducted in Crim. Case
No. 271-99 on January 4, 2000 at 8:30 a.m.[28] Given the filing of the
petition only the day before, at close to noontime, it cannot be said
that the prosecution was afforded reasonable
notice and opportunity to present evidence after it received a copy of
the petition minutes before it was filed in court. It bears stressing
that the prosecution should be afforded reasonable opportunity to
comment on the application for bail by showing that evidence of
guilt is strong.[29]
While in Section 18 of Rule 114 on applications for bail, no period is
provided as it merely requires the court to give a reasonable notice
2
of the hearing to the prosecutor or require him to submit his
recommendation, and the general rule on the requirement of a
three-day notice for hearing of motions under Section 4 of Rule 15
allows a court for good cause to set the hearing on shorter notice,
there is, in the case of Mangohig, no showing of good cause to call
for hearing his petition for bail on shorter notice.
Reasonable notice depends of course upon the circumstances of
each particular case, taking into account, inter alia, the offense
committed and the imposable penalties, and the evidence of guilt in
the hands of the prosecution.
In Crim. Case No. 271-99, Mangohig was arrested for violation of Sec.
5(b), Art. III of R.A. 7610,[30] which is punishable by reclusion
temporal to reclusion perpetua, and subsequently indicted for
statutory rape[31] qualified by relationship which is punishable by
death.
Under the circumstances, by respondents assailed grant of bail, the
prosecution was deprived of due process for which he is liable for
gross ignorance of the law or procedure [32] which is a serious charge
under Sec. 8 of Rule 140 of the Rules of Court. The charge carries the
penalty of dismissal from the service with forfeiture of all or part of
the benefits or suspension from office without salary and other
benefits for more than 3 but not exceeding 6 months or a fine of
more than P20,000 but not exceeding P40,000.[33]
This Court takes this occasion to reiterate the injunction that a judge
is called upon to balance the interests of the accused who is entitled
to the presumption of innocence until his guilt is proven beyond
reasonable doubt, and to enable him to prepare his defense without
being subject to punishment prior to conviction, [34] against the right
of the State to protect the people and the peace of the community
from dangerous elements.[35]
III. On the failure to recognize complainants special designation from
the Ombudsman in Crim. Case No. 634-99
The brushing aside by the OCA of respondents explanation on the
matter is well taken.
In the exercise of his power to investigate and prosecute on its own
or on complaint by any person, any act or omission of any public
officer or employee, office or agency, when such act or omission
appears to be illegal, unjust, improper or inefficient, [36] the
Ombudsman is authorized to call on prosecutors or lawyers in the
government service for assistance.[37] Section 31 of the Ombudsman
Act of 1989 provides:
Designation of Investigators and Prosecutors The Ombudsman may
utilize the personnel of his office and/or designate or deputize any
fiscal, state prosecutor or lawyer in the government service to act as
special investigator or prosecutor to assist in the investigation and
prosecution of certain cases. Those designated or deputized to assist
him as herein provided shall be under his supervision and control.
It is on the basis of the above-quoted provision of law that Deputy
Ombudsman for Luzon Jesus Guerrero endorsed Case No. OMB-1-98-
2418 (Chan v. Esmane-Diaz) to complainant with the instruction to
file the Information and to prosecute the case.[38] The indorsement
included an order to submit a monthly report to the Office of the
Ombudsman of any actions taken in relation to the case.
Respondents December 17, 1999 Order[39] which states, inter alia, as
follows:
The Officer-in-Charge of the City Prosecutors Office is hereby
directed to designate any of the Assistant Prosecutors of the City
Prosecutors Office to take the place of Provincial Prosecutor
Dorentino Z. Floresta. While Prosecutor Floresta appears to have
been deputized by the Office of the Ombudsman to prosecute this
case, no special reason was given for such authority. Instead, it
appears that such designation was merely based on the premise that
the offense charged was committed in Subic municipality as
erroneously indicated in the original Information filed with this
Court.
Inasmuch as the Information as amended, upon the initiative of
Prosecutor Floresta himself, shows that the place of the commission
of the offense charged is in Olongapo City, the Office of the
Provincial Prosecutor does not have the authority to continue
prosecuting this case for the People of the Philippines (Section 2,
Rule 117, 1997 Rules of Criminal Procedure). For this reason, the
Office of the City Prosecutor should take his place inasmuch as the
Office of the City Prosecutor of Olongapo has territorial jurisdiction
over the offense charged.[40] (Underscoring supplied),
shows that he was not only aware of complainants designation,
hence, belying his explanation that he must have overlooked the
same. It also shows his ignorance of the above-cited provision of the
Ombudsman Act which does not require the presence of a special
reason for the designation or deputization by the Ombudsman of
any prosecutor or government lawyer to assist him.
It would appear though from respondents above-quoted December
17, 1999 Order that he was of the belief that it was the City
Prosecutor, rather than the Provincial Prosecutor, who had territorial
jurisdiction over the offense. It is in this light that he is given the
benefit of the doubt, absent any showing that he was motivated by
malice or bad faith.
With respect to the charges raised against respondent in
complainants April 1, 2003 Manifestation, by which complainant
submitted an unsigned and undated complaint by a certain Dr. Reino
Rosete and copies of respondents other assailed decisions: While
Section 1 of Rule 140 of the Rules of Court, as amended, allows the
institution of administrative proceedings upon an anonymous
complaint, the veracity of Rosetes complaint is doubtful as it does
not bear his signature. It is clearly not intended to be an anonymous
complaint.
Finally, on the rest of the charges against respondent, this Court is
unable to pass upon them as complainant merely submitted
photocopies of respondents assailed orders without stating clearly
and concisely the alleged acts and omissions constituting violations
of standards of conduct prescribed for judges by law, the Rules of
Court or the Code of Judicial Conduct.
WHEREFORE, respondent, Judge Eliodoro G. Ubiadas, Presiding
Judge of RTC Branch 72, Olongapo City, is found GUILTY of undue
delay in resolving a motion and of gross ignorance of the law or
procedure in granting an application for bail without affording the
prosecution due process. He is accordingly FINED in the amount of
TWENTY THOUSAND PESOS (P20,000.00), with WARNING that
repetition of the same or similar acts shall be dealt with more
severely.
SO ORDERED.
Vitug, (Chairman), Sandoval-Gutierrez, and Corona, JJ., concur.
[A.M. OCA No. 03-1800-RTJ. November 26, 2004]
Chief State Prosecutor JOVENCITO R. ZUO, complainant, vs. Judge
ALEJADRINO C. CABEBE, Regional Trial Court, Branch 18, Batac,
Ilocos Norte,respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
3
The instant administrative case stemmed from the sworn
complaint[1] dated January 15, 2003 of Chief State Prosecutor
Jovencito R. Zuo of the Department of Justice, against Judge
Alejandrino C. Cabebe,[2] then Presiding Judge, Regional Trial Court,
Branch 18, Batac, Ilocos Norte. The charges are knowingly rendering
an unjust judgment, gross ignorance of the law and partiality.
In his complaint, Chief State Prosecutor Zuo alleged that Criminal
Case No. 3950-18 for illegal possession of prohibited or regulated
drugs was filed with the Regional Trial Court, Branch 18, Batac, Ilocos
Norte against Rey Daquep Arcangel, Victorino Gamet Malabed,
William Roxas Villanueva, all police officers, Jocelyn Malabed Manuel
and Pelagio Valencia Manuel. Upon arraignment, all the accused,
assisted by their counsel de parte, pleaded not guilty to the crime
charged. On March 14, 2001, the prosecution filed with this Court a
petition for change of venue but was denied in a Resolution dated
August 13, 2001.[3] On October 8, 2001, the accused filed a motion
for reconsideration.[4] In the meantime, the proceedings before
respondents court were suspended.
On May 6, 2002, the accused filed a motion to dismiss invoking as
ground the right of the accused to a speedy trial. On November 5,
2002, respondent judge motu propio issued an Order[5] granting bail
to the accused, fixing the bail for each at P70,000.00 in cash or
property bond at P120,000.00, except for accused Evelyn Manuel
whose bail was fixed at P20,000.00 in cash. Respondent judge issued
the Order without the accuseds application or motion for bail.
The prosecution then filed a motion for reconsideration. [6] Instead of
acting thereon, respondent judge issued an order inhibiting himself
from further proceeding with the case, realizing that what he did
was patently irregular. Complainant thus prays that respondent judge
be dismissed from the service with forfeiture of all benefits and be
disbarred from the practice of law.
In his comment,[7] respondent denied the charges. While admitting
that he issued the Order dated November 5, 2002 granting bail to
the accused without any hearing, the same was premised on the
constitutional right of the accused to a speedy trial. There was delay
in the proceedings due to complainants frequent absences and
failure of the witnesses for the prosecution to appear in court,
resulting in the cancellation of the hearings. The prosecution did not
object to the grant of bail to the accused. [8] He added that the
administrative complaint filed against him is purely harassment. It is
not the appropriate remedy to question his alleged erroneous Order.
Accordingly, and considering his forty (40) years of government
service, he prays that the administrative complaint be dismissed.
On March 26, 2003, respondent judge compulsorily retired.
In his Report dated July 7, 2003, Deputy Court Administrator Jose P.
Perez found respondent judge liable for gross ignorance of the law
and recommended that a fine of P20,000.00 be imposed upon him,
with a stern warning that a repetition of the same or similar offense
will be dealt with more severely.
In our Resolution[9] dated August 25, 2003, we directed that the
complaint be re-docketed as a regular administrative matter and
required the parties to manifest whether they are submitting the
case for resolution on the basis of the pleadings filed. Both parties
submitted the required manifestations that they are submitting the
case for decision on the basis of the records.
In Docena-Caspe vs. Judge Arnulfo O. Bugtas,[10] we held that
jurisprudence is replete with decisions on the procedural necessity
of a hearing, whether summary or otherwise, relative to the grant of
bail, especially in cases involving offenses punishable by
death, reclusion perpetua, or life imprisonment, where bail is a
matter of discretion. Under the present Rules, a hearing is
mandatory in granting bail whether it is a matter of right or
discretion.[11] It must be stressed that the grant or the denial of bail
in cases where bail is a matter of discretion, hinges on the issue of
whether or not the evidence of guilt of the accused is strong, and
the determination of whether or not the evidence is strong is a
matter of judicial discretion which remains with the judge. In order
for the latter to properly exercise his discretion, he must first
conduct a hearing to determine whether the evidence of guilt is
strong.[12] In fact, even in cases where there is no petition for bail, a
hearing should still be held.[13]
There is no question that respondent judge granted bail to the
accused without conducting a hearing, in violation of Sections 8 and
18, Rule 114 of the Revised Rules of Criminal Procedure, quoted as
follows:
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 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.
Sec. 18. Notice of application to prosecutor. In the application for bail
under section 8 of this Rule, the court must give reasonable notice of
the hearing to the prosecutor or require him to submit his
recommendation. (18a)
In Cortes vs. Catral,[14] we laid down the following rules outlining the
duties of the judge in case an application for bail is filed:
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 (Section 18, Rule 114 of the
Revised Rules of Criminal Procedure);
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 (Section 7 and 8, id.);
3. Decide whether the guilt of the accused is strong based on the
summary of evidence of the prosecution;
4. If the guilt of the accused is not strong, discharge the accused
upon the approval of the bail bond (Section 19, id.); otherwise the
petition should be denied.
Based on the above-cited procedure, after the hearing, the courts
order granting or refusing bail must contain a summary of the
evidence of the prosecution and based thereon, the judge should
formulate his own conclusion as to whether the evidence so
presented is strong enough to indicate the guilt of the accused. [15]
Respondent judge did not follow the above Rules and procedure
enumerated in Cortes.[16] He did not conduct a hearing before he
granted bail to the accused, thus depriving the prosecution of an
opportunity to interpose objections to the grant of bail. Irrespective
of his opinion on the strength or weakness of evidence to prove the
guilt of the accused, he should have conducted a hearing and
thereafter made a summary of the evidence of the prosecution. The
importance of a bail hearing and a summary of evidence cannot be
downplayed, these are considered aspects of procedural due process
4
for both the prosecution and the defense; its absence will invalidate
the grant or denial of bail.[17]
Neither did respondent require the prosecution to submit its
recommendation on whether or not bail should be granted.
He maintains that the prosecution did not object to the grant of bail
to the accused, hence, he cannot be held administratively liable for
not conducting a hearing.
In Santos vs. Ofilada,[18] we held that the failure to raise or the
absence of an objection on the part of the prosecution in an
application for bail does not dispense with the requirement of a bail
hearing. Thus
Even the alleged failure of the prosecution to interpose an objection
to the granting of bail to the accused will not justify such grant
without hearing. This Court has uniformly ruled that even if the
prosecution refuses to adduce evidence or fails to interpose any
objection to the motion for bail, it is still mandatory for the court to
conduct a hearing or ask searching and clarificatory questions from
which it may infer the strength of the evidence of guilt, or lack of it,
against the accused. Where the prosecutor refuses to adduce
evidence in opposition to the application to grant and fix bail, the
court may ask the prosecution such questions as would ascertain the
strength of the States evidence or judge the adequacy of the amount
of bail. Irrespective of respondent judges opinion that the evidence
of guilt against the accused is not strong, the law and settled
jurisprudence demand that a hearing be conducted before bail may
be fixed for the temporary release of the accused, if bail is at all
justified.
Thus, although the provincial prosecutor had interposed no
objection to the grant of bail to the accused, the respondent judge
therein should nevertheless have set the petition for bail for hearing
and diligently ascertain from the prosecution whether the latter was
not in fact contesting the bail application. In addition, a hearing was
also necessary for the court to take into consideration the guidelines
set forth in the then Section, 6, Rule 114 of the 1985 Rules of
Criminal Procedure for the fixing of the amount of the bail, Only
after respondent judge had satisfied himself that these requirements
have been met could he then proceed to rule on whether or not to
grant bail.
Clearly, therefore, respondent judge cannot seek refuge on the
alleged absence of objection on the part of the prosecution to the
grant of bail to the accused.
Respondent judge contends that the accused were entitled to their
right to a speedy trial, hence, he granted bail without a hearing. He
blames the prosecution for the delay.
Respondents contention is bereft of merit. There is no indication in
the records of the criminal case that the prosecution has
intentionally delayed the trial of the case. Even assuming there was
delay, this does not justify the grant of bail without a hearing. This is
utter disregard of the Rules. The requirement of a bail hearing has
been incessantly stressed by this Court. In the same vein, the Code
of Judicial Conduct enjoins judges to be conversant with the law and
the Rules and maintain professional competence; and by the very
nature of his office, should be circumspect in the performance of his
duties. He must render justice without resorting to shortcuts clearly
uncalled for. Obviously, respondent failed to live up to these
standards.
It bears reiterating that respondent is being charged with knowingly
rendering unjust judgment, gross ignorance of the law and partiality.
We ruled that in order to be held liable for knowingly rendering an
unjust judgment or order, respondent judge must have acted in bad
faith, with malice or in willful disregard of the right of a litigant. [19] A
perusal of the records, specifically the assailed Order, hardly shows
that any of these incidents has been proven.
On the charge of gross ignorance of the law, suffice it to say that to
constitute such infraction, it is not enough that the subject decision,
order or actuation of the judge in the performance of his official
duties is contrary to existing law and jurisprudence but, most
importantly, he must be moved by bad faith, fraud, dishonesty or
corruption. [20] In Guillermo vs. Judge Reyes, Jr.[21] we categorically
held that good faith and absence of malice, corrupt motives or
improper considerations are sufficient defenses in which a judge
charged with ignorance of the law can find refuge. In Villanueva-
Fabella vs. Lee,[22] we ruled that a judge may not be held
administratively accountable for every erroneous order he renders.
For liability to attach for ignorance of the law, the assailed order of a
judge must not only be erroneous; more important, it must be
motivated by bad faith, dishonesty, hatred or some other similar
motive. Complainant, having failed to present positive evidence to
show that respondent judge was so motivated in granting bail
without hearing, can not be held guilty of gross ignorance of the law.
As to the charge of partiality, we find no evidence to sustain the
same. It is merely based on complainants speculation. Mere
suspicion that a judge is partial is not enough. There should be clear
and convincing evidence to prove this charge. The only exception to
the rule is when the error is so gross and patent as to produce an
ineluctable inference of bad faith and malice, [23] which are not
present here.
We thus find respondent judge guilty of violation of Supreme Court
Rules, specifically Rule 114 of the Revised Rules of Criminal
Procedure on the grant of bail. This administrative offense is
considered a less serious charge, punishable under Section 9(4) and
Section 11(B-2), Rule 140 of the same Rules, thus:
Sec. 9. Less Serious Charges. Less serious charges include:
xxx
4. Violation of Supreme Court Rules, directives, and circulars;
xxx
Sec. 11. Sanctions. x x x
B. If the respondent is guilty of a less serious charge, any of the
following sanctions shall be imposed:
1. Suspension from office without salary and other benefits for not
less than one (1) nor more than three (3) months; or
2. A fine of more than P10,000.00 but not exceeding P20,000.00.
WHEREFORE, respondent Judge Alejandrino C. Cabebe, now retired,
is found guilty of violation of Supreme Court Rules and is hereby
fined in the sum of Twenty Thousand Pesos (P20,000.00), the same
to be deducted from his retirement benefits.
SO ORDERED.
Panganiban, (Chairman), Carpio-Morales, and Garcia, JJ., concur.
Corona, J., on leave.
G.R. No. 153675 April 19, 2007
GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION,
represented by the Philippine Department of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO
MUÑOZ, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
5
For our resolution is the instant Petition for Certiorari under Rule 65
of the 1997 Rules of Civil Procedure, as amended, seeking to nullify
the two Orders of the Regional Trial Court (RTC), Branch 8, Manila
(presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil
Case No. 99-95773. These are: (1) the Order dated December 20,
2001 allowing Juan Antonio Muñoz, private respondent, to post bail;
and (2) the Order dated April 10, 2002 denying the motion to vacate
the said Order of December 20, 2001 filed by the Government of
Hong Kong Special Administrative Region, represented by the
Philippine Department of Justice (DOJ), petitioner. The petition
alleges that both Orders were issued by respondent judge with grave
abuse of discretion amounting to lack or excess of jurisdiction as
there is no provision in the Constitution granting bail to a potential
extraditee.
The facts are:
On January 30, 1995, the Republic of the Philippines and the then
British Crown Colony of Hong Kong signed an "Agreement for the
Surrender of Accused and Convicted Persons." It took effect on June
20, 1997.
On July 1, 1997, Hong Kong reverted back to the People’s Republic of
China and became the Hong Kong Special Administrative Region.
Private respondent Muñoz was charged before the Hong Kong Court
with three (3) counts of the offense of "accepting an advantage as
agent," in violation of Section 9 (1) (a) of the Prevention of Bribery
Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of
the offense of conspiracy to defraud, penalized by the common law
of Hong Kong. On August 23, 1997 and October 25, 1999, warrants
of arrest were issued against him. If convicted, he faces a jail term of
seven (7) to fourteen (14) years for each charge.
On September 13, 1999, the DOJ received from the Hong Kong
Department of Justice a request for the provisional arrest of private
respondent. The DOJ then forwarded the request to the National
Bureau of Investigation (NBI) which, in turn, filed with the RTC of
Manila, Branch 19 an application for the provisional arrest of private
respondent.
On September 23, 1999, the RTC, Branch 19, Manila issued an Order
of Arrest against private respondent. That same day, the NBI agents
arrested and detained him.
On October 14, 1999, private respondent filed with the Court of
Appeals a petition for certiorari, prohibition andmandamus with
application for preliminary mandatory injunction and/or writ
of habeas corpus questioning the validity of the Order of Arrest.
On November 9, 1999, the Court of Appeals rendered its Decision
declaring the Order of Arrest void.
On November 12, 1999, the DOJ filed with this Court a petition for
review on certiorari, docketed as G.R. No. 140520, praying that the
Decision of the Court of Appeals be reversed.
On December 18, 2000, this Court rendered a Decision granting the
petition of the DOJ and sustaining the validity of the Order of Arrest
against private respondent. The Decision became final and executory
on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong
Special Administrative Region filed with the RTC of Manila a petition
for the extradition of private respondent, docketed as Civil Case No.
99-95733, raffled off to Branch 10, presided by Judge Ricardo
Bernardo, Jr. For his part, private respondent filed, in the same case,-
a petition for bail which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an
Order denying the petition for bail, holding that there is no
Philippine law granting bail in extradition cases and that private
respondent is a high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from
further hearing Civil Case No. 99-95733. It was then raffled off to
Branch 8 presided by respondent judge.
On October 30, 2001, private respondent filed a motion for
reconsideration of the Order denying his application for bail. This
was granted by respondent judge in an Order dated December 20,
2001 allowing private respondent to post bail, thus:
In conclusion, this Court will not contribute to accused’s further
erosion of civil liberties. The petition for bail is granted subject to the
following conditions:
1. Bail is set at Php750,000.00 in cash with the condition that
accused hereby undertakes that he will appear and answer the
issues raised in these proceedings and will at all times hold himself
amenable to orders and processes of this Court, will further appear
for judgment. If accused fails in this undertaking, the cash bond will
be forfeited in favor of the government;
2. Accused must surrender his valid passport to this Court;
3. The Department of Justice is given immediate notice and
discretion of filing its own motion for hold departure order before
this Court even in extradition proceeding; and
4. Accused is required to report to the government prosecutors
handling this case or if they so desire to the nearest office, at any
time and day of the week; and if they further desire, manifest before
this Court to require that all the assets of accused, real and personal,
be filed with this Court soonest, with the condition that if the
accused flees from his undertaking, said assets be forfeited in favor
of the government and that the corresponding lien/annotation be
noted therein accordingly.
SO ORDERED.
On December 21, 2001, petitioner filed an urgent motion to vacate
the above Order, but it was denied by respondent judge in his Order
dated April 10, 2002.
Hence, the instant petition. Petitioner alleged that the trial court
committed grave abuse of discretion amounting to lack or excess of
jurisdiction in admitting private respondent to bail; that there is
nothing in the Constitution or statutory law providing that a
potential extraditee has a right to bail, the right being limited solely
to criminal proceedings.
In his comment on the petition, private respondent maintained that
the right to bail guaranteed under the Bill of Rights extends to a
prospective extraditee; and that extradition is a harsh process
resulting in a prolonged deprivation of one’s liberty.
Section 13, Article III of the Constitution provides that the right to
bail shall not be impaired, thus:
Sec. 13. 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.
Jurisprudence on extradition is but in its infancy in this jurisdiction.
Nonetheless, this is not the first time that this Court has an occasion
to resolve the question of whether a prospective extraditee may be
granted bail.
In Government of United States of America v. Hon. Guillermo G.
Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B.
Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through
6
then Associate Justice Artemio V. Panganiban, later Chief Justice,
held that the constitutional provision on bail does not apply to
extradition proceedings. It is "available only in criminal proceedings,"
thus:
x x x. As suggested by the use of the word "conviction," the
constitutional provision on bail quoted above, as well as Section 4,
Rule 114 of the Rules of Court, applies only when a person has been
arrested and detained for violation of Philippine criminal laws. It
does not apply to extradition proceedings because extradition courts
do not render judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the
presumption of innocence in favor of every accused who should not
be subjected to the loss of freedom as thereafter he would be
entitled to acquittal, unless his guilt be proved beyond reasonable
doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971,
per Fernando,J., later CJ). It follows that the constitutional provision
on bail will not apply to a case like extradition, where the
presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall
not be impaired even when the privilege of the writ of habeas
corpus is suspended" does not detract from the rule that the
constitutional right to bail is available only in criminal proceedings. It
must be noted that the suspension of the privilege of the writ
of habeas corpusfinds application "only to persons judicially charged
for rebellion or offenses inherent in or directly connected with
invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second
sentence in the constitutional provision on bail merely emphasizes
the right to bail in criminal proceedings for the aforementioned
offenses. It cannot be taken to mean that the right is available even
in extradition proceedings that are not criminal in nature.
At first glance, the above ruling applies squarely to private
respondent’s case. However, this Court cannot ignore the following
trends in international law: (1) the growing importance of the
individual person in public international law who, in the 20th
century, has gradually attained global recognition; (2) the higher
value now being given to human rights in the international sphere;
(3) the corresponding duty of countries to observe these universal
human rights in fulfilling their treaty obligations; and (4) the duty of
this Court to balance the rights of the individual under our
fundamental law, on one hand, and the law on extradition, on the
other.
The modern trend in public international law is the primacy placed
on the worth of the individual person and the sanctity of human
rights. Slowly, the recognition that the individual person may
properly be a subject of international law is now taking root. The
vulnerable doctrine that the subjects of international law are limited
only to states was dramatically eroded towards the second half of
the past century. For one, the Nuremberg and Tokyo trials after
World War II resulted in the unprecedented spectacle of individual
defendants for acts characterized as violations of the laws of war,
crimes against peace, and crimes against humanity. Recently, under
the Nuremberg principle, Serbian leaders have been persecuted for
war crimes and crimes against humanity committed in the former
Yugoslavia. These significant events show that the individual person
is now a valid subject of international law.
On a more positive note, also after World War II, both international
organizations and states gave recognition and importance to human
rights. Thus, on December 10, 1948, the United Nations General
Assembly adopted the Universal Declaration of Human Rights in
which the right to life, liberty and all the other fundamental rights of
every person were proclaimed. While not a treaty, the principles
contained in the said Declaration are now recognized as
customarily binding upon the members of the international
community. Thus, in Mejoff v. Director of Prisons,2 this Court, in
granting bail to a prospective deportee, held that under the
Constitution,3 the principles set forth in that Declaration are part of
the law of the land. In 1966, the UN General Assembly also adopted
the International Covenant on Civil and Political Rights which the
Philippines signed and ratified. Fundamental among the rights
enshrined therein are the rights of every person to life, liberty, and
due process.
The Philippines, along with the other members of the family of
nations, committed to uphold the fundamental human rights as well
as value the worth and dignity of every person. This commitment is
enshrined in Section II, Article II of our Constitution which provides:
"The State values the dignity of every human person and guarantees
full respect for human rights." The Philippines, therefore, has the
responsibility of protecting and promoting the right of every person
to liberty and due process, ensuring that those detained or arrested
can participate in the proceedings before a court, to enable it to
decide without delay on the legality of the detention and order their
release if justified. In other words, the Philippine authorities are
under obligation to make available to every person under detention
such remedies which safeguard their fundamental right to liberty.
These remedies include the right to be admitted to bail. While this
Court in Purganan limited the exercise of the right to bail to criminal
proceedings, however, in light of the various international treaties
giving recognition and protection to human rights, particularly the
right to life and liberty, a reexamination of this Court’s ruling
in Purganan is in order.
First, we note that the exercise of the State’s power to deprive an
individual of his liberty is not necessarily limited to criminal
proceedings. Respondents in administrative proceedings, such as
deportation and quarantine,4 have likewise been detained.
Second, to limit bail to criminal proceedings would be to close our
eyes to our jurisprudential history. Philippine jurisprudence has not
limited the exercise of the right to bail to criminal proceedings only.
This Court has admitted to bail persons who are not involved in
criminal proceedings. In fact, bail has been allowed in this
jurisdiction to persons in detention during the pendency of
administrative proceedings, taking into cognizance the obligation of
the Philippines under international conventions to uphold human
rights.
The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese
facing deportation for failure to secure the necessary certificate of
registration was granted bail pending his appeal. After noting that
the prospective deportee had committed no crime, the Court opined
that "To refuse him bail is to treat him as a person who has
committed the most serious crime known to law;" and that while
deportation is not a criminal proceeding, some of the machinery
used "is the machinery of criminal law." Thus, the provisions relating
to bail was applied to deportation proceedings.
In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of
Immigration,7 this Court ruled that foreign nationals against whom
no formal criminal charges have been filed may be released on bail
pending the finality of an order of deportation. As previously stated,
the Court in Mejoff relied upon the Universal declaration of Human
Rights in sustaining the detainee’s right to bail.
7
If bail can be granted in deportation cases, we see no justification
why it should not also be allowed in extradition cases. Likewise,
considering that the Universal Declaration of Human Rights applies
to deportation cases, there is no reason why it cannot be invoked in
extradition cases. After all, both are administrative proceedings
where the innocence or guilt of the person detained is not in issue.
Clearly, the right of a prospective extraditee to apply for bail in this
jurisdiction must be viewed in the light of the various treaty
obligations of the Philippines concerning respect for the promotion
and protection of human rights. Under these treaties, the
presumption lies in favor of human liberty. Thus, the Philippines
should see to it that the right to liberty of every individual is not
impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine
Extradition Law) defines "extradition" as "the removal of an accused
from the Philippines with the object of placing him at the disposal of
foreign authorities to enable the requesting state or government to
hold him in connection with any criminal investigation directed
against him or the execution of a penalty imposed on him under the
penal or criminal law of the requesting state or government."
Extradition has thus been characterized as the right of a foreign
power, created by treaty, to demand the surrender of one accused or
convicted of a crime within its territorial jurisdiction, and the
correlative duty of the other state to surrender him to the
demanding state.8 It is not a criminal proceeding. 9 Even if the
potential extraditee is a criminal, an extradition proceeding is not by
its nature criminal, for it is not punishment for a crime, even though
such punishment may follow extradition. 10 It is sui generis, tracing its
existence wholly to treaty obligations between different nations. 11 It
is not a trial to determine the guilt or innocence of the potential
extraditee.12 Nor is it a full-blown civil action, but one that is merely
administrative in character.13 Its object is to prevent the escape of a
person accused or convicted of a crime and to secure his return to
the state from which he fled, for the purpose of trial or
punishment.14
But while extradition is not a criminal proceeding, it is characterized
by the following: (a) it entails a deprivation of liberty on the part of
the potential extraditee and (b) the means employed to attain the
purpose of extradition is also "the machinery of criminal law." This
is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition
Law) which mandates the "immediate arrest and temporary
detention of the accused" if such "will best serve the interest of
justice." We further note that Section 20 allows the requesting state
"in case of urgency" to ask for the "provisional arrest of the accused,
pending receipt of the request for extradition;" and that release
from provisional arrest "shall not prejudice re-arrest and extradition
of the accused if a request for extradition is received subsequently."
Obviously, an extradition proceeding, while ostensibly
administrative, bears all earmarks of a criminal process. A potential
extraditee may be subjected to arrest, to a prolonged restraint of
liberty, and forced to transfer to the demanding state following the
proceedings. "Temporary detention" may be a necessary step in the
process of extradition, but the length of time of the detention should
be reasonable.
Records show that private respondent was arrested on September
23, 1999, and remained incarcerated until December 20, 2001, when
the trial court ordered his admission to bail. In other words, he had
been detained for over two (2) years without having been
convicted of any crime. By any standard, such an extended period of
detention is a serious deprivation of his fundamental right to liberty.
In fact, it was this prolonged deprivation of liberty which prompted
the extradition court to grant him bail.
While our extradition law does not provide for the grant of bail to an
extraditee, however, there is no provision prohibiting him or her
from filing a motion for bail, a right to due process under the
Constitution.
The applicable standard of due process, however, should not be the
same as that in criminal proceedings. In the latter, the standard of
due process is premised on the presumption of innocence of the
accused. As Purganancorrectly points out, it is from this major
premise that the ancillary presumption in favor of admitting to bail
arises. Bearing in mind the purpose of extradition proceedings, the
premise behind the issuance of the arrest warrant and the
"temporary detention" is the possibility of flight of the potential
extraditee. This is based on the assumption that such extraditee is a
fugitive from justice.15 Given the foregoing, the prospective
extraditee thus bears the onus probandi of showing that he or she is
not a flight risk and should be granted bail.
The time-honored principle of pacta sunt servanda demands that
the Philippines honor its obligations under the Extradition Treaty it
entered into with the Hong Kong Special Administrative Region.
Failure to comply with these obligations is a setback in our foreign
relations and defeats the purpose of extradition. However, it does
not necessarily mean that in keeping with its treaty obligations, the
Philippines should diminish a potential extraditee’s rights to life,
liberty, and due process. More so, where these rights are
guaranteed, not only by our Constitution, but also by international
conventions, to which the Philippines is a party. We should not,
therefore, deprive an extraditee of his right to apply for bail,
provided that a certain standard for the grant is satisfactorily met.
An extradition proceeding being sui generis, the standard of proof
required in granting or denying bail can neither be the proof beyond
reasonable doubt in criminal cases nor the standard of proof of
preponderance of evidence in civil cases. While administrative in
character, the standard of substantial evidence used in
administrative cases cannot likewise apply given the object of
extradition law which is to prevent the prospective extraditee from
fleeing our jurisdiction. In his Separate Opinion in Purganan, then
Associate Justice, now Chief Justice Reynato S. Puno, proposed that a
new standard which he termed "clear and convincing
evidence" should be used in granting bail in extradition
cases. According to him, this standard should be lower than proof
beyond reasonable doubt but higher than preponderance of
evidence. The potential extraditee must prove by "clear and
convincing evidence" that he is not a flight risk and will abide with all
the orders and processes of the extradition court.
In this case, there is no showing that private respondent presented
evidence to show that he is not a flight risk. Consequently, this case
should be remanded to the trial court to determine whether private
respondent may be granted bail on the basis of "clear and convincing
evidence."
WHEREFORE, we DISMISS the petition. This case is REMANDED to
the trial court to determine whether private respondent is entitled
to bail on the basis of "clear and convincing evidence." If not, the
trial court should order the cancellation of his bail bond and his
immediate detention; and thereafter, conduct the extradition
proceedings with dispatch.
SO ORDERED.
8
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
[G.R. Nos. 115439-41. July 16, 1997]
PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE
SANDIGANBAYAN, MANSUETO V. HONRADA, CEFERINO S. PAREDES,
JR. and GENEROSO S. SANSAET, respondents.
DECISION
REGALADO, J.:
Through the special civil action for certiorari at bar, petitioner seeks
the annulment of the resolution of respondent Sandiganbayan,
promulgated on December 22, 1993, which denied petitioners
motion for the discharge of respondent Generoso S. Sansaet to be
utilized as a state witness, and its resolution of March 7, 1994
denying the motion for reconsideration of its preceding disposition. [1]
The records show that during the dates material to this case,
respondent Honrada was the Clerk of Court and Acting Stenographer
of the First Municipal Circuit Trial Court, San Francisco-Bunawan-
Rosario in Agusan del Sur. Respondent Paredes was successively the
Provincial Attorney of Agusan del Sur, then Governor of the same
province, and is at present a Congressman. Respondent Sansaet was
a practicing attorney who served as counsel for Paredes in several
instances pertinent to the criminal charges involved in the present
recourse.
The same records also represent that sometime in 1976, respondent
Paredes applied for a free patent over Lot No. 3097-A, Pls-67 of the
Rosario Public Land Subdivision Survey. His application was approved
and, pursuant to a free patent granted to him, an original certificate
of title was issued in his favor for that lot which is situated in
the poblacion of San Francisco, Agusan del Sur.
However, in 1985, the Director of Lands filed an action [2] for the
cancellation of respondent Paredes patent and certificate of title
since the land had been designated and reserved as a school site in
the aforementioned subdivision survey. The trial court rendered
judgment[3] nullifying said patent and title after finding that
respondent Paredes had obtained the same through fraudulent
misrepresentations in his application. Pertinently, respondent
Sansaet served as counsel of Paredes in that civil case.[4]
Consequent to the foregoing judgment of the trial court, upon the
subsequent complaint of the Sangguniang Bayan and the preliminary
investigation conducted thereon, an information for perjury [5] was
filed against respondent Paredes in the Municipal Circuit Trial Court.
[6]
On November 27, 1985, the Provincial Fiscal was, however,
directed by the Deputy Minister of Justice to move for the dismissal
of the case on the ground inter alia of prescription, hence the
proceedings were terminated.[7] In this criminal case, respondent
Paredes was likewise represented by respondent Sansaet as counsel.
Nonetheless, respondent * Paredes was thereafter haled before the
Tanodbayan for preliminary investigation on the charge that, by
using his former position as Provincial Attorney to influence and
induce the Bureau of Lands officials to favorably act on his
application for free patent, he had violated Section 3(a) of Republic
Act No. 3019, as amended. For the third time, respondent Sansaet
was Paredes counsel of record therein.
On August 29, 1988, the Tanodbayan, issued a
resolution[8] recommending the criminal prosecution of respondent
Paredes. Atty. Sansaet, as counsel for his aforenamed co-respondent,
moved for reconsideration and, because of its legal significance in
this case, we quote some of his allegations in that motion:
x x x respondent had been charged already by the complainants
before the Municipal Circuit Court of San Francisco, Agusan del Sur,
went to jail on detention in 1984 under the same set of facts and the
same evidence x x x but said case after arraignment, was ordered
dismissed by the court upon recommendation of the Department of
Justice. Copy of the dismissal order, certificate of arraignment and
therecommendation of the Department of Justice are hereto
attached for ready reference; thus the filing of this case will be a case
of double jeopardy for respondent herein x x x.[9] (Italics supplied.)
A criminal case was subsequently filed with the
Sandiganbayan[10] charging respondent Paredes with a violation of
Section 3(a) of Republic Act No. 3019, as amended. However, a
motion to quash filed by the defense was later granted in
respondent courts resolution of August 1, 1991[11] and the case was
dismissed on the ground of prescription.
On January 23, 1990, one Teofilo Gelacio, a taxpayer who had
initiated the perjury and graft charges against respondent Paredes,
sent a letter to the Ombudsman seeking the investigation of the
three respondents herein for falsification of public documents. [12] He
claimed that respondent Honrada, in conspiracy with his herein co-
respondents, simulated and certified as true copies certain
documents purporting to be a notice of arraignment, dated July 1,
1985, and transcripts of stenographic notes supposedly taken during
the arraignment of Paredes on the perjury charge. [13] These falsified
documents were annexed to respondent Paredes motion for
reconsideration of the Tanodbayan resolution for the filing of a graft
charge against him, in order to support his contention that the same
would constitute double jeopardy.
In support of his claim, Gelacio attached to his letter a certification
that no notice of arraignment was ever received by the Office of the
Provincial Fiscal of Agusan del Sur in connection with that perjury
case; and a certification of Presiding Judge Ciriaco Ario that said
perjury case in his court did not reach the arraignment stage since
action thereon was suspended pending the review of the case by the
Department of Justice.[14]
Respondents filed their respective counter-affidavits, but Sansaet
subsequently discarded and repudiated the submissions he had
made in his counter-affidavit. In a so-called Affidavit of Explanations
and Rectifications,[15] respondent Sansaet revealed that Paredes
contrived to have the graft case under preliminary investigation
dismissed on the ground of double jeopardy by making it that the
perjury case had been dismissed by the trial court after he had been
arraigned therein.
For that purpose, the documents which were later filed by
respondent Sansaet in the preliminary investigation were prepared
and falsified by his co-respondents in this case in the house of
respondent Paredes. To evade responsibility for his own participation
in the scheme, he claimed that he did so upon the instigation and
inducement of respondent Paredes. This was intended to pave the
way for his discharge as a government witness in the consolidated
cases, as in fact a motion therefor was filed by the prosecution
pursuant to their agreement.
Withal, in a resolution[16] dated February 24, 1992, the Ombudsman
approved the filing of falsification charges against all the herein
private respondents. The proposal for the discharge of respondent
Sansaet as a state witness was rejected by the Ombudsman on this
evaluative legal position:
x x x Taking his explanation, it is difficult to believe that a lawyer of
his stature, in the absence of deliberate intent to conspire, would be
9
unwittingly induced by another to commit a crime. As counsel for
the accused in those criminal cases, Atty. Sansaet had control over
the case theory and the evidence which the defense was going to
present. Moreover, the testimony or confession of Atty. Sansaet falls
under the mantle of privileged communication between the lawyer
and his client which may be objected to, if presented in the trial.
The Ombudsman refused to reconsider that resolution [17] and,
ostensibly to forestall any further controversy, he decided to file
separate informations for falsification of public documents against
each of the herein respondents. Thus, three criminal cases,[18] each
of which named one of the three private respondents here as the
accused therein, were filed in the graft court.However, the same
were consolidated for joint trial in the Second Division of the
Sandiganbayan.
As stated at the outset, a motion was filed by the People on July 27,
1993 for the discharge of respondent Sansaet as a state witness. It
was submitted that all the requisites therefor, as provided in Section
9, Rule 119 of the Rules of Court, were satisfied insofar as
respondent Sansaet was concerned. The basic postulate was that,
except for the eyewitness testimony of respondent Sansaet, there
was no other direct evidence to prove the confabulated falsification
of documents by respondents Honrada and Paredes.
Unfortunately for the prosecution, respondent Sandiganbayan,
hewing to the theory of the attorney-client privilege adverted to by
the Ombudsman and invoked by the two other private respondents
in their opposition to the prosecutions motion, resolved to deny the
desired discharge on this ratiocination:
From the evidence adduced, the opposition was able to establish
that client and lawyer relationship existed between Atty. Sansaet and
Ceferino Paredes, Jr., before, during and after the period alleged in
the information. In view of such relationship, the facts surrounding
the case, and other confidential matter must have been disclosed by
accused Paredes, as client, to accused Sansaet, as his lawyer in his
professional capacity. Therefore, the testimony of Atty. Sansaet on
the facts surrounding the offense charged in the information is
privileged.[19]
Reconsideration of said resolution having been likewise denied,
[20]
the controversy was elevated to this Court by the prosecution in
an original action for the issuance of the extraordinary writ
of certiorari against respondent Sandiganbayan.
The principal issues on which the resolution of the petition at bar
actually turns are therefore (1) whether or not the projected
testimony of respondent Sansaet, as proposed state witness, is
barred by the attorney-client privilege; and (2) whether or not, as a
consequence thereof, he is eligible for discharge to testify as
a particeps criminis.
I falsifications to be testified to in respondent court are concerned,
As already stated, respondent Sandiganbayan ruled that due to the
lawyer-client relationship which existed between herein respondents
Paredes and Sansaet during the relevant periods, the facts
surrounding the case and other confidential matters must have been
disclosed by respondent Paredes, as client, to respondent Sansaet,
as his lawyer. Accordingly, it found no reason to discuss it further
since Atty. Sansaet cannot be presented as a witness against accused
Ceferino S. Paredes, Jr. without the latters consent. [21]
The Court is of a contrary persuasion. The attorney-client privilege
cannot apply in these cases, as the facts thereof and the actuations
of both respondents therein constitute an exception to the rule. For
a clearer understanding of that evidential rule, we will first sweep
aside some distracting mental cobwebs in these cases.
1. It may correctly be assumed that there was a confidential
communication made by Paredes to Sansaet in connection with
Criminal Cases Nos. 17791-93 for falsification before respondent
court, and this may reasonably be expected since Paredes was the
accused and Sansaet his counsel therein. Indeed, the fact that
Sansaet was called to witness the preparation of the falsified
documents by Paredes and Honrada was as eloquent a
communication, if not more, than verbal statements being made to
him by Paredes as to the fact and purpose of such falsification. It is
significant that the evidentiary rule on this point has always referred
to any communication, without distinction or qualification. [22]
In the American jurisdiction from which our present evidential rule
was taken, there is no particular mode by which a confidential
communication shall be made by a client to his attorney.The privilege
is not confined to verbal or written communications made by the
client to his attorney but extends as well to information
communicated by the client to the attorney by other means. [23]
Nor can it be pretended that during the entire process, considering
their past and existing relations as counsel and client and, further, in
view of the purpose for which such falsified documents were
prepared, no word at all passed between Paredes and Sansaet on
the subject matter of that criminal act. The clincher for this
conclusion is the undisputed fact that said documents were
thereafter filed by Sansaet in behalf of Paredes as annexes to the
motion for reconsideration in the preliminary investigation of the
graft case before the Tanodbayan.[24]Also, the acts and words of the
parties during the period when the documents were being falsified
were necessarily confidential since Paredes would not have invited
Sansaet to his house and allowed him to witness the same except
under conditions of secrecy and confidence.
2. It is postulated that despite such complicity of Sansaet at the
instance of Paredes in the criminal act for which the latter stands
charged, a distinction must be made between confidential
communications relating to past crimes already committed, and
future crimes intended to be committed, by the client. Corollarily, it
is admitted that the announced intention of a client to commit a
crime is not included within the confidences which his attorney is
bound to respect. Respondent court appears, however, to believe
that in the instant case it is dealing with a past crime, and that
respondent Sansaet is set to testify on alleged criminal acts of
respondents Paredes and Honrada that have already been
committed and consummated.
The Court reprobates the last assumption which is flawed by a
somewhat inaccurate basis. It is true that by now, insofar as the
those crimes were necessarily committed in the past. But for the
application of the attorney-client privilege, however, the period to be
considered is the date when the privileged communication was
made by the client to the attorney in relation to either a crime
committed in the past or with respect to a crime intended to be
committed in the future. In other words, if the client seeks his
lawyers advice with respect to a crime that the former has
theretofore committed, he is given the protection of a virtual
confessional seal which the attorney-client privilege declares cannot
be broken by the attorney without the clients consent. The same
privileged confidentiality, however, does not attach with regard to a
10
crime which a client intends to commit thereafter or in the future
and for purposes of which he seeks the lawyers advice.
Statements and communications regarding the commission of a
crime already committed, made by a party who committed it, to an
attorney, consulted as such,
are privilegedcommunications. Contrarily, the unbroken stream of
judicial dicta is to the effect that communications between attorney
and client having to do with the clients contemplated criminal acts,
or in aid or furtherance thereof, are not covered by the cloak of
privileges ordinarily existing in reference to communications
between attorney and client.[25] (Emphases supplied.)
3. In the present cases, the testimony sought to be elicited from
Sansaet as state witness are the communications made to him by
physical acts and/or accompanying words of Paredes at the time he
and Honrada, either with the active or passive participation of
Sansaet, were about to falsify, or in the process of falsifying, the
documents which were later filed in the Tanodbayan by Sansaet and
culminated in the criminal charges now pending in respondent
Sandiganbayan. Clearly, therefore, the confidential communications
thus made by Paredes to Sansaet were for purposes of and in
reference to the crime of falsification which had not yet been
committed in the past by Paredes but which he, in confederacy with
his present co-respondents, later committed. Having been made for
purposes of a future offense, those communications are outside the
pale of the attorney-client privilege.
4. Furthermore, Sansaet was himself a conspirator in the commission
of that crime of falsification which he, Paredes and Honrada
concocted and foisted upon the authorities. It is well settled that in
order that a communication between a lawyer and his client may be
privileged, it must be for a lawful purpose or in furtherance of a
lawful end. The existence of an unlawful purpose prevents the
privilege from attaching. [26] In fact, it has also been pointed out to the
Court that the prosecution of the honorable relation of attorney and
client will not be permitted under the guise of privilege, and every
communication made to an attorney by a client for a criminal
purpose is a conspiracy or attempt at a conspiracy which is not only
lawful to divulge, but which the attorney under certain
circumstances may be bound to disclose at once in the interest of
justice.[27]
It is evident, therefore, that it was error for respondent
Sandiganbayan to insist that such unlawful communications intended
for an illegal purpose contrived by conspirators are nonetheless
covered by the so-called mantle of privilege. To prevent a conniving
counsel from revealing the genesis of a crime which was later
committed pursuant to a conspiracy, because of the objection
thereto of his conspiring client, would be one of the worst travesties
in the rules of evidence and practice in the noble profession of law.
II
On the foregoing premises, we now proceed to the consequential
inquiry as to whether respondent Sansaet qualifies, as a particeps
criminis, for discharge from the criminal prosecution in order to
testify for the State. Parenthetically, respondent court, having arrived
at a contrary conclusion on the preceding issue, did not pass upon
this second aspect and the relief sought by the prosecution which
are now submitted for our resolution in the petition at bar. We shall,
however, first dispose likewise of some ancillary questions requiring
preludial clarification.
1. The fact that respondent Sandiganbayan did not fully pass upon
the query as to whether or not respondent Sansaet was qualified to
be a state witness need not prevent this Court from resolving that
issue as prayed for by petitioner. Where the determinative facts and
evidence have been submitted to this Court such that it is in a
position to finally resolve the dispute, it will be in the pursuance of
the ends of justice and the expeditious administration thereof to
resolve the case on the merits, instead of remanding it to the trial
court.[28]
2. A reservation is raised over the fact that the three private
respondents here stand charged in three separate informations. It
will be recalled that in its resolution of February 24, 1992, the
Ombudsman recommended the filing of criminal charges for
falsification of public documents against all the respondents
herein. That resolution was affirmed but, reportedly in order to
obviate further controversy, one information was filed against each
of the three respondents here, resulting in three informations for the
same acts of falsification.
This technicality was, however, sufficiently explained away during the
deliberations in this case by the following discussion thereof by Mr.
Justice Davide, to wit:
Assuming no substantive impediment exists to block Sansaets
discharge as state witness, he can, nevertheless, be discharged even
if indicted under a separate information. I suppose the three cases
were consolidated for joint trial since they were all raffled to the
Second Division of the Sandiganbayan. Section 2, Rule XV of the
Revised Rules of the Sandiganbayan allows consolidation in only one
Division of cases arising from the same incident or series of
incidents, or involving common questions of law and
fact. Accordingly, for all legal intents and purposes, Sansaet stood as
co-accused and he could be discharged as state witness. It is of no
moment that he was charged separately from his co-accused. While
Section 9 of Rule 119 of the 1985 Rules of Criminal Procedure uses
the word jointly, which was absent in the old provision, the
consolidated and joint trial has the effect of making the three
accused co-accused or joint defendants, especially considering that
they are charged for the same offense. In criminal law, persons
indicted for the same offense and tried together are called joint
defendants.
As likewise submitted therefor by Mr. Justice Francisco along the
same vein, there having been a consolidation of the three cases, the
several actions lost their separate identities and became a single
action in which a single judgment is rendered, the same as if the
different causes of action involved had originally been joined in a
single action.[29]
Indeed, the former provision of the Rules referring to the situation
(w)hen two or more persons are charged with the commission of a
certain offense was too broad and indefinite; hence the word joint
was added to indicate the identity of the charge and the fact that the
accused are all together charged therewith substantially in the same
manner in point of commission and time. The word joint means
common to two or more, as involving the united activity of two or
more, or done or produced by two or more working together, or
shared by or affecting two or more.[30] Had it been intended that all
the accused should always be indicted in one and the same
information, the Rules could have said so with facility, but it did not
so require in consideration of the circumstances obtaining in the
present case and the problems that may arise from amending the
information. After all, the purpose of the Rule can be achieved by
consolidation of the cases as an alternative mode.
11
2. We have earlier held that Sansaet was a conspirator in the crime
of falsification, and the rule is that since in a conspiracy the act of
one is the act of all, the same penalty shall be imposed on all
members of the conspiracy. Now, one of the requirements for a state
witness is that he does not appear to be the most guilty. [31] not that
he must be the least guilty[32] as is so often erroneously framed or
submitted. The query would then be whether an accused who was
held guilty by reason of membership in a conspiracy is eligible to be
a state witness.
To be sure, in People vs. Ramirez, et al.[33] we find this obiter:
It appears that Apolonio Bagispas was the real mastermind. It is
believable that he persuaded the others to rob Paterno, not to kill
him for a promised fee. Although he did not actually commit any of
the stabbings, it was a mistake to discharge Bagispas as a state
witness. All the perpetrators of the offense, including him, were
bound in a conspiracy that made them equally guilty.
However, prior thereto, in People vs. Roxas, et al.,[34] two conspirators
charged with five others in three separate informations for multiple
murder were discharged and used as state witnesses against their
confederates. Subsequent thereto, in Lugtu, et al. vs. Court of
Appeals, et al.,[35] one of the co-conspirators was discharged from the
information charging him and two others with the crime of
estafa. The trial court found that he was not the most guilty as, being
a poor and ignorant man, he was easily convinced by his two co-
accused to open the account with the bank and which led to the
commission of the crime.
On appeal, this Court held that the finding of respondent appellate
court that Lugtu was just as guilty as his co-accused, and should not
be discharged as he did not appear to be not the most guilty, is
untenable. In other words, the Court took into account the gravity or
nature of the acts committed by the accused to be discharged
compared to those of his co-accused, and not merely the fact that in
law the same or equal penalty is imposable on all of them.
Eventually, what was just somehow assumed but not explicitly
articulated found expression in People vs. Ocimar, et al.,[36] which we
quote in extenso:
Ocimar contends that in the case at bar Bermudez does not satisfy
the conditions for the discharge of a co-accused to become a state
witness. He argues that no accused in a conspiracy can lawfully be
discharged and utilized as a state witness, for not one of them could
satisfy the requisite of appearing not to be the most guilty. Appellant
asserts that since accused Bermudez was part of the conspiracy, he is
equally guilty as the others.
We do not agree. First, there is absolute necessity for the testimony
of Bermudez. For, despite the presentation of four (4) other
witnesses, none of them could positively identify the accused except
Bermudez who was one of those who pulled the highway heist which
resulted not only in the loss of cash, jewelry and other valuables, but
even the life of Capt. Caeba, Jr. It was in fact the testimony of
Bermudez that clinched the case for the prosecution. Second,
without his testimony, no other direct evidence was available for the
prosecution to prove the elements of the crime. Third, his testimony
could be, as indeed it was, substantially corroborated in its material
points as indicated by the trial court in its well-reasoned
decision. Fourth, he does not appear to be the most guilty. As the
evidence reveals, he was only invited to a drinking party without
having any prior knowledge of the plot to stage a highway
robbery. But even assuming that he later became part of the
conspiracy, he does not appear to be the most guilty. What the law
prohibits is that the most guilty will be set free while his co-accused
who are less guilty will be sent to jail. And by most guilty we mean
the highest degree of culpability in terms of participation in the
commission of the offense and not necessarily the severity of the
penalty imposed. While all the accused may be given the same
penalty by reason of conspiracy, yet one may be considered least
guilty if We take into account his degree of participation in the
perpetration of the offense. Fifth, there is no evidence that he has at
any time been convicted of any offense involving moral turpitude.
xxx
Thus, We agree with the observations of the Solicitor General that
the rule on the discharge of an accused to be utilized as state witness
clearly looks at his actual and individual participation in the
commission of the crime, which may or may not have been
perpetrated in conspiracy with the other accused. Since Bermudez
was not individually responsible for the killing committed on the
occasion of the robbery except by reason of conspiracy, it cannot be
said then that Bermudez appears to be the most guilty. Hence, his
discharge to be a witness for the government is clearly warranted.
(Italics ours.)
The rule of equality in the penalty to be imposed upon conspirators
found guilty of a criminal offense is based on the concurrence of
criminal intent in their minds and translated into concerted physical
action although of varying acts or degrees of depravity. Since the
Revised Penal Code is based on the classical school of thought, it is
the identity of the mens rea which is considered the predominant
consideration and, therefore, warrants the imposition of the same
penalty on the consequential theory that the act of one is thereby
the act of all.
Also, this is an affair of substantive law which should not be equated
with the procedural rule on the discharge of particeps criminis. This
adjective device is based on other considerations, such as the need
for giving immunity to one of them in order that not all shall escape,
and the judicial experience that the candid admission of an accused
regarding his participation is a guaranty that he will testify
truthfully. For those reasons, the Rules provide for certain qualifying
criteria which, again, are based on judicial experience distilled into a
judgmental policy.
III
The Court is reasonably convinced, and so holds, that the other
requisites for the discharge of respondent Sansaet as a state witness
are present and should have been favorably appreciated by the
Sandiganbayan.
Respondent Sansaet is the only cooperative eyewitness to the actual
commission of the falsification charged in the criminal cases pending
before respondent court, and the prosecution is faced with the
formidable task of establishing the guilt of the two other co-
respondents who steadfastly deny the charge and stoutly protest
their innocence. There is thus no other direct evidence available for
the prosecution of the case, hence there is absolute necessity for the
testimony of Sansaet whose discharge is sought precisely for that
purpose. Said respondent has indicated his conformity thereto and
has, for the purposes required by the Rules, detailed the substance
of his projected testimony in his Affidavit of Explanations and
Rectifications.
His testimony can be substantially corroborated on its material
points by reputable witnesses, identified in the basic petition with a
digest of their prospective testimonies, as follows: Judge Ciriaco C.
Ario, Municipal Circuit Trial Court in San Francisco, Agusan del Sur;
12
Provincial Prosecutor and Deputized Ombudsman Prosecutor
Claudio A. Nistal; Teofilo Gelacio, private complainant who initiated
the criminal cases through his letter-complaint; Alberto Juvilan of the
Sangguniang Bayan of San Fernando, Agusan del Sur, who
participated in the resolution asking their Provincial Governor to file
the appropriate case against respondent Paredes, and Francisco
Macalit, who obtained the certification of non-arraignment from
Judge Ario.
On the final requirement of the Rules, it does not appear that
respondent Sansaet has at any time been convicted of any offense
involving moral turpitude. Thus, with the confluence of all the
requirements for the discharge of this respondent, both the Special
Prosecutor and the Solicitor General strongly urge and propose that
he be allowed to testify as a state witness.
This Court is not unaware of the doctrinal rule that, on this
procedural aspect, the prosecution may propose but it is for the trial
court, in the exercise of its sound discretion, to determine the merits
of the proposal and make the corresponding disposition. It must be
emphasized, however, that such discretion should have been
exercised, and the disposition taken on a holistic view of all the facts
and issues herein discussed, and not merely on the sole issue of the
applicability of the attorney-client privilege.
This change of heart and direction respondent Sandiganbayan
eventually assumed, after the retirement of two members of its
Second Division [37]and the reconstitution thereof. In an inversely
anticlimactic Manifestation and Comment [38] dated June 14, 1995, as
required by this Court in its resolution on December 5, 1994, the
chairman and new members thereof [39]declared:
4) That the questioned Resolutions of December 22, 1993 and March
7, 1994 upon which the Petition for Certiorari filed by the
prosecution are based, was penned by Associate Justice Narciso T.
Atienza and concurred in by the undersigned and Associate Justice
Augusto M. Amores;
5) That while the legal issues involved had been already discussed
and passed upon by the Second Division in the aforesaid Resolution,
however, after going over the arguments submitted by the Solicitor-
General and re-assessing Our position on the matter, We respectfully
beg leave of the Honorable Supreme Court to manifest that We are
amenable to setting aside the questioned Resolutions and to grant
the prosecutions motion to discharge accused Generoso Sansaet as
state witness, upon authority of the Honorable Supreme Court for
the issuance of the proper Resolution to that effect within fifteen
(15) days from notice thereof.
WHEREFORE, the writ of certiorari prayed for is hereby granted
SETTING ASIDE the impugned resolutions and ORDERING that the
present reliefs sought in these cases by petitioner be allowed and
given due course by respondent Sandiganbayan.
SO ORDERED.
Narvasa, C.J., Padilla, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug, Kapunan, Mendoza, Francisco and Panganiban, JJ., concur.
Hermosisima, Jr. and Torres, Jr., JJ., on leave.
[G.R. No. 150185. May 27, 2004]
TERESITA TANGHAL OKABE, petitioner, vs. HON. PEDRO DE LEON
GUTIERREZ, in his capacity as Presiding Judge of RTC, Pasay City,
Branch 119; PEOPLE OF THE PHILIPPINES; and CECILIA
MARUYAMA, respondents.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari, under Rule 45 of the
Rules of Court, as amended, that part of the Decision [1] of the Court
of Appeals in CA-G.R. SP No. 60732 dismissing her petition for
certiorari under Rule 65 of the Rules of Court, as amended, for the
nullification of the August 25 and 28, 2000 Orders of the respondent
judge in Criminal Case No. 00-0749.
The Antecedents
Cecilia Maruyama executed a fifteen-page affidavit-complaint[2] and
filed the same with the Office of the City Prosecutor of Pasay City, on
December 29, 1999, charging Lorna Tanghal and petitioner Teresita
Tanghal Okabe, a.k.a. Shiela Okabe, with estafa. In her affidavit,
Maruyama alleged, inter alia, that on December 11, 1998, she
entrusted Y11,410,000 with the peso equivalent of P3,993,500 to the
petitioner, who was engaged in the business of door-to-door delivery
from Japan to the Philippines. It was alleged that the petitioner
failed to deliver the money as agreed upon, and, at first, denied
receiving the said amount but later returned only US$1,000 through
Lorna Tanghal.
During the preliminary investigation, the complainant, respondent
Maruyama, submitted the affidavit of her witnesses, namely,
Hermogena Santiago, Wilma Setsu and Marilette G. Izumiya and
other documentary evidence. In her affidavit, Setsu alleged that the
money which was entrusted to the petitioner for delivery to the
Philippines belonged to her and her sister Annie Hashimoto, and
their mother Hermogena Sanchez-Quicho, who joined respondent
Maruyama in her complaint against petitioner Okabe and
Tanghal. Respondent Maruyama, likewise, submitted a reply [3] to the
petitioners counter-affidavit. After the requisite preliminary
investigation, 2nd Assistant City Prosecutor Joselito J. Vibandor came
out with a resolution dated March 30, 2000, finding probable cause
for estafa against the petitioner.[4] Attached to the resolution, which
was submitted to the city prosecutor for approval, was the
Information[5]against the petitioner and Maruyamas affidavit-
complaint. The city prosecutor approved the resolution and the
Information dated March 30, 2000 attached thereto. [6]
On May 15, 2000, an Information against the petitioner was filed in
the Regional Trial Court of Pasay City, docketed as Criminal Case No.
00-0749. The case was raffled to Branch 119 of the court presided by
Judge Pedro de Leon Gutierrez.[7] The accusatory portion of the
Information reads:
That on or about December 12, 1998 in Pasay City, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused defrauded Cecilia Maruyama and Conchita
Quicho, complainant herein, in the following manner, to wit: said
accused received in trust from Cecilia Maruyama the amount of
Japanese Yen 1141 (sic) with peso equivalent to P3,839,465.00 under
obligation to deliver the money to Conchita Quicho at the NAIA
International Airport, Pasay City, immediately upon accused arrival
from Japan, but herein accused once in possession of the same, did,
then and there willfully, unlawfully and feloniously misappropriate
and convert to her own personal benefit the said amount, and
despite demands accused failed and refused to do so, to the damage
and prejudice of the complainants in the aforesaid amount.
Contrary to law.[8]
Appended to the Information was the affidavit-complaint of
respondent Maruyama and the resolution of Investigating Prosecutor
Vibandor. On May 19, 2000, the trial court issued a warrant for the
arrest of the petitioner with a recommended bond of P40,000. On
June 15, 2000, the petitioner posted a personal bail bond in the said
13
amount, duly approved by Judge Demetrio B. Macapagal, the
Presiding Judge of Branch 79 of the RTC of Quezon City, who
forthwith recalled the said warrant. The approved personal bail bond
of the petitioner was transmitted to the RTC of Pasig City on June 21,
2000. Upon her request, the petitioner was furnished with a certified
copy of the Information, the resolution and the criminal complaint
which formed part of the records of the said case. The petitioner left
the Philippines for Japan on June 17, 2000 without the trial courts
permission, and returned to the Philippines on June 28, 2000. She
left the Philippines anew on July 1, 2000, and returned on July 12,
2000.
On July 14, 2000, the trial court issued an Order setting the
petitioners arraignment and pre-trial at 2:00 p.m. of July 16,
2000. On the same day, the private prosecutor filed an urgent ex
parte motion for the issuance of the hold departure order, alleging
as follows:
3. It has come to the knowledge of private complainant that there is
an impending marriage within the Philippines of either the son or
daughter of the above-named accused and that the above-named
accusedwho has businesses in Japan, and is presently in Japanwill
soon exit Japan and enter the Philippines to precisely attend said
wedding;
4. Given [a] the bail was fixed at merely P40,000.00 and b] the
considerable financial capability of the accused, it is a foregone
conclusion that the above-named accused will, upon arrest, readily
and immediately post bond, and leave for Japanthereby frustrating
and rendering inutile the administration of criminal justice in our
country. The speed with which accused Teresita Sheila Tanghal
Okabe can post bond and leave for Japaneffectively evading
arraignment and pleathus necessitates the immediate issuance of a
Hold Departure Order even before her arrival here in the Philippines;
[9]
The trial court issued an order on the same day, granting the motion
of the private prosecutor for the issuance of a hold departure order
and ordering the Commission on Immigration and Deportation (CID)
to hold and prevent any attempt on the part of the petitioner to
depart from the Philippines.[10] For her part, the petitioner filed on
July 17, 2000 a verified motion for judicial determination of probable
cause and to defer proceedings/arraignment, alleging that the only
documents appended to the Information submitted by the
investigating prosecutor were respondent Maruyamas affidavit-
complaint for estafa and the resolution of the investigating
prosecutor; the affidavits of the witnesses of the complainant, the
respondents counter-affidavit and the other evidence adduced by
the parties were not attached thereto. The petitioner further alleged
that the documents submitted by the investigating prosecutor were
not enough on which the trial court could base a finding of probable
cause for estafa against her. She further averred that conformably to
the rulings of this Court in Lim v. Felix[11] and Roberts, Jr. v. Court of
Appeals,[12] it behooved the investigating prosecutor to submit the
following to the trial court to enable it to determine the presence or
absence of probable cause: (a) copies of the affidavits of the
witnesses of the complainant; (b) the counter-affidavit of Okabe and
those of her witnesses; (c) the transcripts of stenographic notes
taken during the preliminary investigation; and, (d) other documents
presented during the said investigation.
On July 19, 2000, the petitioner filed a Very Urgent Motion To
Lift/Recall Hold Departure Order dated July 17, 2000 and/or allow
her to regularly travel to Japan alleging, thus:
3. Accused is (sic) widow and the legitimate mother of three (3)
children, two (2) of whom are still minors, namely:
3.1. Okabe, Jeffrey-18 years old born on 13 August 1981.
3.2. Okabe, Masatoshi-14 years old and born on 16 October 1985,
3rd year High School student at Hoshikuki, Chiba City, Matsugaoka,
High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205,
Telephone No. 043-224-5804.
3.3. Okabe, Tomoki-13 years old and born on 13 March 1986, 2nd
year High School student at Hoshikuki, Chiba City, Matsugaoka, High
School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone
No. 043-224-5804.
3.4. The accused has to attend the Parents Teachers Association
(PTA) at the Hoshikuki High School where her two (2) minor sons
aforesaid are presently enrolled and studying because Okabe,
Masatoshis graduation will take place on 26 July 2000.
3.5. The two (2) minor children of the accused absolutely depend
their support (basic necessities) for foods, clothings, medicines,
rentals, schooling and all other expenses for their survival to their
legitimate mother who is the accused herein.
3.6. The issuance of the hold departure order (HDO) will impair the
inherent custodial rights of the accused as the legitimate mother
over these two (2) minor children which is repugnant to law.
3.7. The issuance of the hold departure order (HDO) will unduly
restrict the accused to her custodial rights and visitation over her
aforesaid minor children who are permanently living in Japan.
3.8. The issuance of the hold departure order (HDO) will unduly
deprived (sic) these minor children to their right to obtain education
and survival.
4. Accuseds only source of income and livelihood is door-to-door
delivery from Japan to the Philippines and vice versa which has been
taking place for a very long period of time and in the process she has
been constantly departing from the Philippines on a weekly basis
and arriving in Japan on the same frequency, as evidenced by xerox
copies of the pages of her Philippine Passports which are hereto
attached as Annexes A, A-1, A-2 up to A-30, respectively. To deprive
her of this only source of her livelihood to which the aforesaid two
(2) minor children are deriving their very survival in a foreign land
will (sic) tantamount to oppression rather than prosecution and
depriving the said minor sons of their right to live even before trial
on the merits of this case that will (sic) tantamount to the
destruction of the future of these minor children. [13]
The private prosecutor opposed the petitioners motions during the
hearing on July 21, 2000 which was also the date set for her
arraignment. The hearing of the motions as well as the arraignment
was reset to 2:00 p.m. of July 26, 2000. On the said date, the
petitioner filed a manifestation objecting to her arraignment prior to
the resolution of her pending motions. She alleged that her
arraignment for the crime charged should not be made a condition
for the granting of her motion to recall the hold departure order
issued against her. The arraignment of the petitioner was again reset
to 2:00 p.m. of August 28, 2000, pending the resolution of her two
motions. On August 25, 2000, the petitioner filed a motion for the
postponement of her arraignment alleging that, in case the trial
court ruled adversely thereon, she would refuse to enter a plea and
seek relief from the appellate court. The court denied the petitioners
motions on the following grounds:
(a) Based on its personal examination and consideration of the
Information, the affidavit-complaint of respondent Maruyama and
the resolution of the investigating prosecutor duly approved by the
14
city prosecutor, the court found probable cause for the petitioners
arrest. Since the petitioners motion for a determination of probable
cause was made after the court had already found probable cause
and issued a warrant for the petitioners arrest, and after the latter
filed a personal bail bond for her provisional liberty, such motion was
a mere surplusage;
(b) When the petitioner posted a personal bail bond for her
provisional liberty, she thereby waived her right to question the
courts finding of the existence of probable cause for her arrest and
submitted herself to the jurisdiction of the court, more so when she
filed the motion for the lifting of the hold departure order the court
issued, and the motion to defer the proceedings and her
arraignment; and
(c) The hold departure order issued by the trial court was in accord
with Supreme Court Circular No. 39-97 dated June 19, 1997, as well
as the ruling of this Court in Manotoc, Jr. v. Court of Appeals.[14]
When the case was called for the petitioners arraignment at 2:00
p.m., on August 28, 2000, she refused to plead.[15] Her counsel
advised her, in open court, not to enter a plea and, with leave of
court, left the courtroom. The court then entered a not guilty plea
for the petitioner.[16] It also issued an order, on the said date, setting
the pre-trial and initial presentation of the evidence of the
prosecution at 8:30 a.m. of September 20, 2000.[17]
The petitioner then filed with the Court of Appeals a petition
for certiorari under Rule 65 of the Rules of Court with a plea for a
writ of preliminary injunction. The case was docketed as CA-G.R. SP
No. 60732. The petitioner ascribed the following errors to the trial
court:
I petitioners Motion to Lift/Recall Hold Departure Order dated 14 July,
RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED
WARRANT OF ARREST DESPITE OF (SIC) LACK
OF PROBABLE CAUSE
II
RESPONDENT COURT HAS VIOLATED THE
RIGHT OF THE PETITIONER TO DUE PROCESS
III
RESPONDENT COURT HAS ALREADY PRE-JUDGED
THE CONVICTION OF THE PETITIONER FOR ESTAFA
IV
RESPONDENT COURT HAS EXHIBITED ITS APPARENT
PARTIALITY TOWARDS THE PROSECUTION AND
AGAINST THE PETITIONER
V bail on June 15, 2000 before the Revised Rules on Criminal
RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE
MOTION FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE
PURSUANT TO THE DOCTRINE OF ROBERTS, JR.
VI
RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC)
THE LIFTING/RECALL OF THE HDO AND/OR ALLOWING THE
PETITIONER TO TRAVEL TO JAPAN REGULARLY FOR
HUMANITARIAN CONSIDERATION
VII
RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION
WHEN IT ISSUED THE QUESTIONED ORDERS[18]
On January 31, 2001, the CA rendered a Decision [19] partially granting
the petition in that the assailed order of the trial court denying the
petitioners motion to lift/recall the hold departure order was set
aside. However, the petitioners motion for reconsideration of the
trial courts decision was denied and her petition for the nullification
of the August 25, 2000 Order of the respondent judge was
dismissed. The CA ruled that by posting bail and praying for reliefs
from the trial court, the petitioner waived her right to assail the
respondent judges finding of the existence of probable cause. The
appellate court cited the ruling of this Court in Cojuangco, Jr. v.
Sandiganbayan.[20] Thus, the appellate court affirmed the assailed
order of the RTC, based on the respondent judges personal
examination of respondent Maruyamas affidavit-complaint, the
resolution of the investigating prosecutor and the Information
approved by the city prosecutor, a finding of probable cause was in
order. However, the appellate court allowed the petitioner to travel
to Japan under the following conditions:
(1) That petitioner post a bond double the amount of her alleged
monetary liability under the Information filed against her, as
recommended by the Office of the Solicitor General;
(2) That petitioner inform respondent Court of each and all of her
travel itinerary prior to leaving the country;
(3) That petitioner make periodic reports with respondent Court;
(4) That petitioner furnish respondent Court with all the addresses of
her possible place of residence, both here and in Japan; and
(5) Such other reasonable conditions which respondent Court may
deem appropriate under the circumstances. [21]
The appellate court did not resolve the issue of whether the trial
court had prejudged the case and was partial to the prosecution. The
decretal portion of the decision of the CA reads:
WHEREFORE, premises considered, the instant special civil action
for certiorari is hereby PARTIALLY GRANTED insofar as the denial of
2000 and/or Allow the accused to Regularly Travel to Japan is
concerned. In all other respect, the same is hereby DENIED.
SO ORDERED.[22]
On March 6, 2001, the petitioner filed a motion for a partial
reconsideration of the decision of the CA contending that the
appellate court erred in applying the ruling of this court
inCojuangco, Jr. v. Court of Appeals[23] instead of Section 26, Rule 114
of the Revised Rules on Criminal Procedure. The petitioner posited
that the said rule, which took effect on December 1, 2000, before
the court rendered its decision, had superseded the ruling of this
Court in the Cojuangco case. However, the appellate court held that
Section 26, Rule 114 of the Revised Rules on Criminal Procedure
cannot be applied retroactively, because the petitioner had posted
Procedure took effect.
Hence, the instant petition for review on certiorari for the reversal of
the decision and resolution of the CA and praying that after due
proceedings, judgment be rendered in her favor, thus:
WHEREFORE, it is respectfully prayed of this Honorable Supreme
Court that after due proceedings, judgment be rendered in favor of
the petitioner and against the respondents as follows:
(a) GIVING DUE COURSE to the instant petition;
(b) ORDERING the REVERSAL and PARTIALLY SETTING ASIDE of the
Decision promulgated on 31 January 2001 (Annex A hereof) of the
Honorable Court of Appeals in CA-G.R. SP No. 60732 as well as its
Resolution promulgated on 27 September 2001 (Annex B hereof);
(c) ORDERING the DISMISSAL of Crim. Case No. 00-0749 for lack of
probable cause;
(d) DECLARING the entire proceedings in Crim. Case No. 00-0749 as
null and void;
15
(e) ORDERING the private respondents to pay the petitioners the
following amount:
(i) at least P1,000,000.00 as moral damages;
(ii) at least P1,000,000.00 as exemplary damages;
(iii) at least P500,000.00 as attorneys fees and for other expenses of
litigation.
(f) ORDERING the private respondent to pay the costs of this suit.
(g) Petitioner further prays for such other reliefs just and equitable
under the premises.[24]
The petitioner asserts that the CA committed the following reversible
errors:
I III
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR
WHEN IT COMPLETELY DISREGARDED THE APPLICATION OF SECTION
26, RULE 114 OF THE REVISED RULES ON CRIMINAL PROCEDURE
WHICH TOOK EFFECT ON 01 DECEMBER 2000 WHICH IS FAVORABLE
TO THE PETITIONER/ACCUSED.
II
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN
RULING THAT WHATEVER INFIRMITY THERE WAS IN THE ISSUANCE
OF THE WARRANT OF ARREST, THE SAME WAS CURED WHEN
PETITIONER VOLUNTARILY SUBMITTED TO THE RESPONDENT
COURTS JURISDICTION WHEN SHE POSTED BAIL AND FILED
MOTIONS SEEKING AFFIRMATIVE RELIEF SUCH AS MOTION TO
LIFT/RECALL HOLD DEPARTURE ORDER AND TO ALLOW PETITIONER
TO TRAVEL REGULARLY TO JAPAN (Last paragraph, Page 9 DECISION
dated 31 January 2001).
III
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR
WHEN IT RELIED UPON THE RULING IN THE CASE OF COJUANGCO,
JR. VS. SANDIGANBAYAN, [300 SCRA 367 (1998)] WHEN IN FACT SAID
RULING IS NOW OBSOLETE AND NO LONGER APPLICABLE.
IV
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN
RULING THAT RESPONDENT COURT COMPLIED WITH THE
CONSTITUTIONAL REQUIREMENTS ON THE ISSUANCE OF WARRANT
OF ARREST WITHOUT PROBABLE CAUSE, WHEN THE RESPONDENT
COURT MERELY RELIED ON [THE] (i) COMPLAINT-AFFIDAVIT OF
CECILIA MARUYAMA; (ii) RESOLUTION OF THE INVESTIGATING
PROSECUTOR; AND (iii) CRIMINAL INFORMATION.
V cause. She posits that the respondent judge acted with grave abuse
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR
WHEN IT FAILED TO RULE ON THE PARTIALITY OF THE RESPONDENT
JUDGE IN HANDLING THE CASE BELOW WHICH IS VIOLATIVE OF THE
PETITIONERS RIGHT TO DUE PROCESS.
VI
THE FILING OF CRIM. CASE NO. 4297 (MTC, ANGAT, BULACAN) FOR
ESTAFA ENTITLED PEOPLE VS. SHEILA OKABE; CIVIL CASE NO. 331-M-
98 (RTC, MALOLOS, BULACAN) FOR SUM OF MONEY WITH
PRELIMINARY ATTACHMENT ENTITLED CONCHITA SANCHEZ-QUICHO
VS. SHEILA TERESITA TANGHAL OKABE; AND CRIM. CASE NO. 00-07-
19 (RTC, PASAY CITY, BRANCH 119) ENTITLED PEOPLE VS. TERESITA
TANGHAL OKABE CONSTITUTE A VIOLATION OF THE RULE ON NON-
FORUM SHOPPING.[25]
By way of comment, the Office of the Solicitor General refuted the
petitioners assigned errors, contending as follows:
I The Office of the Solicitor General, on the other hand, asserts that
The Court of Appeals did not commit a reversible error in not
applying Section 26, Rule 114 of the Revised Rules on Criminal
Procedure.
II
The Court of Appeals did not commit a reversible error in ruling that
the infirmity, if any, in the issuance by the respondent Judge of the
warrant of arrest against petitioner was cured when petitioner
voluntarily submitted to the trial courts jurisdiction when she posted
bail and filed motions seeking for affirmative reliefs from the trial
court, such as the motion to lift/recall Hold Departure Order (HDO)
and to allow petitioner to travel regularly to Japan.
The Court of Appeals did not commit a reversible error in applying
the ruling in the Cojuangco case.
IV
The Court of Appeals did not commit a reversible error in finding
that respondent Judge complied with the constitutional
requirements on the issuance of a warrant of arrest.
V
The Court of Appeals did not commit a reversible error when it did
not rule on the partiality of the respondent Judge in handling
Criminal Case No. 00-0749.
VI
The Honorable Court of Appeals did not commit a reversible error
when it did not rule on petitioners claim of forum shopping. [26]
The Court shall resolve the assigned errors simultaneously as they
are interrelated.
The petitioner asserts that the respondent judge could not have
determined the existence of probable cause for her arrest solely on
the resolution of the investigating prosecutor and the undated
affidavit-complaint of respondent Maruyama. She posits that the
respondent judge should have ordered the investigating prosecutor
to submit the affidavits of the witnesses of respondent Maruyama
and the latters documentary evidence, as well as the counter-
affidavit of the petitioner and the transcripts of the stenographic
notes, if any, taken during the preliminary investigation. The
petitioner adds that the respondent judge should have personally
reviewed the said documents, conformably to the rulings of this
Court in Lim v. Felix,[27]Roberts, Jr. v. Court of Appeals[28] and Ho v.
People,[29] before determining the presence or absence of probable
of discretion amounting to excess or lack of jurisdiction in denying
her motion for a determination of probable cause, and the
alternative motion for a dismissal of the case against her for lack of
probable cause.
The petitioner further asserts that the appellate court erred in
affirming the ruling of the respondent judge that, by posting a
personal bail bond for her provisional liability and by filing several
motions for relief, she thereby voluntarily submitted herself to the
jurisdiction of the trial court and waived her right to assail the
infirmities that infected the trial courts issuance of the warrant for
her arrest. She avers that the appellate courts reliance on the ruling
of this Court in Cojuangco, Jr. v. Sandiganbayan[30] is misplaced, and
submits that the appellate court should have applied Section 26,
Rule 114 of the Revised Rules of Court retroactively, as it rendered
the ruling of this Court in the Cojuangco, Jr. case obsolete.
the respondent judge did not commit any grave abuse of discretion
when he found probable cause against the petitioner for estafa, and
16
thereafter issued a warrant for her arrest. It argues that the
respondent judge personally determined the existence of probable
cause independently of the certification of the investigating
prosecutor, and only after examining the Information, the resolution
of the investigating prosecutor, as well as the affidavit-complaint of
the private complainant. It asserts that such documents are
sufficient on which to anchor a finding of probable cause. It insists
that the appellate court correctly applied the ruling of this Court in
theCojuangco, Jr. v. Court of Appeals case, and that the respondent
judge complied with both the requirements of the constitution and
those set forth in the Rules of Court before issuing the said warrant.
[31]
We agree with the contention of the petitioner that the appellate
court erred in not applying Section 26, Rule 114 of the Revised Rules
on Criminal Procedure, viz:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or
irregular preliminary investigation. An application for or admission to
bail shall not bar the accused from challenging the validity of his
arrest or the legality of the warrant issued therefor, or from assailing
the regularity or questioning the absence of a preliminary
investigation of the charge against him, provided that he raises them
before entering his plea. The court shall resolve the matter as early
as practicable but not later than the start of the trial of the case.
It bears stressing that Section 26, Rule 114 of the Revised Rules on
Criminal Procedure is a new one, intended to modify previous rulings
of this Court that an application for bail or the admission to bail by
the accused shall be considered as a waiver of his right to assail the
warrant issued for his arrest on the legalities or irregularities
thereon.[32] The new rule has reverted to the ruling of this Court
in People v. Red.[33] The new rule is curative in nature because
precisely, it was designed to supply defects and curb evils in
procedural rules. Hence, the rules governing curative statutes are
applicable. Curative statutes are by their essence retroactive in
application.[34] Besides, procedural rules as a general rule operate
retroactively, even without express provisions to that effect, to cases
pending at the time of their effectivity, in other words to actions yet
undetermined at the time of their effectivity.[35] Before the appellate
court rendered its decision on January 31, 2001, the Revised Rules
on Criminal Procedure was already in effect. It behooved the
appellate court to have applied the same in resolving the petitioners
petition for certiorari and her motion for partial reconsideration.
Moreover, considering the conduct of the petitioner after posting
her personal bail bond, it cannot be argued that she waived her right
to question the finding of probable cause and to assail the warrant of
arrest issued against her by the respondent judge. There must be
clear and convincing proof that the petitioner had an actual
intention to relinquish her right to question the existence of
probable cause.[36] When the only proof of intention rests on what a
party does, his act should be so manifestly consistent with, and
indicative of, an intent to voluntarily and unequivocally relinquish the
particular right that no other explanation of his conduct is possible.
[37]
In this case, the records show that a warrant was issued by the
respondent judge in Pasay City for the arrest of the petitioner, a
resident of Guiguinto, Bulacan. When the petitioner learned of the
issuance of the said warrant, she posted a personal bail bond to
avert her arrest and secure her provisional liberty. Judge Demetrio B.
Macapagal of the RTC of Quezon City approved the bond and issued
an order recalling the warrant of arrest against the petitioner. Thus,
the posting of a personal bail bond was a matter of imperative
necessity to avert her incarceration; it should not be deemed as a
waiver of her right to assail her arrest. So this Court ruled inPeople v.
Red:[38]
The present defendants were arrested towards the end of January,
1929, on the Island and Province of Marinduque by order of the
judge of the Court of First Instance of Lucena, Tayabas, at a time
when there were no court sessions being held in Marinduque. In
view of these circumstances and the number of the accused, it may
properly be held that the furnishing of the bond was prompted by
the sheer necessity of not remaining in detention, and in no way
implied their waiver of any right, such as the summary examination
of the case before their detention. That they had no intention of
waiving this right is clear from their motion of January 23, 1929, the
same day on which they furnished a bond, and the fact that they
renewed this petition on February 23, 1929, praying for the stay of
their arrest for lack of the summary examination; the first motion
being denied by the court on January 24, 1929 (G.R. No. 33708, page
8), and the second remaining undecided, but with an order to have it
presented in Boac, Marinduque.
Therefore, the defendants herein cannot be said to have waived the
right granted to them by section 13, General Order No. 58, as
amended by Act No. 3042.[39]
Moreover, the next day, or on June 16, 2000, the petitioner, through
counsel, received certified true copies of the Information, the
resolution of the investigating prosecutor, the affidavit-complaint of
the private complainant, respondent Maruyama, and a certification
from the branch clerk of court that only the Information, resolution
and affidavit-complaint formed part of the entire records of the
case. The next day, June 17, 2000, the petitioner, through counsel,
filed a verified motion for judicial determination of probable cause
and to defer the proceedings and her arraignment. All the foregoing
are inconsistent with a waiver of her right to assail the validity of her
arrest and to question the respondent judges determination of the
existence of probable cause for her arrest.
Neither can the petitioners filing of a motion for the lifting of the
hold departure order and for leave to go to Japan be considered a
waiver of her right to assail the validity of the arrest warrant issued
by the respondent judge. It bears stressing that when the petitioner
filed the motion to lift the hold departure order issued against her by
the respondent judge, her motion for a determination of probable
cause was still unresolved. She sought a lifting of the hold departure
order on July 14, 2000 and filed a motion for leave to go to Japan, to
give the respondent judge an opportunity to reconsider the said
order, preparatory to assailing the same in the appellate court in
case her motion was denied.
The issue that now comes to fore is whether or not the respondent
judge committed a grave abuse of his discretion amounting to excess
or lack of jurisdiction in issuing his August 25, 2000 Order. By grave
abuse of discretion is meant such patent and gross abuse of
discretion as to amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reasons of passion or personal hostility.
[40]
Hence, when the court has jurisdiction over the case, its
questioned acts, even if its findings are not correct, would at most
constitute errors of law and not abuse of discretion correctible by
the extraordinary remedy of certiorari. [41]
We agree with the petitioner that before the RTC judge issues a
warrant of arrest under Section 6, Rule 112 of the Rules of Court [42] in
17
relation to Section 2, Article III of the 1987 Constitution, the judge
must make a personal determination of the existence or non-
existence of probable cause for the arrest of the accused. The duty
to make such determination ispersonal and exclusive to the issuing
judge. He cannot abdicate his duty and rely on the certification of
the investigating prosecutor that he had conducted a preliminary
investigation in accordance with law and the Rules of Court, as
amended, and found probable cause for the filing of the Information.
Under Section 1, Rule 112 of the Rules on Criminal Procedure, the
investigating prosecutor, in conducting a preliminary investigation of
a case cognizable by the RTC, is tasked to determine whether there is
sufficient ground to engender a well-founded belief that a crime has
been committed and the respondent therein is probably guilty
thereof and should be held for trial. A preliminary investigation is for
the purpose of securing the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public
accusation of a crime, from the trouble, expense and anxiety of a
public trial.[43]
If the investigating prosecutor finds probable cause for the filing of
the Information against the respondent, he executes a certification
at the bottom of the Information that from the evidence presented,
there is a reasonable ground to believe that the offense charged has
been committed and that the accused is probably guilty
thereof. Such certification of the investigating prosecutor is, by itself,
ineffective. It is not binding on the trial court. Nor may the RTC rely
on the said certification as basis for a finding of the existence of
probable cause for the arrest of the accused. [44]
In contrast, the task of the presiding judge when the Information is
filed with the court is first and foremost to determine the existence
or non-existence of probable cause for the arrest of the
accused. Probable cause is meant such set of facts and
circumstances which would lead a reasonably discreet and prudent
man to believe that the offense charged in the Information or any
offense included therein has been committed by the person sought
to be arrested.[45] In determining probable cause, the average man
weighs facts and circumstances without resorting to the calibrations
of the rules of evidence of which he has no technical knowledge. He
relies on common sense.[46] A finding of probable cause needs only to
rest on evidence showing that more likely than not a crime has been
committed and that it was committed by the accused. Probable
cause demands more than bare suspicion, it requires less than
evidence which would justify conviction. [47]
The purpose of the mandate of the judge to first determine probable
cause for the arrest of the accused is to insulate from the very start
those falsely charged of crimes from the tribulations, expenses and
anxiety of a public trial:
It must be stressed, however, that in these exceptional cases, the
Court took the extraordinary step of annulling findings of probable
cause either to prevent the misuse of the strong arm of the law or to
protect the orderly administration of justice. The constitutional duty
of this Court in criminal litigations is not only to acquit the innocent
after trial but to insulate, from the start, the innocent from
unfounded charges.For the Court is aware of the strains of a criminal
accusation and the stresses of litigation which should not be suffered
by the clearly innocent. The filing of an unfounded criminal
information in court exposes the innocent to severe distress
especially when the crime is not bailable. Even an acquittal of the
innocent will not fully bleach the dark and deep stains left by a
baseless accusation for reputation once tarnished remains tarnished
for a long length of time. The expense to establish innocence may
also be prohibitive and can be more punishing especially to the poor
and the powerless. Innocence ought to be enough and the business
of this Court is to shield the innocent from senseless suits right from
the start.[48]
In determining the existence or non-existence of probable cause for
the arrest of the accused, the RTC judge may rely on the findings and
conclusions in the resolution of the investigating prosecutor finding
probable cause for the filing of the Information. After all, as the
Court held in Webb v. De Leon,[49] the judge just personally reviews
the initial determination of the investigating prosecutor finding a
probable cause to see if it is supported by substantial evidence.
[50]
However, in determining the existence or non-existence of
probable cause for the arrest of the accused, the judge should not
rely solely on the said report.[51] The judge should consider not only
the report of the investigating prosecutor but also the
affidavit/affidavits and the documentary evidence of the parties, the
counter-affidavit of the accused and his witnesses, as well as the
transcript of stenographic notes taken during the preliminary
investigation, if any, submitted to the court by the investigating
prosecutor upon the filing of the Information. [52] Indeed, in Ho v.
People,[53] this Court held that:
Lastly, it is not required that the complete or entire records of the
case during the preliminary investigation be submitted to and
examined by the judge. We do not intend to unduly burden trial
courts by obliging them to examine the complete records of every
case all the time simply for the purpose of ordering the arrest of an
accused. What is required, rather, is that the judge must
have sufficient supporting documents (such as the complaint,
affidavits, counter-affidavits, sworn statements of witnesses or
transcripts of stenographic notes, if any) upon which to make his
independent judgment or, at the very least, upon which to verify the
findings of the prosecutor as to the existence of probable cause. The
point is: he cannot rely solely and entirely on the prosecutors
recommendation, as Respondent Court did in this case. Although the
prosecutor enjoys the legal presumption of regularity in the
performance of his official duties and functions, which in turn gives
his report the presumption of accuracy, the Constitution, we repeat,
commands the judge to personally determine probable cause in the
issuance of warrants of arrest. This Court has consistently held that a
judge fails in his bounden duty if he relies merely on the certification
or the report of the investigating officer. [54]
The rulings of this Court are now embedded in Section 8(a), Rule 112
of the Revised Rules on Criminal Procedure which provides that an
Information or complaint filed in court shall be supported by the
affidavits and counter-affidavits of the parties and their witnesses,
together with the other supporting evidence of the resolution:
SEC. 8. Records. (a) Records supporting the information or
complaint. An information or complaint filed in court shall be
supported by the affidavits and counter-affidavits of the parties and
their witnesses, together with the other supporting evidence and the
resolution on the case.
If the judge is able to determine the existence or non-existence of
probable cause on the basis of the records submitted by the
investigating prosecutor, there would no longer be a need to order
the elevation of the rest of the records of the case. However, if the
judge finds the records and/or evidence submitted by the
investigating prosecutor to be insufficient, he may order the
dismissal of the case, or direct the investigating prosecutor either to
18
submit more evidence or to submit the entire records of the
preliminary investigation, to enable him to discharge his duty. [55] The
judge may even call the complainant and his witness to themselves
answer the courts probing questions to determine the existence of
probable cause.[56] The rulings of this Court in Soliven v.
Makasiar[57] and Lim v. Felix[58] are now embodied in Section 6, Rule
112 of the Revised Rules on Criminal Procedure, with
modifications, viz:
SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial
Court. Within ten (10) days from the filing of the complaint or
information, the judge shall personally evaluate the resolution of the
prosecutor and its supporting evidence. He may immediately dismiss
the case if the evidence on record clearly fails to establish probable
cause. If he finds probable cause, he shall issue a warrant of arrest,
or a commitment order if the accused has already been arrested
pursuant to a warrant issued by the judge who conducted the
preliminary investigation or when the complaint or information was
filed pursuant to section 7 of this Rule. In case of doubt on the
existence of probable cause, the judge may order the prosecutor to
present additional evidence within five (5) days from notice and the
issue must be resolved by the court within thirty (30) days from the
filing of the complaint of information.
In this case, the investigating prosecutor submitted to the
respondent judge only his resolution after his preliminary
investigation of the case and the affidavit-complaint of the private
complainant, and failed to include the affidavits of the witnesses of
the private complainant, and the latters reply affidavit, the counter-
affidavit of the petitioner, as well as the evidence adduced by the
private complainant as required by case law, and now by Section
8(a), Rule 112 of the Revised Rules on Criminal Procedure. The
aforecited affidavits, more specifically the fax message of Lorna
Tanghal and the document signed by her covering the amount of
US$1,000, are of vital importance, as they would enable the
respondent judge to properly determine the existence or non-
existence of probable cause.
First. When respondent Maruyama handed the money to the
petitioner, she did not require the latter to sign a document
acknowledging receipt of the amount. The petitioner avers that it is
incredible that Maruyama would entrust P3,993,500 in Japanese Yen
to her without even requiring her to sign a receipt therefor,
especially since respondent Maruyama was not even the owner of
the money;
Second. The affidavit of Hermogena Santiago, a witness of the
respondent, is unreliable, because it is based on information relayed
to her by Lorna Tanghal that she (Tanghal) saw the petitioner
carrying a Louis Vuitton bag while on board a Mitsubishi L300 van
with the petitioner. It appears that Tanghal failed to submit any
counter-affidavit to the investigating prosecutor;
Third. The affidavit of Marilette G. Izumiya, another witness of the
respondent, is also unreliable, as it was based on information relayed
to her by Thelma Barbiran, who used to work for the petitioner as a
housemaid, that she (Barbiran) had in her possession a fax message
from Lorna Tanghal, implicating the petitioner in the crime
charged. Barbiran did not execute any affidavit;
Fourth. There is no indication in the resolution of the investigating
prosecutor that the petitioner received the fax message of Lorna
Tanghal;
Fifth. The private complainant claims that the petitioner tried to
reimburse the P3,993,500 by remitting US$1,000 to her. However,
the latter admitted in her affidavit-complaint that the document
evidencing the remittance was signed by Lorna Tanghal, not by the
petitioner. The petitioner claimed that Lorna Tanghal had to remit
US$1,000 to respondent Maruyama because the latter made it
appear to Tanghal that the police authorities were about to arrest
the petitioner, and Tanghal was impelled to give the amount to
respondent Maruyama to avert her arrest and incarceration;
Sixth. In her counter-affidavit, the petitioner alleged that respondent
Maruyama had no case against her because the crime charged in the
latters affidavit-complaint was the same as that filed against her in
the Metropolitan Trial Court of Bulacan, which was withdrawn by the
complainant herself;
Seventh. The investigating prosecutor stated in his resolution that
the private complainant established the element of deceit. However,
the crime charged against the petitioner as alleged in the
Information is estafa with abuse of confidence.
In sum, then, we find and so declare that the respondent judge
committed a grave abuse of his discretion amounting to excess or
lack of jurisdiction in finding probable cause for the petitioners arrest
in the absence of copies of the affidavits of the witnesses of the
private complainant and her reply affidavit, the counter-affidavit of
the petitioner, and the evidence adduced during the preliminary
investigation before the investigating prosecutor.
In view of the foregoing disquisitions, there is no more need to
resolve the other issues raised by the petitioner.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
assailed decision of the Court of Appeals is REVERSED and SET
ASIDE. The assailed Orders dated August 25 and 28, 2000 and the
Warrant of Arrest issued by the respondent judge in Criminal Case
No. 00-0749 are SET ASIDE. The records are REMANDED to the
Regional Trial Court of Pasay City, Branch 119. The respondent judge
is hereby DIRECTED to determine the existence or non-existence of
probable cause for the arrest of the petitioner based on the
complete records, as required under Section 8(a), Rule 112 of the
Revised Rules on Criminal Procedure.
SO ORDERED.
Quisumbing, (Acting Chairman), Austria-Martinez, and Tinga,
JJ., concur.
Puno, (Chairman), J., on official leave.
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
19
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 assuring the accusedspresence at trial.
[3]
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 guiltybeyond 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
theaccuseds 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
well-established 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?
Section 5, Rule 114 of the Rules of Court provides:
Sec. 5. Bail, when discretionary. Upon conviction 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 non-bailable to bailable, the
application for bail can only be filed with and resolved by the
appellate court.
20
Should the court grant the application, the accused may be allowed
to continue on provisional liberty during the pendency of the appeal
under the same bail subject to the consent of thebondsman.
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
(e) That there is undue risk that he may commit another crime
during the pendency of the appeal.
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, reclusion perpetua, 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 judgment but 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 v. People[22] 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
21
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 bail-negating [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
22
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 thatupon conviction by the Regional
Trial Court of an offense not punishable by
death, reclusion perpetua, 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]specially since
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.
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.
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:
Sec. 3. Offenses less than capital before conviction by the Court of
First Instance. After judgment by a municipal judge and before
conviction by the Court of First Instance, the defendant shall be
admitted to bail as of right.
23

Sec. 4. Non-capital offenses after conviction by the Court of First
Instance. After conviction by the Court of First Instance, defendant
may, upon application, be bailed at the discretion of the court.
Sec. 5. Capital 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:
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 theeffectivity 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
thanreclusion 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 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;
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 reclusionperpetua 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.
(emphasis supplied)
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)
SECTION 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.
24

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, quasi-recidivist, or habitual
delinquent, or has committed the crime aggravated by the
circumstance of reiteration;
(b) That the accused is found to have previously escaped from legal
confinement, evaded sentence or has violated the conditions of his
bail without valid justification;
(c) That the accused committed the offense while on probation,
parole, 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)
SECTION 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
byreclusion perpetua or life imprisonment, when evidence of guilt is
strong, shall be admitted to bail regardless of the stage of the
criminal prosecution. (emphasis supplied)
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]
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 post-conviction
grant of bail.
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. 12-94. 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
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 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 emanated.[41] 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]
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
25
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
Section 13, Article II of the Constitution provides:
SEC. 13. 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. 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 a stringent-standards 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 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 CA-
G.R. CR No. 32159, with dispatch.
Costs against petitioner. SO ORDERED.
RENATO C. CORONA
Associate Justice
G.R. No. 213847 August 18, 2015
JUAN PONCE ENRILE, Petitioner,
vs.
SANDIGANBAYAN (THIRD DIVISION), AND PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
BERSAMIN, J.:
The decision whether to detain or release an accused before and
during trial is ultimately an incident of the judicial power to hear and
determine his criminal case. The strength of the Prosecution's case,
albeit a good measure of the accused’s propensity for flight or for
causing harm to the public, is subsidiary to the primary objective of
bail, which is to ensure that the accused appears at trial. 1
The Case
Before the Court is the petition for certiorari filed by Senator Juan
Ponce Enrile to assail and annul the resolutions dated July 14,
20142 and August 8, 20143 issued by the Sandiganbayan (Third
Division) in Case No. SB-14-CRM-0238, where he has been charged
with plunder along with several others. Enrile insists that the
resolutions, which respectively denied his Motion To Fix Bail and his
Motion For Reconsideration, were issued with grave abuse of
discretion amounting to lack or excess of jurisdiction.
Antecedents
On June 5, 2014, the Office of the Ombudsman charged Enrile and
several others with plunder in the Sandiganbayan on the basis of
their purported involvement in the diversion and misuse of
appropriations under the Priority Development Assistance Fund
(PDAF).4 On June 10, 2014 and June 16, 2014, Enrile respectively filed
his Omnibus Motion5 and Supplemental Opposition,6 praying, among
others, that he be allowed to post bail should probable cause be
found against him. The motions were heard by the Sandiganbayan
after the Prosecution filed its Consolidated Opposition. 7
On July 3, 2014, the Sandiganbaya n issued its resolution denying
Enrile’s motion, particularly on the matter of bail, on the ground of
its prematurity considering that Enrile had not yet then voluntarily
surrendered or been placed under the custody of the
law.8 Accordingly, the Sandiganbayan ordered the arrest of Enrile. 9
On the same day that the warrant for his arrest was issued, Enrile
voluntarily surrendered to Director Benjamin Magalong of the
Criminal Investigation and Detection Group (CIDG) in Camp Crame,
Quezon City, and was later on confined at the Philippine National
Police (PNP) General Hospital following his medical examination. 10
Thereafter, Enrile filed his Motion for Detention at the PNP General
Hospital ,11 and his Motion to Fix Bail ,12 both dated July 7, 2014,
which were heard by the Sandiganbayan on July 8, 2014.13 In support
of the motions, Enrile argued that he should be allowed to post bail
because: (a) the Prosecution had not yet established that the
evidence of his guilt was strong; (b) although he was charged with
plunder, the penalty as to him would only be reclusion temporal , not
reclusion perpetua ; and (c) he was not a flight risk, and his age and
physical condition must further be seriously considered.
On July 14, 2014, the Sandiganbayan issued its first assailed
resolution denying Enrile’s Motion to Fix Bail, disposing thusly:
x x x [I]t is only after the prosecution shall have presented its
evidence and the Court shall have made a determination that the
evidence of guilt is not strong against accused Enrile can he demand
bail as a matter of right. Then and only then will the Court be duty-
bound to fix the amount of his bail.
To be sure, no such determination has been made by the Court. In
fact, accused Enrile has not filed an application for bail. Necessarily,
no bail hearing can even commence. It is thus exceedingly premature
for accused Enrile to ask the Court to fix his bail.
26
Accused Enrile next argues that the Court should grant him bail
because while he is charged with plunder, "the maximum penalty
that may be possibly imposed on him is reclusion temporal, not
reclusion perpetua." He anchors this claim on Section 2 of R.A. No.
7080, as amended, and on the allegation that he is over seventy (70)
years old and that he voluntarily surrendered. "Accordingly, it may
be said that the crime charged against Enrile is not punishable by
reclusion perpetua, and thus bailable."
The argument has no merit.
x x x [F]or purposes of bail, the presence of mitigating
circumstance/s is not taken into consideration. These circumstances
will only be appreciated in the imposition of the proper penalty after
trial should the accused be found guilty of the offense charged. x x x
Lastly, accused Enrile asserts that the Court should already fix his bail
because he is not a flight risk and his physical condition must also be
seriously considered by the Court.
Admittedly, the accused’s age, physical condition and his being a
flight risk are among the factors that are considered in fixing a
reasonable amount of bail. However, as explained above, it is
premature for the Court to fix the amount of bail without an anterior
showing that the evidence of guilt against accused Enrile is not
strong.
WHEREFORE, premises considered, accused Juan Ponce Enrile’s
Motion to Fix Bail dated July 7, 2014 is DENIED for lack of merit.
SO ORDERED.14
On August 8, 2014, the Sandiganbayan issued it s second assailed
resolution to deny Enrile’s motion for reconsideration filed vis-à-vis
the July 14, 2014 resolution. 15
Enrile raises the following grounds in support of his petition for
certiorari , namely:
A. Before judgment of the Sandiganbayan, Enrile is bailable as a
matter of right. Enrile may be deemed to fall within the exception
only upon concurrence of two (2) circumstances: (i) where the
offense is punishable by reclusion perpetua, and (ii) when evidence
of guilt is strong.
B. The prosecution failed to show clearly and conclusively that
Enrile, if ever he would be convicted, is punishable by reclusion
perpetua; hence, Enrile is entitled to bail as a matter of right.
C. The prosecution failed to show clearly and conclusively that
evidence of Enrile’s guilt (if ever) is strong; hence, Enrile is entitled
to bail as a matter of right.
D. At any rate, Enrile may be bailable as he is not a flight risk.16
Enrile claims that before judgment of conviction, an accused is
entitled to bail as matter of right; th at it is the duty and burden of
the Prosecution to show clearly and conclusively that Enrile comes
under the exception and cannot be excluded from enjoying the right
to bail; that the Prosecution has failed to establish that Enrile, if
convicted of plunder, is punishable by reclusion perpetua considering
the presence of two mitigating circumstances – his age and his
voluntary surrender; that the Prosecution has not come forward with
proof showing that his guilt for the crime of plunder is strong; and
that he should not be considered a flight risk taking into account that
he is already over the age of 90, his medical condition, and his social
standing.
In its Comment ,17 the Ombudsman contends that Enrile’s right to
bail is discretionary as he is charged with a capital offense; that to be
granted bail, it is mandatory that a bail hearing be conducted to
determine whether there is strong evidence of his guilt, or the lack
of it; and that entitlement to bail considers the imposable penalty,
regardless of the attendant circumstances.
Ruling of the Court
The petition for certiorari is meritorious.
1.
Bail protects the right of the accused to
due process and to be presumed innocent
In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved.18 The presumption of innocence is
rooted in the guarantee of due process, and is safeguarded by the
constitutional right to be released on bail,19 and further binds the
court to wait until after trial to impose any punishment on the
accused.20
It is worthy to note that bail is not granted to prevent the accused
from committing additional crimes.[[21] The purpose of bail is to
guarantee the appearance of the accused at the trial, or whenever
so required by the trial court. The amount of bail should be high
enough to assure the presence of the accused when so required, but
it should be no higher than is reasonably calculated to fulfill this
purpose.22 Thus, bail acts as a reconciling mechanism to
accommodate both the accused’s interest in his provisional liberty
before or during the trial, and the society’s interest in assuring the
accused’s presence at trial.23
2.
Bail may be granted as a
matter of right or of discretion
The right to bail is expressly afforded by Section 13, Article III (Bill of
Rights) of the Constitution, viz.:
x x x 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.
This constitutional provision is repeated in Section 7, Rule 114 24 of
the Rules of Court , as follows:
Section 7. Capital offense or an offense punishable by reclusion
perpetua or life imprisonment, not bailable. — No person charged
with a capital offense, or an offense punishable by reclusion
perpetua or life imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the stage of the criminal
prosecution.
A capital offense in the context of the rule refers to an offense that,
under the law existing at the time of its commission and the
application for admission to bail, may be punished with death. 25
The general rule is, therefore, that any person, before being
convicted of any criminal offense, shall be bailable, unless he is
charged with a capital offense, or with an offense punishable with
reclusion perpetua or life imprisonment, and the evidence of his
guilt is strong. Hence, from the moment he is placed under arrest, or
is detained or restrained by the officers of the law, he can claim the
guarantee of his provisional liberty under the Bill of Rights, and he
retains his right to bail unless he is charged with a capital offense, or
with an offense punishable with reclusion perpetua or life
imprisonment, and the evidence of his guilt is strong. 26 Once it has
been established that the evidence of guilt is strong, no right to bail
shall be recognized.27
As a result, all criminal cases within the competence of the
Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court
27
in Cities, or Municipal Circuit Trial Court are bailable as matter of
right because these courts have no jurisdiction to try capital
offenses, or offenses punishable with reclusion perpetua or life
imprisonment. Likewise, bail is a matter of right prior to conviction
by the Regional Trial Court (RTC) for any offense not punishable by
death, reclusion perpetua , or life imprisonment, or even prior to
conviction for an offense punishable by death, reclusion perpetua ,
or life imprisonment when evidence of guilt is not strong. 28
On the other hand, the granting of bail is discretionary: (1) upon
conviction by the RTC of an offense not punishable by death,
reclusion perpetua or life imprisonment; 29 or (2) if the RTC has
imposed a penalty of imprisonment exceeding six years, provided
none of the circumstances enumerated under paragraph 3 of Section
5, Rule 114 is present, as follows:
(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 valid
justification;
(c) That he committed the offense while under probation, parole, or
conditional pardon;
(d) That the circumstances of hi s case indicate the probability of
flight if released on bail; or
(e) That there is undue risk that he may commit another crime
during the pendency of the appeal.
3.
Admission to bail in offenses punished
by death, or life imprisonment, or reclusion
perpetua is subject to judicial discretion
For purposes of admission to bail, the determination of whether or
not evidence of guilt is strong in criminal cases involving capital
offenses, or offenses punishable with reclusion perpetua or life
imprisonment lies within the discretion of the trial court. But, as the
Court has held in Concerned Citizens v. Elma ,30 "such discretion may
be exercised only after the hearing called to ascertain the degree of
guilt of the accused for the purpose of whether or not he should be
granted provisional liberty." It is axiomatic, therefore, that bail
cannot be allowed when its grant is a matter of discretion on the
part of the trial court unless there has been a hearing with notice to
the Prosecution. 31 The indispensability of the hearing with notice has
been aptly explained in Aguirre v. Belmonte, viz. :32
x x x Even before its pronouncement in the Lim case, this Court
already ruled in People vs. Dacudao, etc., et al. that a hearing is
mandatory before bail can be granted to an accused who is charged
with a capital offense, in this wise:
The respondent court acted irregularly in granting bail in a murder
case without any hearing on the motion asking for it, without
bothering to ask the prosecution for its conformity or comment, as it
turned out later, over its strong objections. The court granted bail on
the sole basis of the complaint and the affidavits of three policemen,
not one of whom apparently witnessed the killing. Whatever the
court possessed at the time it issued the questioned ruling was
intended only for prima facie determining whether or not there is
sufficient ground to engender a well-founded belief that the crime
was committed and pinpointing the persons who probably
committed it. Whether or not the evidence of guilt is strong for each
individual accused still has to be established unless the prosecution
submits the issue on whatever it has already presented. To
appreciate the strength or weakness of the evidence of guilt, the
prosecution must be consulted or heard. It is equally entitled as the
accused to due process.
Certain guidelines in the fixing of a bailbond call for the presentation
of evidence and reasonable opportunity for the prosecution to
refute it. Among them are the nature and circumstances of the
crime, character and reputation of the accused, the weight of the
evidence against him, the probability of the accused appearing at the
trial, whether or not the accused is a fugitive from justice, and
whether or not the accused is under bond in other cases. (Section 6,
Rule 114, Rules of Court) It is highly doubtful if the trial court can
appreciate these guidelines in an ex-parte determination where the
Fiscal is neither present nor heard.
The hearing, which may be either summary or otherwise, in the
discretion of the court, should primarily determine whether or not
the evidence of guilt against the accused is strong. For this purpose,
a summary hearing means:
x x x such brief and speedy method of receiving and considering the
evidence of guilt as is practicable and consistent with the purpose of
hearing which is merely to determine the weight of evidence for
purposes of bail. On such hearing, the court does not sit to try the
merits or to enter into any nice inquiry as to the weight that ought to
be allowed to the evidence for or against the accused, nor will it
speculate on the outcome of the trial or on what further evidence
may be therein offered or admitted. The course of inquiry may be
left to the discretion of the court which may confine itself to
receiving such evidence as has reference to substantial matters,
avoiding unnecessary thoroughness in the examination and cross
examination.33
In resolving bail applications of the accused who is charged with a
capital offense, or an offense punishable by reclusion perpetua or life
imprisonment, the trial judge is expected to comply with the
guidelines outlined in Cortes v. Catral,34 to wit:
1. In all cases, whether bail is a matter of right or of discretion, notify
the prosecutor of the hearing of the application for bail or require
him to submit his recommendation (Section 18, Rule 114 of the
Rules of Court, as amended);
2. 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; (Section 7 and 8, supra)
3. Decide whether the guilt of the accused is strong based on the
summary of evidence of the prosecution;
4. If the guilt of the accused is no t strong, discharge the accused
upon the approval of the bailbond (Section 19, supra) Otherwise
petition should be denied.
3.
Enrile’s poor health justifies his admission to bail
We first note that Enrile has averred in his Motion to Fix Bail the
presence of two mitigating circumstances that should be appreciated
in his favor, namely: that he was already over 70 years at the time of
the alleged commission of the offense, and that he voluntarily
surrendered.35
Enrile’s averment has been mainly uncontested by the Prosecution,
whose Opposition to the Motion to Fix Bail has only argued that –
8. As regards the assertion that the maximum possible penalty that
might be imposed upon Enrile is only reclusion temporal due to the
presence of two mitigating circumstances, suffice it to state that the
28
presence or absence of mitigating circumstances is also not
consideration that the Constitution deemed worthy. The relevant
clause in Section 13 is "charged with an offense punishable by." It is,
therefore, the maximum penalty provided by the offense that has
bearing and not the possibility of mitigating circumstances being
appreciated in the accused’s favor. 36
Yet, we do not determine now the question of whether or not
Enrile’s averment on the presence of the two mitigating
circumstances could entitle him to bail despite the crime alleged
against him being punishable with reclusion perpetua ,37 simply
because the determination, being primarily factual in context, is
ideally to be made by the trial court.
Nonetheless, in now granting Enrile’s petition for certiorari, the
Court is guided by the earlier mentioned principal purpose of bail,
which is to guarantee the appearance of the accused at the trial, or
whenever so required by the court. The Court is further mindful of
the Philippines’ responsibility in the international community arising
from the national commitment under the Universal Declaration of
Human Rights to:
x x x uphold the fundamental human rights as well as value the
worth and dignity of every person. This commitment is enshrined in
Section II, Article II of our Constitution which provides: "The State
values the dignity of every human person and guarantees full respect
for human rights." The Philippines, therefore, has the responsibility
of protecting and promoting the right of every person to liberty and
due process, ensuring that those detained or arrested can participate
in the proceedings before a court, to enable it to decide without
delay on the legality of the detention and order their release if
justified. In other words, the Philippine authorities are under
obligation to make available to every person under detention such
remedies which safeguard their fundamental right to liberty. These
remedies include the right to be admitted to bail. 38
This national commitment to uphold the fundamental human rights
as well as value the worth and dignity of every person has authorized
the grant of bail not only to those charged in criminal proceedings
but also to extraditees upon a clear and convincing showing: (1 ) that
the detainee will not be a flight risk or a danger to the community;
and (2 ) that there exist special, humanitarian and compelling
circumstances. 39
In our view, his social and political standing and his having
immediately surrendered to the authorities upon his being charged
in court indicate that the risk of his flight or escape from this
jurisdiction is highly unlikely. His personal disposition from the onset
of his indictment for plunder, formal or otherwise, has demonstrated
his utter respect for the legal processes of this country. We also do
not ignore that at an earlier time many years ago when he had been
charged with rebellion with murder and multiple frustrated murder,
he already evinced a similar personal disposition of respect for the
legal processes, and was granted bail during the pendency of his trial
because he was not seen as a flight risk.40 With his solid reputation in
both his public and his private lives, his long years of public service,
and history’s judgment of him being at stake, he should be granted
bail.
The currently fragile state of Enrile’s health presents another
compelling justification for his admission to bail, but which the
Sandiganbayan did not recognize.
In his testimony in the Sandiganbayan,41 Dr. Jose C. Gonzales, the
Director of the Philippine General Hospital (PGH), classified Enrile as
a geriatric patient who was found during the medical examinations
conducted at the UP-PGH to be suffering from the following
conditions:
(1) Chronic Hypertension with fluctuating blood pressure levels on
multiple drug therapy; (Annexes 1.1, 1.2, 1.3);
(2) Diffuse atherosclerotic cardiovascular disease composed of the
following :
a. Previous history of cerebrovascular disease with carotid and
vertebral artery disease ; (Annexes 1.4, 4.1)
b. Heavy coronary artery calcifications; (Annex 1.5)
c. Ankle Brachial Index suggestive of arterial calcifications. (Annex
1.6)
(3) Atrial and Ventricular Arrhythmia (irregular heart beat)
documented by Holter monitoring ; (Annexes 1.7.1, 1.7.2)
(4) Asthma-COPD Overlap Syndrom (ACOS) and postnasal drip
syndrome; (Annexes 2.1, 2.2)
(5) Ophthalmology:
a. Age-related mascular degeneration, neovascular s/p laser of the
Retina, s/p Lucentis intra-ocular injections; (Annexes 3.0, 3.1, 3.2)
b. S/p Cataract surgery with posterior chamber intraocular lens.
(Annexes 3.1, 3.2)
(6) Historical diagnoses of the following:
a. High blood sugar/diabetes on medications;
b. High cholesterol levels/dyslipidemia;
c. Alpha thalassemia;
d. Gait/balance disorder;
e. Upper gastrointestinal bleeding (etiology uncertain) in 2014;
f. Benign prostatic hypertrophy (with documented enlarged prostate
on recent ultrasound).42
Dr. Gonzales attested that the following medical conditions, singly or
collectively, could pose significant risk s to the life of Enrile, to wit:
(1) uncontrolled hypertension, because it could lead to brain or heart
complications, including recurrence of stroke; (2) arrhythmia,
because it could lead to fatal or non-fatal cardiovascular events,
especially under stressful conditions; (3) coronary calcifications
associated with coronary artery disease, because they could indicate
a future risk for heart attack under stressful conditions; and (4)
exacerbations of ACOS, because they could be triggered by certain
circumstances (like excessive heat, humidity, dust or allergen
exposure) which could cause a deterioration in patients with asthma
or COPD.43
Based on foregoing, there is no question at all that Enrile’s advanced
age and ill health required special medical attention. His
confinement at the PNP General Hospital, albeit at his own
instance,44 was not even recommended by the officer-in-charge (O
IC) and the internist doctor of that medical facility because of the
limitations in the medical support at that hospital. Their testimonies
ran as follows:
JUSTICE MARTIRES:
The question is, do you feel comfortable with the continued
confinement of Senator Enrile at the Philippine National Police
Hospital?
DR. SERVILLANO:
No, Your Honor.
JUSTICE MARTIRES:
Director, doctor, do you feel comfortable with the continued
confinement of Senator Enrile at the PNP Hospital ?
PSUPT. JOCSON:
No, Your Honor.
JUSTICE MARTIRES:
29
Why?
PSUPT. JOCSON:
Because during emergency cases, Your Honor, we cannot give him
the best.
JUSTICE MARTIRES:
At present, since you are the attending physician of the accused,
Senator Enrile, are you happy or have any fear in your heart of the
present condition of the accused vis a vis the facilities of the
hospital?
DR. SERVILLANO:
Yes, Your Honor. I have a fear.
JUSTICE MARTIRES:
That you will not be able to address in an emergency situation?
DR. SERVILLANO:
Your Honor, in case of emergency situation we can handle it but
probably if the condition of the patient worsen, we have no facilities
to do those things, Your Honor.45
Bail for the provisional liberty of the accused, regardless of the crime
charged, should be allowed independently of the merits of the
charge, provided his continued incarceration is clearly shown to be
injurious to his health or to endanger his life. Indeed, denying him
bail despite imperiling his health and life would not serve the true
objective of preventive incarceration during the trial.
Granting bail to Enrile on the foregoing reasons is not
unprecedented. The Court has already held in Dela Rama v. The
People’s Court:46
x x x This court, in disposing of the first petition for certiorari, held
the following:
x x x [ U]nless allowance of bail is forbidden by law in the particular
case, the illness of the prisoner,
independently of the merits of the case, is a circumstance, and the
humanity of the law makes it a consideration which should,
regardless of the charge and the stage of the proceeding, influence
the court to exercise its discretion to admit the prisoner to bail ; 47
xxx
Considering the report of the Medical Director of the Quezon
Institute to the effect that the petitioner "is actually suffering from
minimal, early, unstable type of pulmonary tuberculosis, and chronic,
granular pharyngitis," and that in said institute they "have seen
similar cases, later progressing into advance stages when the
treatment and medicine are no longer of any avail;" taking into
consideration that the petitioner’s previous petition for bail was
denied by the People’s Court on the ground that the petitioner was
suffering from quiescent and not active tuberculosis, and the implied
purpose of the People’s Court in sending the petitioner to the
Quezon Institute for clinical examination and diagnosis of the actual
condition of his lungs, was evidently to verify whether the petitioner
is suffering from active tuberculosis, in order to act accordingly in
deciding his petition for bail; and considering further that the said
People’s Court has adopted and applied the well-established
doctrine cited in our above-quoted resolution, in several cases,
among them, the cases against Pio Duran (case No. 3324) and
Benigno Aquino (case No. 3527), in which the said defendants were
released on bail on the ground that they were ill and their continued
confinement in New Bilibid Prison would be injurious to their health
or endanger their life; it is evident and we consequently hold that
the People’s Court acted with grave abuse of discretion in refusing to
re lease the petitioner on bail.48
It is relevant to observe that granting provisional liberty to Enrile will
then enable him to have his medical condition be properly addressed
and better attended to by competent physicians in the hospitals of
his choice. This will not only aid in his adequate preparation of his
defense but, more importantly , will guarantee his appearance in
court for the trial.
On the other hand, to mark time in order to wait for the trial to
finish before a meaningful consideration of the application for bail
can be had is to defeat the objective of bail, which is to entitle the
accused to provisional liberty pending the trial. There may be
circumstances decisive of the issue of bail – whose existence is either
admitted by the Prosecution, or is properly the subject of judicial
notice – that the courts can already consider in resolving the
application for bail without awaiting the trial to finish. 49 The Court
thus balances the scales of justice by protecting the interest of the
People through ensuring his personal appearance at the trial, and at
the same time realizing for him the guarantees of due process as
well as to be presumed innocent until proven guilty.
Accordingly, we conclude that the Sandiganbayan arbitrarily ignored
the objective of bail to ensure the appearance of the accused during
the trial; and unwarrantedly disregarded the clear showing of the
fragile health and advanced age of Enrile. As such, the
Sandiganbayan gravely abused its discretion in denying Enrile’s
Motion To Fix Bail. Grave abuse of discretion, as the ground for the
issuance of the writ of certiorari , connotes whimsical and capricious
exercise of judgment as is equivalent to excess, or lack of
jurisdiction.50 The abuse must be so patent and gross as to amount
to an evasion of a positive duty or to a virtual refusal to perform a
duty enjoined by law, or to act at all in contemplation of law as
where the power is exercised in an arbitrary and despotic manner by
reason of passion or hostility.51 WHEREFORE, the Court GRANTS the
petition for certiorari ; ISSUES the writ of certiorari ANNULING and
SETTING ASIDE the Resolutions issued by the Sandiganbayan (Third
Division) in Case No. SB-14 CRM-0238 on July 14, 2014 and August 8,
2014; ORDERS the PROVISIONAL RELEASE of petitioner Juan Ponce
Enrile in Case No. SB-14-CRM-0238 upon posting of a cash bond
of P1,000,000.00 in the Sandiganbayan; and DIRECTS the immediate
release of petitioner Juan Ponce Enrile from custody unless he is
being detained for some other lawful cause.
No pronouncement on costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
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