Crimprosec

EN BANC
[G.R. Nos. 72335-39. March 21, 1988.]
FRANCISCO S. TATAD, petitioner, vs. THE SANDIGANBAYAN, and

THE TANODBAYAN, respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; DELAY

OF THREE YEARS IN THE TERMINATION OF PRELIMINARY
INVESTIGATION, A VIOLATION THEREOF. — We find the long delay in the
termination of the preliminary investigation by the Tanodbayan in the instant
case to be violative of the constitutional right of the accused to due process.
Substantial adherence to the requirements of the law governing the conduct of
preliminary investigation, including substantial compliance with the time
limitation prescribed by the law for the resolution of the case by the prosecutor,
is part of the procedural due process constitutionally guaranteed by the
fundamental law. Not only under the broad umbrella of the due process clause,
but under the constitutionally guarantee of "speedy disposition" of cases as
embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987
Constitutions), the inordinate delay is violative of the petitioner's constitutional
rights.
2. REMEDIAL LAW; CRIMINAL PROCEDURE; LONG DELAY IN
FILING OF INFORMATIONS AGAINST ACCUSED WARRANTS DISMISSAL
OF CASES. — We are constrained to hold that the inordinate delay in
terminating the preliminary investigation and filing the information in the instant
case is violative of the constitutionally guaranteed right of the petitioner to due
process and to a speedy disposition of the cases against him. Accordingly, the
informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503
should be dismissed.
DECISION
YAP, J :
p
In this petition for certiorari and prohibition, with preliminary injunction,

dated October 16, 1985, petitioner seeks to annul and set aside the resolution
of the Tanodbayan of April 7, 1985, and the resolutions of the Sandiganbayan,
dated August 9, 1985, August 12, 1985 and September 17, 1985, and to enjoin
the Tanodbayan and the Sandiganbayan from continuing with trial or any other
proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503,
all entitled "People of the Philippines versus Francisco S. Tatad."
The petition alleges, among other things, that sometime in October 1974,
Antonio de los Reyes, former Head Executive Assistant of the then Department
of Public Information (DPI) and Assistant Officer-in-Charge of the Bureau of
Broadcasts, filed a formal report with the Legal Panel, Presidential Security
Command (PSC), charging petitioner, who was then Secretary and Head of the
Department of Public Information, with alleged violations of Republic Act No.
3019, otherwise known asthe Anti-Graft and Corrupt Practices Act. Apparently,
no action was taken on said report.
Then, in October 1979, or five years later, it became publicly known that
petitioner had submitted his resignation as Minister of Public Information, and
two months after, or on December 12, 1979, Antonio de los Reyes filed a
complaint with the Tanodbayan (TBP Case No. 8005-16-07) against the
petitioner, accusing him of graft and corrupt practices in the conduct of his office
as then Secretary of Public Information. The complaint repeated the charges
embodied in the previous report filed by complainant before the Legal Panel,
Presidential Security Command (PSC).
On January 26, 1980, the resignation of petitioner was accepted by
President Ferdinand E. Marcos. On April 1, 1980, the Tanodbayan referred the
complaint of Antonio de los Reyes to the Criminal Investigation Service (CIS)
for fact-finding investigation. On June 16, 1980, Roberto P. Dizon, CIS
Investigator of the Investigation and Legal Panel, PSC, submitted his
Investigation Report, with the following conclusion, ". . . evidence gathered
indicates that former Min. TATAD had violated Sec. 3 (e) and Sec. 7 of RA
3019, respectively. On the other hand, Mr. ANTONIO L. CANTERO is also
liable under Sec. 5 of RA 3019," and recommended appropriate legal action on
the matter.
Petitioner moved to dismiss the complaint against him, claiming immunity
from prosecution by virtue of PD 1791, but the motion was denied on July 26,
1982 and his motion for reconsideration was also denied on October 5, 1982.
On October 25, 1982, all affidavits and counter-affidavits were with the
Tanodbayan for final disposition. On July 5, 1985, the Tanodbayan approved a
resolution, dated April 1, 1985, prepared by Special Prosecutor Marina Buzon,
recommending that the following informations be filed against petitioner before
the Sandiganbayan, to wit: LLphil
"1. Violation of Section 3, paragraph (e) of R.A. 3019 for giving D' Group,
a private corporation controlled by his brother-in-law, unwarranted
benefits, advantage or preference in the discharge of his official functions
through manifest partiality and evident bad faith;
"2. Violation of Section 3, paragraph (b) of R.A. 3019 for receiving a check
of P125,000.00 from Roberto Vallar, President/General Manager of Amity
Trading Corporation as consideration for the release of a check of
P588,000.00 to said corporation for printing services rendered for the
Constitutional Convention Referendum in 1973;
"3. Violation of Section 7 of R.A. 3019 on three (3) counts for his failure to
file his Statement of Assets and Liabilities for the calendar years 1973,
1976 and 1978."
Accordingly, on June 12, 1985, the following informations were filed with
the Sandiganbayan against the petitioner:
Re: Criminal Case No. 10499
"The undersigned Tanodbayan Special Prosecutor accuses Francisco
S. Tatad with Violation of Section 3, paragraph (b) of Republic Act No.
3019, otherwise known as the Anti-Graft and Corrupt Practices Act,
committed as follows:
That on or about the 16th day of July, 1973 in the City of Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, being then the Secretary of the Department (now
Ministry) of Public Information, did then and there, wilfully and unlawfully
demand and receive a check for P125,000.00 from Roberto Vallar,
President/General Manager of Amity Trading Corporation as
consideration for the payment to said Corporation of the sum of
P588,000.00, for printing services rendered for the Constitutional
Convention Referendum of January, 1973, wherein the accused in his
official capacity had to intervene under the law in the release of the funds
for said project.
That the complaint against the above-named accused was filed with the
Office of the Tanodbayan on May 16, 1980.
CONTRARY TO LAW."
"The undersigned Tanodbayan Special Prosecutor accused FRANCISCO
S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, committed as follows:
That on or about the 31st day of January, 1974 in the City of Manila,
named accused, a public officer being then the Secretary of the
Department (now Ministry) of Public Information, did then and there
wilfully and unlawfully fail to prepare and file with the Office of the
President, a true detailed and sworn statement of his assets and liabilities,
as of December 31, 1973, including a statement of the amounts and
sources of his income, the amounts of his personal and family expenses
and the amount of income taxes paid for the next preceding calendar year
(1973), as required of every public officer.
Office of the Tanodbayan on June 20, 1980.
CONTRARY TO LAW."
"The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO
S. TATAD with Violation of Section 3, paragraph (e) of Republic Act No.
3019, otherwise known asthe Anti-Graft and Corrupt Practices Act,
committed as follows:
That on the about the month of May, 1975 and for sometime prior thereto,
in the City of Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, a public officer being then
the Secretary of the Department (now Ministry) of Public Information, did
then and there, wilfully and unlawfully give Marketing Communication
Group, Inc. (D' Group), a private corporation of which his brother-in-law,
Antonio L. Cantero, is the President, unwarranted benefits, advantage or
preference in the discharge of his official functions, through manifest
partiality and evident bad faith, by allowing the transfer of D' GROUP of
the funds, assets and ownership of South East Asia Research Corporation
(SEARCH), allegedly a private corporation registered with the Securities
and Exchange Corporation on June 4, 1973, but whose organization and
operating expenses came from the confidential funds of the Department
of Public Information as it was organized to undertake research, projects
for the government, without requiring an accounting of the funds advanced
by the Department of Public Information and reimbursement thereof by D'
GROUP, to the damage and prejudice of the government.
office of the Tanodbayan on May 16, 1980.
CONTRARY TO LAW."
That on or about the 31st day of January, 1977 in the City of Manila,
President, a true and sworn statement of his assets and liabilities, as of
December 31, 1976, including a statement of the amounts of his personal
and family expenses and the amount of income taxes paid for the next
preceding calendar year (1976), as required of every public officer.
Office of the Tanodbayan on June 20, 1988.
CONTRARY TO LAW."
That on or about the 15th day of April, 1979, in the City of Manila,
President, a true, detailed and sworn statement of his assets and
liabilities, as a December 31, 1978, including a statement of the amounts
and sources of his income, the amounts of his personal and family
expenses and the amount of income taxes paid for the next preceding
calendar year (1978), as required of every public officer.
office of the Tanodbayan on June 20, 1980.
CONTRARY TO LAW."
On July 22, 1985, petitioner filed with the Sandiganbayan a consolidated
motion to quash the information on the following grounds: LLjur
"1. The prosecution deprived accused-movant of due process of law and

of the right to a speedy disposition of the cases filed against him,
amounting to loss of jurisdiction to file the informations;
2. Prescription of the offenses charged in Crim. Case Nos. 10499, 10500
and 10501;
3. The facts charged in Criminal Case No. 10500 (for failure to file
Statement of Assets and Liabilities for the year 1973) do not constitute an
offense;
4. No prima facie case against the accused-movant exists in Criminal
Cases Nos. 10500, 10502 and 10503;
Case No. 10199 for Violation of Sec. 3, par. (b) of R.A. 3019, as amended;
Case No. 10501 (for Violation of Sec. 3 (e) of R.A. 3019, as amended."
On July 26, 1985, the Tanodbayan filed its opposition to petitioner's
consolidated motion to quash, stating therein in particular that there were only
two grounds in said motion that needed refutation, namely:
1. The offenses charged in Criminal Cases Nos. 10499, 10500 and 10501,
have already prescribed and criminal liability is extinguished; and
2. The facts charged in the information (Criminal Case No. 10500 — For
failure to file Statement of Assets and Liabilities for the year 1973) do not
constitute an offense.
On the issue of prescription, Tanodbayan citing the case of Francisco vs.
Court of Appeals, 122 SCRA 538, contended that the filing of the complaint
or denunciain the fiscal's office interrupts the period of prescription. Since the
above-numbered cases were filed with the Office of the Tanodbayan in 1980
and the alleged offenses were committed on July 16, 1973, January 31, 1974
and in May 1975, respectively, although the charges were actually filed in Court
only on July 9, 1985, the Tanodbayan has still the right to prosecute the same,
it appearing that the ten (10) year prescriptive period has not yet lapsed.
Moreover, Tanodbayan pointed out that a law such as Batas Pambansa Blg.
195, extending the period of limitation with respect to criminal prosecution,
unless the right to acquittal has been acquired, is constitutional.
Tanodbayan likewise said that the requirement for the filing of the
Statement of Assets and Liabilities in P.D. 379 is separate and distinct from that
required pursuant to the provisions of the Anti-Graft Law, as amended. For
while the former requires "any natural or juridical person having gross assets of
P50,000.00 or more . . ." to submit a statement of assets and liabilities ". . .
regardless of the networth," the mandate in the latter law is for ALL government
employees and officials to submit a statement of assets and liabilities. Hence,
the prosecution under these two laws are separate and distinct from each other.
Tanodbayan also explained that delay in the conduct of preliminary
investigation does not impair the validity of the informations filed and that
neither will it render said informations defective. Finally, Tanodbayan added
that P.D. 911, the law which governs preliminary investigations is merely
directory insofar as it fixes a period of ten (10) days from its termination to
resolve the preliminary investigation. prcd
On August 9, 1985, the Sandiganbayan rendered its challenged

resolution denying petitioner's motion to quash, the dispositive portion of which
reads:
"WHEREFORE, prescinding therefrom, We find, and so hold, that the
accused's "Consolidated Motion to Quash" should be as it is hereby,
denied for lack of merit. Conformably to Rule 117, Section 4 of the 1985
Rules on Criminal Procedure, the defect in the information in Criminal
Case No. 10500 being one which could be cured by amendment,
the Tanodbayan is hereby directed to amend said information to change
the date of the alleged commission of the offense therein charged
fromJanuary 31, 1974 to September 30, 1974 within five (5) days from
receipt hereof.
SO ORDERED."
On August 10, 1985, in compliance with the Sandiganbayan's resolution
of August 8, 1985, the Tanodbayan filed an amended information in Criminal
Case No. 10500, changing the date of the commission of the offense to
September 30, 1974.
On August 30, 1985, petitioners filed a consolidated motion for
reconsideration which was denied by the Sandiganbayan on September 17,
1985. Hence, petitioner filed this petition on October 16, 1985 assailing the
denial of his motion to quash. On October 22, 1985, the Court, without giving
due course to the petition, resolved to require the respondents to comment
thereon and issued a temporary restraining order effective immediately and
continuing until further orders of the Court, enjoining the
respondents Sandiganbayan and Tanodbayan from continuing with the trial
and other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502
and 10503. In compliance with said resolution, the respondents, through
Solicitor General Estelito P. Mendoza, filed their comment on January 6, 1986.
On April 10, 1986, The Court required the parties to move in the premises
considering the supervening events, including the change of administration that
had transpired, and the provisions for Sec. 18, Rule 3 of the Rules of Court
insofar as the public respondents were concerned, which required the
successor official to state whether or not he maintains the action or position
taken by his predecessor in office. On June 20, 1986, the new Tanodbayan
manifested that since "the charges are not political offenses and they have no
political bearing whatsoever," he had no alternative but to pursue the cases
against the petitioner, should the Court resolve to deny the position; that in any
event, petitioner is not precluded from pursuing any other legal remedies under
the law, such as the filing of a motion for re-evaluation of his cases with the
Tanodbayan. The new Solicitor General filed a manifestation dated June 27,
1986 in which he concurred with the position taken by the new Tanodbayan. LexLib
Pursuant to the above manifestation of the new Tanodbayan, the

petitioner filed a motion for re-evaluation with the Office of the Tanodbayan,
dated July 21, 1986, praying that the cases in question be re-evaluated and the
informations be quashed. The Court is not aware of what action, if any, has
been taken thereon by the Tanodbayan. However, be that as it may, the filing
of the aforesaid motion for re-evaluation with the Tanodbayan has no material
bearing insofar as the duty of this Court to resolve the issues raised in the
instant petition is concerned.
Petitioner has raised the following issues in his petition:
1. Whether the prosecution's long delay in the filing of these cases with
the Sandiganbayan had deprived petitioner of his constitutional right to due
process and the right to a speedy disposition of the cases against him.
2. Whether the crimes charged has already prescribed.
3. Whether there is a discriminatory prosecution of the petitioner by the
Tanodbayan.
4. Whether Sandiganbayan should have ruled on the question of
amnesty raised by the petitioner.
5. Whether petitioner's contention of the supposed lack or non-existence
of prima facie evidence to sustain the filing of the cases at bar justifies the
quashal of the questioned informations.
Petitioner claims that the Tanodbayan culpably violated the constitutional
mandate of "due process" and "speedy disposition of cases" in unduly
prolonging the termination of the preliminary investigation and in filing the
corresponding informations only after more than a decade from the alleged
commission of the purported offenses, which amounted to loss of jurisdiction
and authority to file the informations. The
respondent Sandiganbayan dismissed petitioner's contention, saying that the
applicability of the authorities cited by him to the case at bar was "nebulous;"
that it would be premature for the court to grant the "radical relief" prayed for by
petitioner at this stage of the proceeding; that the mere allegations of "undue
delay" do not suffice to justify acceptance thereof without any showing "as to
the supposed lack or omission of any alleged procedural right granted or
allowed to the respondent accused by law or administrative fiat" or in the
absence of "indubitable proof of any irregularity or abuse" committed by the
Tanodbayan in the conduct of the preliminary investigation; that such facts and
circumstances as would establish petitioner's claim of denial of due process
and other constitutionally guaranteed rights could be presented and more fully
threshed out at the trial. Said the Sandiganbayan:
"That there was a hiatus in the proceedings between the alleged
termination of the proceedings before the investigating fiscal on October
25, 1982 and its resolution on April 17, 1985 could have been due to
certain factors which do not appear on record and which both parties did
not bother to explain or elaborate upon in detail. It could even be logically
inferred that the delay may be due to painstaking and grueling scrutiny by
the Tanodbayan as to whether the evidence presented during the
preliminary investigation merited prosecution of a former high-ranking
government official. In this respect, We are of the considered opinion that
the provision of Pres. Decree No. 911, as amended, regarding the
resolution of a complaint by the Tanodbayan within ten (10) days from
termination of the preliminary investigation is merely "directory" in nature,
in view of the nature and extent of the proceedings in said office.
The statutory grounds for the quashal of an information are clearly set
forth in concise language in Rule 117, Section 2, of the 1985 Rules on
Criminal Procedure and no other grounds for quashal may be entertained
by the Court prior to arraignment inasmuch as it would be itself remiss in
the performance of its official functions and subject to the charge that it
has gravely abused its discretion. Such facts and circumstances which
could otherwise justify the dismissal of the case, such as failure on the
part of the prosecution to comply with due process or any other
constitutionally-guaranteed rights may be presented during the trial
wherein evidence for and against the issue involved may be fully threshed
out and considered. Regrettably, the accused herein attempts to have the
Court grant such as radical relief during this stage of the proceedings
which precludes a precocious or summary evaluation of insufficient
evidence in support thereof."
This bring us to the crux of the issue at hand. Was petitioner deprived of
his constitutional right to due process and the right to "speedy disposition" of
the cases against him as guaranteed by the Constitution? May the court,
ostrich-like, bury its head in the sand, as it were, at the initial stage of the
proceedings and wait to resolve the issue only after the trial? prcd
In a number of cases, 1 this Court has not hesitated to grant the so-called
"radical relief" and to spare the accused from undergoing the rigors and
expense of a full-blown trial where it is clear that the has been deprived of due
process of law or other constitutionally guaranteed rights. Of course, it goes
without saying that in the application of the doctrine enunciated in those cases,
particular regard must be taken of the facts and circumstances peculiar to each
case.
Coming to the case at bar, the following relevant facts appear on record
and are largely undisputed. The complainant, Antonio de los Reyes, originally
filed what he termed "a report" with the Legal Panel of the Presidential Security
Command (PSC) on October 1974, containing charges of alleged violations
of Rep. Act No. 3019against then Secretary of Public Information Francisco
S. Tatad. The "report" was made to "sleep" in the office of the PSC until the end
of 1979 when it became widely known that Secretary (then Minister) Tatad had
a falling out with President Marcos and had resigned from the Cabinet. On
December 12, 1979, the 1974 complaint was resurrected in the form of a formal
complaint filed with the Tanodbayan and docketed as TBP Case No. 8005-16-
07. The Tanodbayan acted on the complaint on April 1, 1980 — which was
around two months after petitioner Tatad's resignation was accepted by Pres.
Marcos — by referring the complaint to the CIS, Presidential Security
Command, for investigation and report. On June 16, 1980, the CIS report was
submitted to the Tanodbayan, recommending the filing of charges for graft and
corrupt practices against former Minister Tatad and Antonio L. Cantero. By
October 25, 1982, all affidavit and counter-affidavits were in and the case was
ready for disposition by the Tanodbayan. However, it was only on July 5, 1985
that a resolution was approved by the Tanodbayan, recommending the filing of
the corresponding criminal informations against the accused Francisco Tatad.
Five (5) criminal informations were filed with the Sandiganbayan on June 12,
1985, all against petitioner Tatad alone.
A painstaking review of the facts can not but leave the impression that
political motivations played a vital role in activating and propelling the
prosecutorial process in this case. Firstly, the complaint came to life, as it were,
only after petitioner Tatad had a falling out with President Marcos. Secondly,
departing from established procedures prescribed by law for preliminary
investigation, which require the submission of affidavits and counter-affidavits
by the Tanodbayan referred the complaint to the Presidential Security
Command for fact-finding investigation and report. cdphil
We find such blatant departure from the established procedure as a

dubious, but revealing attempt to involve an office directly under the President
in the prosecution was politically motivated. We cannot emphasize too strongly
that prosecutors should not allow, and should avoid, giving the impression that
their noble office is being used or prostituted, wittingly or unwittingly, for political
ends or other purposes alien to, or subversive of, the basic and fundamental
objective of serving the interest of justice evenhandedly, without fear or favor
to any and all litigants alike, whether rich or poor, weak or strong, powerless or
mighty. Only by strict adherence to the established procedure may the public's
perception of the impartiality of the prosecutor be enhanced.
Moreover, the long delay in resolving the case under preliminary
investigation can not be justified on the basis of the facts on record. The law
(P.D. No. 911) prescribes a ten-day period for the prosecutor to resolve a case
under preliminary investigation by him from its termination. While we agree with
the respondent court that this period fixed by law is merely "directory," yet, on
the other hand, it can not be disregarded or ignored completely, with absolute
impunity. It certainly can not be assumed that the law has included a provision
that is deliberately intended to become meaningless and to be treated as a
dead letter.
We find the long delay in the termination of the preliminary investigation
by the Tanodbayan in the instant case to be violative of the constitutional right
of the accused to due process. Substantial adherence to the requirements of
the law governing the conduct of preliminary investigation, including substantial
compliance with the time limitation prescribed by the law for the resolution of
the case by the prosecutor, is part of the procedural due process constitutionally
guaranteed by the fundamental law. Not only under the broad umbrella of the
due process clause, but under the constitutionally guarantee of "speedy
disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the
1973 and the 1987 Constitutions), the inordinate delay is violative of the
petitioner's constitutional rights. A delay of close to three (3) years can not be
deemed reasonable or justifiable in the light of the circumstance obtaining in
the case at bar. We are not impressed by the attempt of the Sandiganbayan to
sanitize the long delay by indulging in the speculative assumption that "the
delay may be due to a painstaking and grueling scrutiny by the Tanodbayan as
to whether the evidence presented during the preliminary investigation merited
prosecution of a former high-ranking government official." In the first place, such
a statement suggests a double standard of treatment, which must be
emphatically rejected. Secondly, three out of the five charges against the
petitioner were for his alleged failure to file his sworn statement of assets and
liabilities required by Republic Act No. 3019, which certainly did not involve
complicated legal and factual issues necessitating such "painstaking and
grueling scrutiny" as would justify a delay of almost three years in terminating
the preliminary investigation. The other two charges relating to alleged bribery
and alleged giving of unwarranted benefits to a relative, while presenting more
substantial legal and factual issues, certainly do not warrant or justify the period
of three years, which it took the Tanodbayan to resolve the case.
It has been suggested that the long delay in terminating the preliminary
investigation should not be deemed fatal, for even the complete absence of a
preliminary investigation does not warrant dismissal of the information. True —
but the absence of a a preliminary investigation can be corrected by giving the
accused such investigation. But an undue delay in the conduct of a preliminary
investigation can not be corrected, for until now, man has not yet invented a
device for setting back time. LexLib
After a careful review of the facts and circumstances of this case, we are
constrained to hold that the inordinate delay in terminating the preliminary
investigation and filing the information in the instant case is violative of the
constitutionally guaranteed right of the petitioner to due process and to a
speedy disposition of the cases against him. Accordingly, the informations in
Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be
dismissed. In view of the foregoing, we find it unnecessary to rule on the other
issues raised by petitioner.
Accordingly, the Court Resolved to give due course to the petition and to
grant the same. The informations in Criminal Cases Nos. 10499, 10500, 10502
and 10503, entitled "People of the Philippines vs. Francisco S. Tatad" are
hereby DISMISSED. The temporary restraining order issued on October 22,
1985 is made permanent.
SO ORDERED.
Teehankee, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr.,
Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Griño-
Aquino, JJ.,concur.
(Tatad v. Sandiganbayan, G.R. Nos. 72335-39, [March 21, 1988], 242 PHIL
|||
563-577)
EN BANC
[G.R. No. 72670. September 12, 1986.]
SATURNINA GALMAN, REYNALDO GALMAN and JOSE P.

BENGZON, MARY CONCEPCION BAUTISTA, JOAQUIN G.
BERNAS, S.J., M. BELLARMINE BERNAS, O.S.B., FRANCISCO
I. CHAVEZ, SOLITA COLLAS-MONSOD, SANTIAGO DUMLAO,
JR., MARIA FERIA, MARCELO B. FERNAN, FRANCISCO
GARCHITORENA, ** ANDREW GONZALEZ, JOSE C. LAURETA,
SALVADOR P. LOPEZ, FELIX K. MARAMBA, JR., CECILIA
MUÑOZ PALMA, JAIME V. ONGPIN, FELIX PEREZ, JOSE B.L.
REYES, JOSE E. ROMERO, JR., RAMON DEL ROSARIO, JR.,
RICARDO J. ROMULO, AUGUSTO SANCHEZ, EMMANUEL V.
SORIANO, DAVID SYCIP, ENRIQUE SYQUIA, CRISTINA TAN,
JESUS VARGAS, BERNARDO M. VILLEGAS, VICENTE
JAYME, *** , petitioners, vs. SANDIGANBAYAN, FIRST DIVISION
(represented by Justice Manuel Pamaran, Chairman, and
Justices Augusto Amores and Bienvenido Vera Cruz,
Members), JUSTICE BERNARDO FERNANDEZ (Ombudsman)
and GEN. FABIAN C. VER, MAJ. GEN. PROSPERO A. OLIVAS,
BRIG. GEN. LUTHER A. CUSTODIO, COL. ARTURO G.
CUSTODIO, COL. VICENTE B. TIGAS, JR., CAPT. FELIPE
VALERIO, CAPT. LLEWELYN KAVINTA, CAPT. ROMEO M.
BAUTISTA, 2nd LT. JESUS CASTRO, SGT. PABLO MARTINEZ,
SGT. ARNULFO DE MESA, SGT. TOMAS FERNANDEZ, SGT.
CLARO LAT, SGT. FILOMENO MIRANDA, SGT. ROLANDO C.
DE GUZMAN, SGT. ERNESTO M. MATEO, SGT. RODOLFO M.
DESOLONG, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO,
SGT. ARMANDO DELA CRUZ, SGT. PROSPERO A. BONA, CIC
ROGELIO MORENO, CIC MARIO LAZAGA, AIC CORDOVA G.
ESTELO, AIC ANICETO ACUPIDO and HERMILO
GOSUICO, respondents.
Lupino Lazaro and Arturo M. de Castro for petitioners.

Antonio R. Coronel for respondents Gen. Ver and Col. Tigas, Jr.
Rodolfo U. Jimenez for respondent Brig. Gen. Custodio.
Ramon M. Bernaldo for respondent H. Gosuico.
Romulo Quimbo for respondent B. Vera Cruz.
Norberto J. Quisumbing for respondent P. Olivas.
Felix Solomon for respondent Col. A. Custodio.
Alfonso S. Cruz for B. Fernandez.
Edgardo B. Gayos for M. Pamaran.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; FINDINGS OF

COMMISSION THAT PROCEEDINGS HAVE BEEN VITIATED BY LACK OF
DUE PROCESS, UPHELD; CASE AT BAR. — The Commission submitted the
following recommendation: "Considering the existence of adequate credible
evidence showing that the prosecution in the Aquino-Galman case and the
Justices who tried and decided the same acted under the compulsion of some
pressure which proved to be beyond their capacity to resist, and which not only
prevented the prosecution to fully ventilate its position and to offer all the
evidences which it could have otherwise presented, but also predetermined the
final outcome of the case, the Commission is of the considered thinking and
belief, subject to the better opinion and judgment of this Honorable court, that
the proceedings in the said case have been vitiated by lack of due process, and
hereby respectfully recommends that the prayer in the petition for a declaration
of a mistrial in Sandiganbayan Cases Nos. 10010 and 10011 entitled
'People vs. Luther Custodio, et al.,' be granted." The Court adopts and
approves the Report and its findings and holds on the basis thereof and of the
evidence received and appreciated by the Commission and duly supported by
the facts of public record set that the then President (codenamed Olympus) had
stage-managed in and from Malacañang Palace "a scripted and predetermined
manner of handling and disposing of the Aquino Galman murder case;" and
that "the prosecution in the Aquino-Galman case and the Justices who tried and
decided the same acted under the compulsion of some pressure which proved
to be beyond their capacity to resist, and which not only prevented the
prosecution to fully ventilate its position and to offer all the evidences which it
could have otherwise presented, but also predetermined the final outcome of
the case" of total absolution of the twenty-six respondents-accused of all
criminal and civil liability. The Court finds that the Commission's Report and
findings and conclusions are duly substantiated by the evidence and facts of
public record. Composed of distinguished members of proven integrity with a
combined total of 141 years of experience in the practice of law (55 years) and
in the prosecutorial and judicial services (86 years in the trial and appellate
courts), experts at sifting, the chaff from the grain, the Commission properly
appraised the evidences presented and denials made by public respondents.
2. ID.; ID.; MOCKERY OF JUDICIAL PROCESS; A CASE OF. — The
record shows suffocatingly that from beginning to end, the then President used,
or more precisely, misused the overwhelming resources of the government and
his authoritarian powers to corrupt and make a mockery of the judicial process
in the Aquino-Galman murder cases. As graphically depicted in the Report, and
borned out by the happenings (res ipsa loquitur), since the resolution prepared
by his "Coordinator," Manuel Lazaro, his Presidential Assistant on Legal Affairs,
for the Tanodbayan's dismissal of the cases against all accused was
unpalatable (it would summon the demonstrators back to the streets and at any
rate was not acceptable to the Herrera prosecution panel, the unholy scenario
for acquittal of all 26 accused after the rigged trial as ordered at the Malacañang
conference, would accomplish the two principal clamor for the suspected killers
to be charged in court and of giving them through their acquittal the legal shield
of double jeopardy. Indeed, the secret Malacañang conference at which the
authoritarian President called together the Presiding Justice of the
Sandiganbayan and Tanodbayan Fernandez and the entire prosecution panel
headed by Deputy Tanodbayan Herrera and told them how to handle and rig
(moro-moro) the trial and the close monitoring of the entire proceedings to
assure the predetermined ignominious final outcome are without parallel and
precedent in out annals and jurisprudence.
3. ID.; ID.; ID.; SECRET CONFERENCE AT MALACAÑANG AND THE
ENTIRE PROSECUTION PANEL REGARDING IMMINENT FILING OF THE
CRIMINAL CHARGES AGAINST THE ACCUSED; VITIATED ALL
PROCEEDINGS IN THE SANDIGANBAYAN. — The fact of the secret
Malacañang conference of January 10, 1985 at which the authoritarian
President discussed with the Presiding Justice of the Sandiganbayan and the
entire prosecution panel the matter of the imminent filing of the criminal charges
against all the twenty-six accused (as admitted by respondent Justice
Fernandez to have been confirmed by him to the then President's "Coordinator"
Manuel Lazaro on the preceding day) is not denied. It is without precedent. This
was illegal under out penal laws. This illegality vitiated from the very beginning
all proceedings in the Sandiganbayan court headed by the very Presiding
Justice who attended. As the Commission noted: "The very acts of being
summoned to Malacañang and their ready acquiescence thereto the
circumstances then obtaining, are in themselves pressure dramatized and
exemplified. . . . Verily, it can be said that any avowal of independent action or
resistance to presidential pressure became illusory from the very moment they
stepped inside Malacañang Palace on January 10, 1985."
4. ID.; ID.; JUDGMENT; VOID AB INITIO IN VIEW COLLUSION AS TO
HANDLING AND TREATMENT OF CASES. — No court whose Presiding
Justice has received "orders or suggestions" from the very President who by
an amendatory decree made it possible to refer the cases to the
Sandiganbayan, can be an impartial court, which is the very essence of due
process of law. Jurisdiction over cases should be determined by law, and not
by preselection of the Executive, which could be much too easily transformed
into a means of predetermining the outcome of individual cases." This criminal
collusion as to the handling and treatment of the cases by public respondent at
the secret Malacañang conference (and revealed only after fifteen months by
Justice Manuel Herrera) completely disqualified respondent Sandiganbayan
and voided ab initio its verdict. This renders moot and irrelevant for now the
extensive arguments of respondents accused, particularly General Ver and
Olivas and those categorized as accessories, that there has been no evidence
or witness suppressed against them, that the erroneous conclusions of Olivas
as police investigator do not make him an accessory of the crimes he
investigated and the appraisal and evaluation of the testimonies of the
witnesses presented and suppressed. There will be time and opportunity to
present all these arguments and considerations at the remand and retrial of the
cases herein ordered before a neutral and impartial court.
5. ID.; ID.; ID.; ACQUITTAL; DECLARED UNLAWFUL AND VOID AB
INITIO; CASE AT BAR. — The Supreme Court cannot permit such a sham trial
and verdict and travesty of justice to stand unrectified. The courts of the land
under its aegis are courts of law and justice and equity. They would have no
reason to exist if they were allowed to be used as mere tools of injustice,
deception and duplicity to subvert and suppress the truth, instead of
repositories of judicial power whose judges are sworn and committed to render
impartial justice to all alike who seek the enforcement or protection of a right or
the prevention or redress of a wrong, without fear or favor and removed from
the pressures of politics and prejudice. The Court is constrained to declare the
sham trial a mock trial - the non-trial of the century — and that the
predetermined judgment of acquittal was unlawful and void ab initio.
6. ID.; ID.; ID.; DOUBLE JEOPARDY; CANNOT BE INVOKED WHERE
PROSECUTION IS DENIED DUE PROCESS.- No double jeopardy. — It is
settled doctrine that double jeopardy cannot be invoked against this Court's
setting aside of the trial courts' judgment of dismissal or acquittal where the
prosecution which represents the sovereign people in criminal cases is denied
due process. As the Court stressed in the 1985 case of People vs.
Bocar, "Where the prosecution is deprived of a fair opportunity to prosecute and
prove its case, its right to due process is thereby violated.
7. ID.; ID.; ID.; VOID WHERE DENIAL OF RIGHT TO DUE PROCESS
IS APPARENT. — "The cardinal present is that where there is a violation
of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the
violation of the State's right to due process raises a serious jurisdictional issue
(Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan.
30, 1971] which cannot be glossed over or disregarded at will. Where the denial
of the fundamental right of due process is apparent, a decision rendered in
disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-
30370 [May 25, 1973], 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49
SCRA 416 [Feb. 27, 1973]). Any judgment or decision rendered
notwithstanding such violation may be regarded as a 'lawless thing, which can
be treated as an outlaw and slain at sight, or ignored wherever it exhibits its
head' (Aducayen vs. Flores, supra).
8. ID.; ID.; DOUBLE JEOPARDY; WHEN APPLICABLE. — "Respondent
Judge's dismissal order dated July 7, 1967 being null and void for lack of
jurisdiction, the same does not constitute a proper basis for a claim of double
jeopardy attaches only (a) upon a valid indictment, (b) before a competent
court, (c) after arraignment, (d) a valid plea having been entered; and (e) the
case was dismissed or otherwise terminated without the express consent of the
accused (People vs. Ylagan, 58 Phil. 851). The lower court was not competent
as it was ousted of its jurisdiction when it violated the right of the prosecution to
due process. "In effect, the first jeopardy was never terminated, and the remand
of the criminal case for further hearing and/or trial before the lower courts
amounts merely to a continuation of the first jeopardy, and does not expose the
accused to a second jeopardy." Respondents-accused's contention that the
Sandiganbayan judgment of acquittal ends the case which cannot be appealed
or reopened, without being put in double jeopardy was forcefully disposed of by
the Court in People Court of Appeals, which is fully applicable here, as follows:
"That is the general rule and pre-supposes a valid judgment. As earlier pointed
out, however, respondent Courts' Resolution of acquittal was a void
judgment for having been issued without jurisdiction. No double jeopardy
attaches, therefore. A void judgment is, in legal effect, no judgment at all. By it
no rights are divested. Through it, no rights can be attained. Being worthless,
all proceedings founded upon it are equally worthless. It neither binds nor bars
anyone. All acts performed under it and all claims flowing out of it are void. . . .
9. ID.; ID.; ID.; CANNOT BE INVOKED IN A SHAM AND MOCK TRIAL.
— More so does the rule against the invoking of double jeopardy hold in the
cases at bar where as we have held, the sham trial was but a mock trial where
the authoritarian president ordered respondents Sandiganbayan and
Tanodbayan to rig the trial and closely monitored the entire proceedings to
assure the predetermined final outcome of acquittal and total absolution as
innocent of all the respondent-accused. Fully aware of the prosecution's
difficulties in locating witnesses and overcoming their natural fear and
reluctance to appear and testify, respondent Sandiganbayan maintained a
"dizzying tempo" of the proceedings and announced its intention to terminate
the proceedings in about 6 months time or less than a year, pursuant to the
scripted scenario. The prosecution complained of "the Presiding Justice's
seemingly hostile attitude towards (it)" and their being the subject of warnings,
reprimand and contempt proceedings as compared to the nil situation for the
defense.
10. ID.; ID.; JUDGMENT; VOID WHERE VERDICT WAS DICTATED,
COERCED AND SCRIPTED. — A dictated, coerced and scripted verdict of
acquittal such as that in the case at bar is a void judgment. In legal
contemplation, it is no judgment at all. It neither binds nor bars anyone. Such
judgment is "a lawless thing which can be treated as an outlaw." It is a terrible
and unspeakable affront to the society and the people.
11. ID.; ID.; COURTS; CALLED UPON TO RENDER JUSTICE WHERE
IT IS DUE. — "Private respondents invoke 'justice for the innocent.' For justice
to prevail, the scales must be balance. It is not to be dispensed for he accused
alone. The interests of the society, which they have wronged must also be
equally considered. A judgment of conviction is not necessarily a denial of
justice. A verdict of acquittal neither necessarily spells a triumph of justice. To
the party wronged, to the society offended, it could also mean injustice. This is
where the Courts play a vital role. They render justice where justice is due.
12. ID.; ID.; JUDGMENT ACQUITTAL OF ACCUSED BY THE
SANDIGANBAYAN DURING PENDENCY OF FINAL ACTION OF SUPREME
COURT; CONSTITUTES GRAVE ABUSE OF DISCRETION. — Although no
restraining order was issued anew, respondent Sandiganbayan should not
have precipitately issued its decision of total absolution of all the accused
pending the final action of this Court. This is the teaching of
Valdez vs. Aquilzan, wherein the Court is setting aside the hasty convictions,
ruled that "prudence dictated that (respondent judge) refrain from deciding the
cases or at the very least to hold in abeyance the promulgation of his decision
pending action by this Court. But prudence gave way to imprudence; the
respondent judge acted precipitately by deciding the cases [hastily without
awaiting this Court's action]. All of the acts of the respondent judge manifest
grave abuse of discretion on his part amounting to lack of jurisdiction which
substantively prejudiced the petitioner."
13. ID.; ID.; SECOND MOTION FOR RECONSIDERATION; OPINION
IN LUZON BROKERAGE CO., INC. vs. MARITIME BLDG., CO., INC. (36
SCRA 305 [1978], NOT APPLICABLE. — Respondent invocation of the writer's
opinion in Luzon Brokerage Co., Inc. vs. Maritime Bldg. Co., is inappropriate.
The writer therein held that a party should be entitled to only one Supreme
Court and may not speculate on vital changes in the Court's membership for
review of his lost case once more, since public policy and sound practice
demand that litigation be put to an end and no second pro forma motion for
reconsideration reiterating the same arguments should be kept pending so long
(for over six (6) years and one (1) month since the denial of the first motion for
reconsideration). This opinion cannot be properly invoked, because here,
petitioners' second motion for reconsideration was filed promptly on March 20,
1986 following the denial under date of February 4th of the first motion for
reconsideration and the same was admitted per the Court's Resolution of April
3, 1986 and is not being resolved within five months of its filing after the
Commission had received the evidence of the parties who were heard by the
Court only last August 26th. Then the second motion for reconsideration is
based on an entirely new material ground which was not known at the time of
the denial of the petition and filing of the first motion for reconsideration, i.e.,
the secret Malacañang conference on January 10, 1985 which came to light
only fifteen months later in March, 1986 and showed beyond per adventure (as
proved in the Commission hearings) the merits of the petition and that the
authoritarian president had dictated and predetermined the final outcome of
acquittal. Hence, the ten members of the Court (without any new appointees)
unanimously voted to admit the second motion for reconsideration.
ALAMPAY, J., concurring:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; SECOND MOTION FOR

RECONSIDERATION; GRANTING THEREOF JUSTIFIED IN VIEW OF THE
CERTAIN SIGNIFICANT FACTS AND CIRCUMSTANCES NOT PREVIOUSLY
DISCLOSED TO THE COURT. — Considering that certain significant facts and
circumstances not previously disclosed to the Court were found by the
Commission constituted by this Court, purposely to inquire and ascertain the
veracity of the same, to be duly established by sufficient evidence and are
indicative of "a scripted and predetermined manner of handling and disposing
of the Aquino-Galman murder case . . .;" and that there exists "adequate
credible evidence showing that the prosecution in the Aquino-Galman case and
the Justices who tried and decided the same acted under the compulsion of
some pressure which proved to be beyond their capacity to resist and which
not only prevented the prosecution to fully ventilate its position and to offer all
the evidences it could have otherwise presented, but also predetermined the
outcome of the case; . . ." I join in granting petitioner's second motion for
reconsideration.
MELENCIO-HERRERA, J., concurring:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF

OFFENSES; RULE OF PUBLIC PROSECUTOR. — As it is, the prosecution
failed to fully ventilate its position and to lay out before respondent Court all the
pertinent facts which could have helped that Court in arriving at a just decision.
It had, thus, failed in its task. "A public prosecutor is 'the representative not of
an ordinary party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall win a case but
that justice and every definite sense the servant of the law, the two fold aim of
which is that guilt shall not escape or innocence suffer." (Suarez v. Platon, 69
Phil. 556 [1940]). "He owes the state, the court and the accused the duty to lay
before the court the pertinent facts at his disposal with methodical and
meticulous attention, clarifying contradictions and filling up gaps and loopholes
in his evidence to the end that the court's mind may not be tortured by doubts,
the innocent may not suffer, and the guilty may not escape unpunished"
(People vs. Esquivel, 82 Phil. 453 [1948]).
2. ADMINISTRATIVE SUPERVISION OVER COURTS AND COURT
PERSONNEL; SANDIGANBAYAN; EQUALLY CULPABLE FOR
MISCARRIAGE OF JUSTICE; CASE AT BAR. — Respondent Court, in
showing partiality for the accused from beginning to end, from the raffle of the
subject cases to the promulgation of judgment, which absolved the accused, en
masse, from any and all liability, is equally culpable for miscarriage of justice.
Due process of law, which "requires a hearing before an impartial and
disinterested tribunal" and the right of every litigant to "nothing less than the
cold neutrality of an impartial Judge" (Gutierrez vs. Santos, 112 Phil. 184
[1961]; Castillo vs. Juan, 62 SCRA 124 [1975]), was violated.
3. REMEDIAL LAW; CRIMINAL PROCEDURE; JUDGMENT; NULL
AND VOID AB INITIO; VITIATED BY LACK OF DUE PROCESS. — The
proceedings below, having been vitiated by lack of due process, to the
detriment of the State and the People, were invalid and the judgment rendered
null and void ab initio. There having been no trial at all in contemplation of law,
there is likewise no judgment on which a plea of double jeopardy may be based.
"To entitle the accused to the plea of former jeopardy, the proceedings must
have been valid (State vs. Bartlett, 164 N.W. 757; State vs. O'Day 185 So.
290). The lack of any fundamental requisite which would render void the
judgment would make ineffective a plea of jeopardy based on such proceedings
(Steen vs. State, 242 S.W. 1047).
4. ID.; ID.; DOUBLE JEOPARDY; ATTACHES EVEN IF COLLUSION
TAKES PLACE AND THE ACCUSED WERE NOT A PARTY TO THE SAME;
PRINCIPLE NOT APPLICABLE IN CASE AT BAR. — The accused, however,
argue that double jeopardy attaches for, even assuming without conceding, that
pressure and collusion did take place, they were not a party to the same; and,
for those who were charged only either as accomplices or accessories, they
contend that their alleged offense involved only a cover-up in the investigation
of the crime so that, whatever pressure was exerted could only have benefited
the principals, consequently, to subject them to a re-trial is to put them twice in
jeopardy. It is true that where an accused was not a party to the fraud, a
conviction cannot be avoided by the state (State vs.Heflin, 96 So. 459, 19 Ala.
App. 222). However, that exception is inapplicable to the cases at bar where
both the prosecution and the Trial Court itself were parties to the fraud and
collusion. Nor can it be said that the accused were not a part thereof. The
agreement to file the murder charge in Court so that, after being acquitted as
planned, the accused could no longer be prosecuted under the doctrine of
double jeopardy; the "categorization" of the accused into principals,
accomplices and accessories so that not all of them would be denied bail during
the trial, were fraudulently conceived for their benefit and for the purpose of
protecting them for subsequent prosecution. It is, thus, no bar to a subsequent
prosecution for the same offense (Coumas vs. Superior Court, 192 P. 2d. 449,
452, 31 C. 2d. 682). "A verdict of acquittal procured by the accused by fraud
and collusion is a nullity and does not put him in jeopardy; and consequently, it
is no bar to a second trial for the same offense (State vs. Lee, 30A, 1110, 65
Conn. 265, 48 Am. S.R. 202, 27 L. RA. 498).
RESOLUTION
TEEHANKEE, C.J : p
Last August 21st, our nation marked with solemnity and for the first time
in freedom the third anniversary of the treacherous assassination of foremost
opposition leader former Senator Benigno "Ninoy" Aquino, Jr. imprisoned for
almost eight years since the imposition of martial law in September, 1972 by
then President Ferdinand E. Marcos, he was sentenced to death by firing squad
by a military tribunal for common offenses alleged to have been committed long
before the declaration of martial law and whose jurisdiction over him as a civilian
entitled to trial by judicial process by civil courts he repudiated. Ninoy pleaded
in vain that the military tribunals are admittedly not courts but mere instruments
and subject to the control of the President as created by him under the General
Orders issued by him as Commander-in-Chief of the Armed Forces of the
Philippines, and that he had already been publicly indicted and adjudged guilty
by the President of the charges in a nationwide press conference held on
August 24, 1971 when he declared the evidence against Ninoy "not only strong
but overwhelming." 1 This followed the Plaza Miranda bombing of August 21,
1971 of the proclamation rally of the opposition Liberal Party candidates for the
November, 1971 elections (when eight persons were killed and practically all of
the opposition candidates headed by Senator Jovito Salonga and many more
were seriously injured), and the suspension of the privilege of the writ of habeas
corpus under Proclamation No. 889 on August 23, 1971. The massacre was
instantly attributed to the communists but the truth has never been known. But
the then President never filed the said charges against Ninoy in the civil courts.
Ninoy Aquino was nevertheless thereafter allowed in May, 1980 to leave
the country to undergo successful heart surgery. After three years of exile and
despite the regime's refusal to give him a passport, he sought to return home
"to strive for a genuine national reconciliation founded on justice." He was to be
cold-bloodedly killed while under escort away by soldiers from his plane that
had just landed at the Manila International Airport on that fateful day at past 1
p.m. His brain was smashed by a bullet fired point-blank into the back of his
head by a murderous assassin, notwithstanding that the airport was ringed by
airtight security of close to 2,000 soldiers — and "from a military viewpoint, it
(was) technically impossible to get inside (such) a cordon." 2 The military
investigators reported within a span of three hours that the man who shot
Aquino (whose identity was then supposed to be unknown and was revealed
only days later as Rolando Galman, although he was the personal friend of
accused Col. Arturo Custodio who picked him up from his house on August 17,
1983) was a communist-hired gunman, and that the military escorts gunned
him down in turn. The military later filmed a re-enactment of the killing scripted
according to this version and continuously replayed it on all TV channels as if it
were taken live on the spot. The then President instantly accepted the military
version and repeated it in a nationally televised press conference that he gave
late in the evening of August 22, 1983, wherein he said, in order to induce
disbelief that the military had a hand in the killing, that "if the purpose was to
eliminate Aquino, this was not the way to do it."
The national tragedy shocked the conscience of the entire nation and
outraged the free world. The large masses of people who joined in the ten-day
period of national mourning and came out in millions in the largest and most
orderly public turnout for Ninoy's funeral reflected their grief for his martyrdom
and their yearning for the truth, justice and freedom.LibLex
The then President was constrained to create a Fact Finding Board 3 to

investigate "the treacherous and vicious assassination of former Senator
Benigno S. Aquino, Jr. on August 21, 1983 [which] has to all Filipinos become
a national tragedy and national shame specially because of the early distortions
and exaggerations in both foreign and local media 4 so that all right thinking and
honest men desire to ventilate the truth through fare, independent and
dispassionate investigation by prestigious and free investigators." After two
false starts, 5 he finally constituted the Board 6 on October 22, 1983 which held
125 hearing days commencing November 3, 1983 (including 3 hearings in
Tokyo and 8 hearings in Los Angeles, California) and heard the testimonies of
194 witnesses recorded in 20,377 pages of transcripts, until the submission of
their minority and majority reports to the President on October 23 and 24, 1984.
This was to mark another first anywhere in the world wherein the minority report
was submitted one day ahead by the ponente thereof, the chairman, who was
received congenially and cordially by the then President who treated the report
as if it were the majority report instead of a minority report of one and forthwith
referred it to respondent Tanodbayan "for final resolution through the legal
system" and for trial in the Sandiganbayan which was better known as a graft
court; and the majority report of the four other members was submitted on the
following day to the then President who coldly received them and could scarcely
conceal his instant rejection of their report with the grim statement that "I hope
you can live with your conscience with what you have done."
The fact is that both majority and minority reports were one in rejecting
the military version as propounded by the chief investigator, respondent Gen.
Olivas, that Rolando Galman was the NPA-hired assassin, stating that "the
evidence shows [to the contrary] that Rolando Galman had no subversive
affiliations." They were in agreement that "only the soldiers in the staircase with
Sen. Aquino could have shot him;" that Galman, the military's "fall guy" was "not
the assassin of Sen. Aquino" and that "the SWAT troopers who gunned down
Galman and the soldiers who escorted Sen. Aquino down the service stairs,
deliberately and in conspiracy with one another, gave a perjured story to us
regarding the alleged shooting by Galman of Sen. Aquino and the mowing
down, in turn, of Galman himself;" in short, that Ninoy's assassination was the
product of a military conspiracy, not a communist plot. The only difference
between the two reports is that the majority report found all the twenty-six
private respondents abovenamed in the title of the case headed by then AFP
Chief General Fabian C. Ver involved in the military conspiracy and therefore
"indictable for the premeditated killing of Senator Benigno S. Aquino, Jr. and
Rolando Galman at the MIA on August 21, 1983;" while the chairman's minority
report would exclude nineteen of them and limit as plotters "the six persons who
were on the service stairs while Senator Aquino was descending" and "General
Luther Custodio . . . because the criminal plot could not have been planned and
implemented without his intervention." Cdpr
The chairman wrote in her minority report (somewhat prophetically) that

"The epilogue to our work lies in what will transpire in accordance with the
action that the Office of the President may thereafter direct to be taken." The
four-member majority report (also prophetically) wrote in the epilogue (after
warning the forces who adhere to an alien and intolerable political ideology
against unscrupulously using the report "to discredit our traditionally revered
institutions"), that "the tragedy opened our eyes and for the first time confirmed
our worst fears of what unchecked evil would be capable of doing" They
wrote:cdphil
"The task of the Board was clear and unequivocal. This task was not only
to determine the facts and circumstances surrounding the death of the late
former Senator. Of greater significance is the awesome responsibility of
the Board to uphold righteousness over evil, justice over injustice,
rationality over irrationality, humaneness over inhumanity. The task was
indeed a painful test, the inevitable result of which will restore our
country's honored place among the sovereign nations of the free world
where peace, law and order, freedom, and justice are a way of life.
"More than any other event in contemporary Philippine history, the killing
of the late former Senator Aquino has brought into sharper focus, the ills
pervading Philippine society. It was the concretization of the horror that
has been haunting this country for decades, routinely manifested by the
breakdown of peace and order, economic instability, subversion, graft and
corruption, and an increasing number of abusive elements in what are
otherwise noble institutions in our country — the military and law
enforcement agencies. We are, however, convinced that, by and large,
the great majority of the officers and men of these institutions have
remained decent and honorable, dedicated to their noble mission in the
service of our country and people.
"The tragedy opened our eyes and for the first time confirmed our worst
fears of what unchecked evil would be capable of doing. As former Israeli
Foreign Minister Abba Eban observes. 'Nobody who has great authority
can be trusted not to go beyond its proper limits.' Social apathy, passivity
and indifference and neglect have spawned in secret a dark force that is
bent on destroying the values held sacred by freedom-loving people.
"To assert our proper place in the civilized world, it is imperative that public
officials should regard public service as a reflection of human ideals in
which the highest sense of moral values and integrity are strictly required.
"A tragedy like that which happened on August 21, 1983, and the crisis
that followed, would have normally caused the resignation of the Chief of
the Armed Forces in a country where public office is viewed with highest
esteem and respect and where the moral responsibilities of public officials
transcend all other considerations."
It is equally the fact that the then President through all his recorded public
acts and statements from the beginning disdained and rejected his own Board's
above findings and insisted on the military version of Galman being Ninoy's
assassin. In upholding this view that "there is no involvement of anyone in his
government in the assassination," he told David Briscoe (then AP Manila
Bureau Chief) in a Radio-TV interview on September 9, 1983 that "I am
convinced that if any member of my government were involved, I would have
known somehow . . . Even at a fairly low level, I would have known. I know how
they think. I know what they are thinking of." 7 He told CBS in another interview
in May, 1984 (as his Fact Finding Board was holding its hearings) the following:
"CBS: 'But indeed there has been recent evidence that seems to
contradict earlier reports, namely, the recent evidence seems to indicate
that some of the guards may have been responsible (for shooting Ninoy)."
"MARCOS: 'Well, you are of course wrong. What you have been reading
are the newspapers and the newspaper reports have been biased. The
evidence still proves that Galman was the killer. The evidence also shows
that there were intelligence reports connecting the communist party to the
killing.'" 8
In his reply of October 25, 1984 to General Ver's letter of the same date
going on leave of absence upon release of the Board's majority report
implicating him, he wrote that "(W)e are even more aware, general, that the
circumstances under which the board has chosen to implicate you in its findings
are fraught with doubt and great contradictions of opinion and testimony. And
we are deeply disturbed that on the basis of so-called evidence, you have been
so accused by some members of the Board," and extended "My very best
wishes to you and your family for a speedy resolution of your case," 9 even as
he announced that he would return the general to his position as AFP Chief "if
he is acquitted by the Sandiganbayan." In an interview on June 4, 1985 with
the Gamma Photo Agency, as respondent court was hearing the cases, he was
quoted as saying that "as will probably be shown, those witnesses (against the
accused) are perjured witnesses." 10
It was against this setting that on November 11, 1985 petitioners
Saturnina Galman and Reynaldo Galman, mother and son, respectively, of the
late Rolando Galman, and twenty-nine (29) other petitioners, composed of
three former Justices of this Court, five incumbent and former university
presidents, a former AFP Chief of Staff, outstanding members of the Philippine
Bar and solid citizens of the community, filed the present action alleging that
respondents Tanodbayan and Sandiganbayan committed serious irregularities
constituting mistrial and resulting in miscarriage of justice and gross violation of
the constitutional rights of the petitioners and the sovereign people of the
Philippines to due process of law. They asserted that the Tanodbayan did not
represent the interest of the people when he failed to exert genuine and earnest
efforts to present vital and important testimonial and documentary evidence for
the prosecution and that the Sandiganbayan Justices were biased, prejudiced
and partial in favor of the accused, and that their acts "clouded with the gravest
doubts the sincerity of government to find out the truth about the Aquino
assassination." Petitioners prayed for the immediate issuance of a temporary
restraining order restraining the respondent Sandiganbayan from rendering a
decision on the merits in the pending criminal cases which it had scheduled on
November 20, 1985 and that judgment be rendered declaring a mistrial and
nullifying the proceedings before the Sandiganbayan and ordering a re-trial
before an impartial tribunal by an unbiased prosecutor. 10-a
At the hearing on November 18, 1985 of petitioners' prayer for issuance
of a temporary restraining order enjoining respondent court from rendering a
decision in the two criminal cases before it, the Court resolved by nine-to-two
votes 11 to issue the restraining order prayed for. The Court also granted
petitioners a five-day period to file a reply to respondents' separate comments
and respondent Tanodbayan a three-day period to submit a copy of his 84-page
memorandum for the prosecution as filed in the Sandiganbayan, the signature
page of which alone had been submitted to the Court as Annex 5 of his
comment. cdll
But ten days later on November 28, 1985, the Court by the same nine-
to-two-vote ratio in reverse, 12 resolved to dismiss the petition and to lift the
temporary restraining order issued ten days earlier enjoining the
Sandiganbayan from rendering its decision. 13 The same Court majority denied
petitioners' motion for a new 5-day period counted from receipt of respondent
Tanodbayan's memorandum for the prosecution (which apparently was not
served on them and which they alleged was "very material to the question of
his partiality, bias and prejudice" within which to file a consolidated reply thereto
and to respondents' separate comments, by an eight-to three vote, with Justice
Gutierrez joining the dissenters. 14
On November 29, 1985, petitioners filed a motion for reconsideration,
alleging that the dismissal did not indicate the legal ground for such action and
urging that the case be set for a full hearing on the merits because if the charge
of partiality and bias against the respondents and suppression of vital evidence
by the prosecution are proven, the petitioners would be entitled to the reliefs
demanded: The People are entitled to due process which requires an impartial
tribunal and an unbiased prosecutor. If the State is deprived of a fair opportunity
to prosecute and convict because certain material evidence is suppressed by
the prosecution and the tribunal is not impartial, then the entire proceedings
would be null and void. Petitioners prayed that the Sandiganbayan be
restrained from promulgating their decision as scheduled anew on December
2, 1985.
On December 5, 1985, the Court required the respondents to comment
on the motion for reconsideration but issued no restraining order. Thus, on
December 2, 1985, as scheduled, respondent Sandiganbayan issued its
decision acquitting all the accused of the crime charged, declaring them
innocent and totally absolving them of any civil liability. This marked another
unusual first in that respondent Sandiganbayan in effect convicted the very
victim Rolando Galman (who was not on trial) as the assassin of Ninoy contrary
to the very information and evidence submitted by the prosecution. In
opposition, respondents submitted that with the Sandiganbayan's verdict of
acquittal, the instant case had become moot and academic. On February 4,
1986, the same Court majority denied petitioners' motion for reconsideration for
lack of merit, with the writer and Justice Abad Santos maintaining our dissent.
On March 20, 1986, petitioners filed their motion to admit their second
motion for reconsideration attached therewith. The thrust of the second motion
for reconsideration was the startling and therefore unknown revelations of
Deputy Tanodbayan Manuel Herrera as reported in the March 6, 1986 issue of
the Manila Times entitled "Aquino Trial a Sham," that the then President had
ordered the respondents Sandiganbayan and Tanodbayan Bernardo
Fernandez and the prosecution panel headed by Herrera to whitewash the
criminal cases against the 26 respondents accused and produce a verdict of
acquittal.
cdrep
On April 3, 1986, the Court granted the motion to admit the second
motion for reconsideration and ordered the respondents to comment thereon. 15
Respondent Tanodbayan Bernardo Fernandez stated in his
Manifestation filed on April 11, 1986 that he had ceased to hold office as
Tanodbayan as of April 8, 1986 when he was replaced by the new Tanodbayan,
Raul M. Gonzales, but reiterating his position in his comment on the petition,
he added "relative to the reported alleged revelations of Deputy Tanodbayan
Manuel Herrera, herein respondent never succumbed to any alleged attempts
to influence his actuations in the premises,having instead successfully resisted
perceived attempts to exert pressure to drop the case after preliminary
investigation and actually ordered the filing and prosecution of the two (2)
murder cases below against herein private-party respondents." He candidly
admitted also in his memorandum: "There is not much that need be said about
the existence of pressure. That there were pressures can hardly be denied; in
fact, it has never been denied." 15-a He submitted that "even as he vehemently
denies insinuations of any direct or indirect complicity or participation in any
alleged attempt to supposedly whitewash the cases below, . . . should this
Honorable Court find sufficient cause to justify the reopening and retrial of the
cases below, he would welcome such development so that any wrong that had
been caused may be righted and so that, at the very least the actuations of
herein respondent in the premises may be reviewed and reexamined, confident
as he is that the end will show that he had done nothing in the premises that
violated his trust as Tanodbayan (Ombudsman)." New Tanodbayan Raul M.
Gonzales in his comment of April 14, 1986 "interposed no objection to the
reopening of the trial of the cases . . . as, in fact, he urged that the said cases
be reopened in order that justice could take its course."
Respondents Justices of the Sandiganbayan First Division in their
collective comment of April 9, 1986 stated that the trial of the criminal cases by
them was valid and regular and decided on the basis of evidence presented
and the law applicable, but manifested that "if it is true that the former
Tanodbayan and the Deputy Tanodbayan, Chief of the Prosecution Panel, were
pressured into suppressing vital evidence which would probably alter the result
of the trial, Answering Respondents would not interpose any objection to the
reopening of those cases, if only to allow justice to take its course." Respondent
Sandiganbayan Justice Bienvenido C. Vera Cruz, in a separate comment,
asserted that he passed no note to anyone; the note being bandied about is not
in his handwriting; he had nothing to do with the writing of the note or of any
note of any kind intended for any lawyer of the defense or even of the
prosecution; and requested for an investigation by this Court to settle the note-
passing issue once and for all.
Deputy Tanodbayan Manuel Herrera, in his comment of April 14, 1986
affirmed the allegations in the second motion for reconsideration that he
revealed that the Sandiganbayan Justices and Tanodbayan prosecutors were
ordered by Marcos to whitewash the Aquino-Galman murder case. He amplified
his revelations, as follows:
"1. AB INITIO, A VERDICT OF ACQUITTAL!
Incidents during the preliminary investigation showed ominous signs that
the fate of the criminal case on the death of Ex-Senator Benigno Aquino
and Rolando Galman on August 21, 1983 was dooned to an ignominous
end. Malacañang wanted dismissal — to the extent that a prepared
resolution was sent to the Investigating Panel (composed of the
undersigned, Fiscals Ernesto Bernabe and Leonardo Tamayo) for
signature. This, of course, was resisted by the panel, and a resolution
charging all the respondents as principals was forwarded to the
Tanodbayan on January 10, 1985.
2. MALACAÑANG CONFERENCE PLANNED SCENARIO OF TRIAL.
At 6:00 p.m. of said date (January 10) Mr. Ferdinand E. Marcos (the
former President) summoned to Malacañang Justice Bernardo Fernandez
(the Tanodbayan), Sandiganbayan Justice Manuel Pamaran (the
Presiding Justice) and all the members of the Panel.
Also present at the meeting were Justice Manuel Lazaro (the Coordinator)
and Mrs. Imelda R. Marcos, who left earlier, came back and left again.
The former President had a copy of the panel's signed resolution
(charging all accused as principals), evidently furnished him in advance,
and with prepared notes on the contents thereof. LLjur
The former President started by vehemently maintaining that Galman shot
Aquino at the tarmac. Albeit initially the undersigned argued against the
theory, to remain silent was the more discreet posture when the former
President became emotional (he was quite sick then).
During a good part of the conference, the former President talked about
Aquino and the communists, lambasting the Agrava Board, specially the
Legal Panel. Shifting to the military he rumbled on such statements as: 'It
will be bloody . . . Gen. Ramos, though close to me, is getting ambitious
and poor Johnny does not know what to do' . . . 'our understanding with
Gen. Ramos is that his stint is only temporary, but he is becoming
ambitious;' . . . 'the boys were frantic when they heard that they will be
charged in court, and will be detained at city jail.'
From outright dismissal, the sentiment veered towards a more pragmatic
approach. The former President more or less conceded that for political
and legal reasons all the respondents should be charged in court.
Politically, as it will become evident that the government was serious in
pursuing the case towards its logical conclusion, and thereby ease public
demonstrations; on the other hand, legally, it was perceived that after (not
IF) they are acquitted, double jeopardy would inure. The former President
ordered then that the resolution be revised by categorizing the
participation of each respondent.
In the matter of custody of the accused pendente lite the Coordinator was
ordered to get in touch with Gen. Narciso Cabrera, Gen. Vicente Eduardo
and Director Jolly Bugarin to put on record that they had no place in their
respective institutions. The existence of PD No. 1950 (giving custody to
commanding officers of members of AFP charged in court) was never
mentioned.
It was decided that the presiding justice (First Division) would personally
handle the trial, and assurance was made by him that it would be finished
in four to six months, pointing out that, with the recent effectivity of the
New Rules on Criminal Procedure, the trial could be expedited.
Towards the end of the two hour meeting and after the script had been
tacitly mapped out, the former President uttered: 'Magmoro-moro na lang
kayo.'
The parting words of the former President were: 'Thank you for your
cooperation. I know how to reciprocate.'
While still in the palace grounds on the way out, the undersigned
manifested his desire to the Tanodbayan to resign from the panel, or even
the office. This, as well as other moves to this effect, had always been
refused. Hoping that with sufficient evidence sincerely and efficiently
presented by the prosecution, all involves in the trial would be conscience-
pricked and realize the futility and injustice of proceeding in accordance
with the script, the undersigned opted to say on."
Herrera further added details on the "implementation of the script," such as the
holding of a "make-believe raffle" within 18 minutes of the filing of the
Informations with the Sandiganbayan at noon of January 23, 1985, while there
were no members of the media; the installation of TV monitors directly beamed
to Malacañang; the installation of a "war room" occupied by the military;
attempts to direct and stifle witnesses for the prosecution; the suppression of
the evidence that could be given by U.S. Airforce men about the "scrambling"
of Ninoy's plane; the suppression of rebuttal witnesses and the bias and
partiality of the Sandiganbayan; its cavalier disregard of his plea that it "should
not decide these cases on the merits without first making a final ruling on the
Motion for Inhibition;" and the Presiding Justice's over-kill with the declaration
that "the Court finds all accused innocent of the crimes charged in the two
informations, and accordingly, they incur neither criminal nor civil liability,"
adding that "in the almost twenty years that the undersigned has been the
prosecutor in the sala of the Presiding Justice this is the only occasion where
civil liability is pronounced in a decision of acquittal." He "associated himself
with the motion for reconsideration and likewise prayed that the proceedings in
the Sandiganbayan and its decision be declared null and void."
New Solicitor General Sedfrey Ordoñez' comment of April 25, 1986
submitted that a declaration of mistrial will depend on the veracity of the
evidence supportive of petitioners' claim of suppression of evidence and
collusion. He submitted that this would require reception of evidence by a Court-
appointed or designated commissioner or body of commissioners (as was done
in G.R. No. 71316, Fr. Romano case; and G.R. No. 61016, Morales case; and
G.R. No. 70054, Banco Filipino case); and that if petitioners' claim were
substantiated, a reopening of the double murder case is proper to avoid a
miscarriage of justice since the verdict of acquittal would no longer be a valid
basis for a double jeopardy claim. prLL
Respondents-accused opposed the second motion for reconsideration

and prayed for its denial. Respondent Olivas contended that the proper step for
the government was to file a direct action to annul the judgment of acquittal and
at a regular trial present its evidence of collusion and pressures.
As a whole, all the other respondents raised the issue of double jeopardy,
and invoked that the issues had become moot and academic because of the
rendition of the Sandiganbayan's judgment of acquittal of all respondents-
accused on December 2, 1985, with counsels for respondents Ver and Tigas,
as well as Olivas, further arguing that assuming that the judgment of acquittal
is void for any reason, the remedy is a direct action to annul the judgment where
the burden of proof falls upon the plaintiff to establish by clear, competent and
convincing evidence the cause of the nullity.
After petitioners had filed their consolidated reply, the Court resolved
per its resolution of June 5, 1986 to appoint a three-member commission
composed of retired Supreme Court Justice Conrado Vasquez, chairman, and
retired Intermediate Appellate Court Justices Milagros German and Eduardo
Caguioa as members, to hear and receive evidence, testimonial and
documentary, of the charges of collusion and pressures and relevant matters,
upon prior notice to all parties, and to submit their findings to this Court for
proper disposition. The Commission conducted hearings on 19 days, starting
on June 16, 1986 and ending on July 16, 1986. On the said last day,
respondents announced in open hearing that they decided to forego the
taking of the projected deposition of former President Marcos, as his
testimony would be merely corroborative of the testimonies of respondents
Justice Pamaran and Tanodbayan Fernandez. On July 31, 1986, it submitted
its extensive 64-page Report 16 wherein it discussed fully the evidence
received by it and made a recapitulation of its findings in capsulized form, as
follows:
"1. The Office of the Tanodbayan, particularly Justice Fernandez and the
Special Investigating Panel composed of Justice Herrera, Fiscal Bernabe
and Special Prosecutor Tamayo, was originally of the view that all of the
twenty-six (26) respondents named in the Agrava Board majority report
should all be charged as principals of the crime of double murder for the
death of Senator Benigno Aquino and Rolando Galman.
2. When Malacañang learned of the impending filing of the said charge
before the Sandiganbayan, the Special Investigating Panel having already
prepared a draft Resolution recommending such course of action,
President Marcos summoned Justice Fernandez, the three members of
the Special Investigating Panel, and Justice Pamaran to a conference in
Malacañang in the early evening of January 10, 1985.
3. In said conference, President Marcos initially expressed his
disagreement with the recommendation of the Special Investigating Panel
and disputed the findings of the Agrava Board that it was not Galman who
shot Benigno Aquino.
4. Later in the conference, however, President Marcos was convinced of
the advisability of filing the murder charge in court so that, after being
acquitted as planned, the accused may no longer be prosecuted in view
of the doctrine of double jeopardy.
5. Presumably in order to be assured that not all of the accused would be
denied bail during the trial, considering that they would be charged with
capital offenses, President Marcos directed that the several accused be
'categorized' so that some of them would merely be charged as
accomplices and accessories.
6. In addition to said directive, President Marcos ordered that the case be
handled personally by Justice Pamaran who should dispose of it in the
earliest possible time.
7. The instructions given in the Malacañang conference were followed to
the letter; and compliance therewith manifested itself in several specific
instances in the course of the proceedings, such as, the changing of the
resolution of the special investigating panel, the filing of the case with the
Sandiganbayan and its assignment to Justice Pamaran, suppression of
some vital evidence, harassment of witnesses, recantation of witnesses
who gave adverse testimony before the Agrava Board, coaching of
defense counsels, the hasty trial, monitoring of proceedings, and even in
the very decision rendered in the case.
8. That expression of President Marcos' desire as to how he wanted the
Aquino-Galman case to be handled and disposed of constituted sufficient
pressure on those involved in said task to comply with the same in the
subsequent course of the proceedings.
9. That while Justice Pamaran and Justice Fernandez manifested no
revulsion against complying with the Malacañang directive, Justice
Herrera played his role with manifestly ambivalent feelings.
10. Sufficient evidence has been ventilated to show a scripted and
predetermined manner of handling and disposing of the Aquino-Galman
murder case, as stage-managed from Malacañang and performed by
willing dramatis personnae as well as by recalcitrant ones whipped into
line by the omni-present influence of an authoritarian ruler."
The Commission submitted the following recommendation. prcd
"Considering the existence of adequate credible evidence showing that

the prosecution in the Aquino-Galman case and the Justices who tried
and decided the same acted under the compulsion of some pressure
which proved to be beyond their capacity to resist, and which not only
prevented the prosecution to fully ventilate its position and to offer all the
evidences which it could have otherwise presented, but also
predetermined the final outcome of the case, the Commission is of the
considered thinking and belief, subject to the better opinion and judgment
of this Honorable Court, that the proceedings in the said case have been
vitiated by lack of due process, and hereby respectfully recommends that
the prayer in the petition for a declaration of a mistrial in Sandiganbayan
Cases Nos. 10010 and 10011 entitled 'People vs. Luther Custodio, et al.,'
be granted."
The Court per its Resolution of July 31, 1986 furnished all the parties with
copies of the Report and required them to submit their objections thereto. It
thereafter heard the parties and their objections at the hearing of August 26,
1986 and the matter was submitted for the Court's resolution.
The Court adopts and approves the Report and its findings and holds on
the basis thereof and of the evidence received and appreciated by the
Commission and duly supported by the facts of public record and knowledge
set forth above and hereinafter, that the then President (code-named Olympus)
had stage-managed in and from Malacañang Palace "a scripted and
predetermined manner of handling and disposing of the Aquino-Galman murder
case;" and that "the prosecution in the Aquino-Galman case and the Justices
who tried and decided the same acted under the compulsion of some pressure
which proved to be beyond their capacity to resist, and which not only prevented
the prosecution to fully ventilate its position and to offer all the evidences which
it could have otherwise presented, but also predetermined the final outcome of
the case" of total absolution of the twenty-six respondents-accused of all
criminal and civil liability.
The Court finds that the Commission's Report (incorporated herein by
reference) and findings and conclusions are duly substantiated by the evidence
and facts of public record. Composed of distinguished members of proven
integrity with a combined total of 141 years of experience in the practice of law
(55 years) and in the prosecutoral and judicial services (86 years in the trial and
appellate courts), experts at sifting the chaff from the grain, 17 the Commission
properly appraised the evidences presented and denials made by public
respondents, thus:
"The desire of President Marcos to have the Aquino-Galman case
disposed of in a manner suitable to his purposes was quite
understandable and was but to be expected. The case had stirred
unprecedented public outcry and wide international attention. Not
invariably, the finger of suspicion pointed to those then in power who
supposedly had the means and the most compelling motive to eliminate
Senator Aquino. A day or so after the assassination, President Marcos
came up with a public statement aired over television that Senator Aquino
was killed not by his military escorts, but by a communist hired gun. It was,
therefore, not a source of wonder that President Marcos would want the
case disposed of in a manner consistent with his announced theory
thereof which, at the same time, would clear his name and his
administration of any suspected guilty participation in the assassination.
"The calling of the conference was undoubtedly to accomplish thus
purpose . . .
"President Marcos made no bones to conceal his purpose for calling them.
From the start, he expressed irritation and displeasure at the
recommendation of the investigating panel to charge all of the twenty-six
(26) respondents as principals of the crime of double murder. He insisted
that it was Galman who shot Senator Aquino, and that the findings of the
Agrava Board were not supported by evidence that could stand in court.
He discussed and argued with Justice Herrera on this point. Midway in the
course of the discussion, mention was made that the filing of the charge
in court would at least mollify public demands and possibly prevent further
street demonstrations. It was further pointed out that such a procedure
would be a better arrangement because, if the accused are charged in
court and subsequently acquitted, they may claim the benefit of the
doctrine of double jeopardy and thereby avoid another prosecution if some
other witnesses shall appear when President Marcos is no longer in office.
xxx xxx xxx
"After an agreement was reached as to filing the case, instead of
dismissing it, but with some of the accused to be charged merely as
accomplices or accessories, and the question of preventive custody of the
accused having thereby received satisfactory solution, President Marcos
took up the matter of who would try the case and how long it would take
to be finished.
"According to Justice Herrera, President Marcos told Justice Pamaran
'point blank' to personally handle the case. This was denied by Justice
Pamaran. No similar denial was voiced by Justice Fernandez in the entire
course of his two-day testimony. Justice Pamaran explained that such
order could not have been given inasmuch as it was not yet certain then
that the Sandiganbayan would try the case and, besides, cases therein
are assigned by raffle to a division and not to a particular Justice thereof.
"It was preposterous to expect Justice Pamaran to admit having received
such presidential directive. His denial, however, falls to pieces in the light
of the fact that the case was indeed handled by him after being assigned
to the division headed by him. A supposition of mere coincidence is at
once dispelled by the circumstance that he was the only one from the
Sandiganbayan called to the Malacañang conference wherein the said
directive was given . . .
"The giving of such directive to Justice Pamaran may also be inferred
from his admission that he gave President Marcos the possible time
frame when asked as to how long it would take him to finish the case.
"The testimony of Justice Herrera that, during the conference, and after
an agreement was reached on filing the case and subsequently acquitting
the accused,President Marcos told them 'Okay, mag moro-moro na
lamang kayo;' and that on their way out of the room President Marcos
expressed his thanks to the group and uttered 'I know how to reciprocate,'
did not receive any denial or contradiction either on the part of Justice
Fernandez or Justice Pamaran. (No other person present in the
conference was presented by the respondents. Despite an earlier
manifestation by the respondents of their intention to present Fiscal
Bernabe and Prosecutor Tamayo, such move was abandoned without any
reason having been given therefor.).
"The facts set forth above are all supported by the evidence on record. In
the mind of the Commission, the only conclusion that may be drawn
therefrom is that pressure from Malacañang had indeed been made to
bear on both the court and the prosecution in the handling and disposition
of the Aquino-Galman case. The intensity of this pressure is readily
deductible from the personality of the one who exerted it, his moral and
official ascendancy over those to whom his instructions were directed, the
motivation behind such instructions, and the nature of the government
prevailing at that time which enabled the then head of state to exercise
authoritarian powers. That the conference called to script or stage-
manage the prosecution and trial of the Aquino-Galman case was
considered as something anomalous that should be kept away from the
public eye is shown by the effort to assure its secrecy. None but those
directly involved were called to attend. The meeting was held in an inner
room of the Palace. Only the First Lady and Presidential Legal Assistant
Justice Lazaro were with the President. The conferees were told totake
the back door in going to the room where the meeting was held,
presumably to escape notice by the visitors in the reception hall waiting to
see the President. Actually, no public mention was ever made of this
conference until Justice Herrera made his expose some fifteen (15)
months later when the former President was no longer around.
"President Marcos undoubtedly realized the importance of the matter he
wanted to take up with the officials he asked to be summoned. He had to
do it personally, and not merely through trusted assistants. The lack of will
or determination on the part of Justice Fernandez and Justice Pamaran to
resist the presidential summons despite their realization of its
unwholesome implications on their handling of the celebrated murder
case may be easily inferred from their unquestioned obedience thereto.
No effort to resist was made, despite the existence of a most valid reason
to beg off, on the lame excuses that they went there out of 'curiosity,' or
'out of respect to the Office of the President,' or that it would be
'unbecoming to refuse a summons from the President.' Such frame of
mind only reveals their susceptibility to presidential pressure and lack of
capacity to resist the same. The very acts of being summoned to
Malacañang and their ready acquiescence thereto under the
circumstances then obtaining, are in themselves pressure dramatized and
exemplified. Their abject deference to President Marcos may likewise be
inferred from the admitted fact that, not having been given seats during
the two-hour conference (Justice Fernandez said it was not that long, but
did not say how long) in which President Marcos did the talking most of
the time, they listened to him on their feet. Verily, it can be said that any
avowal of independent action or resistance to presidential pressure
became illusory from the very moment they stepped inside Malacañang
Palace on January 10, 1985." 18
The Commission pinpointed the crucial factual issue thus: "the more
significant inquiry is on whether the Sandiganbayan and the Office of the
Tanodbayan actually succumbed to such pressure, as may be gauged by their
subsequent actuations in their respective handling of the case." It duly
concluded that "the pressure exerted by President Marcos in the conference
held on January 10, 1985 pervaded the entire proceedings of the Aquino-
Galman [murder] cases" as manifested in several specific incidents and
instances it enumerated in the Report under the heading of "Manifestations of
Pressure and Manipulation."
Suffice it to give hereinbelow brief excerpts: —
1. The changing of the original Herrera panel draft Resolution charging
all the twenty-six accused as principals by conspiracy by categorizing and
charging 17 as principals, Generals Ver and Olivas and 6 others as accessories
and the civilian as accomplice, and recommending bail for the latter two
categories: "The categorization may not be completely justified by saying that,
in the mind of Justice Fernandez, there was no sufficient evidence to justify that
all of the accused be charged as principals. The majority of the Agrava Board
found the existence of conspiracy and recommended that all of the accused be
charged accordingly. Without going into the merit of such finding, it may hardly
be disputed that, in case of doubt, and in accordance with the standard practice
of the prosecution to charge accused with the most serious possible offense or
in the highest category so as to prevent an incurable injustice in the event that
the evidence presented in the trial will show his guilt of the graver charge, the
most logical and practical course of action should have been, as originally
recommended by the Herrera panel, to charge all the accused as principals. As
it turned out, Justice Fernandez readily opted for categorization which, not
surprisingly, was in consonance with the Malacañang instruction." It is too much
to attribute to coincidence that such unusual categorization came only after the
then President's instruction at Malacañang when Gen. Ver's counsel Atty.
Coronel, had been asking the same of Tanodbayan Fernandez since
November, 1984; and "Justice Fernandez himself, admit(ted) that, as of that
time, [the Malacañang conference on January 10, 1985], his own view was in
conformity with that of the Special Investigating Panel to charge all of the
twenty-six (26) respondents as principals of the crime of double murder. 19 As
the Commission further noted, "Justice Fernandez never denied the claim of
Justice Herrera that the draft resolution of January 10, 1985 (Exhibit 'B-1')
[charging all 26 accused as principals] was to have been the subject of a press
conference on the afternoon of said date which did not go through due to the
summons for them to go to Malacañang in the early evening of said date." 20
2. Suppression of vital evidence and harassment of witnesses:
"Realizing, no doubt, that a party's case is as strong as the evidence it can
present, unmistakable and persistent efforts were exerted in behalf of the
accused to weaken the case of the prosecution and thereby assure and justify
[the accused's] eventual scripted acquittal. Unfavorable evidences were sought
to be suppressed, and some were indeed prevented from being ventilated.
Adverse witnesses were harassed, cajoled, perjured or threatened either to
refrain from testifying or to testify in a manner favorable to the defense."
The Report specified the ordeals of the prosecution witnesses: 21 Cesar
Loterina, PAL employee, Roberta Masibay, Galman's step-daughter who
recanted their testimonies before the Fact Finding Board and had to be
discarded as prosecution witnesses before at the trial. Witnesses Viesca and
Rañas who also testified before the Board "disappeared all of a sudden and
could not be located by the police. The Commission narrated the efforts to
stifle Kiyoshi Wakamiya, eyewitness who accompanied Ninoy on his fateful
flight on August 21, 1983 and described them as "palpable, if crude and
display(ing) sheer abuse of power." Wakamiya was not even allowed to return
to Manila on August 20, 1984 to participate in the first death anniversary of
Ninoy but was deported as an undesirable alien and had to leave on the next
plane for Tokyo. The Board had to go to Tokyo to hear Wakamiya give his
testimony before the Japanese police in accordance with their law and
Wakamiya claimed before the Commission that the English transcription of his
testimony, as prepared by an official of the Philippine Embassy in Tokyo, was
inaccurate and did not correctly reflect the testimony he gave "although there
was no clear showing of the discrepancy from the original transcription which
was in Nippon-go. Upon his arrival at the MIA on August 21, 1985 on invitation
of Justice Herrera to testify at the ongoing trial, "a shot was fired and a soldier
was seen running away by media men who sought to protect Wakamiya from
harm by surrounding him." Wakamiya was forced by immigration officials to
leave the country by Saturday (August 24th) notwithstanding Herrera's request
to let him stay until he could testify the following Monday (August 26th). In the
case of principal eyewitness Rebecca Quijano, the Commission reported that Cdpr
". . . Undoubtedly in view of the considerable significance of her proposed

testimony and its unfavorable effect on the cause of the defense, the
efforts exerted to suppress the same was as much as, if not more than
those in the case of Wakamiya . . . She recounted that she was in constant
fear of her life, having been hunted by armed men; that their house in
Tabaco, Albay was ransacked, her family harassed by the foreclosure of
the mortgage on their house by the local Rural Bank, and ejected
therefrom when she ignored the request of its manager to talk with her
about her proposed testimony; that a certain William Fariñas offered her
plane tickets for a trip abroad; that Mayor Rudy Fariñas of Laoag City kept
on calling her sister in the United States to warn her not to testify; that,
later, Rudy and William Fariñas offered her two million pesos supposedly
coming from Bongbong Marcos, a house and lot in Baguio, the dropping
of her estafa case in Hongkong, and the punishment of the persons
responsible for the death of her father, if she would refrain from testifying.
"It is a matter of record, however, that despite such cajolery and
harassments, or perhaps because of them, Ms. Quijano eventually
testified before the Sandiganbayan. Justice Herrera was told by Justice
Fernandez of the displeasure expressed by Olympus at Justice Herrera's
going out of his way to make Ms. Quijano to testify, and for his refusal to
honor the invitation to attend the birthday party of the First Lady on May
1, 1985, as on the eve of Ms. Quijano's testimony on May 2, 1985. The
insiduous attempts to tamper with her testimony, however, did not end
with her taking the witness stand. In the course of her testimony several
notes were passed to Atty. Rodolfo Jimenez, the defense counsel who
cross-examined her, one of which suggested that she be asked more
questions about Dean Narvasa who was suspected of having coached her
as to what to declare (Exhibit 'D'); and on another occasion, at a crucial
point in her testimony, a power brownout occurred; which lasted for about
twenty minutes, throwing the courtroom into darkness, and making most
of those present to scamper for safety, and Ms. Quijano to pass over the
railing of the rostrum so as to be able to leave the courtroom. It was
verified that the brownout was limited to the building housing the
Sandiganbayan, it not having affected the nearby Manila City Hall and the
Finance Building Justice Herrera declared that the main switchboard of
the Sandiganbayan electrical system was located beside the room
occupied by Malacañang people who were keeping track of the
proceedings."
Atty. Lupino Lazaro for petitioners further made of record at that August
26th hearing that the two Olivas sisters, Ana and Catherine (hospitality girls)
disappeared on September 4, 1984, two weeks after Ninoy's assassination.
And the informant, by the name of Evelyn (also a hospitality girl) who jotted
down the number of the car that took them away, also disappeared. On January
29, 1984, during the proceedings of the Board, Lina Galman, the common-law
wife of Rolando Galman, was kidnapped together with a neighbor named
Rogelio Taruc. They have been missing since then, despite his attempts to find
any of them. According to him, "nobody was looking for these five persons
because they said Marcos was in power [despite his appeal to the Minister of
National Defense to locate them]. Today, still no one is looking for these
people." And he appealed to the new leadership for its assistance in learning
their fate.
3. The discarding of the affidavits executed by U.S. airmen: "While it is
true that the U.S. airmen's proposed testimonies would show an attempt of the
Philippine Air Force to divert the plane to Basa Airfield or some other place,
such showing would not necessarily contravene the theory of the prosecution,
nor the actual fact that Senator Aquino was killed at the Manila International
Airport. Justice Herrera had accurately pointed out that such attempt of
scrambling Aquino's plane merely showed a 'wider range of conspiracy,' it
being possibly just one of two or three other plans designed to accomplish the
same purpose of liquidating Senator Aquino. In any event, even assuming that
the said piece of evidence could go either way, it may not be successfully
contended that it was prudent or wise on the part of the prosecution to totally
discard the said piece of evidence. Despite minor inconsistencies contained
therein, its introduction could have helped the cause of the prosecution. If it
were not so, or that it would even favor the defense, as averred by Justice
Fernandez, the determined effort to suppress the same would have been totally
uncalled for.LLjur
"4. Nine proposed rebuttal witnesses not presented

5. The failure to exhaust available remedies against adverse
developments: "When the Supreme Court denied the petition of Justice
Fernandez [against the exclusion of the testimonies given by the military
respondents headed by Gen. Ver before the Fact Finding Board], the
latter almost immediately announced to media that he was not filing a motion
for the reconsideration of said denial, for the reason that it would be futile to do
so and foolhardy to expect a favorable action on the same . . . His posture . . .
is, in the least, indicative that he was living up to the instruction of finishing the
trial of the case as soon as possible, if not of something else.
"6. The assignment of the case to Presiding Justice Pamaran: "Justice
Herrera testified that President Marcos ordered Justice Pamaran point-blank to
handle the case. The pro-forma denial by Justice Pamaran of such instruction
crumbles under the actuality of such directive having been complied with to the
letter . . .
"Justice Pamaran sought to discredit the claim that he was ordered by
President Marcos to handle the case personally by explaining that cases
in the Sandiganbayan are assigned by raffle and not to a particular
Justice, but to a division thereof. The evidence before the Commission on
how the case happened to be assigned to Justice Pamaran evinces a
strong indication that such assignment was not done fairly or regularly.
"There was no evidence at all that the assignment was indeed by virtue of
a regular raffle, except the uncorroborated testimony of Justice Pamaran
. . . Despite an announcement that Justice Escareal would be
presented by the respondents to testify on the contents of his aforesaid
Memorandum, such was not done. No reason was given why Justice
Escarel could not, or would not like to testify. Neither was any one of the
officials or employees of the Sandiganbayan who, according to Justice
Pamaran, were present during the supposed raffle, presented to
corroborate the claim of Justice Pamaran as regards the said raffle.
xxx xxx xxx
"It is also an admitted fact that the two Informations in the double murder
case were filed by Justice Herrera on January 23, 1985, at 12:02 p.m.,
and the members of the Raffle Committee were summoned at 12:20 p.m.
or only 18 minutes after the filing of the two Informations. Such speed in
the actual assignment of the case can truly be categorized as unusual, if
not extraordinary, considering that before a case filed may be included in
the raffle, there is need for a certain amount of paper work to be
undertaken. If such preliminary requirements were done in this case within
the limited time available therefor, the charge that the raffle was rushed to
avoid the presence of media people would ring with truth.
"What is more intriguing is the fact that although a raffle might have been
actually conducted which resulted in the assignment of the case to the
First Division of the Sandiganbayan, the Commission did not receive any
evidence on how or why it was handled personally by Justice Pamaran
who wrote the decision thereof, and not by any one of the two other
members of his division . . ."
7. The custody of the accused; their confinement in a military camp,
instead of in a civilian jail: "When the question of custody came up after the
case was filed in the Sandiganbayan, the latter issued an order directing the
confinement of the accused in the City Jail of Manila. This order was not carried
out in view of the information given by the Warden of the City Jail that there was
no space for the twenty-six accused in said jail. The same information was given
when the custody was proposed to be given to the National Penitentiary in
Muntinglupa and to the National Bureau of Investigation. At that point, the
defense came up with Presidential Decree No. 1950A which authorizes the
custody of the accused military personnel with their respective Commanding
Officers. Justice Herrera claimed that the said Presidential Decree was not
known even to the Tanodbayan Justice Fernandez who had to call up the then
Minister of Justice Estelito Mendoza to request a copy of the same, and was
given such copy only after sometime . . .
8. The monitoring of proceedings and developments from Malacañang
and by Malacañang personnel. "There is an uncontradicted evidence that the
progress of the proceedings in the Sandiganbayan as well as the developments
of the case outside the Court had been monitored by Malacañang presumably
for it to know what was happening and to take remedial measures as may be
necessary, Justice Pamaran had candidly admitted that television cameras
"boldly carrying the label of 'Office of the President of the Philippines'" were
installed in the courtroom for that purpose. There was a room in the
Sandiganbayan, mischievously called 'war room', wherein military and
Malacañang personnel stayed to keep track of the proceedings," the close
monitoring by Malacañang showed its results oh several occasions specified in
the Report. Malacañang was immediately aware of the Japanese witness
Wakamiya's presence in Justice Herrera's office on August 21, 1985 and
forestalled the giving of his testimony by having the Japanese Embassy advise
Wakamiya to leave the country at once. Likewise, Col. Balbino Diego,
Malacañang intelligence chief, suddenly appeared at the National Bureau of
Investigation office when the "crying lady" Rebecca Quijano was brought there
by NBI agents for interrogation and therein sought to obtain custody of her. "It
is likewise an undisputed fact," the Commission noted "that several military
personnel pretended to be deputy sheriffs of the Sandiganbayan and attended
the trials thereof in the prescribed deputy sheriffs' uniforms." The Commission's
inescapable finding: "It is abundantly clear that President Marcos did not only
give instructions as to how the case should be handled. He saw to it that he
would know if his instructions will be complied with.
9. Partiality of Sandiganbayan betrayed by its decision: "That President
Marcos had wanted all of the twenty-six accused to be acquitted may not be
denied. The disposal of the case in said manner is an integral part of the
scenario which was cleverly designed to accomplish two principal objectives,
seemingly conflicting in themselves, but favorable both to then administration
and to the accused; to wit, [1] the satisfaction of the public clamor for the
suspected killers of Senator Aquino to be charged in court, and [2] the
foreclosure of any possibility that they may again be prosecuted for the same
offense in the event that President Marcos shall no longer be in power.
"In rendering its decision, the Sandiganbayan overdid itself in favoring
the presidential directive. Its bias and partiality in favor of the accused was
glaringly obvious. The evidence presented by the prosecution was totally
ignored and disregarded. . . . It was deemed not sufficient to simply acquit all
of the twenty-six accused on the standard ground that their guilt had not been
proven beyond reasonable doubt, as was the most logical and appropriate way
of justifying the acquittal in the case, there not being a total absence of evidence
that could show guilt on the part of the accused. The decision had to pronounce
them 'innocent of the crime charged on the two informations, and accordingly,
they incur neither criminal nor civil liability.' It is a rare phenomenon to see a
person accused of a crime to be favored with such total absolution. . . .
"Doubt on the soundness of the decision entertained by one of the two
justices who concurred with the majority decision penned by Justice Pamaran
wasrevealed by Justice Herrera who testified that in October, 1985, when the
decision was being prepared, Justice Augusto Amores told him that he was of
the view that some of the accused should be convicted, he having found
difficulty in acquitting all of them; however, he confided to Justice Herrera that
Justice Pamaran made it clear to him and Justice Vera Cruz that Malacañang
had instructions to acquit all of the twenty-six accused (TSN, July 17, 1986, p.
49). Justice Amores also told Justice Herrera that he would confirm this
statement (which was mentioned in Justice Herrera's comment to the Second
Motion for Reconsideration) if asked about it (TSN, June 19, 1986, pp. 92-
93). This testimony of Justice Herrera remained unrebutted." (Emphasis
supplied).
The record shows suffocatingly that from beginning to end, the then
President used, or more precisely, misused the overwhelming resources of the
government and his authoritarian powers to corrupt and make a mockery of the
judicial process in the Aquino-Galman murder cases. As graphically depicted
in the Report, supra, and borne out by the happenings (res ipsa loquitura 22 ),
since the resolution prepared by his "Coordinator," Manuel Lazaro, his
Presidential Assistant on Legal Affairs, for the Tanodbayan's dismissal of the
cases against all accused was unpalatable (it would summon the
demonstrators back to the streets 23 ) and at any rate was not acceptable to the
Herrera prosecution panel, the unholy scenario for acquittal of all 26 accused
after the rigged trial as ordered at the Malacañang conference, would
accomplish the two principal objectives of satisfaction of the public clamor for
the suspected killers to be charged in court and of giving them through their
acquittal the legal shield of double jeopardy. 24
Indeed, the secret Malacañang conference at which the authoritarian
President called together the Presiding Justice of the Sandiganbayan and
Tanodbayan Fernandez and the entire prosecution panel headed by Deputy
Tanodbayan Herrera and told them how to handle and rig (moro-moro) the trial
and the close monitoring of the entire proceedings to assure the pre-determined
ignominious final outcome are without parallel and precedent in our annals and
jurisprudence. To borrow a phrase from Ninoy's April 14, 1975 letter
withdrawing his petition for habeas corpus, 25 "This is the evil of one-man rule
at its very worst." Our Penal Codepenalizes "any executive officer who shall
address any order or suggestion to any judicial authority with respect to any
case or business coming within the exclusive jurisdiction of the courts of
justice." 26 His obsession for "the boys'" acquittal led to several first which
would otherwise be inexplicable: —
1. He turned his back on and repudiated the findings of the very Fact
Finding Board that he himself appointed to investigate the "national tragedy and
national shame" of the "treacherous and vicious assassination of Ninoy Aquino"
and "to ventilate the truth through free, independent and dispassionate
investigation by prestigious and free investigators.
"2. He cordially received the chairman with her minority report one day
ahead of the four majority members and instantly referred it to respondents "for
final resolution through the legal system" as if it were the majority and
controlling report; and rebuked the four majority members when they presented
to him the next day their report calling for the indictment of all 26 respondents
headed by Gens. Ver and Olivas (instead of the lesser seven under the
chairman's minority report).
3. From the day after the Aquino assassination to the dictated verdict of
acquittal, he totally disregarded the Board's majority and minority findings of
fact and publicly insisted that the military's "fall guy" Rolando Galman was the
killer of Ninoy Aquino and sought futilely to justify the soldiers' incompetence
and gross negligence to provide any security for Ninoy in contrast to their
alacrity in gunning down the alleged assassin Galman and sealing his lips.
4. The Sandiganbayan's decision (Pamaran, J. ponente) in effect
convicted Rolando Galman as Ninoy's assassin notwithstanding that he was
not on trial but the victim according to the very information filed, and evidence
to the contrary submitted, by the Herrera prosecution panel; and
5. Justice Pamaran's ponencia (despite reservations expressed by
Justice Amores who wanted to convict some of the accused) granted all 26
accused total absolution and pronounced them "innocent of the crimes charged
in the two informations, and accordingly, they incur neither criminal nor civil
liability," notwithstanding the evidence on the basis of which the Fact Finding
Board had unanimously declared the soldiers' version of Galman being
Aquino's killer a"perjured story, given deliberately and in conspiracy with one
another."
The fact of the secret Malacañang conference of January 10, 1985 at
which the authoritarian President discussed with the Presiding Justice of the
Sandiganbayan and the entire prosecution panel the matter of the imminent
filing of the criminal charges against all the twenty-six accused (as admitted by
respondent Justice Fernandez to have been confirmed by him to the then
President's "Coordinator" Manuel Lazaro on the preceding day) is not denied.
It is without precedent. This was illegal under our penal laws, supra. This
illegality vitiated from the very beginning all proceedings in the Sandiganbayan
court headed by the very Presiding Justice who attended. As the Commission
noted: "The very acts of being summoned to Malacañang and their ready
acquiescence thereto under the circumstances then obtaining, are in
themselves pressure dramatized and exemplified . . . Verily, it can be said that
any avowal of independent action or resistance to presidential pressure
became illusory from the very moment they stepped inside Malacañang Palace
on January 10, 1985." LLphil
No court whose Presiding Justice has received "orders or suggestions"

from the very President who by an amendatory decree (disclosed only at the
hearing of oral arguments on November 8, 1984 on a petition challenging the
referral of the Aquino-Galman murder cases to the Tanodbayan and
Sandiganbayan instead of to a court martial, as mandatory required by the
known P.D. 1850 at the time providing for exclusive jurisdiction of courts martial
over criminal offenses committed by military men 26-a ) made it possible to refer
the cases to the Sandiganbayan, can be an impartial court, which is the very
essence of due process of law. As the writer then wrote, "jurisdiction over cases
should be determined by law, and not by preselection of the Executive, which
could be much too easily transformed into a means of predetermining the
outcome of individual cases." 26-b This criminal collusion as to the handling and
treatment of the cases by public respondents at the secret Malacañang
conference (and revealed only after fifteen months by Justice Manuel Herrera)
completely disqualified respondent Sandiganbayan and voided ab initioits
verdict. This renders moot and irrelevant for now the extensive arguments of
respondents accused, particularly Generals Ver and Olivas and those
categorized as accessories, that there has been no evidence or witness
suppressed against them, that the erroneous conclusions of Olivas as police
investigator do not make him an accessory of the crimes he investigated and
the appraisal and evaluation of the testimonies of the witnesses presented and
suppressed. There will be time and opportunity to present all these arguments
and considerations at the remand and retrial of the cases herein ordered before
a neutral and impartial court. LLphil
The Supreme Court cannot permit such a sham trial and verdict and
travesty of justice to stand unrectified. The courts of the land under its aegis are
courts of law and justice and equity. They would have no reason to exist if they
were allowed to be used as mere tools of injustice, deception and duplicity to
subvert and suppress the truth, instead of repositories of judicial power whose
judges are sworn and committed to render impartial justice to all alike who seek
the enforcement or protection of a right or the prevention or redress of a wrong,
without fear or favor and removed from the pressures of politics and prejudice.
More so, in the case at bar where the people and the world are entitled to know
the truth, and the integrity of our judicial system is at stake. In life, as an accused
before the military tribunal Ninoy had pleaded in vain that as a civilian he was
entitled to due process of law and trial in the regular civil courts before an
impartial court with an unbiased prosecutor. In death, Ninoy, as the victim of
the "treacherous and vicious assassination" and the relatives and sovereign
people as the aggrieved parties plead once more for due process of law and a
retrial before an impartial court with an unbiased prosecutor. The Court is
constrained to declare the sham trial a mock trial — the non-trial of the century
— and that the predetermined judgment of acquittal was unlawful and void ab
initio.
1. No double jeopardy. — It is settled doctrine that double jeopardy
cannot be invoked against this Court's setting aside of the trial courts' judgment
of dismissal or acquittal where the prosecution which represents the sovereign
people in criminal cases is denied due process. As the Court stressed in the
1985 case of People vs. Bocar, 27
"Where the prosecution is deprived of a fair opportunity to prosecute and
prove its case, its right to due process is thereby violated. 27-a
"The cardinal precept is that where there is a violation of basic
constitutional rights, courts are ousted of their jurisdiction. Thus, the
violation of the State's right to due process raises a serious jurisdictional
issue (Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA
420 [Jan. 30, 1971] which cannot be glossed over or disregarded at will.
Where the denial of the fundamental right of due process is apparent, a
decision rendered in disregard of that right is void for lack of jurisdiction
(Aducayen vs. Flores, L-30370 [May 25, 19731, 51 SCRA 78; Shell Co.
vs. Enage, L-30111-12, 49 SCRA 416 Feb. 27, 1973]). Any judgment or
decision rendered notwithstanding such violation may be regarded as a
'lawless thing, which can be treated as an outlaw and slain at sight, or
ignored wherever it exhibits its head' (Aducayen vs. Flores, supra).
"Respondent Judge's dismissal order dated July 7, 1967 being null and
void for lack of jurisdiction, the same does not constitute a proper basis
for a claim of double jeopardy (Serino vs. Zosa, supra).
xxx xxx xxx
"Legal jeopardy attaches only (a) upon a valid indictment, (b) before a
competent court, (c) after arraignment, (d) a valid plea having been
entered; and (e) the case was dismissed or otherwise terminated without
the express consent of the accused (People vs. Ylagan, 58 Phil. 851). The
lower court was not competent as it was ousted of its jurisdiction when it
violated the right of the prosecution to due process.
"In effect, the first jeopardy was never terminated, and the remand of the
criminal case for further hearing and/or trial before the lower courts
amounts merely to a continuation of the first jeopardy, and does not
expose the accused to a second jeopardy."
More so does the rule against the invoking of double jeopardy hold in the
cases at bar where as we have held, the sham trial was but a mock trial where
the authoritarian president ordered respondents Sandiganbayan and
Tanodbayan to rig the trial and closely monitored the entire proceedings to
assure the predetermined final outcome of acquittal and total absolution as
innocent of all the respondents-accused. Notwithstanding the laudable efforts
of Justice Herrera which saw him near the end "deactivating" himself from the
case, as it was his belief that its eventual resolution was already a foregone
conclusion, they could not cope with the misuse and abuse of the overwhelming
powers of the authoritarian President to weaken the case of the prosecution, to
suppress its evidence, harass, intimidate and threaten its witnesses, secure
their recantation or prevent them from testifying. Fully aware of the
prosecution's difficulties in locating witnesses and overcoming their natural fear
and reluctance to appear and testify, respondent Sandiganbayan maintained a
"dizzying tempo" of the proceedings and announced its intention to terminate
the proceedings in about 6 months time or less than a year, pursuant to the
scripted scenario. The prosecution complained of "the Presiding Justice's
seemingly hostile attitude towards (it)" and their being the subject of warnings,
reprimand and contempt proceedings as compared to the nil situation for the
defense. Herrera likewise complained of being "cajoled into producing
witnesses and pressed on making assurances that if given a certain period,
they will be able to produce their witnesses," Herrera pleaded for "a reasonable
period of preparation of its evidence" and cited other pending cases before
respondent court that were pending trial for a much longer time where the
"dizzying tempo" and "fast pace" were not maintained by the
court. 28 Manifestly, the prosecution and the sovereign people were denied due
process of law with a partial court and biased Tanodbayan under the constant
and pervasive monitoring and pressure exerted by the authoritarian President
to assure the carrying out of his instructions. A dictated, coerced and scripted
verdict of acquittal such as that in the case at bar is a void judgment. In legal
contemplation, it is no judgment at all. It neither binds nor bars anyone. Such a
judgment is "a lawless thing which can be treated as an outlaw". It is a terrible
and unspeakable affront to the society and the people. To paraphrase
Brandeis: 29 If the authoritarian head of the government becomes the
lawbreaker, he breeds contempt for the law, he invites every man to become a
law unto himself, he invites anarchy. prLL
Respondents-accused's contention that the Sandiganbayan judgment of

acquittal ends the case which cannot be appealed or reopened, without being
put in double jeopardy was forcefully disposed of by the Court in People vs.
Court of Appeals, which is fully applicable here, as follows: "That is the general
rule and presupposes a valid judgment. As earlier pointed out, however,
respondent Courts' Resolution of acquittal was a void judgment for having been
issued without jurisdiction. No double jeopardy attaches, therefore. A void
judgment is, in legal effect, no judgment at all. By it no rights are divested.
Through it, no rights can be attained. Being worthless, all proceedings founded
upon it are equally worthless. It neither binds nor bars anyone. All acts
performed under it and all claims flowing out of it are void.
xxx xxx xxx
"Private respondent invoke 'justice for the innocent'. For justice to prevail,
the scales must balance. It is not to be dispensed for the accused alone. The
interests of the society, which they have wronged must also be equally
considered. A judgment of conviction is not necessarily a denial of justice. A
verdict of acquittal neither necessarily spells a triumph of justice. To the party
wronged, to the society offended, it could also mean injustice. This is where the
Courts play a vital role. They render justice where justice is due. 30
2. Motion to Disqualify/Inhibit should have been resolved ahead. — The
private prosecutors had filed a motion to disqualify and for inhibition of
respondents Justices of the Sandiganbayan on grounds of manifest bias and
partiality to the defense and arising from then Atty. (now Tanodbayan) Raul M.
Gonzales' charge that Justice Vera-Cruz had been passing coaching notes to
defense counsel. Justice Herrera had joined the motion and pleaded at the
hearing of June 25, 1985 and in the prosecution memorandum that respondent
Sandiganbayan "should not decide the case on the merits without first making
a final ruling on the Motion for Inhibition." Herrera quoted the exchange between
him and the Presiding Justice to show the latter's "following the script of
Malacañang" —
"PJ PAMARAN
"Well the court believes that we should proceed with the trial and then deal
later on with that. After all the most important thing here is, shall we say,
the decision of the case."
"J. HERRERA
I think more important than the decision of the case, Your Honor, is the
capacity of the Justices to sit in judgment. That is more important than
anything else." (p. 13 TSN, June 25, 1985) (Italics supplied by
Herrera)." 31
But the Sandiganbayan brushed aside Herrera's pleas and then wrongly
blamed him, in the decision, for supposedly not having joined the petition for
inhibition, contrary to the facts above-stated, as follows:
". . . the motion for inhibition above referred to related exclusively for the
contempt proceeding. Too, it must be remembered that the prosecution
neither joined that petition, nor did it at any time manifest a desire to file a
similar motion prior to the submission of these cases for decision. To do it
now is not alone out of season but is also a confession of official
insouciance." (Page 22, Decision). 32
The action for prohibition was filed in the Court to seek the disqualification
of respondents Justices pursuant to the procedure recognized by the Court in
the 1969 case of Paredes vs. Gopengco 33 since an adverse ruling by
respondent court might result in a verdict of acquittal, leaving the offended party
without any remedy nor appeal in view of the double jeopardy rule, not to
mention the overriding and transcendental public interest that would make out
a case of denial of due process to the People if the alleged failure on the part
of the Tanodbayan to present the complete evidence for the prosecution is
substantiated. 34
In this case, petitioners' motion for reconsideration of the abrupt dismissal
of their petition and lifting of the temporary restraining order enjoining the
Sandiganbayan from rendering its decision had been taken cognizance of by
the Court which had required the respondents', including the Sandiganbayan's,
comments. Although no restraining order was issued anew, respondent
Sandiganbayan should not have precipitately issued its decision of total
absolution of all the accused pending the final action of this Court. This is the
teaching of Valdez vs. Aquilizan 35 , wherein the court in setting aside the hasty
convictions, ruled that "prudence dictated that (respondent judge) refrain from
deciding the cases or at the very least to hold in abeyance the promulgation of
his decision pending action by this Court. But prudence gave way to
imprudence; the respondent judge acted precipitately by deciding the cases
[hastily without awaiting this Court's action]. All of the acts of the respondent
judge manifest grave abuse of discretion on his part amounting to lack of
jurisdiction which substantively prejudiced the petitioner."
3. Re: Objections of respondents. — The other related objections of
respondents' counsels must be rejected in the face of the Court's declaration
that the trial was a mock trial and that the predetermined judgment of acquittal
was unlawful and void ab initio.
(a) It follows that there is no need to resort to a direct action to annul the
judgment, instead of the present action which was timely filed initially to declare
a mistrial and to enjoin the rendition of the void judgment. And after the hasty
rendition of such judgment for the declaration of its nullity, following the
presentation of competent proof heard by the Commission and the Court's
findings therefrom that the proceedings were from the beginning vitiated not
only by lack of due process but also by the collusion between the public
respondents (court and Tanodbayan) for the rendition of a predetermined
verdict of acquitting all the twenty-six respondents-accused. cdll
(b) It is manifest that this does not involve a case of mere irregularities in
the conduct of the proceedings or errors of judgment which do not affect the
integrity or validity of the judgment or verdict.
(c) The contention of one of defense counsel that the State and the
sovereign people are not entitled to due process is clearly erroneous and
contrary to the basic principles and jurisprudence cited hereinabove.
(d) The submittal of respondents-accused that they had not exerted the
pressure applied by the authoritarian president on public respondents and that
no evidence was suppressed against them must be held to be untenable in the
wake of the evil plot now exposed for their preordained wholesale exoneration.
(e) Respondents' invocation of the writer's opinion in Luzon Brokerage
Co., Inc. vs. Maritime Bldg. Co., Inc. 36 is inappropriate. The writer therein held
that a party should be entitled to only one Supreme Court and may not
speculate on vital changes in the Court's membership for review of his lost case
once more, since public policy and sound practice demand that litigation be put
to an end and no second pro forma motion for reconsideration reiterating the
same arguments should be kept pending so long (for over six (6) years and one
(1) month since the denial of the first motion for reconsideration). This opinion
cannot be properly invoked, because here, petitioners' second motion for
reconsideration was filed promptly on March 20, 1986 following the denial under
date of February 4th of the first motion for reconsideration and the same was
admitted per the Court's Resolution of April 3, 1986 and is now being resolved
within five months of its filing after the Commission had received the evidence
of the parties who were heard by the Court only last August 26th. Then, the
second motion for reconsideration is based on an entirely new material ground
which was not known at the time of the denial of the petition and filing of the
first motion for reconsideration, i.e, the secret Malacañang conference on
January 10, 1985 which came to light only fifteen months later in March, 1986
and showed beyond per-adventure (as proved in the Commission hearings) the
merits of the petition and that the authoritarian president had dictated and
predetermined the final outcome of acquittal. Hence, the ten members of the
Court (without any new appointees) unanimously voted to admit the second
motion for reconsideration. 37
4. With the declaration of nullity of the proceedings, the cases must now
be tried before an impartial court with an unbiased prosecutor. — There has
been the long dark night of authoritarian regime, since the fake ambush in
September, 1972 of then Defense Secretary Juan Ponce Enrile (as now
admitted by Enrile himself) was staged to trigger the imposition of martial law
and authoritarian one-man rule, with the padlocking of Congress and the
abolition of the office of the Vice-President.
As recently retired Senior Justice Vicente Abad Santos recalled in his
valedictory to the new members of the Bar last May, "In the past few years, the
judiciary was under heavy attack by an extremely powerful executive. During
this state of judicial siege, lawyers both in and outside the judiciary perceptively
surrendered to the animus of technicality. In the end, morality was overwhelmed
by technicality, so that the latter emerged ugly and naked in its true
manifestation."
Now that the light is emerging, the Supreme Court faces the task of
restoring public faith and confidence in the courts. The Supreme Court enjoys
neither the power of the sword nor of the purse. Its strength has mainly in public
confidence, based on the truth and moral force of its judgments. This has been
built on its cherished traditions of objectivity and impartiality, integrity and
fairness and unswerving loyalty to the Constitution and the rule of law which
compels acceptance as well by the leadership as by the people. The lower
courts draw their bearings from the Supreme Court. With this Court's judgment
today declaring the nullity of the questioned judgment or acquittal and directing
a new trial, there must be a rejection of the temptation of becoming instruments
of injustice as vigorously as we rejected becoming its victims. The end of one
form of injustice should not become simply the beginning of another. This
simply means that the respondents accused must now face trial for the crimes
charged against them before an impartial court with an unbiased prosecutor
with all due process. What the past regime had denied the people and the
aggrieved parties in the sham trial must now be assured as much to the
accused as to the aggrieved parties. The people will assuredly have a way of
knowing when justice has prevailed as well as when it has failed. cdrep
The notion nurtured under the past regime that those appointed to public
office owe their primary allegiance to the appointing authority and are
accountable to him alone and not to the people or the Constitution must be
discarded. The function of the appointing authority with the mandate of the
people, under our system of government, is to fill the public posts. While the
appointee may acknowledge with gratitude the opportunity thus given of
rendering public service, the appointing authority becomes functus officio and
the primary loyalty of the appointed must be rendered to the Constitution and
the sovereign people in accordance with his sacred oath of office. To
paraphrase the late Chief Justice Earl Warren of the United States Supreme
Court, the Justices and judges must ever realize that they have no constituency,
serve no majority nor minority but serve only the public interest as they see it in
accordance with their oath of office, guided only the Constitution and their own
conscience and honor.
5. Note of Commendation. — The Court expresses its appreciation with
thanks for the invaluable services rendered by the Commission composed of
retired Supreme Court Justice Conrado M. Vasquez, chairman, and retired
Court of Appeals Justices Milagros German and Eduardo Caguioa as
members. In the pure spirit of public service, they rendered selflessly and
without remuneration thorough, competent and dedicated service in
discharging their tasks of hearing and receiving the evidence, evaluating the
same and submitting their Report and findings to the Court within the scheduled
period and greatly easing the Court's burden.
ACCORDINGLY, petitioners' second motion for reconsideration is
granted. The resolutions of November 28, 1985 dismissing the petition and of
February 4, 1986 denying petitioners' motion for reconsideration are hereby set
aside and in lieu thereof, judgment is hereby rendered nullifying the
proceedings in respondent Sandiganbayan and its judgment of acquittal in
Criminal Cases Nos. 10010 and 10011 entitled "People of the Philippines vs.
Gen. Luther Custodio, et al." and ordering a re-trial of the said cases which
should be conducted with deliberate dispatch and with careful regard for the
requirements of due process, so that the truth may be finally known and justice
done to all.
This resolution is immediately executory. SO ORDERED.
Yap, Cruz, Paras and Feliciano, JJ., concur.
Feria, Fernan and Narvasa, JJ., took no part.
Feliciano, J., I join Gutierrez, Jr., J., in his statements in the last three
paragraphs (prior to the dispositive paragraph) of his Separate Concurring
Opinion.
Separate Opinions
MELENCIO-HERRERA, J., concurring:
Consistent with what I had perceived as the need to establish the truth
behind the vicious assassination of the late Senator Benigno Aquino, as
expressed in my dissenting opinion in Galman vs. Pamaran (138 SCRA 294,
379 [1985]), and so that justice may be done, I vote for the re-trial prayed for by
petitioners.
There is reason to believe that some vital evidence had been suppressed
by the prosecution, or that it had disregarded, as immaterial or irrelevant,
evidence which, if presented, could affect the outcome of the case. As it is, the
prosecution failed to fully ventilate its position and to lay out before respondent
Court all the pertinent facts which could have helped that Court in arriving at a
just decision. It had, thus, failed in its task.
"A public prosecutor is 'the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is
as compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a case but that
justice shall be done. As such, he is in a peculiar and every definite sense
the servant of the law, the two fold aim of which is that guilt shall not
escape or innocence suffer." [Italics ours] (Suarez vs. Platon, 69 Phil 556
[1940]).
"He owes the state, the court and the accused the duty to lay before the
court the pertinent facts at his disposal with methodical and meticulous
attention, clarifying contradictions and filling up gaps and loopholes in his
evidence to the end that the court's mind may not be tortured by doubts,
the innocent may not suffer, and the guilty may not escape unpunished"
(People vs. Esquivel, 82 Phil. 453 [1948]).
Respondent Court, in showing partiality for the accused from beginning
to end, from the raffle of the subject cases to the promulgation of judgment,
which absolved the accused, en masse, from any and all liability, is equally
culpable for miscarriage of justice. Due process of law, which "requires a
hearing before an impartial and disinterested tribunal" and the right of every
litigant to "nothing less than the cold neutrality of an impartial Judge" (Gutierrez
vs. Santos, 112 Phil. 184 [1961]; Castillo vs. Juan, 62 SCRA 124 [1975]), was
violated.prLL
The proceedings below, having been vitiated by lack of due process, to

the detriment of the State and the People, were invalid and the judgment
rendered null and void ab initio. There having been no trial at all in
contemplation of law, there is likewise no judgment on which a plea of double
jeopardy may be based. "To entitle the accused to the plea of former jeopardy,
the proceedings must have been valid (State vs. Bartlett, 164 N.W., 757; State
vs. O'Day 185 So. 290). The lack of any fundamental requisite which would
render void the judgment would make ineffective a plea of jeopardy based on
such proceedings (Steen vs. State, 242 S.W. 1047).
The accused, however, argue that double jeopardy attaches for, even
assuming without conceding, that pressure and collusion did take place, they
were not a party to the same; and, for those who were charged only either as
accomplices or accessories, they contend that their alleged offense involved
only a cover-up in the investigation of the crimes so that, whatever pressure
was exerted could only have benefited the principals, consequently, to subject
them to a re-trial is to put them twice in jeopardy.
It is true that where an accused was not a party to the fraud, a conviction
secured fraudulently by the State's officer cannot be avoided by the state (State
vs. Heflin, 96 So. 459,19 Ala. App. 222). However, that exception is inapplicable
to the cases at bar where both the prosecution and the Trial Court itself were
parties to the fraud and collusion. Nor can it be said that the accused were not
a part thereof. The agreement to file the murder charge in Court so that, after
being acquitted as planned, the accused could no longer be prosecuted under
the doctrine of double jeopardy; the "categorization" of the accused into
principals, accomplices and accessories so that not all of them would be denied
bail during the trial, were fraudulently conceived for their benefit and for the
purpose of protecting them from subsequent prosecution. It is, thus, no bar to
a subsequent prosecution for the same offense (Coumas vs. Superior Court,
192 P. 2d. 449, 452, 31 C. 2d. 682). "A verdict of acquittal procured by the
accused by fraud and collusion is a nullity and does not put him in jeopardy;
and consequently, it is no bar to a second trial for the same offense (State vs.
Lee, 30A. 1110, 65 Conn. 265, 48 Am. S.R. 202, 27 L. RA. 498).
The proceedings below having been fatally flawed by pressure, fraud and
collusion, with the legal consequence that there was no trial and judgment to
speak of, and under the circumstances peculiar only to these cases, I vote for
a re-trial in the interest of truth and the ends of public justice. As in all criminal
proceedings, however, the accused must be guaranteed a fair, speedy, and
impartial re-trial before an unbiased Tribunal and prosecutor and, I might add,
safeguarded against trial by publicity.
ALAMPAY, J., concurring:
Considering that certain significant facts and circumstances not

previously disclosed to the Court were found by the Commission constituted by
this Court, purposely to inquire and ascertain the veracity of the same, to be
duly established by sufficient evidence and are indicative of "a scripted and
predetermined manner of handling and disposing of the Aquino-Galman murder
case . . .;" and that there exists "adequate credible evidence showing that the
prosecution in the Aquino-Galman case and the Justices who tried and decided
the same acted under the compulsion of some pressure which proved to be
beyond their capacity to resist and which not only prevented the prosecution to
fully ventilate its position and to offer all the evidences it could have otherwise
presented, but also predetermined the outcome of the case; . . ." I join in
granting petitioners' second motion for reconsideration.
In my considered view, the ends of Justice will be best served by allowing
the trial anew of the subject cases in order to ultimately obtain a judgment that
will be removed from any suspicion of attendant irregularities. With the greatest
significance being given by our people to the said cases, which are evidently of
historical importance, I am readily persuaded that it is to our national interest
that all relevant evidence that may be now available be provided an opportunity
to be received and made known so that whatever is the actual truth can be
rightfully ascertained.
I, therefore, vote for a declaration of mistrial and for nullifying the
proceedings of the referred Criminal Cases Nos. 10010 and 10011 before the
Sandiganbayan and the ordering of a re-trial.
GUTIERREZ, JR., J., concurring:
On November 28, 1985, this Court dismissed the petition for certiorari
and prohibition with preliminary injunction and lifted a Temporary Restraining
Order earlier granted. We are now acting on a motion for reconsideration filed
by the petitioners.
When the Court initially dismissed the petition, I issued a separate
concurring and dissenting opinion. The issues before us were novel and
momentous. I felt that in immediately dismissing the petition, we were denying
the petitioners every reasonable opportunity to prove their allegations of non-
independent and biased conduct of both the prosecution and the trial court. I
stated that the issues of miscarriage of justice and due process arising from
that conduct should be allowed more extended treatment. With then Associate
Justices Claudio Teehankee and Vicente Abad Santos, I, therefore, dissented
from the Court's resolution denying the petitioners' motions to continue
presenting their case.
Since the majority of the Court, however, had decided to resolve the
petition on its merits and the findings of the Vasquez Commission were still for
the future, I concurred in the result of this Court's action on two grounds — (1)
the right of the accused to speedy trial and (2) the presumption in law that
judicial acts are regularly performed and that public officers have discharged
their duties in accordance with law.
The findings of the Vasquez Commission now confirm my initial
misgivings and more than overcome the presumption of regular performance
of official duty upon which I based my concurrence.
What were some of these misgivings now given substance by the
investigation?
Mistrial is usually raised by the accused. In this petition neither the
accused nor the prosecution saw anything wrong in the proceedings. We had
the unusual phenomenon of the relatives of one victim, prominent lawyers and
law professors, and retired Justices assuming the uncommon role of alleging
not only a biased Sandiganbayan but also a Tanodbayan holding back its own
evidence. Instead of allowing the heated passions and emotions generated by
the Aquino assassination to cool off or die down, the accused insisted on the
immediate rendition of a decision.
The Sandiganbayan is usually sober and respectful in its relations with
the Supreme Court. I, therefore, found it strange and unfortunate why, in its
Comment, the Sandiganbayan should question our authority to look into the
exercise of its jurisdiction. There was the further matter of television cameras
during trial, their effect on the witnesses and the judges, and other mischievous
potentialities.
The report of the Vasquez Commission now shows that there was more
to these misgivings and suspicions than appeared in the records at that time.
The Court's opinion penned by the Chief Justice states in detail why the
Sandiganbayan was not an impartial tribunal and the Tanodbayan not an
unbiased prosecutor.
The right against double jeopardy is intended to protect against repeated
litigations and continuous harassment of a person who has already undergone
the agony of prosecution and trial for one and the same offense. It certainly was
never Intended to cover a situation where the prosecution suppresses some of
its own evidence, where the accused correctly and eagerly anticipate a
judgment of acquittal, and where the court appears to have made up its mind
even before trial has started.
Under the circumstances found by the Vasquez Commission, there was
a failure of trial tantamount to no trial at all. A "moro-moro" could not possibly
result in a just or valid decision.
I am, however, constrained to write this separate opinion to emphasize a
concern of this Court and of all Filipinos who want genuine justice to be realized
in this case.
In the same way that we deplore the pressures and partiality which led
to the judgment of acquittal, we must insure that absolutely no indication of bias,
prejudgment, or vindictiveness shall taint the retrial of this case. The fairly
strong language used by the Court in its main opinion underscores the gravity
with which it views the travesties of justice in this "trial of the century." At the
same time, nothing expressed in our opinion should be interpreted as the
Supreme Court's making a factual finding, one way or another, about the
perpetrators of the Aquino or the Galman killing. Any statements about the
circumstances of the assassination or about the military version of the killings
are intended solely for one issue - whether or not the Sandiganbayan acquittals
should be set aside and a retrial ordered.
Neither our final resolution of this petition, the stature of the persons
involved, pakikisama, utang na loob for an appointment or reappointment, or
any other extraneous matters should color or influence the future course of this
case.
Needless to say, any person who, in the past, may have formally
expressed opinions about the innocence or guilt of the accused should be
neither a prosecutor or judge in any forthcoming trial. It is not enough for the
future proceedings to be fair; they should be above any suspicion of partiality,
bias, rancor, or vindictiveness. It would be unfortunate if, in the conduct of
further proceedings in this case, erroneous impressions may arise that a
prosecutor or judge has prejudged the guilt or innocence of any accused.
Having just declared a mistrial, we should not again declare the retrial as
another mistrial, ad infinitum.
For the reasons abovestated, I concur in the decision of the Court to grant
the petitioners' second motion for reconsideration.
Feliciano, J., concur in the last three paragraphs (prior to the dispositive
paragraph).
(Galman v. Sandiganbayan, G.R. No. 72670, [September 12, 1986], 228 PHIL
|||
42-102)
EN BANC
[G.R. No. 131652. March 9, 1998.]
BAYANI M. ALONTE, petitioner, vs. HON. MAXIMO A.

SAVELLANO JR., NATIONAL BUREAU OF INVESTIGATION and
PEOPLE OF THE PHILIPPINES,respondents.
[G.R. No. 131728. March 9, 1998.]
BUENAVENTURA CONCEPCION, petitioner, vs. JUDGE

MAXIMO SAVELLANO, JR., THE PEOPLE OF THE
PHILIPPINES, and JUVIELYN Y. PUNONGBAYAN,respondents.
Fortun, Narvasa & Salazar for petitioner Bayani M. Alonte.

Ramon C. Casano for petitioner in 131728.
The Law Firm of Raymundo A. Armovit for respondent Judge.
SYNOPSIS
Bayani M. Alonte, then incumbent Mayor of Biñan, Laguna and

Buenaventura Concepcion were charged with rape based on the complaint of
Juvielyn Punongbayan. During the pendency of the petition for change of
venue, Juvielyn, assisted by her parents and counsel, executed an affidavit of
desistance. The petition for change of venue was granted and the case was
raffled to respondent judge who issued warrants of arrest for petitioners.
Juvielyn reiterated her "decision to abide by her Affidavit of Desistance."
Petitioners pleaded not guilty when arraigned and waived pre-trial. Immediately
following arraignment the prosecution presented Juvielyn who testified to the
validity and voluntariness of her affidavit of desistance and that she has no
interest in further prosecuting the action. The Prosecution then manifested that
the State had no further evidence against the accused to prove the guilt of the
accused. She then moved for the "dismissal of the case" against both accused-
petitioners. The two accused did not present any countervailing evidence, did
not take the witness stand nor admitted the act charged in the information.
Thereupon, respondent judge said that "the case was submitted for decision."
On December 18, 1997, a decision was rendered convicting petitioners of
rape. IEaCDH
Due process in criminal proceedings, in particular, require (a) that the

court or tribunal trying the case is properly clothed with judicial power to hear
and determine the matter before it; (b) that jurisdiction is lawfully acquired by it
over the person of the accused; (c) that the accused is given an opportunity to
be heard; and (d) that judgment is rendered only upon lawful hearing. The
above constitutional and jurisprudential postulates, by now elementary and
deeply imbedded in our own criminal justice system, are mandatory and
indispensable.
The order of trial in criminal cases is clearly spelled out in Section 3, Rule
119, of the Rules of Court which should be strictly adhered to. There can be no
short-cut to the legal process, and there can be no excuse for not affording an
accused his full day in court. Due process, rightly occupying the first and
foremost place of honor in our Bill of Rights, is an enshrined and invaluable
right that cannot be denied even to the most undeserving.
An affidavit of desistance by itself, even when construed as a pardon in
the so-called "private crimes," is not a ground for the dismissal of the criminal
case once the action has been instituted.
Prosecutors are expected not merely to discharge their duties with the
highest degree of excellence, professionalism and skill but also to act each time
with utmost devotion and dedication to duty. The Court is hopeful that the zeal
which has been exhibited many times in the past, although regrettably a
disappointment on few occasions, will not be wanting in the proceedings yet to
follow.TEDaAc
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; DUE PROCESS IN

CRIMINAL PROCEEDINGS; REQUISITES. — Jurisprudence acknowledges
that due process in criminal proceedings, in particular, require (a) that the court
or tribunal trying the case is properly clothed with judicial power to hear and
determine the matter before it; (b) that jurisdiction is lawfully acquired by it over
the person of the accused; (c) that the accused is given an opportunity to be
heard; and (d) that judgment is rendered only upon lawful hearing. The above
constitutional and jurisprudential postulates, by now elementary and deeply
imbedded in our own criminal justice system, are mandatory and indispensable.
The principles find universal acceptance and are tersely expressed in the oft-
quoted statement that procedural due process cannot possibly be met without
a "law which hears before it condemns, which proceeds upon inquiry and
renders judgment only after trial."
2. ID.; ID.; THERE CAN BE NO SHORT-CUT TO THE LEGAL
PROCESS AND THERE CAN BE NO EXCUSE FOR NOT AFFORDING AN
ACCUSED HIS FULL DAY IN COURT. — The existence of the waiver must be
positively demonstrated. The standard of waiver requires that it "not only must
be voluntary, but must be knowing, intelligent, and done with sufficient
awareness of the relevant circumstances and likely consequences." Mere
silence of the holder of the right should not be so construed as a waiver of right,
and the courts must indulge every reasonable presumption against waiver. The
Solicitor General has aptly discerned a few of the deviations from what
otherwise should have been the regular course of trial: (1) Petitioners have not
been directed to present evidence to prove their defenses nor have dates
therefor been scheduled for the purpose; (2) the parties have not been given
the opportunity to present rebutting evidence nor have dates been set by
respondent Judge for the purpose; and (3) petitioners have not admitted the act
charged in the Information so as to justify any modification in the order of trial.
There can be no short-cut to the legal process, and there can be no excuse for
not affording an accused his full day in court. Due process, rightly occupying
the first and foremost place of honor in our Bill of Rights, is an enshrined and
invaluable right that cannot be denied even to the most undeserving.
3. ID.; EVIDENCE; AFFIDAVIT OF DESISTANCE; SHOULD NOT BE
GIVEN PROBATIVE VALUE. — In the case of People vs. Junio, the Court held
that: Thus, we have declared that at most the retraction is an afterthought which
should not be given value. It would be a dangerous rule to reject the testimony
taken before the court of justice simply because the witness who has given it
later on changed his mind for one reason or another. Such a rule will make a
solemn trial a mockery and place the investigation at the mercy of unscrupulous
witnesses. Because affidavits of retraction can easily be secured from poor and
ignorant witnesses, usually for monetary consideration, the Court has invariably
regarded such affidavits as exceedingly unreliable. [Flores vs. People, 211
SCRA 622, citing De Guzman vs. Intermediate Appellate Court, 184 SCRA
128; People vs. Galicia, 123 SCRA 550.]
4. ID.; COURTS; WITH INHERENT POWER TO COMPEL THE
ATTENDANCE OF ANY PERSON TO TESTIFY. — Courts have the inherent
power to compel the attendance of any person to testify in a case pending
before it, and a party is not precluded from invoking that authority.
5. ID.; EVIDENCE; AFFIDAVIT OF DESISTANCE; THOUGH
CONSTRUED AS PARDON IN "PRIVATE CRIMES," IT IS NOT A GROUND
FOR DISMISSAL OF CRIMINAL ACTION. — An affidavit of desistance by
itself, even when construed as a pardon in the so-called "private crimes," is not
a ground for the dismissal of the criminal case once the action has been
instituted. The affidavit, nevertheless, may, as so earlier intimated, possibly
constitute evidence whose weight or probative value, like any other piece of
evidence, would be up to the court for proper evaluation. EaSCAH
6. ID.; ID.; DISQUALIFICATION OF JUDGES; IT IS NOT ENOUGH

THAT A COURT IS IMPARTIAL, IT MUST ALSO BE PERCEIVED TO BE
IMPARTIAL. — Relative to the prayer for the disqualification of Judge Savellano
from further hearing the case, the Court is convinced that Judge Savellano
should, given the circumstances, be best excused from the case. Possible
animosity between the personalities here involved may not all be that unlikely.
The pronouncement of this Court in the old case ofLuque vs. Kayanan could
again be said: All suitors are entitled to nothing short of the cold neutrality of an
independent, wholly-free, disinterested and unbiased tribunal. Second only to
the duty of rendering a just decision is the duty of doing it in a manner that will
not arouse any suspicion as to the fairness and integrity of the Judge. It is not
enough that a court is impartial, it must also be perceived as impartial.
7. ID.; ATTORNEYS; USE OF INTEMPERATE LANGUAGE AND
UNKIND ASCRIPTIONS CAN HARDLY BE JUSTIFIED. — While the lawyer in
promoting the cause of his client or defending his rights might do so with fervor,
simple courtesy demands that it be done within the bounds of propriety and
decency. The use of intemperate language and unkind ascriptions hardly can
be justified nor can have a place in the dignity of judicial forum. Civility among
members of the legal profession is a treasured tradition that must at no time be
lost to it.
DHEcCT
8. ID.; CRIMINAL PROCEDURE; PROSECUTORS; EXPECTED TO

ACT WITH UTMOST DEVOTION AND DEDICATION TO DUTY. — Finally, it
may be opportune to say, once again, that prosecutors are expected not merely
to discharge their duties with the highest degree of excellence, professionalism
and skill but also to act each time with utmost devotion and dedication to duty.
The Court is hopeful that the zeal which has been exhibited many times in the
past, although regrettably a disappointment on few occasions, will not be
wanting in the proceedings yet to follow.
PUNO, J., separate opinion:
1. REMEDIAL LAW; EVIDENCE; RECANTATION; CONSTRUED. — A
recantation usually applies to a repudiation by a complainant or a witness,
either for the prosecution or the defense, who has previously given an
extrajudicial statement or testimony in court. Repudiation may be made in
writing, i.e., by sworn statement, or by testifying on the witness stand.
2. ID.; ID.; ID.; GENERALLY LOOKED UPON WITH DISFAVOR. —
Mere retraction by a witness or by complainant of his or her testimony does not
necessarily vitiate the original testimony or statement, if credible. The general
rule is that courts look with disfavor upon retractions of testimonies previously
given in court. This rule applies to crimes, offenses as well as to administrative
offenses. The reason is because affidavits of retraction can easily be secured
from poor and ignorant witnesses, usually through intimidation or for monetary
consideration. Moreover, there is always the probability that they will later be
repudiated and there would never be an end to criminal litigation. It would also
be a dangerous rule for courts to reject testimonies solemnly taken before
courts of justice simply because the witnesses who had given them later on
changed their minds for one reason or another. This would make solemn trials
a mockery and place the investigation of the truth at the mercy of unscrupulous
witnesses.
3. ID.; ID.; ID.; ID.; EXCEPTION. — The general rule notwithstanding,
the affidavit should not be peremptorily dismissed as a useless scrap of paper.
There are instances when a recantation may create serious doubts as to the
guilt of the accused. A retracted statement or testimony must be subject to
scrupulous examination. The previous statement or testimony and the
subsequent one must be carefully compared and the circumstances under
which each was given and the reasons and motives for the change carefully
scrutinized. The veracity of each statement or testimony must be tested by the
credibility of the witness which is left for the judge to decide. In short, only where
there exists special circumstances in the case which when coupled with the
retraction raise doubts as to the truth of the testimony or statement given, can
a retraction be considered and upheld.
4. ID.; ID.; AFFIDAVIT OF DESISTANCE, GENERALLY WITH NO
PERSUASIVE EFFECT. — An affidavit of desistance is understood to be a
sworn statement executed by a complainant in a criminal or administrative case
that he or she is discontinuing the action filed upon his or her complaint for
whatever reason he or she may cite. The court attaches no persuasive value to
a desistance especially when executed as an afterthought. However, as in
retractions, an affidavit of desistance calls for a reexamination of the records of
the case. cAHDES
5. ID.; ID.; ID.; WEIGHT IN PRIVATE CRIMES. — In private crimes, an

affidavit of desistance filed by a private complainant is also frowned upon by
the courts. Although such affidavit may deserve a second look at the case, there
is hardly an instance when this Court upheld it in private crimes and dismissed
the case on thesole basis thereof. Indeed, a case is not dismissed upon mere
affidavit of desistance of the complainant, particularly where there exist special
circumstances that raise doubts as to the reliability of the affidavit.
6. ID.; CRIMINAL PROCEDURE; PRIVATE CRIMES; CANNOT BE
PROSECUTED EXCEPT UPON COMPLAINT OF OFFENDED PARTY. —
Private crimes cannot be prosecuted except upon complaint filed by the
offended party. In adultery and concubinage, the offended party must implead
both the guilty parties and must not have consented or pardoned the offenders.
In seduction, abduction, rape and acts of lasciviousness, the complaint must be
filed by the offended party or her parents, grandparents or guardian. The
complainant must not have expressly pardoned the offender. The filing of a
complaint in private crimes is merely a condition precedent to the exercise by
the proper authorities of the power to prosecute the guilty parties. It is the
complaint that starts the prosecutory proceeding without which the fiscal and
the court cannot exercise jurisdiction over the case. Once the complaint is filed,
the action proceeds just as in any other crime.
7. CRIMINAL LAW; EXTINCTION OF CRIMINAL LIABILITY; MODES. —
Article 344 also provides for the extinction of criminal liability in private crimes.
It mentions two modes: pardon and marriage, which when validly and timely
made, result in the total extinction of criminal liability of the offender. The pardon
in private crimes must be made before the institution of the criminal action. In
adultery and concubinage, the pardon may be express or implied while in
seduction, abduction, rape and acts of lasciviousness, the pardon must be
express. In all cases, the pardon must come prior to the institution of the
criminal action. After the case has been filed in court, any pardon made by the
private complainant, whether by sworn statement or on the witness stand,
cannot extinguish criminal liability. The only act that extinguishes the penal
action and the penalty that may have been imposed is the marriage between
the offender and the offended party.
8. ID.; ID.; PARDON IN PRIVATE CRIMES; MUST COME BEFORE
INSTITUTION OF CRIMINAL ACTION. — Pardon by the offended party
extinguishes criminal liability when made while the crime is still "private" and
within the control of the offended party. But once the case is filed in court, the
pardon cannot ipso factooperate to dismiss the case. After the institution of the
criminal action, any pardon given by the complainant to the offender would be
unavailing, except of course when the offender validly marries the offended
party. The offended party's pardon of the offender in a seduction case after the
criminal action had been instituted constitutes no bar to said action. A pardon
given in a rape case after the filing of the action in court "comes too late to hide
the shameful occurrence from public notice."
9. ID.; ID.; DESISTANCE, NOT A GROUND. — Article 344 does not
include desistance of the offended party from prosecuting the case as a ground
for extinction of criminal liability whether total or partial. Hence, only when the
desistance is grounded on forgiveness and pardon and is made before the
institution of the criminal action, can it extinguish criminal liability.
Desistance, per se, is not equivalent to pardon.
10. ID.; ID.; ID.; CASE AT BAR. — In the case at bar, the "Affidavit of
Desistance" of Juvielyn is not an express pardon of the accused and the crime
committed. Private complainant desisted from prosecuting the case against the
petitioners because she wished "to start life anew and live normally again." She
reiterated this reason on the witness stand. She complained that members of
the media were bothering and harassing her and that she wanted to go back to
her normal life. She never said that she forgave the petitioners. She did not
absolve them from their culpability. She did not give any exculpatory fact that
would raise doubts about her rape. She did not say that she consented to
petitioner Alonte's acts. Moreover, the rape case is already in court and it is no
longer her right to decide whether or not the charge should be continued.
11. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS;
ACCUSED DENIED THEREOF WHERE JUDGMENT OF CONVICTION WAS
RENDERED WITHOUT TRIAL. — Justice Puno agrees with the majority that
the November 7, 1997 proceedings could not have been a trial on the merits.
First of all, the proceedings did not conform with the procedure for trial as
provided in the 1985 Rules on Criminal Procedure. In the case at bar,
petitioners were never instructed to present evidence to prove their defenses.
The parties were never given the opportunity to present their respective
evidence rebutting the testimony of private complainant. There was no
admission by petitioners of the charge in the information as to justify a change
in the order of trial. Second, the admission of private complainant's affidavit of
October 21, 1996 was made solely in response to respondent judge's own
questioning. It was this affidavit which respondent judge used to convict the
petitioners. This affidavit, however, was not marked nor was it formally offered
before the court. Third, where there is a doubt as to the nature of the criminal
proceedings before the court, this doubt must be resolved in favor of the
accused who must be given the widest latitude of action to prove his innocence.
It is in petitioners' favor that the proceedings of November 7, 1997 be treated
as a hearing on the motion to dismiss, not a trial on the merits. To rule otherwise
will effectively deny petitioners due process and all the other rights of an
accused under the Bill of Rights and our Rules in Criminal Procedure. AHacIS
12. REMEDIAL LAW; CRIMINAL PROCEDURE; RULES STRICTLY

ADHERED TO. — Our criminal rules of procedure strictly provide the step by
step procedure to be followed by courts in cases punishable by death. This rule
also applies to all other criminal cases, particularly where the imposable penalty
is reclusion perpetua. The reason for this is to assure that the State makes no
mistake in taking life and liberty except that of the guilty.
13. ID.; EVIDENCE; EVIDENCE NOT FORMALLY OFFERED, NOT
TAKEN INTO CONSIDERATION. — Evidence not formally offered in court will
not be taken into consideration by the court in disposing of the issues of the
case. Any evidence which a party desires to submit for the consideration of the
court must formally be offered by him, otherwise it is excluded and rejected.
Indeed, following respondent judge's finding and assuming that the November
7, 1997 hearing was already a trial on the merits, petitioners were never
afforded their right to confront and cross-examine the witness. The court did
not, at the very least, inquire as to whether the petitioners wanted to cross-
examine private complainant with respect to her affidavit of October 21, 1996.
No opportunity to cross-examine was afforded petitioners and their counsels
such that they cannot be deemed to have waived said right by inaction.
DECISION
VITUG, J :
p
Pending before this Court are two separate petitions, one filed by
petitioner Bayani M. Alonte, docketed G.R. No. 131652, and the other by
petitioner Buenaventura Concepcion, docketed G.R. No. 131728, that assail
the decision of respondent Judge Maximo A. Savellano, Jr., of the Regional
Trial Court ("RTC"), Branch 53, of Manila finding both petitioners guilty beyond
reasonable doubt of the crime of rape. The two petitions were consolidated. llcd
On 05 December 1996, an information for rape was filed against

petitioners Bayani M. Alonte, an incumbent Mayor of Biñan, Laguna, and
Buenaventura Concepcion predicated on a complaint filed by Juvie-lyn
Punongbayan. The information contained the following averments; thus:
"That on or about September 12, 1996, in Sto. Tomas, Biñan,
Laguna, and within the jurisdiction of this Honorable court, the above
named accused, who is the incumbent mayor of Biñan, Laguna after
giving complainant-child drinking water which made her dizzy and weak,
did then and there willfully, unlawfully and feloniously have carnal
knowledge with said JUVIELYN PUNONGBAYAN against her will and
consent, to her damage and prejudice.
"That accused Buenaventura 'Wella' Concepcion without having
participated as principal or accessory assisted in the commission of the
offense by bringing said complainant child to the rest house of accused
Bayani 'Arthur' Alonte at Sto. Tomas, Biñan, Laguna and after receiving
the amount of P1,000.00 left her alone with Bayani Alonte who
subsequently raped her.
Contrary to Law." 1
The case was docketed Criminal Case No. 9619-B and assigned by raffle
to Branch 25 of the RTC of Biñan, Laguna, presided over by Judge Pablo B.
Francisco.
On 13 December 1996, Juvie-lyn Punongbayan, through her counsel
Attorney Remedios C. Balbin, and Assistant Chief State Prosecutor ("ACSP")
Leonardo Guiyab, Jr., filed with the Office of the Court Administrator a Petition
for a Change of Venue (docketed Administrative Matter No. 97-1-12-RTC) to
have the case transferred and tried by any of the Regional Trial Courts in Metro
Manila.
During the pendency of the petition for change of venue, or on 25 June
1997, Juvie-lyn Punongbayan, assisted by her parents and counsel, executed
an affidavit of desistance, quoted herein in full, as follows:
AFFIDAVIT OF DESISTANCE
"I, JUVIE-LYN YAMBAO PUNONGBAYAN, 17 years of age, a
resident of No. 5 Uranus Street, Congressional Avenue Subdivision,
Quezon City, duly assisted by private legal counsel and my parents, after
having duly sworn in accordance with law, depose and say:
"1. That I am the Complainant in the rape case filed against Mayor
Bayani 'Arthur' Alonte of Biñan, Laguna, with the RTC-Branch 25 of Biñan,
Laguna;
"2. That the case has been pending for some time, on preliminary
issues, specifically, (a) change of venue, filed with the Supreme Court; (b)
propriety of the appeal to the Court of Appeals, and after its denial by said
court, brought to the Office of the President, on the veracity of the findings
of the Five-Man Investigating Panel of the State Prosecutor's Office, and
the Secretary of Justice, and (c) a hold-departure order filed with the Biñan
Court;
"3. That the legal process moves ever so slowly, and meanwhile, I
have already lost two (2) semesters of my college residence. And when
the actual trial is held after all the preliminary issues are finally resolved, I
anticipate a still indefinite suspension of my schooling to attend the
hearings;
"4. That during the entire period since I filed the case, my family
has lived a most abnormal life: my father and mother had to give up their
jobs; my younger brother, who is in fourth grade, had to stop his schooling,
like myself;
"5. That I do not blame anyone for the long, judicial process, I
simply wish to stop and live elsewhere with my family, where we can start
life anew, and live normally once again;
"6. That I pray that I be allowed to withdraw my complaint for rape
and the other charge for child abuse wherein the Five-Man Investigating
Panel of the Office of the State Prosecutor found a prima facie case
although the information has not been filed, and that I will not at any time
revive this, and related cases or file new cases, whether criminal, civil,
and or administrative, here or anywhere in the Philippines;
"7. That I likewise realize that the execution of this Affidavit will put
to doubt my credibility as a witness-complainant;
"8. That this is my final decision reached without fear or favor,
premised on a corresponding commitment that there will be no reprisals
in whatever form, against members of the police force or any other official
of officer, my relatives and friends who extended assistance to me in
whatever way, in my search for justice.
"WHEREOF, I affix my signature this 25 day of June, 1997, in
Quezon City.
"(Sgd) JUVIE-LYN Y. PUNONGBAYAN
Complainant
"Assisted by:
(Sgd) ATTY. REMEDIOS C. BALBIN
Private Prosecutor
"In the presence of:
(Sgd) PABLO PUNONGBAYAN
Father
(Sgd) JULIE Y. PUNONGBAYAN
Mother
"SUBSCRIBED AND SWORN to before me this 25 day of June,
1997, in Quezon City.
"(Sgd) Illegible
Administering Officer" 2
On 28 June 1997, Atty. Ramon C. Casino, on behalf of petitioners, moved
to have the petition for change of venue dismissed on the ground that it had
become moot in view of complainant's affidavit of desistance. On 22 August
1997, ACSP Guiyab filed his comment on the motion to dismiss. Guiyab
asserted that he was not aware of the desistance of private complainant and
opined that the desistance, in any case, would not produce any legal effect
since it was the public prosecutor who had direction and control of the
prosecution of the criminal action. He prayed for the denial of the motion to
dismiss.
On 02 September 1997, this Court issued a Resolution (Administrative
Matter No. 97-1-12-RTC), granting the petition for change of venue. The Court
said:
"These affidavits give specific names, dates, and methods being
used to abort, by coercion or corruption, the prosecution of Criminal Case
No. 9619-B. It is thus incorrect for oppositors Alonte and Concepcion to
contend that the fear of the petitioner, her private counsel and her
witnesses are too generalized if not fabricated. Indeed, the probability that
in desisting from pursuing her complaint for rape, petitioner, a minor, may
have succumbed to some illicit influence and undue pressure. To prevent
possible miscarriage of justice is a good excuse to grant the petition to
transfer the venue of Criminal Case No. 9619-B from Biñan, Laguna to
the City of Manila.
"IN VIEW WHEREOF, the Petition for Change of Venue from
Biñan, Laguna to the City of Manila is granted. The Executive Judge of
RTC Manila is ordered to raffle Crim. Case No. 9619-B to any of its
branches. The judge to whom Crim. Case No. 9619-B shall be raffled shall
resolve the petitioner's Motion to Resume Proceedings filed in Br. XXV of
the RTC of Biñan, Laguna and determine the voluntariness and validity of
petitioner's desistance in light of the opposition of the public prosecutor,
Asst. Chief State Prosecutor Leonardo Guiyab. The branch clerk of court
of Br. XXV of the RTC of Biñan, Laguna is ordered to personally deliver to
the Executive Judge of Manila the complete records of Crim. Case No.
9619-B upon receipt of this Resolution." 3
On 17 September 1997, the case, now re-docketed Criminal Case No.
97-159955 by the Clerk of Court of Manila, was assigned by raffle to Branch
53, RTC Manila, with respondent Judge Maximo A. Savellano, Jr., presiding.
On 07 October 1997, Juvie-lyn Punongbayan, through Attorney Balbin,
submitted to the Manila court a "compliance" where she reiterated "her decision
to abide by her Affidavit of Desistance."
In an Order, dated 09 October 1997, Judge Savellano found probable
cause for the issuance of warrants for the arrest of petitioners Alonte and
Concepcion "without prejudice to, and independent of, this Court's separate
determination as the trier of facts, of the voluntariness and validity of the [private
complainant's] desistance in the light of the opposition of the public prosecutor,
Asst. Chief State Prosecutor Leonardo Guiyab."
On 02 November 1997, Alonte voluntarily surrendered himself to Director
Santiago Toledo of the National Bureau of Investigation ("NBI"), while
Concepcion,. in his case, posted the recommended bail of P150,000.00.
On 07 November 1997, petitioners were arraigned and both pleaded "not
guilty" to the charge. The parties manifested that they were waiving pre-trial.
The proceedings forthwith went on. Per Judge Savellano, both parties agreed
to proceed with the trial of the case on the merits. 4 According to Alonte,
however, Judge Savellano allowed the prosecution to present evidence relative
only to the question of the voluntariness and validity of the affidavit of
desistance. 5
It would appear that immediately following the arraignment, the
prosecution presented private complainant Juvie-lyn Punongbayan followed by
her parents. During this hearing, Punongbayan affirmed the validity and
voluntariness of her affidavit of desistance. She stated that she had no intention
of giving positive testimony in support of the charges against Alonte and had
no interest in further prosecuting the action. Punongbayan confirmed: (i) That
she was compelled to desist because of the harassment she was experiencing
from the media, (ii) that no pressures nor influence were exerted upon her to
sign the affidavit of desistance, and (iii) that neither she nor her parents
received a single centavo from anybody to secure the affidavit of desistance.
Assistant State Prosecutor Marilyn Campomanes then presented, in
sequence: (i) Punongbayan's parents, who affirmed their signatures on the
affidavit of desistance and their consent to their daughter's decision to desist
from the case, and (ii) Assistant Provincial Prosecutor Alberto Nofuente, who
attested that the affidavit of desistance was signed by Punongbayan and her
parents in his presence and that he was satisfied that the same was executed
freely and voluntarily. Finally, Campomanes manifested that in light of the
decision of private complainant and her parents not to pursue the case, the
State had no further evidence against the accused to prove the guilt of the
accused. She, then, moved for the "dismissal of the case" against both Alonte
and Concepcion.
Thereupon, respondent judge said that "the case was submitted for
decision." 6
On 10 November 1997, petitioner Alonte filed an "Urgent Motion to Admit
to Bail." Assistant State Prosecutor Campomanes, in a Comment filed on the
same date, stated that the State interposed "no objection to the granting of bail
and in fact Justice and Equity dictates that it joins the accused in his prayer for
the granting of bail."
Respondent judge did not act on the application for bail.
On 17 November 1997, Alonte filed anew an Urgent Plea to Resolve the
Motion for Bail. On even date, ASP Campomanes filed a Manifestation deeming
"it proper and in accord with justice and fair play to Join the aforestated motion."
Again, the respondent judge did not act on the urgent motion.
The records would indicate that on the 25th November 1997, 1st
December 1997, 8th December 1997 and 10th December 1997, petitioner
Alonte filed a Second, Third, Fourth and Fifth Motion for Early Resolution,
respectively, in respect of his application for bail. None of these motions were
acted upon by Judge Savellano.
On 17 December 1997, Attorney Philip Sigfrid A. Fortun, the lead counsel
for petitioner Alonte received a notice from the RTC Manila Branch 53, notifying
him of the schedule of promulgation, on 18 December 1997, of the decision on
the case. The counsel for accused Concepcion denied having received any
notice of the scheduled promulgation.
On 18 December 1997, after the case was called, Atty. Sigrid Fortun and
Atty. Jose Flaminiano manifested that Alonte could not attend the promulgation
of the decision because he was suffering from mild hypertension and was
confined at the NBI clinic and that, upon the other hand, petitioner Concepcion
and his counsel would appear not to have been notified of the proceedings. The
promulgation, nevertheless, of the decision proceeded in absentia; the reading
concluded:
"WHEREFORE, judgment is hereby rendered finding the two (2)
accused Mayor Bayani Alonte and Buenaventura 'Wella' Concepcion
guilty beyond reasonable doubt of the heinous crime of RAPE, as defined
and penalized under Article 335(2) in relation to Article 27 of the Revised
Penal Code, as amended by Republic Act No. 7659, for which each one
of the them is hereby sentenced to suffer the indivisible penalty of
RECLUSION PERPETUA or imprisonment for twenty (20) years; and one
(1) day to forty (40) years.
"In view thereof, the bail bond put up by the accused Buenaventura
'Wella' Concepcion for his provisional liberty is hereby cancelled and
rendered without any further force and effect.
"SO ORDERED." 7
On the same day of 18th December 1997, petitioner Alonte filed a motion
for reconsideration. Without waiting for its resolution, Alonte filed the instant "Ex
Abundante Ad Cautelam" for certiorari, Prohibition, Habeas Corpus, Bail,
Recusation of respondent Judge, and for Disciplinary Action against an RTC
Judge." Petitioner Concepcion later filed his own petition
for certiorariand mandamus with the Court.
Alonte submits the following grounds in support of his petition seeking to
have the decision nullified and the case remanded for new trial; thus:
"The respondent Judge committed grave abuse of discretion
amounting to lack or excess of jurisdiction when he rendered a Decision
in the case a quo (Annex A) without affording the petitioner his
Constitutional right to due process of law (Article III, §1, Constitution).
in the case a quo in violation of the mandatory provisions of the Rules on
Criminal Procedure, specifically, in the conduct and order of trial (Rule
119) prior to the promulgation of a judgment (Rule 120; Annex A).
amounting to lack or excess of jurisdiction when, in total disregard of the
Revised Rules on Evidence and existing doctrinal jurisprudence, he
rendered a Decision in the case a quo (Annex A) on the basis of two (2)
affidavits (Punongbayan's and Balbin's) which wereneither marked nor
offered into evidence by the prosecution, nor without giving the petitioner
an opportunity to cross-examine the affiants thereof, again in violation of
petitioner's right to due process (Article III, §1, Constitution).
in the case a quo without conducting a trial on the facts which would
establish that complainant was raped by petitioner (Rule 119, Article III,
§1, Constitution), thereby setting a dangerous precedent where heinous
offenses can result in conviction without trial (then with more reason that
simpler offenses could end up with the same result)." 8
On the other hand, Concepcion relies on the following grounds in support
of his own petition; thus:
"1. The decision of the respondent Judge rendered in the course of
resolving the prosecution's motion to dismiss the case is a patent nullity
for having been rendered without jurisdiction, without the benefit of a trial
and in total violation of the petitioner's right to due process of law.
"2. There had been no valid promulgation of judgment at least as
far as petitioner is concerned.
"3. The decision had been rendered in gross violation of the right
of the accused to a fair trial by an impartial and neutral judge whose
actuations and outlook of the case had been motivated by a sinister desire
to ride on the crest of media hype that surrounded this case and use this
case as a tool for his ambition for promotion to a higher court.
"4. The decision is patently contrary to law and the jurisprudence
in so far as it convicts the petitioner as a principal even though he has
been charged only as an accomplice in the information." 9
The petitions deserve some merit; the Court will disregard, in view of the
case milieu, the prematurity of petitioners' invocation, i e., even before the trial
court could resolve Alonte's motion for reconsideration.
The Court must admit that it is puzzled by the somewhat strange way the
case has proceeded below. Per Judge Savellano, after the waiver by the parties
of the pre-trial stage, the trial of the case did proceed on the merits but that —
"The two (2) accused did not present any countervailing evidence
during the trial. They did not take the witness stand to refute or deny under
oath the truth of the contents of the private complainant's aforementioned
affidavit which she expressly affirmed and confirmed in Court, but,
instead, thru their respective lawyers, they rested and submitted the case
for decision merely on the basis of the private complainant's so called
'desistance' which, to them, was sufficient enough for their purposes. They
left everything to the so-called 'desistance' of the private complainant." 10
According to petitioners, however, there was no such trial for what was
conducted on 07 November 1997, aside from the arraignment of the accused,
was merely a proceeding in conformity with the resolution of this Court in
Administrative Case No. 97-1-12-RTC to determine the validity and
voluntariness of the affidavit of desistance executed by Punongbayan.
It does seem to the Court that there has been undue precipitancy in the
conduct of the proceedings. Perhaps the problem could have well been avoided
had not the basic procedures been, to the Court's perception taken lightly. And
in this shortcoming, looking at the records of the case, the trial court certainly is
not alone to blame.
Section 14, paragraphs (1) and (2), of Article III, of the Constitution
provides the fundamentals.
"(1) No person shall be held to answer for a criminal offense without
due process of law.
"(2) In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to be heard
by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to
meet the witnesses face to face, and to have compulsory process to
secure the attendance of witnesses and the production of evidence in his
behalf. However, after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and his
failure to appear is unjustifiable."
Jurisprudence 11 acknowledges that due process in criminal
proceedings, in particular, require (a) that the court or tribunal trying the case is
properly clothed with judicial power to hear and determine the matter before it;
(b) that jurisdiction is lawfully acquired by it over the person of the accused; (c)
that the accused is given an opportunity to be heard; and (d) that judgment is
rendered only upon lawful hearing. 12
The above constitutional and jurisprudential postulates, by now
elementary and deeply imbedded in our own criminal justice system, are
mandatory and indispensable. The principles find universal acceptance and are
tersely expressed in the oft-quoted statement that procedural due process
cannot possibly be met without a "law which hears before it condemns, which
proceeds upon inquiry and renders judgment only after trial." 13
The order of trial in criminal cases is clearly spelled out in Section 3, Rule
119, of the Rules of Court; viz:
"Sec. 3. Order of trial. — The trial shall proceed in the following
order:
"(a) The prosecution shall present evidence to prove the charge
and, in the proper case, the civil liability.
"(b) The accused may present evidence to prove his defense, and
damages, if any, arising from the issuance of any provisional remedy in
the case.
"(c) The parties may then respectively present rebutting evidence
only, unless the court, in furtherance of justice, permits them to present
additional evidence bearing upon the main issue.
"(d) Upon admission of the evidence, the case shall be deemed
submitted for decision unless the court directs the parties to argue orally
or to submit memoranda.
"(e) However, when the accused admits the act or omission
charged in the complaint or information but interposes a lawful defense,
the order of trial may be modified accordingly."
In Tabao vs. Espina, 14 the Court has underscored the need to adhere
strictly to the above rules. It reminds that —
". . . each step in the trial process serves a specific purpose. In the
trial of criminal cases, the constitutional presumption of innocence in favor
of an accused requires that an accused be given sufficient opportunity to
present his defense. So, with the prosecution as to its evidence.
"Hence, any deviation from the regular course of trial should always
take into consideration the rights of all the parties to the case, whether in
the prosecution or defense. In the exercise of their discretion, judges are
sworn not only to uphold the law but also to do what is fair and just. The
judicial gavel should not be wielded by one who has an unsound and
distorted sense of justice and fairness. 15
While Judge Savellano has claimed in his Comment that —
"Petitioners-accused were each represented during the hearing on
07 November 1997 with their respective counsel of choice. None of their
counsel interposed an intention to cross-examine rape victim Juvielyn
Punongbayan, even after she attested, in answer to respondent judge's
clarificatory questions, the voluntariness and truth of her two affidavits —
one detailing the rape and the other detailing the attempts to buy her
desistance; the opportunity was missed/not used, hence waived. The rule
of case law is that the right to confront and cross-examine a witness 'is a
personal one and may be waived."' (emphasis supplied) —
It should be pointed out, however, that the existence of the waiver must be
positively demonstrated. The standard of waiver requires that it "not only must
be voluntary, but must be knowing, intelligent, and done with sufficient
awareness of the relevant circumstances and likely consequences." 16 Mere
silence of the holder of the right should not be so construed as a waiver of right,
and the courts must indulge every reasonable presumption against
waiver. 17 The Solicitor General has aptly discerned a few of the deviations from
what otherwise should have been the regular course of trial: (1) Petitioners have
not been directed to present evidence to prove their defenses nor have dates
therefor been scheduled for the purpose; 18 (2) the parties have not been given
the opportunity to present rebutting evidence nor have dates been set by
respondent Judge for the purpose; 19 and (3) petitioners have not admitted the
act charged in the Information so as to justify any modification in the order of
trial. 20 There can be no short-cut to the legal process, and there can be no
excuse for not affording an accused his full day in court. Due process, rightly
occupying the first and foremost place of honor in our Bill of Rights, is an
enshrined and invaluable right that cannot be denied even to the most
undeserving.
This case, in fine, must be remanded for further proceedings. And, since
the case would have to be sent back to the court a quo, this ponencia has
carefully avoided making any statement or reference that might be
misconstrued as prejudgment or as pre-empting the trial court in the proper
disposition of the case. The Court likewise deems it appropriate that all related
proceedings therein, including the petition for bail, should be subject to the
proper disposition of the trial court.LLpr
Nevertheless, it is needful to stress a few observations on the affidavit of

desistance executed by the complainant.
Firstly, the affidavit of desistance of Juvie-Lyn Punongbayan,

hereinbefore quoted, does not contain any statement that disavows the veracity
of her complaint against petitioners but merely seeks to "be allowed to
withdraw" her complaint and to discontinue with the case for varied other
reasons. On this subject, the case ofPeople vs. Junio, 21 should be instructive.
The Court has there explained:
"The appellant's submission that the execution of an Affidavit of
Desistance by complainant who was assisted by her mother supported
the 'inherent incredibility of prosecution's evidence' is specious. We have
said in so many cases that retractions are generally unreliable and are
looked upon with considerable disfavor by the courts. The unreliable
character of this document is shown by the fact that it is quite incredible
that after going through the process of having accused-appellant arrested
by the police, positively identifying him as the person who raped her,
enduring the humiliation of a physical examination of her private parts,
and then repeating her accusations in open court by recounting her
anguish, Maryjane would suddenly turn around and declare that '[a]fter a
careful deliberation over the case, (she) find(s) that the same does not
merit or warrant criminal prosecution.'
"Thus, we have declared that at most the retraction is an
afterthought which should not be given probative value. It would be a
dangerous rule to reject the testimony taken before the court of justice
simply because the witness who has given it later on changed his mind
for one reason or another. Such a rule will make a solemn trial a mockery
and place the investigation at the mercy of unscrupulous witnesses.
Because affidavits of retraction can easily be secured from poor and
ignorant witnesses, usually for monetary consideration, the Court has
invariably regarded such affidavits as exceedingly unreliable. [Flores vs.
People, 211 SCRA 622, citing De Guzman vs. Intermediate Appellate
Court, 184 SCRA 128; People vs. Galicia, 123 SCRA 550.] 22
The Junio rule is no different from ordinary criminal cases. For instance,
in People vs. Ballabare, 23 a murder case, the Court has ruled:
"The contention has no merit. To begin with, the Affidavit executed
by eyewitness Tessie Asenita is not a recantation. To recant a prior
statement is to renounce and withdraw it formally and publicly. [36
WORDS AND PHRASES 683, citing Pradlik vs. State, 41-A 2nd, 906,
907.] In her affidavit, Tessie Asenita did not really recant what she had
said during the trial. She only said she wanted to withdraw her testimony
because her father, Leonardo Tacadao, Sr., was no longer interested in
prosecuting the case against accused-appellant. Thus, her affidavit
stated:
"3. That inasmuch as my father, Leonardo Tacadao, Sr., the
complainant therein, was no longer interested to prosecute the
case as manifested in the Sworn Affidavit of Desistance before the
Provincial Prosecutor, I do hereby WITHDRAW and/or REVOKE
my testimony of record to confirm (sic) with my father's desire;
"It is absurd to disregard a testimony that has undergone trial and
scrutiny by the court and the parties simply because an affidavit
withdrawing the testimony is subsequently presented by the defense. In
the first place, any recantation must be tested in a public trial with sufficient
opportunity given to the party adversely affected by it to cross-examine
the recanting witness. In this case, Tessie Asenita was not recalled to the
witness stand to testify on her affidavit. Her affidavit is thus hearsay. It was
her husband, Roque Asenita, who was presented and the matters he
testified to did not even bear on the substance of Tessie's affidavit. He
testified that accused-appellant was not involved in the perpetration of the
crime.
"In the second place, to accept the new evidence uncritically would
be to make a solemn trial a mockery and place the investigation at the
mercy of unscrupulous witnesses. [De Guzman vs. Intermediate Appellate
Court, 184 SCRA 128, 134, citing People vs. Morales, 113 SCRA 683.]
For even assuming that Tessie Asenita had made a retraction, this
circumstance alone does not require the court to disregard her original
testimony. A retraction does not necessarily negate an earlier declaration.
[People vs. Davatos, 229 SCRA 647.] For this reason, courts look with
disfavor upon retractions because they can easily be obtained from
witnesses usually through intimidation or for monetary considerations.
[People vs. Clamor, 198 SCRA 642.] Hence, when confronted with a
situation where a witness recants his testimony, courts must not
automatically exclude the original testimony solely on the basis of the
recantation. They should determine which testimony should be given
credence through a comparison of the original testimony and the new
testimony, applying the general rules of evidence. [Reano vs. Court of
Appeals, 165 SCRA 525.] In this case we think the trial court correctly
ruled." 24
It may not be amiss to state that courts have the inherent power to compel
the attendance of any person to testify in a case pending before it, and a party
is not precluded from invoking that authority. 25
Secondly, an affidavit of desistance by itself, even when construed as a
pardon in the so-called "private crimes," is not a ground for the dismissal of the
criminal case once the action has been instituted. The affidavit, nevertheless,
may, as so earlier intimated, possibly constitute evidence whose weight or
probative value, like any other piece of evidence, would be up to the court for
proper evaluation. The decision in Junio went on to hold —
"While '[t]he offenses of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon a complaint filed by
the offended party or her parents, grandparents, or guardian, nor in any
case, if the offender has been expressly pardoned by the above named
persons, as the case may be,' [Third par. of Art. 344, The Revised Penal
Code,] the pardon to justify the dismissal of the complaint should have
been made prior to the institution of the criminal action. [People vs. Entes,
103 SCRA 162, cited by People vs. Soliao, 194 SCRA 250, which in turn
is cited in People vs. Villorente, 210 SCRA 647.] Here, the motion to
dismiss to which the affidavit of desistance is attached was filed after the
institution of the criminal case. And, affiant did not appear to be serious in
'signifying (her) intention to refrain from testifying' since she still completed
her testimony notwithstanding her earlier affidavit of desistance. More, the
affidavit is suspect considering that while it was dated 'April 1992,' it was
only submitted sometime in August 1992, four (4) months after the
Information was filed before the court a quo on 6 April 1992, perhaps
dated as such to coincide with the actual filing of the case." 26
In People vs. Miranda, 27 applying the pertinent provisions of Article 344
of the Revised Penal Code which, in full, states -
"Art. 344. Prosecution of the crimes of adultery, concubinage,
seduction, abduction, rape, and acts of lasciviousness. The crimes of
adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse.
"The offended party cannot institute criminal prosecution without
including both the guilty parties, if they are both alive, nor, in any case, if
he shall have consented or pardoned the offenders.
"The offenses of seduction, abduction, rape or acts of
the offended party or her parents, grandparents, or guardian, nor, in any
case, if the offender has been expressly pardoned by the above named
persons, as the case may be.
"In cases of seduction, abduction, acts of lasciviousness and rape,
the marriage of the offender with the offended party shall extinguish the
criminal action or remit the penalty already imposed upon him. The
provisions of this paragraph shall also be applicable to the co-principals,
accomplices and accessories after the fact of the above-mentioned
crimes."
the Court said:
"Paragraph 3 of the legal provision above quoted prohibits a
prosecution for seduction, abduction, rape, or acts of lasciviousness,
except upon a complaint made by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender has been
expressly pardoned by the above-named persons, as the case may be. It
does not prohibit the continuance of a prosecution in the offended party
pardons the offender after the cause has been instituted, nor does it order
the dismissal of said cause. The only act that according to article 344
extinguishes the penal action and the penalty that may have been
imposed is the marriage between the offender and the offended party." 28
In People vs. Infante, 29 decided just a little over a month before Miranda,
the Court similarly held:
"In this court, after the case had been submitted, a motion to
dismiss was filed on behalf of the appellant predicated on an affidavit
executed by Manuel Artigas, Jr., in which he pardoned his guilty spouse
for her infidelity. But this attempted pardon cannot prosper for two
reasons. The second paragraph of article 344 of theRevised Penal
Code which is in question reads: 'The offended party cannot institute
criminal prosecution without including both the guilty parties, if they are
both alive, nor, in any case, if he shall have consented or pardoned the
offenders.' This provision means that the pardon afforded the offenders
must come before the institution of the criminal prosecution, and means,
further, that both the offenders must be pardoned by the offended party.
To elucidate further, article 435 of the old Penal Code provided: 'The
husband may at any time remit the penalty imposed upon his wife. In such
case the penalty imposed upon the wife's paramour shall also be deemed
to be remitted.' These provisions of the old Penal Code became
inoperative after the passage of Act No. 1773, section 2, which had the
effect of repealing the same. TheRevised Penal Code thereafter expressly
repealed the old Penal Code, and in so doing did not have the effect of
reviving any of its provisions which were not in force. But with the
incorporation of the second paragraph of article 344, the pardon given by
the offended party again constitutes a bar to the prosecution for adultery.
Once more, however, it must be emphasized that this pardon must come
before the institution of the criminal prosecution and must be for both
offenders to be effective — circumstances which do not concur in this
case." 30
The decisions speak well for themselves, and the Court need not say
more than what it has heretofore already held.
Relative to the prayer for the disqualification of Judge Savellano from
further hearing the case, the Court is convinced that Judge Savellano should,
given the circumstances, be best excused from the case. Possible animosity
between the personalities here involved may not all be that unlikely. The
pronouncement of this Court in the old case of Luque vs. Kayanan 31 could
again be said: All suitors are entitled to nothing short of the cold neutrality of an
independent, wholly-free disinterested and unbiased tribunal. Second only to
the duty of rendering a just decision is the duty of doing it in a manner that will
not arouse any suspicion as to the fairness and integrity of the Judge. 32 It is not
enough that a court is impartial, it must also be perceived as impartial.
The Court cannot end this ponencia without a simple reminder on the use
of proper language before the courts. While the lawyer in promoting the cause
of his client or defending his rights might do so with fervor, simple courtesy
demands that it be done within the bounds of propriety and decency. The use
of intemperate language and unkind ascriptions hardly can be justified nor can
have a place in the dignity of judicial forum. Civility among members of the legal
profession is a treasured tradition that must at no time be lost to it.
Finally, it may be opportune to say, once again, that prosecutors are
expected not merely to discharge their duties with the highest degree of
excellence, professionalism and skill but also to act each time with utmost
devotion and dedication to duty. 33 The Court is hopeful that the zeal which has
been exhibited many times in the past, although regrettably a disappointment
on few occasions, will not be wanting in the proceedings yet to follow.
WHEREFORE, conformably with all the foregoing, the Court hereby
RULES that —
(a) The submission of the "Affidavit of Desistance," executed by
Juvie-Lyn Y. Punongbayan on 25 June 1997, having been
filed AFTER the institution of Criminal Case No. 97-159935,
DOES NOT WARRANT THE DISMISSAL of said criminal
case;
(b) For FAILURE OF DUE PROCESS, the assailed judgment, dated
12 December 1997, convicting petitioners is declared NULL
AND VOID and thereby SET ASIDE; accordingly, the case is
REMANDED to the trial court for further proceedings; and
(c) Judge Maximo A. Savellano, Jr., presiding Judge of Branch 53
of the Regional Trial Court of Manila, is ENJOINED from
further hearing Criminal Case No. 97-159935; instead, the
case shall immediately be scheduled for raffle among the
other branches of that court for proper disposition .
No special pronouncement on costs.
SO ORDERED.
Melo, Kapunan, Martinez, Quisumbing and Purisima, JJ ., concur.
Narvasa, C .J ., took no part: related to one of counsel.
Separate Opinions
PUNO, J ., concurring and dissenting:
The facts are critical and need to be focused. Petitioners were charged
with rape in Criminal Case No. 15993 which was raffled to Br. 25 of the RTC of
Biñan, Laguna. The charge is principally based on the following affidavit dated
October 31, 1996 of Ms. Juvie-Lyn Punongbayan, a 16-year old minor, viz.:
REPLY-AFFIDAVIT
(TUGON SA MGA SALAYSAY NILA MAYOR BAYANI ALONTE, WELLA
CONCEPCION, RICARDO LACAYAN at JAIME MENDOZA)
Ako si JUVIE-LYN Y. PUNONGBAYAN, Filipino, walang asawa, 16
years old, at kasalukuyang nasa pangangalaga ng Department of Social
Welfare and Development, matapos makapanumpa ayon sa batas, ay
nagsasaad:
1. Wala pong katotohanan ang lahat nakasaad sa mga salaysay ni
Mayor Bayani Alonte at Buenaventura "Wella" Concepcion, ng kanilang
mga testigo na sila Ricardo (Ading) Lacayan y Aguilar at Jaime Bagtas
Mendoza.
2. Ang totoo po ay inabuso ako ni Mayor nung September 12,
1996, katulad nga ng naihayag ko na sa aking sinumpaang salaysay.
Ayon sa driver ng tricycle na nasakyan ko pagkatapos ng insidente, hindi
lang po ako, kundi marami pa pong babae ang inabuso ni Mayor. Sabi pa
nga ng driver ay naaawa siya sa akin, at lumaban daw ako. Tinawagan
ko na rin po ang lahat ng mga babae na naging biktima ni Mayor; wag
silang matakot, lumabas at ilahad ang pangaabuso ni Mayor.
Ang detalya nung panggagahasa
ni Alonte at ang partisipasyon
ni Wella Concepcion
3. Nakalahad po sa sumusunod na talata ang detalya ng pang-
aabuso sa akin ni Mayor. Pinakikita rin dito kung paano siya
nakipagsabwatan kay Wella Concepcion. Sa pamamagitan nito ay
mapapabulaanan na rin ang mga nakasaad sa salaysay nila at ng mga
testigo nila.
4. Nakilala ko si Wella Concepcion, dance instructor, nung
bandang last week ng August 1996. Noon ay naghahanda ako para sa
"Miss Education" beauty contest sa Perpetual Help College of Laguna.
Doon ako nag-aaral. First year college ako, at education ang kursong pinili
ko. Ang nasabing contest ay ginanap nung Sept. 20, 1996. Kapag
nagkikita kami ni Wella para sa ensayo, nagkukuwentuhan din kami, at
nabanggit niya na may kaibigan siyang bakla na nagdadala ng babae kay
Mayor Alonte. Waway daw ang pangalan ng bakla. Hindi ko pa kilala si
Waway noon.
5. Nung Sept. 7, niyaya ako ni Wella na sumali sa dance contest
sa "Sang Linggo NAPO SILA" sa Channel 2, na itatanghal sa Sept. 11,
1996. Wala na daw po akong aalalahanin. Siya daw ang bahala sa
costume at transportation. Pumayag ang nanay ko, dahil wala na kaming
gagastusin. Hindi ko tinanong kay Wella kung saan galing ang costume.
Akala ko may ipapagamit lang siya sa akin.
6. Nung Sept. 8, pinakilala ni Wella si Waway sa akin. Si Waway
ang nagturo sa amin ng sayaw para sa TV contest. Mula nung araw na
yon hanggang Sept. 10 ay nagsanay kami sa bahay ng kapatid ni Waway
sa St. Francis Subdivision, Biñan, Laguna. Tatlo kami sa dance group:
ako at ang dalawang lalaki na ipinakilala sa akin ni Waway: si Melchor at
Darius.
7. Nagpunta kami sa studio sa Delta nung Sept. 11. Bago kami
magsayaw, habang inaayos ni Wella yung damit ko, sinabi niya na dapat
manalo kami dahil si Mayor Alonte daw ang nag-sponsor ng costume
namin. Noon ko lang ito nalaman. Hindi kami nanalo sa contest, pero
nagkaroon pa rin kami ng premyong P1,500.00 na pinaghatian namin.
8. Pagkatapos ng contest, at nung nakapagpalit na ako ng damit,
binabalik ko kay Wella ang costume ko. Sabi niya iuwi ko daw ito dahil
gagamitin ko ito saMiss Education contest, sa presentation ng mga
candidates. Mula sa studio, nagpunta kaming lahat sa isang kainan sa
tapat ng Delta at, pagkatapos namin kumain, humiwalay yung ibang
kasama namin.
9. Dinala ako ni Wella sa isang department store at binili niya ako
ng sandals. Inikot niya ako sa lugar na yon at binili niya ako ng pagkain.
Tapos ay sumakay kami ng bus pauwi sa Laguna. Nung nasa bus
kami, niyaya ako ni Wella na magpunta sa bahay ni Mayor para
magpasalamat ng personal para sa costume namin. Pumayag ako at sabi
ko kay Wella na sunduin niya ako sa bahay ng 10:00 a.m. sa susunod na
araw, Sept. 12. Nakarating ako sa bahay ng 5:00 p.m. ng araw na yon,
Sept. 11.
10. Nung Sept. 12, hinintay ko si Wella ng 10:00 a.m. Nung hindi
siya dumating umalis kami ng Tita ko dahil sinamahan ko siya sa health
center. Sumunod pala si Wella doon, pero hindi kami nagkita kasi saglit
lang kami doon. Bumalik siya sa bahay, at doon na kami nagkita. Tapos
ay umalis kami ni Wella papunta kay Mayor. Tumawid kami ng kalye, at
pumara ako ng tricycle. Pero kahit marami na akong pinara, ayaw ni Wella
na sumakay doon. Maya-maya, may tricycle na dumating na hindi naman
pinara ni Wella. Basta huminto na lang sa harap namin. Doon kami
sumakay ni Wella. Si Wella ang nagturo sa driver kung saan kami
pupunta. Nag-uusap sila ng driver habang papunta kami kay Mayor.
11. Bumaba kami sa tapat ng bahay na bukas ang gate. May
swimming pool sa loob, alam na alam ni Wella and pasikot-sikot nang
bahay tuloy-tuloy siya sa loob at sumunod naman ako. Wala kaming taong
nakita, pero bukas pati yung pintuan ng bahay. Dinala ako ni Wella sa
sala. Napakaganda ng loob ng bahay. Mayroong wallpaper na may design
na leaves and flowers; may carpet sa sahig. May mahabang hagdan
patungo sa dalawang pintuan.
12. Tinanong ko kay Wella kung nasaan si Mayor. Sabi niya ay
nasa munisipyo daw; darating na daw maya-maya. Pagkaraan ng mga 15
minutes, dumating si Mayor na nakasakay sa green na kotse. Lumabas
siya sa kaliwang pintuan sa harap ng kotse. Wala siyang kasama.
13. Pumasok si Mayor sa loob ng bahay. Naghubad siya ng
sapatos. Sabi ni Wella: "Mayor, si Juvie; Juvie si Mayor."
14. Umupo si Mayor sa tabi ko. Kinamayan niya ako at sinabi niya:
"Hi, I'm Arthur" sabay hinalikan niya sa ako sa lips. Hindi ako naka-react
dahil nagulat at kinabahan ako.
15. Nagmamadaling nagpaalam si Wella. Kinuha ni Mayor ang
wallet sa bulsa sa likod ng kanyang pantalon. Dumukot siya ng P1,000 na
buo. Inabot niya ito kay Wella. Patayo na ako pero hinawakan ni Mayor
ang braso ko. Wag daw akong sasama kay Wella. Sinabi ko kay Wella na
wag niya akong iiwanan, pero parang wala siyang narinig. Basta tuloy-
tuloy siyang umalis.
16. Nung kami na lang ni Mayor ang natira, pinainom niya ako ng
mineral water. Uminom ako dahil nauuhaw ako. Nanlabo ang paningin ko
at nanghina ako.
17. Nawalan ako ng malay. Ang sumunod ko na lang na
natatandaan ay nandoon na ako sa kwarto. Wala akong damit.
Nakadagan si Mayor sa akin. May malaking salamin sa pader. Doon ko
nakita na walang kadamit-damit si Mayor.
18. Hawak ako ni Mayor sa magkabilang braso. Pinipisil niya ito
kaya nagkaroon ako ng pasa sa kaliwang braso (at ito ay nawala lang
pagkatapos ng tatlong araw).
19. Naramdaman ko na pilit na pinasok ni Mayor ang ari niya sa
aking ari. Nasaktan ako. Nagmakaawa ako. Umiiyak ako nung sinabi ko
sa kanya na tigilan niya ako; nasasaktan ako; may anak rin siyang babae.
Sabi niya wag daw akong maingay at i-embrace ko na lang daw siya. Lalo
akong umiyak dahit nandidiri ako sa kanya, at sa ginagawa niya sa akin.
Naghalo ang galit, pandidiri at takot. Wala akong magawa kundi
magmakaawa. Hindi ko siya maitulak dahil nanghihina ako, nakadagan
siya sa akin, mataba siya, at hawak-hawak niya ang braso ko. Pero kahit
nagmamakaawa ako, tinuloy pa rin niya at pinasok niya ulit ang ari niya
sa aking ari.
20. Maya-maya ay tumigil siya. Tumayo siya at sabi niya: "ang
panty mo, nasa tabi mo." Kinuha ko ang panty ko, tumayo ako at sinuot
ko ito. Hinanap ko ang damit ko, at nakita ko ang walking shorts, bra at t-
shirt ko sa sahig. Pinulot ko ito at sinuot ko. Habang sinusuot ko, umiiyak
pa rin ako. Pagkatapos kong magbihis, umupo ako sa mahabang upuan
sa may gilid ng kama.
21. Samantala, pagkatapos sabihin ni Mayor na nasa tabi ko ang
panty ko, nagpunta siya sa banyo na transparent ang pinto. Wala siyang
suot pagpunta niya doon. Paglabas niya, nakasuot na siya ng checkered
brief na kulay black and white. Pumunta siya sa kabilang gilid ng kama.
Kinuha niya ang damit niya na nakahanger sa pader. Sinuot niya ito.
Lumabas siya ng kwarto. Hindi nagtagal ay pumasok siya ulit at sinabi
niya na nandiyan na daw ang sundo ko.
22. Tumayo ako. Sinabi ko na aalis na ako. Nung papunta na ako
sa pintuan, lumapit si Mayor sa akin. May hawak-hawak siyang dalawang
pirasong P1,000. Tiniklop niya ito; binaba niya yung neckline ng t-shirt ko,
at pinasok niya ang pera sa aking bra. Nagalit ako. Kinuha ko ang pera at
tinapon ko ito sa kanya. Sabi ko hindi ako bayarang babae. Nagalit siya
at pinagbantaan ako. Sabi niya: "Pag nagsalita ka, alam mo na kung ano
ang mangyayari sa iyo." Tiningnan ko siya, at umalis ako pababa.
23. Mayroon tricycle na nakaabang sa labas. Sumunod si Mayor.
Lumapit siya sa driver at binigyan niya ito ng P100. Tapos ay umalis na
kami.
24. Umiiyak pa rin ako nung nasa tricycle. Sabi ko sa driver na
ginahasa ako ni Mayor. Sabi niya masuwerte daw ako at maaga akong
pinauwi dahil yung mga ibang babae daw na dinadala kay Mayor ay
pinauwi ng madaling-araw o hating-gabi. Minsan, dalawa o tatlo pa nga
daw ang dinadala doon, at yung iba ay naka-uniform pa. Naaawa daw
siya sa akin, kaya magsumbong daw ako. Nakokonsensiya daw siya dahil
isa siya sa dalawang tricycle driver na naghahatid ng mga babae doon.
Sabi pa nga niya, babae din daw ang ina niya, kaya din siya
nakokonsensiya. Dinagdag pa niya na kung may kasiyahan kina Mayor,
isang van ng mga babae ang nadoon. Pagdating namin sa bahay ng Lola
ko, sabi niya bago siya umalis: "Lumaban ka."
On December 13, 1996, the private complainant thru her
counsel, Atty. Remedios C. Balbin and Asst. Chief State Prosecutor Leonardo
Guiab, Jr., of the Department of Justice petitioned this Court for a change of
venue. They cited as ground the great danger to the lives of both the private
complainant, the immediate members of her family, and their witnesses as they
openly defy the principal accused, Mayor Alonte who is acknowledged as a
powerful political figure and almost an institution in Biñan, Laguna . . ."
On March 31, 1997, the private complainant, thru the then Secretary of
Justice, the Honorable Teofisto Guingona and Chief State Prosecutor Jovencio
Zuno filed a Manifestation and Motion for the early resolution of the petition for
change of venue. They submitted the affidavits of the private complainant, her
counsel Atty. Remedios C. Balbin, Dolores Mercado-Yambao, Bienvenido
Salandanan and Evelyn Celso to prove their allegation that they "are exposed
to kidnapping, harassment, veiled threats and tempting offers of bribe money
— all intended to extract an 'affidavit of desistance' from the private
complainant." Worth bright lining are the two (2) affidavits of Atty. Remedios
C. Balbin, counsel for the private complainant, relating the fantastic amount of
P10M bribe money allegedly offered to her. The first affidavit dated February
24, 1997 states:
I. Remedios C. Balbin, of legal age, Filipino, married, with
residence at #5 Uranus Street, Congressional Avenue Subdivision,
Quezon City, after having duly sworn in accordance with law, depose and
say:
1. That I am the Private Prosecutor in Criminal Case No. 96-19-B
for rape, filed with the Biñan RTC, Branch 25, entitled 'People of the
Philippines vs. Bayani Arthur Alonte, et al.;
2. That as Private Prosecutor, it is my avowed duty to be faithful to
the interests of my client, Ms. Juvie-lyn Punongbayan;
3. That on several occasions, I was visited at my Office at the
Quezon City Hall Compound, by a lawyer who introduced himself as Atty.
Leo C. Romero, representing the Accused Mayor Bayani Arthur Alonte;
4. That my calendar at the People's Bureau, Quezon City Hall,
shows that he came to see me about eight (8) times, but we talked only
about three (3) timesbecause I was always busy attending to the problems
of Quezon City's urban poor and the landowners of private properties
illegally occupied by them;
5. That in two (2) occasions, Atty. Romero conveyed to me the
message of Mayor Alonte, namely, to drop the rape case against him, and
that he would give a consideration of Ten Million Pesos (P10 Million) to
be apportioned as follows:
Five Million Pesos (P5M) — for the Private Complainant
Three Million Pesos (P3M) — for me as Private Prosecutor
Two Million Pesos (P2M) — for him as the mediator
6. That I explained to Atty. Romero that money does not matter at
all to the Complainant and her family even if they have very modest
means; that they want justice, which means a conviction for the charge of
rape;
7. That I also explained to Atty. Romero that the money he was
offering me was of no consequence to me because I had access to the
resources of my two (2) daughters, both of whom are in the medical field
abroad, and of Mr. Filomeno Balbin, Labor Attache then assigned in
Riyadh;
8. That I told him that I cannot be tempted with his offer because
spiritual consideration are more important to me than the material. Also,
that I usually handle cases pro bono (at abunado pa) where the litigant is
in dire need of legal assistance but cannot afford to pay for the lawyer's
fees, as in Juvie-lyn's case;
9. That I gave Atty. Romero a copy of the decision of the Supreme
Court promulgated December 10, 1996, entitled "People of the Philippines
vs. Robert Cloud" (GR No. 119359; Crim. Case No. Q-90-12660) for
parricide involving the death of a 2 1/2 year old boy. I wrote on page one
of the xerox copy of the decision: 'To Atty. Leo Romero — so you will
understand,' and to which I affixed my signature.
10. That I told him explicitly: 'we cannot simplify the entire
proceedings. You advise Mayor Alonte to surrender (one mitigating
circumstance), plead guilty (another mitigating circumstance), get a
conviction and suffer the corresponding penalty. Otherwise, we have
nothing to talk about.'
11. That I emphasized that his suggestion for Mayor Alonte to
plead guilty to 'act of lasciviousness' merely was ridiculous;
12. That when the Complainant's Affidavit on the offer of Ms. Emily
Vasquez for a valuable consideration in exchange for an affidavit of
desistance in the rape was exposed by media, Atty. Romero came to see
me and thanked me for not exposing him in similar fashion. I assured him
that he will not be an exception and that I was just too busy then to execute
an affidavit on the matter, as I do now;
13. That I have not received other similar offers of valuable material
consideration from any other person, whether private party or government
official. However, I have been separately advised by several concerned
persons that I was placing my personal safety at great risk. The victim's
family will have great difficulty in finding another lawyer to 'adopt' them in
the way I did, which gives them strength to pursue their case with
confidence and the accused Mayor is aware that I am the obstacle to an
out-of-court settlement of the case. Also, that I had my hands full, as it is,
as the Head of the QC People's Bureau, Housing Development Center,
and Special Task Force on Squatting and Resettlement, and the
numerous cases filed by me or against me, connected with my
performance of official duties, and I should not add more legal problems
despite my authority to engage in private law practice.
14. That this affidavit is executed in order to put on record the
attempt to influence me directly, in exchange for valuable consideration to
drop the rape charge against Mayor Bayani Arthur Alonte.
February 24, 1997, City of Manila.
SGD. REMEDIOS C. BALBIN
REMEDIOS C. BALBIN
SUBSCRIBED AND SWORN to before me this 26th day of March,
1997, Metro Manila.
Community Tax Certificate - 5208733
Date Issue 2-10-97
Quezon City
NOTARY PUBLIC
SGD. JUANITO L. GARCIA

ATTY. JUANITO L. GARCIA
NOTARY PUBLIC
UNTIL Dec. 31, 1997
PTR No. 63-T-033457
ISSUED AT MLA. ON 1-2-97
TAN-161-570-81
Doc. No. 950;
Page No. 170;
Series of 1997."
In her second Affidavit dated March 26, 1997, Atty. Balbin declared in no
uncertain language that the bribe offer for private complainant to make a
desistance was increased from P10,000,000.00 to P20,000,000.00, viz:
"REPUBLIC OF THE PHILIPPINES )
CITY OF MANILA ) s.s.
"AFFIDAVIT
"I, REMEDIOS C. BALBIN, of legal age, Filipino, married, and with
postal address at No. 5 Uranus Street, Congressional Avenue
Subdivision, Quezon City, after having duly sworn in accordance with law,
depose and say:
"1. That I am the Private Prosecutor in the rape case filed by the
minor Juvie-Lyn Punongbayan against Mayor Bayani Arthur Alonte of
Biñan, Laguna;
"2. That earlier, I reported to Secretary Teofisto Guingona, State
Prosecutor Jovencio R. Zuno, Asst. Chief State Prosecutor Leonardo
Guiyab, Jr., and Director Jude Romano of the Witness Protection
Program, the instances of offers of substantial amounts amounting to
several millions, to my client, to her relatives, including her maternal
grandmother, and to myself;
"3. That despite the published declaration by the Department of
Justice of its determination to prosecute those who offered the bribes, new
emissaries of Mayor Alonte persist in making offers, as follows:
"a. On Thursday, March 6, 1997, at about 3:15 o'clock in the
afternoon, Atty. Dionisio S. Daga came to see me at my office at
the People's Bureau, Office of the Mayor, of Squatting case which
I filed against his clients;
"b. That after a brief exchange on the status of the case, he
confided to me his real purpose; cdrep
"c. That he started off by saying that he was the legal

counsel of the gambling lords of Malabon for which he gets a
monthly retainer of fifteen thousand pesos (P15,000.00), exclusive
of transportation expenses, etc.;
"d. The he also stated that the network of gambling lords
throughout the country is quite strong and unified;
"e. That I then asked him: 'What do you mean — is Alonte
into gambling too? that he is part of the network you speak of?'
"f. That Atty. Daga did not reply but instead said: 'they are
prepared to double the offer made to you by Atty. Romero which
was published in the newspapers' at P10 Million;
"g. That I told him that all the money in the world will not
make me change my position against my client's executing a
desistance, and that only Alonte's voluntary surrender, plea of
guilty in rape, conviction and the imposition of the corresponding
penalty will satisfy the ends of justice;
"h. That I told him that my client's case is not isolated, there
being five (5) other minors similarly placed; and Alonte should be
stopped from doing more harm;
"i. That Atty. Daga then told me in Pilipino 'if you do not
accede to a desistance, then, they will be forced to . . .'.
"j. That because he did not complete his sentence, I asked
him directly: 'What do you mean? What do you intend to do? And
he replied: Go on with the case; Buy the Judge.'
"k. That unbelieving, I reacted, saying; 'but they have
already done so, Judge Francisco at Biñan suddenly changed his
attitude towards the Prosecution. Perhaps, you are referring to the
next Judge when the petition for change of venue is finally
granted?'
"l. That Atty. Daga did not reply, and he reiterated that his
principals, referring to them again as 'gambling lords,' want a
desistance, after which he excused himself and left.
"4. That I execute this Affidavit to attest to the truth of the incident
with Atty. Dionisio S. Daga which occurred in the afternoon of March 6,
1997, at my Office, stressing herein my surprise over his daring in making
yet another monetary offer to me in exchange for my client's desistance,
and my feeling of fear for the first time since I started 'handling' this case
against Alonte;
"5. That despite what I perceived as veiled threats of Atty. Daga, I
will seek justice in behalf of Juvie-Lyn Punongbayan, with the
indispensable initiatives, participation and support of the Department of
Justice under Secretary Teofisto Guingona.
"FURTHER AFFIANT SAYETH NAUGHT.
SGD. REMEDIOS C. BALBIN
ATTY. REMEDIOS C. BALBIN
Affiant
"REPUBLIC OF THE PHILIPPINES )
CITY OF MANILA ) s.s.
SUBSCRIBED AND SWORN TO BEFORE ME this 26th day of
March, 1997.
Community Tax Certificate — 5208733
Date Issued 2-10-97
Quezon City
NOTARY PUBLIC
SGD. JUANITO L. GARCIA

ATTY. JUANITO L. GARCIA
NOTARY PUBLIC
UNTIL Dec. 31, 1997
PTR No. 63-T-033457
ISSUED AT MLA. ON 1-2-87
TAN-161-570-81
Doc. No. 948;
Book No. 190;
Page No. XLIII;
Series of 1997."
After the alleged bribe money was increased from P10M to P20M the
complexion of the case changed swiftly.
On June 25, 1997, Atty. Balbin filed a Motion to Resume Proceedings in
Br. 25 of the RTC of Biñan, Laguna. Attached to the Motion was the Affidavit of
Desistance of the private complainant which states:
"I, Juvie-lyn Yambao Punongbayan, 17 years of age, a resident of
No. 5 Uranus Street, Congressional Avenue Subdivision, Quezon City,
duly assisted by private legal counsel and my parents, after having duly
sworn in accordance with law, depose and say:
"1. That I am the Complainant in the rape case filed against Mayor
Bayani 'Arthur' Alonte of Biñan, Laguna, with the RTC-Branch 25 of Biñan,
Laguna;
"2. That the case has been pending for some time, on preliminary
issues, specifically, (a) change of venue, filed with the Supreme Court; (b)
propriety of the appeal to the Court of Appeals, and after its denial by said
court, brought to the Office of the President, on the veracity of the findings
of the Five-Man Investigating Panel of the State Prosecutor's Office, and
the Secretary of Justice, and (c) a hold-departure order filed with the Biñan
Court;
"3. That the legal process moves ever so slowly, and meanwhile, I
have already lost two (2) semesters of my college residence. And when
the actual trial is held after all the preliminary issues are finally resolved, I
anticipate a still indefinite suspension of my schooling to attend the
hearings;
"4. That during the entire period since I filed the case, my family
has lived a most abnormal life: my father and mother had to give up their
jobs; my younger brother, who is in fourth grade, had to stop his schooling,
like myself;
"5. That I do not blame anyone for the long, judicial process, I
simply wish to stop and live elsewhere with my family, where we can start
life anew, and live normally once again;
"6. That I pray that I be allowed to withdraw my complaint for rape
and the other charge for child abuse wherein the Five-Man Investigating
Panel of the Office of the State Prosecutor found a prima facie case
although the information has not been filed, and that I will not at any time
revive this, and related cases or file new cases, whether criminal, civil,
and or administrative, here or anywhere in the Philippines;
"7. That I likewise realize that the execution of this Affidavit will put
to doubt my credibility as a witness-complainant;
"8. That this is my final decision reached without fear or favor,
premised on a corresponding commitment that there will be no reprisals
in whatever form, against members of the police force or any other official
of officer, my relatives and friends who extended assistance to me in
whatever way, in my search for justice.
"WHEREOF, I affix my signature this 25 day of June, 1997, in
Quezon City.
SGD. JUVIE-LYN Y. PUNONGBAYAN
JUVIE-LYN Y. PUNONGBAYAN
"Assisted by:
(Sgd) ATTY. REMEDIOS C. BALBIN
ATTY. REMEDIOS C. BALBIN
Private Prosecutor
In the presence of:
(Sgd) PABLO PUNONGBAYAN
PABLO PUNONGBAYAN
Father
(Sgd) JULIE Y. PUNONGBAYAN
JULIE Y. PUNONGBAYAN
Mother
"SUBSCRIBED AND SWORN to before me this 25 day of June,
1997, in Quezon City.
"(Sgd) ILLEGIBLE
Administering Officer
RTC Branch 94
Quezon City"
Obviously, the Motion to Resume Proceedings was intended to get the trial
court's approval for the dismissal of the rape case against the petitioners. cdasia
Indeed, three days thereafter or on June 28, 1997, Atty. Ramon C.

Casino moved in behalf of the petitioners to dismiss the petition for change of
venue then pending in this Court citing the affidavit of desistance of the private
complainant. On August 22, 1997, however, Asst. Chief State Prosecutor
Guiyab opposed the motion. He alleged that he has control of the prosecution
of the rape case and that he was not aware of the desistance of the private
complainant.
The legal maneuvers to dismiss the rape case against the petitioners on
the basis of the alleged affidavit of desistance of the private complainant did not
find the favor of this Court. On September 2, 1997, this Court unanimously
granted the petition for change of venue, ruling among others, viz:
xxx xxx xxx
"These affidavits give specific names, dates and methods being
used to abort, by coercion or corruption, the prosecution of Criminal Case
No. 9619-B. It is thus incorrect for oppositors Alonte and Concepcion to
contend that the fear of the petitioner, her private counsel and her
witnesses are too generalized if not fabricated. Indeed, the probability that
in desisting from pursuing her complaint for rape, petitioner, a minor, may
have succumbed to some illicit influence and undue pressure. To prevent
possible miscarriage of justice is a good excuse to grant the petition to
transfer the venue of Criminal Case No. 9619-B from Biñan, Laguna to
the City of Manila.
"IN VIEW WHEREOF, the Petition for Change of Venue from
Biñan, Laguna to the City of Manila is granted. The Executive Judge of
RTC Manila is ordered to raffle Crim. Case No. 9619-B to any of its
branches. The judge to whom Crim. Case No. 9619-B shall be raffled shall
resolve the petitioner's Motion to Resume Proceedings filed in Br. XXV of
the RTC of Biñan, Laguna and determine the voluntariness and validity of
petitioner's; desistance in light of the opposition of the public prosecutor,
Asst. Chief State Prosecutor Leonardo Guiyab. The branch clerk of court
of Br. XXV of the RTC of Biñan, Laguna is ordered to personally deliver to
the Executive Judge of Manila the complete records of Crim. Case No.
9619-B upon receipt of this Resolution."
On September 17, 1997, Criminal Case No. 9619-B (re-docketed by the
Clerk of Court of Manila as Crim. Case No. 97-159955) was raffled to Br. 53 of
the RTC of Manila, presided by the respondent judge, the Honorable Maximo
A. Savellano.
On October 9, 1997, the respondent judge issued warrants of arrest
against the petitioners after a finding of probable cause.
On October 28, 1997, an Administrative Order of the DOJ was issued
empowering First Assistant City Prosecutor Marilyn R. O. Campomanes to
prosecute the case at bar. Asst. Chief State Prosecutor Leonardo Guiab, Jr.,
who opposed the affidavit of desistance was relieved from the case. The reason
given in the Administrative Order was ". . . in the interest of public service."
Prosecutor Campomanes was authorized "to move for its (case) dismissal if the
evidence on record so warrant. . ." 1
The arraignment of the petitioners took place on November 7, 1997. The
State was represented by Prosecutor Marilyn Campomanes. Petitioner Alonte
was represented by Atty. Jose Flaminiano and Atty. Sigfrid A. Fortun. Petitioner
Concepcion was represented by Atty. Ramon C. Casano. Atty. Remedios
Balbin who had previously exposed under oath the threats to the life of the
private complainant and her witnesses and the repeated attempts to buy
complainant's desistance was absent. 2
Petitioners pled not guilty to the charge of rape upon their
arraignment. 3 Pre-trial was then waived by both the prosecution and the
defense. The proceedings continued and Prosecutor Campomanes presented
the private complainant, Ms. Punongbayan who testified on her affidavit of
desistance. She declared that her desistance was her "personal" decision with
the consent of her parents. 4 She said she was neither paid nor pressured to
desist. On questions by the respondent judge, however, she affirmed the truth
of her affidavit dated October 31, 1996 that she was raped by petitioner
Alonte. Prosecutor Campomanes marked and offered her affidavit of
desistance as Exhibit "A". 5 She called on other witnesses to testify on the
voluntariness of the affidavit of desistance. The parents of the complainant—
Pablo 6 and Julie 7 Punongbayan — declared that they did not receive any
monetary consideration for the desistance of their minor daughter. Neither were
they pressured to give their consent to the desistance. Fourth Asst. Provincial
Prosecutor Alberto Nofuente averred that the affidavit of desistance was signed
and sworn to before him in the presence of the complainant's parents and
private counsel, Atty. Balbin. He said he explained the affidavit to them and that
the complainant voluntarily signed the same. 8
After their testimonies, Prosecutor Campomanes made the manifestation
that "with the presentation of our witnesses and the marking of our documents
(sic) we are now closing the case and that we are praying for the dismissal of
the case." 9 The respondent judge ruled "the case is submitted for
decision.'' 10 Atty. Flaminiano orally prayed that petitioner Alonte be granted bail
and Prosecutor Campomanes offered no objection. 11
On November 10, 1997, petitioner Alonte filed an Urgent Motion to Admit
to Bail. 12 In her Comment, Prosecutor Campomanes agreed and
averred, viz.: 13
xxx xxx xxx
1. That she received a copy of the Petition for Bail.
2. That on the hearing of the instant case on November 7, 1997, the
Prosecution presented its witnesses who vehemently signified their
intention not to further prosecute the case in Court, and there being
no other witnesses to present, the undersigned is left with no
alternative but to seek the dismissal of the instant case considering
that without the testimony of said witnesses this case has nothing
to stand on in Court.
3. That for the aforestated reason, the People interposes no objection to
the granting of Bail and in fact justice and equity dictate that it joins
the accused in his prayer for the granting of bail in the amount of
P150,000 (ONE HUNDRED FIFTY THOUSAND PESOS).
4. That for the aforementioned bases, the People hereby manifests its
position that the case be immediately dismissed or at least the
accused be granted bail since the record proves that there is no
more evidence to sustain the charge against him such that the
granting of bail is proper and in order.
5. That as a general rule, a hearing on the petition for bail is necessary to
prove that the guilt is not strong but in this particular case there is
no need for hearing since the prosecution cannot prove its case
against the accused as it has no other evidence or witnesses to be
presented.
On November 17, 1997, petitioner Alonte, thru counsel, filed an Urgent
Plea to Resolve the Motion for Bail. 14 On the same date, Prosecutor
Campomanes manifested that "she deems it proper and in accord with justice
and fair play to join the aforestated motion." 15
On November 25, 1997, December 1, 1997, December 8, 1997 and
December 10, 1997, petitioner Alonte filed a Second, Third, Fourth, and Fifth
Motion for earlyresolution of his petition for bail. 16 In all these motions, Atty.
Fortun, counsel of petitioner Alonte, alleged that copy of the motion "... could
not be served in person upon the private prosecutor" (Atty. Balbin) in light of
the distance between their offices. 17 He relied on section 13, Rule 11 of the
1997 Rules on Civil Procedure. The motions were not resolved by the
respondent judge.
On December 18, 1997, the respondent judge promulgated his Decision
convicting the petitioners and sentencing them to reclusion perpetua. On
whether of the affidavit of desistance can be a ground for dismissal of the rape
case against the petitioners, the respondent judge held:
"The first issue to be determined and resolved is the 'voluntariness
and validity of petitioner's desistance in the light of the opposition of the
public prosecutor Asst. Chief State Prosecutor Leonardo Guiab.' (p. 7, SC
Resolution En Banc, dated September 2, 1997; [Rollo, p. 253]) It is
appropriate to quote again a portion of the 7-page Resolution En Banc of
the highest tribunal, to wit; 'Indeed, the probability (exists) that in desisting
from pursuing her complaint for rape, petitioner, a minor, may have
succumbed to some illicit influence and undue pressure. To prevent
possible miscarriage of justice is a good excuse to grant the petition for
change of venue . . . (Rollo, p. 202).
"The Court shall narrate the facts leading to the desistance of the
private complainant which are embodied in the two (2) affidavits of
her lawyer, Atty. Remedios C. Balbin, with whom the private complainant
lives at No. 5 Uranus St., Congressional Avenue Subdivision, Quezon
City. One affidavit is dated May 24, 1997, (sic) while the other one is dated
March 26, 1997. The said affidavits are attached as exhibits to the
aforementioned Manifestation and Motion for the Resolution of Petition for
Change of Venue filed by the private complainant Juvie-Lyn Y.
Punongbayan. Exh. "C", dated May 24, 1997, (Rollo, pp. 216-219) is
hereby quoted as follows:
xxx xxx xxx
It clearly appears in the abovequoted affidavit that repeated bribe
offers from a lawyer representing the accused Mayor Bayani Arthur Alonte
in the total amount of Ten Million Pesos (P10,000,000.00) were made to
Atty. Balbin, allocated as follows: (1) Five Million Pesos (P5,000,000.00)
for the private complainant Juvie-lyn Y. Punongbayan; (2) Three Million
Pesos (P3,000,000.00) for her (Atty. Balbin); and (3) Two Million Pesos
(P2,000,000.00) for the mediator.
In the subsequent affidavit, dated March 26, 1997, executed by
Atty. Remedios C. Balbin (Exh. F, Rollo, pp. 224-225) she narrated in
detail the continuing veiled threats and the very tempting and escalating
offer to increase the amount of the bribe money offered to her and the
private complainant after her first affidavit, by doubling the first offer of Ten
Million Pesos (P10,000,000.00) to Twenty Million Pesos
(P20,000,000.00), in exchange for her client's desistance, but also
accompanied with veiled threats, if refused. Said affidavit is quoted, as
follows:
xxx xxx xxx
The Court underscores paragraphs (b), (c), (d), (e), (f), (g), (h), (i),
(j), (k), and (l), particularly paragraphs (i), (j) and specially paragraph (k)
of the abovequoted affidavit of Atty. Balbin which insinuates that the
presiding Judge of the RTC Biñan, Laguna, had already been bought, and
that accused Alonte, thru his numerous emissaries, will also buy or bribe
the 'the next judge when the petition for change of venue is finally granted.'
In view of this insinuation, the undersigned presiding Judge is very careful
in deciding this case, lest he be placed under suspicion that he is also
receiving blood money that continues to flow. The Court wants to have
internal peace — the peace which money cannot buy. Money is not
everything. It is said that money is the root of all evil. The Holy Scriptures
also remind judges and jurists: 'You shall not act dishonestly in rendering
judgment. Show neither partiality to the weak nor deterrence to the mighty,
but judge your fellow men justly.' (Leviticus 19:15). The Scriptures further
say: 'What does it profit a man if he gains the whole world but suffers the
loss of his soul?' (Mt. 16:26) and 'No one can serve two (2) masters. . .
You cannot serve God and mammon.' (Mt. 6:24, Luke 16:13). It is not out
of place to quote the Holy Scriptures because the Honorable Supreme
Court has been doing so in its quest for truth and justice. Thus, People vs.
Garcia, 209 SCRA 164, 174, the highest tribunal, in ruling that the flight of
an accused is evidence of guilt on his part, quoted the old Testament, as
follows:
"It was written in the literature of Old Testament several
centuries ago that:
'The wicked man fleeth though no man pursueth, but the
righteous are as bold as a lion.
(Proverbs, 28:1)'
Subsequently, on June 25, 1997, the private complainant and her
lawyer suddenly somersaulted or changed their common positions or
attitudes in the prosecution of this case. Evidently, veiled threats and
money had replaced the 'spiritual consideration' which earlier, to them
were 'more important than the material' to quote Atty. Balbin in her first
affidavit (Rollo, p. 217), and her reply to Atty. Dionisio S. Daga that 'all the
money in the world will not make me change my position against my
client's executing a desistance, and that only Alonte's voluntary surrender,
plea of guilty to rape, conviction and the imposition of the corresponding
penalty will satisfy the ends of justice.
On June 26, 1997, the private complainant, thru her counsel, Atty.
Remedios C. Balbin, filed a Motion to Resume Proceedings, dated June
25, 1997, (Rollo, pp. 238-244) praying therein that the RTC, Biñan,
Laguna, where this case was still pending, vacate its Order to Suspend
Hearings, to enable it to act on all incidents including private
Complainant's Affidavit of Desistance attached thereto. (Rollo, pp. 240-
241) which affidavit of desistance is quoted hereunder as follows:
xxx xxx xxx
This Court, as the trier of facts, is tasked by the highest tribunal to
find out if the private complainant, a minor 'may have succumbed to some
illicit influence and undue pressure, in order to prevent a possible
miscarriage of justice.' Evidently, the veiled threats and acceptance of the
bribe money in allocated amounts which was subsequently raised to the
irresistible amount of at least P20,000,000.00, compelled, impelled and/or
tempted the private complainant, her father Pablo Punongbayan and her
mother Julie Y. Punongbayan, and her lawyer and private prosecutor Atty.
Remedios C. Balbin, who did not appear in Court on November 7, 1997,
despite notice, to execute the said 'Affidavit of Desistance' which was the
ultimate goal of the accused. It is very obvious that the private
complainant, a minor, 'succumbed to some illicit influence and undue
pressure,' to borrow the language of the Honorable Supreme Court En
Banc. It would be the height of extreme naivete or gullibility for any normal
individual to conclude otherwise. The Court does not believe that the
private complainant, her lawyer, and her parents did not receive a single
centavo when they executed and signed the said affidavit of desistance.
The private complainant was definitely lying and/or somebody taught her
to lie when she testified in Court on November 7, 1997 that she has 'not
received any single cent.'
This Court cannot close its eyes to the realities in this case. It
cannot play the role of blind, deaf and dumb or one who has eyes but
cannot see or refuses to see. It cannot live in a world of make believe or
let us say pretend. The 'Affidavit of Desistance' executed by the private
complainant assisted by her lawyer and signed by her parents, was and
is undoubtedly, heavily tainted with acceptance of bribe money which
together with the continuing veiled threats accompanying the
same, invalidated the said affidavit. The rule of law, and not the roll of
money and threats, should and must prevail."
On December 19, 1997, petitioner Alonte filed a Motion for
Reconsideration. Petitioner assailed his conviction without due process of law
and the refusal of the respondent judge to dismiss the case in light of the
desistance of the private complainant. He argued:
xxx xxx xxx
"In People vs. Caruncho, L-57804, January 23, 1984, 127 SCRA
16, the Supreme Court made ineluctably clear that it is the right of an
offended party to withdraw the further prosecution of a grievance
especially where, as in this case, a personal offense is the subject thereof:
'. . . True it is, that in criminal cases society is the ultimate
aggrieved party for which reason the People of the Philippines is
designated as the plaintiff. True it is also that except as provided in
Article 344 of the Revised Penal Code, a pardon by the private
offended party does not extinguish criminal liability. And true it is
further that the dropping of criminal cases by the execution of
affidavits of desistance by complainants is not looked with
favor. These are Hornbook doctrines.But what is actually done in
our criminal justice system?" First, there is plea bargaining between
the prosecution and the defense. For instance, murder is charged
but in exchange for a plea of guilty the charge is reduced to
homicide and the accused is allowed to claim a number of
mitigating circumstances. It is not uncommon for estafa, libel,
physical injuries and even homicide cases to be dismissed
because the complainant has lost interest or alleged that the
complaint was filed as a result of a misunderstanding. A number of
examples can be given and they can fill a book.'
Again, in People vs. Evangelista, L-45089, April 27, 1982, 113
SCRA 713, 720, the Supreme Court further declared:
'It may be noted that the crimes in question (forcible
abduction with rape) are among those enumerated in Article 344 of
the Revised Penal Code, which crimes cannot be prosecuted de
officio. In other words, the crimes of abduction and rape are in the
nature of private offense, inasmuch as the law has reposed 'the
right to institute such proceedings exclusively and successively in
the offended person, her parents, grandparents or guardian' . . .
Accordingly, if after filing the complaint the offended party in the
case at bar decided that she was unable to face the scandal of
public trial, or, if for some private reason she preferred to suffer the
outrage in silence, then, corollary to her right to institute the
proceedings, she should have been allowed to withdraw her
complaint and desist from prosecuting the case (Emphasis
supplied)."
Petitioner Concepcion did not submit any motion for reconsideration. Without
waiting for the resolution of his motion for reconsideration, petitioner Alonte
repaired to this Court. So did petitioner Concepcion.
Without doubt, the petitions at bar raise two (2) fulcrum issues: (1) the
correctness of the ruling of the respondent judge that the desistance of the
complainant is not a ground to dismiss the rape charge against the petitioners,
and (2) the invalidity of petitioners' conviction on the ground of denial of due
process. Cdpr
I agree with the learned disquisition of Mr. Justice Vitug that we should
set aside the conviction of the petitioners for patent violation of their right to due
process of law. I write this Separate Opinion to highlight the erroneousness of
the shocking stance of the State Prosecutor that the rape charge should be
dismissed in view of the desistance of the private complainant. But our ruling
giving no effect on the affidavit of desistance should not based on the reason
that it was procured by threat or intimidation or any payment of money as the
respondent judge opined in his Decision. The respondent judge arrived at this
conclusion on the basis of the affidavits of Atty. Balbin, the counsel of the private
complainant. This is erroneous for Atty. Balbin was never called to the witness
stand to testify on the truth of her affidavits. Her affidavits therefore are hearsay
evidence and should not have been relied upon by the respondent judge. The
affidavit of desistance cannot abort the rape charge against the petitioners on
the simple ground that it did not state that the private complainant-affiant was
not raped by petitioner Alonte. In truth, the private complainant affirmed her
earlier Reply-Affidavit where she narrated in detail how petitioner Alonte raped
her. Moreover, the rape charge has been filed in Court and it is not anymore
the absolute privilege of the complainant to desist from continuing with the case.
This separate opinion unequivocably addresses the issue of whether the
desistance of the victim can stop the further prosecution of the petitioners.
I
In Philippine jurisprudence, desistance has been equated with
recantation or retraction.
To "recant" means to "withdraw or repudiate formally and publicly;" 18 "to
renounce or withdraw a prior statement.'' 19 To "retract" means to "take back;"
"to retract an offer is to withdraw it before acceptance." 20 A recantation usually
applies to a repudiation by a complainant or a witness, either for the prosecution
or the defense, who has previously given an extra-judicial statement 21 or
testimony in court. 22 Repudiation may be made in writing, i.e., by sworn
statement, 23 or by testifying on the witness stand. 24
Mere retraction by a witness or by complainant of his or her testimony
does not necessarily vitiate the original testimony or statement, if
credible. 25 The general rule is that courts look with disfavor upon retractions of
testimonies previously given in court. 26 This rule applies to
crimes, 27 offenses 2 8 as well as to administrative offenses. 29 The reason is
because affidavits of retraction can easily be secured from poor and ignorant
witnesses, usually through intimidation or for monetary
consideration. 30 Moreover, there is always the probability that they will later be
repudiated 31 and there would never be an end to criminal litigation. 32 It would
also be a dangerous rule for courts to reject testimonies solemnly taken before
courts of justice simply because the witnesses who had given them later on
changed their minds for one reason or another. This would make solemn trials
a mockery and place the investigation of the truth at the mercy of unscrupulous
witnesses. 33
The general rule notwithstanding, the affidavit should not be peremptorily
dismissed as a useless scrap of paper. There are instances when a recantation
may create serious doubts as to the guilt of the accused. 34 A retracted
statement or testimony must be subject to scrupulous examination. The
previous statement or testimony and the subsequent one must be carefully
compared and the circumstances under which each was given and the reasons
and motives for the change carefully scrutinized. The veracity of each statement
or testimony must be tested by the credibility of the witness which is left for the
judge to decide. 35 In short, only where there exists special circumstances in the
case which when coupled with the retraction raise doubts as to the truth of the
testimony or statement given, can a retraction be considered and upheld. 36
A survey of our jurisprudence reveals that the same rule has been
applied to affidavits of desistance. 37 An affidavit of desistance is understood to
be a sworn statement executed by a complainant in a criminal or administrative
case that he or she is discontinuing the action filed upon his or her complaint
for whatever reason he or she may cite. The court attaches no persuasive value
to a desistance especially when executed as an afterthought. 38 However, as in
retractions, an affidavit of desistance calls for a reexamination of the records of
the case. 39
In private crimes, an affidavit of desistance filed by a private complainant
is also frowned upon by the courts. Although such affidavit may deserve a
second look at the case, there is hardly an instance when this Court upheld it
in private crimes and dismissed the case on the sole basis thereof. Indeed, a
case is not dismissed upon mere affidavit of desistance of the complainant,
particularly where there exist special circumstances that raise doubts as to the
reliability of the affidavit. 40
Usually in private crimes, an affidavit of desistance is executed by the
private complainant after pardoning and forgiving the offender. In this instance,
the court treats the affidavit as in express pardon. 41 It does not ipso
facto dismiss the case but determines the timeliness and validity thereof.
Private crimes are crimes against chastity such as adultery and
concubinage, seduction, abduction, rape and acts of lasciviousness. Their
institution, prosecution and extinction are governed by Article 344 of
the Revised Penal Code, viz:
"Art. 344. Prosecution of the crimes of adultery, concubinage,
seduction, abduction, rape and acts of lasciviousness. — The crimes of
adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without
including both the guilty parties, if they are both alive, nor in any case, if
he shall have consented or pardoned the offenders.
The offenses of seduction, abduction, rape, or acts of
the offended party or her parents, grandparents, or guardian, nor in any
case, the offender has been expressly pardoned by the above-named
persons, as the case may be.
In cases of seduction, abduction, acts of lasciviousness and rape,
the marriage of the offender with the offended party shall extinguish the
criminal action or remit the penalty already imposed upon him. The
provisions of this paragraph shall also be applicable to the co-principals,
accomplices and accessories after the fact of the above-mentioned
crimes."
Private crimes cannot be prosecuted except upon complaint filed by the
offended party. In adultery and concubinage, the offended party must implead
both the guilty parties and must not have consented or pardoned the offenders.
In seduction, abduction, rape and acts of lasciviousness, the complaint must be
filed by the offended party or her parents, grandparents or guardian. The
complainant-must not have expressly pardoned the offender.
Article 344 also provides for the extinction of criminal liability in private
crimes. It mentions two modes: pardon and marriage, which when validly and
timely made, result in the total extinction of criminal liability of the
offender. 42 The pardon in private crimes must be made before the institution of
the criminal action. 43 In adultery and concubinage, the pardon may be express
or implied while in seduction, abduction, rape and acts of lasciviousness, the
pardon must be express. In all cases, the pardon must come prior to the
institution of the criminal action. After the case has been filed in court, any
pardon made by the private complainant, whether by sworn statement or on the
witness stand, cannot extinguish criminal liability. The only act that extinguishes
the penal action and the penalty that may have been imposed is the marriage
between the offender and the offended party. 44
As this Court declared in the case of Donio-Teves v. Vamenta, Jr.: 45
"The term "private crimes" in reference to felonies which cannot be
prosecuted except upon complaint filed by the aggrieved party, is
misleading. Far from what it implies, it is not only the aggrieved party who
is offended in such crimes but also the State. Every violation of penal laws
results in the disturbance of public order and safety which the State is
committed to uphold and protect. If the law imposes the condition that
private crimes like adultery shall not be prosecuted except upon complaint
filed by the offended party, it is, as herein pointed earlier "out of
consideration for the aggrieved party who might prefer to suffer the
outrage in silence rather than go through the scandal of a public trial."
Once a complaint is filed, the will of the offended party is ascertained and
the action proceeds just as in any other crime. This is shown by the fact
that after filing a complaint, any pardon given by the complainant to the
offender would be unavailing. It is true, the institution of the action in so-
called private crime is at the option of the aggrieved party. But it is equally
true that once the choice is made manifest, the law will be applied in full
force beyond the control of, and inspite of the complainant, his death
notwithstanding."
The filing of a complaint in private crimes is merely a condition precedent
to the exercise by the proper authorities of the power to prosecute the guilty
parties.46 It is the complaint that starts the prosecutory proceeding without
which the fiscal and the court cannot exercise jurisdiction over the case. 47 Once
the complaint is filed, the action proceeds just as in any other crime.
We follow the postulate that a criminal offense is an outrage to the
sovereign state 48 and the right of prosecution for a crime is one of the attributes
of the sovereign power. 49 Thus, criminal actions are usually commenced by the
State, through the People of the Philippines, and the offended party is merely
a complaining witness. 50 In private crimes, however, or those which cannot be
prosecuted de oficio, the offended party assumes a more predominant
role since the right to commence the action or refrain therefrom, is a matter
exclusively within his power and option. 51 The sovereign state deems it the
wiser policy, in private crimes, to let the aggrieved party and her family decide
whether to expose to public view the vices, faults and disgraceful acts occurring
in the family. 52 But once the offended party files the complaint, her will is
ascertained and the action proceeds just as in any other crime. The decision of
the complainant to undergo the scandal of a public trial necessarily connotes
the willingness to face the scandal. 53 The private complainant is deemed to
have shed off her privacy and the crime ceases to be "private" and becomes
"public." The State, through the fiscal, takes over the prosecution of the case
and the victim's change of heart and mind will not affect the State's right to
vindicate the outrage against the violation of its law. 54
This is the reason why pardon in crimes of chastity must come before the
institution of the criminal action. Pardon by the offended party extinguishes
criminal liability when made while the crime is still "private" and within the
control of the offended party. But once the case is filed in court, the pardon
cannot ipso factooperate to dismiss the case. After the institution of the criminal
action, any pardon given by the complainant to the offender would be
unavailing, 55 except of course when the offender validly marries the offended
party. 56 The offended party's pardon of the offender in a seduction case after
the criminal action had been instituted constitutes no bar to said action. 57 A
pardon given in a rape case after the filing of the action in court "comes too late
to hide the shameful occurrence from public notice." 58
Even the death of the offended party cannot extinguish the case once it
is filed in court. 59 If the offended party dies immediately after filing the complaint
but before the institution of the criminal action, his death is not a ground to
dismiss the case. 60 Clearly, the will and participation of the offended party is
necessary only to determine whether to file the complaint or not. Thereafter, the
will of the State prevails.
Article 344 does not include desistance of the offended party from
prosecuting the case as a ground for extinction of criminal liability whether
total 61 or partial.62 Hence, only when the desistance is grounded on forgiveness
and pardon and is made before the institution of the criminal action, can it
extinguish criminal liability. Desistance, per se, is not equivalent to pardon.
In the case at bar, the "Affidavit of Desistance" of Juvielyn is not an
express pardon of the accused and the crime committed. Private complainant
desisted from prosecuting the case against the petitioners because she wished
"to start life anew and live normally again." She reiterated this reason on the
witness stand. She complained that members of the media were bothering and
harassing her and that she wanted to go back to her normal life. She never said
that she forgave the petitioners. She did not absolve them from their culpability.
She did not give any exculpatory fact that would raise doubts about her rape.
She did not say that she consented to petitioner Alonte's acts. Moreover, the
rape case is already in court and it is no longer her right to decide whether or
not the charge should be continued. As we held in Crespo v. Mogul: 63
xxx xxx xxx
"The rule in this jurisdiction is that once a complaint or information
is filed in court any disposition of the case as to its dismissal or conviction
or acquittal of the accused rests in the sound discretion of the court.
Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in court he cannot impose
his opinion on the trial court. The court is the best and sole judge on what
to do with the case before it. The determination of the case is within its
exclusive jurisdiction and competence. A motion to dismiss the case filed
by the fiscal should be addressed to the court who has the option to grant
or deny the same. It does not matter if this is done before or after the
arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who
reviewed the records of the investigation."
II
The next issue is the validity of the conviction of petitioners. Petitioners
contend that they were convicted without undergoing any trial. Respondent
judge insists otherwise. He claims that petitioners submitted the case on the
merits and relied principally on the Affidavit of Desistance. He recounts the
events that took place before the presentation of private complainant as
revealed by the transcripts of November 7, 1997, viz:
"Prosecutor Campomanes
Your Honor, the complaining witness/private complainant Juvielyn
Punongbayan is present here in Court, and a while ago, I was given
a copy of her Affidavit of Desistance, so I would like to present her
in order to attest to the veracity of her Affidavit of Desistance, your
Honor, and for the Court to hear her testimony.
Court
We will have a separate trial, this involved a heinous offense and
that there is not even any plea-bargaining in this case.
Prosecutor Campomanes
Yes, your Honor, I understand that.
Court
So you have to mark now your documentary evidence in
preparation for trial.
Yes, your Honor.
Court
There are many documentary evidence mentioned by the Supreme
Court in its seven (7) page . . . (may I see the record) seven (7)
page resolution, dated September 2, 1997, and that this case was
assigned to this Court as the trial Judge. This Court has already
arraigned the accused and he pleaded not guilty, and so the next
step is pre-trial. The Order of the Supreme Court is to direct this
Court not only to determine the voluntariness but also the validity
of the Affidavit of Desistance mentioned by the Court which was
also brought to the attention of the Supreme Court. llcd
And to the Department of Justice likewise your Honor.
Court
And that's why the Supreme Court instead of resolving it sent the
records to this Court to determine the voluntariness and the validity
of the Desistance, but they must be determined after trial on the
merits.
Your Honor please, representing the people. Its events now will
prove that there is no more need for the prosecution to go on trial
of this case, considering that the private complainant herself had
already furnished the Department of Justice a copy of her Affidavit
of Desistance.
Court
What does it say there?
That she is no longer interested in further prosecuting this case,
and that she is now desisting in going to full blown trial, and
considering your Honor, further, that this is a private offense, then,
the Department of Justice feels that it can not be more popish than
the Pope.
Court
That is the stand of the Department of the Justice. But the Supreme
Court belongs to a different Department, I am governed by the
Supreme Court, because I am a Judge, I am not from the
Department of Justice.
We are all aware your Honor, that we will just be prolonging the
agony, in fairness to everybody, considering that we are
representing the people, but we are not representing only . . . the
Department of Justice is not only representing the complainant in
this case but we are also for justice to be rendered to the
respondent as well.
Court
I am rendering fair justice to everyone. That is the sense of this
Court. That is the perception of this Court with respect to the
Supreme Court resolution, in the first place, that Affidavit does not
negate the commission of the crime. You want us to dismiss this
case when the Affidavit does not negate the commission of the
crime?
That's why we will be presenting her in Open Court, your Honor.
Court
Just to affirm that?
No to prove . . .
Court
What happened . . . how about the Prosecution Department, they
have control of the prosecution, and the offended party herself, has
not negated the commission of the crime, is there anything there to
show that she did not . . . that the accused . . . did not commit the
crime charged?
That's why we will be presenting her in Court, whatever is not here
will be clarified.
Court
So, we will go to a trial on the merits you present that affidavit, that's
a part of your evidence.
The people is ready to present that . . . the complaining witness.
Court
We will have a trial on the merits.
Your Honor please, being a woman, I have extensively discussed
this matter with the complaining witness and she intimated to this
representation that she can not bear another day of coming here,
with all these people staring at her with everybody looking at her
as if she is something . . .
Court
On December 13, 1996, petitioner Punongbayan through private
counsel, Atty. Remedios C. Balbin and the Assistant State
Prosecutor Guiab, Jr. who is not here both were relieved and
changed with a new lady prosecutor, prayed that the case be tried
by the Regional Trial Court of Manila, they cited the following
grounds: 'THE GREAT DANGER TO THE LIVES OF BOTH
PRIVATE COMPLAINANT AND THE IMMEDIATE MEMBERS OF
HER FAMILY AND THEIR WITNESSES AS THEY OPENLY
IDENTIFIED THE PRINCIPAL ACCUSED MAYOR ALONTE WHO
IS ACKNOWLEDGED AS A POWERFUL POLITICAL FIGURE
AND ALMOST AN INSTITUTION IN BIÑAN LAGUNA AND [THE]
GREAT DANGERS TO THE LIVES OF WITNESSES WHO
OTHERWISE WISH TO COME OUT IN THE OPEN AND TESTIFY
ON THE MORAL AND CRIMINAL ACTIVITIES OF BOTH
ACCUSED PERPETRATED UPON VERY YOUNG GIRLS
STUDENTS OF BIÑAN LAGUNA THAT WILL NOT DO SO IN THE
TERMS OF THE ACCUSED MAYOR" that is why it was the prayer
of the offended party and the Supreme Court granted the Motion
for Change of Venue, and we are now on a new venue, where the
danger to the lives of the witness is no longer present, on January
7, 1997, Alonte filed an Opposition thereto, and on April 23, 1997,
the petitioner, the offended party through the Honorable Secretary
of Justice Teofisto Guingona and Chief State Prosecutor Jovencito
Zuno filed a Manifestation and Motion for Resolution of the Petition
For Change of Venue. Attached to the motion of the Honorable
Secretary of Justice Guingona and Chief State Prosecutor
Jovencito Zuno were the affidavits of the petitioner, her lawyer,
Atty. Remedios Balbin, Dolores Yambao, Bienvenido Salandanan
and Evelyn Celso with their contention that the prosecution
witnesses and the private counsel of petitioner are exposed to
kidnapping, harassment, grave threats and tempting offers of bribe
money, that was the stand of your department . . . And then later
on June 28, 1997 . . . we have to review this case because this
involves public interest . . . on June 23, 1997, Atty. Casano in behalf
of the oppositors, two (2) oppositors, filed a motion to dismiss the
petition for change of venue in the Supreme Court on the ground
that it has become moot, he alleges that the petitioner despite the
motion to resume the proceedings in criminal case no. 96-19-B in
said motion, the petitioner informed the Court that she is desisting
. . . informed the Supreme Court that she is desisting from
proceeding with the case, it is the same affidavit she prayed that
the trial Court, on her affidavit of desistance . . . Atty. Casano also
submitted to this Court, to the Supreme Court the manifestation of
the petitioner joining the oppositors' prayer to dismiss her petition
to a change of venue, the manifestation was also signed by Atty.
Remedios Balbin as private prosecutor, the Supreme Court
required Assistant Chief State Prosecutor Leonardo Guiab to
comment on the motion to dismiss filed by Atty. Casano which
involve the same affidavit that you have just read. On August 22,
1997, assistant Chief State Prosecutor Guiab filed his comment, he
alleged that he is not aware of the desistance of the petitioner in
criminal case no. 96-19-B, and in said desistance there is two (2)
legal effect, [that] the public prosecutor has the control and
direction of the prosecution in criminal action, he prayed for the
denial of the Motion to Dismiss and reiterated his petition for
change of venue, the Supreme Court granted the change of venue
and in granting the change of venue the highest tribunal which we
are all subordinates, says: for the record, in their manifestation and
motion for the resolution of petition to a change of venue the
Secretary of Justice and Chief State Prosecutor submitted various
affidavits in support of their allegations that prosecution witnesses
and private legal counsel are exposed to KIDNAPPING,
HARASSMENT, GRAVE THREATS, AND TEMPTING OFFERS
OF BRIBE MONEY all intended to extract an affidavit of desistance
from the private complainant, this is now the affidavit of desistance
in her affidavit dated December 16, 1996, the petitioner the
offended party, the herein offended party Juvielyn Punongbayan
alleged etc . . . etc . . . in support of her petition and then she alleged
that during the last week of February, 1997, she was visited by one
Lourdes Salaysay, she stated that Mrs. Salaysay told her that Mrs.
Alonte, wife of Mayor Alonte requested her to settle Alonte's case,
she was informed that Mrs. Alonte was offering P10,000,000.00,
will send her to school and give her house and send her parents
abroad, Atty. Remedios C. Balbin is not here now, I am just quoting
the Supreme Court, counsel, private counsel of petitioner also
executed an affidavit dated February 1997, quote: the Supreme
Court quote to them: to put on record the attempting, influence,
directly, in exchange of valuable consideration, that the Rape
charge against Mayor Bayani Arthur Alone, she alleged that in two
(2) occasions Atty Romero conveyed to me the message of Mayor
Alonte, namely: to drop the rape case against him, and that he
would give a consideration of P10,000,000.00 'to be apportioned
as follows: P5,000,000.00, for the private complainant, your client
and the prosecutor P3,000,000.00 for me, as private prosecutor,
that is what Atty. Balbin said, P4,000,000.00 for her, the mediator,
so there seems to be a liberal flow of blood money, that is why the
Supreme Court ordered the Court to determine the validity, and
there is another, dated March 19, 1997. I have to remind everybody
about what happened, this thing did not come from me, I am not
fabricating anything this comes from the highest tribunal jurat, to
whom I am responsible, another affidavit of Atty. Balbin, she
narrated the continuing attempts to bribe her and threatened her,
so there were continuing events, they alleged, the People's
Bureau, Office of the Mayor of Quezon city, extensively discuss the
squatting case with against his client, that after a brief exchange on
the status of the case, they confided to me his real purpose, that it
started of by saying he was the legal counsel of the gambling lords
of Malabon for which he get a monthly retainer of P15,000.00
exclusive of transportation expenses, but he also stated that he
knows all the network of the gambling lord through out the country,
which is quite strong and unified, that I then ask him "what do you
mean? " " Is Alonte into gambling too, that he is part of the network
you speak of?", that Atty. Daga did not reply, but instead said, they
are prepared to double the offer made to by Atty. Romero which
was published in the newspaper at P10,000,000.00, so, its double,
double your money, so its P20,000,000.00, that I told him, its Atty.
Balbin, that all the money in the world, all the money in the world
will not make me change my position against my client executing a
desistance and that Alonte's voluntary surrender plea of guilty to
rape, conviction, and the imposition of the corresponding penalty
will satisfy the ends of justice, but I told him, that my client's case
is not isolated, there being five (5) other minors similarly place and
Alonte's will be stopped from doing more harm that Atty. Daga, then
told me in Filipino if you do not accede to a desistance, then they
will be force to but because he did not [complete] the sentence
asked him directly, what do you mean, what do you intend to do,
and he replied, go on with the case, [buy] the judge, [buy] the judge,
that I am believing, and I reacted saying, but they have already
done so, Judge Francisco Biñan, Judge Francisco Biñan suddenly
change his attitude towards the prosecution, perhaps you are
referring to the next judge when the petition for change of venue is
finally granted that Atty. Daga did not reply, and he reiterated that
his principal, referring to them again as gambling lords, wanted
desistance, after which he excused himself and left, that I execute
this affidavit, as Atty . Balbin attests to the truth of the incident with
Atty. Dionisio Daga which occurred in the afternoon of March 6,
1997 at my office, stating . . . ( JUDGE READING THE RECORDS
OF THE CASE )
Court
Then, the Supreme Court said, these affidavits, the one attached
gave specific names, dates and methods . . . a coercion of
corruption, the prosecution of Criminal Case No. 96-19-B (JUDGE
CONTINUED READING THE RECORDS OF THE CASE ) that is
desisting for pursuing her complaint for Rape petitioner a minor,
they have . . . illicit, influence and due pressure to prevent . . .
Criminal Case No. 96-19-B to any of its Branch, just to call the
Criminal Case No. 96-19-B shall be raffled, shall result the
petitioner's motion to resume proceedings, filed in Branch 26, in the
RTC of Laguna, to determine the voluntariness and validity of the
petitioner's desistance in the light of the position of the public
prosecutor, Assistant Chief Prosecutor Leonardo Guiab . . . I. don't
know what will be the outcome . . . you may contend that because
of that affidavit of the desistance there is reasonable doubt . . . etc
. . . but still, that will be placing the cart before the horse . . . you
have to go to a regular trial on the merits . . . because this is a
heinous offense which cannot . . . and during the pre-trial cannot
be subject to a plea-bargaining, and with respect to its new law
which took effect in 1993, that is a new one, it was placed to the
category of a heinous offense . . .
So we go on trial your Honor, and we will present the complaining
witness, and let the Court decide on the basis of the complainants
testimony . . . private complainant's testimony before this
Honorable Court . . .
xxx xxx xxx
That's why we are presenting the private complainant, the principal
witness, the mother who is also a signatory to this affidavit of
desistance, everybody who have been a part and participant in the
making and preparation of this affidavit of desistance, they have
already signed these affidavit of desistance.
Court
And we also have the affidavits mentioned by the Supreme Court,
because I was . . . all of those documents in the determination of
whether that affidavit is valid.
Yes, your Honor.
Court
We . . . the Court cannot close his eyes to the other affidavits . .
. because . . . that's why precisely the Supreme Court ordered me
to hear this case.
We understand that your Honor.
Court
There are may conflicting matters to be solve . . . conflicting matters
to be tackled in this case.
May we present the private complainant, your Honor . . ." 64
The records show that the hearing of November 7, 1997 was set for
arraignment of the petitioners. 65 After the counsels made their respective
appearances, Prosecutor Campomanes presented her authority to appear as
prosecutor in lieu of Asst. Chief State Prosecutor Guiyab, Jr., both petitioners
pleaded not guilty to the charge. Respondent judge then set the case for pretrial
which the parties, however, waived. The proceedings continued and Prosecutor
Campomanes manifested there was no need for the prosecution to go to trial
in view of the Affidavit of Desistance of the private complainant. Respondent
judge, however, observed that private complainant did not negate the
commission of the crime in her Affidavit of Desistance. Respondent judge
expressed his misgivings on the validity of the Affidavit of Desistance because
of the September 2, 1997 Resolution of this Court citing affidavits where
allegations of bribery were made to extract said affidavit from complainant.
Prosecutor Campomanes then offered to present the private complainant to
attest to the voluntariness and veracity of her Affidavit of Desistance.
Respondent judge averred whether the court should proceed to a trial on the
merits. Prosecutor Campomanes declared that they could go on trial and let the
court decide the merits of the case on the basis of the testimony of private
complainant and the other witnesses. It was then that private complainant was
presented as a witness.
From the garbled transcripts of the hearing on November 7, 1997, it is
not clear what both respondent judge and the public prosecutor intended the
proceedings to be. Respondent judge repeatedly declared that the proceedings
before him was to be a trial on the merits. The public prosecutor agreed to go
to trial, but at the same time moved to present private complainant and her
witnesses to testify on the voluntariness of her Affidavit of Desistance.
Respondent judge and the public prosecutor were, obviously, not tuned in to
each other.
I agree with the majority that the November 7, 1997 proceedings could
not have been a trial on the merits. First of all, the proceedings did not conform
with the procedure for trial as provided in the 1985 Rules on Criminal
Procedure. Section 3 of Rule 119 provides:
"Sec. 3. Order of Trial. — The trial shall proceed in the following
order:
(a) The prosecution shall present evidence to prove the charge
and, in the proper case, the civil liability.
(b) The accused may present evidence to prove his defense, and
damages, if any, arising from the issuance of any provisional remedy in
the case.
(c) The parties may then respectively present rebutting evidence
only, unless the court, in furtherance of justice, permits them to present
additional evidence bearing upon the main issue.
(d) Upon admission of the evidence, the case shall be deemed
submitted for decision unless the court directs the parties to argue orally
or to submit memoranda.
(e) However, when the accused admits the act or omission charged
in the complaint or information but interposes a lawful defense, the order
of trial may be modified accordingly."
In the case at bar, petitioners were never instructed to present evidence
to prove their defenses. The parties were never given the opportunity to present
their respective evidence rebutting the testimony of private complainant. There
was no admission by petitioners of the charge in the information as to justify a
change in the order of trial. 66
Our criminal rules of procedure strictly provide the step by step procedure
to be followed by courts in cases punishable by death. 67 This rule also applies
to all other criminal cases, particularly where the imposable penalty is reclusion
perpetua. The reason for this is to assure that the state makes no mistake in
taking life and liberty except that of the guilty. 68 Thus:
"Judges should be reminded that each step in the trial process
serves a specific purpose. In the trial of criminal cases, the constitutional
presumption of innocence in favor of the accused requires that an
accused be given sufficient opportunity to present his defense. So with
the prosecution as to its evidence.
Hence, any deviation from the regular course of trial should always
take into consideration the rights of all the parties to the case, whether the
prosecution or defense." 69
Second, the admission of private complainant's affidavit of October 21,
1996 was made solely in response to respondent judge's own questioning. 70 It
was this affidavit which respondent judge used to convict the petitioners. This
affidavit, however, was not marked nor was it formally offered before the court.
The Revised Rules on Evidence clearly and expressly provide that "[t]he court
shall consider no evidence which has not been formally offered." 71 Evidence
not formally offered in court will not be taken into consideration by the court in
disposing of the issues of the case. Any evidence which a party desires to
submit for the consideration of the court must formally be offered by
him, 72 otherwise it is excluded and rejected. 73
Third, where there is a doubt as to the nature of the criminal proceedings
before the court, this doubt must be resolved in favor of the accused who must
be given the widest latitude of action to prove his innocence. 74 It is in
petitioners' favor that the proceedings of November 7, 1997 be ,treated as a
hearing on the motion to dismiss, not a trial on the merits. To rule otherwise will
effectively deny petitioners due process and all the other rights of an accused
under the Bill of Rights and our Rules in Criminal Procedure. cdtai
Indeed, following respondent judge's finding and assuming that the

November 7, 1997 hearing was already a trial on the merits, petitioners were
never afforded their right to confront and cross-examine the witness. The court
did not, at the very least, inquire as to whether the petitioners wanted to cross-
examine private complainant with respect to her affidavit of October 21, 1996.
No opportunity to cross-examine was afforded petitioners and their counsels
such that they cannot be deemed to have waived said right by inaction. 7 5
Regalado, Davide, Jr., Romero, Bellosillo, Mendoza, and Panganiban,
JJ ., concur.
(Alonte v. Savellano, Jr., G.R. Nos. 131652 & 131728, [March 9, 1998], 350
|||
PHIL 700-770)
EN BANC
[G.R. No. L-21325. October 29, 1971.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. PABLEO DRAMAYO, PATERNO ECUBIN, PRIOLO
BILLONA, FRANCISCO BILLONA, MODESTO RONQUILLA,
CRESCENCIO SAVANDAL and SEVERENO
SAVANDAL, defendants; PABLEO DRAMAYO and PATERNO
ECUBIN, defendants-appellants.
Solicitor General Felix V. Makasiar, Assistant Solicitor General Arturo G.

Ibarra and Solicitor Conrado T. Limcaoco for plaintiff-appellee.
Arturo E. Balbastro for defendants-appellants.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; RIGHTS OF THE

ACCUSED; PRESUMPTION OF INNOCENCE; ACCUSATION NOT
SYNONYMOUS WITH GUILT. — Accusation is not, according to the
fundamental law, synonymous with guilt. It is incumbent on the prosecution to
demonstrate that culpability lies. Appellants were not even called upon then to
offer evidence on their behalf. Their freedom is forfeit only if the requisite
quantum of proof necessary for conviction be in existence. Their guilt must be
shown beyond reasonable doubt. To such a standard, this Court has always
been committed. There is need, therefore, for the most careful scrutiny of the
testimony of the state, both oral and documentary, independently of whatever
defense is offered by the accused. Only if the judge below and the appellate
tribunal could arrive at a conclusion that the crime had been committed
precisely by the person on trial under such an exacting test should the sentence
be one of conviction. It is thus required that every circumstance favoring his
innocence be duly taken into account. The proof against him must survive the
test of reason; the strongest suspicion must not be permitted to sway judgment.
The conscience must be satisfied that on the defendant could be laid the
responsibility for the offense charged; that not only did he perpetrate the act
that it amounted to a crime. What is required then is moral certainty.
2. ID.; ID.; ID.; REASONABLE DOUBT DEFINED. — By reasonable
doubt is not meant that which of possibility may arise, but it is that doubt
engendered by an investigation of the whole proof and an inability, after such
investigation, to let the mind rest easy upon the certainty of guilt. Absolute
certainty of guilt is not demanded by the law to convict of any criminal charge
but moral certainty is required, and this certainty is required as to every
proposition of proof requisite to constitute the offense. We feel that it is better
to acquit a man upon the ground of reasonable doubt, even though he may in
reality be guilty, than to confine in the penitentiary for the rest of his natural life
a person who may be innocent.
3. ID.; EVIDENCE; FINDINGS OF FACT OF TRIAL JUDGE;
GENERALLY RESPECTED ON APPEAL. — With the testimony of record
pointing to no other conclusion except the perpetration of the killing by
appellants, the effort of their counsel, while to be expected from an advocate
zealous in defense of his clients' rights, certainly should not be attended with
success. It suffices to reiterate the well-settled principle that this Court has
invariably respected the findings of facts of a trial judge who was in a position
to weigh and appraise the testimony before him except when, as was not shown
in this case, circumstances of weight or influence were ignored or disregarded
by him.
DECISION
FERNANDO, J : p
There is an element of ingenuity as well as of novelty in the plea made

by counsel de oficio in this appeal of the accused Pableo Dramayo and Paterno
Ecubin, who were sentenced to life imprisonment for the murder of Estelito
Nogaliza. The claim is vigorously pressed that because the information alleged
conspiracy on the part of seven defendants, with only the two appellants being
convicted, two having been utilized as state witnesses and the other three
having been acquitted on the ground of insufficiency of evidence as to their
culpability, the judgment of conviction against the appellants cannot stand,
there being a reasonable doubt as to their guilt. To bolster such a contention,
certain alleged deficiencies in the proof offered by the prosecution were noted.
A careful study of the evidence of record would leave no other rational
conclusion but that the deceased met his death at the hands of the appellants
in the manner as found by the lower court. Hence the appeal cannot prosper.
We affirm.
The gory incident which was attended by a fatality started on the morning
of January 9, 1964. The two accused, now appellants, Pableo Dramayo and
Paterno Ecubin, in the company of the deceased Estelito Nogaliza, all of Barrio
Magsaysay, of the Municipality of Sapao, Surigao del Norte, saw its chief of
police. Their purpose was to shed light on a robbery committed in the house of
the deceased five days before by being available as witnesses. The response
was decidedly in the negative as they themselves were prime suspects, having
been implicated by at least two individuals who had confessed. At about 7:00
o'clock of the same day, while they were in the house of their co-accused Priolo
Billona, the accused Dramayo invited all those present including the other
accused Francisco Billona, Modesto Ronquilla, Crescencio and Savero
Savandal, for a drinking session at a place at the back of the school house. It
was on that occasion that Dramayo brought up the idea of killing Estelito
Nogaliza so that he could not satisfy in the robbery case. The idea was for
Dramayo and Ecubin to ambush Estelito, who was returning from Sapao. The
others were to station themselves nearby. 1
Soon the unfortunate victim was sighted. He was accosted by Dramayo
with a request for a cigarette. It was then that Ecubin hit him with a piece of
wood on the side of the head near the right ear. Dramayo's participation
consisted of repeated stabs with a short pointed bolo as he lay prostrate from
the blow of Ecubin. It was the former also, who warned the rest of the group to
keep their mouths sealed as to what had just happened. His equanimity
appeared undisturbed for early the next morning, he went to the house of the
deceased and informed the latter's widow Corazon that he had just seen the
cadaver of Estelito. The barrio lieutenant and the chief of police were duly
notified. The latter, upon noticing blood stains on the trousers of Dramayo,
asked him to explain. The answer was that a skin ailment of his daughter was
the cause thereof. 2
The death was due to the wounds inflicted, two in the epigastric region,
one in the right lumbar region, and another in the left breast.
It was on the basis of the above testimony offered by the prosecution that
the lower court reached its decision. Its dispositive portion found the accused,
now appellants. Pableo Dramayo and Paterno Ecubin, guilty "beyond
reasonable doubt, of the crime of [murder], defined and penalized under Art.
248 of the Revised Penal Code, qualified by the circumstance of evident
premeditation as aggravated by night time, and imposes upon each of the said
accused, Pableo Dramayo and Paterno Ecubin, the penalty of [reclusion
perpetua]." 3 Reference was likewise made in such decision as to why the other
co-accused were not convicted, two of them, Crescencio Savandal and Severo
Savandal being utilized as state witnesses, and the other three, Priolo Billona,
Francisco Billona and Modesto Ronquilla acquitted.
Why they should not be found guilty was explained in the appealed
decision thus: "From the beginning the accused Modesto Ronquilla maintained
that he was not with the group but that he was fishing in the sea during the night
in question. These facts that is, that none of the prosecution witnesses has
testified that any of these three accused actually helped in the killing of the
deceased, Estelito Nogaliza; that these three accused were included in the
case only much later after the filing of this case against Pableo Dramayo and
Paterno Ecubin; the consistent Contention of the accused Modesto Ronquilla
that he was out in the sea fishing during the night in question; and the
testimonies of the accused Priolo Billona [and] Francisco [and their witnesses,]
Juan Billona, Esperanza Oposa-Billona, Guillerma Ponce, and Anselmo
Lisondra, given in a straight-forward manner, without hesitation, revealing a
clear conscience, and the fact that the testimonies of these witnesses have not
been refuted by the PC soldiers [whom they accused of maltreatment] when
they were available to the prosecution, cause the Court to entertain a very
serious doubt as to the guilt of the said accused." 4
The lower court was hardly impressed with the defense of alibi interposed
by now appellants Dramayo and Ecubin, and it must have been their lack of
persuasive character that must have led to the able brief of counsel de oficio,
Atty. Arturo E. Balbastro, stressing the absence of evidence sufficient to
convict, there still being a reasonable doubt to be implied from the fact that
while conspiracy was alleged," only two of the seven accused were held
culpable. To repeat, a meticulous appraisal of the evidence justifies a finding of
the guilt of the appellants for the offense charged, thus calling for the affirmance
of the decision.
1. It is to be admitted that the starting point is the presumption of
innocence. So it must be, according to the Constitution. 5 That is a right
safeguarded both appellants. Accusation is not, according to the fundamental
law, synonymous with guilt. It is incumbent on the prosecution to demonstrate
that culpability lies. Appellants were not even called upon then to offer evidence
on their behalf. Their freedom is forfeit only if the requisite quantum of proof
necessary for conviction be in existence. Their guilt must be shown beyond
reasonable doubt. To such a standard, this Court has always been committed.
There is need, therefore, for the most careful scrutiny of the testimony of the
state, both oral and documentary, independently of whatever defense is offered
by the accused. Only if the judge below and the appellate tribunal could arrive
at a conclusion that the crime had been committed precisely by the person on
trial under such an exacting test should the sentence be one of conviction. It is
thus required that every circumstance favoring his innocence be duly taken into
account. The proof against him must survive the test of reason; the strongest
suspicion must not be permitted to sway judgment. The conscience must be
satisfied that on the defendant could be laid the responsibility for the offense
charged; that not only did he perpetrate the act but that it amounted to a crime.
What is required then is moral certainty.
So it has been held from the 1903 decision of United States v.
Reyes. 6 United States v. Lasada, 7 decided in 1910, yields this excerpt: "By
reasonable doubt is not meant that which of possibility may arise, but it is that
doubt engendered by an investigation of the whole proof and an inability, after
such investigation, to let the mind rest easy upon the certainty of guilt. Absolute
certainty of guilt is not demanded by the law to convict of any criminal charge
but moral certainty is required, and this certainty is required as to every
proposition of proof requisite to constitute the offense." 8 To the same effect is
an excerpt form the opinion of the late Justice Tuason in People v.
Esquivel. 9 Thus; "In this connection it may not be out of place to bring to the
attention of prosecuting attorneys the absolute necessity of laying before the
court the pertinent facts as their disposal with methodical and meticulous
attention, clarifying contradictions and filling up gaps and loopholes in their
evidence, to the end that the court's mind may not be tortured by doubts, that
the innocent may not suffer and the guilty not escape unpunished. Obvious to
all, this is the prosecution's prime duty to the court, to the accused, and to the
state." 10
It is understandable why the stress should be on the absence of sufficient
evidence to establish the guilt of appellants beyond reasonable doubt, the
defense of alibi interposed hardly meriting any further discussion. It cannot be
denied though that the credible and competent evidence of record resulted in
moral certainty being entertained not only by the trial judge but by us as to the
culpability of appellants. The force of the controlling doctrines, on the other
hand, required that the other three accused be acquitted precisely because,
unlike in the case of appellants, the requisite quantum of proof to show guilt
beyond reasonable doubt was not present. There is no question as to the other
two who testified for the state being like-vise no longer subject to any criminal
liability. The reference then to an opinion of the late Justice Laurel, stressing
the need for adhering to the fundamental postulate that a finding of guilt is
allowable only when no reasonable doubt could be entertained, is unavailing.
This is evident from the very citation in the brief of appellants of the opinion of
Justice Laurel in People v. Manoji. 11 Thus: "Upon the other hand, there are
certain facts which if taken together are sufficient to raise in the mind of the
court a grave doubt as to the guilt of the defendant-appellant, 'that doubt
engendered by an investigation of the whole proof and an inability after such
investigation, to let the mind rest easy upon the certainty of guilt.' (U.S. v.
Lasada [1910], 18 Phil. 90, 96.) The finding of the two gold teeth of the
deceased in the suitcase of Maradani, and the testimony of Erajio Ello that he
gave that hat . . . to Maradani not only engender serious doubt in our minds as
be the guilt of the appellant, but also seems to sustain the theory of the defense
and strengthen the suspicion of the trial court, that Maradani and Salupudin are
not foreign to, or entirely ignorant of, the killing of Seijin Ige. In the light of the
facts and circumstances of record, we feel that it is better to acquit a man upon
the ground of reasonable doubt, even though he may in reality be guilty, than
to confine in the penitentiary for the rest of his natural life a person who may be
innocent. . . . " 12 The facts of the present case certainly do not fit within the
above mold. Reliance on the part of appellants on the above decision is
therefore futile.
The judgment of conviction should not have occasioned any surprise on
the part of the two appellants, as from the evidence deserving of the fullest
credence, their guilt had been more than amply demonstrated. The
presumption of innocence could not come to their rescue as it was more than
sufficiently overcome by the proof that was offered by the prosecution. What
would have been a blot on the law is that if, on the facts as established, no
reasonable doubt being entertained, the two appellants would have been
acquitted likewise just because the other five defendants, for the reasons above
stated, were not similarly sentenced. The principal contention raised is thus
clearly untenable. It must be stated likewise that while squarely advanced for
the first time, there had been cases where this Court, notwithstanding a majority
of the defendants being acquitted, the element of conspiracy likewise being
allegedly present, did hold the party or parties responsible for the offense guilty
of the crime charged, a moral certainty having arisen as to their culpability. 13
2. The brief for appellants did seek to fortify the allegation as to their guilty
not having been sufficiently de monstrated with the contention that the lower
court over looked or did not properly consider material and significant facts of
record that ought to have substantially affected or altered the judgment. Even
the most careful reading of such brief, however, with due recognition of the vigor
in which this particular point is pressed, would not destroy the credibility of the
facts as testified to concerning the manner in which the deceased was killed
and the motive that prompted appellants to put an end to his life. That such a
version could not have been concocted is shown by the undeniable fact that the
two appellants were duly convicted of robbery, with the deceased as the
offended party. It was understandable then why they would want to do away
with the principal witness against them. There was thus a strong inducement
for the appellants to have committed this crime of murder. With the testimony
of record pointing to no other conclusion except the perpetration of the killing
by them, the effort of their counsel, while to be expected from an advocate
zealous in defense of his clients' rights, certainly should not be attended with
success. It suffices to reiterate the well-settled principle that this Court has
invariably respected the findings of facts of a trial judge who was in a position
to weigh and appraise the testimony before him except when, as was not shown
in this case, circumstances of weight or influence were ignored or disregarded
by him. 14
WHEREFORE, the judgment of September 8, 1965 is affirmed with the
modification that the indemnification to the heirs of Estelito Nogaliza should be
in the sum of P12,000.00. With costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro,
Teehankee, Villamor and Makasiar, JJ., concur.
Barredo, J., did not take part.
||| (People v. Dramayo, G.R. No. L-21325, [October 29, 1971], 149 PHIL 107-116)
EN BANC
[G.R. No. L-52245. January 22, 1980.]
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO

SALAPANTAN, JR., petitioners, vs. COMMISSION ON
ELECTIONS, respondent.
Raul M . Gonzales for petitioners.

Office of the Solicitor General for respondent.
DECISION
MELENCIO-HERRERA, J : p
This is a Petition for Prohibition with Preliminary Injunction and/or

Restraining Order filed by petitioners, in their own behalf and all others allegedly
similarly situated, seeking to enjoin respondent Commission on Elections
(COMELEC) from implementing certain provisions of Batas Pambansa Blg. 51,
52, and 53 for being unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a former Governor
of Nueva Vizcaya, who has filed his certificate of candidacy for said position of
Governor in the forthcoming elections of January 30, 1980. Petitioner, Romeo
B. Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such,
has taken his oath to support the Constitution and obey the laws of the land.
Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a
resident of San Miguel, Iloilo. cdasia
Petitioner Dumlao specifically questions the constitutionality of section 4

of Batas Pambansa Blg. 52 as discriminatory and contrary to the equal
protection and due process guarantees of the Constitution. Said Section 4
provides:
"Sec. 4. Special Disqualification. — In addition to violation of
section 10 of Art. XII-C of the Constitution and disqualification mentioned
in existing laws, which are hereby declared as disqualification for any of
the elective officials enumerated in section 1 hereof.
Any retired elective provincial, city of municipal official who has
received payment of the retirement benefits to which he is entitled under
the law and who shall have been 65 years of age at the commencement
of the term of office to which he seeks to be elected, shall not be qualified
to run for the same elective local office from which he has retired."
(Paragraphing and emphasis supplied)
Petitioner Dumlao alleges that the aforecited provision is directed
insidiously against him, and that the classification provided therein is based on
"purely arbitrary grounds and, therefore, class legislation."
For their part, petitioners Igot and Salapantan, Jr. assail the validity of the
following statutory provisions:
"Sec. 7. Term of office. — Unless sooner removed for cause, all
local elective officials hereinabove mentioned shall hold office for a term
of six (6) years. which shall commence on the first Monday of March
1980."
. . ." Batas Pambansa Blg. 51
"Sec. 4. . . .
"Any person who has committed any act of disloyalty to the State,
including acts amounting to subversion, insurrection, rebellion or other
similar crimes, shall not be qualified to be a candidate for any of the offices
covered by this Act, or to participate in any partisan political activity
therein:
provided, that a judgment of conviction for any of the
aforementioned crimes shall be conclusive evidence of such fact and.
the filing of charges for the commission of such crimes before a
civil court or military tribunal after preliminary investigation shall be prima
facie evidence of such fact.
". . . (Batas Pambansa Blg. 52) (Paragraphing and emphasis
supplied).
"Section 1. Election of certain Local Officials. — . . . The election
shall be held on January 30, 1980." (Batas Pambansa, Blg. 52).
"Section 6. Election and Campaign Period. — The election period
shall be fixed by the Commission on Elections in accordance with Section
6, Art. XII-C of theConstitution. The period of campaign shall commence
on December 29, 1979 and terminate on January 28, 1980." (ibid.)
In addition to the above-cited provisions, petitioners Igot and Salapantan,
Jr. also question the accreditation of some political parties by respondent
COMELEC, as authorized by Batas Pambansa Blg. 53, on the ground that it is
contrary to section 9(1), Art. XII(C) of the Constitution, which provides that a
"bona fide candidate for any public office shall be free from any form of
harassment and discrimination."
The question of accreditation will not be taken up in this case but in that
of Bacalso, et als., vs. COMELEC et als. (G.R. No. L-52232) where the issue
has been squarely raised. cdasia
Petitioners then pray that the statutory provisions they have challenged
be declared null and void for being violative of the Constitution.
I. The procedural aspect.
At the outset, it should be stated that this Petition suffers from basic
procedural infirmities, hence, traditionally unacceptable for judicial resolution.
For one, there is a misjoinder of parties and actions. Petitioner Dumlao's
interest is alien to that of petitioners Igot and Salapantan. Petitioner Dumlao
does not join petitioners Igot and Salapantan in the burden of their complaint,
nor do the latter join Dumlao in his. They, respectively, contest completely
different statutory provisions. Petitioner Dumlao has joined this suit in his
individual capacity as a candidate. The action of petitioners Igot and Salapantan
is more in the nature of a taxpayer's suit. Although petitioners plead time
constraints as the reason of their joint Petition, it would have required only a
modicum more of effort for petitioner Dumlao, on one hand, and petitioners Igot
and Salapantan, on the other, to have filed separate suits, in the interest of
orderly procedure.
For another, there are standards that have to be followed in the exercise
of the function of judicial review, namely: (1) the existence of an appropriate
case; (2) an interest personal and substantial by the party raising the
constitutional question; (3) the plea that the function be exercised at the earliest
opportunity; and (4) the necessity that the constitutional question be passed
upon in order to decide the case (People vs. Vera, 65 Phil. 56 [1937]).
It may be conceded that the third requisite has been complied with, which
is, that the parties have raised the issue of constitutionality early enough in their
pleadings.
This Petition, however, has fallen far short of the other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited to the determination
of actual cases and controversies.
Petitioner Dumlao assails the constitutionality of the first paragraph of
section 4 of Batas Pambansa Blg. 52, quoted earlier, as being contrary to the
equal protection clause guaranteed by the Constitution, and seeks to prohibit
respondent COMELEC from implementing said provision. Yet, Dumlao has not
been adversely affected by the application of that provision. No petition seeking
Dumlao's disqualification has been filed before the COMELEC. There is no
ruling of that constitutional body on the matter, which this Court is being asked
to review on Certiorari. His is a question posed in the abstract, a hypothetical
issue, and in effect, a petition for an advisory opinion from this Court to be
"rendered without the benefit of a detailed factual record." Petitioner Dumlao's
case is clearly within the primary jurisdiction (see concurring Opinion of now
Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of
respondent COMELEC as provided for in section 2, Art. XII-C, for
the Constitution the pertinent portion of which reads:
"Section 2. The Commission on Elections shall have the following
power and functions.
1) . . .
2) Be the sole judge of all contests relating to the elections, returns
and qualifications of all members of the National Assembly and elective
provincial and city officials." (Emphasis supplied)
The aforequoted provision must also be related to section 11 of Art. XII-C,
which provides:
"Section 11. Any decision, order, or ruling of the Commission may
be brought to the Supreme Court on certiorari by the aggrieved party
within thirty days from his receipt of a copy thereof."
B. Proper party.
The long-standing rule has been that "the person who impugns the
validity of a statute must have a personal and substantial interest in the case
such that he has sustained, or will sustain, direct injury as a result of its
enforcement" (People vs. Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during the
hearing, not in their Petition, that Igot is said to be a candidate for Councilor.
Even then, it cannot be denied that neither one has been convicted nor charged
with acts of disloyalty to the State, nor disqualified from being candidates for
local elective positions. Neither one of them has been alleged to have been
adversely affected by the operation of the statutory provisions they assail as
unconstitutional. Theirs is a generalized grievance. They have no personal nor
substantial interest at stake. In the absence of any litigate interest, they can
claim no locus standi in seeking judicial redress. LibLex
It is true that petitioners Igot and Salapantan have instituted this case as
a taxpayer's suit, and that the rule enunciated in People vs. Vera, above stated,
has been relaxed in Pascual vs. The Secretary of Public Works (110 Phil. 331
[1960], thus:
". . . it is well settled that the validity of a statute may be contested
only by one who will sustain a direct injury in consequence of its
enforcement. Yet, there are many decisions nullifying, at the instance of
taxpayers, laws providing for the disbursement of public funds, upon the
theory that 'the expenditure of public funds, by an officer of the State for
the purpose of administering an unconstitutional act constitutes a
misapplication of such funds,' which may be enjoined at the request of a
taxpayer."
In the same vein, it has been held:
"In the determination of the degree of interest essential to give the
requisite standing to attack the constitutionality of a statute, the general
rule is that not only persons individually affected, but also taxpayers have
sufficient interest in preventing the illegal expenditure of moneys raised
by taxation and they may, therefore, question the constitutionality of
statutes requiring expenditure of public moneys."
(Philippine Constitution Association, Inc., et als., vs. Gimenez, et als. 15
SCRA 479 [1965]).
However, the statutory provisions questioned in this case, namely, sec.
7, BP Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do not directly involve the
disbursement of public funds. While, concededly, the elections to be held
involve the expenditure of public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being extracted and spent in violation
of specific constitutional protections against abuses of legislative power" (Flast
v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds
by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110
Phil. 331 [1960]), or that public money is being deflected to any improper
purpose. Neither do petitioners seek to restrain respondent from wasting public
funds through the enforcement of an invalid or unconstitutional law.
(Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing
Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]).
Besides, the institution of a taxpayer's suit, per se, is no assurance of judicial
review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]),
speaking through our present Chief Justice, this Court is vested with discretion
as to whether or not a taxpayer's suit should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a well-settled ruled that
the constitutionality of an act of the legislature will not be determined by the
courts unless that question is properly raised an presented in appropriate cases
and is necessary to a determination of the case; i.e., the issue of
constitutionality must be the very lis mota presented."
We have already stated that, by the standards set forth in People vs.
Vera, the present is not an "appropriate case" for either petitioner Dumlao or for
petitioners Igot and Salapantan. They are actually without cause of action. It
follows that the necessity for resolving the issue of constitutionality is absent,
and procedural regularity would require that his suit be dismissed.
II. The substantive viewpoint.
We have resolved, however, to rule squarely on two of the challenged
provisions, the Courts not being entirely without discretion in the matter. Thus,
adherence to the strict procedural standard was relaxed in Tinio vs. Mina (26
SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs.
Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzales cases
having been penned by our present Chief Justice. The reasons which have
impelled us are the paramount public interest involved and the proximity of the
elections which will be held only a few days hence.
Petitioner Dumlao's contention that section 4 of BP Blg. 52 is
discriminatory against him personally is belied by the fact that several petitions
for the disqualification of other candidates for local positions based on the
challenged provision have already been filed with the COMELEC (as listed in
p. 15, respondent's Comment). This tellingly overthrows Dumlao's contention
of intentional or purposeful discrimination. LexLib
The assertion that Section 4 of BP Blg. 52 is contrary to the safeguard of

equal protection is neither well taken. The constitutional guarantee of equal
protection of the laws is subject to rational classification. If the groupings are
based on reasonable and real differentiations, one class can be treated and
regulated differently from another class. For purposes of public service,
employees 65 years of age, have been validly classified differently from
younger employees. Employees attaining that age are subject to compulsory
retirement, while those of younger ages are not so compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to require
that candidates should not be more than 65 years of age at the time they
assume office, if applicable to everyone, might or might not be a reasonable
classification although, as the Solicitor General has intimated, a good policy of
the law should be to promote the emergence of younger blood in our political
elective echelons. On the other hand, it might be that persons more than 65
years old may also be good elective local officials.
Coming now to the case of retirees. Retirement from government service
may or may not be a reasonable disqualification for elective local officials. For
one thing, there can also be retirees from government service at ages, say
below 65. It may neither be reasonable to disqualify retirees, aged 65, for a 65-
year old retiree could be a good local official just like one, aged 65, who is not
a retiree.
But, in the case of a 65-year old elective local official, who has retired
from a provincial, city or municipal office, there is reason to disqualify him from
running for the same office from which he had retired, as provided for in the
challenged provision. The need for new blood assumes relevance. The
tiredness of the retiree for government work is present, and what is emphatically
significant is that the retired employee has already declared himself tired an
unavailable for the same government work, but, which, by virtue of a change of
mind, he would like to assume again. It is for the very reason that inequality will
neither result from the application of the challenged provision. Just as that
provision does not deny equal protection, neither does it permit such denial
(see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are
similarly treated.
In fine, it bears reiteration that the equal protection clause does not forbid
all legal classification. What is proscribes is a classification which is arbitrary
and unreasonable. That constitutional guarantee is not violated by a reasonable
classification is germane to the purpose of the law and applies to all those
belonging to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing
Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery and Apparel
Control and Inspection Board, 21 SCRA 336 [1967]; Inchong, etc., et al. vs.
Hernandez, 101 Phil. 1155 [1957]). The purpose of the law is to allow the
emergence of younger blood in local governments. The classification in
question being pursuant to that purpose, it cannot be considered invalid "even
if at times, it may be susceptible to the objection that it is marred by theoretical
inconsistencies: (Chief Justice Fernando, The Constitution of the Philippines,
1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing of the
clear invalidity of the questioned provision. Well accepted is the rule that to
justify the nullification of a law, there must be a clear and unequivocal breach
of the Constitution, not a doubtful and equivocal breach. Courts are practically
unanimous in the pronouncement that laws shall not be declared invalid unless
the conflict with the Constitution is clear beyond reasonable doubt (Peralta vs.
COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair, 4 Dall. 14; Dodd,
Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the
competence of the legislature to prescribe qualifications for one who desires to
become a candidate for office provided they are reasonable, as in this case.
In so far as the petition of Igot and Salapantan are concerned, the second
paragraph of section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and
which they challenged, may be divided in two parts. The first provides:
"a judgment of conviction for any of the aforementioned crimes
shall be conclusive evidence of such fact. . . . "
The supremacy of the Constitution stands out as the cardinal principle.
We are aware of the presumption of validity that attached to a challenged
statute, of the well-settled principle that "all reasonable doubts should be
resolved in favor of constitutionality," and that Courts will not set aside a statute
as constitutionally defective "except in a clear case." (People vs. Vera, supra).
We are constrained to hold that this in one such clear case. Cdphil
Explicit is the constitutional provision that, in all criminal prosecutions, the

accused shall be presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel (Article IV, section 19, 1973
Constitution). An accusation, according to the fundamental law, is not
synonymous with guilt. The challenged proviso contravenes the constitutional
presumption of innocence, as a candidate is disqualified from running from
public office on the ground alone that charges have been filed against him
before a civil or military tribunal. It condemns before one is fully heard. In
ultimate effect, except as to the degree of proof, no distinction is made between
a person convicted of acts of disloyalty and one against whom charges have
been filed for such acts, as both of them would be ineligible to run for public
office. A person disqualified to run for public office on the ground that charges
have been filed against him is virtually placed in the same category as a person
already convicted of a crime with the penalty of arresto, which carries with it the
accessory penalty of suspension of the right to hold office during the term of the
sentence (Art. 44, Revised Penal Code).
And although the filing of charges is considered as but prima
facie evidence, and therefore, may be rebutted, yet, there is "clear and present
danger" that because the proximity of the elections, time constraints will prevent
one charged with acts of disloyalty from offering contrary proof to overcome
the prima facieevidence against him.
Additionally, it is best that evidence pro and con of acts of disloyalty be
aired before the Courts rather than before an administrative body such as the
COMELEC. A highly possible conflict of finding between two government
bodies, to the extreme detriment of a person charged, will thereby be avoided.
Furthermore, a legislative/administrative determination of guilt should not be
allowed to be substituted for a judicial determination.
Being infected with constitutional infirmity, a partial declaration of nullity
of only that objectionable portion is mandated. It is separable from the first
portion of the second paragraph of section 4 of Batas Pambansa Blg. 52 which
can stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of Batas Pambansa
Bilang 52 is hereby declared valid. Said paragraph reads:
"SEC. 4. Special disqualification. — In addition to violation of
Section 10 of Article XII(C) of the Constitution and disqualifications
mentioned in existing laws which are hereby declared as disqualifications
for any of the elective officials enumerated in Section 1 hereof, any retired
elective provincial, city or municipal official, who has received payment of
the retirement benefits to which he is entitled under the law and who shall
have been 65 years of age at the commencement of the term of office to
which he seeks to be elected, shall not be qualified to run for the same
elective local office from which he has retired."
2) That portion of the second paragraph of section 4 of Batas Pambansa
Bilang 52 providing that ". . . the filing of charges for the commission of such
crimes before a civil court or military tribunal after preliminary investigation shall
be prima facie evidence of such fact", is hereby declared null and void, for being
violative of the constitutional presumption of innocence guaranteed to an
accused.
SO ORDERED.
Makasiar, Antonio, Concepcion Jr., Fernandez and Guerrero,
JJ ., concur.
De Castro, J ., abstain as far as petitioner Dumlao is concerned.
Separate Opinions
BARREDO, J ., concurring:
I concur. But as regards the matter of equal protection, I reiterate my view

for Peralta that Sec. 9(1) Art. XII is more expensive than the equal protection
clause.
AQUINO, J ., concurring:
I concur in the result as to paragraph 1 of the dispositive part of the

decision. I dissent as to paragraph 2. In my opinion, paragraph 2, section 4
of Batas Pambansa Bilang 52 is valid, being similar to certain presumptions in
Articles 217 and 315 of the Penal Code, as amended by Republic Act No. 4885.
See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.
ABAD SANTOS, J ., concurring:
I concur but wish to add that a judgment of conviction as provided in Sec.

4, par. 2 of Batas Pambansa Blg. 52 should be one which is final and
unappealable.
FERNANDO, C .J ., concurring:
It is particularly gratifying that the reiteration in the ably-written and

scholarly opinion of the Court, penned by Justice Melencio-Herrera, of the
standard that must be met before the power of judicial review may be availed
of, set forth with such lucidity and force by Justice Laurel in the two leading
cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not
constitute an obstacle to this Court ruling on the crucial constitutional issues
raised. It was a cause for concern, for me at least, that counsel of private parties
in not a few cases in the recent past had shown less than full awareness of the
doctrines, procedural in character, that call for application whenever the
exercise of this awesome and delicate responsibility of adjudging the validity of
a statute or presidential decree is invoked. 3 While this Court cannot be
accused of being bound by the fetters of judicial timidity, it remains true that no
cavalier disregard of tried and tested concepts should be given encouragement.
A petitioner who bases his claim for relief on asserted constitutional deficiencies
deserves to be heard. That goes without saying. For the judiciary must ever
endeavor to vindicate rights safeguarded by the fundamental law. In that sense,
this Tribunal is not susceptible to the reproach that it has imprisoned itself in its
allegiance to the philosophy of judicial self-restraint. There are, however, limits
to judicial activism. It cannot be too strongly stressed that a petition of this
character must ever remain an orderly proceeding that cannot be oblivious of
the requisites to be complied with to justify a pronouncement on constitutional
issues. Where there is exuberance in the exercise of judicial power, the forms
of litigation are but slight retaining walls. It is right and proper that the voice of
the Solicitor General should be heard in protest against such neglect of
rudimentary precepts. Necessarily then, whenever objections based on refusal
to abide by the procedural principles are presented, this Court must rule. It
would suffice if thereby the petition is dismissed for non-observance of the
controlling doctrines. There are times, however, when the controversy is of such
a character that to resolve doubts, erase uncertainty, and assure respect for
constitutional limitations, this Tribunal must pass on the merits. This is one such
case. I therefore concur with the opinion of the Court. cdasia
It may be a task of superfluity then to write a concurring opinion.

Nonetheless, a few words may not be amiss on what for me is the proper
approach to take as to the lack of power of this Court to pass on the motives of
the legislative body, on the lack of persuasiveness of petitioner's argument
based on the equal protection guarantee, and on the fundamental concept of
fairness of which the due process clause is an embodiment, thus calling for the
nullification of the disqualification of a candidate upon the mere filing of charges
against him.
1. The challenge to the provision in question is predicated on what was
referred to as "a known fact in the province of Nueva Vizcaya that the aforesaid
provision was concocted and designed precisely to frustrate any bid of herein
petitioner to make a political come back [sic] as governor of Nueva Vizcaya.
The wordings [sic] of the law is so peculiarly attuned to discriminate against
herein petitioner because every condition imposed as disqualification grounds
are known to be possessed by him because he was a former elective provincial
official who has received his retirements benefits, he desires to run for the same
elective office and at the commencement of the term of office to which he now
seeks to be elected, he shall have reached 65 years of age." 4 Clearly then, the
plea for invalidating such provision is the motive attributed to the
Interim Batasang Pambansa. For petitioner, it amounted to a constitutional
infirmity fatal in character. The weakness of the petition is thus apparent. No
decision of this Tribunal can be cited in support of such a proposition. It would
be to extend unduly the concept of judicial review if a court can roam far and
wide and range at will over the variety and diversity of the reasons, the
promptings that may lead a legislator to cast his vote for or against a proposed
legislation. It is not what inspired the introduction of a bill but the effect thereof
if duly enacted that is decisive. That would be the test for its validity or lack of
it. there is this relevant excerpt from McCray v. United States: 5 "The decisions
of this Court [Supreme Court of the United States] from the beginning lend no
support whatever to the assumption that the judiciary may restrain the exercise
of lawful power on the assumption that a wrongful purpose of motive has
caused the power to be exerted." 6 The late Chief Justice Warren, who penned
the opinion in United States v. O'Brien, 7 put the matter thus: "Inquiries into
congressional motives or purposes are a hazardous matter. When the issue is
simply the interpretation of legislation, the Court will look to statements by
legislators for guidance as to the purpose of the legislature, because the benefit
to sound decision-making in this circumstance is thought sufficient to risk the
possibility of misreading Congress' purpose. It is entirely a different matter when
we are asked to void a statute that is, under well-settled criteria, constitutional
on its face, on the basis of what fewer than a handful of Congressmen said
about it. What motivates one legislator to make a speech about a statute is not
necessarily what motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork. We decline to void essentially on
the ground that it is unwise legislation which Congress had the undoubted
power to enact and which could be reenacted in its exact form if the same or
another legislator made a 'wiser' speech about it." 8
2. If, however, the provision in question is susceptible to the reproach
that it amounts to a denial of equal protection, then his plea for nullification
should be accorded a sympathetic response. As the opinion of the Court makes
a clear, such imputation is not deserving of credence. The classification cannot
be stigmatized as lacking in rationality. It is germane to the subject. Age, as well
as the fact of retirement and the receipt of retirement benefits are factors that
can enter into any legislative determination of what disqualifications to impose.
As was pointed out in J.M. Tuason and Co., Inc. v. Land Tenure
Administration: 9 "It suffices then that the laws operate equally and uniformly on
all persons under similar circumstances or that all persons must be treated in
the same manner, the conditions not being different, both in the privileges
conferred and the liabilities imposed. Favoritism and undue preference cannot
be allowed. For the principle is that equal protection and security shall be given
to every person under circumstances, which if not identical, are analogous. If
law be looked upon in terms of burden or charges, those that fall within a class
should be treated in the same fashion, whatever restrictions cast on some in
the group equally binding on the rest." 10 It cannot be denied that others
similarly fall under the same ban. It was not directed at petitioner solely. The
most that can be said is that he falls within the proscribed class. The point was
likewise raised as to why should national officials be excluded in the above
provision. The answer is simple. There is nothing to prevent the legislative body
from following a system of priorities. This it did under the challenged legislative
provision. In its opinion, what called for such a measure is the propensity of the
local officials having reached the retirement age and having received retirement
benefits once again running for public office. Accordingly, the provision in
question was enacted. A portion of the opinion in the aforesaid J.M. Tuason
and Co., Inc. finds relevance: "It was confronted with a situation that called for
correction, and the legislation that was the result of its deliberation sought to
apply the necessary palliative. That it stopped short of possibly attaining the
cure of other analogous ills certainly does not stigmatize its effort as a denial of
equal protection. We have given our sanction to the principle underlying the
exercise of police power and taxation, but certainly not excluding eminent
domain, that 'the legislature is not required by the Constitution to adhere to the
policy of all "or none." Thus, to reiterate, the invocation by petitioner of the equal
protection clause is futile and unavailing." 11
3. That brings us to the assailed provision as to the sufficiency of the filing
of charges for the commission of such crimes as subversion, insurrection,
rebellion or others of similar nature before a civil court or military tribunal after
preliminary investigation, being a prima facie evidence of such fact and
therefore justifying the disqualification of a candidate. The opinion of the Court
invoked the constitutional presumption of innocence as a basis for its being
annulled. That conclusion is well-founded. Such being the case, I am in full
agreement. I would add that such a provision is moreover tainted with
arbitrariness and therefore is violative of the due process clause. Such a
constitutional right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is "not a
mere formality that may be dispensed with at will. Its disregard is a matter of
serious concern. It is a constitutional safeguard of the highest order. It is a
response to man's innate sense of justice." 13 As rightfully stressed in the
opinion of the Court, the time element may invariably preclude a full hearing on
the charge against him and thus effectively negate the opportunity of an
individual to present himself as a candidate. If, as has been invariably the case,
a prosecutor, whether in a civil court or in a military tribunal, saddled as he is
with so many complaints filed on his desk would give in to the all-too-human
propensity to take the easy way out and to file charges, then a candidate would
be hard put to destroy the presumption. A sense of realism for me compels a
declaration of nullity of a provision which on its face is patently offensive to
the Constitution. cda
Hence my concurrence.
TEEHANKEE, J ., dissenting:
Files a separate opinion dissenting from the adverse ruling on Dumlao's

candidacy and declining to rule on the invalidity of the first part of Section 4 of
the questioned Law; and concurs with the pronouncement that the mere filing
of charges shall be prima facie cause for disqualification is void.
I. I dissent from the majority's dismissal of the petition insofar as it
upholds the discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa
Blg. 52 which would impose a special disqualification on petitioner Patricio
Dumlao from running for the elective local office of governor of his home
province of Nueva Vizcaya and would in effect bar the electors of his province
from electing him to said office in the January 30 elections, simply because he
is a retired provincial governor of said province "who has received payment of
the retirement benefits to which he is entitled under the law and who shall have
been 65 years of age at the commencement of the term of office to which he
seeks to be elected."
To specially and peculiarly ban a 65-year old previously retired elective
local official from running for the same elective office (of governor, in this case)
previously held by him and from which he has retired is arbitrary, oppressive
and unreasonable. Persons similarly situated are not similarly treated, e.g. a
retired vice-governor, mayor or councilor of 65 is entitled to run for governor
(because the disqualification is for the retiree of 65 to run for the
same elective office from which he retired) but petitioner is barred from doing
so (although he may run for any other lesser office). Both are 65 and are
retirees, yet one is barred from running for the office of governor. What is the
valid distinction? Is this not an arbitrary discrimination against petitioner who
has cause to complain that "the aforesaid provision was concocted and
designed precisely to frustrate any bid of herein petitioner to make a political
comeback as governor of Nueva Vizcaya 1 — (since no other case of a former
governor similarly barred by virtue of said provision can ever be cited 2 ). Is
there not here, therefore, a gross denial of the cardinal constitutional guarantee
that equal protection and security shall be given under the law to every person,
under analogous if not identical circumstances? cdasia
Respondent's claim, as accepted by the majority, is that the purpose of

the special disqualification is "to infuse new blood in local governments" but the
classification (that would bar 65-year old retirees from running for the same
elective local office) is not rational nor reasonable. It is not germane nor relevant
to the alleged purpose of "infusing new blood" because such "old blood" retirees
may continue in local governments since they are not disqualified at all to run
for any other local elective office such as from provincial governor, vice-
governor, city, municipal or district mayor and vice-mayor to member of the
Sangguniang Panlalawigan, Sangguniang Panglunsod and Sangguniang
Bayan, other than the local elective office from which they retired.
Furthermore, other 65-year olds who have likewise retired from the
judiciary and other branches of government are not in any manner disqualified
to run forany local elective office, as in the case of retired Court of First Instance
Judge (former Congressman) Alberto S. Ubay who retired with full substantial
retirement benefits as such judge in 1978 at age 70 and now at past 71 years
of age, is running as the official KBL candidate for governor of his province. And
even in the case of 65-year old local elective officials, they are
disqualified only when they have received payment of the retirement benefits
to which they are entitled under the law (which amount to very little, compared
to retirement benefits of other executive officials and members of the judiciary).
If they have not received such retirement benefits, they are not disqualified.
Certainly, their disqualification or non-disqualification and consequent
classification as "old blood" or "new blood" cannot hinge on such an irrelevant
question or whether or not they have received their retirement benefits. cdrep
The classification is patently arbitrary and unreasonable and is not based

on substantial distinction which make for real differences that would justify the
special disqualification of petitioner, which, it is claimed, "is based on a
presumption that elective local officials who have retired and are of advanced
age cannot discharge the functions of the office they seek as those who are
differently situated." 3 Such presumption is sheer conjecture. The mere fact that
a candidate is less than 65 or has "young or new blood" does not mean that he
would be more efficient, effective and competent than a mature 65-year old like
petitioner who has had experience on the job and who was observed at the
hearing to appear to be most physically fit. Suffice it to cite the outstanding case
of the incumbent ebullient Minister of Foreign Affairs, Gen. Carlos P. Romulo,
who was elected at 80 as a member of the Interim Batasan Pambansa and who
has just this month completed 81 years of age and has been hailed by the
President himself as "the best foreign minister the Republic has ever had."
Age has simply just never been a yardstick for qualification or
disqualification. At the most, a minimum age to hold public office has been
required as a qualification to insure a modicum of maturity (now reduced to 21
years in the present batas), but no maximum age has ever been imposed as a
disqualification forelective public office since the right and will of the people to
elect the candidate of their choice for any elective office, no matter his age, has
always been recognized as supreme.
The disqualification in question therefore is grossly violative of the equal
protection clause which mandates that all persons subjected to legislation shall
be treated alike, under like circumstances and conditions, both in the privileges
conferred and in the liabilities imposed. The guarantee is meant to proscribe
undue favor and individual or class privilege on the one hand and hostile
discrimination and the oppression of inequality on the other. The questioned
provision should therefore at the least be declared invalid in its application
insofar as it would disqualify petitioner from running for the office of governor of
his province.
As aptly restated by the Chief Justice, "Persons similarly situated should
be similarly treated. Where no valid distinction could be made as to the relevant
conditions that call for consideration, there should be none as to the privileges
conferred and the liabilities imposed. There can be no undue favoritism or
partiality on the one hand or hostility on the other. Arbitrary selection and
discrimination against persons in thus ruled out. For the principle is that equal
protection and security shall be given to every person under circumstances,
which if not identical are analogous. If law be looked upon in terms of burden
or charges, those that full within a class should be treated in the same fashion,
whatever restrictions cast on some in the group equally binding on the rest." 4
Finally, this arbitrary disqualification is likewise grossly violative of Article
XII, sub-article C, section 9(1) of the 1973 Constitution that "Bona fide
candidates for any public office shall be free from any form of harassment and
discrimination."
II. I concur with the majority's declaration of invalidity of the portion of the
second paragraph of section 4 of Batas Pambansa Blg. 52 which would make
the mere filing of charges of subversion, insurrection, rebellion or other similar
crimes before a civil court or military tribunal after preliminary
investigation prima facieevidence of the fact of commission of an act of
disloyalty to the State on the part of the candidate and disqualify him from his
candidacy. Such a provision could be the most insidious weapon to disqualify
bona fide candidates who seem to be headed for election and places in the
hands of the military and civil prosecutors a dangerous and devastating weapon
of cutting off any candidate who may not be to their liking through the filing of
last-hour charges against him. LibLex
I also concur with the pronouncement made in the majority decision that
in order that a judgment of conviction may be deemed "as conclusive evidence"
of the candidate's disloyalty to the State and of his disqualification from office,
such judgment of conviction must be final and unappealable. This is so
specifically provided in Section 22 of the 1978 Election Code. 5 Otherwise, the
questioned provision would deny the bona fide candidate substantive due
process and would be grossly violative of his constitutional right of presumption
of innocence and of the above-quoted provision of the 1973
Constitution protecting candidates for public office from any form of harassment
and discrimination.
ADDENDUM
When the case was voted upon a second time last January 21st, there
appeared to be a majority in favor of the declarations and pronouncements
above referred to in the two preceding paragraphs, in view of the urgency of the
matter and the evil sought to be avoided. However, as of this writing, January
23, 1980 in the afternoon, such majority seems to have been dissipated by the
view that the action to nullify such second paragraph of section 4 of the Batas in
question is premature and has not been properly submitted for adjudication
under the strict procedural requirements. If this be the case, my above views,
termed as concurrences, should be taken as dissents against the majority
action. prLL
(Dumlao v. Commission on Elections, G.R. No. L-52245, [January 22, 1980],

|||
184 PHIL 369-395)
EN BANC
[G.R. No. 112889. April 18, 1995.]

BIENVENIDO O. MARQUEZ, JR., petitioner, vs. COMMISSION
ON ELECTIONS and EDUARDO T. RODRIGUEZ, respondents.
Estelito P. Mendoza and Villareal Law Offices for petitioner.

Balgos and Perez for private respondent.
SYLLABUS
POLITICAL LAW; THE LOCAL GOVERNMENT CODE OF 1991;

DISQUALIFICATION TO RUN FOR ANY ELECTIVE LOCAL POSITION;
FUGITIVE FROM JUSTICE, DEFINED. — The Oversight Committee finally came
out with Article 73 of the Rules and Regulations Implementing the Local
Government Code of 1991. It provided: "Art. 73.Disqualifications. — The following
persons shall be disqualified from running for any elective local position: "(a) . . .
"(b) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive
from justice refers to a person who has been convicted by final judgment. " Private
respondent reminds us that the construction placed upon a law by the officials in
charge of its enforcement deserves great and considerable weight (Atlas
Consolidated Mining and Development Corp. vs. CA, 182 SCRA 166, 181). The
Court certainly agrees; however, when there clearly is no obscurity and ambiguity
in an enabling law, it must merely be made to apply as it is so written. An
administrative rule or regulation can neither expand nor constrict the law but must
remain congruent to it. The Court believes and thus holds, albeit with some
personal reservations of the ponente (expressed during the Court’s en
banc deliberations), that Article 73 of the Rules and Regulations Implementing
the Local Government Code of 1991, to the extent that it confines the term "fugitive
from justice" to refer only to a person (the fugitive) "who has been convicted by
final judgment," is an inordinate and undue circumscription of the law.
DAVIDE, JR., J., separate opinion:
1. POLITICAL LAW; SEC. 40; R.A. 7160 (LOCAL GOVERNMENT CODE
OF 1991); ART. 73, RULES AND REGULATIONS; UNREASONABLY EXPANDS
THE SCOPE OF DISQUALIFICATION. — Section 40 of R.A. No. 7160, otherwise
known as the Local Government Code of 1991 enumerates those who are
disqualified from running for any elective local position, among whom is a: (e)
Fugitive from justice in criminal or non-political cases here or abroad. The term
"fugitive from justice" refers not only to those who flee after conviction to avoid
punishment but also to those who, after being charged, flee to avoid prosecution.
In his ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the
Oversight Committee, i.e., "a person who has been convicted by final judgment,"
as appearing in Article 73 of the Rules and Regulations Implementing the Local
Government Code of 1991, as inordinate and an undue circumscription of the law.
Justice Davide agrees and further submits that it also unreasonably expands the
scope of the disqualification in the 1991 Local Government Code because it
disqualifies all those who have been convicted by final judgment, regardless of the
extent of the penalty imposed and of whether they have served or are serving their
sentences or have evaded service of sentence by jumping bail or leaving for
another country. The definition thus disregards the true and accepted meaning of
the word fugitive. This new definition is unwarranted for nothing in the legislative
debates has been shown to sustain it and the clear language of the law leaves no
room for a reexamination of the meaning of the term.
2. ID.; ID.; DISQUALIFICATIONS, JUSTIFIED. — There are certain
fundamental considerations which do not support the application of the
presumption of innocence under the Bill of Rights which support disqualification.
Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress
to determine who are disqualified from exercising the right of suffrage. Since the
minimum requirement of a candidate for a public office is that he must be a
qualified voter, it logically follows that Congress has the plenary power to
determine who are disqualified to seek election for a public office. Secondly, a
public office is a public trust. Section 1, Article XI of the Constitution expressly so
provides. A public office is not property. (ISAGANI A. CRUZ, Constitutional Law,
1993 ed., 101; JOAQUIN BERNAS, The Constitution of the Republic of the
Philippines, A Commentary, 1987 ed., 40, citing Cornejo vs. Gabriel, 41 Phil. 188
[1920]). Accordingly, stricter qualifications for public office may thus be required by
law. Thirdly, the disqualification in question does not, in reality, involve the issue
of presumption of innocence. Elsewise stated, one is not disqualified because he
is presumed guilty by the filing of an information or criminal complaint against him.
He is disqualified because he is a "fugitive from justice," i.e., he was not brought
within the jurisdiction of the court because he had successfully evaded arrest; or if
he was brought within the jurisdiction of the court and was tried and convicted, he
has successfully evaded arrest; or if he was brought within the jurisdiction of the
court and was tried and convicted, he has successfully evaded service of sentence
because he had jumped bail or escaped. The disqualification then is based on his
flight from justice. In the face of the settled doctrine that flight is an indication of
guilt, it may even be truly said that it is not the challenged disqualifying provision
which overcomes the presumption of innocence but rather the disqualified person
himself who has proven his guilt. Finally, Dumlao vs. COMELEC (95 SCRA 392
[1980]) cannot be invoked to case doubt on the validity of the challenged
disqualification. Dumlao struck out as violative of the constitutional presumption of
innocence that portion of the second paragraph, Section 4 of B.P. Blg. 52providing
that "the filing of charges for the commission of such crimes before a civil court or
military tribunal after preliminary investigation shall be prima facieevidence of such
fact." It is clear that the law challenged therein did in fact establish a presumption
of guilt from the mere filing of the information or criminal complaint, in violation of
the constitutional right to presumption of innocence.
DECISION
VITUG, J :p
The Court is called upon, in this petition for certiorari, to resolve the
conflicting claims of the parties on the meaning of the term "fugitive from
justice" as that phrase is so used under the provisions of Section 40(e) of the
Local Government Code (Republic Act No. 7160). That law states:
"Sec. 40. Disqualifications. — The following persons are
disqualified from running for any elective local position:
"xxx xxx xxx
"(e) Fugitive from justice in criminal or non-political cases here or
abroad(.)"
Bienvenido Marquez, a defeated candidate for the elective position of
Governor in the Province of Quezon in the 11th May 1992 elections filed this
petition forcertiorari praying for the reversal of the resolution of the
Commission on Elections ("COMELEC") which dismissed his petition for quo
warranto against the winning candidate, herein private respondent Eduardo
Rodriguez, for being allegedly a fugitive from justice. prLL
It is averred that at the time private respondent filed his certificate of

candidacy, a criminal charge against him for ten (10) counts of insurance
fraud or grand theft of personal property was still pending before the Municipal
Court of Los Angeles Judicial District, County of Los Angeles, State of
California, U.S.A. A warrant issued by said court for his arrest, it is claimed,
has yet to be served on private respondent on account of his alleged "flight"
from that country.
Before the 11th May 1992 elections, a petition for cancellation (SPA 92-
065) of respondent's certificate of candidacy, on the ground of the candidate's
disqualification under Section 40(e) of the Local Government Code, was filed
by petitioner with the COMELEC. On 08 May 1992, the COMELEC dismissed
the petition.
Petitioner's subsequent recourse to this Court (in G.R. No. 105310)
from the 08th May 1992 resolution of COMELEC was dismissed without
prejudice, however, to the filing in due time of a possible post-election quo
warranto proceeding against private respondent. The Court, in its resolution of
02 June 1992, held:
"Evidently, the matter elevated to this Court was a pre-proclamation
controversy. Since the private respondent had already been proclaimed
as the duly elected Governor of the Province of Quezon, the petitioner
below for disqualification has ceased to be a pre-proclamation
controversy. In Casimiro vs. Commission on Elections, G.R. Nos. 84462-
63 and Antonio vs. Commission on Elections, G.R. Nos. 84678-79, jointly
decided on 29 March 1989, 171 SCRA 468, this court held that a pre-
proclamation controversy is no longer viable at this point of time and
should be dismissed. The proper remedy of the petitioner is to pursue the
disqualification suit in a separate proceeding.llcd
"ACCORDINGLY, the Court Resolved to DISMISS the petition,

without prejudice to the filing of the appropriate proceedings in the proper
forum, if so desired, within ten (10) days from notice." 1
Private respondent was proclaimed Governor-elect of Quezon on 29
May 1992. Forthwith, petitioner instituted quo warranto proceedings (EPC 92-
28) against private respondent before the COMELEC. In its 02 February 1993
resolution, the COMELEC (Second Division) dismissed the petition. The
COMELEC En Banc, on 02 December 1993, denied a reconsideration of the
resolution.
Hence, this petition for certiorari, the core issue of which, such as to be
expected, focuses on whether private respondent who, at the time of the filing
of his certificate of candidacy (and to date), is said to be facing a criminal
charge before a foreign court and evading a warrant for his arrest comes
within the term "fugitive from justice" contemplated by Section 40(e) of the
Local Government Code and, therefore, disqualified from being a candidate
for, and thereby ineligible from holding on to, an elective local office.
Petitioner's position is perspicuous and to the point. The law, he
asseverates, needs no further interpretation and construction. Section 40(e)
of Republic Act No. 7160, is rather clear, he submits, and it disqualifies
"fugitives from justice in criminal or non-political cases here or abroad" from
seeking any elective local office. The Solicitor General, taking the side of
petitioner, expresses a like opinion and concludes that the phrase "fugitive
from justice" includes not only those who flee after conviction to avoid
punishment but likewise those who, after being charged, flee to avoid
prosecution. This definition truly finds support from jurisprudence (Philippine
Law Dictionary, Third Edition, p. 399, by F.B. Moreno; Black's Law Dictionary,
Sixth Edition, p. 671; King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102,
103; Hughes vs. PFlanz, 138 Federal Reporter 980; Tobin vs. Casaus, 275
Pacific Reporter, 2d., p. 792), and it may be so conceded as expressing the
general and ordinary connotation of the term.
In turn, private respondent would have the Court respect the
conclusions of the Oversight Committee which, conformably with Section
5332 of RA. 7160, was convened by the President to "formulate and issue the
appropriate rules and regulations necessary for the efficient and effective
implementation of any and all provisions of the Code to ensure compliance
with the principles of Local Autonomy." cdll
Here are some excerpts from the committee's deliberations:

"'CHAIRMAN MERCADO. Session is resumed.
'So, we are in agreement to retain Line 12, Page 36, as is. So next,
Page 39.
'CHAIRMAN DE PEDRO. Kay Benny Marquez.
'REP. CUENCO. What does he want?
'CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan. Bahala
na kung kuwestiyunin ang constitutionality nito before the Supreme Court
later on.
'REP. CUENCO. Anong nakalagay diyan?
'CHAIRMAN DE PEDRO. Iyong disqualification to run for public
office.
'Any person who is a fugitive from justice in criminal or nonpolitical
cases here or abroad."
'Mabigat 'yung abroad.' One who is facing criminal charges with the
warrant of arrest pending, unserved. . .
'HONORABLE SAGUISAG. I think that is even a good point, and
— what is a fugitive? It is not defined. We have loose understanding. . .
'CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms
iyong 'fugitive.'
'Si Benny umalis na, with the understanding na okay na sa atin ito.'
"THE CHAIRMAN. Whether we have this rule or not she can run.
She is not a fugitive from justice. Mrs. Marcos can run at this point and I
have held that for a long time ago. So can. . .
"MS. DOCTOR. Mr. Chairman. . .
"THE CHAIRMAN. Yes.
"MS. DOCTOR. Let's move to. . .
"THE CHAIRMAN. Wait, wait, wait. Can we just agree on the
wording, this is very important. Manny, can you come up?
"MR. REYES. Let's use the word conviction by final judgment.
"THE CHAIRMAN. Fugitive means somebody who is convicted by
final judgment. Okay, Fugitive means a person convicted by final
judgment. Insert that on Line 43 after the semi-colon. Is that approved?
No objection, approved (TSN, Oversight Committee, 07 May 1991).
"xxx xxx xxx
"THE CHAIRMAN. Andy, saan ba naman itong amendment on
page 2? Sino ba ang gumawa nito? Okay, on page 2, lines 43 and 44,
'fugitive from justice.' What 'fugitive?' Sino ba ang gumawa nito, ha?
"MR. SANCHEZ. Yes, I think, well, last time, Mr. Chairman, we
agree to clarify the word — what is meant by the word 'fugitive.'
"THE CHAIRMAN. 'Fugitive from justice means a person' ba ito,
ha?
"MR. SANCHEZ. Means a person. . .
"THE CHAIRMAN. Ha?
"HON. REYES. A person who has been convicted.
"THE CHAIRMAN. Yes, fugitive from justice, oo. Fugitive from
justice shall mean or means one who has been convicted by final
judgment. It means one who has been convicted by final judgment.
"HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan.
"THE CHAIRMAN. Ano? Sige, tingnan natin.
"HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin
siya?
"THE CHAIRMAN. O, tama na yan, fugitive from justice. He has
been convicted by final judgment, meaning that if he is simply in jail and
because he put up, post bail, but the case is still being reviewed, that is
not yet conviction by final judgment." 3
The Oversight Committee evidently entertained serious apprehensions
on the possible constitutional infirmity of Section 40(e) of Republic Act
No. 7160 if the disqualification therein meant were to be so taken as to
embrace those who merely were facing criminal charges. A similar
concern was expressed by Senator R.A.V. Saguisag who during the
bicameral conference committee of the Senate and the House of
Representatives, made this reservation:
". . . de ipa-refine lang natin 'yung language especially 'yung,
the scope of fugitive. Medyo bothered ako doon, a." 4
The Oversight Committee finally came out with Article 73 of the
Rules and Regulations Implementing the Local Government Code of
1991. It provided:
"Art. 73. Disqualifications. — The following persons shall be
disqualified from running for any elective local position:
"(a) . . .
"(b) Fugitives from justice in criminal or non-political cases
here or abroad. Fugitive from justice refers to a person who has been
convicted by final judgment." 5 (Italics supplied)
Private respondent reminds us that the construction placed upon
a law by the officials in charge of its enforcement deserves great and
considerable weight (Atlas Consolidated Mining and Development Corp.
vs. CA, 182 SCRA 166, 181). The Court certainly agrees; however, when
there clearly is no obscurity and ambiguity in an enabling law, it must
merely be made to apply as it is so written. An administrative rule or
regulation can neither expand nor constrict the law but must remain
congruent to it. The Court believes and thus holds, albeit with some
personal reservations of the ponente(expressed during the Court's en
banc deliberations), that Article 73 of the Rules and Regulations
Implementing the Local Government Code of 1991, to the extent that it
confines the term "fugitive from justice" to refer only to a person (the
fugitive) "who has been convicted by final judgment," is an inordinate
and undue circumscription of the law.
Unfortunately, the COMELEC did not make any definite finding on
whether or not, in fact, private respondent is a "fugitive from justice" as
such term must be interpreted and applied in the light of the Court's
opinion. The omission is understandable since the COMELEC dismissed
outrightly the petition for quo warranto on the basis instead of Rule 73
of the Rules and Regulations promulgated by the Oversight Committee.
The Court itself, not being a trier of facts, is thus constrained to remand
the case to the COMELEC for a determination of this unresolved factual
matter.prLL
WHEREFORE, the questioned resolutions of the Commission on

Elections are REVERSED and SET ASIDE, and the case is hereby
REMANDED to the Commission which is DIRECTED to proceed and
resolve the case with dispatch conformably with the foregoing opinion.
No special pronouncement on costs.
SO ORDERED.
Feliciano, Padilla, Regalado, Melo, Quiason, Puno,
Kapunan and Francisco, JJ., concur.
Narvasa, C.J., Romero, Bellosillo and Mendoza, JJ., join J. Davide in
his separate opinion.
Davide, Jr., J., see separate opinion.
Separate Opinions
DAVIDE, JR., J.:
Section 65 of the Omnibus Election Code (B.P. Blg. 881) states that
the qualifications for elective provincial, city, municipal, and barangay
officials shall be those provided for in the Local Government Code. The
quondam Local Government Code was B.P. Blg. 337, which was
superseded by R.A. No. 7160, otherwise known as the Local
Government Code of 1991.Section 39 of the latter provides for the
qualifications and election of local elective officials. Section 40
enumerates those who are disqualified from running for any elective
local position, among whom is a:
(e) Fugitive from justice in criminal or non-political cases here or
abroad.
The term "fugitive from justice" refers not only to those who flee
after conviction to avoid punishment but also to those who, after being
charged, flee to avoid prosecution. In his ponencia, Mr. Justice Jose C.
Vitug finds the definition given to it by the Oversight Committee, i.e., "a
person who has been convicted by final judgment," as appearing in
Article 73 of the Rules and Regulations Implementing the Local
Government Code of 1991, as inordinate and an undue circumscription
of the law. I agree.
But this is only one side of the coin. I further submit that it also
unreasonably expands the scope of the disqualification in the 1991
Local Government Code because it disqualifies all those who have been
convicted by final judgment, regardless of the extent of the penalty
imposed and of whether they have served or are serving their sentences
or have evaded service of sentence by jumping bail or leaving for
another country. The definition thus disregards the true and accepted
meaning of the word fugitive. This new definition is unwarranted for
nothing in the legislative debates has been shown to sustain it and the
clear language of the law leaves no room for a reexamination of the
meaning of the term.
I do not share the doubt of Mr. Justice Vitug on the
constitutionality of the disqualification based on the presumption of
innocence clause of the Bill of Rights. There are certain fundamental
considerations which do not support the application of the
presumption. LLpr
Firstly, Section 1, Article V of the Constitution recognizes the

authority of Congress to determine who are disqualified from exercising
the right of suffrage. Since the minimum requirement of a candidate for
a public office is that he must be a qualified voter, it logically follows
that Congress has the plenary power to determine who are disqualified
to seek election for a public office.
Secondly, a public office is a public trust. Section 1, Article XI of
the Constitution expressly provides:
Sec. 1. Public office is public trust. Public officers and

employees must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency, act
with patriotism and justice, and lead modest lives.
A public office is not property. (ISAGANI A. CRUZ, Constitutional Law,
1993 ed., 101; JOAQUIN BERNAS, The Constitution of the Republic of
the Philippines, A Commentary, 1987 ed., 40, citing Cornejo vs. Gabriel,
41 Phil. 188 [1920]). Accordingly, stricter qualifications for public office
may thus be required by law.
Thirdly, the disqualification in question does not, in reality, involve
the issue of presumption of innocence. Elsewise stated, one is not
disqualified because he is presumed guilty by the filing of an
information or criminal complaint against him. He is disqualified
because he is a "fugitive from justice," i.e., he was not brought within
the jurisdiction of the court because he had successfully evaded arrest;
or if he was brought within the jurisdiction of the court and was tried
and convicted, he has successfully evaded service of sentence because
he had jumped bail or escaped. The disqualification then is based on
his flight from justice. In the face of the settled doctrine that flight is an
indication of guilt, it may even be truly said that it is not the challenged
disqualifying provision which overcomes the presumption of innocence
but rather the disqualified person himself who has proven his guilt. LibLex
Finally, Dumlao vs. COMELEC (95 SCRA 392 [1980]) cannot be

invoked to cast doubt on the validity of the challenged disqualification.
Dumlao struck out as violative of the constitutional presumption of
innocence that portion of the second paragraph, Section 4 of B.P. Blg.
52 providing that "the filing of charges for the commission of such
crimes before a civil court or military tribunal after preliminary
investigation shall be prima facie evidence of such fact." It is clear that
the law challenged therein did in fact establish a presumption of guilt
from the mere filing of the information or criminal complaint, in violation
of the constitutional right to presumption of innocence.
(Marquez, Jr. v. Commission on Elections, G.R. No. 112889, [April 18, 1995],
|||
313 PHIL 417-433)
EN BANC
[G.R. No. 74259. February 14, 1991.]
GENEROSO P. CORPUZ, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.
Law Firm of Roberto P. Halili for petitioner.
DECISION
CRUZ, J : p
The petitioner seeks reversal of the decision of the respondent court dated
February 27, 1986, the dispositive portion of which reads as follows:
WHEREFORE, the Court finds the accused Generoso Corpuz y Padre,
guilty beyond reasonable doubt as principal of the crime of Malversation
of Public Funds, and there being no modifying circumstances in
attendance, and applying the Indeterminate Sentence Law, hereby
sentences him to suffer imprisonment ranging from Twelve (12) Years
and One (1) Day of reclusion temporal, as minimum, to Twenty (20)
years of reclusion temporal, as maximum; to restitute to the provincial
government of Nueva Vizcaya the sum of P50,596.07 which is the
amount misappropriated, and to pay the costs of this suit. Further, the
accused is ordered to suffer the penalty of perpetual special
disqualification, and to pay a fine equal to the amount embezzled.
SO ORDERED.
As Supervising Accounting Clerk in the Office of the Provincial Treasurer of
Nueva Vizcaya, the petitioner was designated Acting Supervising Cashier in the
said Office. In this capacity, he received collections, disbursed funds and made
bank deposits and withdrawals pertaining to government accounts. llcd
On April 13, 1981, his designation as Acting Supervising Cashier was terminated,
and on April 22, 1981, a Transfer of Accountabilities was effected between the
petitioner and his successor. The Certificate of Turnover revealed a shortage in
the amount of P72,823.08. 1
A letter of demand dated April 22, 1981, required the petitioner to produce the
missing amount but he was able to pay only P10,159.50. The balance was
demanded in another letter dated October 12, 1981. This was subsequently
reduced by P12,067.51 through the payment to the petitioner of temporarily
disallowed cash items and deductions from his salary before his dismissal from
the service. 2
On September 27, 1982, a final letter of demand for the total deficiency of
P50,596.07 was sent to the petitioner. The demand not having been met, an
information for malversation of the said amount was filed against him with the
respondent court on October 11, 1983.
The above facts are not denied by the petitioner. 3 He insists, however, that he is
not guilty of the charge because the shortage imputed to him was malversed by
other persons.
His claim is that the P50,000.00 constituting the bulk of the shortage represented
the unliquidated withdrawal made by Paymaster Diosdado Pineda through one of
four separate checks issued and encashed while the petitioner was on official
leave of absence. He avers he was later made to post the amount in his cash
book by Acting Deputy Provincial Treasurer Bernardo C. Aluning and he had no
choice but to comply although he had not actually received the said amount. cdll
The four checks drawn from the Philippine National Bank and the corresponding
vouchers dated are described as follows:
1. Provincial Voucher dated December 22, 1980 from the General Fund
in the amount of P50,000.00 and paid by PNB Check No. 956637 dated
December 22, 1980.
2. Provincial Voucher dated December 23, 1980 from the Infrastructure
Fund in the amount of P50,000.00 and paid by PNB Check No.
SN958525 dated December 23, 1980.
3. Provincial Voucher dated December 23, 1980 from the General Fund
in the amount of P50,000.00 and paid by PNB Check No. 956639J dated
December 22, 1980.
4. Provincial Voucher dated December 29, 1980 from the Infrastructure
Fund in the amount of P50,000.00 and paid by PNB Check No. 958226
dated December 29, 1980.
Testifying for the prosecution, Pineda insisted he had liquidated all four checks
after the amounts thereof were disbursed, turning over to the petitioner the
corresponding withdrawal vouchers, paid vouchers, and payrolls, (which were all
submitted as exhibits). 4 He added that the petitioner was not really absent on
the dates in question as alleged but was in fact the one who prepared the said
checks in the morning before attending to his sick wife in the hospital, returning
to the office in the afternoon. He said that the payroll payments made on
December 22, 23 and 29, 1980, were liquidated on December 29, 1980, after the
petitioner came back from the hospital. 5
Acting Provincial Treasurer Perfecto Martinez corroborated Pineda's testimony
that the petitioner was not on official leave on the dates in question. He said that
although Check No. 958525 had already been encashed on December 23, 1980,
the encashment was not immediately recorded in the petitioner's cashbook,
"which (was) one way of temporarily hiding the early detection of a shortage." It
was only in March 1981 that the shortage was discovered and, when confronted
with it, the petitioner had no explanation to offer. 6
Aluning denied he had exerted pressure on the petitioner to post the shortage in
the petitioner's cash book. He explained that after receiving the bank statement
from the PNB for December 1980, he discovered that although the amount of
P50,000.00 appeared to have been already encashed, the encashment was not
reflected in the petitioner's cash book. As his superior, he required the petitioner
to make the proper entry in the cash book because the amount withdrawn was
already part of the latter's accountability. 7
After considering the evidence of the parties, the Sandiganbayan, through
Justice Amante Q. Alconcel, made the following findings:
The evidence on record is devoid of any explanation from the defense as
to the amount of P595.87. Hence, the accused must be held answerable
for the misappropriation of the said amount.
As to the amount of P50,000.00, We are not disposed to give credence
to his claim that same has not been liquidated by the paymaster, for the
following reasons:
First, Check No. 958525 is only one of four (4) checks issued and
encashed for the same purpose, and that is, to pay salary differentials as
well as salaries and wages of provincial officials and employees of the
province of Nueva Vizcaya covering the period, January to December,
1980. Issuance and encashment occurred on December 23, 1980, and
in fact, another check (No. 956639) was also issued and encashed on
the same day. The two (2) other checks (Nos. 956637 and 958526) were
issued and encashed on December 22 and 29, 1980, respectively.
Except for Check No. 958525, which was only entered in accused's
Cash Book on March 31, 1981, or three (3) months after its issuance
and encashment, all the other three (3) were duly entered. Then Check
No. 956639 which, as pointed out above, was issued and encashed on
the same day as Check No. 958525, was duly entered in his Cash Book.
Non-entry of the latter check on time was a subtle way of camouflaging
the embezzlement of its money equivalent.
Secondly, there seems to be no logical reason why Checks, Nos.
956639 and 958525, could not have been liquidated together by
Diosdado Pineda who used the proceeds to pay salary differentials of
government officials and employees of the province of Nueva Vizcaya,
since these have been issued and encashed on the same day.
Thirdly, Diosdado Pineda, who was presented as a prosecution witness,
swore that he duly liquidated the proceeds of the four (4) checks as
follows:
ATTY. DEL ROSARIO ON DIRECT EXAMINATION:
q. If the payroll is already accomplished, where do you give the payroll?
a. I give it back to the cashier with the corresponding voucher to support
the vouchers paid by me or disbursed by me.
AJ ESCAREAL:
q. So that your cash advances will be liquidated?
a. Yes, Your honor.
xxx xxx xxx
q. In the absence of the cashier, to whom do you give these documents?
a. I give them to the cashier only, no other person.
ATTY. DEL ROSARIO
q. In his absence, do you keep these documents?
a. Yes, Your Honor.
q. For payrolls that you paid for December 22, 23 and 29, when did you
give these payrolls to the cashier?
a. On December 29, sir.
AJ ESCAREAL:
q. Duly accomplished?
a. Duly accomplished, Your Honor.
xxx xxx xxx
AJ ALCONCEL:
q. Where did you see your cashier on the 29th?
a. At the office, Your Honor.
ATTY. DEL ROSARIO:
q. At what time?
a. In the afternoon, sir.
AJ ALCONCEL:
q. Are you not aware that your cashier was absent on that date?
a. He was present on that day, sir. He would go out because the wife
was supposedly having a check-up but in the afternoon, he would
return. (t.s.n., March 29, 1985, pp. 16-18)
The cashier referred to by the witness is the accused, Generoso P.
Corpuz.
And fourthly, We are not impressed by accused's claim that he was
absent on December 22, 23 and 29, 1980. His witness, Diosdado
Pineda, declared otherwise. His Employee's Leave Card (Exhibit J),
wherein his earned leaves are indicated, shows that during the month of
December, 1980, he earned 1.25 days vacation leave and 1.25 days
sick leave, which is the same number of days vacation and sick leaves
that he earned monthly from July 7, 1976 to October 1981. Moreover,
even if it were true that he was absent on December 23, 1980, the day
when Check No. 958525 was issued and encashed, yet, the other check
which was issued and encashed on the same day was duly liquidated.
The above findings are mainly factual and are based on substantial evidence.
There is no reason to disturb them, absent any of the exceptional circumstances
that will justify their review and reversal. On the contrary, the Court is convinced
that the facts as established point unmistakably to the petitioner's guilt of the
offense charged.
This conclusion is bolstered by the Solicitor General's observation that:
Moreover, petitioner's denial of responsibility for the missing P50,000.00
is negated by the following factors:
First. When he entered the said amount in his cash book in March, 1981,
he did not make any notation that said amount, though entered, was not
actually received.
Second. At the time he signed the certificate of turn-over (Exhibit C), he

did not make any certification that the amount of P50,000.00 should not
be charged against him.
Third. Despite his insistence that Pineda and Martinez misappropriated
the money, he did not file any case, whether civil, criminal or otherwise,
against either or both.
The absence of a post-audit is not, as the petitioner contends, a fatal omission.
That is not a preliminary requirement to the filing of an information for
malversation as long as the prima facie guilt of the suspect has already been
established. The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by any duly
authorized officer, shall be prima facie evidence that he has put such missing
funds or property to personal use. 8 And what determines whether the crime of
malversation has been committed is the presence of the following requirements
under Article 217 of the Revised Penal Code:
(a) That the offender be a public officer.
(b) That he had the custody or control of funds or property by
reason of the duties of his office.
(c) That those funds or property were public funds or property for
which he was accountable.
(d) That he appropriated, took, misappropriated or consented or,
through abandonment or negligence, permitted another
person to take them.
The petitioner's claim that he is the victim of a "sinister design" to hold him
responsible for a crime he has not committed is less than convincing. His attempt
to throw the blame on others for his failure to account for the missing money only
shows it is he who is looking for a scapegoat. The plaintive protest that he is "a
small fry" victimized by the "untouchables" during the Marcos regime is a mere
emotional appeal that does not impress at all. The suggestion that the supposed
injustice on the petitioner would be abetted by this Court unless his conviction is
reversed must be rejected as an arrant presumptuousness.
The equipoise rule invoked by the petitioner is applicable only where the
evidence of the parties is evenly balanced, in which case the constitutional
presumption of innocence should tilt the scales in favor of the accused. There is
no such equipoise here. The evidence of the prosecution is overwhelming and
has not been overcome by the petitioner with his nebulous claims of persecution
and conspiracy. The presumed innocence of the accused must yield to the
positive finding that he malversed the sum of P50,310.87 to the prejudice of the
public whose confidence he has breached. His conviction must be affirmed.
WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so
ordered.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea and Regalado,
JJ., concur.
||| (Corpuz v. People, G.R. No. 74259, [February 14, 1991], 271 PHIL 901-910)
SECOND DIVISION
[G.R. No. 94262. May 31, 1991.]
FEEDER INTERNATIONAL LINE, PTE., LTD., but its agent

FEEDER INTERNATIONAL (PHILS.) INC., petitioner, vs. COURT
OF APPEALS, Fourteenth Division, COURT OF TAX APPEALS,
and COMMISSIONER OF CUSTOMS, respondents.
Emma Quisumbing-Fernando and Yolanda Quisumbing-Javellana &

Associates for petitioner.
SYLLABUS
1. REMEDIAL LAW; ACTIONS; APPEALS; FINAL JUDGMENTS OR DECREES

OF THE COURT OF TAX APPEALS, WITHIN THE EXCLUSIVE APPELLATE
JURISDICTION OF THE COURT OF APPEALS. — Final judgments or decrees
of the Court of Tax Appeals are within the exclusive appellate jurisdiction of the
Court of Appeals (Development Bank of the Philippines vs. Court of Appeals, et
al., 180 SCRA 609 [1989]).
2. ADMINISTRATIVE LAW; TARIFF AND CUSTOMS CODE; FORFEITURE
PROCEEDING, NOT PENAL IN NATURE. — A forfeiture proceeding under tariff
and customs laws is not penal in nature. (People vs. Court of First Instance of
Rizal, etc., et al., 101 SCRA 86 [1980]).
3. REMEDIAL LAW; EVIDENCE; SUBSTANTIAL EVIDENCE, NOT PROOF
BEYOND REASONABLE DOUBT REQUIRED IN FORFEITURE
PROCEEDINGS. — Considering, therefore, that proceedings for the forfeiture of
goods illegally imported are not criminal in nature since they do not result in the
conviction of the wrongdoer nor in the imposition upon him of a penalty, proof
beyond reasonable doubt is not required in order to justify the forfeiture of the
goods. In this case, the degree of proof required is merely substantial evidence
which means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO BE PRESUMED
INNOCENT; NOT AVAILABLE TO JURIDICAL PERSONS. — A corporate entity,
has no personality to invoke the right to be presumed innocent which right is
available only to an individual who is an accused in a criminal case.
5. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; RULE
THEREON NOT APPLICABLE TO FORFEITURE PROCEEDINGS. — Forfeiture
proceedings are not criminal in nature, hence said provision of Rule 133 which
involves such circumstantial evidence as will produce a conviction beyond
reasonable doubt does not apply.
6. ADMINISTRATIVE LAW; TARIFF AND CUSTOMS CODE; WHEN
IMPORTATION BEGINS. — Section 1202 of the Tariff and Customs Code
provides that importation begins when the carrying vessel or aircraft enters the
jurisdiction of the Philippines with intention to unload therein.
7. ID.; ID.; ID.; INTENT; ORDINARILY INFERRED FROM THE FACTS. — It is
clear from the provision of the law that mere intent to unload is sufficient to
commence an importation. And "intent," being a state of mind, is rarely
susceptible of direct proof, but must ordinarily be inferred from the facts, and
therefore can only be proved by unguarded, expressions, conduct and
circumstances generally.
8. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACTS OF THE COURT OF
APPEALS AND OF ADMINISTRATIVE AND QUASI-JUDICIAL BODIES,
ENTITLED TO GREAT WEIGHT. — The findings of fact of respondent Court of
Appeals are in consonance with both the Collector and the Commissioner of
Customs, as affirmed by the Court of Tax Appeals. We, therefore, find no
compelling reason to deviate from the elementary principle that findings of fact of
the Court of Appeals, and of the administrative and quasi-judicial bodies for that
matter, are entitled to great weight and are conclusive and binding upon this
Court absent a showing of a grave abuse of discretion amounting to lack of
jurisdiction.
9. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO COUNSEL; NOT
INDISPENSABLE IN NON-CRIMINAL PROCEEDINGS. — "In non-criminal
proceedings, the need for the assistance of counsel is not as urgent nor is it
deemed essential to their validity. There is nothing in the Constitution that says a
party in a non-criminal proceeding is entitled to be represented by counsel and
that without such representation he will not be bound by such proceedings. The
assistance of lawyers, while desirable, is not indispensable. The legal profession
was not engrafted in the due process clause such that without the participation of
its members the safeguard is deemed ignored or violated. The ordinary citizen is
not that helpless that he cannot validly act at all except only with a lawyer at his
side." (Nera v. The Auditor General, 164 SCRA 1)
10. REMEDIAL LAW; EVIDENCE; BURDEN OF PROOF AND
PRESUMPTIONS; PRESUMPTION THAT DUTY WAS PERFORMED; CASE AT
BAR. — If ever there was any doubt as to the veracity of the sworn statements of
Deposa and Torres, they should have been presented during any appropriate
stage of the proceedings to refute or deny the statements they made. This was
not done by petitioner. Hence, the presumption that official duty was regularly
performed stands.
DECISION
REGALADO, J : p
The instant petition seeks the reversal of the decision of respondent Court of
Appeals dated May 8, 1990, affirming the decision rendered by respondent Court
of Tax Appeals which found the vessel M/T "ULU WAI" liable under Section
2530(a) of the Tariff and Customs Code of the Philippines (Presidential Decree
No. 1464), as amended, and its cargo of 1,100 metric tons of gas oil and 1,000
metric tons of fuel oil liable under Section 2530(a), (f), and (1-1) of the same
Code and ordering the forfeiture of the said vessel and its cargo. 1
The facts as culled from the decision of the Court of Appeals in CA-G.R. SP No.
20470 are as follows:
"The M/T 'ULU WAI' a foreign vessel of Honduran registry, owned and
operated by Feeder International Shipping Lines of Singapore, left
Singapore on May 6, 1986 carrying 1,100 metric tons of gas oil and
1,000 metric tons of fuel oil consigned to Far East Synergy Corporation
of Zamboanga, Philippines.
"On May 14, 1986, the vessel anchored at the vicinity of Guiuanon
Island in Iloilo without notifying the Iloilo customs authorities. The
presence of the vessel only came to the knowledge of the Iloilo
authorities by information of the civilian informer in the area. Acting on
said information, the Acting District Collector of Iloilo dispatched a
Customs team on May 19, 1986 to verify the report.
"The Customs team found out that the vessel did not have on board the
required ship and shipping documents, except for a clearance from the
port authorities of Singapore clearing the vessel for 'Zamboan.'
"In view thereof, the vessel and its cargo were held and a Warrant of
Seizure and Detention over the same was issued after due investigation.
The petitioner then filed its Motion to Dismiss and to Quash the Warrants
of Seizure and Detention which the District Collector denied in his Order
dated December 12, 1986.
"In the course of the forfeiture proceedings, the parties, through their
respective counsel, agreed on a stipulation of facts, to wit:
'1. That the existence and identity of MT "ULU WAI"
subject of S1-2-86, herein identified as Exh. "A", is admitted.
'2. That the existence and identity of 1,100 metric tons of
gas oil, subject of S1-2-86-A, herein identified as Exh. "B", is
admitted;
'3. That the existence and identity of 1,000 metric tons of
fuel oil, subject of S1-2-86 herein identified as Exh. "B-1", is
admitted;
'4. That M/T "ULU WAI" left Singapore May 6, 1986 and
was cleared by Singapore customs authorities for Zamboanga,
Philippines;
'5. That subject vessel arrived at Guiuanon Island,
Municipality of Nueva Valencia, sub-province of Guimaras,
Province of Iloilo, Philippines, about 1120HRS, May 14, 1986;
'6. That subject vessel was boarded by Customs and
Immigration authorities for the first time in the afternoon of May
19, 1986, at about 1600HRS;
'7. That an apprehension report dated May 21, 1986,
submitted by the Team Leader of the Customs and Immigration
Team, Roberto Intrepido, marked and identified as Exh. "C", is
admitted;
'8. That at the time of boarding, the Master of subject
vessel could not produce any ship and/or shipping documents
regarding her cargo except the Port Clearance Certificate No.
179999 issued by the Port of Singapore authority dated May 4,
1986, marked as Exh. "D", which is hereby admitted;
'9. That on May 26, 1986, the Master of M/T "ULU WAI",
Capt. Romeo E. Deposa filed a Marine Protest dated same date,
which Marine Protest, marked and identified as Exh. "E", is
hereby admitted;
'10. That the sworn statement of said Capt. Romeo E.
Deposa, marked and identified as Exh. "F", given on May 26,
1986 before Atty. Hernando Hinojales, Customs Legal Officer, is
admitted;
'11. That the sworn statement of Mr. Antonio Torres,
Owner's representative of M/T "ULU WAI", marked and identified
as Exh. "G" given before Atty. Hernando Hinojales on May 28,
1986, is admitted;
'12. That the sworn statement of Wilfredo Lumagpas,
Master of M/T "CATHEAD" given before Lt. Dennis Asarraga on
June 4, 1986, marked and identified as Exh. "H", is admitted;
'13. That the existence of Fixture Note No. FN-M-86-05-41
entered into by and between the National Stevedoring &
Lighterage Corporation and the Far East Synergy Corporation,
marked and identified as Exh. "I", is admitted; and
'14. That the Preliminary Report of Survey Sounding
Report dated June 17, 1986, signed by J.P. Piad, Surveyor of
Interport Surveying Services, Inc. and duly attested by Ernesto
Cutay, Chief Officer of the M/T "ULU WAI" marked and identified
as Exh. "J", is also admitted.'" 2
On March 17, 1987, the District Collector issued his decision, with the following
disposition:
"WHEREFORE, premises considered, the M/T 'ULU WAI' is hereby
found guilty of violating Section 2530 (a) of the Tariff and Customs Code
of the Philippines (PD 1464), as amended, while her cargo of 1,100 M/T
Gas Oil and 1,000 M/T Fuel Oil are hereby found guilty of violating
Section 2530 (a), (f), and (1-1) under the same Code and are hereby
forfeited in favor of the Republic of the Philippines.
"SO ORDERED." 3
Petitioner appealed to the Commissioner of Customs who rendered a decision
dated May 13, 1987, the decretal portion of which reads:
"WHEREFORE, premises considered, the decision dated March 19,

1987 of the District Collector of Customs of Iloilo, ordering the forfeiture
of M/T 'ULU WAI' and its cargo of 2,100 metric tons of gas and fuel oil is
hereby affirmed in toto.
"SO ORDERED." 4
On June 25, 1987, petitioner filed a petition for review of the decisions of the
Collector and the Commissioner of Customs with the Court of Tax Appeals,
praying for the issuance of a writ of preliminary injunction and/or a restraining
order to enjoin the Commissioner from implementing his decision.
On December 14, 1988, the Court of Tax Appeals issued its decision, with this
dispositive portion:
"WHEREFORE, the decision of respondent Commissioner of Customs
dated May 13, 1987, ordering the forfeiture of the vessel M/T 'ULU WAI'
for violation of Section 2530(a) of the Tariff and Custom Codes (sic), as
amended, and its cargo of 1,100 metric tons of Gas Oil and 1,000 metric
tons of Fuel Oil for violation of Section 2530 * (a) and (f), and (1-1) of the
same Code, is hereby affirmed. With costs.
"SO ORDERED." 5
Petitioner, on January 19, 1990, filed a petition for review of the Court of Tax
Appeals' decision with this Court. On March 21, 1990, we issued a
resolution 6 referring the disposition of the case to the Court of Appeals in view of
our decision in Development Bank of the Philippines vs. Court of Appeals, et
al. 7 holding that final judgments or decrees of the Court of Tax Appeals are
within the exclusive appellate jurisdiction of the Court of Appeals. LibLex
On May 8, 1990, the Court of Appeals rendered its questioned decision affirming
the decision of the Court of Tax Appeals. Petitioner's motion for reconsideration
having been denied on July 4, 1990, it interposed this instant petition contending
that:
1. The Court of Appeals erred in finding on the basis of circumstantial evidence
that an illegal importation had been committed;
2. Petitioner was deprived of property without due process of law in that its right
to be presumed innocent was not recognized and the decision was not supported
by proof beyond reasonable doubt; and
3. The sworn statements of Deposa and Torres were taken without assistance of
counsel in violation of their constitutional right thereto. 8
We find no merit in the Petition.
1. It must be here emphasized that a forfeiture proceeding under tariff and
customs laws is not penal in nature, contrary to the argument advanced by
herein petitioner. In the case of People vs. Court of First Instance of Rizal, etc., et
al., 9 this Court made an exhaustive analysis of the nature of forfeiture
proceedings, in relation to criminal proceedings, as follows:
". . . It is quite clear that seizure and forfeiture proceedings under the
tariff and customs laws are not criminal in nature as they do not result in
the conviction of the offender nor in the imposition of the penalty
provided for in Section 3601 of the Code. As can be gleaned from
Section 2533 of the code, seizure proceedings, such as those instituted
in this case, are purely civil and administrative in character, the main
purpose of which is to enforce the administrative fines or forfeiture
incident to unlawful importation of goods or their deliberate possession.
The penalty in seizure cases is distinct and separate from the criminal
liability that might be imposed against the indicted importer or possessor
and both kinds of penalties may be imposed.
"In the case at bar, the decision of the Collector of Customs, as in other
seizure proceedings, concerns the res rather than the persona. The
proceeding is a probe on contraband or illegally imported goods. These
merchandise violated the revenue law of the country, and as such, have
been prevented. From being assimilated in lawful commerce until
corresponding duties are paid thereon and the penalties imposed and
satisfied either in the form of fine or of forfeiture in favor of the
government who will dispose of them in accordance with law. The
importer or possessor is treated differently. The fact that the
administrative penalty befalls on him is an inconsequential incidence to
criminal liability. By the same token, the probable guilt cannot be
negated simply because he was not held administratively liable. The
Collector's final declaration that the articles are not subject to forfeiture
does not detract his findings that untaxed goods were transported in
respondents' car and seized from their possession by agents of the law.
Whether criminal liability lurks on the strength of the provision of the
Tariff and Customs Code adduced in the information can only be
determined in a separate criminal action. Respondents' exoneration in
the administrative cases cannot deprive the State of its right to
prosecute. But under our penal laws, criminal responsibility, if any, must
be proven not by preponderance of evidence but by proof beyond
reasonable doubt."
Considering, therefore, that proceedings for the forfeiture of goods illegally
imported are not criminal in nature since they do not result in the conviction of the
wrongdoer nor in the imposition upon him of a penalty, proof beyond reasonable
doubt is not required in order to justify the forfeiture of the goods. In this case, the
degree of proof required is merely substantial evidence which means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. 10
In the case at bar, we find and so hold that the Government has sufficiently
established that an illegal importation, or at least an attempt thereof, has been
committed with the use of the vessel M/T "ULU WAI," thus warranting the
forfeiture of said vessel and its cargo pursuant to the provisions of the Tariff and
Customs Code. LLjur
Before we proceed to a discussion of the factual findings of the Court of Appeals,

it bears mention that petitioner, which is a corporate entity, has no personality to
invoke the right to be presumed innocent which right is available only to an
individual who is an accused in a criminal case.
2. The main issue for resolution is whether or not there was an illegal importation
committed, or at least an attempt thereof, which would justify a forfeiture of the
subject vessel and its cargo.
Petitioner avers that respondent court erred in finding that an illegal importation
had been committed on the basis of circumstantial evidence, erroneously relying
on Section 5 (now Section 4), Rule 133 of the Rules of Court. As earlier stated,
forfeiture proceedings are not criminal in nature, hence said provision of Rule
133 which involves such circumstantial evidence as will produce a conviction
beyond reasonable doubt does not apply. prLL
Section 1202 of the Tariff and Customs Code provides that importation begins
when the carrying vessel or aircraft enters the jurisdiction of the Philippines with
intention to unload therein. It is clear from the provision of the law that mere
intent to unload is sufficient to commence an importation. And "intent," being a
state of mind, is rarely susceptible of direct proof, but must ordinarily be inferred
from the facts, 11 and therefore can only be proved by unguarded, expressions,
conduct and circumstances generally. 12
In the case at bar, that petitioner is guilty of illegal importation, there having been
an intent to unload, is amply supported by substantial evidence as clearly
demonstrated by this comprehensive discussion in respondent court's decision:
"It is undisputed that the vessel M/T 'ULU WAI' entered the jurisdiction of
the Philippines. The issue that calls for Our resolution is whether or not
there was an intention to unload. The facts and circumstances borne by
the evidence convince Us that there was intent to unload. The following
circumstances unmistakably point to this conclusion.
"1. Considering that the vessel came from Singapore, the route to
Zamboanga was shorter and Iloilo lies further north. It is not logical for
the sailing vessel to travel a longer distance to get the necessary repairs.
"2. When the vessel M/T 'ULU WAI' anchored at Guiuanon Island,
Guimaras, Iloilo, it did not notify the Iloilo port or Customs authorities of
its arrival. The master of the vessel did not file a marine protest until 12
days after it had anchored, despite the supposed urgency of the repairs
needed and notwithstanding the provision (Sec. 1016) of the Code
requiring the master to file protest within 24 hours.
"3. At the time of boarding by the customs personnel, the required ship's
and shipping documents were not on board except the clearance from
Singaporean port officials clearing the vessel for Zamboanga. Petitioner
claims that these were turned over to the shipping agent who boarded
the vessel on May 15, 1986. However, this claim is belied by the sworn
marine protest (Exhibit 'E') of the master of M/T 'ULU WAI.' Mr. Romeo
Deposa.
'It was only on or about the 20th of May when I instructed
one of the crew to: get down of (sic) the vessel and find means
and ways to contact the vessel's representative.'
Moreover, in such Sworn Statement (Exhibit 'G'), ship agent, Antonio
Torres, stated that he did not know the buyer of the oil, which is
impossible if he had the Local Purchase Order of the alleged buyer,
Pogun Construction SDN. Torres also swore that his knowledge came
from the vessel's owner, without mentioning the shipping documents
which indicate such data. He also said that he did not know the
consignee of the oil which would have been patent from the documents.
Lastly, as also pointed out by the court a quo, the captain of the vessel
M/T 'ULU WAI,' Romeo Deposa, in his sworn statement to custom
authorities on May 26, 1986, enumerated the documents he allegedly
gave to Mr. Antonio Torres, but did not mention as among them the
Local Purchase Order of Pogun Construction SDN and the Bill of Lading.
"4. When the vessel was inspected, the tugboat M/T 'CATHEAD,' and
the large M/T 'SEMIRANO NO. 819' were alongside it. A fixture note
revealed that the barge and the tugboat were contracted by Consignee
Far East Synergy to load the cargo of the vessel into the awaiting barge
and to discharge the same to Manila (Exhibits '1' and '1-1').
It is of no moment that the fixture note did not expressly mention the
vessel M/T 'ULU WAI.' Government witnesses, Asencio and Lumagpas,
testified that it was the vessel's cargo which was to be unloaded and
brought to Manila by them." 13
The aforequoted findings of fact of respondent Court of Appeals are in
consonance with the findings of both the Collector and the Commissioner of
Customs, as affirmed by the Court of Tax Appeals. We, therefore, find no
compelling reason to deviate from the elementary principle that findings of fact of
the Court of Appeals, and of the administrative and quasi-judicial bodies for that
matter, are entitled to great weight and are conclusive and binding upon this
Court absent a showing of a grave abuse of discretion amounting to lack of
jurisdiction.
Cdpr
3. The fact that the testimonies of Deposa and Torres were given without the
assistance of counsel may not be considered an outright violation of their
constitutional right to be assisted by counsel. As explained in the case of Nera
vs. The Auditor General: 14
"The right to the assistance of counsel is not indispensable to due
process unless required by the Constitution or a law. Exception is made
in the charter only during the custodial investigation of a person
suspected of a crime, who may not waive his right to counsel except in
writing and in the presence of counsel, and during the trial of the
accused, who has the right 'to be heard by himself and counsel,' either
retained by him or provided for him by the government at its expense.
These guarantees are embodied in the Constitution, along with the other
rights of the person facing criminal prosecution, because of the odds he
must contend with to defend his liberty (and before even his life) against
the awesome authority of the State.
"In other proceedings, however, the need for the assistance of counsel is
not as urgent nor is it deemed essential to their validity. There is nothing
in the Constitution that says a party in a non-criminal proceeding is
entitled to be represented by counsel and that without such
representation he will not be bound by such proceedings. The
assistance of lawyers, while desirable, is not indispensable. The legal
profession was not engrafted in the due process clause such that without
the participation of its members the safeguard is deemed ignored or
violated. The ordinary citizen is not that helpless that he cannot validly
act at all except only with a lawyer at his side."
Besides, if ever there was any doubt as to the veracity of the sworn statements of
Deposa and Torres, they should have been presented during any appropriate
stage of the proceedings to refute or deny the statements they made. This was
not done by petitioner. Hence, the presumption that official duty was regularly
performed stands. In addition, petitioner does not deny that Torres is himself a
lawyer. Finally, petitioner simply contends that the sworn statements were taken
without the assistance of counsel but, however, failed to allege or prove that the
same were taken under anomalous circumstances which would render them
inadmissible as evidence against petitioner. We thus find no compelling reason
to doubt the validity or veracity of the said sworn statements.
WHEREFORE, the instant petition is DENIED for lack of merit and the judgment
appealed from is hereby AFFIRMED in toto.
SO ORDERED.
Melencio-Herrera, Paras and Padilla, JJ ., concur.
Sarmiento, J ., is on leave.
(Feeder International Line, Pte., Ltd. v. Court of Appeals, G.R. No. 94262, [May
|||
31, 1991], 274 PHIL 1143-1156)
SECOND DIVISION
[G.R. No. L-2809. March 22, 1950.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

FRISCO HOLGADO, defendant-appellant.
Mauricio Carlos for appellant.

Assistant Solicitor General Manuel P. Barcelona and Solicitor Felix V.
Makasiar for appellee.
SYLLABUS
1. CRIMINAL PROCEDURE; QUALIFIED PLEA OF GUILTY;

AMBIGUOUS INFORMATION; ACCUSED WITHOUT COUNSEL;
IMPOSITION OF HEAVY PENALTY. — When an accused unaided by counsel
qualifiedly admits his guilt to an ambiguous or vague information from which a
serious crime can be deduced, it is not prudent for the trial court to render a
serious judgment finding the accused guilty of a capital offense without
absolutely any evidence to determine and clarify the true facts of the case.
2. ID.; DUTIES OF COURT WHEN DEFENDANT APPEARS WITHOUT
ATTORNEY. — Under the provision of section 3 of rule 112 of the rules of
Court, when a defendant appears without attorney, the court has four important
duties to comply with: (1) It must inform the defendant that it is his right to have
attorney before being arraigned; (2) after giving him such information the court
must ask him if he desires the aid of an attorney; (3) if he desires and is unable
to employ attorney, the court must assign attorney de oficio to defend him; and
94) if the accused desires to procure an attorney of his own the court must grant
him a reasonable time therefor.
3. ID.; DUE PROCESS OF LAW; RIGHT OF ACCUSED TO BE
REPRESENTED BY COUNSEL IS CONSTITUTIONAL. — One of the great
principles of justice guaranteed by our Constitution is that "no person shall be
held to answer for a criminal offense without due process of law," and that all
accused "shall enjoy the right to be heard by himself and counsel." In criminal
cases there can be no fair hearing unless the accused be given an opportunity
to be heard by counsel. The right to be heard would be little avail if it does not
include the right to be heard by counsel. Even the most intelligent or educated
man may have no skill in the science of the law, particularly in the rules of
procedure, and, without counsel, he may be convicted not because he is guilty
but because he does not know how to establish his innocence. And this can
happen more easily to persons who are ignorant or uneducated. It is for this
reason that the right to be assisted by counsel is deemed so important that it
has become a constitutional right and it is so implemented that under our rules
of procedure it is not enough for the court to apprise an accused of his right to
have an attorney, it is not enough to ask him whether he desires the aid of an
attorney, but it is essential that the court should assign one de oficio for him if
he so desires and he is poor or grant him a reasonable time to procure an
attorney of his own.
DECISION
MORAN, C.J : p
Appellant Frisco Holgado was charged in the Court of First Instance of

Romblon with slight illegal detention because according to the information,
being a private person, he did "feloniously and without justifiable motive,
kidnap and detain one Artemia Fabreag in the house of Antero Holgado for
about eight hours thereby depriving said Artemia Fabreag of her personal
liberty."
On May 8, 1948, the day set for the trial, the trial court proceeded as
follows:
"Court:
"Is this case ready for trial?
"Fiscal:
"I am ready, your honor.
"Court: — to the accused.
"Q. Do you have an attorney or are you going to plead guilty? — A. I
have no lawyer and I will plead guilty.
"Court:
Arraign the accused.
"Note:
"Interpreter read the information to the accused in the local dialect
after which he was asked this question.
"Q. What do you plead? — A. I plead guilty, but I was instructed by one
Mr. Ocampo.
"Q. Who is that Mr. Ocampo, what is his complete name? — A. Mr.
Numeriano Ocampo.
"The provincial fiscal is hereby ordered to investigate that man.
"Fiscal:
"I have investigated this case and found out that this Ocampo has
nothing to do with this case and I found no evidence against this
Ocampo.
"Court:
"Sentence reserved."
Two days later, or on May 10, 1948, the trial court rendered the
following judgment:
"[Criminal Case No. V-118]
"THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRISCO
HOLGADO defendant-appellant.
"SLIGHT ILLEGAL DETENTION
"SENTENCE.
"The accused, Frisco Holgado, stands charged with the crime of
kidnapping and serious illegal detention in the following.
"INFORMATION
"That on or about December 11, 1947, in the municipality of
Concepcion, Province of Romblon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused being a
private individual, did then and there wilfully, unlawfully and
feloniously, and without justifiable motive, kidnap and detain one
Artemia Fabreag in the house of Antero Holgado for about 8 hours
thereby depriving said Artemia Fabreag of her personal liberty.
"Contrary to Law.
"This case is called for trial on May 8, 1948. Upon arraignment the
accused pleaded guilty to the information above described.
"The offense committed by the accused is kidnapping and serious
illegal detention as defined by article 267 of the Revised Penal Code as
amended by section 2 of Republic Act No. 18 and punished
by reclusion temporal in its minimum period to death. Applying
indeterminate sentence law the penalty shall be prision mayor in its
maximum degree to reclusion temporal in the medium degree, as
minimum, or ten (10) years and one (1) day of prision mayor to twenty (20)
years, with the accessory penalties provided for by law, with costs. The
accused is entitled to one-half of his preventive imprisonment."
It must be noticed that in the caption of the case as it appears in the
judgment above quoted, the offense charged is named SLIGHT ILLEGAL
DETENTION while in the body of the judgment it is said that the accused
"stands charged with the crime of kidnapping and serious illegal detention." In
the information filed by the provincial fiscal it is said that he "accuses Frisco
Holgado of the crime of slight illegal detention." The facts alleged in said
information are not clear as to whether the offense charged is merely "slight
illegal detention" as the offense is named therein or the capital offense of
"kidnapping and serious illegal detention" as found by the trial judge in his
judgment. Since the accused-appellant pleaded guilty and no evidence
appears to have been presented by either party, the trial judge must have
deduced the capital offense from the facts pleaded in the information.
Under the circumstances, particularly the qualified plea given by the
accused, who was unaided by counsel, it was not prudent, to say the least, for
the trial court to render such a serious judgment finding the accused guilty of
a capital offense, and imposing upon him such a heavy penalty as ten years
and one day ofprision mayor to twenty years, without absolutely any evidence
to determine and clarify the true facts of the case.
The proceedings in the trial court are irregular from the beginning. It is
expressly provided in our Rules of Court, Rule 112, section 3, that:.
"If the defendant appears without attorney, he must be informed by
the court that it is his right to have attorney before being arraigned, and
must be asked if he desires the aid of attorney. If he desires and is unable
to employ attorney, the Court must assign attorney de oficio to defend
him. A reasonable time must be allowed for procuring attorney."
Under this provision, when a defendant appears without attorney, the
court has four important duties to comply with: 1 — It must inform the
defendant that it is his right to have attorney before being arraigned; 2 — After
giving him such information the court must ask him if he desires the aid of an
attorney; 3 — If he desires and is unable to employ attorney, the court must
assign attorney de oficio to defend him; and 4 — If the accused desires to
procure an attorney of his own the court must grant him a reasonable time
therefor.
Not one of these duties had been complied with by the trial court. The
record discloses that said court did not inform the accused of his right to have
an attorney nor did it ask him if he desired the aid of one. The trial court failed
to inquire whether or not the accused was to employ an attorney, to grant him
reasonable time to procure one or to assign an attorney de oficio. The
question asked by the court to the accused was "Do you have an attorney or
are you going to plead guilty?" Not only did such a question fail to inform the
accused that it was his right to have an attorney before arraignment, but, what
is worse, the question was so framed that it could have been construed by the
accused as a suggestion from the court that he plead guilty if he had no
attorney. And this is a denial of fair hearing in violation of the due process
clause contained in our Constitution.
One of the great principles of justice guaranteed by our Constitution is
that "no person shall be held to answer for a criminal offense without due
process of law", and that all accused "shall enjoy the right to be heard by
himself and counsel." In criminal cases there can be no fair hearing unless the
accused be given an opportunity to be heard by counsel. The right to be
heard would be of little avail if it does not include the right to be heard by
counsel. Even the most intelligent or educated man may have no skill in the
science of the law, particularly in the rules of procedure, and, without counsel,
he may be convicted not because he is guilty but because he does not know
how to establish his innocence. And this can happen more easily to persons
who are ignorant or uneducated. It is for this reason that the right to be
assisted by counsel is deemed so important that it has become a
constitutional right and it is so implemented that under our rules of procedure
it is not enough for the Court to apprise an accused of his right to have an
attorney, it is not enough to ask him whether he desires the aid of an attorney,
but it is essential that the court should assign one de oficio for him if he so
desires and he is poor or grant him a reasonable time to procure an attorney
of his own.
It must be added, in the instant case, that the accused who was
unaided by counsel pleaded guilty but with the following qualification: "but I
was instructed by one Mr. Ocampo." The trial court failed to inquire as to the
true import of this qualification. The record does not show whether the
supposed instruction was real and whether it had reference to the commission
of the offense or to the making of the plea of guilty. No investigation was
opened by the court on this matter in the presence of the accused and there is
now no way of determining whether the supposed instruction is a good
defense or may vitiate the voluntariness of the confession. Apparently the
court became satisfied with the fiscal's information that he had investigated
Mr. Ocampo and found that the same had nothing to do with this case. Such
attitude of the court was wrong for the simple reason that a mere statement of
the fiscal was not sufficient to overcome a qualified plea of the accused. But
above all, the court should have seen to it that the accused be assisted by
counsel specially because of the qualified plea given by him and the
seriousness of the offense found to be capital by the court.
The judgment appealed from is reversed and the case is remanded to
the Court below for a new arraignment and a new trial after the accused is
apprised of his right to have and to be assisted by counsel. So ordered.
Ozaeta, Pablo, Bengzon, Padilla, Tuason, Montemayor and Reyes,
JJ., concur.
||| (People v. Holgado, G.R. No. L-2809, [March 22, 1950], 85 PHIL 752-757)
EN BANC
[G.R. No. 122770. January 16, 1998.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO

AGBAYANI y MENDOZA, accused-appellant.
The Solicitor General for plaintiff-appellee.

Froilan V. Siobal for accused-appellant.
SYNOPSIS
Eduardo Agbayani was sentenced to death by the Regional Trial Court,
Branch 106 of Quezon City for raping her 14-year old daughter, Eden. The
conviction was based on the testimonies of prosecution witnesses, Dr. Florante
Baltazar, the victim and SPO1 Salvador Buenviaje.
The defense, on the other hand, interpose the defense of denial and alibi,
and one of the evidence presented was the affidavit of desistance of the victim.
However, it was retracted by the victim during the presentation of the rebuttal
evidence claiming that she was only pressured by her mother and sister to sign it.
Hence, in this appeal the appellant questioned the credibility of the testimony
of the victim in view of her execution of the affidavit of desistance.
The Court ruled that affidavits, being taken ex parte, are generally
considered inferior to the testimony given in open court, and affidavits of
recantation have been invariably regarded as exceedingly unreliable, since they
can easily be secured from poor and ignorant witnesses. It would be a dangerous
rule to reject the testimony taken before a court of justice simply because the
witness who gave it later on changed his mind for one reason or another. Such a
rule would make a solemn trial a mockery, and place the proceedings at the mercy
of unscrupulous witnesses. cIHCST
The decision of the trial court is affirmed.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; PRESUMPTIONS; PRESUMPTION OF

REGULAR PERFORMANCE OFFICIAL DUTY; TRIAL COURT PRESUMED TO
HAVE COMPLIED WITH ITS DUTY TO INFORM ACCUSED OF HIS RIGHT TO
COUNSEL. — The trial court's order of 22 December 1994 states that said de
oficio counsel were "duly appointed by the Court with the consent of the accused."
Since appellant miserably failed to show that he was not informed of his right to
counsel, the presumptions that the law has been obeyed and official duty has been
regularly performed by the trial court stand. In other words, the trial court is
presumed to have complied with its four-fold duties under Section 6 of Rule 116 of
the Rules of Court; namely, (1) to inform the accused that he has the right to have
his own counsel before being arraigned; (2) after giving such information, to ask
accused whether he desires the aid of counsel; (3) if he so desires to procure the
services of counsel, the court must grant him reasonable time to do so; and (4) if
he so desires to have counsel but is unable to employ one, the court must assign
counsel de oficio to defend him.
2. ID.; ID.; ID.; ID.; ID.; FAILURE OF THE RECORD TO DISCLOSE
AFFIRMATIVELY THAT TRIAL JUDGE ADVISED ACCUSED OF HIS RIGHT TO
COUNSEL, NOT SUFFICIENT TO REVERSE CONVICTION. — It is settled that
the failure of the record to disclose affirmatively that the trial judge advised the
accused of his right to counsel is not sufficient ground to reverse conviction. The
reason being that the trial court must be presumed to have complied with the
procedure prescribed by law for the hearing and trial of cases, and that such a
presumption can only be overcome by an affirmative showing to the contrary. Thus
it has been held that unless the contrary appears in the record, or that it is positively
proved that the trial court failed to inform the accused of his right to counsel, it will
be presumed that the accused was informed by the court of such right.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO COUNSEL;
RIGHT TO QUESTION FAILURE OF TRIAL COURT TO INFORM ACCUSED OF
RIGHT TO COUNSEL DEEMED WAIVED BY HIS CONSENT TO BE ASSISTED
BY TWO (2) COUNSEL DE OFICIO. — In the instant case, the trial court appointed
two de oficio counsel who assisted the appellant at his arraignment, one of whom
extensively cross-examined the first witness for the prosecution, Dr. Florante
Baltazar. Besides, it is only in this appeal that appellant raised the issue of the
failure of the trial court to inform him of the right to counsel. At no time did he
previously raise it in the trial court despite ample opportunity to do so. His consent
to be assisted by counsel de oficio, coupled with said counsel's extensive cross-
examination of Dr. Baltazar, may even be considered a waiver of his right to
question the alleged failure of the trial court to inform him of his right to counsel.
4. REMEDIAL LAW; COURTS; TRIAL COURTS' COMPLIANCE WITH
THEIR PRE-ARRAIGNMENT DUTIES MUST APPEAR ON RECORD. — We take
this opportunity to admonish trial courts to ensure that their compliance with their
pre-arraignment duties to inform the accused of his right to counsel to ask him if
he desires to have one, and to inform him that, unless he is allowed to defend
himself in person or he has counsel of his choice, a de oficio counsel will be
appointed for him, must appear on record.
5. ID.; CRIMINAL PROCEDURE; TWO (2) DAYS TIME TO PREPARE FOR
TRIAL MUST BE EXPRESSLY DEMANDED, OTHERWISE, IT IS DEEMED
WAIVED. — Turning to the alleged violation of appellant's right to the 2-day period
to prepare for trial Section 9 of Rule 116 of the Rules of Court reads: SEC. 9. Time
to prepare for trial — After a plea of not guilty, the accused is entitled to two (2)
days to prepare for trial unless the court for good cause grants him further time. It
must be pointed out that the right must be expressly demanded. Only when so
demanded does denial thereof constitute reversible error and a ground for new
trial. Further, such right may be waived, expressly or impliedly. In the instant case,
appellant did not ask for time to prepare for trial, hence, he effectively waived such
right.
6. ID.; EVIDENCE; CREDIBILITY; THIS COURT WILL NOT GENERALLY
INTERFERE WITH THE JUDGMENT OF THE TRIAL COURT IN PASSING UPON
CREDIBILITY OF OPPOSING WITNESSES. — The second assigned error is
equally unpersuasive. It raises the issue of the credibility of EDEN as a witness.
One of the highly revered dictaPhilippine jurisprudence has established is that this
Court will not interfere with the judgment of the trial court in passing upon the
credibility of opposing witnesses, unless there appears in the record some facts or
circumstances of weight and influence which have been overlooked and, if
considered, would affect the result. This is founded on practical and empirical
considerations, i.e., the trial judge is in a better position to decide the question of
credibility, since he personally heard the witnesses and observed their deportment
and manner of testifying. He had before him the essential aids to determine
whether a witness was telling the truth or lying. Truth does not always stalk boldly
forth naked, she often hides in nooks and crannies visible only to the mind's eye
of the judge who tried the case. To him appears the furtive glance, the blush of
conscious shame, the hesitation, the sincere or flippant or sneering tone, the heat,
the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization
of the solemnity of an oath, the carriage and mien. On the other hand, an appellate
court has only the cold record, which generally does not reveal the thin line
between fact and prevarication that is crucial in determining innocence or guilt
7. ID.; ID.; ID.; MOTIVE OF 14-YEAR OLD DAUGHTER IN CHARGING
HER OWN FATHER OF RAPE. —If EDEN did testify regardless of these
consequences and even allowed the examination of her private parts, she did so
inspired by no other motive than to obtain justice and release from the
psychological and emotional burdens the painful experience had foisted upon her.
It was then improbable that EDEN fabricated a story of defloration and falsely
charged her own father with a heinous crime.
8. CRIMINAL LAW; RAPE; MAY BE COMMITTED WHERE PEOPLE
CONGREGATE. — What appellant claims to be improbabilities in the testimony of
EDEN are more apparent than real. The presence of her sisters in the small room
did not at all make impossible the commission of rape. The evil in man has no
conscience. The beast in him bears no respect for time and place; it drives him to
commit rape anywhere — even in places where people congregate such as in
parks, along the roadside, within school premises, and inside a house where there
are other occupants. In People v. Opena, rape was committed in a room occupied
also by other persons. In the instant case, EDEN's other companions in the room
when she was molested by appellant were young girls who were all asleep. DHSaCA
9. ID.; ID.; FORCE OR INTIMIDATION; SUBSTITUTED BY MORAL

ASCENDANCY OR INFLUENCE BY THE FATHER OVER HIS DAUGHTER. —
That EDEN was unable to resist or shout for help can easily be explained by the
fact that appellant threatened to kill her. Whether or not he was armed was of no
moment. That threat alone coming from her father, a person who wielded such
moral ascendancy, was enough to render her incapable of resisting or asking for
help. In any event, in a rape committed, by a father against his own daughter, as
in this case, the former's moral ascendancy or influence over the latter substitutes
for violence or intimidation. Likewise, it must not be forgotten that at her tender age
of 14 years, EDEN could not be expected to act with equanimity of disposition and
with nerves of steel or to act like a mature and experienced woman who would
know what to do under the circumstances, or to have courage and intelligence to
disregard the threat. Even in cases of rape of mature women, this Court recognized
their different and unpredictable reactions. Some may shout, some may faint, and
some may be shocked into insensibility; while others may openly welcome the
intrusion.
10. ID.; ID.; INTIMIDATION; SUFFICIENT IF IT PRODUCED FEAR FOR
VICTIM'S LIFE; RESISTANCE, UNNECESSARY. — Intimidation in rape cases is
not calibrated nor governed by hard and fast rules. Since it is addressed to the
victim and is therefore subjective, it must be viewed in light of the victim's
perception and judgment at the time of the commission of the crime. It is enough
that the intimidation produced fear — fear that if the victim did not yield to the
bestial demands of the accused, something far worse would happen to her at that
moment. Where such intimidation existed and the victim was cowed into
submission as a result thereof, thereby rendering resistance futile, it would be the
height of unreasonableness to expect the victim to resist with all her might and
strength. If resistance would nevertheless be futile because of intimidation, then
offering none at all does not mean consent to the assault so as to make the victim'
s submission to the sexual act voluntary.
11. REMEDIAL LAW; EVIDENCE; AFFIDAVIT OF; DESISTANCE;
CONSIDERED INFERIOR TO THE TESTIMONY GIVEN IN OPEN COURT. —
Nor is there merit in the insistent claim that EDEN's affidavit of desistance "must
have necessarily contradicted her previous testimony." We have earlier quoted in
full this affidavit of desistance. Plainly, nowhere therein did she retract her previous
testimony or claim that she was raped by her father. In any case, EDEN withdrew
her affidavit of desistance and solemnly declared that she was pressured by her
mother and sister to sign it. Moreover, affidavits, being taken ex parte, are
generally considered inferior to the testimony given in open court; and affidavits of
recantation have been invariably regarded as exceedingly unreliable, since they
can easily be secured from poor and ignorant witnesses. It would be a dangerous
rule to reject the testimony taken before a court of justice simply because the
witness who gave it later on changed his mind for one reason or another. Such a
rule would make a solemn trial a mockery, and place the proceedings at the mercy
of unscrupulous witnesses.
12. CIVIL LAW; DAMAGES; P50,000.00 INDEMNITY FOR RAPE. — To
take appellant who inflicted his animal greed on his daughter in a disgusting
coercion of incestuous lust, thereby forsaking that which is highest and noblest in
his human nature and reducing himself to lower than the lowliest animal, the full
force of the law must be weighed against him, for he deserves no place in society.
All that we concede to him is a modification of the award of "P75,000.00 as
damages," which is hereby reduced to P50,000.00 in accordance with current case
law.
DECISION
PER CURIAM : p
Nine years and four months ago this Court declared:

Rape is a nauseating crime that deserves the condemnation of all
decent persons who recognize that a woman's cherished chastity is hers
alone to surrender of her own free will. Whoever violates that will
descends to the level of the odious beast. The act becomes doubly
repulsive where the outrage is perpetrated on one's own flesh and blood
for the culprit is reduced to lower than the lowly animal. The latter yields
only to biological impulses and is unfettered by social inhibitions when it
mates with its own kin, but the man who rapes his own daughter violates
not only her purity and her trust but also the mores of his society which he
has scornfully defied. By inflicting his animal greed on her in a disgusting
coercion of incestuous lust, he forfeits all respect as a human being and
is justly spurned by all, not least of all by the fruit of his own loins whose
progeny he has forever stained with his shameful and shameless
lechery. 1
At the end of the day, after resolving this case of 14-year-old Eden Agbayani
who charged her own father with rape committed in the sanctity of their rented
room on 19 July 1994, this Court finds itself repeating this declaration. 2
Before this Court on automatic review is the decision 3 of the Regional Trial
Court of Quezon City, Branch 106, in view of the death penalty imposed by it for
the crime of rape, defined and penalized under Article 335 of the Revised Penal
Code, as amended by R.A. No. 7659. 4
On 12 September 1994, the Station Investigation and Intelligence Division
of the National Capital Regional Command, Philippine National Police (PNP),
endorsed to the Office of the City Prosecutor of Quezon City the complaint of Eden
Agbayani (hereafter EDEN) for rape against her father, herein accused-appellant
Eduardo Agbayani y Mendoza. 5
After appropriate preliminary investigation, a complaint 6 for rape signed by
EDEN, assisted by her sister Fedelina Agbayani, and subscribed and sworn to
before Asst. City Prosecutor Charito B. Gonzales, was filed against appellant with
the Regional Trial Court of Quezon City on 27 October 1994. The case was
docketed as Criminal Case No. Q-94-59149, then set for arraignment, pre-trial and
trial on 22 December 1994. 7
At his arraignment on 22 December 1994, appellant, assisted by Attys.
Samuel Baldado and Edwin de la Cruz as counsel de oficio, entered a plea of not
guilty. 8Upon agreement of the parties, trial on the merits immediately followed,
with the prosecution presenting the first witness, Dr. Florante Baltazar, a Medico-
Legal Officer of the PNP Crime Laboratory, 9 who was cross-examined by Atty.
Baldado. 10 On the succeeding dates of trial, the prosecution presented
EDEN 11 and SPO1 Salvador Buenviaje. 12 During these hearings, however,
appellant was represented by Atty. Arturo Temanil of the Public Attorney's
Office. 13
On its part, the defense presented appellant, Adoracion M. Cruz, Fedelina
Agbayani, as well as EDEN who identified her and Fedelina's affidavit of
desistance, 14which was subscribed and sworn to before notary public Eranio
Cedillo on 6 February 1995. Said affidavit reads as follows:
We, Eden Agbayani, 14 years old, complainant and Fedelina
Agbayani, 19 years old, sister of Eden Agbayani, and presently residing
at No., Phase 1, United Glorieta, Kaniogan, Pasig, Metro Manila, after
having been duly sworn to in accordance with law do hereby depose and
states [sic]:
dctai
That we are the complainant [sic] against our father, Eduardo

Agbayani pending before this honorable Court docketed as Criminal Case
No. 59149;
That after evaluating the circumstance that lead [sic] to the filing of
the instant case I formally realize that the incident between us and my
father is purely family problem that arise from the disciplinarian attitude of
our father;
That this resulted to family misunderstanding, hence we decided to
formally forego this case and withdraw the same:
That I am executing this affidavit for purposes of finally withdrawing
the instant case and therefrom requesting this Honorable Court to dismiss
the case against our father.
That this affidavit was executed freely and voluntarily.
As EDEN declared in open court that what she said in her previous testimony
and sworn statement were not true, the trial court held her in direct contempt of
court, reasoning that her "intentional falsehood" was "offensive to its dignity and a
blatant disrespect to the Court, and actually degrading [to] the administration of
justice." Accordingly, the trial court ordered her "committed to incarceration and
imprisonment within the period provided by law," 15 which penalty, however, was
modified to a fine of P200.00 upon EDEN's motion for reconsideration. 1 6
On rebuttal, the prosecution had EDEN back on the witness stand. She
retracted her affidavit of desistance and claimed that she had signed it under
coercion by her mother and elder sister.
The trial court's summary of the evidence for the prosecution, with the
references to the pages of the stenographic notes and exhibits deleted, is as
follows:
The evidence adduced on record shows that sometime in
September of 1993 in Malolos, Bulacan, the accused was charged by his
two daughters, FEDELINA and DODIMA AGBAYANI, [with] the crime of
rape which case was raffled to the sala of Judge Danilo Manalastas of
Branch 7, Regional Trial Court, Bulacan. The case was, however,
provisionally dismissed by said Judge after the complainants desisted
from pursuing the same in May 1994. Eduardo Agbayani was thus
consequently released from jail on July 13, 1994. Three (3) days
thereafter, he began living with four (4) of his six (6) daughters, Fedelina,
Eden, Diana and Edima, in a rented room at 30-A Makabayan St., Bgy.
Obrero, Quezon City.
The evidence of the prosecution, in part consisting of the
testimonies of Complainant Eden Agbayani, Medico Legal Officer, Dr.
Florante Baltazar and SPO1 Salvador Buenviaje, shows that at the above-
mentioned address, the complainant, Eden Agbayani, on the evening of
July 19, 1994, was sleeping on the floor of the room with her father, the
accused Eduardo Agbayani and her youngest sister, Edima, while her
sisters, Fedelina and Diana slept on a bed. At the time, complainant's
mother was outside the country, working in Saudi Arabia. At about 9:00
p.m. of July 19, Complainant Eden Agbayani was awakened from her
sleep by hands caressing her breasts and vagina. She turned to discover
that it was her father who was then molesting her. Frightened, she asked,
"Tay bakit niyo po ginagawa sa akin ito, gayong kalalabas mo lang sa
kulungan?" and threatened to kill her [sic]. The accused then proceeded
to undress her. Thereafter he undressed himself and succeeded in having
carnal knowledge with the complainant who could only cry helplessly. The
complainant thereafter felt blood dripping from her vagina and felt pain.
The next day, or on July 20, 1994, the complainant informed her
elder sister, Fedelina, of what had been done to her by her father. She
was told not to worry as they would go to Bulacan to report the incident to
Fiscal Caraeg of Bulacan, who had, the year before, handled the rape
case filed by Fedelina and Dodima. Several attempts were made by her
sisters, Fedelina and Eden to reach the said fiscal but it was only on
September 9, 1994, that they were able to meet with him. Fiscal Caraeg
of Bulacan reported the complaint to Judge Danilo Manalastas who
reopened tile previously provisionally dismissed case and issued a
warrant of arrest against the herein accused.
With the assistance of police officers from Station 10 of the SIID in
Quezon City, the accused was arrested on the same day at his residence
at 30-A Makabayan St., Bgy. Obrero, Quezon City and was later brought
to Malolos, Bulacan where he is currently detained. After the accused's
arrest, Eden and Fedelina returned to Station 10 where they made
individual statements before SPO1 Salvador Buenviaje narrating the
events leading to and occurring after the incident of July 19, 1994.
The next morning, Eden was examined by Medico-Legal Officer
and Chief of the PNP Crime Laboratory, Dr. Florante Baltazar, a colonel,
who, accordingly, prepared the corresponding Medico-Legal Report. 17
Appellant put up the defense of denial and alibi. According to him, he could
not have raped his daughter EDEN, because on 19 July 1994, he was in Barangay
Victoria in Sual, Pangasinan, visiting his eldest daughter. 18 He declared that
EDEN charged him with rape because he had hit her with a belt after he caught
her lying about her whereabouts one night. Then on 24 July 1994, she left their
rented apartment and did not return anymore. 19
Adoracion Cruz corroborated appellant's alibi. She declared that on 17 July
1994, appellant requested her to take care of his children because he was going
to Pangasinan to visit his sick father, returning home only on 21 July 1994. 20
The trial court gave full credence to the testimony of EDEN, who "appeared,
during her entire testimonies on January 20 and May 4, 1995, coherent, candid
and responsive;" further, it commended her "for her courage and her unwavering
strength in the midst of the emotional and psychological strain and humiliation, not
to mention the pressure and lack of moral support of her family, brought on by the
filing of this case." It also ruled that EDEN did not voluntarily execute the affidavit
of desistance as it was procured "at the behest of her mother and sister for whom
the sanctity of the family and the family's good name were more important than
demanding punishment for whatever injury the complainant might have suffered in
the hands of the accused." Besides, even assuming arguendo that no such
pressure was exerted by her mother and sister, the trial court declared that it
understood EDEN's moral predicament, viz., for a child like EDEN, it was difficult
to charge her own father with rape; insist on his punishment; and thereby inflict
emotional stress and financial strain upon the members of her family, particularly
her mother.
The trial court likewise gave full faith to the sworn statement (Exhibit "E") of
Fedelina Agbayani.
Turning to the defense of appellant, the trial court found his alibi wholly self-
serving, and characterized the testimony of Adoracion Cruz unworthy of belief. As
to appellant's claim that EDEN filed the complaint because of a grudge against
him, the trial court found this "incredible, if not totally absurd," for:
The complainant is an innocent girl of tender years who is unlikely
to possess such vindictiveness and dearth of conscience as to concoct
such a malicious and damaging story. The complainant appeared, during
her entire testimonies on January 20 and May 4, 1995, coherent, candid
and responsive. Her retraction on March 16 was sufficiently explained to
this Court (tsn, 5-4 95, testimony of Eden Agbayani, pp. 2-3). She has
shown to this Court the seriousness of the injury upon her person and
dignity inflicted upon by the accused . . . Even assuming argumenti gratia
that the complainant would indeed lodge a complaint against her father
solely on account of an altercation with him, it is highly unlikely that the
complainant would concoct a charge which would damage her and wreck
havoc on her family's reputation, destroy the household peace and subject
her father, the accused, to a grave punishment which by dent of express
of law, can obliterate him from the face of this earth. Indeed, to uphold the
defense's proposition would be stretching the imagination too far, if not to
the extreme.
The trial court finally found that appellant employed on EDEN force or
intimidation by virtue of his moral ascendancy over her and his threat that he
would kill her if she reported the incident to anyone.
Accordingly, the trial court, applying Section 11 of R.A. No. 7659 which
imposes the penalty of death when the victim is under eighteen years of age and
the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity
or affinity within the third civil degree, or common-law spouse of the parent of the
victim, rendered judgment against appellant, to wit:
WHEREFORE, considering all the foregoing, judgment is hereby
rendered finding the accused, EDUARDO AGBAYANI, GUILTY beyond
reasonable doubt of the crime of RAPE committed against complainant,
Eden Agbayani, his minor daughter. This Court, as a consequence
thereof, hereby imposes upon him the supreme penalty of DEATH,
conformably with the provisions of the death penalty law, R.A. 7659.
Further, Accused is hereby ordered to pay the complainant, Eden
Agbayani, the sum of P75,000.00 as damages, with all the necessary
penalties provided for by law without subsidiary imprisonment, however,
in the event of insolvency and to pay the costs.
Let the entire records of this case be forwarded to the Supreme
Court on automatic review.
SO ORDERED.
On 26 May 1995, appellant, through his new counsel de parte Attorneys
Froilan V. Siobal and Domingo Floresta, filed a Motion for New Trial 21 on the
ground that serious irregularities prejudicial to his substantial rights were
committed during the trial, viz., the failure of the counsel de oficio to: (a) present at
trial the Barangay Captain of Barangay Obrero, Quezon City, who would have
testified, on the basis of his certification attached to the motion, that there was a
house bearing No. 30, Makabayan St., in his barangay, but that there was no such
place as 30-A Makabayan St. of said barangay, which was the address given by
EDEN; (b) consider the futility of Adoracion Cruz's testimony; (c) present private
complainant's mother and sister Fedelina on sur-rebuttal to testify as to the
circumstances which brought about he execution of the affidavit of desistance; and
(d) cross-examine complainant and the police investigator exhaustively. He further
alleged that his counsel de oficio was never prepared during all the scheduled
hearings, worse, even waived the presence of appellant after the third witness for
the prosecution was presented. He also averred that the trial court used its inherent
power of contempt to intimidate private complainant.
In their Comments/Opposition to the Motion for New Trial, 22 the public and
private prosecutors alleged that there were no such irregularities; neither was there
new and material evidence to be presented that appellant could not, with
reasonable diligence, have discovered and produced at the trial and which if
introduced and admitted at trial would probably change the judgment of the court.
In its Order 23 of 31 July 1995, the trial court denied the motion for new trial
for being devoid of merit and for not being within the purview of Sections 1 and 2,
Rule 121 of the Rules of Court.
In his Appellant's Brief filed before this Court, appellant contends that the
trial court erred in: (a) denying his motion for new trial; and (b) holding that the
prosecution proved beyond reasonable doubt that he committed the crime
charged.
In support of the first assigned error, appellant reiterates the grounds in his
motion for new trial, and adds two others, namely, (1) the lower court failed to
apprise him of his right to have counsel of his own choice; and (2) the lower court
did not give him the opportunity to prepare for trial, despite the mandated period
of two days prescribed in Section 9 of Rule 116 of the Rules of Court.
In his second assigned error, appellant contends that EDEN's testimony is
not sufficient to convict, since it is unclear and not free from serious contradictions.
Considering their proximity to EDEN, it was impossible for her sisters or any one
of them not to have been awakened when EDEN was allegedly being abused by
him. Strangely, EDEN simply kept quiet and allowed him to abuse her; neither did
she shout for help or put up a fight that would have awakened her sisters. Notably,
EDEN and her sisters allowed him to live and sleep with them again in their rented
room even after the alleged rape.
Finally, appellant asserts that EDEN's testimony is unreliable because her
affidavit of desistance must have necessarily been contradictory thereto. Her
"subsequent turn-around . . . that she was pressured and influenced to execute
and sign the affidavit of desistance further confirmed her being untruthful and, in
effect, demolished whatsoever faith left on her charge against the accused."
The Office of the Solicitor General (OSG) considers the first assigned error
as devoid of merit. When appellant appeared without counsel at the arraignment,
the trial court informed him that it would appoint de oficio counsel for him if he so
desired, to which appellant agreed. Moreover, the 2-day period to prepare for trial
provided in Section 9 of Rule 116 is merely directory and does not prohibit the
court from proceeding with trial after arraignment, especially if the defense, as
here, consented thereto. It would have been entirely different if the defense did not
agree, in which case the court would have no other alternative but to grant him the
period.
As to appellant's other grievances, the OSG points out that throughout all
the hearings, appellant never questioned the way his defense was being handled
by his counsel de oficio. The latter's request for a continuance because he had not
yet conferred with appellant was not evidence of counsel's lack of sincerity. On the
contrary, it showed counsel's awareness of his duty to confer with appellant to
ferret out the relevant facts as regards the second witness for the prosecution.
Likewise, the waiver of appellant's presence during the hearing of 18 March 1995
did not prejudice him, because on that date, the defense presented EDEN to testify
as to her affidavit of desistance, and Fedelina to corroborate the statements of
EDEN — which testimonies were in appellant's favor. As to the manner appellant's
counsel de oficio cross-examined the prosecution witnesses, the OSG stresses
that the record shows that said counsel tried his best.
The OSG then characterizes the second assigned error as "barren of merit."
EDEN's positive identification of appellant as the author of the crime rendered
appellant's defense of alibi unavailing; moreover, she demonstrated clearly and
vividly what transpired that fateful evening of 19 July 1994. Thus in view of EDEN's
candid and categorical manner of testifying the OSG concluded that she was a
credible witness. 24
As to the commission of rape in a small room and in the presence of other
persons, the OSG maintains that such was not at all improbable. 25 There was, as
well, nothing unusual in EDEN's silence; as she could only attempt to shout
because appellant had succeeded in covering her mouth with his hands and
exercised a high level of moral ascendancy over EDEN, his daughter. 26 Hence
the OSG invokes the principle that in a rape committed by a father against his own
daughter, the former's moral ascendancy and influence over the latter substitutes
for violence or intimidation. 27
As regards EDEN's affidavit of desistance, the OSG maintains that courts
look with disfavor on retraction of testimonies previously given in court, for such
can easily be secured from poor and ignorant witnesses usually for a monetary
consideration, 28 as well as the probability that it may later be repudiated.
In his Reply Brief, appellant countered that his consent to the appointment
of counsel de oficio at his arraignment did not relieve the court of its duty under
Section 6 of Rule 116 of the Rules of Court to inform him of his right to counsel
and that it would be grievous error to deny an accused such right. Appellant then
elaborated on this point as follows:
This is not without judicial precedent. In People vs. Cachero, 73
Phil. 426 and People vs. Domenden, 73 Phil. 349, cited in R.J. Francisco's
Criminal Procedure, Third Ed., 1966, p. 323 it was held, that:
"The courts should comply with Rule 116, Sec. 3. It would
be a grievous error to proceed by sentencing the accused without
due process of law and this is not complete, when the accused is
denied the right recognized by said rule. The records must show
compliance therewith or that the accused renounced his right to be
assisted by counsel. This is demanded by the interest of justice and
remove all doubts that if the accused had waived said right, he was
fully informed before giving his plea of its consequences. Omission
by courts whether voluntary should not truly be censured but also
condemned."
Discussing further the right to the 2-day period to prepare for trial, the
appellant contends that said right:
[H]as been held to be mandatory and denial of this right is a
reversible error and a ground for new trial. (R.J. Francisco's Criminal
Procedure, Third Ed., 1986, p. 404, citing People vs. Mijares, et al., 47
OG 4606; Dumasig v. Morave, 23 SCRA 659). This must be so ". . . to
prevent that any accused be caught unaware and deprived of the means
of properly facing the charges presented against him." LibLex
The first assigned error does not persuade this Court. It is true that the
transcript of the stenographic notes of the proceedings of 22 December 1994 and
the order issued by the trial court after the conclusion of said proceedings only
state that the court appointed de oficio counsel with the consent of the said
accused. They do not categorically disclose that the trial informed appellant of his
right to counsel of his own choice. However, this does not mean that the trial court
failed to inform appellant of such right. The precise time the two counsel de
oficio were appointed is not disclosed in the record either. At the recorded portion
of the arraignment aspect of the proceedings on 22 December 1994, the two
formally entered their appearance, thus:
COURT:
Call the case.
(Interpreter calls the case).
FISCAL ROSARIO BARIAS:
For the prosecution, Your Honor.
ATTY. MARIETA AGUJA:
Respectfully appearing for the prosecution, Your Honor under the
control and direct supervision of the Trial Prosecutor, Your Honor,
we are ready to present our first witness.
ATTY. BALDADO:
For the accused Your Honor, appointed as counsel de oficio.
ATTY. DE LA CRUZ:
For the accused, Your Honor appointed by the court as counsel de
oficio. 29
This obviously means that the appointment had taken place earlier. The trial
court's order 30 of 22 December 1994 states that said de oficio counsel were "duly
appointed by the Court with the consent of the accused." Since appellant has
miserably failed to show that he was not informed of his right to counsel, the
presumptions that the law has been obeyed and official duty has been regularly
performed by the trial court stand. 31 In other words, the trial court is presumed to
have complied with its four-fold duties under Section 6 32 of Rule 116 of the Rules
of Court, namely, (1) to inform the accused that he has the right to have his own
counsel before being arraigned; (2) after giving such information, to ask accused
whether he desires the aid of counsel; (3) if he so desires to procure the services
of counsel, the court must grant him reasonable time to do so; and (4) if he so
desires to have counsel but is unable to employ one, the court must assign
counsel de oficio to defend him. 33
It is settled that the failure of the record to disclose affirmatively that the trial
judge advised the accused of his right to counsel is not sufficient ground to reverse
conviction. The reason being that the trial court must be presumed to have
complied with the procedure prescribed by law for the hearing and trial of cases,
and that such a presumption can only be overcome by an affirmative showing to
the contrary. Thus it has been held that unless the contrary appears in the record,
or that it is positively proved that the trial court failed to inform the accused of his
right to counsel, it will be presumed that the accused was informed by the court of
such right. 34
In U .S. v. Labial, 35 this Court held:
Adhering to the doctrine laid down in that case, the only question
to be determined in this case is whether the failure of the record to disclose
affirmatively that the trial judge advised the accused of their right to have
counsel is sufficient ground to reverse the judgment of conviction and to
send the case back for a new trial. Upon this point we are all agreed that
in the absence of an affirmative showing that the court below did in fact
fail to advise the accused of their rights under the provisions of sections
17 of General Orders No. 58, as amended by section 1 of Act No. 440,
the mere omission from the record brought here upon appeal of an entry
affirmatively disclosing that he did so, is not reversible error.
In the absence of an affirmative showing to the contrary, the court
below must be presumed in matters of this kind to have complied with the
provisions of law prescribing the procedure to be followed in the trial had
before him.
While in People v. Miranda 36 this Court explicitly stated:
However, said counsel calls attention to the fact that the record is
silent as to whether or not, at the time appellant was arraigned, the trial
court informed him of his right to be assisted by an attorney, under section
3 of Rule 112 of the Rules of Court.
This precise issue was determined in United States vs. Labial (27
Phil. 87, 88), in the sense that unless the contrary appears in the
records, it will be presumedthat the defendant was informed by the court
of his right to counsel. ". . . If we should insist on finding every fact fully
recorded before a citizen can be punished for an offense against the laws,
we should destroy public justice, and give unbridled license to crime.
Much must be left to intendment and presumption, for it is often less
difficult to do things correctly than to describe them correctly." (United
States vs. Labial, supra.) The same doctrine was reiterated in People vs.
Abuyen (52 Phil. 722) and in United States vs. Custan (28 Phil. 19). We
see no reason to modify it now.
In the instant case, the trial court appointed two de oficio counsel who
assisted the appellant at his arraignment, one of whom extensively cross-
examined the first witness for the prosecution, Dr. Florante Baltazar. 37 Besides, it
is only in this appeal that appellant raised the issue of the failure of the trial court
to inform him of the right to counsel. At no time did he previously raise it in the trial
court despite ample opportunity to do so. His consent to be assisted by counsel de
oficio, coupled with said counsel's extensive cross-examination of Dr. Baltazar,
may even be considered a waiver of his right to question the alleged failure of the
trial court to inform him of his right to counsel. 38
The cases of People v. Domenden 39 and People v. Cachero 40 cited by
appellant are inapplicable. In both cases the trial courts there clearly failed to
inform the accused of their right to counsel nor appoint de oficio counsel during the
arraignment. Nevertheless, we take this opportunity to admonish trial courts to
ensure that their compliance with their pre-arraignment duties to inform the
accused of his right to counsel, to ask him if he desires to have one, and to inform
him that, unless he is allowed to defend himself in person or he has counsel of his
choice, a de oficio counsel will be appointed for him, must appear on record.
Turning to the alleged violation of appellant's right to the 2-day period to
prepare for trial, Section 9 of Rule 116 of the Rules of Court reads:
SEC. 9. Time to prepare for trial. — After a plea of not guilty, the
accused is entitled to two (2) days to prepare for trial unless the court for
good cause grants him further time.
It must be pointed out that the right must be expressly demanded. 41 Only
when so demanded does denial thereof constitute reversible error and a
ground for new trial. 42 Further, such right may be waived, expressly or
impliedly. 43 In the instant case, appellant did not ask for time to prepare for
trial, hence, he effectively waived such right.
During the succeeding hearings, appellant was represented by Atty. Temanil
of the Public Attorney's Office in Quezon City, who entered his appearance as de
parte, and not as de oficio, counsel. It is to be presumed that Atty. Temanil's
services were obtained pursuant to the law creating the Public Attorney's Office
(PAO), formerly the Citizen's Legal Assistance Office (CLAO). 44 There is at all no
showing that Atty. Temanil lacked the competence and skill to defend appellant.
The latter's contention that his counsel was not ready at all times because at the
hearing on 20 January 1995 he asked for a continuation as he has "not yet
interviewed [his] client,"45 is misleading. Atty. Temanil made that statement after
he cross-examined EDEN and after the judge realized that it was almost 1:00
o'clock in the afternoon and both of them were already hungry, thus:
ATTY. TEMANIL:
I just want to make it on record, Your Honor that from the start of
trial the witness appears to be fluent and suffers no difficulty in
answering the questions, even the questions propounded by the
Private Prosecutor, Your Honor.
COURT:
Put that on record.
That is true, Atty. Temanil, it is almost 1:00 o'clock in the afternoon
and we are both hungry now.
ATTY. TEMANIL.
I will just asked [sic] for continuance considering that I have not yet
interviewed my client, Your Honor. 46
Neither is there merit in appellant's claim that his counsel committed
irregularities: (1) in not considering the futility of the testimony of Adoracion Cruz;
(2) in not presenting the barangay captain in the evidence in chief for the defense,
and EDEN's mother and sister Fedelina in sur-rebuttal; and (3) in not cross-
examining exhaustively EDEN.
Adoracion Cruz was presented to corroborate appellant's alibi that he was
in the province and not in their rented room from 17 to 21 July 1994. On the other
hand, the testimony of the barangay captain could not alter the fact that rape was
committed in a rented room in a house along Makabayan Street in his barangay.
Appellant neither testified that he did not occupy a house numbered 30-A nor
denied that he was living with EDEN and her sisters in that room. Besides, he and
his children were not renting the entire house, but merely a room, which could
probably be the unit numbered "30-A" referred to by EDEN.
As to the presentation of EDEN's mother and sister Fedelina as sur-rebuttal
witnesses to disprove the claim of EDEN that they coerced her into signing the
affidavit of desistance, suffice it to state that there was nothing to show that they
were in fact willing to refute EDEN's claim.
Finally, contrary to appellant's allegation, a meticulous examination of the
transcripts of the stenographic notes convinces this Court that Atty. Temanil
sufficiently cross-examined EDEN. If he decided to terminate his cross-
examination, it could have been due to the futility of any further cross-examination
which might only prove favorable to the prosecution, as it might have opened
another window of opportunity for EDEN to strengthen her testimony.
The second assigned error is equally unpersuasive. It raises the issue of the
credibility of EDEN as a witness. One of the highly revered dicta Philippine
jurisprudence has established is that this Court will not interfere with the judgment
of the trial court in passing upon the credibility or opposing witnesses, unless there
appears in the record some facts or circumstances of weight and influence which
have been overlooked and if considered, would affect the result. This is founded
on practical and empirical considerations, i.e., the trial judge is in a better position
to decide the question of credibility, since he personally heard the witnesses and
observed their deportment and manner of testifying. 47 He had before him the
essential aids to determine whether a witness was telling the truth or lying. Truth
does not always stalk boldly forth naked; she often hides in nooks and crannies
visible only to the mind's eye of the judge who tried the case. To him appears the
furtive glance, the blush of conscious shame, the hesitation, the sincere or flippant
or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of
it, the scant or full realization of the solemnity of an oath, the carriage and
mien. 48 On the other hand, an appellate court has only the cold record, which
generally does not reveal the thin line between fact and prevarication that is crucial
in determining innocence or guilt. 49
At any rate, in view of the gravity of the offense charged and the extreme
penalty of death imposed, this Court took painstaking effort and meticulous care in
reviewing the transcripts of the stenographic notes of the testimonies of the
witnesses.
This Court is fully satisfied that EDEN told the truth that she was raped by
her father, herein appellant, on 19 July 1994, in their rented room in Barangay
Obrero, Quezon City. Her story was made even more credible by the simplicity and
candidness of her answers, as well as by the fact that it came from an innocent girl
writhing in emotional and moral shock and anguish. She must have been torn
between the desire to seek justice and the fear that a revelation of her ordeal might
mean the imposition of capital punishment on her father. By testifying in court, she
made public a painful and humiliating secret, which others may have simply kept
to themselves for the rest of their lives. She thereby jeopardized her chances of
marriage, as even a compassionate man may be reluctant to marry her because
her traumatic experience may be a psychological and emotional impediment to a
blissful union. Moreover, such a revelation divided her family and brought it shame
and humiliation.
If EDEN did testify regardless of these consequences and even allowed the
examination of her private parts, she did so inspired by no other motive than to
obtain justice and release from the psychological and emotional burdens the
painful experience had foisted upon her. It was then improbable that EDEN
fabricated a story of defloration and falsely charged her own father with a heinous
crime.
What appellant claims to be improbabilities in the testimony of EDEN are
more apparent than real. The presence of her sisters in the small room did not at
all make impossible the commission of rape. The evil in man has no conscience.
The beast in him bears no respect for time and place; it drives him to commit rape
anywhere even in places where people congregate such as in parks, along the
roadside, within school premises, and inside a house where there are other
occupants. 50In People v. Opena, 51 rape was committed in a room occupied also
by other persons. In the instant case, EDEN's other companions in the room when
she was molested by appellant were young girls who were all asleep.
That EDEN was unable to resist or shout for help can easily be explained by
the fact that appellant threatened to kill her. Whether or not he was armed was of
no moment. That threat alone coming from her father, a person who wielded such
moral ascendancy, was enough to render her incapable of resisting or asking for
help.
Intimidation in rape cases is not calibrated nor governed by hard and fast
rules. Since it is addressed to the victim's and is therefore subjective, it must be
viewed in light of the victim's perception and judgment at the time of the
commission of the crime. It is enough that the intimidation produced fear — fear
that if the victim did not yield to the bestial demands of the accused, something far
worse would happen to her at that moment. Where such intimidation existed and
the victim was cowed into submission as a result thereof, thereby rendering
resistance futile, it would be the height of unreasonableness to expect the victim
to resist with all her might and strength. If resistance would nevertheless be futile
because of intimidation, then offering none at all does not mean consent to the
assault so as to make the victim's submission to the sexual act voluntary. 52
In any event, in a rape committed by a father against his own daughter, as
in this case, the former's moral ascendancy or influence over the latter substitutes
for violence or intimidation. 53 Likewise, it must not be forgotten that at her tender
age of 14 years, EDEN could not be expected to act with the equanimity of
disposition and with nerves of steel, or to act like a mature and experienced woman
who would know what to do under the circumstances, or to have courage and
intelligence to disregard the threat. 54 Even in cases of rape of mature women, this
Court recognized their different and unpredictable reactions. Some may shout;
some may faint; and some may be shocked into insensibility; while others may
openly welcome the intrusion. 55
Neither does the fact that EDEN continued to live with appellant in the same
rented room disprove the rape. While she was hurt physically, psychologically and
emotionally, yet the thought must have been irresistible and compelling that her
assailant was her own father, who was both a father and mother to her since her
mother was in Saudi Arabia and who provided her with the daily wherewithal to
keep her alive. Besides, a less harsh life outside was uncertain. Instances are not
few when daughters raped by their fathers stayed with the latter and kept in the
deepest recesses of their hearts the evil deed even if the memory thereof haunted
them forever. LibLex
Nor is there merit in the insistent claim that EDEN's affidavit of desistance
"must have necessarily contradicted her previous testimony." We have earlier
quoted in full this affidavit of desistance. Plainly, nowhere therein did she retract
her previous testimony or claim that she was raped by her father. In any case,
EDEN withdrew her affidavit of desistance and solemnly declared that she was
pressured by her mother and sister to sign it. Moreover, affidavits, being taken ex
parte, are generally considered inferior to the testimony given in open court; 56 and
affidavits of recantation have been invariably regarded as exceedingly unreliable,
since they can easily be secured from poor and ignorant witnesses. It would be a
dangerous rule to reject the testimony taken before a court of justice simply
because the witness who gave it later on changed his mind for one reason or
another. Such a rule would make a solemn trial a mockery, and place the
proceedings at the mercy of unscrupulous witnesses. 57
This Court has no doubt that appellant is guilty as charged. The penalty
therefor is death under the first circumstance mentioned in Article 335(7) of the
Revised Penal Code, as amended by R.A. No. 7659, which provides, in part, as
follows:
The death penalty shall also be imposed if the crime of rape is
committed with any of the following attendant circumstances:
1. When the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the
victim.
This law may be difficult to accept for those who believe that the verdict of
death for a sin or crime is God's exclusive prerogative. But the fundamental law of
the land allows Congress, for compelling reasons, to impose capital punishment in
cases of heinous crimes, 58 hence the passage of R.A. No. 7659. Hoc quidem per
quam durum est sed ita lex scripta est. The law may be exceedingly hard but so
the law is written and the Court is duty-bound to apply it in this case.
To the appellant who inflicted his animal greed on his daughter in a
disgusting coercion of incestuous lust, thereby forsaking that which is highest and
noblest in his human nature and reducing himself to lower than the lowliest animal,
the full force of the law must be weighed against him, for he deserves no place in
society. All that we concede to him is a modification of the award of "P75,000.00
as damages," which is hereby reduced to P50,000.00 in accordance with current
case law.
WHEREFORE, judgment is hereby rendered AFFIRMING the decision of
the Regional Trial Court of Quezon City, Branch 106, in Criminal Case No. Q-94-
59149 finding accused-appellant EDUARDO AGBAYANI y MENDOZA guilty
beyond reasonable doubt as principal of the crime of rape defined and penalized
under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, and
imposing upon him the penalty of DEATH, subject to the above modification as to
the amount of indemnity.
Two Justices voted to impose upon the accused-appellant the penalty
of reclusion perpetua.
Upon finality of this Decision, let certified true copies thereof, as well as the
records of this case, be forwarded without delay to the Office of the President for
possible exercise of executive clemency pursuant to Article 83 of the Revised
Penal Code, as amended by Section 25 of R.A. No. 7659.
With costs de oficio.
SO ORDERED.
Narvasa, C .J ., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug, Kapunan, Mendoza, Francisco, Panganiban and Martinez, JJ ., concur.
(People v. Agbayani y Mendoza, G.R. No. 122770, [January 16, 1998], 348
|||
PHIL 341-369)
FIRST DIVISION
[A.M. No. RTJ-97-1371. January 22, 1999.]
BALTAZAR D. AMION, complainant,vs.JUDGE ROBERTO

S. CHIONGSON, Branch 50, Regional Trial Court, Bacolod
City, respondent.
SYNOPSIS
A verified complaint was filed by Baltazar D. Amion charging Judge Roberto

S. Chiongson with ignorance of the law and oppression. The complaint was
relative to a murder case pending before his court, in which the complainant is the
accused. The allegations against respondent judge are premised on his
appointment of a counselde oficio for accused-complainant despite the latter's
objection thereto on the ground that he had his own retained counsel. In his
comment, respondent judge alleged that his appointment of a counsel de oficio to
represent the accused-complainant is justified because of the vexatious and
oppressive delay on the latter's part who has been represented by a counsel de
parte who refuses or fails to appear during hearings. He averred that the records
of the case will show that the accused-complainant and his lawyers have employed
every means fair, but mostly foul, to delay the resolution of the criminal case.
The Court found that the accused-complainant has been the oppressor while
respondent judge appears to be the oppressed. Through the course of the
proceedings in the subject criminal case, accused-complainant had filed several
Motions for Inhibition, a Petition for Certiorari and Mandamus,and this
administrative complaint with the view of delaying the eventual disposition of the
case. The actuation of respondent judge in the murder case does not warrant
reproach and reprimand, but in fact, merits the acknowledgment and approval of
the Supreme Court. Such manifestation of zeal clearly shows respondent judge's
ardent determination to expedite the case and render justice. The Court resolved
to dismiss the administrative complaint against the respondent judge, imposed a
fine of P5,000.00 on accused-complainant, and admonished said accused-
complainant for filing a malicious and unmeritorious complaint against the
respondent judge.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; PREFERENCE IN THE

CHOICE OF COUNSEL, CANNOT PARTAKE OF A DISCRETION SO
ABSOLUTE AND ARBITRARY AS WOULD MAKE SUCH REFER EXCLUSIVELY
TO THE PREDILECTION OF THE ACCUSED; RATIONALE. — An examination
of related provisions in the Constitution concerning the right to counsel, will show
that the "preference in the choice of counsel" pertains more aptly and specifically
to a person under investigation rather than one who is the accused in a criminal
prosecution. Even if we were to extend the application of the concept of
"preference in the choice of counsel" to an accused in a criminal prosecution, such
preferential discretion cannot partake of a discretion so absolute and arbitrary as
would make the choice of counsel refer exclusively to the predilection of the
accused. As held by this Court in the case of People vs. Barasina, (229 SCRA
450), withal, the word "preferably" under Section 12(1), Article 3 of the1987
Constitution does not convey the message that the choice of a lawyer by a person
under investigation is exclusive as to preclude other equally competent and
independent attorneys from handling his defense. If the rule were otherwise, then,
the tempo of a custodial investigation, will be solely in the hands of the accused
who can impede, nay, obstruct the progress of the interrogation by simply selecting
a lawyer, who for one reason or another, is not available to protect his interest.
This absurd scenario could not have been contemplated by the framers of the
charter." Applying this principle enunciated by the Court, we may likewise say that
the accused's discretion in a criminal prosecution with respect to his choice of
counsel is not so much as to grant him a plenary prerogative which would preclude
other equally competent and independent counsels from representing him.
Otherwise, the pace of a criminal prosecution will be entirely dictated by the
accused to the detriment of the eventual resolution of the case.
2. ID.;ID.;RIGHT TO DUE PROCESS; A PARTY CANNOT FEIGN DENIAL
THEREOF WHEN HE HAD THE OPPORTUNITY TO PRESENT HIS SIDE; CASE
AT BAR. — Accused-complainant was not, in any way, deprived of his substantive
and constitutional right to due process as he was duly accorded all the
opportunities to be heard and to present evidence to substantiate his defense but
he forfeited this right, for not appearing in court together with his counsel at the
scheduled hearings. Accused-complainant had more than sufficient time and every
available opportunity to present his side which would have led to the expeditious
termination of the case. A party cannot feign denial of due process when he had
the opportunity to present his side. Moreover, there is no denial of the right to
counsel where a counsel de oficio was appointed during the absence of the
accused's counsel de parte pursuant to the court's desire to finish the case as early
as practicable under the continuous trial system. Thus, it has been held by this
Court in the case of Lacambra vs. Ramos:(232 SCRA 435) "the Court cannot help
but note the series of legal maneuvers resorted to and repeated importunings of
the accused or his counsel, which resulted in the protracted trial of the case, thus
making a mockery of the judicial process, not to mention the injustice caused by
the delay to the victim's family." Undoubtedly, it was accused-complainant's own
strategic machinations which brought upon the need for the appointment of a
counsel de oficio in as much as the criminal case had been dragging on its
lethargic course. aETADI
3. LEGAL AND JUDICIAL ETHICS; CODE OF JUDICIAL CONDUCT;

JUDGES; SHOULD ADMINISTER JUSTICE IMPARTIALLY AND WITHOUT
DELAY; CASE AT BAR. — The actuation of respondent judge in this murder case
does not warrant reproach and reprimand, but in fact, merits the acknowledgment
and approval of this Court. Such manifestation of zeal clearly show respondent
judge's ardent determination to expedite the case and render justice. The Code of
Judicial Conduct mandates that a judge should administer justice impartially and
without delay. A judge should always be imbued with a high sense of duty and
responsibility in the discharge of his obligation to promptly administer justice.
DECISION
MARTINEZ, J : p
A verified complaint dated August 29, 1996 1 was filed by Baltazar

D. Amion with this Court on October 7, 1996 charging Judge Roberto
S. Chiongson, Regional Trial Court (RTC), Branch 50, Bacolod City with Ignorance
of the Law and Oppression relative to Criminal Case No. 94-159772 pending in
said trial court and in which complainant is the accused. LLphil
The allegations against respondent judge are premised on his appointment

of a counsel de oficio for accused-complainant despite the latter's objection thereto
on the ground that he had his own retained counsel in the person of Atty. Reynaldo
C. Depasucat.
Accused-complainant explains that respondent judge appointed another
lawyer in the person of Atty. Manuel Lao Ong of the Free Legal Aid to act as
counsel de oficio for the scheduled hearing of the aforecited criminal case on
March 28 and 29 1996. He further avers that his retained counsel was ready for
hearing on said dates but on March 27, 1996, the day before the scheduled
hearing, he was informed that Atty. Depasucat was ill.
It was for this reason that accused-complainant was not represented by his
defense lawyer in the scheduled hearing which prompted respondent judge to
appoint Free Legal Aid lawyer Atty. Manuel Lao Ong. Notwithstanding
complainant-accused's vehement opposition, respondent judge proceeded with
the trial on March 28, 1996 with Atty. Ong representing the complainant-accused
as counsel de oficio.He also claims that Atty. Ong did not have sufficient
knowledge of the case and that no prior conference was held between said
counsel de oficio and himself.
Complainant-accused asserts that the aforesaid incidents constitute a clear
violation of his right to due process and a deprivation of his constitutional and
statutory right to be defended by counsel of his own choice.
Consequently, complainant-accused filed a Manifestation and Urgent
Motion 2 stating therein that he is not accepting the legal services of counsel de
oficio Atty. Ong since he can afford to hire a counsel de parte of his own choice.
He further states that respondent judge is not fair and just and does not have the
cold neutrality of an impartial judge. He likewise asseverates that respondent judge
is ignorant of the basic law which makes him unfit to be a judge in any judicial
tribunal.
Complainant-accused also alludes oppression to respondent judge when
the latter was still a Municipal Trial Judge of MTCC, Branch 3, Bacolod City.
Complainant was then the offended party in a criminal case for Slander and it took
a year before respondent judge decided to dismiss the same. He complains that
now that he is the accused in Criminal Case No. 94-15772, respondent judge
appears to be "very active" and wants the case to be terminated immediately.
In addition, accused-complainant charges respondent judge with gross
ignorance of the law when the latter, as then municipal trial judge of Bacolod City,
heard Criminal Case No. 55099 for violation of B.P. 22 against accused-
complainant in the absence of his counsel.
In a resolution dated March 12, 1997, 3 this Court required respondent judge
to file his Comment on the aforementioned charges.
Judge Roberto S. Chiongson, in his Comment dated April 21,
1997, 4 explained that accused-complainant would not have filed the
administrative case had he acceded to the latter's plea for his inhibition which he
denied, there being no ground therefor. He claimed that accused-complainant is a
police officer charged in Criminal Case No. 94-15772 for having allegedly killed a
fellow policeman on January 24, 1994. From the time he assumed office as
Presiding Judge of said court on November 27, 1995, other than the arraignment
of accused-complainant on September 25, 1995 before Judge Emma Labayen
(former judge of said court) in which accused-complainant pleaded not guilty, the
case has not moved.
When respondent judge set the case for hearing on January 9, 1996, trial
was not held because accused-complainant's counsel, Atty. Depasucat, was not
feeling well. The hearing was reset to January 19, 1996 with a warning that no
further postponement would be entertained. On said date of hearing, Atty.
Depasucat again failed to appear in court. In order to avoid further delay, the court
appointed Atty. Apollo Jacildo of the Public Attorney's Office (PAO) as counsel de
oficio.Atty. Jacildo, however, filed a Manifestation explaining that it is the policy of
their office not to represent a party who has retained the services of a counsel of
his own choice.
At the next scheduled hearing of February 21, 1996, 5 accused-
complainant's counsel de parte still did not show up in court, thus, prompting
private complainant Mrs. Antonietta Vaflor (the victim's wife) to speak in open court
and pour out all her frustration about the long delay in the resolution of the case.
In view of the fact that Mrs. Vaflor and another government witness, PO3
Richard Dejores, both reside at Escalante, about 70 to 80 kilometers from Bacolod
City, and that the appearance of Atty. Depasucat remained uncertain,
Judge Chiongson appointed Atty. Manuel Lao-Ong from the Free Legal Aid Office
to represent accused-complainant. The court, however, made it of record that the
appointment of Atty. Ong was without prejudice to the appearance of counsel de
parte. 6 Due to the continued absence of Atty. Depasucat, the counsel de
parte,Atty. Ong, represented the accused-complainant at the March 28, 1996
hearing which was opposed by the accused in a Manifestation and Motion filed on
March 29, seeking the nullification of the March 28, 1998 hearing and the inhibition
of Judge Chiongson. The hearings were then rescheduled on May 13 and 17,
1996.
On May 8, 1996, accused-complainant's counsel, Atty. Depasucat, filed a
motion for postponement alleging that the motion for inhibition should be resolved
and that he would not be available on the rescheduled dates for hearings as he
would be out of the country during those times.
An order denying the accused-complainant's Motion for Inhibition and
Motion to Set Aside the proceedings of March 28, 1996 was issued by the court
on July 18, 1996 on the ground that the claim of bias and prejudice was without
legal basis. 7
At the scheduled hearing on August 1, 1996, Atty. Depasucat asked the
court that he be allowed to withdraw as counsel de parte of the accused-
complainant causing further delay. The trial of the case was again reset to
September 2, 5 and 6, 1996 with a warning that the court will not grant any further
postponement and that if the accused-complainant was still without counsel, a
counsel de oficio will be appointed.
Thereafter, the accused-complainant engaged the services of different
counsels who continued to adopt the dilatory tactics utilized by the previous
counsel de parte.
Atty. Rosslyn Morana, who entered his appearance as counsel on
September 2, 1996, filed on October 14, 1996 a Motion for Voluntary Inhibition of
respondent judge on account of a pending administrative case against the latter.
On October 24, 1996, Atty. Morana submitted an Explanation to the court stating
that he could not represent the accused-complainant as the latter failed to give him
the records of the case.
On November 14, 1996, the prosecution filed a motion to cite the accused
in contempt for filing a series of motions for inhibition and for filing an administrative
case against the presiding judge which are plain acts of harassment. prll
Atty. Salvador Sabio entered his appearance as counsel for the accused-
complainant on December 2, 1996 and asked for the cancellation of the scheduled
hearings on December 5 and 6, 1996 as he had to study the case. The court
granted the request for postponement of Atty. Sabio and reset the case on January
24, 1997 with a strong warning that it will not allow any further dilatory
postponement. In the afternoon of January 23, 1997, the court received another
motion for postponement filed by Atty. Sabio requesting for the cancellation of the
January 24 hearing. The court, considering the same as another delaying tactic,
immediately issued an order denying the motion. In spite of the denial of the motion
for postponement, Atty. Sabio failed to appear.
On February 4, 1997, accused-complainant again asked for the voluntary
inhibition of the presiding judge which the court again denied for being merely a
dilatory scheme.
On March 24, 1997, when the case was called for hearing, Atty. Sabio
informed the court that he received a written note from the accused-complainant
discharging him as counsel, to which the court responded by ruling that Atty. Sabio
would only be allowed to withdraw as accused-complainant's lawyer upon the entry
of appearance of a new defense counsel.
In a Resolution of the Court of Appeals promulgated on April 29, 1997,
Judge Chiongson was required to submit a COMMENT 8 on a Petition
for Certiorari andMandamus filed by accused-complainant. Said document has
also been submitted to the Court as Supplemental Comment to this administrative
case. 9
Respondent judge reiterated his belief that his appointment of a counsel de
oficio to represent the accused-complainant is justified because of the vexatious
and oppressive delay on the latter's part who has been represented by a
counsel de parte who refuses or fails to appear during hearings. He averred that
the records of the case will show that the accused-complainant and his lawyers
have employed every means fair, but mostly foul, to delay the resolution of Criminal
Case No. 94-15772. He added that the Petition for Certiorari and the
Administrative Case were filed for the purpose of not only delaying the resolution
of the case but also to pressure him into inhibiting himself.
As to the allegation of oppression in connection with a criminal case for
slander where accused-complainant was the alleged offended party while
respondent judge was then the Municipal Trial Judge of MTC, Branch 3, Bacolod
City to which the case was being tried, Judge Chiongson belies the same. He
explains that the prosecution in the said case had rested while the defense filed a
demurrer which was granted.
He narrates that the case for slander was filed by herein accused-
complainant against Mrs. Esparcia, a school teacher and sister of a victim alleged
to have been killed by the accused-complainant, when said Mrs. Esparcia told the
accused-complainant "Murderer, why are you not in jail" or words to that effect.
This was made when accused-complainant was seen roaming around the vicinity
of the police station when he was supposed to be a detention prisoner.
Accordingly, respondent judge granted the Demurrer on the finding of the court
that the utterance of Mrs. Esparcia was not slanderous but was merely an
expression of exasperation and disgust.
On the charge of Gross Ignorance of the Law, for having tried Criminal Case
No. 55099 for violation of B.P. 22 against accused-complainant in the absence of
counsel, respondent judge asserts that accused-complainant has nothing to do
with said criminal case as can be gleaned from the Order relied upon as basis for
the aforementioned charge.
Respondent judge concludes that the sequence of events hereinabove
discussed, exposes clearly the false and dissembled charges filed against him as
well as the determined efforts of the accused-complainant and his counsel to
frustrate the ends of justice.
We find this administrative complaint devoid of merit.
Verily, the facts and circumstances of this case point to the pervasive and
prevaricated procrastination of the proceedings undertaken by the accused-
complainant and his counsel. Contrary to what accused-complainant would want
to impress upon this Court, it seems that he has been the oppressor while
respondent judge Roberto Chiongson appears to be the oppressed. Through the
course of the proceedings in the subject criminal case, accused-complainant had
filed several Motions for Inhibition, a Petition for Certiorari and Mandamus and this
administrative complaint with the view of delaying the eventual disposition of the
case.
A Memorandum of the Office of the Court Administrator (OCA) dated

January 14, 1998 10 noted that "Criminal Case No. 94-15772 has been
pending for almost four (4) years already and the prosecution has yet to rest
its case. Complainant has thrown every legal strategy in the book to delay the
trial. . . ."
The claim of accused-complainant that respondent judge's appointment of
a counsel de oficio constitutes a clear violation of his right to due process and a
deprivation of his constitutional right to be defended by counsel of his own choice
cannot be countenanced by this Court.
An examination of related provisions in the Constitution concerning the right
to counsel, will show that the "preference in the choice of counsel" pertains more
aptly and specifically to a person under investigation 11 rather than one who is the
accused in a criminal prosecution. 12
Even if we were to extend the application of the concept of "preference in
the choice of counsel" to an accused in a criminal prosecution, such preferential
discretion cannot partake of a discretion so absolute and arbitrary as would make
the choice of counsel refer exclusively to the predilection of the accused.
As held by this Court in the case of People vs. Barasina: 13
"Withal, the word "preferably" under Section 12(1), Article 3 of
the 1987 Constitution does not convey the message that the choice
of a lawyer by a person under investigation is exclusive as to
preclude other equally competent and independent attorneys from
handling his defense. If the rule were otherwise, then, the tempo of
a custodial investigation, will be solely in the hands of the accused
who can impede, nay, obstruct the progress of the interrogation by
simply selecting a lawyer, who for one reason or another, is not
available to protect his interest. This absurd scenario could not have
been contemplated by the framers of the charter"
Applying this principle enunciated by the Court, we may likewise say that the
accused's discretion in a criminal prosecution with respect to his choice of counsel
is not so much as to grant him a plenary prerogative which would preclude other
equally competent and independent counsels from representing him. Otherwise,
the pace of a criminal prosecution will be entirely dictated by the accused to the
detriment of the eventual resolution of the case.
Accused-complainant was not, in any way, deprived of his substantive and
constitutional right to due process as he was duly accorded all the opportunities to
be heard and to present evidence to substantiate his defense but he forfeited this
right, for not appearing in court together with his counsel at the scheduled
hearings. 14
Accused-complainant had more than sufficient time and every available
opportunity to present his side which would have led to the expeditious termination
of the case. A party cannot feign denial of due process when he had the opportunity
to present his side. 15
Moreover, there is no denial of the right to counsel where a counsel de
oficio was appointed during the absence of the accused's counsel de
parte pursuant to the court's desire to finish the case as early as practicable under
the continuous trial system. 16
Thus, it has been held by this Court in the case of Lacambra v. Ramos: 17
"The Court cannot help but note the series of legal maneuvers
resorted to and repeated importunings of the accused or his
counsel, which resulted in the protracted trial of the case, thus
making a mockery of the judicial process, not to mention the
injustice caused by the delay to the victim's family."
Undoubtedly, it was accused-complainant's own strategic machinations
which brought upon the need for the appointment of a counsel de oficio in as much
as the criminal case had been dragging on its lethargic course.
As to the charges of oppression and gross ignorance of the law against
respondent judge relative to cases under him while he was still in the Municipal
Trial Court, the same have been sufficiently answered in the Comments submitted
in this case. The explanation by the respondent judge indicate that the aforesaid
allegations have neither legal nor factual basis and that the conclusions made
therein are merely conjectural.
The actuation of respondent judge in this murder case does not warrant
reproach and reprimand, but in fact, merits the acknowledgment and approval of
this Court. Such manifestation of zeal clearly show respondent judge's ardent
determination to expedite the case and render justice.
The Code of Judicial Conduct mandates that a judge should administer
justice impartially and without delay. 18 A judge should always be imbued with a
high sense of duty and responsibility in the discharge of his obligation to promptly
administer justice. 19
WHEREFORE, in view of the foregoing, the Court RESOLVED to:
1. DISMISS the administrative complaint against Judge Roberto
S. Chiongson of RTC, Branch 50, Bacolod City for lack of merit.
2. IMPOSE a FINE of FIVE THOUSAND PESOS (P5,000.00) and
ADMONISH accused-complainant Baltazar D. Amion for filing a malicious and
unmeritorious complaint against Judge Roberto S. Chiongson to delay and
prolong the prosecution of the case.
3. DIRECT Judge Roberto S. Chiongson to continue hearing the case and
finally dispose of the same with utmost dispatch. LLphil
SO ORDERED.
Davide, Jr.,C.J.,Melo, Kapunan and Pardo, JJ., concur.
(Amion v. Chiongson, A.M. No. RTJ-97-1371, [January 22, 1999], 361 PHIL
|||
542-555)
FIRST DIVISION
[G.R. No. 121562. July 10, 1998.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.RONNIE

QUITLONG y FRIAS, SALVADOR QUITLONG y FRIAS and
EMILIO SENOTO, Jr.,y PASCUA,accused-appellants.

Joy B. Labiaga for accused-appellants.
SYNOPSIS
The information for murder filed against the appellants failed to avert that
they conspired with each other in the commission of the offense charged. But then,
after trial, the Regional Trial Court of Baguio City, Branch 5 convicted the
appellants as charged, finding that there was conspiracy between and among them
in the commission of the crime and the indeterminate penalty of twenty (20) years
of reclusion temporal,as minimum to forty (40) years of reclusion perpetua,as
maximum was imposed. The conviction was based on the evidence presented by
the prosecution that in the evening of October 20, 1994, while the victim Jonathan
Calpito and Jonathan Gosil were confronting the fishball vendor who did not admit
that he had short-changed Calpito, eight men approached and aggressively
confronted Calpito and Gosil. Appellant Emilio then embraced Calpito from behind
and appellants Salvador Quitlong and Ronnie Quitlong held Calpito's right hand
and left hand, respectively. Calpito struggled unsuccessfully to free himself.
Suddenly, Ronnie Quitlong stabbed Calpito at the left side of his body just below
the nipple which became the cause of his death. On the other hand, the appellants
gave no alibi and admitted their presence at the vicinity of the crime scene,
however, they denied any participation in the commission of the crime.
Hence, this appeal.
The Court ruled that in the absence of conspiracy, so averred and proved,
an accused can only be made liable for the acts committed by him alone and his
criminal responsibility is individual and not collective. As so it is that must be so
held in this case. The conflicting claims of the prosecution and the defense on who
stabbed the victim is an issue that ultimately and unvoidably goes into the question
of whom to believe among the witnesses. This issue of credibility requires a
determination that is concededly best left to the trial court with its unique position
of having been enabled to observe that elusive and incommunicable evidence of
the deportment of witnesses on the stand. Findings of the trial court, following that
assessment, must be given the highest degree of respect absent compelling
reasons to conclude otherwise.
Appellant Ronnie Quitlong is found guilty of the crime of murder for the killing
of Jonathan Calpito and sentenced to suffer the penalty of reclusion perpetua.
Appellants Salvador Quitlong and Emilio Senoto, Jr. are found guilty as
accomplices in the commission of the crime.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE

ACCUSED; TO BE INFORMED OF THE NATURE AND CAUSE OF THE
ACCUSATION AGAINST HIM; RIGHT OF ACCUSED EXPLAINED. —
Overwhelming, such as it may have been thought of by the trial court, evidence of
conspiracy is not enough for an accused to bear and to respond to all its grave
legal consequences; it is equally essential that such accused has been apprised
when the charge is made conformably with prevailing substantive and procedural
requirements. Article III, Section 14, of the 1987 Constitution, in particular,
mandates that no person shall be held answerable for a criminal offense without
due process of law and that in all criminal prosecutions the accused shall first be
informed of the nature and cause of the accusation against him. The right to be
informed of any such indictment is likewise explicit in procedural rules. The practice
and object of informing an accused in writing of the charges against him has been
explained as early as the 1904 decision of the Court in U.S. vs. Karelsen.
2. REMEDIAL LAW; CRIMINAL PROCEDURE; INFORMATION; MUST
SET FORTH THE FACTS AND CIRCUMSTANCES THAT HAVE A BEARING ON
THE CULPABILITY AND LIABILITY OF THE ACCUSED. — In embodying the
essential elements of the crime charged, the information must set forth the facts
and circumstances that have a bearing on the culpability and liability of the
accused so that the accused can properly prepare for and undertake his defense.
One such fact or circumstance in a complaint against two or more accused persons
is that of conspiracy.
3. ID.;EVIDENCE; CONSPIRACY; MUST BE ALLEGED IN
INFORMATION. — Quite unlike the omission of an ordinary recital of fact which, if
not excepted from or objected to during trial, may be corrected or supplied by
competent proof, an allegation, however, of conspiracy, or one that would impute
criminal liability to an accused for the act of another or others is indispensable in
order to hold such person, regardless of the nature and extent of his own
participation, equally guilty with the other or others in the commission of the crime.
Where conspiracy exists and can rightly be appreciated, the individual acts done
to perpetrate the felony becomes of secondary importance, the act of one being
imputable to all the others. Verily, an accused must know from the information
whether he faces a criminal responsibility not only for his acts but also for the acts
of his co-accused as well.
4. ID.;ID.;ID.;A CONSPIRACY INDICTMENT NEED NOT AVER ALL THE
COMPONENTS AND ALLEGE ALL THE DETAILS THEREOF. — A conspiracy
indictment need not, of course, aver all the components of conspiracy or allege all
the details thereof, like the part that each of the parties therein have performed,
the evidence proving the common design or the facts connecting all the accused
with one another in the web of the conspiracy. Neither is it necessary to describe
conspiracy with the same degree of particularity required in describing a
substantive offense. It is enough that the indictment contains a statement of the
facts relied upon to be constitutive of the offense in ordinary and concise language,
with as much certainty as the nature of the case will admit, in a manner that can
enable a person of common understanding to know what is intended, and with
such precision that the accused may plead his acquittal or conviction to a
subsequent indictment based on the same facts. It is said, generally, that an
indictment may be held sufficient "if it follows the words of the statute and
reasonably informs the accused of the character of the offense he is charged with
conspiring to commit, or, following the language of the statute, contains a sufficient
statement of an overt act to effect the object of the conspiracy, or alleges both the
conspiracy and the contemplated crime in the language of the respective statutes
defining them."
5. ID.;ID.;ID.;CONSPIRACY MUST BE ALLEGED, NOT JUST INFERRED.
— Verily, the information must state that the accused have confederated to commit
the crime or that there has been a community of design, a unity of purpose or an
agreement to commit the felony among the accused. Such an allegation, in the
absence of the usual usage of the words "conspired" or "confederated" or the
phrase "acting in conspiracy," must aptly appear in the information in the form of
definitive acts constituting conspiracy. In fine, the agreement to commit the crime,
the unity of purpose or the community of design among the accused must be
conveyed such as either by the use of the term "conspire" or its derivatives and
synonyms or by allegations of basic facts constituting the conspiracy. Conspiracy
must be alleged, not just inferred, in the information on which basis an accused
can aptly enter his plea, a matter that is not to be confused with or likened to the
adequacy of evidence that may be required to prove it. In establishing conspiracy
when properly alleged, the evidence to support it need not necessarily be shown
by direct proof but may be inferredfrom shown acts and conduct of the accused.
6. ID.;ID.;CONSPIRACY; DEFINED. — Conspiracy arises when two or
more persons come to an agreement concerning the commission of a felony and
decide to commit it. Conspiracy comes to life at the very instant the plotters agree,
expressly or impliedly, to commit the felony and forthwith to actually pursue it.
7. ID.;ID.;FOR FAILURE TO ALLEGE CONSPIRACY IN THE
INFORMATION, THE CRIMINAL RESPONSIBILITY OF THE ACCUSED IS
INDIVIDUAL AND NOT COLLECTIVE. — In the absence of conspiracy, so averred
and approved as heretofore explained, an accused can only be made liable for the
acts committed by him alone and this criminal responsibility is individual and not
collective.
8. ID.;ID.;ID.;APPLICATION IN CASE AT BAR. — Appellant Ronnie
Quitlong was a principal by his own act of stabbing Calpito that caused the latter's
death. Appellants Salvador Quitlong and Emilio Senoto, Jr.,were holding the hands
of Calpito at the precise time that Ronnie Quitlong was in the act of executing his
criminal intent. Simultaneity, however, would not itself demonstrate the
concurrence of will or the unity of action and purpose that could be a basis for
collective responsibility of two or more individuals; indeed, from all indications, the
incident would appear to have occurred at the spur of moment. Appellants
Salvador Quitlong and Emilio Senoto, Jr.,shall therefore be held to be mere
accomplices conformably with Article 18 of the Revised Penal Code.
9. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES;
FINDINGS OF THE TRIAL COURT, GIVEN HIGHEST DEGREE OF RESPECT.
— This issue of credibility requires a determination that is concededly best left to
the trial court with its unique position of having been enabled to observe that
elusive and incommunicable evidence of the deportment of witnesses on the
stand. Findings of the trial court, following that assessment, must be given the
highest degree of respect absent compelling reasons to conclude otherwise.
10. ID.;ID.;ID.;A WITNESS WHO TESTIFIES IN A CATEGORICAL,
STRAIGHTFORWARD AND SPONTANEOUS MANNER IS A CREDIBLE
WITNESS; CASE AT BAR. — In the first place, Lito Adjaro, the eyewitness in the
stabbing of Calpito, has steadfastly stood by, even on rebuttal, to his story on the
commission of the crime. A witness who testifies in a categorical, straightforward
and spontaneous manner, as well as remains consistent on cross and rebuttal
examination, is not likely to be an incredible witness.
11. ID.;ID.;ID.;NO IMPROPER MOTIVE TO TESTIFY AGAINST THE
APPELLANT; CASE AT BAR. — Secondly, the defense has failed to establish any
ill motive on the part of Adjaro that would have prompted him to testify wrongly
against appellants. Where there is no evidence to indicate that the prosecution
witness has been actuated by any improper motive, it would be hard to reject the
supposition that a person will not prevaricate and cause damnation to one who has
brought him no harm.
12. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; ABUSE OF
SUPERIORITY; SUPERIORITY IN NUMBER WOULD NOT PER SE MEAN
SUPERIORITY IN STRENGTH; NOT APPLICABLE IN CASE AT BAR. — The
crime committed was qualified by abuse of superiority. While superiority in number
would not per se mean superiority in strength, enough proof was adduced,
however, to show that the attackers had cooperated in such a way as to secure
advantage of their superiority in strength certainly out of proportion to the means
of defense available to the person attacked.
13. ID.;AGGRAVATING CIRCUMSTANCE; TREACHERY; THE MODE OF
ATTACK MUST CONSCIOUSLY BE ADOPTED. — Treachery may not be here
considered as a generic aggravating circumstance although it might have ensured
the commission of the crime. In order that treachery may be taken as an
aggravating circumstance, there must be proof that the accused
has consciously adopted a mode of attack to facilitate the perpetration of the killing
without risk to himself.
14. ID.;MURDER; IMPOSABLE PENALTY TO THE PRINCIPAL. — Under
Article 248 of the Revised Penal Code, the crime of murder is punishable
by reclusion temporal maximum to death. There being neither aggravating nor
mitigating circumstances to appropriately appreciate in this case, appellant Ronnie
Quitlong, as principal, shall suffer the penalty of reclusion perpetua.
15 ID.;ID.;IMPOSABLE PENALTY TO THE ACCOMPLICE. — The two
accomplices, appellants Salvador Quitlong and Emilio Senoto, Jr.,shall be subject
to the imposition of the penalty next lower in degree than reclusion
temporal maximum to death or, accordingly, prision mayor in its maximum period
to reclusion temporal in its medium period. Absent any mitigating or aggravating
circumstance, the penalty that may be imposed is reclusion temporal minimum.
Applying the Indeterminate Sentence Law to them, each may be held to suffer the
indeterminate sentence of anywhere from prision correccional in its maximum
period to prision mayor in its medium period, as the minimum penalty, to anywhere
within the range of reclusion temporal minimum, as the maximum penalty.
16. ID.;PENALTY; RECLUSION PERPETUA;INDIVISIBLE PENALTY. — In
the Court's Resolution of 09 January 1995, clarifying its decision in People vs.
Lucas, the Court has said that — ". . . although Section 17 of R.A. No. 7659 has
fixed the duration of reclusion perpetua from twenty (20) years and one (1) day to
forty (40) years, there was no clear legislative intent to alter its original
classification as an indivisible penalty. It shall then remain as an indivisible
penalty."
DECISION
VITUG, J :
p
The Regional Trial Court of Baguio City, Branch 5, 1 disposed of Criminal

Case No. 13336-R; thus: LLjur
"WHEREFORE, the Court finds and declares the accused RONNIE

QUITLONG Y FRIAS, SALVADOR QUITLONG Y FRIAS and EMILIO
SENOTO, JR. Y PASCUA guilty beyond reasonable doubt of the crime of
murder as charged and hereby sentences EACH of them to suffer an
indeterminate penalty of TWENTY (20) YEARS of reclusion temporal as
minimum, to FORTY (40) YEARS of reclusion perpetua,as maximum; to
indemnify, jointly and severally, the heirs of the deceased Jonathan
Calpito y Castro in the sums of P50,000.00 for the latter's death;
P35,700.00 as consequential damages; and P100,000.00 as moral
damages, plus their proportionate shares in the costs.
"In the service of their sentence, the said accused shall be credited
with their preventive imprisonment under the terms and conditions
prescribed in Article 29 of the Revised Penal Code, as amended.
"Conformably with Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure, as amended, the corresponding filing fee for the
P100,000.00 moral damages herein awarded shall constitute a first lien
on this judgment.
"The evidence knife, Exhibit 'B',is hereby declared forfeited in favor
of the Government.
"Pursuant to Circular No. 4-92-A of the Court Administrator, the
Warden of the City Jail of Baguio is directed to immediately transfer the
same accused to the custody of the Bureau of Corrections, Muntinlupa,
Metro Manila.
"Let a copy of this Decision be furnished the Warden of the City Jail
of Baguio for his information and guidance.
"There being no indication that the remaining accused, Jesus
Mendoza, and several John Does could be arrested/identified and
arrested shortly, let the case against them be, as it is hereby, archived
without prejudice to its prosecution upon their apprehension.
"SO ORDERED." 2
The case was generated by an information for murder filed on 25 October
1994 against accused-appellants Salvador Quitlong, Ronnie Quitlong, Emilio
Senoto, Jr.,and several other unidentified persons following the killing of Jonathan
Calpito. Accused-appellants, shortly after the filing of the information, submitted a
motion for reinvestigation alleging that "it was a certain Jesus Mendoza who
stabbed the victim after getting irked when the latter urinated near and in front" 3 of
his wife. The trial court acted favorably on the motion. On 12 December 1994, the
City Prosecutor filed a motion to admit an amended information on the basis of
affidavits 4 executed by Nonita F. delos Reyes, Nicanor Ellamil, Lydia Q. Cultura,
as well as accused-appellants Salvador and Ronnie Quitlong themselves, to the
effect that it was Jesus Mendoza who had been responsible for the death of the
victim. The information, as amended, included Jesus Mendoza among the named
accused. 5 Unlike accused-appellants who were immediately arrested after the
commission of the crime, Jesus Mendoza remained at large. At their arraignment,
the detained accused pleaded not guilty to the crime charged. prLL
The evidence of the prosecution has narrated how a simple

misunderstanding and relatively so small a matter could lead to so dastardly and
unfortunate an outcome.
At around six o'clock in the evening of 20 October 1994, Lito Adjaro, who
had just come from work as a dispatcher of passenger jeepneys plying the Baguio
City-Loakan route, repaired to a nearby game parlor where he saw 19-year-old
University of Baguio medical technology student Jonathan Calpito playing billiards
with Jonathan Gosil. Adjaro was Calpito's neighbor and barkada (gangmate) in
Loakan. At past eight o'clock, Calpito decided that it was time to go home. Since
at that hour there were no longer passenger jeepneys bound for Loakan, the three
friends decided to walk down to Harrison Road behind the Melvin Jones
grandstand to grab a taxicab. The area was well-lighted. Wanting to partake of
some "fishballs," Calpito and Gosil approached a fishball vendor about three to
four meters away. The two returned with three sticks of fishballs worth fifteen
pesos. When Calpito counted the change for his 100-peso bill, he saw that he had
only been handed back thirty five pesos. Confronted by Calpito and Gosil, the
fishball vendor would not admit that he had short-changed Calpito.
Herbert Soriano, a civil engineer driving a passenger-type jeep on his way
to Loakan from the Dominican Hill, was seen passing by. Adjaro, his neighbor,
hailed him. Soriano positioned his jeep around four or five meters from where Gosil
and Calpito were still having an argument with the fishball vendor. Soriano called
out to the two to board the jeep but they ignored him. Moments later, Soriano saw
eight men rushing towards Gosil and Calpito from the direction of the taxicab-stand
behind his jeep. Some of the men later backed out but four of them pursued Calpito
who, meanwhile, had started to retreat from the group. The four men, however,
succeeded in cornering Calpito. Soriano saw Calpito fall to the ground and thought
that the latter had just been weakened by the men's punches but, when Calpito
was carried on board his jeep, Soriano realized that Calpito had been stabbed.
Adjaro saw no less than eight men approach and aggressively confront
Calpito and Gosil. Seeing that his friends were outnumbered, Adjaro shouted at
Calpito and Gosil to run posthaste. Adjaro promptly boarded Soriano's jeep. From
where he sat, Adjaro could see appellant Emilio Senoto embracing Calpito from
behind and appellants Salvador Quitlong and Ronnie Quitlong holding Calpito's
right hand and left hand, respectively. Calpito struggled unsuccessfully to free
himself. Suddenly, appellant Ronnie Quitlong stabbed Calpito at the left side of the
body just below the nipple. Once the three men had released their hold on Calpito,
the latter fell to the ground. Despite the condition that Calpito was already in, his
assailants still went on hitting him with their feet.
Police officers Jerry Patacsil, Arthur Viado and Nito Revivis were on foot
patrol that evening. Attracted by the commotion along Harrison Road, the police
officers hurriedly proceeded to the brightly-lighted place and saw Calpito lying on
the ground. Three of the malefactors started to flee upon seeing the approaching
police officers but the rest kept on with their attack on Calpito. Patacsil drew out
his service firearm and told the attackers to freeze. Seeing that the victim had
bloodstains on his left chest, Patacsil advised the victim's companions to rush him
to the hospital. Soriano, Gosil and Adjaro took Calpito to the Baguio General
Hospital on board Soriano's jeep.
The police officers brought accused-appellants to the police station. SPO1
Gabriel Isican prepared the complaint assignment sheet 6 before turning them over
to the investigation division. SPO4 Avelino Tolean, officer-in-charge of the police
investigation division on the 4:00 p.m. to 12:00 midnight shift, also received a call
from the Baguio General Hospital about the incident. SPO4 Tolean, along with
SPO1 Rafael Ortencio, Jr.,and two "Bombo" radio reporters, went to the hospital
where Calpito was by then in the operating room. The police officers interviewed
Adjaro and Gosil at the hospital's emergency room and then repaired to the crime
scene and searched the area. Recovered near the flowering plants beside the
electric post was a "stainless knife" 7 with bloodstains on its blade. Adjaro
recognized the knife to be the one used in stabbing Calpito. SPO4 Gerardo
Tumbaga prepared Form 1 of the National Crime Reporting System indicating that
accused-appellants were arrested and that a certain Mendoza escape and went
into hiding. The report also disclosed that Adjaro and Gosil had a drinking spree
with the victim at the Genesis Folkden before the stabbing incident. SPO4
Tumbaga based his findings on the documents attached to the records of the case.
That same evening of 20 October 1994, at 8:55, Calpito died at the Baguio
General Hospital. Dr. Kathryna Ayro, the hospital's medico-legal officer, conducted
the autopsy on the victim upon the request of Dr. Samuel Cosme, the attending
surgeon, and of First Assistant City Prosecutor Herminio Carbonell, with the
consent of a brother of Calpito. 8 Dr. Ayro found a solitary stab wound that
penetrated Calpito's left thoracic cavity at the level of the 5th intercostal space that
caused a "through and through" laceration of his anterior pericardium and the apex
of the left ventricle of his heart. 9 Dr. Ayro indicated the cause of Calpito's death as
being one of hypovolemic shock secondary to stab wound. 10 She opined that a
knife, single or double bladed, must have been used in inflicting the stab wound.
Abrasions were also found on different parts of Calpito's body.
Precy Calpito, the mother of the victim, testified that the family had spent the
amount of P37,500.00 11 for his wake, burial and 9-day prayers. Her youngest
son's death left her losing hope in life and "feeling very badly."
The defense gave no alibi and admitted the presence of accused-appellants
at the vicinity of the crime scene; however, it interposed denial by appellants of
any participation in the commission of the crime.
Appellant Emilio Senoto, Jr.,a taxicab driver, testified that out of curiosity,
after parking his cab to buy some cigarettes and getting attracted by the
commotion, went near the scene and saw the victim lying on the ground beside a
cart. He was about to leave the place when several policemen arrived and arrested
him.
Appellant Salvador Quitlong, a food vendor at the Burnham Park and father
of five children, denied having had any participation in the stabbing incident nor
having been acquainted with Jesus Mendoza. He admitted, however, that on the
night in question when he was selling "fishballs" at the park, around eighty meters
away from where Mendoza was selling his wares, the latter's daughter, who was
a classmate of his own daughter, asked for help yelling that her father was in
trouble. He rushed over to Mendoza's place (puesto) but barely in time to witness
the stabbing of Calpito by Mendoza.
Appellant Ronnie Quitlong, Salvador Quitlong's 26-year-old younger
brother, was also a sidewalk vendor at the waiting shed along Harrison Road. He
learned of the trouble Mendoza got himself into when the latter's daughter
summoned for help. When he and his brother responded, Mendoza had by then
already stabbed Calpito.
Nonita de los Reyes and Lydia Cultura, both sidewalk vendors, corroborated
the story of the Quitlong brothers. According to Nonita, it was Mendoza who
stabbed Calpito. She witnessed the incident from a distance of ten meters away.
Nonita explained that she did not immediately reveal what she saw to the
authorities because of shock. Lydia Cultura, on her part, said that she saw Jesus
Mendoza in the "rumble" with five or six men who had come from the Genesis
Folkden. She saw Mendoza embrace and stab the man in white t-shirt. Nonita and
Alma Balubar followed appellants to the police station but did not tell the police
what she knew because she was busy attending to the crying pregnant wife of
appellant Ronnie Quitlong. Cdpr
On 21 April 1995, the trial court, following his evaluation of the respective
submissions of the prosecution and the defense, including their rebuttal and sur-
rebuttal evidence, rendered its now assailed decision.
In their assignment of errors, the Quitlong brothers would have it —
"1. That the Honorable Lower Court gravely abused its discretion
and/or acted in excess of or without jurisdiction in finding that conspiracy
may readily be inferred inspite of explicit failure to allege in the information
or complaint;
and/or acted in excess of or without jurisdiction in finding that there was
conspiracy between and among the accused-appellants in the
commission of the crime;
and/or acted in excess of or without jurisdiction in finding the accused-
appellants guilty of the crime of Murder instead of Homicide." 12
In his case, appellant Senoto contends that the trial court has erred in finding
conspiracy among the accused and argues that the crime committed is homicide,
not murder, given the circumstances.
On the particular issue of conspiracy, the trial court had this to say:
"The question is whether or not the herein three accused
participated in, and may be held guilty as co-principals by reason of
conspiracy for, the fatal stabbing of the victim, Calpito, there being no
dispute that the latter died due to the solitary stab inflicted on him.
"But before proceeding any further, the Court takes notice of the
lapse committed, perhaps inadvertently, by the prosecution in drafting the
indictment. Both the original and amended Informations fail to explicitly
allege conspiracy.This could have been timely cured if obeisance had
been observed of the admonition, often given, that the prosecution should
not take the arraignment stage for granted but, instead, treat the notice
thereof as a reminder to review the case and determine if the complaint
or information is in due form and the allegations therein contained are
sufficient vis-a-vis the law involved and the evidence on hand. It is
fortunate that in the case at bench conspiracy may readily be inferred from
the way the allegation of abuse of superior strength has been phrased, to
wit: '. . . the above-named accused, being then armed with a knife, with
intent to kill . . . and taking advantage of their numerical superiority and
combined strength did then and there willfully, unlawfully and feloniously
attack, assault and stab JONATHAN CALPITO y CASTRO . . . ."' 13 prLL
Citing Balmadrid vs. Sandiganbayan 14 the trial court has opined that
"conspiracy may be deemed adequately alleged if the averments in the Information
logically convey that several persons (have been) animated with the single
purpose of committing the offense charged and that they (have) acted in concert
in pursuance of that purpose." 15 Holding that no direct proof is essential and that
it suffices that the existence of a common design to commit the offense charged is
shown by the acts of the malefactors and attendant circumstances, the trial court
has concluded:
"In the case on hand, it bears repeating that Ronnie Quitlong and
Salvador Quitlong were admittedly responding to Jesus Mendoza's call for
help through the latter's daughter. They must have, therefore, been
disposed, out of empathy with a fellow sidewalk vendor, to lend Mendoza
all the assistance the latter needed under the circumstances. They were
joined, according to prosecution witnesses Lito Adjaro and Herbert
Soriano, by no less than six others, including Emilio Senoto, Jr. They
came upon Mendoza engaged in a heated altercation with the victim
Calpito. When they reached Calpito, they pushed him and started beating
him up and his companion Jonathan Gosil. Four to five men manhandled
Calpito who kept on retreating and even went around Soriano's parked
jeep until he was cornered. Senoto then held Calpito's body from behind;
Ronnie, his left hand; and Salvador, his right hand, and they mauled him.
Calpito struggled to free himself but that proved futile and, instead, Ronnie
stabbed him once. It was only then that he was released and when he fell
down on his back, his attackers still kicked him. Only the arrival of some
policemen made some of the assailants stop and run away. However,
Ronnie, Salvador and Senoto, kept on kicking the victim and they were
restrained and arrested.
"Guided by the jurisprudential authorities heretofore cited, it
becomes ineluctable for the Court to conclude that Ronnie, Salvador and
Senoto acted in a conspiracy and may thus be held liable as co-principals
for the death of Calpito." 16
Overwhelming, such as it may have been thought of by the trial court,
evidence of conspiracy is not enough for an accused to bear and to respond to all
its grave legal consequences; it is equally essential that such accused has been
apprised when the charge is made conformably with prevailing substantive and
procedural requirements. Article III, Section 14, of the 1987 Constitution, in
particular, mandates that no person shall be held answerable for a criminal offense
without due process of law and that in all criminal prosecutions the accused shall
first be informed of the nature and cause of the accusation against him. 17 The right
to be informed of any such indictment is likewise explicit in procedural rules. 18 The
practice and object of informing an accused in writing of the charges against him
has been explained as early as the 1904 decision of the Court
in U .S. vs. Karelsen; 19 viz:
"First. To furnish the accused with such a description of the charge
against him as will enable him to make his defense; and second, to avail
himself of his conviction or acquittal for protection against a further
prosecution for the same cause, and third, to inform the court of the facts
alleged, so that it may decide whether they are sufficient in law to support
a conviction, if one should be had. (United States vs. Cruikshank, 92
U.S.,542).In order that this requirement may be satisfied, facts must be
stated, not conclusions of law. Every crime is made up of certain acts and
intent; these must be set forth in the complaint with reasonable
particularity of times, place, names (plaintiff and defendant),and
circumstances. In short, the complaint must contain a specific allegation
of every fact and circumstance necessary to constitute the crime
charged."
An information, in order to ensure that the constitutional right of the accused
to be informed of the nature and cause of his accusation is not violated, must state
the name of the accused; the designation given to the offense by the statute; a
statement of the acts or omissions so complained of as constituting the offense;
the name of the offended party; the approximate time and date of the commission
of the offense;.and the place where the offense has been committed. 20 In
embodying the essential elements of the crime charged, the information must set
forth the facts and circumstances that have a bearing on the culpability and liability
of the accused so that the accused can properly prepare for and undertake his
defense. One such fact or circumstance in a complaint against two or more
accused persons is that of conspiracy. Quite unlike the omission of an ordinary
recital of fact which, if not excepted from or objected to during trial, may be
corrected or supplied by competent proof, an allegation, however, of conspiracy,
or one that would impute criminal liability to an accused for the act of another or
others, is indispensable in order to hold such person, regardless of the nature and
extent of his own participation, equally guilty with the other or others in the
commission of the crime. Where conspiracy exists and can rightly be appreciated,
the individual acts done to perpetrate the felony becomes of secondary
importance, the act of one being imputable to all the others. 21 Verily, an accused
must know from the information whether he faces a criminal responsibility not only
for his acts but also for the acts of his co-accused as well.
A conspiracy indictment need not, of course, aver all the components of
conspiracy or allege all the details thereof, like the part that each of the parties
therein have performed, the evidence proving the common design or the facts
connecting all the accused with one another in the web of the conspiracy. Neither
is it necessary to describe conspiracy with the same degree of particularity
required in describing a substantive offense. It is enough that the indictment
contains a statement of the facts relied upon to be constitutive of the offense in
ordinary and concise language, with as much certainty as the nature of the case
will admit, in a manner that can enable a person of common understanding to know
what is intended, and with such precision that the accused may plead his acquittal
or conviction to a subsequent indictment based on the same facts. It is said,
generally, that an indictment may be held sufficient "if it follows the words of the
statute and reasonably informs the accused of the character of the offense he is
charged with conspiring to commit, or, following the language of the statute,
contains a sufficient statement of an overt act to effect the object of the conspiracy,
or alleges both the conspiracy and the contemplated crime in the language of the
respective statutes defining them." 22
The information charging herein appellants for the death of Jonathan
Calpito, as amended, has but simply stated:
"That on or about the 20th day of October 1994, in the City of
Baguio, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, being then armed with a knife, with intent to kill
and with treachery and taking advantage of their numerical superiority and
combined strength, did then and there willfully, unlawfully and feloniously
attack, assault and stab JONATHAN CALPITO Y CASTRO suddenly and
unexpectedly, without any warning whatsoever, inflicting upon him a stab
wound at the left thorax at the level of the 7th rib, left medclavicular line,
penetrating the pereduum and left ventricle causing left remothones of
700 cc and hemoperecuduum of 250 cc, which directly caused his death.
"CONTRARY TO LAW." 23
The opinion of the trial court to the effect that conspiracy may
be inferred from the allegation of abuse of superior strength and with the aid of
armed men, i.e.,that "...the above-named accused, being then armed with a knife,
with intent to kill ...and taking advantage of their numerical superiority and
combined strength, did then and there willfully, unlawfully and feloniously attack,
assault and stab JONATHAN CALPITO Y CASTRO ..." 24 is difficult to accept.
Conspiracy arises when two or more persons come to an agreement concerning
the commission of a felony and decide to commit it. Conspiracy comes to life at
the very instant the plotters agree, expressly or impliedly, to commit the felony and
forthwith to actually pursue it. 25 Verily, the information must state that the accused
have confederated to commit the crime or that there has been a community of
design, a unity of purpose or an agreement to commit the felony among the
accused. Such an allegation, in the absence of the usual usage of the words
"conspired" or "confederated" or the phrase "acting in conspiracy," must aptly
appear in the information in the form of definitive acts constituting conspiracy. In
fine, the agreement to commit the crime, the unity of purpose or the community of
design among the accused must be conveyed such aseither by the use of the term
"conspire" or its derivatives and synonyms or by allegations of basic facts
constituting the conspiracy. Conspiracy must be alleged, not just inferred, in the
information on which basis an accused can aptly enter his plea, a matter that is not
to be confused with or likened to the adequacy of evidence that may be required
to prove it. In establishing conspiracy when properly alleged, the evidence to
support it need not necessarily be shown by direct proof but may be inferredfrom
shown acts and conduct of the accused.
In the absence of conspiracy, so averred and proved as heretofore
explained, an accused can only be made liable for the acts committed by him alone
and this criminal responsibility is individual and not collective. 26 And so it is that
must be so held in this case. The conflicting claims of the prosecution and the
defense on who stabbed the victim is an issue that ultimately and unavoidably goes
into the question of whom to believe among the witnesses. This issue of credibility
requires a determination that is concededly best left to the trial court with its unique
position of having been enabled to observe that elusive and incommunicable
evidence of the deportment of witnesses on the stand. 27 Findings of the trial court,
following that assessment, must be given the highest degree of respect absent
compelling reasons to conclude otherwise. 28
The Court is not, at this time and in this instance, disposed to deviate from
the foregoing rule. In the first place, Lito Adjaro, the eyewitness in the stabbing of
Calpito, has steadfastly stood by, even on rebuttal, to his story on the commission
of the crime. A witness who testifies in a categorical, straightforward and
spontaneous manner, as well as remains consistent on cross and rebuttal
examination, is not likely to be an incredible witness. 29 Secondly, the defense has
failed to establish any ill motive on the part of Adjaro that would have prompted
him to testify wrongly against appellants. Where there is no evidence to indicate
that the prosecution witness has been actuated by any improper motive, it would
be hard to reject the supposition that a person will not prevaricate and cause
damnation to one who has brought him no harm. 30 Finally, Herbert Soriano and
the police, who have testified seeing the already wounded Calpito lying on the
ground and still being attacked, both corroborate Adjaro's positive identification of
appellants as the persons who did maul Calpito.
After positively pointing to appellants in open court to be the persons who
ganged up on Calpito, Adjaro testified on their respective participation's in the
commission of the crime; thus:
"PROSECUTOR:
"Q Now, you pointed to Emilio Senoto, Jr. as one of the persons who held
the deceased Jonathan Calpito. What part of the body of Jonathan
Calpito did he hold? llcd
"A His body, sir.

"Q How about Salvador Quitlong whom you also identified in Court. What
part of the body of Jonathan Calpito did he hold?
"A I saw him hold his hand.
"Q What hand was held by Salvador Quitlong?
"A Right hand, sir.
"Q How about Ronnie Quitlong?
"A His left hand.
"Q After Jonathan Calpito was held by these three persons and other,
what happened next?
"A They mauled ("binugbog") Jonathan Calpito.
"Q Did you notice what part of the body was hit and boxed by these three
persons?
"A His body and his face.
"Q What did Jonathan Calpito do, if any, when he is being held by these
three persons and others?
"A He was struggling, sir.
"Q Was he able to free himself from the helds (sic) of these persons?
"A No more, sir.
"Q What do you mean no more?
"A He was not able to free himself.
"Q Yes, why was he not able to free himself anymore?
"A They held him tightly, he could not struggle.
"Q And what happened next when you said he could no longer struggle?
"A They boxed him, and also stabbed him, sir.
"Q Did you see the person who stabbed him?
"A I saw sir.
"Q Will you be able to identify him?
"A Yes, sir.
"Q I will request you to again look inside the courtroom and point to the
person whom you saw stab Jonathan Calpito?
"WITNESS:
The person wearing white jacket.
"INTERPRETER:
Witness pointing to a gentleman inside the courtroom wearing
cream jacket who gave his name as Ronnie Quitlong." 31
Appellant Ronnie Quitlong was a principal by his own act of stabbing Calpito
that caused the latter's death. 32 Appellants Salvador Quitlong and Emilio Senoto,
Jr., were holding the hands of Calpito at the precise time that Ronnie Quitlong was
in the act of executing his criminal intent. Simultaneity, however, would not itself
demonstrate the concurrence of will or the unity of action and purpose that could
be a basis for collective responsibility of two or more individuals; 33 indeed, from
all indications, the incident would appear to have occurred at the spur of moment.
Appellants Salvador Quitlong and Emilio Senoto, Jr., shall therefore be held to be
mere accomplices conformably with Article 18 34 of the Revised Penal Code.
The crime committed was qualified by abuse of superiority. 35 While
superiority in number would not per se mean superiority in strength, enough proof
was adduced, however, to show that the attackers had cooperated in such a way
as to secure advantage of their superiority in strength certainly, out of proportion
to the means of defense available to the person attacked. 36
Treachery may not be here considered as a generic aggravating
circumstance although it might have ensured the commission of the crime. In order
that treachery may be taken as an aggravating circumstance, there must be proof
that the accused has consciously adopted a mode of attack to facilitate the
perpetration of the killing without risk to himself, i.e.,appellant Ronnie Quitlong in
this case. 37 No such proof has been adequately shown.
Under Article 248 of the Revised Penal Code, the crime of murder is
punishable by reclusion temporal maximum to death. There being neither
aggravating nor mitigating circumstances to appropriately appreciate in this case,
appellant Ronnie Quitlong, as principal, shall suffer the penalty of reclusion
perpetua.The indeterminate penalty of twenty (20) years of reclusion temporal,as
minimum to forty (40) years of reclusion perpetua,as maximum, has been imposed
by the trial court on the premise that reclusion perpetua is a divisible penalty. In
the Court's Resolution of 09 January 1995 clarifying its decision 38 in People
vs. Lucas, 39 the Court has said that —
". . . although Section 17 of R.A. No. 7659 has fixed the duration
of reclusion perpetua from twenty (20) years and one (1) day to forty (40)
years, there was no clear legislative intent to alter its original classification
as an indivisible penalty. It shall then remain as an indivisible
penalty." 40 prcd
The two accomplices, appellants Salvador Quitlong and Emilio Senoto,

Jr.,shall be subject to the imposition of the penalty next lower in degree
than reclusion temporal maximum to death or, accordingly, prision mayor in its
maximum period to reclusion temporal in its medium period. Absent any mitigating
or aggravating circumstance, the penalty that may be imposed is reclusion
temporal minimum. Applying the Indeterminate Sentence Law to them, each may
be held to suffer the indeterminate sentence of anywhere from prision
correccional in its maximum period to prision mayor in its medium period, as the
minimum penalty, to anywhere within the range of reclusion temporal minimum, as
the maximum penalty.
The trial court correctly imposed the payment of a civil indemnity of
P50,000.00 in favor of the heirs of the victim. The consequential (actual) damages
in the amount of P35,700.00 not having been substantiated, except for the amount
P12,000.00 paid to the memorial chapel, is disallowed. The award of moral
damages recoverable under Article 2219(1),in relation to Article 2206, of the Civil
Code is reduced from P100,000.00 to P20,000.00
WHEREFORE, appellant Ronnie Quitlong is found guilty of the crime of
murder for the killing of Jonathan Calpito and sentenced to suffer the penalty
of reclusion perpetua and further ordered to indemnify the heirs of the victim in the
amount of P50,000.00, to reimburse them the actual damages of P12,000.00 and
to pay moral damages of P50,000.00. Appellants Salvador Quitlong and Emilio
Senoto, Jr.,are found guilty as accomplices in the commission of the crime, and
each shall suffer the indeterminate sentence of nine (9) years and four (4) months
of prision mayor minimum period, as minimum penalty, to thirteen (13) years and
nine (9) months and ten (10) days of reclusion temporal minimum period, as
maximum penalty. Appellants Salvador Quitlong and Emilio Senoto, Jr.,are also
hereby held solidarity liable with appellant Ronnie Quitlong in the payment of the
damages hereinabove mentioned. Costs against appellants.
Let a copy of this Decision be furnished the Philippine National Police and
the Department of Justice in order that the other participants in the killing of
Jonathan Calpito, specifically Jesus Mendoza, be arrested and made to face the
force of the law. prcd
SO ORDERED.
Davide, Jr.,Bellosillo, Panganiban and Quisumbing, JJ ., concur.
||| (People v. Quitlong, G.R. No. 121562, [July 10, 1998], 354 PHIL 372-396)
EN BANC
[G.R. No. 111399. September 27, 1996.]
ODON PECHO, petitioner,vs.PEOPLE OF THE PHILIPPINES and

the SANDIGANBAYAN, respondents.
A.M. Navarro Law Office for petitioner.

The Solicitor General for respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE

ACCUSED; TO BE INFORMED OF THE NATURE AND CAUSE OF
ACCUSATION; ORIGIN AND OBJECTIVES. — On the assumption that the
prosecution's evidence had satisfied the quantum of proof for conviction for the
complex crime of attempted estafa through falsification of public and commercial
documents, there is absolutely no merit in the petitioner's claim that he could not
be convicted of the said crime without offending his right to be informed of the
nature and cause of the accusation against him, which is guaranteed by the Bill of
Rights. Such right, an ancient bulwark of the liberties of men, has its origin in the
Bill of Rights which the people of Great Britain demanded and received from the
Prince and Princess of Orange on 13 February 1688. It was adopted by
the Constitution of the United States and was extended to the Philippines by Act
No. 235, or the Philippine Bill of 1902. It was later carried into the Jones Law and,
ultimately, enshrined in the Constitutions of 1935, 1973, and 1987. It has the
following objectives: First. To furnish the accused with such a description of the
charge against him as will enable him to make his defense; second, to avail himself
of his conviction or acquittal for protection against a further prosecution for the
same cause; and third, to inform the court of the facts alleged, so that it may decide
whether they are sufficient in law to support a conviction, if one should be had
(United States vs. Cruikshank, 92 U.S. 542).In order that this requirement may be
satisfied, facts must be stated; not conclusions of law. Every crime is made up of
certain acts and intent; these must be set forth in the complaint with reasonable
particularity of time, place, names (plaintiff or defendant),and circumstances. In
short, the complaint must contain a specific allegation of every fact and
circumstance necessary to constitute the crime charged. ASHaTc
2. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF

OFFENSES; NATURE AND CAUSE OF ACCUSATION; DETERMINED BY THE
ACTUAL RECITAL OF FACTS STATED IN THE INFORMATION OR
COMPLAINT. — What determines the real nature and cause of accusation against
an accused is the actual recital of facts stated in the information or complaint and
not the caption or preamble of the information or complaint nor the specification of
the provision of law alleged to have been violated, they being conclusions of law.
An incorrect caption is not a fatal mistake. It follows then that an accused may be
convicted of a crime which, although not the one charged, is necessarily included
in the latter as provided by Section 4, Rule 120 of the Rules of Court. The
succeeding Section 5 prescribes the rule in determining when an offense includes
or is included in another. We have shown in the challenged decision why the
complex crime of attempted estafa through falsification of public and commercial
documents is included in the offense charged. Moreover, we held that the
information in this case "can also be considered as charging two offenses: the
violation of Section 3(e) of R.A. No. 3019 and the complex crime of attempted
estafa through falsification of official and commercial documents," and since the
petitioner failed to object before trial to such duplicity, he could be validly convicted
of both or either of the offenses charged and proved.
3. ID.;EVIDENCE; CIRCUMSTANTIAL EVIDENCE; WHEN SUFFICIENT
TO CONVICT. — Under Section 4, Rule 133 of the Rules of Court, circumstantial
evidence would be sufficient to convict if (a) there is more than one circumstance;
(b) the facts from which the inferences are derived are proven; and (c) the
combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt. As jurisprudentially formulated, a judgment of conviction based
on circumstantial evidence can be upheld only if the circumstances proven
constitute an unbroken chain which leads to one fair and reasonable conclusion
pointing to the accused, to the exclusion of all others, as the guilty person, i.e.,the
circumstances proven must be consistent with each other, consistent with the
hypothesis that the accused is guilty, and at the same time inconsistent with any
other hypothesis except that of guilty.
4. ID.;ID.;ID.;PROOF BEYOND REASONABLE DOUBT; REQUIRED TO
OVERCOME ACCUSED'S RIGHT TO BE PRESUMED INNOCENT. — The
evidence for the prosecution likewise failed to prove that the petitioner (1)
personally represented himself as an agent of Eversun Commercial Trading; (2)
knew of the falsity of any of the public and commercial documents in question; and
(3) had, at any time, possession of all or some of the said documents. Otherwise
stated, there is no sufficient circumstantial evidence to prove conspiracy between
the petitioner and Catre to commit the complex crime of estafa through falsification
of public and commercial documents. Neither is there evidence of petitioner's
active participation in the commission of the crime. The concordant combination
and cumulative effect of the acts of the petitioner as proven by the prosecution's
evidence fails to satisfy the requirements of Section 4, Rule 133 of the Rules of
Court. There is reasonable doubt as to his guilt. And since his constitutional right
to be presumed innocent until proven guilty can be overthrown only by proof
beyond reasonable doubt, the petitioner must then be acquitted even though his
innocence may be doubted.
5. CRIMINAL LAW; CONSPIRACY; DEFINED; WHEN PRESENT. — There
is conspiracy when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Direct proof of previous agreement
to commit a crime is not necessary. Conspiracy may be deduced from the mode
and manner in which the offense was perpetrated, or inferred from the acts of the
accused themselves when such point to a joint purpose and design, concerted
action, and community of interest. It is, however, settled that the same degree of
proof required for establishing the crime is likewise required to support a finding of
conspiracy. In other words, conspiracy must be shown to exist as clearly and as
convincingly as the commission of the offense itself in order to uphold the
fundamental principle that no one shall be found guilty of a crime except upon proof
beyond reasonable doubt.
6. ID.;ID.;THE ACT OF ONE IS THE ACT OF ALL. — The information
charges the petitioner and his co-accused Joe Catre as principals who
"conspir[ed],confabulat[ed],conniv[ed],confederat[ed],and mutually help[ed] one
another," with Catre "representing himself to be a representative of Everson
Commercial Trading of Cotabato City, a corporation, firm or partnership which
turned out to be non-existent, fake or fictitious." The evidence for the prosecution,
as admitted by the respondent, only showed that it was Catre who possessed the
falsified documents, contracted the services of Calica, and delivered the
documents to the latter for processing. In the absence of satisfactory explanation,
Catre, being the one in possession of the forged documents, is presumed to be
the forger. Catre, however, could not provide the explanation because only the
petitioner was tried. The information states that his address is "unknown," and the
record does not show that a warrant for his arrest was issued. The only warrant of
arrest that was issued was that for the petitioner. Assuming that such evidence
and the others adduced by the prosecution are to be admitted to prove the
commission of the crime, a prima facie case enough to prove the guilt of Catre with
moral certainty was duly established against Catre as a principal. Accordingly, if
conspiracy were proven, the petitioner would be equally guilty of the offense
proved. For, in a conspiracy, every act of one of the conspirators in furtherance of
a common design or purpose of such a conspiracy is, in contemplation of law, the
act of each of them.
7. ID.;ID.;TO BE A PARTY THERETO, THE CONSPIRATOR SHOULD
HAVE PERFORMED SOME OVERT ACT AS A DIRECT OR INDIRECT
CONTRIBUTION IN THE EXECUTION OF THE CRIME. — It is also essential for
one to be a party to a conspiracy as to be liable for the acts of the others that there
be intentional participation in the transaction with a view to the furtherance of the
common design. Except when he is the mastermind in a conspiracy, it is necessary
that a conspirator should have performed some overt act as a direct or indirect
contribution in the execution of the crime planned to be committed. The overt act
may consist of active participation in the actual commission of the crime itself, or it
may consist of moral assistance to his co-conspirators by being present at the
commission of the crime or by exerting moral ascendancy over the other co-
conspirators.IDaCcS
RESOLUTION
DAVIDE, JR., J : p
In our decision of 14 November 1994, we modified the appealed judgment

of the Sandiganbayan in Criminal Case No. 14844 by holding the petitioner guilty
of the complex crime of attempted estafa through falsification of official and
commercial documents, and sentencing him to suffer an indeterminate penalty
ranging from two (2) years, four (4) months, and one (1) day of prision
correccional as minimum to ten (10) years and one (1) day of prision mayor as
maximum and to pay a fine of Two Thousand Pesos (P2,000.00).
In short, we held that although the petitioner could not be convicted of the
crime charged, viz., violation of Section 3(e) of R.A. No. 3019, as amended —
because the said section penalizes only consummated offenses and the offense
charged in this case was not consummated — he could, nevertheless, be
convicted of the complex crime of attempted estafa through falsification of official
and commercial documents, which is necessarily included in the crime charged.
Unable to accept our verdict, the petitioner seasonably filed a motion for
reconsideration on the ground that after having been acquitted of the violation of
Section 3(e) of R.A. No. 3019, a special law, he could not be convicted anymore
of attempted estafa through falsification of official and commercial documents, an
offense punishable under the Revised Penal Code, a general law; otherwise, the
constitutional provision on double jeopardy would be violated. In other words, his
acquittal of the crime charged precludes conviction for the complex crime of
attempted estafa through falsification of official and commercial documents,
because both offenses arose from the same overt act as alleged in the information
in Criminal Case No. 14844.
In its Comment on the motion for reconsideration signed only by Assistant
Solicitor General Romeo C. de la Cruz and Solicitor Josette Sonia Holgado-
Marcilla, the Office of the Solicitor General disagrees with the petitioner and
asserts that the rule on double jeopardy cannot be successfully invoked in this
case considering that no new information for estafa through falsification of public
document was filed against the petitioner; only one information was filed against
him and his co-accused. For double jeopardy to exist, there must be such new
information and the accused must be able to show that (1) he has been previously
brought to trial, (2) in a court of competent jurisdiction, (3) upon a valid complaint
or information sufficient in form and substance, (4) for the same offense or an
attempt to or frustration thereof as that charged in the new information, and that
(5) the case has been dismissed or terminated without his consent or after he had
pleaded to the information but before judgment was rendered. 1
Nevertheless, the Office of the Solicitor General joins the petitioner in the
latter's plea for his acquittal, but for another ground, namely, insufficiency of
evidence.
In the resolution of 22 August 1995, we directed the Solicitor General to
inform the Court whether he agrees with the recommendation of Assistant Solicitor
General De la Cruz and Solicitor Holgado-Marcilla. In his Manifestation of 14
September 1995, the Solicitor General not only expressed full agreement with the
said recommendation, but even added the following observations:
10. After reading the Court's Decision, the Solicitor General has noted that
petitioner's conviction is based on circumstantial evidence.
11. The law and a host of the Court's ruling declare that circumstantial
evidence is sufficient for conviction if the following conditions
concur:
(1) There is more that one circumstance;
(2) The facts from which the inferences are derived are proven; and
(3) The combination of all the circumstances is such as to produce
a conviction beyond reasonable doubt (Section 3, Rule 133,
Rules of Court).
12. In this case, it should be stressed that the inference that petitioner
falsified documents appears to be based on another inference,
i.e.,that he was in possession of the same because he
accompanied his co-accused Catre in the transactions. However,
other than accompanying Catre, there is no evidence on record that
petitioner had custody of the falsified documents.
13. As to the conspiracy angle, there is likewise no showing that petitioner
interceded for Catre. In fact, it was Catre who talked to Calica. (p.
19-20, TSN, August 26, 1991) Neither was it shown that petitioner
had a hand in the processing of the import entry declaration for the
release of the shipment from the Bureau of Customs. It was not
also proven that he was instrumental in the approval of the import
entry declaration.
14. The elements of conspiracy, like the physical acts constituting the
crime itself, must be proven beyond reasonable doubt. (People vs.
Manuel, 234 SCRA 532).To hold an accused guilty as co-principal
by reason of conspiracy, it must be shown that he performed an
overt act in pursuance or furtherance of the conspiracy. (People vs.
Roxas, 241 SCRA 369).In this regard, it is respectfully submitted
that there is no overt act conclusively attributable to petitioner
which would pin him down as a co-conspirator.
15. Thus, it is the inexorable duty of the Solicitor General to recommend
petitioner's acquittal, as he so recommends, inasmuch as the
People was not able to adduce evidence sufficient to overcome the
constitutional presumption of petitioner's innocence.
We then required the parties to submit their respective memoranda on the
following issues:
(a) the sufficiency of the evidence for the complex crime of attempted
estafa through falsification of public and commercial documents,
and
(b) the validity of the conviction therefor under an information for the
violation of Section 3(e) of R.A. No. 3019, as amended, vis-a-
vis the constitutional right of the accused to be informed of the
nature and cause of the accusation against him.
In their respective memoranda, the petitioner and the Office of the Solicitor
General are one in asserting that the petitioner could not be convicted based
entirely on circumstantial evidence because of the failure of the prosecution to
satisfy the requisites set forth in Section 4, Rule 133 of the Rules of Court, namely,
(a) there is more than one circumstance; (b) the facts from which the inferences
are derived are proven; and (c) the combination of all the circumstances is such
as to produce a conviction beyond reasonable doubt. The petitioner further cited
portions of the transcripts of the stenographic notes of the testimony of Customs
Broker Constantino Calica which prove that it was Catre alone who made the
introduction to Calica that they were agents of Eversun Commercial Trading, and
that it was Catre who did all the talking and directly transacted with Calica
regarding the terms and conditions of the particular engagement and who actually
delivered the documents to him. There is no evidence that the petitioner had a
hand in the processing of the import entry declaration for the release of the
shipment from the Bureau of Customs or was instrumental in the approval of the
import entry declaration. Thus:
Q Now, did Mr. Odon Pecho actually engage your services?
A They are two, sir, Mr. Joe Catre and Mr. Odon Pecho.
Q Who actually transacted with you with regards to your services, is it Mr.
Catre or Mr. Pecho?
A Mr. Joe Catre, sir.
Q So it was Joe Catre?
A Yes, sir.
Q And not Odon Pecho, is that right?
A Well, he is the companion of Mr. Catre and they introduced themselves
to me that they are the authorized representative of the importer.
Q That is right. Who introduced to you?
A Mr. Catre was the one who talks [sic] to me, sir.
Q But in your testimony, the person who delivered to you the documents,
the bill of lading, the commercial invoices, the packing list, the
importer's sworn statement, etc. which was made the basis of the,
of your preparation for the processing of the import entry, who
delivered to you these documents that you mentioned?
A Mr. Catre, sir.
Q And who talked to you about the terms and conditions of this
engagement or contracts?
A Mr. Catre, sir.
Q And not Mr. Odon Pecho?
A Yes, sir.
Q Who actually delivered to you the documents, Mr. Catre or Mr. Pecho?
A It was Mr. Catre, sir, he was the one handling the case.
AJ ESCAREAL
Q [To] Whom did you talk first?
A Mr. Catre, Your Honor, he was the one handling the case, the
documents, Your Honor.
Q Do you know how they introduced themselves to you?
A That is the only thing that I remember Your Honor that they came to my
office and told me that they are the importer's representatives and
that they are engaging my services.
Q Who said that?
A Mr. Catre, Your Honor.
Q How about Mr. Pecho?
A No, Your Honor.
Q Did he say anything?
A At that time your Honor, it was Mr. Catre who was doing that talking.
Q Did Mr. Catre give his name to you?
A Yes, Your Honor.
Q How did he introduce himself?
A That he is Mr. Joe Catre, Your Honor.
Q How about his companion, did his companion introduce himself to you
or he was introduced by Mr. Catre to you?
A He did not introduce himself to me Your Honor.
Q So during that meeting you do not know that the name of the companion
of Mr. Catre is Odon Pecho.
A Yes, your Honor.
Q And how did your son attend to it?
A Two days after Your Honor, Mr. Catre called our office to assist and help
them in the preparation of the cargo at the arrastre operator
because that is usually being done by the broker when the
shipment goes for examination. (t.s.n.,Hearing of August 26, 1991)
As to the second issue, the Office of the Solicitor General rejects the theory
of the petitioner and submits that the information in this case contains the essential
ingredients of estafa through falsification of public and commercial documents;
therefore, assuming there is sufficient evidence, the petitioner could be convicted
of the complex crime of attempted estafa through falsification of public and
commercial documents without violating Section 14(2), Article III of
the Constitution on the right of the accused to be informed of the nature and cause
of the accusation against him.
I
We shall first take up the second issue since it involves a constitutional right
of the accused.
On the assumption that the prosecution's evidence had satisfied the
quantum of proof for conviction for the complex crime of attempted estafa through
falsification of public and commercial documents, there is absolutely no merit in
the petitioner's claim that he could not be convicted of the said crime without
offending his right to be informed of the nature and cause of the accusation against
him, which is guaranteed by the Bill of Rights. 2 Such right, an ancient bulwark of
the liberties of men, has its origin in the Bill of Rights which the people of Great
Britain demanded and received from the Prince and Princess of Orange on 13
February 1688. It was adopted by the Constitution of the United States and was
extended to the Philippines by Act No. 235, or the Philippine Bill of 1902. 3 It was
later carried into the Jones Law and, ultimately, enshrined in the Constitutions of
1935, 1973, and 1987. It has the following objectives:
First. To furnish the accused with such a description of the charge
against him as will enable him to make his defense; second, to avail
himself of his conviction or acquittal for protection against a further
prosecution for the same cause; and third, to inform the court of the facts
alleged, so that it may decide whether they are sufficient in law to support
a conviction, if one should be had (United States vs. Cruikshank, 92 U.S.
542).In order that this requirement may be satisfied, facts must be stated;
not conclusions of law. Every crime is made up of certain acts and intent:
these must be set forth in the complaint with reasonable particularity of
time, place, names (plaintiff or defendant),and circumstances. In short, the
complaint must contain a specific allegation of every fact and
circumstance necessary to constitute the crime charged. 4
Conformably therewith, the Rules of Court has prescribed the appropriate rules. 5
What determines the real nature and cause of accusation against an accused
is the actual recital of facts stated in the information or complaint and not the
caption or preamble of the information or complaint nor the specification of the
provision of law alleged to have been violated, they being conclusions of
law. 6 An incorrect caption is not a fatal mistake. 7
It follows then that an accused may be convicted of a crime which, although
not the one charged, is necessarily included in the latter. Section 4, Rule 120 of
the Rules of Court thus provides:
SEC. 4. Judgment in case of variance between allegation and
proof. — When there is variance between the offense charged in the
complaint or information, and that proved or established by the evidence,
and the offense as charged is included in or necessarily includes the
offense proved, the accused shall be convicted of the offense proved
included in that which is charged, or of the offense charged included in
that which is proved.
The succeeding Section 5 prescribes the rule in determining when an
offense includes or is included in another. We have shown in the challenged
decision why the complex crime of attempted estafa through falsification of public
and commercial documents is included in the offense charged. Moreover, we held
that the information in this case "can also be considered as charging two offenses:
the violation of Section 3(e) of R.A. No. 3019 and the complex crime of attempted
estafa through falsification of official and commercial documents," and since
the petitioner failed to object before trial to such duplicity, 8 he could be validly
convicted of both or either of the offenses charged and proved. 9
II
We shall now turn to the first issue: whether the evidence adduced by the
prosecution had established beyond reasonable doubt the guilt of the petitioner for
the complex crime of attempted estafa through falsification of public and
commercial documents. In light of the consistent and persistent negative stance of
the Office of the Solicitor General, personally confirmed and reinforced by the
Solicitor General in his separate Manifestation, we re-evaluated the evidence.
In our decision of 14 November 1994, we based the conviction of the
petitioner on conspiracy.
The question that logically crops up then is not whether the combination of
the circumstantial evidence proved in this case against the petitioner had
established beyond reasonable doubt that he is guilty of the complex crime of
attempted estafa through falsification of public and commercial documents, as
asseverated by him and the public respondent. Rather, the question is whether the
prosecution had discharged its duty to establish conspiracy between the petitioner
and Catre.
The information 10 charges the petitioner and his co-accused Joe Catre as
principals 11 who "conspir[ed], confabulat[ed], conniv[ed], confederat[ed], and
mutually help[ed] one another," with Catre "representing himself to be a
representative of Eversun Commercial Trading of Cotabato City, a corporation,
firm or partnership which turned out to be non-existent, fake or fictitious." The
evidence for the prosecution, as admitted by the respondent, only showed that it
was Catre who possessed the falsified documents, contracted the services of
Calica, and delivered the documents to the latter for processing. In the absence of
satisfactory explanation, Catre, being the one in possession of the forged
documents, is presumed to be the forger. 12 Catre, however, could not provide the
explanation because only the petitioner was tried. The information states that his
address is "unknown," and the record does not show that a warrant for his arrest
was issued. The only warrant of arrest that was issued was that for the
petitioner. 13 Assuming that such evidence and the others adduced by the
prosecution are to be admitted to prove the commission of the crime, aprima
facie case enough to prove the guilt of Catre with moral certainty was duly
established against Catre as a principal. Accordingly, if conspiracy were proven,
the petitioner would be equally guilty of the offense proved. For, in a conspiracy,
every act of one of the conspirators in furtherance of a common design or purpose
of such a conspiracy is, in contemplation of law, the act of each of them. 14
There is conspiracy when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. 15 Direct proof of
previous agreement to commit a crime is not necessary. Conspiracy may be
deduced from the mode and manner in which the offense was perpetrated, or
inferred from the acts of the accused themselves when such point to a joint
purpose and design, concerted action, and community of interest. 16 It is, however,
settled that the same degree of proof required for establishing the crime is likewise
required to support a finding of conspiracy. It other words, conspiracy must be
shown to exist as clearly and as convincingly as the commission of the offense
itself in order to uphold the fundamental principle that no one shall be found guilty
of a crime except upon proof beyond reasonable doubt. 17
It is also essential for one to be a party to a conspiracy as to be liable for the
acts of the others that there be intentional participation in the transaction with a
view to the furtherance of the common design. 18 Except when he is the
mastermind in a conspiracy, it is necessary that a conspirator should have
performed some overt act as a direct or indirect contribution in the execution of the
crime planned to be committed. 19 The overt act may consist of active participation
in the actual commission of the crime itself, or it may consist of moral assistance
to his co-conspirators by being present at the commission of the crime or by
exerting moral ascendancy over the other co-conspirators. 20
Since conspiracy must be established by proof beyond reasonable doubt,
then the next inquiry would be whether the prosecution was able to adduce such
proof against the petitioner. It is in this respect that we agree with the People and
the petitioner that the prosecution had only circumstantial evidence against the
petitioner.
Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence
would be sufficient to convict if (a) there is more than one circumstance; (b) the
facts from which the inferences are derived are proven; and (c) the combination of
all the circumstances is such as to produce a conviction beyond reasonable doubt.
As jurisprudentially formulated, a judgment of conviction based on circumstantial
evidence can be upheld only if the circumstances proven constitute an unbroken
chain which leads to one fair and reasonable conclusion pointing to the accused,
to the exclusion of all others, as the guilty person, i.e., the circumstances proven
must be consistent with each other, consistent with the hypothesis that the
accused is guilty, and at the same time inconsistent with any other hypothesis
except that of guilty. 21
In the instant case, all that the prosecution was able to prove insofar as the
petitioner is concerned is that he and co-accused Catre are from Surigao del Norte;
that he accompanied Catre in contracting the services of customs broker
Constantino Calica; and that he also was with Catre when the latter went with
Dennis Calica, son of Constantino Calica, to the Manila International Container
Port. In all these instances, however, it was Catre who transacted the business
and did all the talking. As a matter of fact, the petitioner was not even introduced
to Calica. As recapitulated by the Office of the Solicitor General in its
Memorandum:
[T]here is no evidence that petitioner interceded for Catre.
Prosecution witness Calica testified that it was Catre and not petitioner,
who introduced themselves as agents of Eversun Commercial Trading.
He also testified that it was Catre who did all the talking and directly
transacted with him (Calica) regarding the terms and conditions of the
particular engagement and it was also Catre, and not petitioner, who
actually delivered the documents to him (tsn, August 26, 1991).There is
no evidence that petitioner had a hand in the processing of the import
entry declaration for the release of the shipment from the Bureau of
Customs. There is also no evidence that petitioner was instrumental in the
approval of the import entry declaration. In short, there is no showing that
petitioner performed an overt act in furtherance of alleged conspiracy. 22
The evidence for the prosecution likewise failed to prove that the petitioner
(1) personally represented himself as an agent of Eversun Commercial Trading;
(2) knew of the falsity of any of the public and commercial documents in question;
and (3) had, at any time, possession of all or some of the said documents.
Otherwise stated, there is no sufficient circumstantial evidence to prove
conspiracy between the petitioner and Catre to commit the complex crime of estafa
through falsification of public and commercial documents. Neither is there
evidence of petitioner's active participation in the commission of the crime. The
concordant combination and cumulative effect of the acts of the petitioner as
proven by the prosecution's evidence fails to satisfy the requirements of Section 4,
Rule 133 of the Rules of Court. There is reasonable doubt as to his guilt. And since
his constitutional right to be presumed innocent until proven guilty 23 can be
overthrown only byproof beyond reasonable doubt, 24 the petitioner must then be
acquitted even though his innocence may be doubted. 25
WHEREFORE, the petitioner's motion for reconsideration is GRANTED. Our
decision of 14 November 1994 is SET ASIDE, and another is hereby rendered
REVERSING the challenged decision of 28 June 1993 and resolution of 12 August
1993 of the Sandiganbayan in Criminal Case No. 14844 and ACQUITTING
petitioner ODON PECHO of the complex crime of attempted estafa through
falsification of official and commercial documents, without, however, prejudice to
any appropriate administrative action which his office may take against him as may
be warranted by the circumstances in this case.
SO ORDERED.
Narvasa, C.J.,Padilla, Regalado, Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Francisco, Hermosisima, Jr.,Panganiban and Torres, Jr.,JJ., concur.
Mendoza, J., on leave.
||| (Pecho v. People, G.R. No. 111399, [September 27, 1996], 331 PHIL 1-20)
EN BANC
[G.R. No. L-65952. July 31, 1984.]

LAURO G. SORIANO, JR., petitioners, vs. THE HONORABLE
SANDIGANBAYAN AND THE PEOPLE OF THE
PHILIPPINES, respondents.
Dakila F. Castro for petitioner.

The Solicitor General for respondents.
DECISION
ABAD SANTOS, J : p
The principal issue in this petition to review a decision of the

Sandiganbayan is whether or not the preliminary investigation of a criminal
complaint conducted by a Fiscal is a "contract or transaction" so as to bring it
within the ambit of Section 3 (b) of Republic Act No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act.
The factual background is as follows:
Thomas N. Tan was accused of qualified theft in a complaint lodged with
the City Fiscal of Quezon City. The case was docketed as I.S. No. 82-2964 and
assigned for investigation to the petitioner who was then an Assistant City
Fiscal. In the course of the investigation the petitioner demanded P4,000.00
from Tan as the price for dismissing the case. Tan reported the demand to the
National Bureau of Investigation which set up an entrapment. Because Tan was
hard put to raise the required amount only P2,000.00 in bills were marked by
the NBI which had to supply one-half thereof. The entrapment succeeded and
an information was filed with the Sandiganbayan in Criminal Case No. 7393
which reads as follows:
"The undersigned Tanodbayan Special Prosecutor accuses
LAURO G. SORIANO, for Violation of Section 3, paragraph (b)
of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, committed as follows:
That on or about the 21st day of March 1983, at Quezon
City, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, a public officer, being then and still is
an Assistant City Fiscal of the Quezon City Fiscal's Office, detailed
as the Investigating Fiscal in the case of MARIANNE Z.
LACAMBRA versus THOMAS N. TAN, docketed as I.S. No. 82-
2964, for Qualified Theft, taking advantage of his official position
and with grave abuse of authority, did then and there willfully,
unlawfully and feloniously demand and request from Thomas N.
Tan the amount of FOUR THOUSAND PESOS (P4,000.00)
Philippine Currency, and actually received from said Thomas N.
Tan the amount of TWO THOUSAND PESOS (P2,000.00)
Philippine Currency, in consideration for a favorable resolution by
dismissing the above-mentioned case, wherein said accused has
to intervene in his official capacity as such Investigating Fiscal.
CONTRARY TO LAW.
Manila, Philippines, March 22, 1983.
(SGD.) EDGARDO C. LABELLA
Special Prosecutor"
After trial the Sandiganbayan rendered a decision with the following
dispositive portion:
"WHEREFORE, the Court finds accused Lauro G. Soriano, Jr.,
GUILTY beyond reasonable doubt, as Principal, in the Information, for
Violation of Section 3, paragraph (b), of Republic Act No. 3019, as
amended, otherwise known as the Anti-Graft and Corrupt Practices Act,
and hereby sentences him to suffer the indeterminate penalty of
imprisonment ranging from SIX (6) YEARS and ONE (1) MONTH, as
minimum, to NINE (9) YEARS and ONE (1) DAY, as maximum; to suffer
perpetual disqualification from public office; to suffer loss of all retirement
or gratuity benefits under any law; and, to pay costs.
"Of the sum of Two Thousand Pesos (P2,000.00) used in the
entrapment operations, and which was fully recovered from the accused,
One Thousand Pesos (P1,000.00) shall be returned to private
complainant Thomas N. Tan, and the other half, to the National Bureau of
Investigation, National Capital Region."
A motion to reconsider the decision was denied by the Sandiganbayan;
hence the instant petition.
The petitioner has raised several legal questions plus one factual
question. The latter is to the effect that the Sandiganbayan convicted him on
the weakness of his defense and not on the strength of the prosecution's
evidence, This claim is not meritorious not only because it is not for Us to review
the factual findings of the court a quo but also because a reading of its decision
shows that it explicitly stated the facts establishing the guilt of the petitioner and
the competence of the witnesses who testified against him.
As stated above, the principal issue is whether or not the investigation
conducted by the petitioner can be regarded as a "contract or transaction"
within the purview of Sec. 3 (b) of R.A. No. 3019. On this issue the petition is
highly impressed with merit.
The afore-mentioned provision reads as follows:
"SEC. 3. Corrupt practices of public officers. — In addition to acts
or omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful: prcd
(a) . . .
(b) Directly or indirectly requesting or receiving any gift, present,
share, percentage, or benefit, for himself or for any other person, in
connection with any contract or transaction between the Government and
any other party, wherein the public officer in his official capacity has to
intervene under the law."
The petitioner states:
"Assuming in gratia argumenti, petitioner's guilt, the facts make out
a case of Direct Bribery defined and penalized under the provision of
Article 210 of the Revised Penal Code and not a violation of Section 3,
subparagraph (b) of Rep. Act 3019, as amended.
"The evidence for the prosecution clearly and undoubtedly support,
if at all, the offense of Direct Bribery, which is not the offense charged and
is not likewise included in or is necessarily included in the offense
charged, which is for violation of Section 3, subparagraph (b) of Rep. Act
3019, as amended. The prosecution showed that: the accused is a public
officer; in consideration of P4,000.00 which was allegedly solicited,
P2,000.00 of which was allegedly received, the petitioner undertook or
promised to dismiss a criminal complaint pending preliminary investigation
before him, which may or may not constitute a crime; that the act of
dismissing the criminal complaint pending before petitioner was related to
the exercise of the function of his office. Therefore, it is with pristine clarity
that the offense proved, if at all, is Direct Bribery." (Petition, p. 5.)
Upon the other hand, the respondents claim:
"A reading of the above-quoted provision would show that the term
'transaction' as used thereof is not limited in its scope or meaning to a
commercial or business transaction but includes all kinds of transaction,
whether commercial, civil or administrative in nature, pending with the
government. This must be so, otherwise, the Act would have so stated in
the 'Definition of Terms', Section 2 thereof. But it did not, perforce leaving
no other interpretation than that the expressed purpose and object is to
embrace all kinds of transaction between the government and other party
wherein the public officer would intervene under the law." (Comment, p.
8.)
It is obvious that the investigation conducted by the petitioner was not
a contract. Neither was it a transaction because this term must be construed as
analogous to the term which precedes it. A transaction, like a contract, is one
which involves some consideration as in credit transactions and this element
(consideration) is absent in the investigation conducted by the petitioner.
In the light of the foregoing, We agree with the petitioner that it was error
for the Sandiganbayan to have convicted him of violating Sec. 3 (b) of R.A. No.
3019.
The petitioner also claims that he cannot be convicted of bribery under
the Revised Penal Code because to do so would be violative of his
constitutional right to be informed of the nature and cause of the accusation
against him. Wrong. A reading of the information which has been reproduced
herein clearly makes out a case of bribery so that the petitioner cannot claim
deprivation of the right to be informed.
IN THE LIGHT OF THE FOREGOING, the judgment of the
Sandiganbayan is modified in that the petitioner is deemed guilty of bribery as
defined and penalized by Article 210 of the Revised Penal Code and is hereby
sentenced to suffer an indeterminate penalty of six (6) months of arresto mayor,
as minimum, to two (2) years of prision correccional, as maximum, and to pay
a fine of Two Thousand (P2,000.00) Pesos. The rest of the judgment is hereby
affirmed. Costs against the petitioner. Cdpr
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr.,
Guerrero, Melencio-Herrera, Plana, Escolin Relova, Gutierrez, Jr., De la
Fuente and Cuevas, JJ.,concur.
(Soriano, Jr. v. Sandiganbayan, G.R. No. L-65952, [July 31, 1984], 216 PHIL
|||
177-182)
SECOND DIVISION
[G.R. No. L-45667. June 20, 1977.]
MANUEL BORJA, petitioner, vs. HON. RAFAEL T. MENDOZA,

Judge of the Court of First Instance of Cebu (Branch VI) and
HON. ROMULO R. SENINING, Judge of the City Court of Cebu
(Branch I), respondents.
Hermis I. Montecillo for petitioner.

Solicitor General Estelito P. Mendoza, Assistant Solicitor Jose F.
Racela, Jr. and Solicitor Carlos N. Ortega for respondents.
DECISION
FERNANDO, J : p
The jurisdictional infirmity imputed to respondent Judge Romulo R.

Senining of the City Court of Cebu which was not remedied by respondent
Judge Rafael T. Mendoza of the Court of First Instance of Cebu in this certiorari
proceeding was the absence of an arraignment of petitioner Manuel Borja, who
was accused of slight physical injuries. This notwithstanding, respondent Judge
Senining proceeded with the trial in absentia and thereafter, in a decision
promulgated on August 18, 1976, found him guilty of such offense and
sentenced him to suffer imprisonment for a period of twenty days of arresto
menor. 1 Thereafter, an appeal was duly elevated to the Court of First Instance
of Cebu presided by respondent Judge Mendoza. 2 It was then alleged that
without any notice to petitioner and without requiring him to submit his
memorandum, a decision on the appealed case was rendered on November
16, 1976 affirming the judgment of the City Court. It is the contention of
petitioner that the failure to arraign him is violative of his constitutional right to
procedural due process, 3 more specifically of his right to be informed of the
nature and cause of the accusation against him and of his right to be heard by
himself and counsel. 4 There was thus, at the very least, a grave abuse of
discretion. The Solicitor General, 5 when asked to comment, agreed that the
procedural defect was of such gravity as to render void the decision of the City
Court affirmed by the Court of First Instance. The comment was considered as
answer, with the case being submitted for decision.
Respect for the constitutional rights of an accused as authoritatively
construed by this Court, duly taken note of in the comment of the Solicitor
General, thus calls for the grant of the writ of certiorari prayed for.
1. The plea of petitioner to nullify the proceedings had in the criminal case
against him finds support in the procedural due process mandate of the
Constitution. It requires that the accused be arraigned so that he may be
informed as to why he was indicted and what penal offense he has to face, to
be convicted only on a showing that his guilt is shown beyond reasonable doubt
with full opportunity to disprove the evidence against him. Moreover, the
sentence to be imposed in such a case is to be in accordance with a valid
law. 6 This Court, in People v. Castillo, 7 speaking through Justice De Joya and
following the language of the American Supreme Court, identified due process
with the accused having "been heard in a court of competent jurisdiction, and
proceeded against under the orderly processes of law, and only punished after
inquiry and investigation, upon notice to him, with an opportunity to be heard,
and a judgment awarded with the authority of a constitutional law, . . . ." 8 An
arraignment thus becomes indispensable as the means "for bringing the
accused into court and notifying him of the cause he is required to meet . .
." 9 Its importance was stressed by Justice Moreland as early as 1916 in the
leading case of United States v. Binayoh. 10 He pointed out that upon the
accused being arraigned, "there is a duty laid by the Code [now the Rules of
Court] upon the court to inform [him] of certain rights and to extend to him, on
his demand, certain others. This duty is an affirmative one which the court, on
its own motion, must perform, unless waived." 11 To emphasize its importance,
he added: "No such duty, however, is laid on the court with regard to the rights
of the accused which he may be entitled to exercise during the trial. Those are
rights which he must assert himself and the benefits of which he himself must
demand. In other words, in the arraignment the court must act of its own volition,
. . . ." 12 In the terse and apt language of the Solicitor General: "Arraignment is
an indispensable requirement in any criminal prosecution." 13 Procedural due
process demands no less.
2. Nor is it only the due process guarantee that calls for the accused
being duly arraigned. As noted, it is at that stage where in the mode and manner
required by the Rules, an accused, for the first time, is granted the opportunity
to know the precise charge that confronts him. It is imperative that he is thus
made fully aware of possible loss of freedom, even of his life, depending on the
nature of the crime imputed to him. At the very least then, he must be fully
informed of why the prosecuting arm of the state is mobilized against him. An
arraignment serves that purpose. Thereafter, he is no longer in the dark. It is
true, the complaint or information may not be worded with sufficient clarity. He
would be in a much worse position though if he does not even have such an
opportunity to plead to the charge. With his counsel by his side, he is thus in a
position to enter his plea with full knowledge of the consequences. He is not
even required to do so immediately. He may move to quash. What is thus
evident is that an arraignment assures that he be fully acquainted with the
nature of the crime imputed to him and the circumstances under which it is
allegedly committed. It is thus a vital aspect of the constitutional rights
guaranteed him. It is not useless formality, much less an idle ceremony.
3. An equally fatal defect in the proceeding had before respondent Judge
Senining was that notwithstanding its being conducted in the absence of
petitioner, he was convicted. It was shown that after one postponement due to
his failure to appear, the case was reset for hearing. When that date came,
December 14, 1973, without petitioner being present, although his bondsmen
were notified, respondent Judge, as set forth in the comment of the Solicitor
General, "allowed the prosecution to present its evidence invoking Letter of
Instruction No. 40. Only one witness testified, the offended party herself, and
three documents were offered in evidence after which the prosecution rested
its case. Thereupon, respondent City Court set the promulgation of the decision
on December 28, 1973." 14 It could then conclude: "Verily, the records clearly
show that petitioner was not arraigned at all and was not represented by
counsel throughout the whole proceedings in the respondent City Court." 15 It
is indisputable then that there was a denial of petitioner's constitutional right to
be heard by himself and counsel. As categorically affirmed by Justice Ozaeta
for this Court in the leading case of Abriol v. Homeres: 16 "It is the constitutional
right of the accused to be heard in his defense before sentence is pronounced
on him." 17 He added further that such "constitutional right is inviolate." 18 There
is no doubt that it could be waived, but here there was no such waiver, whether
express or implied. It suffices to refer to another leading case, People v.
Holgado, 19 where the then Chief Justice Moran emphatically took note of the
importance of the right to counsel: "In criminal cases there can be no fair
hearing unless the accused be given an opportunity to be heard by counsel.
The right to be heard would be of little avail if it does not include the right to be
heard by counsel. Even the most intelligent or educated man may have no skill
in the science of the law, particularly in the rules of procedure, and, without
counsel, he may be convicted not because he is guilty but because he does not
know how to establish his innocence." 20 With the violation of the constitutional
right to be heard by himself and counsel being thus manifest, it is easily
understandable why the Solicitor General agreed with petitioner that the
sentence imposed on him should be set aside for being null.
4. The provision in the present Constitution allowing trial to be held in
absentia is unavailing. It cannot justify the actuation of respondent Judge
Senining. Its language is clear and explicit. What is more, it is mandatory. Thus:
"However, after arraignment, trial may proceed notwithstanding the absence of
the accused provided that he has been duly notified and his failure to appear is
unjustified." 21 As pointed out then by the Solicitor General, the indispensable
requisite for trial in absentia is that it should come "after arraignment." The
express mention in the present Constitution of the need for such a step
emphasizes its importance in the procedural scheme to accord an accused due
process. Without the accused having been arraigned, it becomes academic to
discuss the applicability of this exception to the basic constitutional right that
the accused should be heard by himself and counsel.
5. Nor did the appeal to the Court of First Instance presided by
respondent Judge Mendoza possess any curative aspect. To quote anew from
the comment of the Solicitor General: "Respondent Court of First Instance . . .
considered the appeal taken by the petitioner as waiver of the defects in the
proceedings in the respondent City Court. Precisely, the appeal itself is
tantamount to questioning those defects. In fact, the Memorandum in support
of the appeal unmistakably raised as error the absence of petitioner at the
arraignment and cited jurisprudence, commentaries and the rules to bolster his
position. Specifically, the absence of an arraignment can be invoked at anytime
in view of the requirements of due process to ensure a fair and impartial trial." 22
WHEREFORE, the petition for certiorari is granted. The decision of
respondent Judge Romulo R. Senining dated December 28, 1973, finding the
accused guilty of the crime of slight physical injuries, is nullified and set aside.
Likewise, the decision of respondent Judge Rafael T. Mendoza dated
November 16, 1976, affirming the aforesaid decision of Judge Senining, is
nullified and set aside. The case is remanded to the City Court of Cebu for the
prosecution of the offense of slight physical injuries, with due respect and
observance of the provisions of the Rules of Court, starting with the arraignment
of petitioner.
Barredo, Antonio, Aquino and Fernandez, JJ., concur.

Concepcion Jr., J., is on leave.
||| (Borja v. Mendoza, G.R. No. L-45667, [June 20, 1977], 168 PHIL 83-90)
EN BANC
[G.R. Nos. 140546-47. January 20, 2003.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MODESTO

TEE a.k.a. ESTOY TEE, accused-appellant.

Jose Mencio Molintas for accused-appellant.
SYNOPSIS
Appellant is a Chinese national in his forties, a businessman, and a resident

of Baguio City. A raid conducted by the operatives of the NBI and the PNP
NARCOM at the premises allegedly leased by appellant and at his residence
yielded huge quantities of marijuana. The City Prosecutor of Baguio City charged
appellant with illegal possession of marijuana, which later on resulted to the filing
of two separate informations which were docketed to Criminal Cases Nos. 15800-
R and 15822-R. In Criminal Case No. 15822-R, the trial court agreed with appellant
that the taking of marijuana from appellant's rented premises was the result of an
illegal search and hence, inadmissible in evidence against appellant. Appellant
was accordingly acquitted of the charge. However, the trial court found that the
evidence for the prosecution was more than ample to prove appellant's guilt in
Criminal Case No. 15800-R and duly convicted him of illegal possession of
marijuana and sentenced him to death. Hence, this automatic review.
According to the Court, there was no grave abuse of discretion committed
by the trial court when it ordered the so-called reopening of the case to complete
the testimony of the prosecution witness. Appellant was never deprived of his day
in court. Appellant was given every opportunity to support his case or to refute the
prosecution's evidence after the prosecution rested its case. The physical
evidence in this case corroborated what the prosecution's witness testified to.
Hence, the Supreme Court affirmed the trial court's finding that appellant was guilty
of the crime charged. The penalty, however; was reduced to reclusion perpetua as
neither mitigating nor aggravating circumstance was present in the instant case.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCHES AND

SEIZURES; WARRANT ISSUED SHOULD DESCRIBE WITH PARTICULARITY
THE THINGS TO BE SEIZED; RATIONALE. — The constitutional requirement of
reasonable particularity of description of the things to be seized is primarily meant
to enable the law enforcers serving the warrant to: (1) readily identify the properties
to be seized and thus prevent them from seizing the wrong items; and (2) leave
said peace officers with no discretion regarding the articles to be seized and thus
prevent unreasonable searches and seizures. What the Constitution seeks to
avoid are search warrants of broad or general characterization or sweeping
descriptions, which will authorize police officers to undertake a fishing expedition
to seize and confiscate any and all kinds of evidence or articles relating to an
offense.
2. ID.; ID.; ID.; ID.; WHEN TECHNICAL DESCRIPTION IS NOT
NECESSARY; APPLICATION IN CASE AT BAR. — However, it is not required
that technical precision of description be required, particularly, where by the nature
of the goods to be seized, their description must be rather general, since the
requirement of a technical description would mean that no warrant could issue.
Thus, it has been held that the term "narcotics paraphernalia" is not so wanting in
particularity as to create a general warrant. Nor is the description "any and all
narcotics" and "all implements, paraphernalia, articles, papers and records
pertaining to" the use, possession, or sale of narcotics or dangerous drugs so
broad as to be unconstitutional. A search warrant commanding peace officers to
seize "a quantity of loose heroin" has been held sufficiently particular. Tested
against the foregoing precedents, the description "an undetermined amount of
marijuana" must be held to satisfy the requirement for particularity in a search
warrant: Noteworthy, what is to be seized in the instant case is property of a
specified character, i.e., marijuana, an illicit drug. By reason of its character and
the circumstances under which it would be found, said article is illegal. A further
description would be unnecessary and ordinarily impossible, except as to such
character, the place, and the circumstances. Thus, this Court has held that the
description "illegally in possession of undetermined quantity/amount of dried
marijuana leaves and Methamphetamine Hydrochloride (Shabu) and sets of
paraphernalia" particularizes the things to be seized.
3. ID.; ID.; ID.; SEARCH WARRANT; REQUIRES THAT THE JUDGE MUST
PERSONALLY EXAMINE THE COMPLAINANT AND HIS WITNESSES UNDER
OATH OR AFFIRMATION BEFORE THE ISSUANCE THEREOF. — Before a valid
search warrant is issued, both the Constitution and the 2000 Revised Rules of
Criminal Procedure require that the judge must personally examine the
complainant and his witnesses under oath or affirmation. The personal
examination must not be merely routinary or pro forma, but must be probing and
exhaustive. . . . It is presumed that a judicial function has been regularly performed,
absent a showing to the contrary. A magistrate's determination of probable cause
for the issuance of a search warrant is paid great deference by a reviewing court,
as long as there was substantial basis for that determination. Substantial basis
means that the questions of the examining judge brought out such facts and
circumstances as would lead a reasonably discreet and prudent man to believe
that an offense has been committed, and the objects in connection with the offense
sought to be seized are in the place sought to be searched. IAEcaH
4. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH;

GROUNDS AND OBJECTIONS NOT RAISED THEREIN PRESUMED WAIVED.
— But it is settled that when a motion to quash a warrant is filed, all grounds and
objections then available; existent or known, should be raised in the original or
subsequent proceedings for the quashal of the warrant, otherwise they are
deemed waived.
5. ID.; ID.; RIGHT TO SPEEDY TRIAL; DEFINED AND CONSTRUED. — A
speedy trial means a trial conducted according to the law of criminal procedure
and the rules and regulations, free from vexatious, capricious, and oppressive
delays. In Conde v. Rivera and Unson, 45 Phil. 650, 652 (1924), the Court held
that "where a prosecuting officer, without good cause, secures postponements of
the trial of a defendant against his protest beyond a reasonable period of time, as
in this instance, for more than a year, the accused is entitled to relief by a
proceeding in mandamus to compel a dismissal of the information, or if he be
restrained of his liberty, byhabeas corpus to obtain his freedom." The concept of
speedy trial is necessarily relative. A determination as to whether the right has
been violated involves the weighing of several factors such as the length of the
delay, the reason for the delay, the conduct of the prosecution and the accused,
and the efforts exerted by the defendant to assert his right, as well as the prejudice
and damage caused to the accused.
6. ID.; ID.; ID.; WHEN DEEMED VIOLATED. — The Speedy Trial Act of
1998, provides that the trial period for criminal cases in general shall be one
hundred eighty (180) days. However, in determining the right of an accused to
speedy trial, courts should do more than a mathematical computation of the
number of postponements of the scheduled hearings of the case. The right to a
speedy trial is deemed violated only when: (1) the proceedings are attended by
vexatious, capricious, and oppressive delays; or (2) when unjustified
postponements are asked for and secured; or (3) when without cause or justifiable
motive a long period of time is allowed to elapse without the party having his case
tried.
7. ID.; ID.; REOPENING OF CASES; RESTS UPON THE DISCRETION OF
THE TRIAL COURT; RESTRICTIONS THEREOF, NOT PRESENT IN CASE AT
BAR. — As a rule, the matter of reopening of a case for reception of further
evidence after either prosecution or defense has rested its case is within the
discretion of the trial court. However, a concession to a reopening must not
prejudice the accused or deny him the opportunity to introduce counter evidence.
Strictly speaking, however, there was no reopening of the cases in the proceedings
below. A motion to reopen may properly be presented only after either or both
parties have formally offered and closed their evidence, but before judgment.
8. ID.; EVIDENCE; TESTIMONY OF WITNESS; CANNOT BE
DISREGARDED ENTIRELY EVEN WHEN ONLY PART THEREOF WERE
FOUND TRUE; APPLICATION IN CASE AT BAR. — It is the bounden duty of the
courts to test the prosecution evidence rigorously, so that no innocent person is
made to suffer the unusually severe penalties meted out for drug offenses. Though
we scrutinized minutely the testimony of Abratique, we find no cogent reason to
disbelieve him. From his account, Abratique might appear aware of treading the
thin line between innocence and feeling guilty, with certain portions of his story
tending to be self-exculpatory. However, his whole testimony could not be
discredited. The established rule is that testimony of a witness may be believed in
part and disbelieved in other parts, depending on the corroborative evidence and
the probabilities and improbabilities of the case. But it is accepted, as a matter of
common sense, that if certain parts of a witness' testimony are found true, his
testimony cannot be disregarded entirely.
9. CRIMINAL LAW; ILLEGAL POSSESSION OF DANGEROUS DRUGS;
ELEMENTS; CONSTRUED. — In a prosecution for illegal possession of
dangerous drugs, the following facts must be proven with moral certainty: (1) that
the accused is in possession of the object identified as prohibited or regulated
drug; (2) that such possession is not authorized by law; and (3) that the accused
freely and consciously possessed the said drug. . . . In People v. de los Reyes,
239 SCRA 439 (1994), we held that the Dangerous Drugs Act applies generally to
all persons and proscribes the sale of dangerous drugs by any person, and no
person is authorized to sell such drugs. Said doctrine is equally applicable with
respect to possession of prohibited drugs. Republic Act No. 6425, which penalizes
the possession of prohibited drugs, applies equally to all persons in this jurisdiction
and no person is authorized to possess said articles, without authority of law. Anent
the third element, we have held that to warrant conviction, possession of illegal
drugs must be with knowledge of the accused or that animus possidendi existed
together with the possession or control of said articles. Nonetheless, this dictum
must be read in consonance with our ruling that possession of a prohibited
drug per se constitutes prima facie evidence of knowledge or animus
possidendi sufficient to convict an accused absent a satisfactory explanation of
such possession. In effect, the onus probandi is shifted to the accused to explain
the absence of knowledge or animus possidendi in this situation.
10. ID.; ID.; PENALTY. — The legislature never intended that where the
quantity involved exceeds those stated in Section 20 of Republic Act No. 6425 the
maximum penalty of death shall automatically be imposed. The statute prescribes
two indivisible penalties: reclusion perpetua and death. Hence, the penalty to be
imposed must conform with Article 63 of the Revised Penal Code. As already
held, the death penalty law, Republic Act No. 7659 did not amend Article 63 of the
Revised Penal Code. The rules in Article 63 apply although the prohibited drugs
involved are in excess of the quantities provided for in Section 20 of Republic Act
No. 6425. Thus, finding neither mitigating nor aggravating circumstances in the
present case, appellant's possession of 591.81 kilograms of marijuana in Criminal
Case No. 15800-R, does not merit capital punishment but only the lesser penalty
DECISION
QUISUMBING, J : p
For automatic review is the consolidated judgment 1 of the Regional Trial

Court (RTC) of Baguio City, Branch 6, dated September 17, 1999, in Criminal
Cases Nos. 15800-R and 15822-R, involving violations of Section 8, Article II, of
the Dangerous Drugs Law. 2 Since appellant was acquitted in the second case, we
focus on the first case, where appellant has been found guilty and sentenced to
death and fined one million pesos.
The decretal portion of the trial court's decision reads:
WHEREFORE, judgment is hereby rendered, as follows:
1. In Crim. Case No. 15800-R, the Court finds the accused
Modesto Tee guilty beyond reasonable doubt of the offense of illegal
possession of marijuana of about 591.81 kilos in violation of Section 8,
Article II of RA 6425 as amended by Section 13 of RA 7659 as charged in
the Information, seized by virtue of a search warrant and sentences him
to the supreme penalty of death and to pay a fine of 1 million pesos without
subsidiary imprisonment in case of insolvency.
The 591.81 kilos of marijuana contained in 26 boxes and one
yellow sack (Exhibits U-1 to U-27) are ordered forfeited in favor of the
State to be destroyed immediately in accordance with law.
2. In Crim. Case No. 15822-R, the Court finds that the prosecution
failed to prove the guilt of accused Modesto Tee beyond reasonable doubt
and hereby acquits him of the charge of illegal possession of marijuana in
violation of Section 8, Art. 2 of RA 6425 as amended by Section 13 of RA
7659 as charged in the Information since the marijuana confiscated have
to be excluded in evidence as a product of unreasonable search and
seizure.
The 336.93 kilos of marijuana contained in 13 sacks and four boxes
(Exh. B to S and their component parts) although excluded in evidence as
the product(s) of unreasonable search and seizure, are nevertheless
ordered forfeited in favor of the State to be destroyed immediately in
accordance with law considering that they are prohibited articles.
The City Jail Warden is, therefore, directed to release the accused
Modesto Tee in connection with Crim. Case No. 15822-R unless held on
other charges.
COST(S) DE OFICIO.
SO ORDERED. 3
Appellant is a Chinese national in his forties, a businessman, and a resident
of Baguio City. A raid conducted by operatives of the National Bureau of
Investigation (NBI) and Philippine National Police Narcotics Command (PNP
NARCOM) at premises allegedly leased by appellant and at his residence yielded
huge quantities of marijuana.
On July 20, 1998, appellant moved to quash the search warrant on the
ground that it was too general and that the NBI had not complied with the
requirements for the issuance of a valid search warrant. The pendency of said
motion, however, did not stop the filing of the appropriate charges against
appellant. In an information dated July 24, 1998, docketed as Criminal Case No.
15800-R, the City Prosecutor of Baguio City charged Modesto Tee, alias "Estoy
Tee," with illegal possession of marijuana, allegedly committed as follows:
That on or about the 1st day of July, 1998 in the City of Baguio,
named accused, did then and there willfully, unlawfully, feloniously and
knowingly have in his possession the following, to wit:
1. Ninety-two (92) bricks of dried flowering tops separately
contained in four (4) boxes; and
2. One hundred fifty-eight (158) bricks, twenty-one (21) blocks, and
twenty-three (23) bags of dried flowering tops separately contained in
thirteen (13) sacks, with a total weight of 336.93 kilograms; and
3. Six hundred two (602) bricks of dried flowering tops separately
contained in twenty-six (boxes) and a yellow sack, weighing 591.81
kilograms,
all having a grand total weight of 928.74 kilograms, a prohibited
drug, without the authority of law to possess, in violation of the above-
cited provision of law.
CONTRARY TO LAW. 4
On August 7, 1998, the prosecution moved to "amend" the foregoing charge
sheet "considering that subject marijuana were seized in two (2) different places." 5
As a result, the information in Criminal Case No. 15800-R was amended to
read as follows:
That on or about the 1st day of July, 1998, in the City of Baguio,
- Six hundred two (602) bricks of dried flowering tops separately
contained in twenty-six (26) boxes and a yellow sack, weighing
591.81 kilograms
a prohibited drug, without the authority of law to possess, in
violation of the above-cited provision of law.
CONTRARY TO LAW. 6
A separate amended information docketed as Criminal Case No. 15822-R
was likewise filed, the accusatory portion of which reads:
That on or about the 1st day of July, 1998 in the City of Baguio,
1. Ninety-two (92) bricks of dried flowering tops separately contained in
four (4) boxes; and
2. hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-
three (23) bags of dried flowering tops separately contained in
thirteen (13) sacks, with a total weight of 336.93 kilograms;
a prohibited drug, without the authority of law to possess, in
violation of the above-cited provision of law.
CONTRARY TO LAW. 7
On September 4, 1998, the trial court denied the motion to quash the search
warrant and ordered appellant's arraignment.
When arraigned in Criminal Cases Nos. 15800-R and 15822-R, appellant
refused to enter a plea. The trial court entered a plea of not guilty for him. 8 Trial
on the merits then ensued.
The facts of this case, as gleaned from the records, are as follows:
Prosecution witness Danilo Abratique, a Baguio-based taxi driver, and the
appellant Modesto Tee are well acquainted with each other, since Abratique's wife
is the sister of Tee's sister-in-law. 9
Sometime in late June 1998, appellant asked Abratique to find him a place
for the storage of smuggled cigarettes. 10 Abratique brought appellant to his friend,
Albert Ballesteros, who had a house for rent in Bakakeng, Baguio City. After
negotiating the terms and conditions, Ballesteros agreed to rent out his place to
appellant. Appellant then brought several boxes of purported "blue seal" cigarettes
to the leased premises.
Shortly thereafter, however, Ballesteros learned that the boxes stored in his
place were not "blue seal" cigarettes but marijuana. Fearful of being involved,
Ballesteros informed Abratique. Both later prevailed upon appellant to remove
them from the premises. 11
Appellant then hired Abratique's taxi and transported the boxes of cannabis
from the Ballesteros place to appellant's residence at Km. 6, Dontogan, Green
Valley, Sto. Tomas, Baguio City. 12
On June 30, 1998, appellant hired Abratique to drive him to La Trinidad,
Benguet on the pretext of buying and transporting strawberries. Upon reaching La
Trinidad, however, appellant directed Abratique to proceed to Sablan, Benguet,
where appellant proceeded to load several sacks of marijuana in Abratique's taxi.
He then asked Abratique to find him a place where he could store the
contraband. 13
Abratique brought appellant to his grandmother's house at No. 27 Dr. Cariño
St., QM Subdivision, Baguio City, which was being managed by Abratique's aunt,
Nazarea Abreau. Nazarea agreed to rent a room to appellant. Abratique and
appellant unloaded and stored there the sacks of marijuana brought from
Sablan. 14Abratique was aware that they were transporting marijuana as some of
the articles in the sacks became exposed in the process of loading. 15
Eventually, Abratique and Nazarea were bothered by the nature of the
goods stored in the rented room. She confided to her daughter, Alice Abreau
Fianza, about their predicament. As Alice Fianza's brother-in-law, Edwin Fianza,
was an NBI agent, Alice and Abratique phoned him and disclosed what had
transpired. 16
On the morning of July 1, 1998, alerted by information that appellant would
retrieve the sacks of prohibited drugs that day, Edwin Fianza and other NBI
operatives conducted a stake out at No. 27, Dr. Cariño St. While the NBI agents
were conducting their surveillance, they noticed that several PNP NARCOM
personnel were also watching the place. 17 The NBI then learned that the PNP
NARCOM had received a tip from one of their informers regarding the presence of
a huge amount of drugs in that place. The NBI and PNP NARCOM agreed to have
a joint operation.
As the day wore on and appellant did not show up, the NBI agents became
apprehensive that the whole operation could be jeopardized. They sought the
permission of Nazarea Abreau to enter the room rented by appellant. She acceded
and allowed them entry. The NBI team then searched the rented premises and
found four (4) boxes and thirteen (13) sacks of marijuana, totaling 336.93
kilograms. 18
Later that evening, NBI Special Agent Darwin Lising, with Abratique as his
witness, applied for a search warrant from RTC Judge Antonio Reyes at his
residence. 19Judge Reyes ordered the NBI agents to fetch the Branch Clerk of
Court, Atty. Delilah Muñoz, so the proceedings could be properly recorded. After
Atty. Muñoz arrived, Judge Reyes questioned Lising and Abratique. Thereafter,
the judge issued a warrant directing the NBI to search appellant's residence at Km.
6, Dontogan, Green Valley, Baguio City, for marijuana. 20
The NBI operatives, with some PNP NARCOM personnel in tow, proceeded
to appellant's residence where they served the warrant upon appellant
himself. 21 The search was witnessed by appellant, members of his
family, barangay officials, and members of the media. 22 Photographs were taken
during the actual search. 23 The law enforcers found 26 boxes and a sack of dried
marijuana 24 in the water tank, garage, and storeroom of appellant's
residence. 25 The total weight of the haul was 591.81 kilograms. 26 Appellant was
arrested for illegal possession of marijuana.
The seized items were then submitted to the NBI laboratory for testing. NBI
Forensic Chemist Maria Carina Madrigal conducted the tests. Detailed
microscopic and chromatographic examinations of the items taken from appellant's
rented room at No. 27, Dr. Cariño St., as well as those from his residence at Green
Valley, showed these to be marijuana. 27
In his defense, appellant contended that the physical evidence of the
prosecution was illegally obtained, being the products of an unlawful search, hence
inadmissible. Appellant insisted that the search warrant was too general and the
process by which said warrant was acquired did not satisfy the constitutional
requirements for the issuance of a valid search warrant. Moreover, Abratique's
testimony, which was heavily relied upon by the judge who issued the warrant, was
hearsay.
In Criminal Case No. 15822-R, the trial court agreed with appellant that the
taking of the 336.93 kilograms of marijuana was the result of an illegal search and
hence, inadmissible in evidence against appellant. Appellant was accordingly
acquitted of the charge. However, the trial court found that the prosecution's
evidence was more than ample to prove appellant's guilt in Criminal Case No.
15800-R and as earlier stated, duly convicted him of illegal possession of
marijuana and sentenced him to death.
Hence, this automatic review.
Before us, appellant submits that the trial court erred in:
1. . . . UPHOLDING THE LEGALITY OF THE SEARCH WARRANT
DESPITE LACK OF COMPLIANCE OF (sic) SEVERAL
REQUIREMENTS BEFORE IT SHOULD HAVE BEEN ISSUED AND IT
BEING A GENERAL WARRANT;
2. . . . GRAVELY ABUSED ITS DISCRETION IN REOPENING
THE CASE AND ALLOWING ABRATIQUE TO TESTIFY AGAINST
APPELLANT;
3. . . . GIVING CREDENCE TO THE TESTIMONY OF
ABRATIQUE;
4. . . .NOT ACQUITTING THE ACCUSED IN BOTH CASES AND
SENTENCING HIM TO DEATH DESPITE THE ILLEGALLY OBTAINED
EVIDENCE AS FOUND IN THE FIRST CASE. 28
We find that the pertinent issues for resolution concern the following: (1) the
validity of the search conducted at the appellant's residence; (2) the alleged
prejudice caused by the reopening of the case and absences of the prosecution
witness, on appellant's right to speedy trial; (3) the sufficiency of the prosecution's
evidence to sustain a finding of guilt with moral certainty; and (4) the propriety of
the penalty imposed.
1. On the Validity of the Search Warrant; Its Obtention and Execution
Appellant initially contends that the warrant, which directed the peace
officers to search for and seize "an undetermined amount of marijuana," was too
general and hence, void for vagueness. He insists that Abratique could already
estimate the amount of marijuana supposed to be found at appellant's residence
since Abratique helped to transport the same.
For the appellee, the Office of the Solicitor General (OSG) counters that a
search warrant is issued if a judge finds probable cause that the place to be
searched contains prohibited drugs, and not that he believes the place contains a
specific amount of it. The OSG points out that, as the trial court observed, it is
impossible beforehand to determine the exact amount of prohibited drugs that a
person has on himself.
Appellant avers that the phrase "an undetermined amount of marijuana" as
used in the search warrant fails to satisfy the requirement of Article III, Section
2 29 of the Constitution that the things to be seized must be particularly described.
Appellant's contention, in our view, has no leg to stand on. The constitutional
requirement of reasonable particularity of description of the things to be seized is
primarily meant to enable the law enforcers serving the warrant to: (1) readily
identify the properties to be seized and thus prevent them from seizing the wrong
items; 30 and (2) leave said peace officers with no discretion regarding the articles
to be seized and thus prevent unreasonable searches and seizures. 31 What the
Constitution seeks to avoid are search warrants of broad or general
characterization or sweeping descriptions, which will authorize police officers to
undertake a fishing expedition to seize and confiscate any and all kinds of evidence
or articles relating to an offense.32 However, it is not required that technical
precision of description be required, 33 particularly, where by the nature of the
goods to be seized, their description must be rather general, since the requirement
of a technical description would mean that no warrant could issue. 34
Thus, it has been held that term "narcotics paraphernalia" is not so wanting
in particularity as to create a general warrant. 35 Nor is the description "any and all
narcotics" and "all implements, paraphernalia, articles, papers and records
pertaining to" the use, possession, or sale of narcotics or dangerous drugs so
broad as to be unconstitutional. 36 A search warrant commanding peace officers to
seize "a quantity of loose heroin" has been held sufficiently particular. 37
Tested against the foregoing precedents, the description "an undetermined
amount of marijuana" must be held to satisfy the requirement for particularity in a
search warrant. Noteworthy, what is to be seized in the instant case is property of
a specified character, i.e., marijuana, an illicit drug. By reason of its character and
the circumstances under which it would be found, said article is illegal. A further
description would be unnecessary and ordinarily impossible, except as to such
character, the place, and the circumstances. 38 Thus, this Court has held that the
description "illegally in possession of undetermined quantity/amount of dried
marijuana leaves and Methamphetamine Hydrochloride (Shabu) and sets of
paraphernalia" particularizes the things to be seized. 39
The search warrant in the present case, given its nearly similar wording,
"undetermined amount of marijuana or Indian hemp," in our view, has satisfied the
Constitution's requirements on particularity of description. The description therein
is: (1) as specific as the circumstances will ordinarily allow; (2) expresses a
conclusion of fact — not of law — by which the peace officers may be guided in
making the search and seizure; and (3) limits the things to be seized to those which
bear direct relation to the offense for which the warrant is being issued. 40 Said
warrant imposes a meaningful restriction upon the objects to be seized by the
officers serving the warrant. Thus, it prevents exploratory searches, which might
be violative of the Bill of Rights.
Appellant next assails the warrant for merely stating that he should be
searched, as he could be guilty of violation of Republic Act No. 6425. Appellant
claims that this is a sweeping statement as said statute lists a number of offenses
with respect to illegal drugs. Hence, he contends, said warrant is a general warrant
and is thus unconstitutional.
For the appellee, the OSG points out that the warrant clearly states that
appellant has in his possession and control marijuana or Indian hemp, in violation
of Section 8 of Republic Act No. 6425.
We have carefully scrutinized Search Warrant No. 415 (7-98), 41 and we find
that it is captioned "For Violation of R.A. 6425, as amended." 42 It is clearly stated
in the body of the warrant that "there is probable cause to believe that a case for
violation of R.A. 6425, as amended, otherwise known as the Dangerous Drugs Act
of 1972, as further amended by R.A. 7659 has been and is being committed by
one MODESTO TEE a.k.a. ESTOY TEE of Km. 6, Dontogan Bgy., Green Valley,
Sto. Tomas, Baguio City by having in his possession and control an
UNDETERMINED AMOUNT OF MARIJUANA or INDIAN HEMP in violation of the
aforementioned law." 43 In an earlier case, we held that though the specific section
of the Dangerous Drugs Law is not pinpointed, "there is no question at all of the
specific offense alleged to have been committed as a basis for the finding of
probable cause." 44 Appellant's averment is, therefore, baseless. Search Warrant
No. 415 (7-98) appears clearly issued for one offense, namely, illegal possession
of marijuana.
Appellant next faults the Judge who issued Search Warrant No. 415 (7-98)
for his failure to exhaustively examine the applicant and his witness. Appellant
points out that said magistrate should not have swallowed all of Abratique's
statements — hook, line, and sinker. He points out that since Abratique consented
to assist in the transport of the marijuana, the examining judge should have elicited
from Abratique his participation in the crime and his motive for squealing on
appellant. Appellant further points out that the evidence of the NBI operative who
applied for the warrant is merely hearsay and should not have been given credit at
all by Judge Reyes.
Again, the lack of factual basis for appellant's contention is apparent. The
OSG points out that Abratique personally assisted appellant in loading and
transporting the marijuana to the latter's house and to appellant's rented room at
No. 27 Dr. Cariño St., Baguio City. Definitely, this indicates personal knowledge
on Abratique's part. Law enforcers cannot themselves be eyewitnesses to every
crime; they are allowed to present witnesses before an examining judge. In this
case, witness Abratique personally saw and handled the marijuana. Hence, the
NBI did not rely on hearsay information in applying for a search warrant but on
personal knowledge of the witness, Abratique.
Before a valid search warrant is issued, both the Constitution 45 and
the 2000 Revised Rules of Criminal Procedure 46 require that the judge must
personally examine the complainant and his witnesses under oath or
affirmation. The personal examination must not be merely routinary or pro forma,
but must be probing and exhaustive. 47 In the instant case, it is not disputed that
Judge Antonio Reyes personally examined NBI Special Investigator III Darwin A.
Lising, the applicant for the search warrant as well as his witness, Danilo G.
Abratique. Notes of the proceedings were taken by Atty. Delilah Muñoz, Clerk of
Court, RTC of Baguio City, Branch 61, whom Judge Reyes had ordered to be
summoned. In the letter of transmittal of the Clerk of Court of the RTC of Baguio
City, Branch 61 to Branch 6 of said court, mention is made of "notes" at "pages 7–
11." 48 We have thoroughly perused the records of Search Warrant No. 415 (7-98)
and nowhere find said "notes." The depositions of Lising and Abratique were not
attached to Search Warrant No. 415 (7-98) as required by the Rules of Court. We
must stress, however, that the purpose of the Rules in requiring depositions to be
taken is to satisfy the examining magistrate as to the existence of probable
cause. 49 The Bill of Rights does not make it an imperative necessity that
depositions be attached to the records of an application for a search warrant.
Hence, said omission is not necessarily fatal, for as long as there is evidence on
the record showing what testimony was presented. 50 In the testimony of witness
Abratique, Judge Reyes required Abratique to confirm the contents of his
affidavit; 51 there were instances when Judge Reyes questioned him
extensively. 52 It is presumed that a judicial function has been regularly
performed, 53 absent a showing to the contrary. A magistrate's determination of
probable cause for the issuance of a search warrant is paid great deference by a
reviewing court, 54 as long as there was substantial basis for that
determination. 55 Substantial basis means that the questions of the examining
judge brought out such facts and circumstances as would lead a reasonably
discreet and prudent man to believe that an offense has been committed, and the
objects in connection with the offense sought to be seized are in the place sought
to be searched.
On record, appellant never raised the want of adequate depositions to
support Warrant No. 415 (7-98) in his motion to quash before the trial court.
Instead, his motion contained vague generalities that Judge Reyes failed to ask
searching questions of the applicant and his witness. Belatedly, however, he now
claims that Judge Reyes perfunctorily examined said witness. 56 But it is settled
that when a motion to quash a warrant is filed, all grounds and objections then
available, existent or known, should be raised in the original or subsequent
proceedings for the quashal of the warrant, otherwise they are deemed waived. 57
In this case, NBI Special Investigator Lising's knowledge of the illicit drugs
stored in appellant's house was indeed hearsay. But he had a witness, Danilo
Abratique, who had personal knowledge about said drugs and their particular
location. Abratique's statements to the NBI and to Judge Reyes contained credible
and reliable details. As the NBI's witness, Abratique was a person on whose
statements Judge Reyes could rely. His detailed description of appellant's
activities with respect to the seized drugs was substantial. In relying on witness
Abratique, Judge Reyes was not depending on casual rumor circulating in the
underworld, but on personal knowledge Abratique possessed.
In Alvarez vs. Court of First Instance of Tayabas, 64 Phil. 33, 44 (1937), we
held that:
The true test of sufficiency of a deposition or affidavit to warrant
issuance of a search warrant is whether it has been drawn in such a
manner that perjury could be charged thereon and affiant be held liable
for damages caused. 58
Appellant argues that the address indicated in the search warrant did not
clearly indicate the place to be searched. The OSG points out that the address
stated in the warrant is as specific as can be. The NBI even submitted a detailed
sketch of the premises prepared by Abratique, thus ensuring that there would be
no mistake.
A description of the place to be searched is sufficient if the officer serving
the warrant can, with reasonable effort, ascertain and identify the place
intended 59 and distinguish it from other places in the community. 60 A designation
or description that points out the place to be searched to the exclusion of all others,
and on inquiry unerringly leads the peace officers to it, satisfies the constitutional
requirement of definiteness.
Appellant finally harps on the use of unnecessary force during the execution
of the search warrant. Appellant fails, however, to point to any evidentiary matter
in the record to support his contention. Defense witness Cipriana Tee, appellant's
mother, testified on the search conducted but she said nothing that indicated the
use of force on the part of the NBI operatives who conducted the search and
seizure. 61 What the record discloses is that the warrant was served on
appellant, 62 who was given time to read it, 63 and the search was witnessed by
the barangay officials, police operatives, members of the media, and appellant's
kith and kin. 64 No breakage or other damage to the place searched is shown. No
injuries sustained by appellant, or any witness, appears on record. The execution
of the warrant, in our view, has been orderly and peaceably performed. EHIcaT
2. On The Alleged Violation of Appellant's Substantive Rights

Appellant insists that the prosecution's unjustified and willful delay in
presenting witness Abratique unduly delayed the resolution of his case. He points
out that a total of eight (8) scheduled hearings had to be reset due to the failure or
willful refusal of Abratique to testify against him. Appellant insists that said lapse
on the prosecution's part violated Supreme Court Circular No. 38-98. 65 Appellant
now alleges that the prosecution deliberately resorted to delaying the case to
cause him untold miseries.
For the appellee, the OSG points out that the two-month delay in the trial is
not such a great length of time as to amount to a violation of appellant's right to a
speedy trial. A trial is always subject to reasonable delays or postponements, but
absent any showing that these delays are capricious and oppressive, the State
should not be deprived of a reasonable opportunity to prosecute the criminal
action.
On record, the trial court found that prosecution witness Danilo G. Abratique
failed to appear in no less than eighteen (18) hearings, namely those set for
February 1, 2, 3, 4, 8, 9, 10, and 24; March 9, 15, 22, and 23; April 6, 7, 8, 16, and
19, all in 1999. 66 No less than four (4) warrants of arrest were issued against him
to compel him to testify. 67 The NBI agent who supposedly had him in custody was
found guilty of contempt of court for failing to produce Abratique at said hearings
and sanctioned. 68The prosecution had to write the NBI Regional Director in
Baguio City and NBI Director in Manila regarding the failure of the Bureau's agents
to bring Abratique to court.69 Nothing on record discloses the reason for
Abratique's aforecited absences. On the scheduled hearing of June 7, 1999, he
was again absent thus causing the trial court to again order his arrest for
the fifth time. 70 He also failed to show up at the hearing of June 8, 1999. 71
Appellant now stresses that the failure of Abratique to appear and testify on
twenty (20) hearing dates violated appellant's constitutional 72 and statutory right
to a speedy trial.
A speedy trial means a trial conducted according to the law of criminal
procedure and the rules and regulations, free from vexatious, capricious, and
oppressive delays. 73 In Conde v. Rivera and Unson, 45 Phil. 650, 652 (1924), the
Court held that "where a prosecuting officer, without good cause, secures
postponements of the trial of a defendant against his protest beyond a reasonable
period of time, as in this instance, for more than a year, the accused is entitled to
relief by a proceeding inmandamus to compel a dismissal of the information, or if
he be restrained of his liberty, by habeas corpus to obtain his freedom."
The concept of speedy trial is necessarily relative. A determination as to
whether the right has been violated involves the weighing of several factors such
as the length of the delay, the reason for the delay, the conduct of the prosecution
and the accused, and the efforts exerted by the defendant to assert his right, as
well as the prejudice and damage caused to the accused. 74
The Speedy Trial Act of 1998, provides that the trial period for criminal cases
in general shall be one hundred eighty (180) days. 75 However, in determining the
right of an accused to speedy trial, courts should do more than a mathematical
computation of the number of postponements of the scheduled hearings of the
case. 76The right to a speedy trial is deemed violated only when: (1) the
proceedings are attended by vexatious, capricious, and oppressive delays; 77 or
(2) when unjustified postponements are asked for and secured; 78 or (3) when
without cause or justifiable motive a long period of time is allowed to elapse without
the party having his case tried. 79
In the present case, although the absences of prosecution witness Abratique
totaled twenty (20) hearing days, there is no showing whatsoever that prosecution
capriciously caused Abratique's absences so as to vex or oppress appellant and
deny him his rights. On record, after Abratique repeatedly failed to show up for the
taking of his testimony, the prosecution went to the extent of praying that the trial
court order the arrest of Abratique to compel his attendance at trial. The
prosecution likewise tried to get the NBI to produce Abratique as the latter was in
the Bureau's custody, but to no avail. Eventually, the trial court ordered the
prosecution to waive its right to present Abratique and rest its case on the evidence
already offered. 80
Nor do we find a delay of twenty (20) hearing days to be an unreasonable
length of time. Delay of less than two months has been found, in fact, to be not an
unreasonably lengthy period of time. 81
Moreover, nothing on record shows that appellant Modesto Tee objected to
the inability of the prosecution to produce its witness. Under the Rules, appellant
could have moved the trial court to require that witness Abratique post bail to
ensure that the latter would testify when required. 82 Appellant could have moved
to have Abratique found in contempt and duly sanctioned. Appellant did neither. It
is a bit too late in the day for appellant to invoke now his right to speedy trial.
No persuasive reason supports appellant's claim that his constitutional right
to speedy trial was violated. One must take into account that a trial is always
subject to postponements and other causes of delay. But in the absence of a
showing that delays were unreasonable and capricious, the State should not be
deprived of a reasonable opportunity of prosecuting an accused. 83
Appellant next contends that the trial court gravely abused its discretion, and
exhibited partiality, when it allowed the reopening of the case after the prosecution
had failed to present Abratique on several occasions and had been directed to rest
its case. Appellant stresses that the lower court's order to reopen the case to
receive Abratique's further testimony is an indication that the trial court favored the
prosecution and unduly prejudiced appellant.
On appellee's behalf, the Solicitor General points out that the trial court's
order was in the interest of substantial justice and hence, cannot be termed as an
abuse of discretion. The OSG points out that the prosecution had not formally
rested its case and had yet to present its formal offer of evidence, hence, the
submission of additional testimony by the same witness cannot be prejudicial to
the accused, it being but the mere continuation of an uncompleted testimony.
Furthermore, appellant did not properly oppose the prosecution's motion to reopen
the case.
At the time Criminal Cases Nos. 15800-R and 15822-R were being tried, the
1985 Rules of Criminal Procedure were in effect. There was no specific provision
at that time governing motions to reopen. 84 Nonetheless, long and established
usage has led to the recognition and acceptance of a motion to reopen. In view of
the absence of a specific procedural rule, the only controlling guideline governing
a motion to reopen was the paramount interests of justice. As a rule, the matter of
reopening of a case for reception of further evidence after either prosecution or
defense has rested its case is within the discretion of the trial court. 85 However, a
concession to a reopening must not prejudice the accused or deny him the
opportunity to introduce counter evidence. 86
Strictly speaking, however, there was no reopening of the cases in the
proceedings below. A motion to reopen may properly be presented only after either
or both parties have formally offered and closed their evidence, but before
judgment. 87 In the instant case, the records show that on April 19, 1999, the
prosecution was directed to close its evidence and given 15 days to make its formal
offer of evidence. 88 This order apparently arose from the manifestation of the
prosecution on April 16, 1999 that should they fail to produce witness Abratique on
the next scheduled hearing the prosecution would rest its case. 89 On April 19,
1999, which was the next scheduled hearing after April 16, 1999, Abratique was
absent notwithstanding notices, orders, and warrants of arrest. However, on April
27, 1999, or before the prosecution had formally offered its evidence, Abratique
was brought to the trial court by the NBI. In its order of said date, the trial court
pointed out that the prosecution could move to "reopen" the case for the taking of
Abratique's testimony. 90 On May 7, 1999, the prosecution so moved, stressing
that it had not yet formally offered its evidence and that the substantial rights of the
accused would not be prejudiced inasmuch as the latter had yet to present his
evidence. Appellant filed no opposition to the motion. The trial court granted the
motion six days later. Plainly, there was nothing to reopen, as the prosecution had
not formally rested its case. Moreover, the taking of Abratique's testimony was not
for the purpose of presenting additional evidence, but more properly for
the completion of his unfinished testimony. In U.S. vs. Base, 91 we held that a trial
court is not in error, if it opts to reopen the proceedings of a case, even after both
sides had rested and the case submitted for decision, by the calling of additional
witnesses or recalling of witnesses so as to satisfy the judge's mind with reference
to particular facts involved in the case. A judge cannot be faulted should he require
a material witness to complete his testimony, which is what happened in this case.
It is but proper that the judge's mind be satisfied on any and all questions presented
during the trial, in order to serve the cause of justice.
Appellant's claim that the trial court's concession to "reopen" the case unduly
prejudiced him is not well taken. We note that appellant had every opportunity to
present his evidence to support his case or to refute the prosecution's evidence
point-by-point, after the prosecution had rested its case. In short, appellant was
never deprived of his day in court. A day in court is the touchstone of the right to
due process in criminal justice. 92 Thus, we are unable to hold that a grave abuse
of discretion was committed by the trial court when it ordered the so-called
"reopening" in order to complete the testimony of a prosecution witness.
3. On the Sufficiency of the Prosecution's Evidence
In bidding for acquittal, appellant assails the credibility of Abratique as a
witness. Appellant insists that Abratique's testimony is profuse with lies, contrary
to human nature, hence incredible. According to appellant, Abratique was evasive
from the outset with respect to certain questions of the trial court. He adds that it
appeared the court entertained in particular the suspicion that witness Abratique
had conspired with appellant in committing the crime charged. Appellant questions
Abratique's motive in informing the NBI about his activities related to the marijuana
taking, transfer, and warehousing.
The OSG contends that Abratique's testimony, taken as a whole, is credible.
It points out that Abratique testified in a straightforward manner as to his
knowledge of the huge cache of prohibited drugs stashed by appellant in two
different places. His testimony, said the OSG, when fused with the physical
evidence consisting of 591.81 kilograms of marijuana found by law enforcers at
appellant's residence, inexorably leads to the inculpation of appellant.
It is the bounden duty of the courts to test the prosecution evidence
rigorously, so that no innocent person is made to suffer the unusually severe
penalties meted out for drug offenses. 93 Though we scrutinized minutely the
testimony of Abratique, we find no cogent reason to disbelieve him. From his
account, Abratique might appear aware treading the thin line between innocence
and feeling guilty, with certain portions of his story tending to be self-exculpatory.
However, his whole testimony could not be discredited. The established rule is that
testimony of a witness may be believed in part and disbelieved in other parts,
depending on the corroborative evidence and the probabilities and improbabilities
of the case. But it is accepted, as a matter of common sense, that if certain parts
of a witness' testimony are found true, his testimony cannot be disregarded
entirely. 94
Abratique testified in open court that appellant rented the taxicab he was
driving, and he helped appellant transport huge amounts of marijuana to
appellant's rented room at No. 27 Dr. Cariño St., Baguio City and to appellant's
residence at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City. He also
declared on the witness stand that out of fear of being involved, he decided to
divulge his knowledge of appellant's possession of large caches of marijuana to
the NBI. When the places referred to by Abratique were searched by the
authorities, marijuana in staggering quantities was found and seized by the law
enforcers. Stated plainly, the physical evidence in this case corroborated
Abratique's testimony on material points.
Appellant imputes questionable motives to Abratique in an effort to discredit
him. He demands that Abratique should likewise be prosecuted. However, by no
means is the possible guilt of Abratique a tenable defense for appellant. Nor would
Abratique's prosecution mean appellant's absolution.
In a prosecution for illegal possession of dangerous drugs, the following
facts must be proven with moral certainty: (1) that the accused is in possession of
the object identified as prohibited or regulated drug; (2) that such possession is not
authorized by law; and (3) that the accused freely and consciously possessed the
said drug. 95
We find the foregoing elements proven in Criminal Case No. 15800-R
beyond reasonable doubt.
In said case, the testimony of Abratique and the recovery of 591.81
kilograms of marijuana from appellant's residence served to prove appellant's
possession of a prohibited drug. Tests conducted by the NBI forensic chemist
proved the seized articles to be marijuana. These articles were seized pursuant to
a valid search warrant and hence, fully admissible in evidence.
In People v. de los Reyes, 239 SCRA 439 (1994), we held that the
Dangerous Drugs Act applies generally to all persons and proscribes the sale of
dangerous drugs by any person, and no person is authorized to sell such drugs.
Said doctrine is equally applicable with respect to possession of prohibited
drugs. Republic Act No. 6425, which penalizes the possession of prohibited drugs,
applies equally to all persons in this jurisdiction and no person is authorized to
possess said articles, without authority of law.
Anent the third element, we have held that to warrant conviction, possession
of illegal drugs must be with knowledge of the accused or that animus
possidendiexisted together with the possession or control of said
articles. 96 Nonetheless, this dictum must be read in consonance with our ruling
that possession of a prohibited drug per se constitutes prima facie evidence of
knowledge or animus possidendi sufficient to convict an accused absent a
satisfactory explanation of such possession. 97In effect, the onus probandi is
shifted to accused to explain the absence of knowledge or animus possidendi 98 in
this situation.
Appellant Modesto Tee opted not to testify in his defense. Instead, he
presented his mother as his lone witness, who testified on matters totally irrelevant
to his case. We can only conclude that, failing to discharge the burden of the
evidence on the possession of prohibited drug, appellant's guilt in Criminal Case
No. 15800-R was established beyond reasonable doubt.
4. On The Proper Penalty
Under Republic Act No. 6425 as amended by Republic Act No. 7659, the
penalty of reclusion perpetua to death and a fine ranging from five hundred
thousand pesos (P500,000.00) to ten million pesos (P10,000,000.00) 99 shall be
imposed if the quantity of marijuana involved in a conviction for possession of
marijuana or Indian hemp shall be 750 grams or more. 100
In the present case, the quantity of marijuana involved has been shown by
the prosecution to be far in excess of 750 grams, as stressed by the trial court:
The volume is rather staggering. It is almost one whole house or
one whole room. In fact, when they were first brought to the court, it took
hours to load them on the truck and hours also to unload them prompting
the court to direct that the boxes and sack of marijuana be instead kept at
the NBI office in Baguio. And the identification of said marijuana during
the trial was made in the NBI premises itself by the witnesses since it was
physically cumbersome and inconvenient to keep bringing them to the
court during every trial. 101
In sentencing appellant to death, the trial court noted not only the huge
quantity of marijuana bales involved, but also "the acts of accused of hiding them
in different places . . . and transferring them from place to place and making them
appear as boxes of cigarettes to avoid and evade apprehension and detection."
They showed his being a big supplier, said the trial court, [whose] criminal
perversity and craft that "deserve the supreme penalty of death." 102
We are unable to agree, however, with the penalty imposed by the trial court.
The legislature never intended that where the quantity involved exceeds those
stated in Section 20 of Republic Act No. 6425 the maximum penalty of death shall
automatically be imposed. 103 The statute prescribes two indivisible
penalties:reclusion perpetua and death. Hence, the penalty to be imposed must
conform with Article 63 104 of the Revised Penal Code. As already held, the death
penalty law,Republic Act No. 7659 did not amend Article 63 of the Revised Penal
Code. 105 The rules in Article 63 apply although the prohibited drugs involved are
in excess of the quantities provided for in Section 20 of Republic Act No.
6425. 106 Thus, finding neither mitigating nor aggravating circumstances in the
present case, appellant's possession of 591.81 kilograms of marijuana in Criminal
Case No. 15800-R, does not merit capital punishment but only the lesser penalty
The trial court imposed a fine on appellant in the sum of One Million Pesos
(P1,000,000.00), without subsidiary imprisonment in case of insolvency. The
imposition of a fine is mandatory in cases of conviction of possession of illegal
drugs. This being within the limits allowed by the law, the amount of the fine must
be sustained. All these sanctions might not remedy all the havoc wrought by
prohibited drugs on the moral fiber of our society, especially the youth. 107 But
these penalties should warn peddlers of prohibited drugs that they cannot ply their
trade in our streets with impunity.
WHEREFORE, the decision of the Regional Trial Court of Baguio City,
Branch 6, in Criminal Case No. 15800-R, convicting appellant MODESTO TEE
alias "ESTOY" TEE of violation of Section 8 of Republic Act No. 6425, as
amended, is AFFIRMED with the MODIFICATION that appellant is hereby
sentenced to suffer the penalty of reclusion perpetua. The fine of ONE MILLION
(P1,000,000.00) PESOS imposed on him is sustained. Appellant is likewise
directed to pay the costs of suit. IEHTaA
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Ynares-
Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Callejo, Sr. and Azcuna, JJ ., concur.
||| (People v. Tee, G.R. Nos. 140546-47, [January 20, 2003], 443 PHIL 521-554)
SECOND DIVISION
[G.R. No. L-25769. December 10, 1974.]
FRANCISCO FLORES and FRANCISCO

ANGEL, petitioners, vs. PEOPLE OF THE
PHILIPPINES, respondent.
Arturo Zialcita for petitioner Francisco Flores.
Zosimo Rivas for petitioner Francisco Angel.
Solicitor General Antonio P. Barredo and Solicitor Vicente A. Torres for
respondent.
DECISION
FERNANDO, J : p
A plea based on the constitutional right to a speedy trial 1 led this Court
to act affirmatively on a certiorari proceeding for the dismissal of a case then
pending in the Court of Appeals. Considering the length of time that had
elapsed, it is readily discernible why an inquiry into the matter is well-nigh
unavoidable. The accusation for robbery against petitioners Francisco Flores
and Francisco Angel was filed as far back as December 31, 1951. The decision
rendered on November 29, 1955 found them guilty of the crime charged. The
notice of appeal was filed on December 8, 1955. 2 For a period of three years,
until February 10, 1958, no action was taken by the Court of Appeals. On that
day, there was a resolution remanding the records of the case to the lower court
for a rehearing of the testimony of a certain witness deemed material for the
disposition of the case. 3 Such a resolution was amended by a second
resolution dated August 5, 1959, which granted the motion for counsel of
appellants, now petitioners, to set aside the decision so that evidence for the
defense on certain new facts or matters may be received and that a new
decision in lieu of the old one may be rendered in accordance with the facts as
found. 4 Accordingly, the case was returned to the lower court with the former
decision set aside so that the trial could be had, but nothing was done for about
a year because the offended party failed to appear notwithstanding the six or
seven dates set for such hearing. 5 It was further alleged that when thereafter
he did take the witness stand, his testimony was far from satisfactory,
characterized as a mere "fiasco" as he could no longer remember the details of
the alleged crime, there was even a failure to identify the two accused. 6 Instead
of rendering a new decision, the former one having been set aside as required
by the Court of Appeals, the lower court merely sent back the records to the
appellate tribunal. 7 At that stage, five more years having elapsed without
anything being done, petitioners sought the dismissal of the cases against them
due to such inordinate delay in their disposition, which covered the period of
December 8, 1955 to May 10, 1965, a period of almost a decade; thus did they
invoke their constitutional right to a speedy trial. 8 Respondent Court of Appeals
was unresponsive, notwithstanding the vigorous plea on the part of counsel for
petitioners, its last order being a denial of a second motion for reconsideration
dated January 28, 1966. In the answer on behalf of the People of the
Philippines, the facts as above set forth were substantially admitted. However,
a special and affirmative defense raised was that the case was not properly
captioned, as the People of the Philippines, against whom it is filed, is not a
tribunal or an office exercising Judicial functions and that without the Court of
Appeals being made a party to the petition, it cannot be said that it stated facts
sufficient to constitute a cause of action. Moreover, on the merits, the view was
expressed that under the circumstances, it was not adequately shown that the
right to a speedy trial had been violated, as the Court of Appeals had taken all
the steps necessary to complete the transcript of stenographic notes of the
original trial.
On the above undisputed facts, there is more than sufficient warrant for
the conclusion that the right to a speedy trial, so zealously guarded in both
the 1935and the present Constitutions, had not been accorded due respect.
There is thus merit in the petition.
1. The constitutional right to a speedy trial, as was noted in a recent
decision, Acebedo v. Sarmiento, 9 "means one free from vexatious, capricious
and oppressive delays, . . ." 10 Thus, if the person accused were innocent, he
may within the shortest time possible be spared from anxiety and apprehension
arising from a prosecution, and if culpable, he will not be kept long in suspense
as to the fate in store for him, within a period of course compatible with his
opportunity to present any valid defense. As was also pointed out in Sarmiento:
"The remedy in the event of a non-observance of this right is by habeas corpus
if the accused were restrained of his liberty, or by certiorari, prohibition, or
mandamus for the final dismissal of the case." 11 The above ruling is a
reiteration of the doctrine announced, even before the 1935 Constitution, in
Conde v. Rivera, 12 a 1924 decision. In that case, Justice Malcolm announced
categorically that the trial, to comply with the requirement of the then organic
law, the Philippine Autonomy Act, must be "free from vexatious, capricious, and
oppressive delays." 13 Further: "We lay down the legal proposition that, where
a prosecuting officer, without good cause, secures postponements of the trial
of a defendant against his protest beyond a reasonable period of time, as in this
instance for more than a year, the accused is entitled to relief by a proceeding
in mandamus to compel a dismissal of the information, or if he be restrained of
his liberty, by habeas corpus to obtain his freedom." 14
In the first Supreme Court decision after the 1935 Constitution took
effect, People v. Castañeda, 15 where it was shown that the criminal case had
been dragging on for almost five years and that when the trial did finally take
place, it was tainted by irregularities, this Court set aside the appealed decision
of conviction and acquitted the accused. As was pointed out by
the ponente, Justice Laurel: "The Government should be the last to set an
example of delay and oppression in the administration of justice and it is the
moral and legal obligation of this court to see that the criminal proceedings
against the accused come to an end and that they be immediately discharged
from the custody of the law." 16 It was on the basis of the above judgment that
the dismissal of a second information for frustrated homicide was ordered by
this Court, where the evidence disclosed that the first information had been
dismissed after a lapse of one year and seven months from the time the original
complaint was filed during which time on the three occasions the case was set
for trial, the private prosecutor twice asked for postponements and once the
trial court itself cancelled the entire calendar for the month it was supposed to
have been heard. 17 The same result followed in Esguerra v. De la
Costa, 18where the first complaint was filed on August 29, 1936, the accused
having been criminally prosecuted for an alleged abuse of chastity in a justice
of the peace court but after over a year and three months, with the lower court
twice dismissing the case, he still had to face trial for the same offense on a
new information, thus compelling him to resort to a mandamus suit to compel
the lower court to terminate the case was his right to a speedy trial was violated,
a remedy deemed appropriate by this Court.
There was another occasion where Justice Laurel spoke for this Court
on this specific issue. That was in Mercado v. Santos. 19 Here, for a period of
about twenty months, the accused was arrested four times on the charge of
falsifying his deceased wife's will. Twice, the complaints were subsequently
withdrawn. The third time he was prosecuted on the same charge, he was able
to obtain a dismissal. Then came on the part of the provincial fiscal, a motion
for reinvestigation. The lower court was in a receptive mood. It ordered that the
case be heard on the merits. The accused moved to dismiss, but he did not
succeed. He tried the Court of Appeals, but he failed again. He elevated the
matter to this Court; he prevailed. It was stressed in Justice Laurel's opinion:
"An accused person is entitled to a trial at the earliest opportunity. . . . He cannot
be oppressed by delaying the commencement of trial for an unreasonable
length of time. If the proceedings pending trial are deferred, the trial itself is
necessarily delayed." 20 The opinion likewise considered as not decisive the
fact that the provincial fiscal did not intervene until an information was filed
charging the accused with the crime of falsification the third time. Thus:
"The Constitution does not say that the right to a speedy trial may be availed of
only where the prosecution for crime is commenced and undertaken by the
fiscal. It does not exclude from its operation cases commenced by private
individuals. Where once a person is prosecuted criminally, he is entitled to a
speedy trial, irrespective of the nature of the offense or the manner in which it
is authorized to be commenced." 21 The latest decision in point, Acebedo v.
Sarmiento, 22 presented an even clearer case. The information for damage to
property was filed on August 3, 1959. There the matter rested until May 19,
1965, when the accused moved to dismiss. The lower court denied the motion
in his order of July 10, 1965. Two more years elapsed, the period now covering
almost eight years, when the trial was commenced. When one of the witnesses
for the prosecution failed to appear, the provincial fiscal sought the
postponement, but the accused countered with a motion for dismissal. The
lower court acceded, and this Court sustained him, even if thereafter it changed
its mind and reinstated the case.
Petitioners can thus invoke the constitutional guarantee that the trial
should be speedy. In the absence of any valid decision, the stage of trial has
not been completed. In this case then, as of May 10, 1965, when they moved
to dismiss in the Court of Appeals, petitioners could validly contend that they
had not been accorded their right to be tried as promptly as circumstances
permit. It was not the pendency in the Court of Appeals of their cases that
should be deemed material. It is at times unavoidable that appellate tribunals
cannot, even with due diligence, put an end to suits elevated to them. What is
decisive is that with the setting aside of the previous decision in the resolution
of August 5, 1959, petitioners could validly premise their plea for dismissal on
this constitutional safeguard. That is the sole basis for the conclusion reached
by us — considering the controlling doctrine announced with such emphasis by
this Court time and time again.
2. That is about all that needs be said. The crucial issue has been met.
The decisive question has been answered. There is an affirmation of the worth
of the constitutional right to a speedy trial. Not too much significance should be
attached to the procedural defect pointed out in the answer of the People of the
Philippines that the Court of Appeals should have been made the party
respondent. What cannot be sanctioned was its failure to accord respect to this
particular constitutional right. It did amount at the very least to a grave abuse of
discretion. Whatever deficiency in the pleading may then be singled out, it
cannot obscure the obvious disregard of one of the most important safeguards
granted an accused. To deny petitioners the remedy sought would be to exalt
form over substance. At any rate, the petition could be considered, and rightly
so, as being directed at the Court of Appeals. Moreover, the defenses that could
have interposed to justify the action taken were invoked by the People of the
Philippines. They certainly did not avail. Our decisions on the right to a speedy
Trial speak too categorically to be misread. This is one of those situations then
where, in the apt language of the then Justice, now Chief Justice, Makalintal,
"technicalities should give way to the realities of the situation." 23
WHEREFORE, the petition for certiorari is granted, and the order of the
Court of Appeals in CA-GR No. 16641-R entitled, People v. Francisco Flores,
et al., of September 28, 1965 denying the motion to dismiss as well as its order
of January 8, 1966 denying the motion for reconsideration, and the order of
January 28, 1966 denying the second motion for reconsideration are hereby
set aside, nullified, and considered of no force and effect. The criminal case
against petitioners in the aforesaid CA-GR No. 16641-R are ordered dismissed.
Costs de oficio.
Makalintal, C.J., Fernandez and Aquino, JJ., concur.
Barredo, J., did not take part.
Separate Opinions
ANTONIO, J., concurring:
My concurrence is predicated upon the fact that the previous decision

was set aside by the Resolution of August 5, 1959 of the Court of Appeals.
There is, therefore, no abandonment or modification of the principle enunciated
in Talabon vs. Iloilo Provincial Warden (78 Phil., 608-609).
||| (Flores v. People, G.R. No. L-25769, [December 10, 1974], 158 PHIL 967-975)
FIRST DIVISION
[G.R. No. 21741. January 25, 1924.]
AURELIA CONDE, petitioner, vs. PABLO RIVERA, acting

provincial fiscal of Tayabas, and FEDERICO M. UNSON,
justice of the peace of Lucena, Tayabas, respondents.
Godofredo Reyes for petitioner.

Attorney-General Villa-Real for respondents
SYLLABUS
1. CONSTITUTIONAL LAW; CRIMINAL PROCEDURE; SPEEDY

TRIAL. — Philippine organic and statutory law expressly guarantee that in all
criminal prosecutions the accused shall enjoy the right to have a speedy trial.
2. ID.; ID. — The Government of the Philippine Islands should be the last
to set an example of delay and oppression in the administration of justice.
3. ID.; ID.; ID.; MANDAMUS; HABEAS CORPUS. — WHERE A
Prosecuting officer, without good cause, secures postponements of the trial of
a defendant against his protest beyond a reasonable period of time, as in this
instance for more than a year, the accused is entitled to relief by a proceeding
in mandamus to compel a dismissal of the information, or if he be restrained of
his liberty, by habeas corpus to obtain his freedom.
DECISION
MALCOLM, J : p
Aurelia Conde, formerly a municipal midwife in Lucena, Tayabas, has

been forced to respond to no less the five information for various crimes and
misdemeanors, has appeared with her witnesses and counsel at hearings no
less than on eight different occasions only to see the cause postponed, has
twice been required to come to the Supreme Court for protection, and now,
after the passage of more than one year from the time when the first
information was filed, seems as far away from a definite resolution of her
troubles as she was when originally charged.
Philippine organic and statutory law expressly guarantee that in all
criminal prosecutions the accused shall enjoy the right to have a speedy trial.
Aurelia Conde, like all other accused persons, has a right to a speedy trial in
order that if innocent she may go free, and she has been deprived of that right
in defiance of law. Dismissed from her humble position, and compelled to
dance attendance on courts while investigations and trials are arbitrarily
postponed without her consent, is pal palpably and openly unjust to her and a
detriment to the public. By the use of upon the appropriate information, could
have attended to the formal preliminary examination, and could have
prepared the case for a trial free from vexatious, capricious, and oppressive
delays.
Once before, as intimated, the petitioner had to come to us for redress
of her grievances. We thought then we had pointed out the way for the
parties. We hope propose to do all in our power to assist this poor woman to
obtain justice. On the one hand has been the petitioner, of humble station,
without resources, but fortunately assisted by a persistent lawyer, while on the
other hand has been the Government of the Philippine Island s which should
be the last to set an example of delay and oppression in the administration of
justice. The Court is thus under a moral and legal obligation to see that these
proceedings come to an end and that the accused is discharged from the
custody of the law.
We lay down the legal proposition that, where a prosecuting officer,
without good cause, secures postponements of the trial of a defendant
against his protest beyond a reasonable period of time, as in this instance for
more than a year, the accused is entitled to relief by a proceeding in
mandamus to compel a dismissal of the information, or if he be restrained of
his liberty, by habeas corpus to obtain his freedom. (16 C.J., 439 et seq.; In
the matter of Ford [1911], 160 Cal., 334; U.S. vs. Fox [1880], 3 Montana, 512.
See further our previous decision in Conde vs. Judge of First Instance,
Fourteenth Judicial District, and the Provincial Fiscal of Tayabas, No. 21236. 1
The writ prayed for shall issue and the Provincial Fiscal of Tayabas
shall abstain from further attempts to prosecute the accused pursuant to
informations growing out of the facts set forth in previous in formations, and
the charges now pending before the justice of the of Lucena, Tayabas, are
ordered dismissed, with costs against the respondent fiscal. We append to
our order the observation that, without doubt, the Attorney-General, being fully
cognizant of the facts of record, will take such administrative action as to him
seems proper to the end that incidents of this character may not recur. So
ordered.
Araullo, C. J., Johnson, Street, Avanceña, Ostrand,
Johns, and Romualdez, JJ., concur.
Footnotes
1.Page 173, ante.
||| (Conde v. Rivera, G.R. No. 21741, [January 25, 1924], 45 PHIL 650-652)
Republic of the Philippines

Congress of the Philippines
Metro Manila
Tenth Congress
Republic Act No. 8493 February 12, 1998
AN ACT TO ENSURE A SPEEDY TRIAL OF ALL CRIMINAL CASES BEFORE THE

SANDIGANBAYAN, REGIONAL TRIAL COURT, METROPOLITAN TRIAL COURT, MUNICIPAL
TRIAL COURT, AND MUNICIPAL CIRCUIT TRIAL COURT, APPROPRIATING FUNDS
THEREFOR, AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives of the Philippines in Congress
assembled::
Section 1. Title. - This Act shall be known as the "Speedy Trial Act of 1998."
Section 2. Mandatory Pre-Trial in Criminal Cases. - In all cases cognizable by the Municipal Trial
Court, Municipal Circuit Trial Court, Metropolitan Trial Court, Regional Trial Court, and the
Sandiganbayan, the justice or judge shall, after arraignment, order a pre-trial conference to consider
the following:
(a) Plea bargaining;
(b) Stipulation of Facts;
(c) Marking for identification of evidence of parties;
(d) Waiver of objections to admissibility of evidence; and
(e) Such other matters as will promote a fair and expeditious trial.
Section 3. Pre-Trial Agreement. - All agreements or admissions made or entered into during the
pre-trial conference shall be reduced to writing and signed by the accused and counsel, otherwise
the same shall not be used in evidence against the accused. The agreements in relation to matters
referred to in Section 2 hereof is subject to the approval of the court: Provided, That the agreement
on the plea of the accused to a lesser offense may only be revised, modified, or annulled by the
court when the same is contrary to law, public morals, or public policy.
Section 4. Nonappearance at Pre-Trial Conference. - Where counsel for the accused or the
prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for
his/her lack of cooperation, the pre-trial justice or judge may impose proper sanctions or penalties.
Section 5. Pre-Trial Order. - After the pre-trial conference, the court shall issue an order reciting the
actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the
trial to matters not disposed of and control the course of action during the trial, unless modified by
the court to prevent manifest injustice.
Section 6. Time Limit for Trial. - In criminal cases involving persons charged of a crime, except
those subject to the Rules on Summary Procedure, or where the penalty prescribed by law does not
exceed six (6) months imprisonment, or a fine of One thousand pesos (P1,000.00) or both,
irrespective of other imposable penalties, the justice or judge shall, after consultation with the public
prosecutor and the counsel for the accused, set the case for continuous trial on a weekly or other
short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall
the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as
otherwise authorized by the Chief Justice of the Supreme Court pursuant to Section 3, Rule 22 of
the Rules of Court.
Section 7. Time Limit Between Filing of Information and Arraignment and Between
Arraignment and Trial. - The arraignment of an accused shall be held within thirty (30) days from
the filing of the information, or from the date the accused has appeared before the justice, judge or
court in which the charge is pending, whichever date last occurs. Thereafter, where a plea of not
guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. Trial shall
commence within thirty (30) days from arraignment as fixed by the court.
If the accused pleads not guilty to the crime charged, he/she shall state whether he/she interposes a
negative or affirmative defense. A negative defense shall require the prosecution to prove the guilt of
the accused beyond reasonable doubt, while an affirmative defense may modify the order of trial and
require the accused to prove such defense by clear and convincing evidence.
Section 8. Time Limit Following an Order for New Trial. - If the accused is to be tried again
following an order of a court for a new trial, the trial shall commence within thirty (30) days from the
date the order for a new trial becomes final, except that the court retrying the case may extend such
period but in any case shall not exceed one hundred eighty (180) days from the date the order for a
new trial becomes final if unavailability of witnesses or other factors resulting from passage of time
shall make trial within thirty (30) days impractical.
Section 9. Extended Time Limit. - Notwithstanding the provisions of Section 7 of this Act, for the
first twelve-calendar-month period following its effectivity, the time limit with respect to the period
from arraignment to trial imposed by Section 7 of this Act shall be one hundred eighty (180) days.
For the second twelve-month period the time limit shall be one hundred twenty (120) days, and for
the third twelve-month period the time limit with respect to the period from arraignment to trial shall
be eighty (80) days.
Section 10. Exclusions. - The following periods of delay shall be excluded in computing the time
within which trial must commence:
(a) Any period of delay resulting from other proceedings concerning the accused, including
but not limited to the following:
(1) delay resulting from an examination of the accused, and hearing on his/her
mental competency, or physical incapacity;
(2) delay resulting from trials with respect to charges against the accused;
(3) delay resulting from interlocutory appeals;
(4) delay resulting from hearings on pre-trial motions: Provided, That the delay does
not exceed thirty (30) days,
(5) delay resulting from orders of inhibition, or proceedings relating to change of

venue of cases or transfer from other courts;
(6) delay resulting from a finding of the existence of a valid prejudicial question; and
(7) delay reasonably attributable to any period, not to exceed thirty (30) days, during
which any proceeding concerning the accused is actually under advisement.
(b) Any period of delay resulting from the absence or unavailability of the accused or an
essential witness.
For purposes of this subparagraph, an accused or an essential witness shall be considered

absent when his/her whereabouts are unknown and, in addition, he/she is attempting to
avoid apprehension or prosecution or his/her whereabouts cannot be determined by due
diligence. An accused or an essential witness shall be considered unavailable whenever
his/her whereabouts are known but his/her presence for trial cannot be obtained by due
diligence or he/she resists appearing at or being returned for trial.
(c) Any period of delay resulting from the fact that the accused is mentally incompetent or
physically unable to stand trial.
(d) If the information is dismissed upon motion of the prosecution and thereafter a charge is
filed against the accused for the same offense, or any offense required to be joined with that
offense, any period of delay from the date the charge was dismissed to the date the time
limitation would commence to run as to the subsequent charge had there been no previous
charge.
(e) A reasonable period of delay when the accused is joined for trial with a co-accused over
whom the court has not acquired jurisdiction, or as to whom the time for trial has not run and
no motion for severance has been granted.
(f) Any period of delay resulting from a continuance granted by any justice or judge motu
propio or on motion of the accused or his/her counsel or at the request of the public
prosecutor, if the justice or judge granted such continuance on the basis of his/her findings
that the ends of justice served by taking such action outweigh the best interest of the public
and the defendant in a speedy trial. No such period of delay resulting from a continuance
granted by the court in accordance with this subparagraph shall be excludable under this
section unless the court sets forth, in the record of the case, either orally or in writing, its
reasons for finding that the ends of justice served by the granting of such continuance
outweigh the best interests of the public and the accused in a speedy trial.
Section 11. Factors for Granting Continuance. - The factors, among others, which a justice or
judge shall consider in determining whether to grant a continuance under subparagraph (f) of
Section 10 of this Act are as follows:
(a) Whether the failure to grant such a continuance in the proceeding would be likely to make
a continuation of such proceeding impossible, or result in a miscarriage of justice.
(b) Whether the case taken as a whole is so novel, so unusual and so complex, due to the
number of accused or the nature of the prosecution or otherwise, that it is unreasonable to
expect adequate preparation within the periods of time established by this Act.
No continuance under subparagraph (f) of Section 10 shall be granted because of general

congestion of the court's calendar, or lack of diligent preparation or failure to obtain available
witnesses on the part of the public prosecutor.
Section 12. Public Attorney's Duties Where Accused is Imprisoned. - If the public attorney
knows that a person charged of a crime is preventively detained, either because he/she is charged
of a bailable crime and has no means to post bail, or is charged of a non-bailable crime, or is serving
a term of imprisonment in any penal institution, the public attorney shall promptly:
(a) Undertake to obtain the presence of the prisoner for trial, or cause a notice to be served
on the person having custody of the prisoner mandating such person to so advise the
prisoner of his/her right to demand trial.
(b) Upon receipt of a notice, the person having custody of the prisoner shall promptly advise
the prisoner of the charge and of his/her right to demand trial. If at any time thereafter the
prisoner informs the person having custody that he/she demands trial, such person shall
cause notice to that effect to be sent promptly to the public attorney.
(c) Upon receipt of such notice, the public attorney shall promptly seek to obtain the
presence of the prisoner for trial.
(d) When the person having custody of the prisoner receives from the public attorney a
properly supported request for temporary custody of the prisoner for trial, the prisoner shall
be made available to that public attorney.
Section 13. Remedy Where Accused is Not Brought to Trial Within the Time Limit. - If an
accused is not brought to trial within the time limit required by Section 7 of this Act as extended by
Section 9, the information shall be dismissed on motion of the accused. The accused shall have the
burden of proof of supporting such motion but the prosecution shall have the burden of going
forward with the evidence in connection with the exclusion of time under Section 10 of this Act.
In determining whether to dismiss the case with or without prejudice, the court shall consider, among
other factors, the seriousness of the offense, the facts and circumstances of the case which led to
the dismissal, and the impact of a reprosecution on the implementation of this Act and on the
administration of justice. Failure of the accused to move for dismissal prior to trial or entry of a plea
of guilty shall constitute a waiver of the right to dismissal under this section.
Section 14. Sanctions. - In any case in which counsel for the accused, the public prosecution or
public attorney:
(a) knowingly allows the case to be set for trial without disclosing the fact that a necessary
witness would be unavailable for trial;
(b) files a motion solely for the purpose of delay which he/she knows is totally frivolous and
without merit;
(c) makes a statement for the purpose of obtaining continuance which he/she knows to be
false and which is material to the granting of a continuance; or
(d) otherwise willfully fails to proceed to trial without justification consistent with the
provisions of this Act, the court may, without prejudice to any appropriate criminal and/or
administrative charges to be instituted by the proper party against the erring counsel if and
when warranted, punish any such counsel or attorney, as follows:
(1) in the case of a counsel privately retained in connection with the defense of an
accused, by imposing a fine not exceeding; fifty percent (50%) of the compensation
to which he/she is entitled in connection with his/her defense of the accused;
(2) by imposing on any appointed counsel de officio or public prosecutor a fine not
exceeding Ten thousand pesos (10,000.00); and
(3) by denying any defense counsel or public prosecutor the right to practice before
the court considering the case for a period not exceeding thirty (30) days.
The authority to punish provided for by this section shall be in addition to any other authority
or power available to the court. The court shall follow the procedures established in the
Rules of Court in punishing any counsel or public prosecutor pursuant to this section.
Section 15. Rules and Regulations. - The Supreme Court shall promulgate rules, regulations,
administrative orders and circulars which shall seek to accelerate the disposition of criminal cases.
The rules, regulations, administrative orders and circulars formulated shall provide sanctions against
justices and judges who willfully fail to proceed to trial without justification consistent with the
provisions of this Act.
Section 16. Funding. - For the effective implementation of the rules, regulations, administrative
orders and circulars promulgated under this Act, the amount of Twenty million pesos
(P20,000,000.00) annually shall be appropriated from the allocation of the Supreme Court under the
General Appropriations Act. Thereafter, such additional amounts as may be necessary for its
continued implementation shall be included in the annual General Appropriations Act.
Section 17. Act Not a Bar to Speedy Trial Claim Under the Constitution. - No provision of this
Act shall be interpreted as a bar to any claim of denial of speedy trial as required by Article III,
Section 14(2) of the 1987 Constitution.
Section 18. Repealing Clause. - All laws, presidential decrees, executive orders, rules and
regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or
modified accordingly.
Section 19. Separability Clause. - In case any provision of this Act is declared unconstitutional, the
other provisions shall remain in effect.
Section 20. Effectivity. - This Act shall take effect after fifteen (15) days following its publication in
the Official Gazette or in any newspaper of general circulation: Provided, That Section 7 of this Act
shall become effective after the expiration of the aforementioned third-calendar-month period
provided in Section 9 of this Act.
Approved: February 12, 1998
FIRST DIVISION
[G.R. Nos. L-34756-59. March 31, 1973.]
MANUEL MATEO, JR., ROBERTO MARTINEZ alias RUBEN

MARTINEZ, ENRIQUE CONCEPClON and ESMERALDO
CRUZ, petitioners, vs. HON. ONOFRE VILLALUZ, as Judge of the
Circuit Criminal Court, Seventh Judicial District, respondents.
Jose W. Diokno, Apolinar S. Fojas, Sixto F. Santiago and Damian S.
Villaseca for petitioners.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General
Octavio R. Ramierz and Solicitor Guillermo C. Nakar, Jr. for respondent.
DECISION
FERNANDO, J : p
The novel issue presented in this prohibition proceeding arose from the
gnawing fear that the prized ideal of "the cold neutrality of an impartial
judge" 1 implicit in the due process guarantee may be set at naught.
Petitioners are among being tried by respondent Judge for the offense of
robbery in band with homicide. Thereafter, an extrajudicial statement by one
Rolando Reyes, who was later on likewise indicted for the same offense,
implicating petitioners, was subscribed before respondent Judge. That was
the background of a motion for his disqualification, as the aforesaid Rolando
Reyes, when called upon to testify as an additional witness for the
prosecution impugned his written declaration stating that it was executed as a
result of a threat by a government agent. It is now contended that such a
repudiation would not sit well with respondent Judge, who had thus placed
himself in a position of being unable to pass on such question with that
degree of objectivity required by due process, although admittedly, such a
move did not fall squarely within one of the specific grounds to inhibit
judges. 2 Respondent Judge turned down this plea for disqualification. Hence
this petition, based on the asserted violation of a constitutional right not to be
convicted of an offense without due process of law. This Court, after t careful
consideration of the matter and in the light of past decisions to be hereafter
noted, looks upon such failure of respondent Judge to disqualify himself as a
grave abuse of discretion correctible by prohibition. The petition is meritorious.
The facts, in the language of the petition, follow: "On or about June 4,
1971, the American Express Bank at Sangley Point, Cavite, was robbed and
an American serviceman was killed. In connection with that robbery, and the
death of the serviceman, four (4) criminal actions were filed against petitioners
and docketed as Criminal Cases Nos. CCC-VII-843 to 846, Cavite, for robbery
in band with homicide, all captioned 'People of the Philippines, Plaintiff, vs.
Manuel Mateo, et al., Accused' . . . The Information fell in the sala of the
Honorable Respondent Judge because the complaints were filed there; and, in
fact, it was the Honorable Respondent Judge who ordered District State
Prosecutor Cornelio Melendres [or] Assistant City Fiscal Enrique A. Cube to
conduct the preliminary investigation. Petitioners Manuel Mateo, Jr. and
Esmeraldo Cruz were arraigned on June 24, 1971 while petitioners Roberto
Martinez @ Ruben Martinez filed a Motion To Dismiss on the ground of
"insufficiency of evidence for failure of prosecution (1) to prove the existence of
conspiracy, and (2) to identify the accused by competent evidence.' On
September 25, 1971, petitioner Roberto Martinez @ Ruben Martinez amplified
his motion to dismiss with a Supplemental Motion based on the claim that 'the
pre-trial identification by prosecution witness Elliot Grey of your accused
Roberto Martinez in a police line-up in the absence of defendant's counsel is
unconstitutional; and the in-court testimony of said Elliot Grey identifying your
accused Roberto Martinez is inadmissible in evidence and should be stricken
out from the records'. The prosecution opposed the motion to dismiss. To date,
the motions to dismiss have not been decided by the Honorable Respondent
Judge . . . In the meantime, another suspect in the Sangley Point Robbery —
one Rolando Reyes — was arrested. On October 5, 1971, when petitioner's
Motion to Dismiss together with the Opposition thereto were submitted for
resolution, the Honorable Presiding Judge in an Order ruled that 'pursuant to
Sec. 6, Rule 135 of the New Rules of Court, let the Motion to Dismiss be
resolved until after the prosecution has presented and rested its evidence as
against Rolando Reyes . . . It appears that the said Rolando Reyes had
executed an extrajudicial statement on October 1, 1971 and had signed and
sworn to its truth before the Honorable Respondent Judge; and, in that
statement had implicated petitioners; evidently, the Honorable Respondent
Judge was aware of this, and it was for this reason that he had deferred ruling
on petitioner Ruben Martinez' motions and supplemental motion to dismiss 'until
after the prosecution has presented and rested its evidence as against Rolando
Reyes.' Rolando Reyes, however, was tried separately from and in absence of
petitioners; so that the proceedings against him did not constitute evidence
against petitioner. So, on November 26, 1971, while petitioner Martinez' Motion
and Supplemental Motion to Dismiss remained unresolved, the prosecution
filed a 'Motion to Present Additional Evidence.' . . . On December 4, 1971,
petitioner Manuel Mateo filed an Opposition to the prosecution's Motion to
Present Additional Evidence on the ground that 'to allow the prosecution to
present additional evidence in favor of the State after the prosecution has
rested, while the accused has a pending motion to dismiss under consideration
would be prejudicial to the substantial rights of herein accused because it would
effectively deprive him of a fair trial.' . . . On December 24, 1971, respondent
Judge granted the prosecution's 'Motion to Present Additional Evidence' ruling
that 'it is well settled jurisprudence in this jurisdiction and elsewhere that it is
within the sound discretion of the court whether or not to allow the presentation
of additional evidence after the parties have rested their case.' . . . On February
3, 1972, the prosecution called Rolando Reyes as an additional witness, and in
the course of his testimony, marked an extrajudicial statement purportedly
executed by him on October 1, 1971 as Exh. 'P' . . . Rolando Reyes repudiated
it, stated that he had executed it because he had been threatened by a
government agent. The statement, Exh. 'P' . . . , purports to have been
subscribed and sworn to before the respondent Judge on October 1, 1971. As
soon as the foregoing facts were made of record in the case, defendants
[petitioners herein] verbally moved to suspend the proceedings to enable them
to file a motion to disqualify the Honorable Respondent Judge; and the motion
for suspension was granted. On February 5, 1971, petitioners filed a Joint
Motion for Disqualification of respondent Judge contending that respondent
Judge 'in the exercise of his sound discretion [should] disqualify himself from
sitting in this case under the second paragraph of Section 1 of Rule 137 of the
Rules of Court,' because Rolando Reyes had repudiated the statement that he,
Reyes, had sworn to before the Honorable Respondent Judge and the latter
perforce would have to pass upon that repudiation . . . On February 11, 1972,
the prosecution filed an Opposition to petitioners' Joint Motion for
Disqualification . . . On February 12, 1972, respondent Judge denied petitioners'
Joint Motion for Disqualification." 3
The specific question raised not having been passed upon previously,
coupled with the exhaustive petition submitted by counsel for petitioners,
Senator Jose W. Diokno, led this Court, in its resolution of February 25, 1972
to require comment from respondent Judge, with a temporary restraining order
likewise being issued. The then Solicitor General, now Associate Justice, Felix
Antonio, did so in an equally well-researched pleading on March 16, 1972
which, by our resolution of March 22, was considered his answer. Thereafter,
with memoranda being submitted by both parties, the case was deemed
submitted for decision on August 4 last year. There is, to repeat, a highly
persuasive and scholarly quality in the manner in which the plea for petitioners
was made. Nonetheless, with due recognition of the imperative character of the
safeguard of due process connoting, at the very least, an impartial tribunal. the
Court cannot consider the circumstances disclosed a sufficient to call for the
disqualification of respondent Judge.
1. It is now beyond dispute that due process cannot be satisfied in the
absence of that degree of objectivity on the part of a judge sufficient to reassure
litigants of his being fair al being just. Thereby there is the legitimate expectation
that the decision arrived at would be the application of the law to the facts as
found by a judge who does not play favorites. For him, the parties stand on
equal footing. In the language of Justice Dizon: "It has been said, in fact, that
due process of law requires a hearing before an impartial and disinterested
tribunal, and that every litigant is entitled to nothing less than the cold neutrality
of an impartial judge." 4 He should, to quote from another decision "at all times
manifest depth commitment and concern to the cause of justice according to
legal norms, a cerebral man who deliberately holds in check the tug and pull of
purely personal preferences and prejudices which he shares with the rest of his
fellow mortals." 6 penned by Justice Castro, should strive to be at all times
"wholly free, disinterested, impartial and independent. Elementary due process
requires a hearing before an impartial and disinterested tribunal. A judge has
both the duty of rendering a just decision and the duty of doing it in a manner
completely free from suspicion as to its fairness and as to his integrity." 7 Nor is
this to imply that prior to Gutierrez, there had been no awareness of the due
process aspect of an impartial tribunal even if not explicitly referred to. As noted
by Justice Street as far back as 1926 in Government v. Abella, 8 a 1926
decision, if the Supreme Court "were of the opinion that the litigant had not had
a fair trial, a new trial could be granted." 9 There was a reiteration of such a view
in a case decided in 1933, Dais v. Torres, 10 with Justice Vickers asponente, in
these words: "Although a judge may not have been disqualified [according to
the Code of Civil Procedure], nevertheless if it appears to this court that the
appellant was not given a fair and impartial trial because of the trial judge's bias
or prejudice, this court will order a new trial, if it deems it necessary, in the
interest of justice." 11
2. Conformably to what was so emphatically asserted in Gutierrez as the
fundamental requisite of impartiality for due process to be satisfied, the Rules
of Court provision on disqualification when revised three years later in 1964
contains this additional paragraph: "A judge may, in the exercise of his sound
discretion, disqualify himself from sitting in a case, for just or valid reasons other
than those mentioned above." 12 Thereby, it is made clear to the occupants of
the bench that outside of pecuniary interest, relationship or previous
participation in the matter that calls for adjudication, there may be other causes
that could conceivably erode the trait of objectivity, thus calling for inhibition.
That is to betray a sense of realism, for the factors that lead to preferences or
predilections are many and varied. It is well, therefore, that if any such should
make its appearance and prove difficult to resist, the better course for a judge
is to disqualify himself. That way, he avoids being misunderstood. His
reputation for probity and objectivity is preserved. What is even more important,
the ideal of an impartial administration of justice is lived up to. Thus is due
process vindicated. There is relevance to what was said by Justice Sanchez in
Pimentel v. Salanga, 13 drawing "attention of all judges to appropriate
guidelines in a situation where their capacity to try and decide a case fairly and
judiciously comes to the fore by way of challenge from any one of the parties.
A judge may not be legally prohibited from sitting in a litigation. But when
suggestion is made of record that he might be induced to act in favor of one
party or with bias or prejudice against a litigant arising out of circumstance
reasonably capable of inciting such a state of mind, he should conduct a careful
self-examination. He should exercise his discretion in a way that the peoples
faith in the courts of justice is not impaired. A salutary norm is that he reflect the
probability that a losing party might nurture at the back of his mind the thought
that the judge had unmeritoriously tilted the scales of justice against him. That
passion on the part judge may be generated because of serious charges
misconduct against him by a suitor or his counsel, is not altogether remote. He
is a man, subject to the frailties of other men. He should, therefore, exercise
great care and caution before making up his mind to act or withdraw from a suit
where that party or counsel is involved. He could in good grace inhibit himself
where that case could be heard by another judge and where no appreciable
prejudice would be occasioned to others involved therein. On the result of his
decisions to sit or not to sit may depend to a great extent the all-important
confidence in the impartiality of the judiciary. If after reflection he should resolve
to voluntarily desist from sit a case where his motives or fairness might be
seriously impugned, his action is to be interpreted as giving meaning and
substance to the second paragraph of Section 1, Rule 137. He serves the cause
of the law who forestalls miscarriage of justice." 14
3. The imperfections of human institutions being such, what is fit and
proper is not always achieved. The invitation to judges to disqualify themselves
is not always heeded. For that matter, it is not always desirable that they should
do so. It could amount in certain cases to their being recreant to their trust.
Justice Perfecto's warning is not to be ignored; "to shirk the responsibility"
entails "the risk of being called upon to account for his dereliction." 15 It could
be an instrument whereby a party could inhibit a judge in the hope of getting
another more amenable to his persuasive skill. With all such considerations in
mind, there is still cogency in the approach that would look with favor on the
exercise of discretion in favor of disqualification, given the likelihood that bias
or prejudice is unavoidable. Even before the amendment of Section 1 of Rule
137, this Court, in at least two decisions, 16 gave its approval to such a move.
Then came People v. Gomez, 17 where this Court, the ponente being Justice J.
P. Bengzon, held: "Now considering that the Revised Rules of Court, already in
effect when respondent Judge filed his answer herein containing the prayer to
be disqualified from the case, although not yet in effect when the proceedings
at issue were taken in the court below, states in Section 1 of Rule 137 that, 'A
judge may, in the exercise of his sound discretion, disqualify himself from sitting
in a case, for just or valid reasons' other than the usual grounds for
disqualification, this Court, after considering all the circumstances of the case,
finds as reasonable, respondent Judge's afore-stated request for
disqualification from further sitting in the Richard case, and We rule that he is
thereby deemed, in light of the new Rules, to have inhibited himself from further
taking cognizance of the case." 18
There is even greater deference paid to the due process requirement of
impartiality when, in Luque v. Kayanan, 19 decided in 1969, this Court, through
Justice Sanchez, could categorically rule: "All suitors, we must say, are entitled
to nothing short of the cold neutrality of an independent, wholly-free,
disinterested and impartial tribunal. It has been said that 'next in importance to
the duty of rendering a righteous judgment is that of doing it in such a manner
as will beget no suspicion of the fairness and integrity of the judge.' Let it not
be said that the administration of justice in this country suffers from too many
human imperfections. To our mind, respondent judge should inhibit himself
since it has become apparent that his further continuance in Case 4871 would
not be in the best interest of justice, which he is bound to serve." 20 There was
a reiteration of such a principle in Paredes v. Gopengco, 21 where the following
appears in the opinion of Justice Teehankee for the Court: "It is pertinent to
state that the restriction provided in the Rule against appeal or stay of the
proceedings where the trial judge denies a motion for his disqualification is not
an absolute rule even in civil cases, and has not been taken as precluding a
resort in appropriate cases to the special civil actions of prohibition and
certiorari before the higher courts for determination, ahead of the judgment on
the merits, whether the trial judge committed a grave abuse of discretion
amounting to lack or excess of jurisdiction refusing to disqualify
himself." 22 There is thus respectable authority for the view that with the
possibility of a trial being tainted by partiality, this Court can step in to assure
respect for the demands of due process.
4. Petitioners can assert then, and rightly so, that we have the power to
set aside the order denying the motion for disqualification. While the discretion
in the first instance belongs to respondent Judge, its exercise is subject to our
corrective authority. Certainly, there can be no question its being considered
abused if it can be shown that to refuse inhibition is to cast valid doubts as to a
court's impartiality. The specific issue then that must be resolved is whether the
circumstance of a party having subscribed before respondent Judge an extra-
judicial statement purporting to describe the manner in which an offense was
committed, later on repudiated by him as the product of intimidation in the
course of his having been asked to testify against petitioners, would suffice to
negate that degree of objectivity the Constitution requires? The answer must
be in the affirmative. Petitioners are thus entitled to the relief sought.
Respondent Judge could not be totally immune to what apparently was
asserted before him in such extrajudicial statement. Moreover, it is unlikely that
he was not in the slightest bit offended by the affiant's turnabout with his later
declaration that there was intimidation by a government agent exerted on him.
That was hardly flattering to respondent Judge. It is not only that. His sense of
fairness under the circumstances could easily be blunted. The absence of the
requisite due process element is thus noticeable. There is this circumstance
even more telling. It was he who attested to its due execution on October 1,
1971 wherein Rolando Reyes admitted his participation in the crime and in
addition implicated petitioners. At that time, their motion for dismissal of the
charges against them was pending; its resolution was deferred by respondent
Judge until after the prosecution had presented and rested its evidence against
affiant, who was himself indicted and tried for the same offense, but in a
separate proceeding. It cannot be doubted then that respondent Judge in effect
ruled that such extra-judicial statement was executed freely. With its repudiation
on the ground that it was not so at all, coercion having come into the picture
there is apparent the situation of a judge having to pass on a question that by
implication had already been answered by him. Such a fact became rather
obvious. For respondent Judge was called upon to review a matter on which he
had previously given his opinion. It is this inroad in one's, objectivity that is
sought to be avoided by the law on disqualification. The misgivings then as to
the requirement of due process for "the cold neutrality of an impartial judge" not
being met are more than justified. Hence the conclusion reached by us.
5. To avoid any further controversies of this nature, lower court judges
are well-advised to limit themselves to the task of adjudication and to leave to
others the role of notarizing declarations. The less an occupant of the bench
fritters away his time and energy in tasks more incumbent on officials of the
executive branch, the less the danger of his being a participant in any event
that might lend itself to the interpretation that his impartiality has been
compromised. There is much to be said for displaying zeal and eagerness in
stamping out criminality, but that role is hardly fit for a judge who must bide his
time until the case is before him. He must ever be on guard lest what is done
by him, even from the best of motives, may be thought of as eroding that
objectivity and sobriety which are the hallmarks of judicial conduct. Thus should
he attend to the performance of the sacred trust that is his.
WHEREFORE, the petition for prohibition is granted. The restraining
order is issued by this Court on February 25, 1972 is made permanent. Without
pronouncement as to costs.
Makalintal, Zaldivar, Castro, Barredo, Makasiar, Antonio and Esguerra,
JJ., concur.
Concepcion, C.J., concurs in this and the separate concurring opinion of
Mr. Justice Teehankee.
Teehankee, J., concurs in a separate opinion.
(Mateo, Jr. v. Villaluz, G.R. Nos. L-34756-59, [March 31, 1973], 151-A PHIL 21-
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34)
EN BANC
[G.R. No. L-30104. July 25, 1973.]
HON. GREGORIO N. GARCIA City Court of Manila, and

FRANCISCO LORENZANA, petitioners, vs. HON. FELIX
DOMINGO, Judge of the Court of First Instance of Manila,
EDGARDO CALO and SIMEON CARBONNEL, respondents.
Andres R. Narvasa, Manuel V . Chico and Felipe B. Pagkanlungan for

petitioners.
Rafael S. Consengco for respondent Calo, et al.
Respondent Judge in his own behalf.
RESOLUTION
FERNANDO, J : p
The pivotal question in this petition for certiorari and prohibition, one
which thus far has remained unresolved, is the meaning to be accorded the
constitutional right to public trial. 1 More specifically, did respondent Judge
commit a grave abuse of discretion in stigmatizing as violative of such a
guarantee the holding of the trial of the other respondents 2 inside the chambers
of city court Judge Gregorio Garcia named as petitioner. 3 That was done in the
order now impugned in this suit, although such a procedure had been agreed
to beforehand by the other respondents as defendants, the hearings have been
thus conducted on fourteen separate occasions without objection on their part,
and without an iota of evidence offered to substantiate any claim as to any other
person so minded being excluded from the premises. It is thus evident that what
took place in the chambers of the city court judge was devoid of haste or
intentional secrecy. For reasons to be more fully explained in the light of the
facts ascertained — the unique aspect of this case having arisen from what
turned out to be an unseemly altercation, force likewise being employed, due
to the mode in which the arrest of private petitioner for a traffic violation was
sought to be effected by the two respondent policemen thus resulting in charges
and counter-charges with eight criminal cases being tried jointly by city court
Judge in the above manner — we rule that there was no transgression of the
right to a public trial, and grant the petition.
It was alleged and admitted in the petition: "In Branch I of the City Court
of Manila presided over by petitioner Judge, there were commenced, by
appropriate informations all dated January 16, 1968, eight (8) criminal actions
against respondents Edgardo Calo, and Simeon Carbonnel and Petitioner
Francisco Lorenzana, as follows: a. Against Edgardo Calo (on complaint of
Francisco Lorenzana) (1) Criminal Case No. F-109191, for slight physical
injuries; (2) Criminal Case No. F-109192, also for slight physical injuries; and
(3) Criminal Case No. F-109193, for maltreatment; b. Against Simeon
Carbonnel (id.) (1) Criminal Case No. F-109197, for maltreatment; (2) Criminal
Case No. F-109196, for slight physical injuries; and (3) Criminal Case No. F-
109198 for light threats; (c) Against Francisco Lorenzana (on complaint of Calo
and Carbonnel) (1) Criminal Case No. F-109201, for violation of Sec. 887 of the
Revised Ordinances of Manila (resisting an officer); and (2) Criminal Case No.
F-109200, for slander." 4 The above was followed by this recital: "The trial of
the aforementioned cases was jointly held on March 4, 1968, March 18, 1968,
March 23, 1968, March 30, 1968, April 17, 1968, April 20, 1968, May 4, 1968,
May 11, 1968, June 1, 1968, June 15, 1968, June 22, 1968, June 29, 1968,
August 3, 1968 and August 10, 1968. All the fourteen (14) trial dates — except
March 4 and 18, and April 17, 1968 — fell on a Saturday. This was arranged by
the parties and the Court upon the insistence of respondents Calo and
Carbonnel who, as police officers under suspension because of the cases,
desired the same to be terminated as soon as possible and as there were many
cases scheduled for trial on the usual criminal trial days (Monday, Wednesday
and Friday), Saturday was agreed upon as the invariable trial day for said eight
(8) criminal cases." 5 Also this: "The trial of the cases in question was held, with
the conformity of the accused and their counsel, in the chambers of Judge
Garcia." 6 Then came these allegations in the petition: "During all the fourteen
(14) days of trial, spanning a period of several months (from March to August,
1968), the accused were at all times represented by their respective counsel,
who acted not only in defense of their clients, but as prosecutors of the
accusations filed at their clients' instance. There was only one (1) day when
Atty. Consengco, representing respondent Calo and Carbonnel, was absent.
This was on April 20, 1968. But at the insistence of Pat. Carbonnel, the trial
proceeded, and said respondent cross-examined one of the witnesses
presented by the adverse party. In any case, no pretense has been made by
the respondents that this constituted an irregularity correctible on certiorari. At
the conclusion of the hearings the accused, thru counsel, asked for and were
granted time to submit memoranda. Respondents Calo and Carbonnel, thru
counsel, Atty. Rafael Consengco, submitted a 14-page memorandum with not
less than 35 citations of relevant portions of the transcript of stenographic notes
in support of their prayer for exoneration, and for the conviction of petitioner
Lorenzana in respect of their countercharges against the latter. It is worthy of
note that up to this date, said respondents Calo and Carbonnel had not
objected to — pointed out — any supposed irregularity in the proceedings thus
far; the memorandum submitted in their behalf is confined to a discussion of the
evidence adduced in, and the merits of the cases." 7 It was stated next in the
petition: "The promulgation of judgment was first scheduled on September 23,
1968. This was postponed to September 28, 1968, at the instance of Atty.
Rafael Consengco, as counsel for respondents Calo and Carbonnel, and again
to October 1, 1968 at 11 o'clock in the morning, this time at the instance of Atty.
Consengco and Atty. Francisco Koh who had, in the meantime, also entered
his appearance as counsel for respondents Calo and Carbonnel. The
applications for postponement were not grounded upon and supposed defect
or irregularity of the proceedings." 8
Mention was then made of when a petition for certiorari was filed with
respondent Judge: "Early in the morning of October 1, 1968, Edgardo Calo and
Simeon Carbonnel, thru their counsel, Atty. Rafael S. Consengco, filed with the
Court of First Instance a petition for certiorari and prohibition, with application
for preliminary prohibitory and mandatory injunction . . . [alleging jurisdictional
defects]." 9 Respondent Judge acting on such petition forthwith issued a
restraining order thus causing the deferment of the promulgation of the
judgment. After proceedings duly had, there was an order from him "declaring
that 'the constitutional and statutory rights of the accused' had been violated,
adversely affecting their 'right to a free and impartial trial' [noting] ;that the trial
of these cases lasting several weeks were held exclusively in chambers and
not in the court room open to the public';" and ordering the city court Judge,
now petitioner, "to desist from reading or causing to be read or promulgated the
decisions he may have rendered already in the criminal cases (in question) . . .
pending in his Court, until further orders of this Court.'" 10
A motion for reconsideration proving unavailing, petitioners on January
28, 1969, elevated the matter to this Tribunal by means of the present suit for
certiorari and prohibition. In its resolution of February 3, 1969, respondents
were required to answer, with a preliminary injunction likewise being issued. As
was to be expected the answer filed by respondent Judge on March 11, 1969
and that by the other respondents on March 19, 1969 did attempt to justify the
validity of the finding that there was a failure to respect the right to a public trial
of accused persons. Neither in such pleadings nor in the memorandum filed,
although the diligence displayed by counsel was quite evident, was there any
persuasive showing of a violation of the constitutional guarantee of a public trial,
the basic issue to be resolved. Rather it was the mode of approach followed by
counsel Andres R. Narvasa for petitioners that did manifest a deeper
understanding of its implications and ramifications. Accordingly, as previously
stated, it is for us to grant the merits prayed for.
1. The 1935 Constitution which was in force at the time of the
antecedents of this petition, as set forth at the outset, explicitly enumerated the
right to a public trial to which an accused was entitled. So it is, as likewise made
clear, under the present dispensation. As a matter of fact, that was one
constitutional provision that needed only a single, terse summation from the
Chairman of the Committee on the Bill of Rights, Delegate, later Justice, Jose
P. Laurel, to gain acceptance. As was stressed by him: "Trial should also be
public in order to offset any danger of conducting it in an illegal and unjust
manner." 11 It would have been surprising if its proposed inclusion in the Bill of
Rights had provoked any discussion, much less a debate. It was merely a
reiteration of what appeared in the Philippine Autonomy Act of 1916, popularly
known as the Jones Law. 12 Earlier, such a right found expression in the
Philippine Bill of 1902, likewise an organic act of the then government of this
country as an unincorporated territory of the United States. 13 Historically, as
was pointed out by Justice Black, speaking for the United States Supreme
Court in the leading case of In re Oliver: 14 "This nation's accepted practice of
guaranteeing a public trial to an accused has its roots in [the] English common
law heritage." 15He then observed that the exact date of its origin is obscure,
"but it likely evolved long before the settlement of [the United States] as an
accompaniment of the ancient institution of jury trial." 16 It was then noted by
him that there, "the guarantee to an accused of the right to a public trial first
appeared in a state constitutionin 1776." 18 He could conclude his historical
survey thus: "Today almost without exception every state by constitution,
statute, or judicial decision, requires that all criminal trials be open to the
public." 19 Such is the venerable, historical lineage of the right to a public trial.
2. The crucial question of the meaning to be attached this provision
remains. The Constitution guarantees an accused the right to a public trial.
What does it signify? Offhand it does seem fairly obvious that here is an
instance where language is to be given a literal application. There is no
ambiguity in the words employed. The trial must be public. It possesses that
character when anyone interested in observing the manner a judge conducts
the proceedings in his courtroom may do so. There is to be no ban on such
attendance. His being a stranger to the litigants is of no moment. No
relationship to the parties need be shown. The thought that lies behind this
safeguard is the belief that thereby the accused is afforded further protection,
that his trial is likely to be conducted with regularity and not tainted with any
impropriety. It is not amiss to recall that Delegate Laurel in his terse summation
of the importance of this right singled out its being a deterrence to arbitrariness.
It is thus understandable why such a right is deemed embraced in procedural
due process. 20 Where a trial takes place, as is quite usual, in the courtroom
and a calendar of what cases are to be heard is posted, no problem arises. It
is the usual course of events that individuals desirous of being present are free
to do so. There is the well recognized exception though that warrants the
exclusion of the public where the evidence may be characterized as "offensive
to decency or public morals."21
What did occasion difficulty in this suit was that for the convenience of
the parties, and of the city court Judge, it was in the latter's air-conditioned
chambers that the trial was held. Did that suffice to vitiate the proceedings as
violative of this right? The answer must be in the negative. There is no showing
that the public was thereby excluded. It is to be admitted that the size of the
room allotted the Judge would reduce the number of those who could be
present. Such a fact though is not indicative of any transgression of this right.
Courtrooms are not of uniform dimensions. Some are smaller than others.
Moreover, as admitted by Justice Black in his masterly In re Oliver opinion, it
suffices to satisfy the requirement of a trial being public if the accused could
"have his friends, relatives and counsel present, no matter with what offense he
may be charged." 22
Then, too, reference may also be made to the undisputed fact at least
fourteen hearings had been held in chambers of the city court Judge, without
objection on the part of respondent policemen. What was said by former Chief
Justice Moran should erase any doubt as to the weight to be accorded, more
appropriate]y the lack of weight, to any such objection now raised. Thus: "In
one case, the trial of the accused was held in Bilibid prison. The accused,
invoking his right to a public trial, assigned the procedure thus taken as error.
The Supreme Court held that as it affirmatively appears on the record that the
accused offered no objection to the trial of his case in the place where it was
held, his right is deemed waived." 23 The decision referred to, United States v.
Mercado, 24 was handed down sixty-eight years ago in 1905.
It does seem that the challenged order of respondent is far from being
invulnerable.
3. That is all that need be said as to the obvious merit of this petition. One
other objection to the conduct of the proceedings by the city court Judge may
be briefly disposed of. Respondent Judge would seek to lend support to an
order at war with the obvious meaning of a constitutional provision by harping
on the alleged abdication by an assistant fiscal of his control over the
prosecution. Again here there was a failure to abide by settled law. If any party
could complain at all, it is the People of the Philippines for whom a fiscal speaks
and acts. The accused cannot in law be termed an offended party for such an
alleged failure to comply with official duty. Moreover, even assuming that
respondent policemen could be heard to raise such a grievance, respondent
Judge ought to have been aware that thereby no jurisdictional defect was
incurred by the city court Judge. As was so emphatically declared by Justice
J.B.L. Reyes in Cariaga v. Justo-Guerrero: 25 "The case below was
commenced and prosecuted without the intervention, mediation or participation
of the fiscal or any of his deputies. This, notwithstanding, the jurisdiction of the
court was not affected . . . but the court should have cited the public prosecutor
to intervene . . . ," 26
4. There is much to be said of course for the concern displayed by
respondent Judge to assure the reality as against the mere possibility of a trial
being truly public. If it were otherwise, such a right could be reduced to a barren
form of words. To the extent then that the conclusion reached by him was
motivated by an apprehension that there was an evasion of a constitutional
command, he certainly lived up to what is expected of a man of the robe. Further
reflection ought to have convinced him though that such a fear was unjustified.
An objective appraisal of conditions in municipal or city courts would have gone
far in dispelling such misgivings. The crowded daily calendar, the nature of the
cases handled, civil as well as criminal, the relaxed attitude on procedural rules
not being strictly adhered to all make for a less tense atmosphere. As a result
the attendance of the general public is much more in evidence; nor is its
presence unwelcome. When it is remembered further that the occupants of
such courts are not chosen primarily for their legal acumen, but taken from that
portion of the bar more considerably attuned to the pulse of public life, it is not
to be rationally expected that an accused would be denied whatever solace and
comfort may come from the knowledge that a judge, with the eyes of the
persons in court alert to his demeanor and his rulings, would run the risk of
being unjust, unfair, or arbitrary. Nor does it change matters, just because, as
did happen here, it was in the air-conditioned chambers of a city court judge
rather than in the usual place that the trial took place.
WHEREFORE, the writ of certiorari prayed for is granted nullifying,
setting aside, and declaring bereft of any legal force or effect the order of
respondent Judge Felix Domingo, dated November 29, 1968 for being issued
with grave abuse of discretion. The writ of prohibition sought by petitioner is
likewise granted, commanding respondent Judge or any one acting in his place
to desist from any further action in Civil Case No. 74830 of the Court of First
Instance of Manila, except that of dismissing the same. The preliminary writ of
injunction issued by this Court in its resolution of February 26, 1969 against the
actuation of respondent Judge is made permanent. With costs against
respondent policemen, Edgardo Calo and Simeon Carbonnel.
Makalintal, Actg. C .J ., Teehankee, Makasiar, Antonio and Esquerra,
JJ ., concur.
Castro, J ., did not take part.
Zaldivar and Barredo, JJ ., are on leave.
(Garcia v. Domingo, G.R. No. L-30104 (Resolution), [July 25, 1973], 152 PHIL
|||
129-139)
EN BANC
[A.M. No. 01-4-03-SC. September 13, 2001.]
RE: REQUEST FOR LIVE RADIO-TV COVERAGE OF THE

TRIAL IN THE SANDIGANBAYAN OF THE PLUNDER CASES
AGAINST FORMER PRESIDENT JOSEPH E. ESTRADA
SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN

NG MGA BRODKASTER NG PILIPINAS, CESAR SARINO,
RENATO CAYETANO, and ATTY. RICARDO
ROMULO, petitioners, vs. JOSEPH E. ESTRADA and
INTEGRATED BAR OF THE PHILIPPINES, oppositors.
Fortun Narvasa & Salazar Law Offices and Saguisag and Associates Law
Offices for J. Estrada.
SYNOPSIS
This is a motion for reconsideration of the decision of the Court denying

petitioners' request for permission to televise and broadcast live the trial of
former President Joseph E. Estrada before the Sandiganbayan. This motion
was filed by the Secretary of Justice, as one of the petitioners, who argued
that there is really no conflict between the right of the people to public
information and the freedom of the press, on one hand, and, on the other, the
right of the accused to a fair trial. He further elaborated that if there is a clash
between these rights, it must be resolved in favor of the right of the people
and the press because the people, as the repository of sovereignty, are
entitled to information, and live media coverage is a safeguard against
attempts by any party to use the courts as instruments for the pursuit of
selfish interests. On the other hand, former President Joseph E. Estrada
reiterated his objection to the live TV and radio coverage of his trial on the
ground that its allowance will violate the sub judice rule. ETHSAI
The Court ruled that considering the significance of the trial before the
Sandiganbayan of former President Estrada and the importance of preserving
the records thereof, the Court believes that there should be an audio-visual
recording of the proceedings. The recordings will not be for live or real time
broadcast but fordocumentary purposes. Only later will they be
available for public showing, after the Sandiganbayan shall have promulgated
its decision in every case to which the recording pertains. The master film
shall be deposited in the National Museum and in the Records Management
and Archives Office for historical preservation and exhibition pursuant to law.
SYLLABUS
1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT

OF PEOPLE TO INFORMATION ON MATTERS OF PUBLIC CONCERN; AUDIO-
VISUAL RECORDING OF THE PLUNDER CASES AGAINST FORMER
PRESIDENT JOSEPH E. ESTRADA WILL BE FOR DOCUMENTARY
PURPOSES ONLY. — Considering the significance of the trial before the
Sandiganbayan of former President Estrada and the importance of preserving the
records thereof, the Court believes that there should be an audio-visual recording
of the proceedings. The recordings will not be for live or real time broadcast
but for documentary purposes. Only later will they be available forpublic showing,
after the Sandiganbayan shall have promulgated its decision in every case to
which the recording pertains. The master film shall be deposited in the National
Museum and the Records Management and Archives Office for historical
preservation and exhibition pursuant to law.
2. ID.; ID.; ID.; ID.; ID.; RULES FOR AUDIO-VISUAL RECORDING INSIDE
THE COURTROOM. — For the purpose of recording the proceedings, cameras
will be inconspicuously installed in the courtroom and the movement of TV crews
will be regulated, consistent with the dignity and solemnity of the proceedings. The
trial shall be recorded in its entirety, except such portions thereof as the
Sandiganbayan may decide should not be held public pursuant to Rule 119, §21
of the Revised Rules of Criminal Procedure. No comment shall be included in the
documentary except annotations which may be necessary to explain certain
scenes which are depicted. The audio-visual recordings shall be made under the
supervision and control of the Sandiganbayan or its Division as the case may be.
3. ID.; ID.; ID.; ID.; ID.; REASONS FOR TELEVISED RECORDING. —
There are several reasons for such televised recording. First, the hearings are of
historic significance. They are an affirmation of our commitment to the rule that
"the King is under no man, but he is under God and the law." (Quod Rex non debet
esse sub homine, sed sub Deo et Lege.) Second, the Estrada cases involve
matters of vital concern to our people who have a fundamental right to know how
their government is conducted. This right can be enhanced by audio-visual
presentation. Third, audio-visual presentation is essential for the education and
civic training of the people. Above all, there is the need to keep audio-visual
records of the hearings for documentary purposes. The recordings will be
useful in preserving the essence of the proceedings in a way that the cold print
cannot quite do because it cannot capture the sights and sounds of events. They
will be primarily for the use of appellate courtsin the event a review of the
proceedings, rulings, or decisions of the Sandiganbayan is sought or becomes
necessary. The accuracy of the transcripts of stenographic notes taken during the
trial can be checked by reference to the tapes. SEIacA
4. ID.; ID.; ID.; ID.; ID.; PURPOSE FOR THE DELAY OF THE RELEASE
OF THE TAPES FOR BROADCAST. — On the other hand, by delaying the
release of the tapes forbroadcast, concerns that those taking part in the
proceedings will be playing to the cameras and will thus be distracted from the
proper performance of their roles — whether as counsel, witnesses, court
personnel, or judges — will be allayed. The possibility that parallel trials before the
bar of justice and the bar of public opinion may jeopardize, or even prevent, the
just determination of the cases can be minimized. The possibility that judgment will
be rendered by the popular tribunal before the court of justice can render its own
will be avoided. At the same time, concerns about the regularity and fairness of the
trial — which, it may be assumed, is the concern of those opposed to, as much as
of those in favor of, televised trials — will be addressed since the tapes will not be
released for public showing until after the decision of the cases by the
Sandiganbayan. By delaying the release of the tapes, much of the problem posed
by real time TV and radio broadcast will be avoided.
5. ID.; ID.; ID.; ID.; ID.; RIGHT OF PRIVACY OF THE ACCUSED IS NOT A
BAR TO THE PRODUCTION OF SUCH DOCUMENTARY. — Nor is the right of
privacy of the accused a bar to the production of such documentary. In Ayer
Productions Pty. Ltd. v. Capulong, this Court set aside a lower court's injunction
restraining the filming of "Four Day Revolution," a documentary film depicting,
among other things, the role of then Minister of National Defense Juan Ponce
Enrile in the 1986 EDSA people power. This Court held: "A limited intrusion into a
person's privacy has long been regarded as permissible where that person is a
public figure and the information sought to be elicited from him or to be published
about him constitute matters of a public character."
6. ID.; ID.; ID.; ID.; MAKING OF A MOVIE BASED ON THE TRIAL COULD
NOT BE PREVENTED. — No one can prevent the making of a movie based on
the trial. But, at least, if a documentary record is made of the proceedings, any
movie that may later be produced can be checked for its accuracy against such
documentary and any attempt to distort the truth can thus be averted.
7. ID.; ID.; ID.; ID.; DOCUMENTARY RECORDING OF CELEBRATED
CASES; EXPLAINED. — Indeed, a somewhat similar proposal for documentary
recording of celebrated cases or causes célèbres was made way back in 1971 by
Paul Freund of the Harvard Law School. As he explained: "In fairness let me refer
to an American experience many of my lay friends found similarly moving. An
educational television network filmed a trial in Denver of a Black Panther leader on
charges of resisting arrest, and broadcast the document in full, in four installments,
several months after the case was concluded — concluded incidentally, with a
verdict of acquittal. No one could witness the trial without a feeling of profound
respect for the painstaking way in which the truth was searched for, for the ways
whereby law copes with uncertainties and ambiguities through presumptions and
burden of proof, and the sense of gravity with which judge and jury carried out their
responsibilities. I agree ingeneral with the exclusion of television from the
courtroom, for the familiar good reasons. And yet the use of television at a
trial for documentary purposes, not for the broadcast of live news, and with the
safeguards of completeness and consent, is an educational experiment that I
would be prepared to welcome. Properly safeguarded and with suitable
commentary, the depiction of an actual trial is an agency of enlightenment that
could have few equals in its impact on the public understanding. Understanding of
our legal process, so rarely provided by our educational system, is now a
desperate need." Professor Freund's observation is as valid today as when it was
made thirty years ago. It is perceptive for its recognition of the serious risks posed
to the fair administration of justice by live TV and radio broadcasts, especially
when emotions are running high on the issues stirred by a case, while at the same
time acknowledging the necessity of keeping audio-visual recordings of the
proceedings of celebrated cases, for public information and exhibition, after
passions have subsided.
8. ID.; ID.; ID.; ID.; CONDITIONS FOR AUDIO-VISUAL RECORDING OF
THE TRIAL. — [A]n audio-visual recording of the trial of former President Estrada
before the Sandiganbayan is hereby ordered to be made, for the account of the
Sandiganbayan, under the following conditions: (a) the trial shall be recorded in its
entirety, excepting such portions thereof as the Sandiganbayan may determine
should not be held public under Rule 119, §21 of the Rules of Criminal Procedure;
(b) cameras shall be installed inconspicuously inside the courtroom and the
movement of TV crews shall be regulated consistent with the dignity and solemnity
of the proceedings; (c) the audio-visual recordings shall be made for documentary
purposes only and shall be made without comment except such annotations of
scenes depicted therein as may be necessary to explain them; (d)
the live broadcast of the recordings before the Sandiganbayan shall have
rendered its decision in all the cases against the former President shall be
prohibited under pain of contempt of court and other sanctions in case of violations
of the prohibition; (e) to ensure that the conditions are observed, the audio-visual
recording of the proceedings shall be made under the supervision and control of
the Sandiganbayan or its Division concerned and shall be made pursuant to rules
promulgated by it; and (f) simultaneously with the release of the audio-visual
recordings for public broadcast, the original thereof shall be deposited in the
National Museum and the Records Management and Archives
Office for preservation and exhibition in accordance with law.
VITUG, J., Separate Opinion:
1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE
PROCESS; NOT DIMINISHED BY ADVANCES IN SCIENCE AND
TECHNOLOGY. — Due process is timeless. It is a precious fundamental right that
secures and protects, under a rule of law, the life and liberty of a person from the
oppression of power. A cherished fixture in our bill of rights, its encompassing
guarantee will not be diminished by advances in science and technology.
2. ID.; ID.; ID.; RIGHT OF PEOPLE TO INFORMATION ON MATTERS OF
PUBLIC CONCERN; CAN BE ACHIEVED VIA OTHER MEDIA COVERAGE
OTHER THAN LIVERADIO/TV COVERAGE. — I see it as being an implicit retreat,
unwisely, from an age-old struggle of the individual against the tyranny of the
sovereign. The right of the public to information, in any event, is not here really
being sacrificed. The right to know can very well be achieved via other media
coverage; the windows of information through which the public might observe and
learn are not closed.
3. ID.; ID.; ID.; ID.; ID.; AUDIO-VISUAL RECORDING OF THE PLUNDER
CASES AGAINST FORMER PRESIDENT JOSEPH E. ESTRADA WILL
BE FOR DOCUMENTARY PURPOSES ONLY; REASONS. — In addressing the
present motion for reconsideration, colleagues on the Court opine that there
should be an audio-visual recording of the proceedings for documentary purposes
because, first, the hearings are of historic significance; second, the Estrada cases
involve matters of vital concern to our people who have a fundamental right to
know how their government works; third, the audio-visual presentation is
essential for education and civic training of the people; and fourth, such recording
can be used by appellate courts in the event that the review of the proceedings,
ruling, or decisions of the Sandiganbayan is sought or becomes necessary.
4. ID.; ID.; ID.; ID.; ID.; EXPERIENCE ATTESTS TO THE INTIMIDATING
EFFECT OF CAMERAS AND ELECTRONIC DEVICES IN COURTROOMS. —
The proposition has novel features; regrettably, I still find it hard to believe that the
presence of the cameras inside the courtroom will not have an untoward impact
on the court proceedings. No empirical data has been shown to suggest otherwise.
To the contrary, experience attests to the intimidating effect of cameras and
electronic devices incourtrooms on the litigants, witnesses and jurors. In addition,
the natural reticence of witnesses at the stand can even easily be exacerbated by
placing them on camerain contravention of normal experience. The demeanor of
the witnesses can also have an abstruse effect on the ability of the judge to
accurately assess the credibility of such witnesses. The presence of
cameras, for whatever reason, may not adequately address the dangers
mentioned in the Court's decision of 29 June 2001. There are just too many
imponderables.
5. ID.; ID.; ID.; ID.; ID.; IT IS NOT PRIVACY THAT CAN CAUSE CONCERN
MORE THAN THE EROSION OF REALITY THAT CAMERAS TEND TO CAST.
— Most importantly, it does not seem right to single out and make a spectacle of
the cases against Mr. Estrada. Dignity is a precious part of personality
innate in every human being, and there can be no cogent excuse for impinging it
even to the slightest degree. It is not the problem of privacy that can cause concern
more than the erosion of reality that cameras tend to cast. TcEDHa
6. ID.; ID.; ID.; ID.; ID.; THE RULE MUST BE OF GENERAL APPLICATION.
— In the petition, albeit entitled an administrative matter, the only issue raised is
whether the cases of a former President pending before the Sandiganbayan can
be covered by live television and radio broadcast. The matter now being sought to
be addressed by my esteemed colleagues is not even an issue. If it has to be
considered at all, the rule must be of general application and promulgated after a
thorough study and deliberation, certainly far more than what have been said and
done in this case. Hearings, where expert opinion is sought and given, should
prove to be helpful and of value.
RESOLUTION
MENDOZA, J : p
This is a motion for reconsideration of the decision denying

petitioners' request for permission to televise and broadcast live the trial of former
President Estrada before the Sandiganbayan. The motion was filed by the
Secretary of Justice, as one of the petitioners, who argues that there is really no
conflict between the right of the people to public information and the freedom of
the press, on the one hand, and, on the other, the right of the accused to a fair trial;
that if there is a clash between these rights, it must be resolved in favor or of the
right of the people and the press because the people, as the repository of
sovereignty, are entitled to information; and that live media coverage is a
safeguard against attempts by any party to use the courts as instruments for the
pursuit of selfish interests.
STCDaI
On the other hand, former President Joseph E. Estrada reiterates his

objection to the live TV and radio coverage of his trial on the ground that its
allowance will violate the sub judice rule and that, based on his experience with
the impeachment trial, live media coverage will only pave the way for so-called
"expert commentary" which can trigger massive demonstrations aimed at
pressuring the Sandiganbayan to render a decision one way or the other. Mr.
Estrada contends that the right of the people to information may be served through
other means less distracting, degrading, and prejudicial than live TV
and radio coverage.
The Court has considered the arguments of the parties on this important
issue and, after due deliberation, finds no reason to alter or in any way modify its
decision prohibiting live or real time broadcast by radio or television of the trial of
the former president. By a vote of nine (9) to six (6) of its members, 1 the Court
denies the motion for reconsideration of the Secretary of Justice.
In lieu of live TV and radio coverage of the trial, the Court, by the vote of
eight (8) Justices, 2 has resolved to order the audio-visual recording of the
trial fordocumentary purposes. Seven (7) Justices 3 vote against the audio-visual
recording of the trial.
What follows is the opinion of the majority.
Considering the significance of the trial before the Sandiganbayan of former
President Estrada and the importance of preserving the records thereof, the Court
believes that there should be an audio-visual recording of the proceedings. The
recordings will not be for live or real time broadcast but for documentary purposes.
Only later will they be available for public showing, after the Sandiganbayan shall
have promulgated its decision in every case to which the recording pertains. The
master film shall be deposited in the National Museum and the Records
Management and Archives Office for historical preservation and exhibition
pursuant to law. 4
For the purpose of recording the proceedings, cameras will be
inconspicuously installed in the courtroom and the movement of TV crews will be
regulated, consistent with the dignity and solemnity of the proceedings. The trial
shall be recorded in its entirety, except such portions thereof as the
Sandiganbayan may decide should not be held public pursuant to Rule 119, §21
of the Revised Rules of Criminal Procedure. No comment shall be included in the
documentary except annotations which may be necessary to explain certain
scenes which are depicted. The audio-visual recordings shall be made under the
supervision and control of the Sandiganbayan or its Division as the case may be.
There are several reasons for such televised recording. First, the hearings
are of historic significance. They are an affirmation of our commitment to the rule
that "the King is under no man, but he is under God and the law." (Quod Rex non
debet esse sub homine, sed sub Deo et Lege.) Second, the Estrada cases involve
matters of vital concern to our people who have a fundamental right to know how
their government is conducted. This right can be enhanced by audio-visual
presentation. Third, audio-visual presentation is essential for the education and
civic training of the people.
Above all, there is the need to keep audio-visual records of the
hearings for documentary purposes. The recordings will be useful in preserving
the essence of the proceedings in a way that the cold print cannot quite do
because it cannot capture the sights and sounds of events. They will be
primarily for the use of appellate courtsin the event a review of the proceedings,
rulings, or decisions of the Sandiganbayan is sought or becomes necessary. The
accuracy of the transcripts of stenographic notes taken during the trial can be
checked by reference to the tapes.
On the other hand, by delaying the release of the tapes for broadcast,
concerns that those taking part in the proceedings will be playing to the cameras
and will thus be distracted from the proper performance of their roles — whether
as counsel, witnesses, court personnel, or judges — will be allayed. The possibility
that parallel trials before the bar of justice and the bar of public opinion may
jeopardize, or even prevent, the just determination of the cases can be minimized.
The possibility that judgment will be rendered by the popular tribunal before the
court of justice can render its own will be avoided.
At the same time, concerns about the regularity and fairness of the trial —
which, it may be assumed, is the concern of those opposed to, as much as of
those infavor of, televised trials — will be addressed since the tapes will not be
released for public showing until after the decision of the cases by the
Sandiganbayan. By delaying the release of the tapes, much of the problem posed
by real time TV and radio broadcast will be avoided.
Thus, many important purposes for preserving the record of the trials can be
served by audio-visual recordings without impairing the right of the accused to a
fair trial.
Nor is the right of privacy of the accused a bar to the production of such
documentary. In Ayer Productions Pty. Ltd. v. Capulong, 5 this Court set aside a
lower court's injunction restraining the filming of "Four Day Revolution," a
documentary film depicting, among other things, the role of then Minister of
National Defense Juan Ponce Enrile in the 1986 EDSA. people power. This Court
held: "A limited intrusion into a person's privacy has long been regarded as
permissible where that person is a public figure and the information sought to be
elicited from him or to be published about him constitute matters of a public
character." 6
No one can prevent the making of a movie based on the trial. But, at least,
if a documentary record is made of the proceedings, any movie that may later be
produced can be checked for its accuracy against such documentary and any
attempt to distort the truth can thus be averted.
Indeed, a somewhat similar proposal for documentary recording of
celebrated cases or causes célèbres was made way back in 1971 by Paul Freund
of the Harvard Law School. As he explained:
In fairness let me refer to an American experience many of my lay
friends found similarly moving. An educational television network filmed a
trial in Denver of a Black Panther leader on charges of resisting arrest,
and broadcast the document in full, in four installments, several months
after the case was concluded — concluded incidentally, with a verdict of
acquittal.
No one could witness the trial without a feeling of profound
respect for the painstaking way in which the truth was
searched for, for the ways whereby law copes with uncertainties and
ambiguities through presumptions and burden of proof, and the sense of
gravity with which judge and jury carried out their responsibilities.
I agree in general with the exclusion of television from the
courtroom, for the familiar good reasons. And yet the use of television at
a trial for documentary purposes, not for the broadcast of live news, and
with the safeguards of completeness and consent, is an educational
experiment that I would be prepared to welcome. Properly safeguarded
and with suitable commentary, the depiction of an actual trial is an agency
of enlightenment that could have few equals in its impact on the public
understanding.
Understanding of our legal process, so rarely provided by our
educational system, is now a desperate need. 7
Professor Freund's observation is as valid today as when it was made thirty
years ago. It is perceptive for its recognition of the serious risks posed to the fair
administration of justice by live TV and radio broadcasts, especially when
emotions are running high on the issues stirred by a case, while at the same time
acknowledging the necessity of keeping audio-visual recordings of the
proceedings of celebrated cases, for public information and exhibition, after
passions have subsided.
WHEREFORE, an audio-visual recording of the trial of former President
Estrada before the Sandiganbayan is hereby ordered to be made, for the account
of the Sandiganbayan, under the following conditions: (a) the trial shall be
recorded in its entirety, excepting such portions thereof as the Sandiganbayan
determine should not be held public under Rule 119, §21 of the Rules of Criminal
Procedure; (b) cameras shall be installed inconspicuously inside the courtroom
and the movement of TV crews shall be regulated consistent with the dignity and
solemnity of the proceedings; (c) the audio-visual recordings shall be
made for documentary purposes only and shall be made without comment except
such annotations of scenes depicted therein as may be necessary to explain them;
(d) the live broadcast of the recordings before the Sandiganbayan shall have
rendered its decision in all the cases against the former President shall be
prohibited under pain of contempt of court and other sanctions in case of violations
of the prohibition; (e) to ensure that the conditions are observed, the audio-visual
recording of the proceedings shall be made under the supervision and control of
the Sandiganbayan or its Division concerned and shall be made pursuant to rules
promulgated by it; and (f) simultaneously with the release of the audio-visual
recordings for public broadcast, the original thereof shall be deposited in the
National Museum and the Records Management and Archives
Office forpreservation and exhibition in accordance with law.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Panganiban and Gonzaga-Reyes,
JJ., concur.
Bellosillo, J., I am for full live coverage hence I maintain my original view;
nevertheless, I concur.
Vitug, J., pls. see Separate Opinion.
Kapanun, J., I maintain my original view prohibiting live T.V.
and radio coverage and concur with the separate opinion of Justice Vitug.
Quisumbing, J., although earlier I respectfully Dissented, as I favor live TV
coverage — I now concur in the Result.
Pardo, J., I concur with the denial of the motion for reconsideration only. The
conditions are inadequate. I join J. Vitug's opinion.
Buena, Ynares-Santiago and De Leon, JJ., concur with the Separate
Opinion of Justice Vitug.
Sandoval-Gutierrez, J., I concur but only in the denial with finality of the MR.
Separate Opinions
VITUG, J :p
Due process is timeless. It is a precious fundamental right that secures and

protects, under a rule of law, the life and liberty of a person from the oppression of
power. A cherished fixture in our bill of rights, its encompassing guarantee will not
be diminished by advances in science and technology. I fail to perceive it to be
otherwise.
Precisely, in its 29th June 2001 decision, the Court did not consider it
propitious to allow live television and radio coverage of the trial in order to help
ensure a just and fair trial. The Court felt it judicious to insulate not only the
Sandiganbayan but also the trial participants, the lawyers and witnesses, from
being unduly influenced by possible adverse effects that such a coverage could
bring. Petitioner filed a motion for reconsideration of the above ruling and
countered that, if one must be pitted against the other, the right to public
information of grave national interest should be held more paramount than the right
of the accused to a "fair and public trial," the former being appurtenant to the
sovereign and the latter being merely a privilege bestowed to an individual.
I am not ready to accept such a notion. I see it as being an implicit retreat,
unwisely, from an age-old struggle of the individual against the tyranny of the
sovereign.1 The right of the public to information, in any event, is not here really
being sacrificed. The right to know can very well be achieved via other media
coverage; the windows of information through which the public might observe and
learn are not closed. IATHaS
In addressing the present motion for reconsideration, colleagues on the

Court opine that there should be an audio-visual recording of the
proceedings fordocumentary purposes because, first, the hearings are of historic
significance; second, the Estrada cases involve matters of vital concern to our
people who have a fundamental right to know how their government works; third,
the audio-visual presentation is essential for education and civic training of the
people; and fourth, such recording can be used by appellate courts in the event
that the review of the proceedings, ruling, or decisions of the Sandiganbayan is
sought or becomes necessary. 2
The proposition has novel features; regrettably, I still find it hard to believe
that the presence of the cameras inside the courtroom will not have an untoward
impact on the court proceedings. No empirical data has been shown to suggest
otherwise. To the contrary, experience attests to the intimidating effect of cameras
and electronic devices in courtrooms on the litigants, witnesses and
jurors. 3 In addition, the natural reticence of witnesses at the stand can even easily
be exacerbated by placing them on camera in contravention of normal
experience. 4 The demeanor of the witnesses can also have an abstruse effect on
the ability of the judge to accurately assess the credibility of such witnesses. 5 The
presence of cameras, for whatever reason, may not adequately address the
dangers mentioned in the Court's decision of 29 June 2001. There are just too
many imponderables.
Most importantly, it does not seem right to single out and make a spectacle
of the cases against Mr. Estrada. Dignity is a precious part of personality
innate inevery human being, and there can be no cogent excuse for impinging it
even to the slightest degree. It is not the problem of privacy that can cause concern
more than the erosion of reality that cameras tend to cast.
In the petition, albeit entitled an administrative matter, the only issue raised
is whether the cases of a former President pending before the Sandiganbayan can
be covered by live television and radio broadcast. The matter now being sought to
be addressed by my esteemed colleagues is not even an issue. If it has to be
considered at all, the rule must be of general application and promulgated after a
thorough study and deliberation, certainly far more than what have been said and
done in this case. Hearings, where expert opinion is sought and given, should
prove to be helpful and of value.
WHEREFORE, I concur but only in the denial with finality of the
motion for reconsideration.
Footnotes
1.Nine (9) members of the court, namely, JUSTICES VITUG, KAPUNAN, MENDOZA,
PARDO, BUENA, GONZAGA-REYES, YNARES-SANTIAGO, DE LEON, and
SANDOVAL-GUTIERREZ, vote to deny reconsideration, while six (6), namely,
Chief Justice DAVIDE, JR. and JUSTICES BELLOSILLO, MELO, PUNO,
PANGANIBAN, and QUISUMBING, vote to grant a reconsideration.
2.CHIEF JUSTICE DAVIDE, JR. and JUSTICES BELLOSILLO, MELO, PUNO,
MENDOZA, PANGANIBAN, QUISUMBING, and GONZAGA-REYES
3.JUSTICES VITUG, KAPUNAN, PARDO, BUENA, YNARES-SANTIAGO, DE LEON,
and SANDOVAL-GUTIERREZ .
4.R.A. No. 8492 provides in pertinent parts:
SEC. 7. Duties and Function. — The [National] Museum shall have the following duties
and functions:
7.1. Acquire documents, collect, preserve, maintain, administer and exhibit to the
public, cultural materials, objects of art, archaeological artifacts, ecofacts, relics
and other materials embodying the cultural and natural heritage of the Filipino
nation, as well as those of foreign origin. Materials relevant to the recent history
of the country shall be likewise acquired, collected, preserved, maintained,
advertised and exhibited by the Museum. (Emphasis added)
DEPARTMENT ORDER NO. 13-A, stated May 9, 1985, of the Department of

Education, Culture and Sports provides:
Rule 7. Transfer of Records to Archives. — . . .
7.5 Preservation of Archival Records.
7.5.1 Archival records shall be stored under one roof and authorize their
accessibility to the public, subject to certain security and safety measures to
preserve the integrity of the records.
7.5.2 It shall be the responsibility of the Archives Division to protect archival
documents in its custody and undertake corrective measures to rehabilitate
weakened or brittled documents in accordance with modern techniques.
5.160 SCRA 861 (1988). Cf. Lagunzad v. Soto Vda. de Gonzales, 92 SCRA 476 (1979),
involving the novelized film on the life of Moises Padilla, a mayoralty candidate
of Magallon, Negros Occidental, who was murdered for political reasons at the
instance of then Governor Rafael Lacson.
6.Id. at 870.
7.Paul A. Freund, Contempt Power: Prevention, Not Retribution, TRIAL, January-
February 1971 at 13.
VITUG, J.:
1.See Frankfurter, J., in Bridges v. California, 314 US 252.
2.Resolution, pp. 3-4.
3.Picturing Justice: Images of Law and Lawyers in the Visual Media, Gerard uelmen,
University of San Francisco law review, Summer 1996.
4."The Continuing debate Over Cameras in the Courtroom," Federal Lawyers, July
1995
5.Supra, pp. 1-2
(Perez v. Estrada, A.M. No. 01-4-03-SC (Resolution), [September 13, 2001],
|||
417 PHIL 395-409)
EN BANC
[A.M. No. 10-11-5-SC. October 23, 2012.]
IN RE: PETITION FOR RADIO AND TELEVISION COVERAGE

OF THE MULTIPLE MURDER CASES AGAINST MAGUINDANAO
GOVERNOR ZALDY AMPATUAN, ET AL.
[A.M. No. 10-11-6-SC. October 23, 2012.]
RE: PETITION FOR THE CONSTITUTION OF THE PRESENT

COURT HANDLING THE TRIAL OF THE MASSACRE OF 57
PERSONS, INCLUDING 32 JOURNALISTS, IN AMPATUAN,
MAGUINDANAO INTO A SPECIAL COURT HANDLING THIS
CASE ALONE FOR THE PURPOSE OF ACHIEVING GENUINE
SPEEDY TRIAL; AND FOR THE SETTING UP OF VIDEOCAM
AND MONITOR OUTSIDE THE COURT FOR THE JOURNALISTS
TO COVER AND FOR THE PEOPLE TO WITNESS THE "TRIAL
OF THE DECADE" TO MAKE IT TRULY PUBLIC AND
IMPARTIAL AS COMMANDED BY THE CONSTITUTION.
[A.M. No. 10-11-7-SC. October 23, 2012.]

RE: LETTER OF PRESIDENT BENIGNO S. AQUINO III FOR THE
"LIVE MEDIA COVERAGE OF THE MAGUINDANAO
MASSACRE TRIAL".
NOTICE
Sirs/Mesdames :
Please take notice that the Court en banc issued a Resolution

dated OCTOBER 23, 2012 which reads as follows:
"A.M. No. 10-11-5-SC (In re: Petition for Radio and Television Coverage
of the Multiple Murder Cases against Maguindanao Governor Zaldy
Ampatuan, et al.); A.M. No. 10-11-6-SC (Re: Petition for the constitution of
the present court handling the trial of the massacre of 57 persons, including
32 journalists, inAmpatuan, Maguindanao into a Special Court handling this
case alone for the purpose of achieving genuine speedy trial; and for the
setting up of videocam and monitor outside the court for the journalists to
cover and for the people to witness the "Trial of the Decade" to make it truly
public and impartial as commanded by the Constitution); A.M. No. 10-11-7-
SC (Re: Letter of President Benigno S. Aquino III for the "Live Media
Coverage of the Maguindanao Massacre Trial"). — On June 14, 2011, this
Court, through Associate Justice Conchita Carpio-Morales, promulgated
a Resolution 1 (the June 14, 2011 Resolution) partially granting pro hac
vice the request for live broadcast by television and radio of the trial court
proceedings of the "Maguindanao massacre" cases, 2 subject to specific
guidelines fully set forth in said Resolution.
Subsequently, counsels for petitioners Editha Mirandilla Tiamzon (Tiamzon)
and Glenna Legarta (Legarta) filed a Partial
Motion for Reconsideration dated June 29, 2011 alleging that "the provisos (1)
prohibiting broadcasts on the trial without any voice-overs, except brief annotations
of scenes depicted in the proceeding that may be necessary to explain them at the
start or at the end of the scene; (2) prohibiting the repeat airing of the audio-visual
recording except upon finality of judgment or of brief footage and still images
derived from or cartographic sketches of scenes based on the recording, and
only for news purposes; and (3) requiring continuous broadcast without any
commercial break or any other gap except when the day's proceedings are
adjourned, or during the period of recess called by the trial court and during
portions of the proceedings wherein the public is ordered excluded, all substitute
the Court's editorial judgment for media's own and therefore constitute prior
restraint that infringes the constitutional right to free expression." 3
HECaTD
Petitioners Tiamzon and Legarta take issue on provisos (f), (g), and (h) of
the enumerated guidelines in the June 14, 2011 Resolution and allege that these
must be struck down for being unconstitutional, as they constitute prior restraint on
free expression because they dictate what media can and cannot report about the
"Maguindanao massacre" trial. Petitioners Tiamzon and Legarta maintain that the
restriction and penalty sought to be imposed on media produce a "chilling effect"
on all forms of expression about the court proceedings. Petitioners Tiamzon and
Legarta also add that proviso (h) constitutes an undue taking of property rights as
it "forces media outfits to commit practically [a] big chunk of their resources to the
coverage of the trial without any commercial breaks except under allowable
situations . . . ." 4
Accused Andal Ampatuan, Jr. (Ampatuan) also filed
a Motion for Reconsideration dated June 27, 2011, alleging that the June 14,
2011 Resolution "deprives him of his rights to due process, equal protection,
presumption of innocence, and to be shielded from degrading psychological
punishment." 5
Ampatuan contends that this Court should accord more
vigilance in safeguarding his rights as an accused because the immense publicity
and adverse public opinion which live media coverage can produce would affect
everyone, including the judge, witnesses for the accused, and the families and
relatives of all concerned parties. Ampatuan states that this Court should not bend
to the clamour of pressure groups, such as media journalists, but should
push for the basic judicial and democratic principles of fair play and balanced
judicial process. Ampatuan asserts that "live media coverage of the trial is cruel
and degrading punishment for the accused even before he is convicted by final
judgment." 6
In a Resolution dated July 5, 2011, this Court required Ampatuan to
comment on the Partial Motion for Reconsideration by petitioners Tiamzon and
Legarta, and also required the petitioners to comment on Ampatuan's
Motion for Reconsideration.
Ampatuan filed an Opposition dated August 1, 2011, alleging that
"petitioners want to secure conviction by maximizing whatever opportunity mass
communications media will extend to them." 7 Ampatuan asserts that there is "no
content-based restriction, only responsible journalism" 8 with the guidelines
provided by this Court when it mandated that no voice-overs be made during
the live telecast of the hearings. Ampatuan also contends that there was no undue
taking of private property as the coverage is voluntary and only those who are
serious enough may avail of the opportunity to report on the hearings. Ampatuan
maintains that "media coverage must not be allowed as it infringes on his
constitutional rights to fair trial, presumption of innocence and to an impartial
tribunal . . . ." 9
Petitioners National Union of Journalists of the Philippines (NUJP), et
al. filed a Motion for Leave of Court to File Comment (to Tiamzon and Legarta's
Partial Motion for Reconsideration) dated August 15, 2011, alleging that while
they were not directed by this Court to comment on their co-petitioners' partial
motionfor reconsideration, they deemed it necessary to file a comment in order to
clarify some matters that may affect its resolution. IDTSaC
In their Consolidated Comment (to Tiamzon and Legarta's Partial

Motion for Reconsideration and Ampatuan's Motion for Reconsideration) dated
August 15, 2011, petitioners NUJP, et al. allege that Ampatuan's
motion for reconsideration has failed to present new and convincing arguments
that would merit reversal of this Court's ruling in the June 14, 2011 Resolution.
Petitioners NUJP, et al. declare that they opted not to file a
motion for reconsideration since they recognize the good faith underlying the
gestures of this Court, specifically in providing in paragraph (k) of the guidelines
that called for the creation of a special committee. This, according to petitioners
NUJP, et al. shows that this Court is "giving room for flexibility and experimentation
and is aware that the guidelines cannot possibly anticipate all the problems and
concerns that live television coverage of the Ampatuan trial will
encounter." 10 Moreover, petitioners NUJP, et al. aver that this Court, through the
Court Administrator, has already addressed some of the concerns of the petitioner-
media practitioners through a dialogue on June 22, 2011.
The Office of the Solicitor General (OSG) filed a Comment dated August
24, 2011, for President Benigno S. Aquino III, alleging that the arguments
raised inAmpatuan's motion for reconsideration are a mere rehash of the issues
which have already been judiciously passed upon by this Court. The OSG
maintains that "the coverage by live media of hearings neither constitutes a
barbarous act nor inflicts upon the accused inhuman physical harm or torture that
is shocking to the conscience. The fact that more than the usual number of court
attendees could witness the criminal trial will not convert the attendance thereto
into a degrading and cruel punishment." 11 The OSG avers that Ampatuan failed
to adduce any new matter to modify the Resolution of this Court. DcITaC
Upon reconsideration, and after weighing once more the rights guaranteed
by the Constitution that are involved in this case, this Court partially grants
reconsideration of the June 14, 2011 Resolution. For reasons to be discussed
below, this Court is now disallowing the live media broadcast of the trial of the
"Maguindanao massacre" cases but is still allowing the filming of the
proceedings for (1) the real-time transmission to specified viewing areas, and (2)
documentation.
The Court in the June 14, 2011 Resolution recognized "the impossibility of
accommodating even the parties to the cases — the private complainants/families
of the victims and other witnesses — inside the courtroom," as there were 57
victims and 197 accused that were involved, and under strict guidelines, made use
of modern technology "to provide the only solution to break the inherent limitations
of the courtroom, to satisfy the imperative of a transparent, open and public trial." 12
Upon review of the matter, however, the Court has sought a way to provide
a public trial as required by the Constitution 13 and the Rules, 14 which is a right
granted to the accused, without inviting media frenzy that affect the due process
rights of the accused in this high-profile case.
While this Court recognizes the freedom of the press and the right to public
information, which, by the way, are rights that belong to non-direct parties to the
case, the rights of the direct parties should not be forgotten. In a clash among
these competing interests and in terms of the values the Constitution recognizes,
jurisprudence makes it clear that the balance should always be weighed in favor
of the accused. 15
The constitutional rights specific to the accused under Section 14, Article III
of the Constitution such as the right to due process of law, 16 to be presumed
innocent until the contrary is proved, 17 and to an impartial and public trial 18 and
the requirement of the highest quantum of proof 19 to justify deprivation of his
liberty (or even of his life) provide more than ample justification to take a second
look at the view that a camera that broadcasts the proceedings live on television
has no place in a criminal trial because of its prejudicial effects on the rights of
accused individuals. DTcASE
This Court, in Re: Live TV and Radio Coverage of the Hearing of President
Corazon C. Aquino's Libel Case, 20 found that the live coverage of judicial
proceedings involve an inherent denial of due process, which we quote:
Experience likewise has established the prejudicial effect of
telecasting on witnesses. Witnesses might be frightened, play to the
camera, or become nervous. They are subject to extraordinary out-of-
court influences which might affect their testimony. Also, telecasting not
only increases the trial judge's responsibility to avoid actual prejudice to
the defendant, it may as well affect his own performance. Judges are
human beings also and are subject to the same psychological reactions
as laymen. For the defendant, telecasting is a form of mental harassment
and subjects him to excessive public exposure and distracts him from the
effective presentation of his defense.
The television camera is a powerful weapon which intentionally or
inadvertently can destroy an accused and his case in the eyes of the
public. 21
In this case that has achieved notoriety and sensational status, a greater
degree of care is required to safeguard the constitutional rights of the accused. To
be inthe best position to weigh the conflicting testimonies of the witnesses, the
judge must not be affected by any outside force or influence. Like any human
being, however, a judge is not immune from the pervasive effects of media. 22
So must the witnesses be shielded from the pressure of being aware that
their testimony is broadcasted live over television and radio, to be scrutinized and
judged by the court of public opinion. A witness' behavior and self-consciousness
before the camera in a high-profile case such as this case might compromise the
reliability of the fact-finding process, which in turn could skew the judge's
assessment of his or her credibility, necessarily affecting the resolution of the
case. cEaCTS
In a constitutional sense, public trial is not synonymous with publicized

trial. 23 The right to a public trial belongs to the accused. The requirement of a
public trial is satisfied by the opportunity of the members of the public and the press
to attend the trial and to report what they have observed. 24 The accused's right to
a public trial should not be confused with the freedom of the press and the public's
right to know as a justification for allowing the live broadcast of the trial. The
tendency of a high profile case like the subject case to generate undue publicity
with its concomitant undesirable effects weighs heavily against broadcasting the
trial. Moreover, the fact that the accused has legal remedies after the fact is of no
moment, since the damage has been done and may be irreparable. It must be
pointed out that the fundamental right to due process of the accused cannot be
afforded after the fact but must be protected at the first instance.
To address the physical impossibility of accommodating the large number of
interested parties inside the courtroom in Camp Bagong Diwa, it is not necessary
to allow the press to broadcast the proceedings here and abroad, but the Court
may allow the opening of closed-circuit viewing areas outside the courtroom where
those who may be so minded can come and watch the proceedings. This out-of-
court, real-time viewing grants to a larger audience the opportunity to monitor the
proceedings as if they were inside the trial court but at the same time obviates the
massive publicity entailed in media broadcasting. This is similar to the procedure
adopted by this Court in allowing members of the public to watch its oral arguments
at a viewing area outside of the Session Hall where a large monitor projects the
images and sounds from inside the Session Hall in real time.
Aside from providing a viewing area outside the courtroom in Camp Bagong
Diwa, closed-circuit viewing areas can also be opened in selected trial
courts inMaguindanao, Koronadal, South Cotabato, and General Santos City
where most of the relatives of the accused and the victims reside, enabling them
to watch the trial without having to come to Camp Bagong Diwa. These viewing
areas will, at all times, be under the control of the trial court judges involved, subject
to this Court's supervision.
WHEREFORE, premises considered, the Court resolves to:
1. DENY the Partial Motion for Reconsideration dated June 29,
2011 of petitioners Editha Mirandilla Tiamzon and Glenna
Legarta;
2. PARTIALLY
GRANT the Motion for Reconsideration dated June 27,
2011 filed by accused Andal Ampatuan, Jr.
and to MODIFY this Court'sResolution dated June 14,
2011, by disallowing the live media broadcast of the
trial in Criminal Case Nos. Q-09-162148-72, Q-09-162216-
31, Q-10-162652-66, and Q-10-163766, subject to the
following guidelines on audio-visual recording and streaming
of the video coverage:
a. An audio-visual recording of the Maguindanao massacre
cases may be made both for documentary purposes
and for transmittal to specified closed-circuit viewing
areas: (i) outside the courtroom, within the
Camp Bagong Diwa's premises; and (ii) selected trial
courts in Maguindanao, Koronadal, South Cotabato,
and General Santos City where the relatives of the
accused and the victims reside. Said trial courts shall
be identified by the Office of the Court Administrator.
These viewing areas shall be under the control of the
trial court judges involved, subject to this Court's
supervision. aIcDCH
b. The viewing area will be installed to accommodate the

public who want to observe the proceedings within the
Camp Bagong Diwa premises. The streaming of this
video coverage within the different court
premises in Mindanao will be installed so that the
relatives of the parties and the interested public can
watch the proceedings in real time.
c. A single fixed compact camera shall be installed
inconspicuously inside the courtroom to provide a
single wide-angle full-view of the sala of the trial court.
No panning and zooming shall be allowed to avoid
unduly highlighting or downplaying incidents in the
proceedings. The camera and the necessary
equipment shall be operated and controlled only by a
duly designated official or employee of the Supreme
Court.
d. The transmittal of the audio-visual recording from inside the
courtroom to the closed-circuit viewing areas shall be
conducted in such a way that the least physical
disturbance shall be ensured in keeping with the dignity
and solemnity of the proceedings. CHATEa
e. The Public Information Office and the Office of the Court

Administrator shall coordinate and assist the trial courts
involved on the physical set-up of the camera and
equipment.
f. The original audio-recording shall be deposited in the
National Museum and the Records Management and
Archives Office for preservation and
exhibition in accordance with law.
g. The audio-visual recording of the proceedings and its
transmittal shall be made under the control of the trial
court which may issue supplementary directives, as the
exigency requires, subject to this Court's supervision.
h. In all cases, the witnesses should be excluded from
watching the proceedings, whether inside the
courtroom or in the designated viewing areas. The
Presiding Judge shall issue the appropriate orders to
insure compliance with this directive and for the
imposition of appropriate sanctions for its violation."
Carpio, J., on official leave. Del Castillo, J., on leave.
Perez, J., on official leave. (adv98)
Very truly yours,
(SGD.) ENRIQUETA E. VIDAL

Clerk of Court
(In re Ampatuan, A.M. Nos. 10-11-5-SC, 10-11-6-SC & 10-11-7-SC (Notice),
|||
[October 23, 2012])
EN BANC
[G.R. No. 92415. May 14, 1991.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. OMAR MAPALAO and REX
MAGUMNANG, defendants-appellants.

Paterno Aquino for defendants-appellants.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; APPEAL; APPELLANT'S

APPEAL MUST BE DISMISSED SINCE HE REMAINED AT LARGE WHILE HIS
APPEAL WAS PENDING; REASON FOR RULE UNDER SECTION 8, RULE 122
OF THE 1985 RULES ON CRIMINAL PROCEDURE. — Under Section 8, Rule
122 of the 1985 Rules of Criminal Procedure, the Court, may "upon motion of the
appellee or on its own motion, dismiss the appeal if the appellant escapes from
prison or confinement or jumps bail or flees to a foreign country during the
pendency of the appeal." In this case, appellant Magumnang remained at large
even as his appeal was pending. Hence, by analogy his appeal must be
dismissed. The reason for this rule is because once an accused escapes from
prison or confinement or jumps bail or flees to a foreign country, he loses his
standing in court and unless he surrenders or submits to the jurisdiction of the
court he is deemed to have waived any right to seek relief from the court.
2. ID.; ID.; JUDGMENT; SECTION 6, RULE 120 OF THE 1985 RULES ON
CRIMINAL PROCEDURE SHOULD BE MODIFIED TO READ THAT ACCUSED
WAIVES HIS RIGHT TO APPEAL IF UPON PROMULGATION OF JUDGMENT
HE FAILS TO APPEAL WITHOUT JUSTIFIABLE CAUSE. — Section 6, Rule
120 of the 1985 Rules of Criminal Procedure should be modified to read that if
upon promulgation of the judgment, the accused fails to appeal without justifiable
cause, despite due notice to him, his bondsmen or counsel, he is thereby
considered to have waived his right to appeal. However, if within the fifteen (15)
day period of appeal he voluntarily surrenders to the court or is otherwise
arrested, then he may avail of the right to appeal within said period of appeal.
3. ID.; ID.; BAIL; ACCUSED WHO IS AT LARGE CANNOT APPLY FOR BAIL
OR BE GRANTED ANY OTHER RELIEF BY THE COURTS UNTIL HE
SUBMITS HIMSELF TO ITS JURISDICTION OR IS ARRESTED. — By the same
token, an accused who, after the filing of an information, is at large and had not
been apprehended or otherwise has not submitted himself to the jurisdiction of
the court, cannot apply for bail or be granted any other relief by the courts until
he submits himself to its jurisdiction or is arrested.
4. ID.; EVIDENCE; PROOF OF GUILT; ESCAPE OF ACCUSED IS EVIDENCE
OF THEIR GUILT. — Contrary to the claim of appellant that he is innocent as he
did not escape together with Edris who was allegedly the principal player in the
holdup, the fact remains that the appellant escaped to the mountains together
with his co-accused Magumnang and Gumanak Ompa. Their escape is evidence
of their guilt.
DECISION
GANCAYCO, J : p
Highway robbery with homicide is a heinous offense. It is condemnable enough

for a person to commit robbery by way of a holdup but if in the process human
life is taken, the criminal act is certainly detestable. No less than the death
penalty provided by law should be meted out if we are to contain the proliferation
of this odious offense. Unfortunately, unless Congress and Malacañang act
accordingly to consider by law this class of crimes as heinous offenses, the
Courts must have to comply with the constitutional injunction against the
imposition of the supreme penalty. Cdpr
The facts are accurately related by the Regional Trial Court (RTC) of Baguio City
as follows:
"It appears from the Evidence that Adolfo Quiambao is a businessman
selling textile materials. He has a stall in the Hilltop Market in Baguio
where he sells his goods. But sometimes on weekends, he goes to
Abatan, Buguias, Benguet to sell his goods.
On September 19, 1987 at about 3:00 to 4:00 A.M., he went to Abatan,
Buguias, Benguet using his Ford Fiera with his driver Felizardo Galves
and a certain Jimmy Jetwani (a bombay), where he sold his goods in the
afternoon until at night and so, stayed overnight thereat.
The next day, at about 7:00 A.M. of September 20, 1987, after breakfast,
Adolfo Quiambao, his driver Felizardo Galvez, and Jimmy Jetwani
proceeded to Mankayan, Benguet. This time four Muslims rode with
them, namely: Omar Mapalao, Rex Magumnang, Aliman Bara-akal, and
a certain Anwar Hadji Edris. Incidentally, Omar Mapalao and Rex
Magumnang had previously rode once with Adolfo Quiambao in the
latter's vehicle sometime September 13, 1987 while Anwar Hadji Edris
(alias Randy) was known to Adolfo Quiambao for sometime already.
They arrived in Mankayan at about 8:00 A.M. They stayed 4 hours in
Mankayan to sell goods and collect from customers.
At about 12:00 noon of the same day of September 20, 1987, they, the
same passengers previously, started from Mankayan going back to
Abatan, Buguias, Benguet, with one passenger added, Simeon Calama.
At Abatan, Adolfo Quiambao collected amounts from his customers for
about an hour.
At about 1:00 to 2:00 P.M. on September 20, 1987, Adolfo Quiambao
proceeded on his way back to Baguio. They were 10 in all who rode in
his Ford Fiera, namely: (1) his driver Felizardo Galves; (2) Jimmy
Jetwani; (3) Simeon Calama, a son of his customer in Mankayan; (4)
Rene Salonga, a friend with whom he stayed in Abatan when he started
his business; (5) Eduardo Lopez, a co-vendor who sells also goods in
Abatan; (6) Omar Mapalao; (7) Rex Magumnang; (8) Aliman Bara-akal;
(9) Anwar Hadji Edris; and (10) Adolfo Quiambao himself.
On the way, they stopped at Natubleng, Buguias, Benguet at about 3:00
P.M. where Jimmy Jetwani and Adolfo Quiambao collected their credits
for less than an hour.
From there, they proceeded to Sayangan, Atok, Benguet where they
stopped at about 5:00 P.M. for Adolfo Quiambao and Jimmy Jetwani to
collect their credits. At Sayangan, too, they ate in a restaurant.
It was about 6:00 P.M. already when they left Sayangan to proceed to
Baguio. But when they left Sayangan, Adolfo Quiambao noticed that
there were now 5 Muslims with apparently Gumanak Ompa joining them
making them 11 passengers in all in his Ford Fiera.
On the way back to Baguio, after about an hour of driving, one of the
passengers stopped the vehicle in order to urinate. So they all alighted
to urinate. At this point, Adolfo Quiambao took over driving telling his
driver Felizardo Galvez to rest.
After about 30 minutes of driving from the time Adolfo Quiambao took
over, one of the Muslims stopped the vehicle at Km. 24, Caliking, Atok,
Benguet, in order to urinate. And so again they stopped with the Muslims
alighting to urinate.
Thereafter, when Adolfo Quiambao was about to start the vehicle to
proceed to Baguio, while waiting for the Muslims to board, Omar
Mapalao went to the left side of the vehicle near the driver's seat,
pointed a gun (Exh. G) at Adolfo Quiambao and announced 'This is a
holdup.' Another Muslim went to the other side of the front seat while
another Muslim went to the back to guard the back door of the Ford
Fiera. And Gumanak Ompa and Rex Magumnang, each armed with a
knife, went inside the back of the Ford Fiera and pointed their knives on
the passengers. Forthwith, Omar Mapalao, while pointing the gun,
ordered all passengers in front to go inside the back of the vehicle.
Adolfo Quiambao and Jimmy Jetwani complied. But as Adolfo Quiambao
went inside the back of the vehicle, he heard arguing outside and
noticed a rumble and a commotion by the left side of the vehicle
involving his driver, Felizardo Galvez, and the Muslims. As a
consequence, the driver Galves was injured. Adolfo Quiambao pleaded
that they are willing to give their money and valuables provided they (the
Muslims) will not harm them. Rex Magumnang and Gumanak Ompa,
while poking their knives on the passengers, divested Adolfo Quiambao
of P40,000.00, Jimmy Jetwani of P14,000.00, and Simeon Calama of
P3,700.00 in cash, watch and clothes.
After divesting the passengers of their money, Rex Magumnang went to
the driver's seat to start the vehicle but could not and so he called for
Adolfo Quiambao to start it. But Adolfo Quiambao, too, could not start
the vehicle. Angered, Omar Mapalao started counting 1 to 3 threatening
to shoot Quiambao if the vehicle would not start. Adolfo Quiambao
pleaded that he was not the driver and so called for Felizardo Galvez,
despite the latter being injured, to start the vehicle. After Galvez was
able to start the engine, immediately Rex Magumnang went by the side
of the driver, Galvez, and took hold of the steering wheel while ordering
the latter to step on the accelerator and proceed to the direction of the
left side of the road towards the precipice (bangin) indicating an intention
to have the vehicle driven to the precipice. It was at this point when
Galvez struggled and fought with Rex Magumnang for control of the
steering wheel as it was being directed to the ravine. It was good Galvez
was able to step on the brakes on time to prevent it from falling into the
precipice. It was then that Rex Magumnang stabbed and thrust the knife
on Galvez with the latter jerking saying 'aray' in pain. At this point, too,
the passengers panicked and jumped out of the vehicle scampering in
different directions for safety. Adolfo Quiambao jumped out into the
ground first and when he saw Mapalao pointing a gun at him, he jumped
into the precipice thinking it was better than to be shot at and in doing so
hurt himself. The driver Galvez fell to the ravine upon being stabbed.
Jimmy Jetwani jumped out of the vehicle and ran to the mountains
without looking back. Simeon Calama and Eduardo Lopez and Rene
Salonga, too, jumped out and sought safety on the road.
Meantime, a vegetable truck passed by and immediately Aliman Bara-
akal boarded the same on the front seat with the driver. Eduardo Lopez
also ran after the same truck and boarded it at the back. Not far behind
the first vegetable truck was another vegetable truck following it. Simeon
Calama stopped it asking for help but Omar Mapalao, with gun in his
hand, prevented him. And so the second vegetable truck went on but
before it could fully pass by, Simeon Calama took the chance of
boarding it when Omar Mapalao's attention was diverted.
Thus, the two vegetable trucks proceeded on their way till they stopped
at the toll gate at Acop, Tublay, Benguet. Immediately, Simeon Calama
and Eduardo Lopez alighted and reported to the Police Station near the
toll gate that they were held up and that one of the Muslims who held
them up was in the first truck parked near the toll gate. Aliman Bara-akal
was, thus, arrested by the Tublay Police and the amount of P4,015.00
was recovered from him when frisked at the Police Station.
Meanwhile, at the crime scene, the 3 Muslims left thereat, Omar
Mapalao, Rex Magumnang and Gumanak Ompa, fled to the mountains
leaving their victims and avoided the road so as not to be seen.
It is not clear on record where Anwar Hadji Edris (alias Randy) went after
the holdup but in any case he eluded arrest.
After the Muslims have left, Adolfo Quiambao went up to the road level
and by then saw also his driver Galvez wounded lying in the precipice.
Thereafter, another vegetable truck passed by, and Adolfo Quiambao
asked the driver to help them bring his wounded driver, Felizardo
Galvez, from the ravine. Thus, Galvez was brought up to the road and
placed inside the Ford Fiera. The vegetable truck driver helped in
starting the Ford Fiera. And from there, they proceeded immediately to
the Benguet Hospital at La Trinidad, Benguet, but when there was no
doctor, they brought Galvez to the Baguio General Hospital.
At the Baguio General Hospital, efforts to save the life of Felizardo
Galvez proved futile as the next morning he died of his stab wounds.
Dr. Wi submitted an Autopsy Report (Exh. A) as follows:
'I. STAB WOUNDS:
1. Right Mid-clavicular area, 7th Intercostal Space,
penetrating with round edges, 0.5 x 0.5 cm.
2. Left Lumbar area, level 11th Intercostal Space,
penetrating, with clean cut edges, 1.9 cm.
3. Anterior-superior right pre-auricular area, with clean cut
edges, 3.5 cm., and 2 cm. deep.
4. Right Mid-clavicular area level 2nd rib, non penetrating,
3 x 0.7 cm., and 2 cm. deep.
5. Left anterior Deltoid area, 9.5 cm. (extended Surgically).
6. Posterior leaf of the left Diaphragm 3 cm. with
hemorrhages around the wound.
7. Through and through, Right lower lobe of the Lung, 0.5 x
0.5 cm. with round edges.
'II. INCISED WOUNDS:
1. Right lateral neck, superficial, 2 cm.
2. Left supraclavicular to left submandibular area,
superficial, 12.5 cm.
3. Left upper arm, lateral area, 2 cm. and 2 mm. deep.'
Dr. Wi, also, submitted a sketch of the human body showing the stab
wounds sustained in the body of Felizardo Galvez (Exh. B and Exh. C)
and the Death Certificate (Exh. D) showing the cause of death as
'Hypovolemic Shock secondary to Multiple Stab wounds at the right
anterior superior and auricular area, right anterior chest, left deltoid area,
left lumbar area, posterior with laceration of the right lower lobe of the
lung, etc.'
Adolfo Quiambao was also treated of his injuries as shown in his Medical
Certificate (Exh. E).
Subsequently, the Tublay Police were able to locate and apprehend on
September 21, 1987 at Sto. Niño, Tublay, Omar Mapalao, Rex
Magumnang and Gumanak Ompa.
Also, Jimmy Jetwani, who fled to the mountains at the scene of the
incident was found and rescued the next morning after the holdup.
In a confrontation at the Tublay Police Station on September 22, 1987,
Adolfo Quiambao, Jimmy Jetwani and Simeon Calama positively
identified the four (4) Muslims in custody, Omar Mapalao, Rex
Magumnang, Gumanak Ompa and Aliman Bara-akal as among those
who held them up at the Halsema Road (mountain trail), Km. 24,
Caliking, Atok, Benguet.
Adolfo Quiambao, Jimmy Jetwani and Simeon Calama gave their
statements (Exhs. F, M and N) to the police.
At the Tublay Police Station, too, the gun caliber .38 paltik (Exh. G) with
5 live ammunitions (Exhs. G-1 to G-5) and the knife (Exh. G-6) used in
the holdup were recovered from the possession of Gumanak Ompa.
Finally, the policemen who apprehended Aliman Bara-akal at the toll
gate executed a joint affidavit (Exhs. O and P) and the policemen who
apprehended Mapalao, Ompa and Magumnang at Sto. Niño, Tublay,
executed a joint affidavit (Exh. R)." 1
In due course, an amended information was filed in the RTC of Baguio City
charging Rex Magumnang, Aliman Bara-akal, Anwar Hadji Edris, Gumanak
Ompa and Omar Mapalao of the crime of Highway Robbery with Homicide,
defined and penalized under Presidential Decree No. 532, which was allegedly
committed on September 20, 1987 at Km. 24 along Halsema Road, Caliking,
Atok, Benguet.
Upon arraignment, accused Omar Mapalao, Gumanak Ompa, Rex Magumnang
and Aliman Bara-akal, assisted by their counsel, pleaded not guilty.
Accused Anwar Hadji Edris had not been arrested and remained at large. On
March 17, 1988, accused Aliman Bara-akal died in jail during the trial so the case
was dismissed as to him on April 4, 1988. Accused Rex Magumnang, after being
positively identified by witnesses Adolfo Quiambao, Jimmy Jetwani and Simeon
Calama during the trial, escaped from detention on September 25, 1988 when
brought for medical treatment to the Baguio General Hospital, so the trial in
absentia continued as to him. LLpr
After the trial on the merits, a decision was rendered by the trial court on January
12, 1990 convicting the accused of the offense charged as follows —
"WHEREFORE, the Court finds accused Omar Mapalao y Dianalan,
Gumanak Ompa, and Rex Magumnang guilty beyond reasonable doubt
as principals by direct participation, of the offense of Robbery with
Homicide in a Highway in violation of PD 532, as charged, and hereby
sentences each of them to suffer imprisonment ofReclusion Perpetua, to
indemnify jointly and severally the heirs of deceased Felizardo Galvez
the sum of Sixty Thousand (P60,000.00) Pesos for his death; to
indemnify jointly and severally the offended parties Adolfo Quiambao the
sum of Forty Thousand (P40,000.00) Pesos; Jimmy Jetwani the sum of
Fourteen Thousand (P14,000.00) Pesos; and Simeon Calama, the sum
of Three Thousand Seven Hundred (P3,700.00) Pesos as actual
damages, all indemnifications being without subsidiary imprisonment in
case of insolvency, and to pay the costs.
The accused Omar Mapalao and Gumanak Ompa being detention
prisoners are entitled to 4/5 of their preventive imprisonment in
accordance with Article 29 of the Revised Penal Code in the service of
their sentence.
The gun caliber .38 paltik (Exh. G) with 5 live ammunitions (Exhs. G-1 to
G-5), and the knife (Exh. G-6) being instruments of the crime are hereby
declared forfeited and confiscated in favor of the State.
SO ORDERED." 2
Not satisfied therewith the accused Omar Mapalao and Rex Magumnang
appealed the decision to this Court alleging the following errors:
"I
THE TRIAL COURT ERRED IN FAILING TO CONSIDER SIGNIFICANT
EXCULPATORY FACTS AND CIRCUMSTANCES.
II
THE TRIAL COURT ERRED IN FAILING TO APPLY THE
CONSTITUTIONAL MANDATE ON THE PRESUMPTION OF
INNOCENCE AND PROOF BEYOND REASONABLE DOUBT.
III
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-
APPELLANTS GUILTY AS PRINCIPALS IN THE CRIME CHARGED
AND SENTENCING THEM TO SUFFER AN INDETERMINATE
SENTENCE OF FROM 17 YEARS, 4 MONTHS AND 1 DAY OF
RECLUSION TEMPORAL AS MINIMUM TO 20 YEARS OF
RECLUSION TEMPORAL AS MAXIMUM." 3
Parenthetically, the appeal of appellant Rex Magumnang should be struck down.
After arraignment and during the trial, he escaped from confinement and had not
been apprehended since then. Accordingly, as to him the trial in
absentia proceeded and thereafter the judgment of conviction was promulgated.
Nevertheless, through counsel, he appealed to this Court. Under Section 8, Rule
122 of the 1985 Rules of Criminal Procedure, the Court, may "upon motion of the
appellee or on its own motion, dismiss the appeal if the appellant escapes from
prison or confinement or jumps bail or flees to a foreign country during the
pendency of the appeal." In this case, appellant Magumnang remained at large
even as his appeal was pending. Hence, by analogy his appeal must be
dismissed.
The reason for this rule is because once an accused escapes from prison or
confinement or jumps bail or flees to a foreign country, he loses his standing in
court and unless he surrenders or submits to the jurisdiction of the court he is
deemed to have waived any right to seek relief from the court.
Thus when as in this case he escaped from confinement during the trial on the
merits and after his arraignment, and so the trial in absentia proceeded and the
judgment against him was promulgated in accordance with Section 14(2) Article
III of the 1987 Constitution, nonetheless, as he remained at large, he should not
be afforded the right to appeal therefrom unless he voluntarily submits to the
jurisdiction of the court or is otherwise arrested, within fifteen (15) days from the
notice of the judgment against him. While at large as above stated he cannot
seek relief from the Court as he is deemed to have waived the same and he has
no standing in court.
To this effect a modification is in order of the provision of the last sentence of
Section 6, Rule 120 of the 1985 Rules of Criminal Procedure which provides:
"If the judgment is for conviction, and the accused's failure to appear
was without justifiable cause, the court shall further order the arrest of
the accused, who may appeal within fifteen (15) days from notice of the
decision to him or his counsel."
It should provide instead that if upon promulgation of the judgment, the accused
fails to appear without justifiable cause, despite due notice to him, his bondsmen
or counsel, he is thereby considered to have waived his right to appeal. However,
if within the fifteen (15) day period of appeal he voluntarily surrenders to the court
or is otherwise arrested, then he may avail of the right to appeal within said
period of appeal.
By the same token, an accused who, after the filing of an information, is at large
and has not been apprehended or otherwise has not submitted himself to the
jurisdiction of the court, cannot apply for bail or be granted any other relief by the
courts until he submits himself to its jurisdiction or is arrested. prLL
In Gimenez vs. Nazareno, 4 this Court had occasion to rule on a similar case in
this wise —
"First of all, it is not disputed that the lower court acquired jurisdiction
over the person of the accused-private respondent when he appeared
during the arraignment on August 22, 1973 and pleaded not guilty to the
crime charged. In criminal cases, jurisdiction over the person of the
accused is acquired either by his arrest for voluntary appearance in
court. Such voluntary appearance is accomplished by appearing for
arraignment as what accused-private respondent did in this case.
But the question is this — was that jurisdiction lost when the accused
escaped from the custody of the law and failed to appear during the
trial? We answer this question in the negative. As We have consistently
ruled in several earlier cases, jurisdiction once acquired is not lost upon
the instance of parties but continues until the case is terminated.
To capsulize the foregoing discussion, suffice it to say that where the
accused appears at the arraignment and pleads not guilty to the crime
charged, jurisdiction is acquired by the court over his person and this
continues until the termination of the case, notwithstanding his escape
from the custody of the law.
Going to the second part of Section 19, Article IV of the 1973
Constitution aforecited a 'trial in absentia' may be had when the following
requisites are present; (1) that there has been an arraignment; (2) that
the accused has been notified; and (3) that he fails to appear and his
failure to do so is unjustified.
In this case, all the above conditions were attendant calling for a trial in
absentia. As the facts show, the private respondent was arraigned on
August 22, 1973 and in the said arraignment he pleaded not guilty. He
was also informed of the scheduled hearings set on September 18 and
19, 1973 and this is evidenced by his signature on the notice issued by
the lower court. It was also proved by a certified copy of the Police
Blotter that private respondent escaped from his detention center. No
explanation for his failure to appear in court in any of the scheduled
hearings was given. Even the trial court considered his absence
unjustified.
The lower court in accordance with the aforestated provisions of
the 1973 Constitution, correctly proceeded with the reception of the
evidence of the prosecution and the other accused in the absence of
private respondent, but it erred when it suspended the proceedings as to
the private respondent and rendered a decision as to the other accused
only.
Upon the termination of a trial in absentia, the court has the duty to rule
upon the evidence presented in court. The court need not wait for the
time until the accused who escaped from custody finally decides to
appear in court to present his evidence and cross-examine the
witnesses against him. To allow the delay of proceedings for this
purpose is to render ineffective the constitutional provision on trial in
absentia. As it has been aptly explained:
'. . . The Constitutional Convention felt the need for such a
provision as there were quite a number of reported instances
where the proceedings against a defendant had to be stayed
indefinitely because of his non-appearance. What the
Constitution guarantees him is a fair trial, not continued
enjoyment of his freedom even if his guilt could be proved. With
the categorical statement in the fundamental law that his absence
cannot justify a delay provided that he has been duly notified and
his failure to appear is unjustified, such an abuse could be
remedied. That is the way it should be, for both society and the
offended party have a legitimate interest in seeing to it that crime
should not go unpunished.'
The contention of the respondent judge that the right of the accused to
be presumed innocent will be violated if a judgment is rendered as to
him is untenable. He is still presumed innocent. A judgment of conviction
must still be based upon the evidence presented in court. Such evidence
must prove him guilty beyond reasonable doubt. Also, there can be no
violation of due process since the accused was given the opportunity to
be heard.
Nor can it be said that an escapee who has been tried in
absentia retains his rights to cross-examine and to present evidence on
his behalf. By his failure to appear during the trial of which he had notice,
he virtually waived these rights. This Court has consistently held that the
right of the accused to confrontation and cross-examination of witnesses
is a personal right and may be waived. In the same vein, his right to
present evidence on his behalf, a right given to him for his own benefit
and protection, may be waived by him.
Finally, at this point, We note that Our pronouncement in this case is
buttressed by the provisions of the 1985 Rules on Criminal Procedure,
particularly Section 1(c) of Rule 115 which clearly reflects the intention of
the framers of our Constitution,to wit:
'. . . The absence of the accused without any justifiable
cause at the trial on a particular date of which he had notice shall
be considered a waiver of his right to be present during that trial.
When an accused under custody had been notified of the date of
the trial and escapes, he shall be deemed to have waived his right
to be present on said date and on all subsequent trial dates until
custody is regained . . .'
Accordingly, it is Our considered opinion, and We so hold, that an
escapee who has been duly tried in absentia waives his right to present
evidence on his own behalf and to confront and cross-examine
witnesses who testified against him."
Now to the appeal of appellant Omar Mapalao.
The main thrust of his appeal is a denial of his complicity. While he admitted to
be among the passengers of the vehicle on that fateful day and to be present
during the holdup, he alleged that he did not participate at all in the commission
of the crime and that he did not know anything about its commission as in fact he
left with Magumnang after the alleged holdup. He also asserted that the
prosecution witnesses could not have identified him in view of the darkness of
the night then. He said that when they were apprehended by the police no
firearm or money was found in his possession.
The Court finds that the appeal is devoid of merit.
The evidence shows very clearly that on the date of the holdup the appellant was
already a passenger in the vehicle of Adolfo Quiambao since 7:00 A.M. of
September 20, 1987 which was driven by Felizardo Galvez, with Jimmy Jetwani,
Quiambao, Rex Magumnang, Aliman Bara-akal, Anwar Hadji Edris and Calama.
They were together the whole day up to the evening in going to Abatan, Buguias,
Benguet and in the afternoon of the same day they were also together on the
way back to Baguio from Abatan until the holdup occurred in the early evening of
the same day at Km. 24, Caliking, Atok, Benguet. The Muslims stopped the
vehicle to urinate at said place. Appellant went to the left side of the vehicle near
the driver's seat and pointed a gun at Quiambao and announced "this is a
holdup." A Muslim went to the other side of the front sea while another Muslim
went to the back to stand guard. Gumanak Ompa and Rex Magumnang, each
armed with a knife, went inside the back of the Ford Fiera and pointed their
knives at the passengers. Appellant while pointing the gun ordered the
passengers to go to the back of the vehicle so Quiambao and Jetwani complied.
After Quiambao went to the back of the vehicle he noticed a commotion near the
left side of the vehicle involving his driver Galvez and the Muslims. Galvez was
harmed. Quiambao pleaded that they are willing to give their money and
valuables provided the Muslims will not harm them. Rex Magumnang and
Gumanak Ompa divested Quiambao of P40,000.00, Jetwani of P14,000.00 and
Calama of P3,700.00 in cash, a watch and clothes while poking their knives at
them. cdrep
Magumnang tried to start the vehicle but as he could not he called Quiambao to
start it but the latter also failed. Angered, the appellant started counting 1 to 3
threatening to shoot Quiambao if the vehicle did not start. Quiambao called
Galvez who was able to start the engine. Magumnang went by the side of Galvez
and took the steering wheel and drove towards the precipice. Galvez struggled
and fought with Magumnang for control of the steering wheel as it was directed to
the ravine. Magumnang stabbed and thrust the knife at Galvez. The passengers
panicked and jumped and ran away in different directions. Mapalao, Magumnang
and Ompa fled to the mountains.
From the foregoing evidence of the prosecution there can be no question as to
the participation of the appellant in the robbery holdup. He was positively
identified by witnesses who were together with the appellant from the morning up
to the evening of the same day in the Ford Fiera. Quiambao categorically
testified that it was the appellant who was holding the gun with two hands
ordered them to give their cash collections and personal belongings to
them. 5 Jimmy Jetwani corroborated Quiambao's testimony in that it was the
appellant who ordered them at gunpoint to get down from the vehicle and to go to
the back and to give their money to them. Although it was already dark there was
a light inside the vehicle. 6
On cross-examination Jetwani stuck to his identification of the appellant as one
of the culprits as he saw not only his face but the gun he used by the side of the
door facing him and Quiambao. 7 Another prosecution witness, Simeon Calama,
also identified appellant as the one who pointed a gun at them in front. He stated
he is familiar with his voice as during the journey they were joking with each
other. 8
The identification of the culprits in offenses of this nature is vital and decisive. In
this case the identification was made by eyewitnesses who were together with
the appellant practically the whole day in the same vehicle, and who themselves
are the victims of the holdup staged by the appellant with his other co-accused.
Although it was already dark there was light in the vehicle. Moreover, there were
no other persons in the vicinity at the time of the holdup except the appellant, his
co-accused and the victims. LLphil
Contrary to the claim of appellant that he is innocent as he did not escape
together with Edris who was allegedly the principal player in the holdup, the fact
remains that the appellant escaped to the mountains together with his co-
accused Magumnang and Gumanak Ompa. Their escape is evidence of their
guilt.
As the Court observed at the opening paragraph of this decision, robbery
attended by homicide or murder is certainly a heinous offense, more so when in
this case it is committed in the highway. There is hardly any justification for the
court to share the leniency of the trial court by imposing only the life
imprisonment as penalty. The circumstances of the commission of the offense do
not justify at all or require any killing or injury to be inflicted on any of the victims.
The appellant and his confederates were all armed while the victims were not.
They were at their mercy. None of them attempted to fight back or to resist. They
gave all their valuables and personal belongings. All they were pleading for was
that their lives be spared. It fell on deaf ears. It was a senseless killing for no
valid reason. The appellant and his confederates deserve the supreme penalty of
death and no less. Cdpr
But as the Court said, this is not possible under the Constitution.
Our peace and order situation today is very volatile. We have experienced
several attempted coups and we are warned of other possible coups. Our peace
and order problem is a continuing one. The division in our society is obvious and
gaping. Our country is suffering from the economic depression caused not only
by the recent calamities that visited us which were compounded by the Gulf War.
Thus, measures should be undertaken in order to minimize if not entirely prevent
serious crimes against life, chastity and of property resulting in the wanton taking
of human life. Our hope is for a lasting peace and order in our society. A law
must now be enacted defining what are the heinous offenses punishable with the
death penalty. We should not tarry too long.
WHEREFORE, the appealed decision is AFFIRMED in toto, with costs against
the defendants-appellants.
SO ORDERED.
Fernan (C.J.), Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Padilla, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.
Sarmiento, J., concurs in the result. I am against the death penalty.
Footnotes
(People v. Mapalao, G.R. No. 92415, [May 14, 1991], 274 PHIL 354-369)
|||
FIRST DIVISION
[G.R. Nos. 103604-05. September 23, 1993.]
PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. ENGRACIO VALERIANO Y TUMAHIG, MACARIO
E. ACABAL @ "MOMONG," JUANITO RISMUNDO, ABUNDIO
NAHID and JOHN DOES, accused. MACARIO E. ACABAL,
JUANITO RISMUNDO and ABUNDIO NAHID, accused-
appellants.

Marcelo G. Flores for accused-appellants.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; JUDGMENT OF

CONVICTION; RULE FOR VALIDITY THEREOF; SUBSTANTIALLY COMPLIED
WITH IN CASE AT BAR. — We find that the decision substantially complies with
the Rules of Court on judgments as it did sentence the accused-appellants
to reclusion perpetua. A judgment of conviction shall state (a) the legal qualification
of the offense constituted by the acts committed by the accused, and the
aggravating or mitigating circumstances attending the commission, if there are
any; (b) the participation of the accused in the commission of the offense, whether
as principal, accomplice or accessory after the fact; (c) the penalty imposed upon
the accused; and (d) the civil liability or damages caused by the wrongful act to be
recovered from the accused by the offended party, if there is any, unless the
enforcement of the civil liability by a separate action has been reserved or waived.
As we earlier observed, the challenged decision does not contain the usual
dispositive portion. The last two paragraphs of the decision merely embody its
conclusions that: (1) the appellants are guilty of murder, and (2) taking into account
the "attendant qualifying aggravating circumstances of nighttime, use of fire by
burning the house of the victim, . . . the abuse of superior strength," "the penalty
imposable . . . will be in its maximum degree, that is reclusion perpetua"
considering that "the penalty now for murder is reclusion temporal to reclusion
perpetua." While the decision leaves much to be desired, it nevertheless contains
the court's findings of facts, the law applicable to the set of facts and what it
believes to be the imposable penalty under the law, that is, reclusion
perpetua which is actually the penalty imposed on the accused-appellants. It is
obvious that they clearly understood that they were found guilty beyond reasonable
doubt of the crime of murder and were sentenced to suffer the penalty of reclusion
perpetua in Criminal Case No. 4585. Were it otherwise, they would not have
declared in open court their intention to appeal immediately after the promulgation
of the decision and would not have subsequently filed their written notice of appeal.
2. ID.; ID.; ID.; NOTICE OF APPEAL FILED BEFORE THE
PROMULGATION THEREOF WILL NOT DIVEST THE COURT'S JURISDICTION
OVER THE PERSON OF THE ACCUSED; CASE AT BAR. — Accused-appellants
contend that the trial court did not impose any sentence and so cannot cancel
anymore their bail bonds and direct their arrest and immediate commitment
because it already lost jurisdiction over their persons when they perfected their
appeal. In connection with Section 3, Rule 114 of the Revised Rules of Court on
bail, we ruled in People vs. Cortez that: ". . . an accused who is charged with a
capital offense or an offense punishable by reclusion perpetua, and is thereafter
convicted of the offense charged, 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." We have already
said that the decision did impose the penalty of reclusion perpetua. Since the order
cancelling their bail bonds and directing their arrest is contained in the decision
itself, it is apparent that their abovementioned contention is highly illogical. At the
time the order in question was made, the trial court still had jurisdiction over the
persons of the accused-appellants. For too obvious reasons, their notices of
appeal which they claim have put an end to the trial court's jurisdiction over them
could not have been filed before the promulgation of the decision. The order is
therefore valid and enforceable. Also, it may be recalled that the accused-
appellants had earlier raised this issue before us in a petition for habeas
corpus dated 16 January 1992 and docketed as G.R. Nos. 103602-03. We
dismissed that petition on 17 February 1992 for failure to comply with requirement
no. (2) of Revised Circular No. 1-88 and Circular No. 28-91 on forum shopping.
Their motion for reconsideration was denied on 27 May 1993.
3. ID.; EVIDENCE; BURDEN OF PROOF IN CRIMINAL CASES; LIES
WITH THE PROSECUTION. — The testimony of the other witnesses for the
prosecution likewise do not provide sufficient proof of the accused-appellant's guilt.
Visitacion Silvano's testimony that she saw and identified the accused-appellants
at the scene of the crime taxes the imagination. It was humanly impossible for her
to see the accused-appellants even if she were aided by the light from the truck as
she herself said that she was then in her house, three kilometers away from the
house of her parents-in-law. Wilson Silvano did not testify at all that he saw the
persons who hacked and killed his mother. In conclusion, because of reasonable
doubt as to their guilt, the accused-appellants must be acquitted. Every accused
is presumed innocent until the contrary is proved; that presumption is solemnly
guaranteed by the Bill of Rights. The contrary requires proof beyond reasonable
doubt, or that degree of proof which produces conviction in an unprejudiced mind.
Short of this, it is not only the right of the accused to be freed; it is even the
constitutional duty of the court to acquit him. Accordingly, unless the prosecution
discharges its burden of proving the guilt of the accused-appellants beyond
reasonable doubt, they need not even offer evidence in their behalf. The weakness
of their defense of alibi thus becomes irrelevant.
4. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; WHEN
ALLEGED AS GENERIC AGGRAVATING CIRCUMSTANCES, COURT CANNOT
ELEVATE THE SAME AS QUALIFYING CIRCUMSTANCES. — The trial court,
however, erred in considering nighttime, use of fire and abuse of superior strength
as "attendant qualifying aggravating circumstances." The information in Criminal
Case No. 4585 alleged only treachery and evident premeditation as qualifying
aggravating circumstances. Nighttime, band, use of fire, craft, fraud or disguise
and ignominy were alleged as generic aggravating circumstances only. The trial
court cannot elevate the status of any of the generic aggravating circumstances
and consider them as qualifying circumstances for the crime of murder. Moreover,
nighttime is not a qualifying circumstance under Article 248 of the Revised Penal
Code.
5. ID.; MURDER; IMPOSABLE PENALTY. — It was an error for the trial
court to state that "the penalty now for murder is reclusion temporal to reclusion
perpetua." The penalty for murder remains to be reclusion temporal maximum to
death. But in view of paragraph (1), Section 19, Article III of the Constitution
prohibiting the imposition of the penalty of death, where death would have been
the proper penalty instead of reclusion perpetua.
6. CONSTITUTIONAL LAW; BILL OF RIGHTS; TRIAL IN ABSENTIA;
WHEN AVAILABLE. — The trial court further erred in holding that no penalty could
be imposed on accused Engracio Valeriano in Criminal Case No. 4584 because
he "is nowhere to be found, hence, not brought to the bar of justice, he being a
fugitive or at large." The court ignored the fact that Engracio jumped bail after he
had been arraigned, just before the retaking of evidence commenced. Paragraph
(2), Section 14, Article III of the Constitution permits trial in absentia after the
accused has been arraigned provided he has been duly notified of the trial and his
failure to appear thereat is unjustified. One who jumps bail can never offer a
justifiable reason for his non-appearance during the trial. Accordingly, after the
trial in absentia, the court can render judgment in the case and promulgation may
be made by simply recording the judgment in the criminal docket with a copy
thereof served upon his counsel, provided that the notice requiring him to be
present at the promulgation is served through his bondsmen or warden and
counsel.
DECISION
DAVIDE, JR., J :p
In two separate informations dated 28 February 1981 and filed with the then
Court of First Instance, now Regional Trial Court, of Negros Oriental, Engracio
Valeriano, Juanito Rismundo, Macario Acabal, Abundio Nahid and several John
Does were charged with the crimes of Murder and Frustrated Murder. The
accusatory portion in the information for murder, 1 docketed as Criminal Case No.
4585, reads as follows:
"That sometime in the evening of the 28th of January, 1980, at
Nagbinlod, Municipality of Sta. Catalina, Province of Negros Oriental,
named accused, including several 'John Does', conspiring and
confederating with one another, with intent to kill, and with treachery and
evident premeditation and being then armed with bolos and 'pinuti', did
then and there willfully, unlawfully and feloniously attack, assault and use
personal violence on the person of one Rizalina Apatan Silvano while the
latter was about to leave her house and inflicting upon her injuries, to wit:
'right leg amputated below the knee; left leg hacked behind the knee;
abdomen hacked with viscerae evacerated,' and did then and there set
the house on fire while the aforementioned Rizalina Apatan Silvano was
inside said house trying to escape therefrom, and allowing her to be
burned inside said house which was burned to the ground, thereby
causing upon said Rizalina Apatan Silvano her death and burning her
beyond recognition.
That the crime was committed with attendant aggravating
circumstances of nighttime, by a band, by means of fire, craft [,] fraud or
disguise employed; and that means have been employed which brought
added ignominy to the natural effects of their acts.
Contrary to Article 248 in relation to Article 14 of the Revised Penal
Code."
The information for frustrated murder, 2 docketed as Criminal Case No.
4584, alleged that in the evening of the 28th of January 1980 — immediately after
the commission of the murder charged in Criminal Case No. 4585 — the accused
hacked and struck Wilson Silvano, son of the victim in the murder case, with bladed
weapons such as bolos and pinuti thereby inflicting upon him multiple hack
wounds which would have produced the crime of murder were it not for the timely
and able medical assistance given to him. It further alleged that the crime was
committed with the qualifying circumstance of alevosia or treachery and the
aggravating circumstances of nighttime, by a band, with the aid of armed men or
persons who insure or afford impunity, and that craft, fraud or disguise were
employed.
At the arraignment, all the accused, except the John Does who remained
unidentified and at large, pleaded not guilty in both cases. 3 Thereafter, upon
agreement of the parties, joint trial was ordered by the trial court. 4
Trial on the merits was conducted by Branch 37 of the court a quo presided
over by Judge Temistocles B. Diez. But on 16 May 1987, a fire gutted the building
where Branch 37 was located and the records of these two cases were burned.
The records were subsequently reconstituted upon petition of the prosecuting
fiscal. 5The testimonies of the witnesses were retaken, however, before it could
commence, accused Engracio Valeriano jumped bail and the warrant for his arrest
issued on 16 November 1987 was returned unserved because he could not be
found. 6 An alias warrant for his arrest was issued on 26 June 1989, 7 but he
remains at large up to the present.
The evidence for the prosecution, as disclosed by the testimonies of its
witnesses, is as follows:
Antonio Silvano, then the barangay captain of Barangay Nagbinlud, Sta.
Catalina, Negros Oriental, testified that at about 8:30 o'clock in the evening of 28
January 1980, or two nights before the 30 January 1980 local election, three men
entered his yard. He recognized these men as Juanito Rismundo, his neighbor
since 1964, Engracio Valeriano, also another neighbor, and Macario Acabal, his
sub-barangay captain. 8 The three men called him, but he did not answer. Instead,
his wife, Rizalina, did and she told them that he was attending a meeting "in the
town." They did not believe her and replied that they just saw Antonio enter the
house. Juanito asked her whether they (Antonio and Rizalina) were selling their
votes because they will buy them but Rizalina answered in the negative. Juanito
then said, "You choose, if you want something to happen to you or not [sic]."
Another man, Abundio Nahid, asked Antonio to come down because they have
something to tell him. As Antonio was about to kick the door open, he saw the men
outside his house increasing in number and were armed with bladed weapons
(pinuti). When he turned around, Antonio smelled gasoline and he saw Abundio
Nahid set fire to his store located at the right side of his house. 9 He and his wife
Rizalina escaped to the roof of the kitchen while the other members of their family
who were in that house — their son Elmer Silvano and eldest daughter Celsita
Legaspina with her two children - escaped towards the sugarcane field which was
about thirty meters away. When Rizalina fell from the roof to the floor, Macario
Acabal, Juanito Rismundo and Engracio Valeriano hacked her. Each of them
delivered a single blow with Abundio Nahid hitting her four times. 10
On cross-examination, Antonio Silvano admitted that, as barangay captain
of Nagbinlud, Sta. Catalina, and as trusted man of Mrs. Clotilde Carballo in whose
land his house is built, he supported the latter as the official candidate of the KBL
for Mayor of Sta. Catalina, as well as the other candidates of her party for the local
election of 30 January 1980, including Lorenzo Teves, the KBL's candidate for
Governor of the Province of Negros Oriental. On the other hand, the accused
supported and campaigned hard for Mrs. Carballo's opponent, a certain Jose
Napigkit who was a candidate of the Pusyon Bisaya and who eventually won in the
election. In his barrio, Mrs. Carballo lost heavily to Napigkit. 11 He further admitted
that although he first reported the incident to the Philippine Constabulary (PC)
which investigated him, he cannot remember if he was made to sign anything by
the PC investigator. On 15 February 1980, he was again investigated but this time
in the office of Governor Teves. There, he was made to subscribe and swear to an
affidavit 12 that, as admitted by the prosecuting fiscal, was made the basis for the
filing of the information. No statement by the PC was presented to the fiscal. 13
Visitacion Silvano, wife of Wilson who is the son of Antonio and Rizalina,
testified that she heard the shouts for help of her mother-in-law 14 so she woke up
Wilson. He then went down the house and turned on the headlights of the truck
parked in front of their house facing his parents' house which was located three
kilometers away. He ran towards the burning house of his parents but before he
reached it, he was met by Engracio Valeriano and the latter hacked him. When he
ran away, Engracio's companions, Juanito Rismundo, Macario Acabal and
Abundio Nahid, chased him until he reached the sugarcane fields. 15 Visitacion
stayed in her house and saw Engracio Valeriano hack her husband. She also saw
the other accused-appellants in the vicinity of the house of her parents-in-law. 16
Dr. Avelino Torres, Chief of Hospital of Bayawan District Hospital, examined
the body of Rizalina Silvano at 1:00 o'clock in the early morning of 29 January
1980 and was presented as a witness for the prosecution. According to him, the
body was burned and charred beyond recognition but the parts thereof were still
intact. It was still warm and smelt of freshly burned flesh. 17 He found the following
"evidence of hacking:"
"(1) right leg amputated below the knee;
(2) left leg hacked behind the knee;
(3) abdomen hacked with viscerae eviscerated." 18
He concluded that the wounds were inflicted before the body was
burned. 19 He also examined Wilson Silvano at about 1:30 o'clock that same
morning and found seven hack wounds on Wilson. He testified at the trial that
without medical attention, Wilson could have bled to death. 20
Atty. Castulo Caballes, then the Clerk of Court of the Court of First Instance
of Negros Oriental, stated in court that on 7 February 1980, he was fetched from
his house by someone from the office of Governor Lorenzo Teves and was asked
to assist the Governor in taking the affidavit of Juanito Rismundo. 21 After the latter
"admitted that was his affidavit," he "subscribed to him the oath and so [he] signed
as a notary public." 22 In this affidavit, Rismundo implicated Jose Napigkit as
having ordered the kidnapping and killing of KBL leaders and the burning of their
houses.
Also on 7 February 1980, according to Atty. Elson Bustamante, then
Assistant Provincial Attorney, he was called by Governor Teves to assist in the
taking of the statements also of Juanito Rismundo. The Governor himself
propounded the questions to Juanito who was accompanied by the son of Mrs.
Carballo and a PC soldier named Lodove. Bustamante heard Mrs. Carballo's son
tell the Governor that Juanito went to their (Carballos') house and "confessed" to
a certain incident which happened in Sta. Catalina on 28 January 1980, and since
there were PC soldiers still assigned to the Carballos' residence at that time, they
brought Juanito to Governor Teves, the Provincial Chairman of the KBL. 23
Another prosecution witness, Jufelinito Pareja, then Provincial Fiscal of
Negros Oriental, told the court that on 18 February 1980, accused Macario Acabal
was brought to his office. Acabal subscribed and swore to a statement before him.
The latter first read it to Acabal and after ascertaining that Acabal voluntarily
executed the statement, he administered the oath to said affiant. 24 This sworn
statement also implicated Jose Napigkit.
Accused-appellants put up the defense of alibi. They allege that they were
in different places when the incident in question occurred. Macario Acabal was in
sitio Canggabok, Nagbinlud, Sta. Catalina, attending the wake for deceased
barangay captain Filomeno Cumahig. 25 On 29 January 1980, he was arrested by
military men in the house of his aunt at the breakwater of Poblacion Sta. Catalina.
One of them struck him three times on his left and right chest with an armalite rifle.
Thereafter, he was loaded into a pick-up truck owned by Mrs. Clotilde Carballo and
taken to her house. On 7 February 1980, he was brought to Bayawan and was
again manhandled, causing injuries to him which required treatment at the
Bayawan District Hospital, as certified by Dr. Torres. From the hospital, he was
brought to the municipal jail of Bayawan and then to the Provincial Jail in
Dumaguete City. Later, he was taken to the office of the Governor and was forced
to sign an affidavit (Exhibit "F"). Prior to 28 January 1989, he did not know the
other accused in this case. 26
Juanito Rismundo was in Sitio Dinapo, Bgy. Alangilan, Sta. Catalina,
graining corn in the house of Alfreda Ortega. 27 On 6 February 1980, he met a PC
soldier named Boy Gudobe (Lodove), who was then stationed in Bgy. Kawitan,
Sta. Catalina, accompanied by Diosdado Silvano, grandson of Antonio Silvano, at
the Sta. Catalina market. Gudobe allegedly hit him and, together with Diosdado
and a Boy Carballo, the son of Mrs. Clotilde Carballo, brought him to the Capitol
Building in Dumaguete City. While there, he averred that he was forced by a lawyer
to sign an affidavit (Exhibit "D") in the office of the Governor after he was struck
with the handle of a revolver at the back of his head. 28
Abundio Nahid was in his house in Sugong Milagros, Sta. Catalina, Negros
Oriental, about 20 kilometers from Nagbinlud. He charged that Wilson Silvano
testified against him because the Silvanos supported Mrs. Carballo of the KBL
while he led the supporters of Mrs. Carballo's opponent Jose Napigkit of
the Pusyon Bisaya. 29
The prosecution presented on rebuttal Mrs. Clotilde Carballo and Fiscal
Wilfredo Salmin. The former testified that on 7 February 1980 accused Juanito
Rismundo voluntarily surrendered to her at her residence in Sta. Catalina and told
her that he wanted to see the Governor. She then asked her son to bring Juanito
to Dumaguete City. 30
Fiscal Wilfredo Salmin belied the claim of Acabal that he (Salmin) went to
the Provincial Jail on 10 February 1980 and forced Acabal to sign a document. He
alleged that on 16 February 1980, not on 10 February 1980 as claimed by Acabal,
Acabal came to his office at the Provincial Attorney's Office and executed a sworn
statement, but Acabal did not sign the same upon the advice of Atty. Geminiano
Eleccion. 31
After the completion of the re-taking of the testimonies of the witnesses in
Branch 37, Criminal Cases Nos. 4584 and 4585 were re-raffled to Branch 33 of
the trial court, then presided over by Judge Pacifico S. Bulado. 32
The decision 33 of the trial court, per Judge Pacifico S. Bulado, dated 31
October 1991 but promulgated on 20 December 1991, contained no specific
dispositive portion. Its rulings are found in the last two paragraphs which read as
follows:
"The elements of murder in this case, Criminal Case No. 4585 for
the killing of Rizalina Apatan-Silvano having been proved by the
prosecution beyond doubt, the accused JUANITO RISMUNDO,
MACARIO ACABAL and ABUNDIO NAHID, considering the attendant
qualifying aggravating circumstances of nighttime, use of fire by burning
the house of victim Rizalina Apatan-Silvano in order to forcibly drive her
out of her house and hack her to death, the abuse of superior strength,
the penalty impossable [sic] here will be in its maximum degree, that is
reclusion perpetua taking into account Article 248 of the Revised Penal
Code, the penalty now for murder is Reclusion Temporal to Reclusion
Perpetua, and for all the accused to indemnify the heirs of the victim the
sum of Thirty Thousand (P30,000.00) Pesos since this case occurred [sic]
in 1980. For the wounding of the victim Wilson A. Silvano, this Court
believes that simple frustrated homicide only is committed by the accused
Engracio Valeriano only. But since the person who actually inflicted the
injuries of victim Wilson Silvano, accused Engracio Valeriano only is
nowhere to be found, hence, not brought to the bar of justice, he being a
fugitive or at large, no penalty could be imposed on him since he is beyond
the jurisdiction of this court to reach. All the other two (2) accused,
JUANITO RISMUNDO and ABUNDIO NAHID are hereby ordered and
declared absolved from any criminal responsibility from frustrated
homicide.
The bail bond put up by the three accused, namely: Juanito
Rismundo, Macario Acabal and Abundio Nahid are hereby ordered
cancelled and let a warrant of arrest be issued for their immediate
confinement." 34
The trial court rejected the defense of alibi because "[i]t was not shown by
plausible and convincing evidence . . . that it was physically impossible for them to
go to the scene of the crime and to return to the place of residence (People vs.
Solis, 182 SCRA 182)." Upon the other hand, it ruled that "the prosecution
witnesses . . . clearly, positively identified them as the culprits, they being
neighbors for a long time and co-workers." 35
Immediately after the promulgation of the decision, counsel for the accused
manifested in open court their intention to appeal the decision. On the same day,
counsel for accused Abundio Nahid filed a notice of appeal with a motion for the
immediate release of his client, which was opposed by the prosecution. The court a
quo denied the motion also on the same day. 36
On 31 December 1991, all the convicted accused filed a motion for the
reconsideration of the denial of the motion for immediate release. The later motion
was denied on 3 January 1992. A day earlier or on 2 January 1992, accused
Macario Acabal and Juanito Rismundo had filed their notice of appeal. 37
The records of both cases were transmitted to us and we accepted the
appeal on 26 February 1992.
The accused-appellants raise in their Brief 38 the following assignment of
errors:
"I. THAT THE HONORABLE LOWER COURT ERRED IN
CANCELLING THE BAIL BONDS OF ACCUSED-APPELLANTS AND
ORDERING THEIR IMMEDIATE ARRESTS WHEN THE ONLY
PENALTY IMPOSED BY IT FOR ALL THE ACCUSED IS "TO
INDEMNIFY THE HEIRS OF THE VICTIM THE SUM OF THIRTY
THOUSAND (P30,000.00) PESOS.
II. THE HONORABLE LOWER COURT GRAVELY ERRED IN
FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF MURDER AS DEFINED
AND PUNISHED UNDER ARTICLE 248 OF THE REVISED PENAL
CODE.
III. THE HONORABLE COURT GRAVELY ERRED IN FINDING
THAT THE PROSECUTION WITNESSES (ANTONIO SILVANO,
WILSON SILVANO, AND VISITACION SILVANO), HUSBAND AND
CHILDREN, RESPECTIVELY, OF THE DECEASED RIZALINA APATAN-
SILVANO, HAVE POSITIVELY IDENTIFIED THE ACCUSED AS THE
CULPRITS WHEN ONLY ANTONIO SILVANO TESTIFIED AS TO WHO
ALLEGEDLY KILLED HIS WIFE, AND WHILE OTHER TWO (2)
WITNESSES ONLY TESTIFIED AS TO THE WOUNDING OF WILSON
SILVANO BY ENGRACIO VALERIANO AND ALL THESE WITNESSES
WERE VERY VOCAL IN THEIR SILENCE AS TO THE IDENTITIES OF
THE ACCUSED FOR A LONG TIME.
IV. AND, THAT THE HONORABLE LOWER COURT GRAVELY
ERRED IN NOT ACQUITTING ALL THE ACCUSED FOR
INSUFFICIENCY OF EVIDENCE AND/OR AT LEAST ON THE
HYPOTHESIS OF REASONABLE DOUBT."
In support of the first assigned error, they claim that: (a) the trial court could
not have ordered the cancellation of their bail bonds and their arrest and immediate
confinement because the only penalty it imposed on them was "to indemnify the
heirs of the victim the sum of thirty thousand (P30,000.00) pesos" without imposing
any sentence; it merely suggested that ". . . the penalty impossable [sic] here will
be in its maximum degree, that is reclusion perpetua . . ."; and (b) since they
already perfected their appeal immediately after the promulgation of the sentence,
the trial court lost jurisdiction over the case and could not validly cancel their bail
bonds and order their arrest. 39
In its Brief, 40 the Appellee asserts that the judgment appealed from is valid
and enforceable. Although the word "impossable" [sic] is "imprecise," it is clear that
what the judge actually meant was that the penalty of reclusion perpetua was what
the law allowed or mandated him to impose. As to the grant of bail, since they
committed a capital offense and the court had already found that the evidence of
their guilt is strong, the accused-appellants should not be entitled to bail.
We find that the decision substantially complies with the Rules of Court on
judgments as it did sentence the accused-appellants to reclusion perpetua. A
judgment of conviction shall state (a) the legal qualification of the offense
constituted by the acts committed by the accused, and the aggravating or
mitigating circumstances attending the commission, if there are any; (b) the
participation of the accused in the commission of the offense, whether as principal,
accomplice or accessory after the fact; (c) the penalty imposed upon the accused;
and (d) the civil liability or damages caused by the wrongful act to be recovered
from the accused by the offended party, if there is any, unless the enforcement of
the civil liability by a separate action has been reserved or waived. 41 As we earlier
observed, the challenged decision does not contain the usual dispositive portion.
The last two paragraphs of the decision merely embody its conclusions that: (1)
the appellants are guilty of murder, and (2) taking into account the "attendant
qualifying aggravating circumstances of nighttime, use of fire by burning the house
of the victim, . . . the abuse of superior strength," "the penalty imposable . . . will
be in its maximum degree, that is reclusion perpetua" considering that "the penalty
now for murder is reclusion temporal to reclusion perpetua." While the decision
leaves much to be desired, it nevertheless contains the court's findings of facts,
the law applicable to the set of facts and what it believes to be the imposable
penalty under the law, that is, reclusion perpetua which is actually the penalty
imposed on the accused-appellants. It is obvious that they clearly understood that
they were found guilty beyond reasonable doubt of the crime of murder and were
sentenced to suffer the penalty of reclusion perpetua in Criminal Case No. 4585.
Were it otherwise, they would not have declared in open court their intention to
appeal immediately after the promulgation of the decision and would not have
subsequently filed their written notice of appeal.
Accused-appellants contend that the trial court did not impose any sentence
and so cannot cancel anymore their bail bonds and direct their arrest and
immediate commitment because it already lost jurisdiction over their persons when
they perfected their appeal.
In connection with Section 3, Rule 114 of the Revised Rules of Court on bail,
we ruled in People vs. Cortez 42 that:
". . . an accused who is charged with a capital offense or an offense
punishable by reclusion perpetua, and is thereafter convicted of the
offense charged, 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."
We have already said that the decision did impose the penalty of reclusion
perpetua. Since the order cancelling their bail bonds and directing their arrest
is containedin the decision itself, it is apparent that their abovementioned
contention is highly illogical. At the time the order in question was made, the
trial court still had jurisdiction over the persons of the accused-appellants. For
too obvious reasons, their notices of appeal which they claim have put an end
to the trial court's jurisdiction over them could not have been filed before the
promulgation of the decision. The order is therefore valid and enforceable.
Also, it may be recalled that the accused-appellants had earlier raised this
issue before us in a petition for habeas corpus dated 16 January 1992 and
docketed as G.R. Nos. 103602-03. We dismissed that petition on 17 February
1992 for failure to comply with requirement no. (2) of Revised Circular No. 1-
88 and Circular No. 28-91 on forum shopping. 43Their motion for
reconsideration was denied on 27 May 1993.
The trial court, however, erred in considering nighttime, use of fire and abuse
of superior strength as "attendant qualifying aggravating circumstances." The
information in Criminal Case No. 4585 alleged only treachery and evident
premeditation as qualifying aggravating circumstances. Nighttime, band, use of
fire, craft, fraud or disguise and ignominy were alleged as generic aggravating
circumstances only. The trial court cannot elevate the status of any of the generic
aggravating circumstances and consider them as qualifying circumstances for the
crime of murder. Moreover, nighttime is not a qualifying circumstance under Article
248 of the Revised Penal Code.
It was likewise an error for the trial court to state that "the penalty now for
murder is reclusion temporal to reclusion perpetua." The penalty for murder
remains to be reclusion temporal maximum to death. But in view of paragraph (1),
Section 19, Article III of the Constitution prohibiting the imposition of the penalty of
death, where death would have been the proper penalty in a case, the court must
instead impose the penalty of reclusion perpetua. 44
The trial court further erred in holding that no penalty could be imposed on
accused Engracio Valeriano in Criminal Case No. 4584 because he "is nowhere
to be found, hence, not brought to the bar of justice, he being a fugitive or at large."
The court ignored the fact that Engracio jumped bail after he had been arraigned,
just before the retaking of evidence commenced. Paragraph (2), Section 14, Article
III of the Constitution permits trial in absentia after the accused has been arraigned
provided he has been duly notified of the trial and his failure to appear thereat is
unjustified. One who jumps bail can never offer a justifiable reason for his non-
appearance during the trial. Accordingly, after the trial in absentia, the court can
render judgment in the case 45 and promulgation may be made by simply recording
the judgment in the criminal docket with a copy thereof served upon his counsel,
provided that the notice requiring him to be present at the promulgation is served
through his bondsmen or warden and counsel. 46
Having disposed of the first issue raised by the accused-appellants, we now
come to the second, third and fourth assigned errors which shall be discussed
jointly, considering that they are interrelated and deal with the question of whether
or not the guilt of the accused-appellants was proven beyond reasonable doubt.
The accused-appellants contend that the trial court erred in relying on the
testimonies of prosecution witnesses Antonio Silvano, Wilson Silvano and
Visitacion Silvano and in concluding that they clearly and positively identified the
accused-appellants as the culprits. According to them, only Antonio Silvano
testified that he saw the accused burn his house, kill his wife Rizalina and drag her
into the fire. Neither Visitacion Silvano nor Wilson Silvano testified that they saw
what occurred in the elder Silvanos' house. But even the testimony of Antonio
Silvano is not reliable because it lacks truthfulness and validity. They singled out
his testimony that while the fire was raging, his wife told him to save himself as she
will also save herself, then the direction of the wind changed and he jumped from
the roof of the house into the bushes. They concluded that he could not have seen
who killed his wife. 47 Also, the ruling that conclusions and findings of the lower
court are entitled to great weight is not applicable in this case because the judge
who heard the testimonies of the witnesses in its entirety was not the same judge
who penned the decision. They further stressed the delay incurred by Antonio in
reporting the crime to the authorities. The crime was committed on 28 January
1980 but he reported it to the Office of the Governor of Negros Oriental in
Dumaguete City only on 18 February 1980 or some 21 days after its commission.
Finally, they maintain that they have sufficiently established their defense of alibi.
On the other hand, the Appellee seeks the affirmance of the judgment
convicting the accused. The Appellee reasons out that the accused-appellants
were positively identified by prosecution witness Antonio Silvano; and that even
while it is true that only Antonio Silvano saw the murderers, Visitacion and Wilson
Silvano testified on the presence of the accused-appellants at the scene of the
crime.
As the Appellee admits, however, the most damning testimony against the
accused-appellants in this case is only that of Antonio Silvano who claimed that he
actually saw them hack and kill his wife. To us, whether such testimony could be
relied upon is altogether a different matter. Although it is a settled rule that the
findings of the trial court on the credibility of witnesses should be given the highest
respect because it had the advantage of observing the demeanor of the witnesses
and can discern if such witnesses are telling the truth or lying through their
teeth, 48 we cannot rely on that rule in this appeal because the judge who heard
the testimonies of the witnesses was not the same judge who penned the decision.
Judge Temistocles Diez of Branch 37 received and heard the testimonies of the
witnesses but it was Judge Pacifico S. Bulado who rendered the decision. The
latter had no opportunity to observe the witnesses' deportment and manner of
testifying, which are important considerations in assessing credibility. 49
We have carefully read the transcripts of the testimony of Antonio Silvano.
We cannot give him full faith and credit for the following reasons:
1. Although he testified on cross-examination that he first reported the
incident to and was investigated by the PC, it is clear to this Court that it was only
on 15 February 1980, or on the eighteenth day after the incident that he was
investigated at the office of the Governor. Being the barangay captain of
Nagbinlud, the owner of a house that was intentionally set on fire, the father of the
man who was hacked several times and almost died, and the husband of the
murder victim whose body was charred beyond recognition, the compelling call of
duty and the mournful cry for justice cannot tolerate any delay in reporting the
incident to the proper authorities. The prosecution was hard put for an explanation
for this delay; it did not even attempt to make any. If Antonio Silvano could offer no
explanation therefor, it could only mean that he was either unable to identify the
real perpetrators of the crime against his family or he was afraid to do so. For
whichever reason, such failure only bolsters the claim of the defense that the crime
was committed by the "Salvatore" group whose operations Antonio admitted he
was very much aware of, thus:
"Q As such barangay captain you remember that in the month of January,
1980 there was such a group of armed men referred to or
commonly called as Salvatore, is that correct that used to roam
around in the interior part of Sta. Catalina?
A Yes, that is true.
Q And this group of men used to plunder or steal from houses, kill certain
persons and burn also houses, is that correct?
A Yes, that is true.
Q And this group of men known as 'Salvatore' continued to exist even after
January 1980?
A That was only up to 1980.
Q Yes, but after January 1980 this 'Salvatore' group continued to exist for
sometime up to or beyond the year 1980, is that correct?
A They were only about 2 weeks because they were arrested by the
authorities.
Q That is two weeks after January 28, 1980?
A Yes." 50
Furthermore, it is doubtful whether Antonio did report the incident to the PC
as no PC personnel corroborated him thereon and according to him, he did not
sign any statement during the said investigation, which is unusual. The fiscal
himself admitted in open court that no statement taken by the PC was submitted
to his office. 51If indeed Antonio was investigated by the PC, the investigator should
have formally taken his statement in view of its importance. As no such statement
was proved to exist, it is logical to presume that Antonio did not or could not
disclose to the investigator the names of the perpetrators.
2. Antonio admitted on cross-examination that he had no quarrel and
misunderstanding 52 or grudges 53 whatsoever with the accused-appellants. If that
were so, it is odd that he could not explain why he, a barangay captain who was
expected to attend to the requests and problems of his constituents, deliberately
chose not to respond to the alleged call of the accused-appellants on the night of
the incident and instead allowed his wife to lie to them by saying that he was
attending a meeting. Again, the only plausible explanation for his behavior was
that the men who came belonged to the "Salvatore" group and this terrified him,
for he knew that the group had been roaming around, killing people and burning
houses in his area.
3. Also, on cross-examination, Antonio affirmed as true the contents of his
sworn statement 54 taken two weeks after the incident. In it, he failed to state the
fact that he witnessed the killing of his wife and to identify her killers. 55 Since his
sworn statement was precisely taken to obtain from him vital facts relative to the
incident, more specifically on the killing of his wife, and considering that he had
already stated therein that he saw the accused-appellants, it is contrary to human
nature and inconsistent with experience for him to fail to identify them as the killers
of his wife, if such is the fact. It has been said that where the omission in the
affidavit refers to a very important detail such that the affiant would not have failed
to mention it, the omission could affect the affiant's credibility. 56 Verily, it was
obvious from his answer to Question No. 16 of the investigator that he had no
opportunity to identify the killers:
"Q Question No. 16, 'Q-What else did you do?', and you answered, 'A-My
wife told me to just save myself because she will also save herself.
Thereafter the wind changed it(s) course and (the) fire grew big and
because of this, I had the occasion to jumped (sic) from our house
and thereafter I ran towards the bushes.' . . .
A Yes, sir, that is true.
Q How far is that bush to which you ran from your house which was
burning?
A It is about thirty (30) meters because it is a sugarcane field." 57
4. Antonio categorically declared that Engracio Valeriano, Juanito Rismundo

and Macario Acabal each hacked her once hitting her on the forehead, right leg
and left arm, respectively, while Abundio Nahid hacked her four times, hitting her
at the forehead, left arm, right leg and stomach. 58 In other words, from his
testimony, his wife sustained seven wounds. Yet, the medical evidence belies this.
Per the findings of Dr. Avelino Torres, 59 there were only three "evidence" of
hacking, viz.: at the right leg, left leg and abdomen.
5. Nowhere in his sworn statement did Antonio mention the name of
accused-appellant Abundio Nahid. If in fact he saw the latter who he claimed in his
direct testimony hacked his wife four times, Nahid's name would have occupied a
prominent place in his sworn statement.
The testimony of the other witnesses for the prosecution likewise do not
provide sufficient proof of the accused-appellants' guilt. Visitacion Silvano's
testimony that she saw and identified the accused-appellants at the scene of the
crime taxes the imagination. It was humanly impossible for her to see the accused-
appellants even if she were aided by the light from the truck as she herself said
that she was then in her house, three kilometers away from the house of her
parents-in-law. Wilson Silvano did not testify at all that he saw the persons who
hacked and killed his mother.
In conclusion, because of reasonable doubt as to their guilt, the accused-
appellants must be acquitted. Every accused is presumed innocent until the
contrary is proved; that presumption is solemnly guaranteed by the Bill of Rights.
The contrary requires proof beyond reasonable doubt, or that degree of proof
which produces conviction in an unprejudiced mind. Short of this, it is not only the
right of the accused to be freed; it is even the constitutional duty of the court to
acquit him. 60Accordingly, unless the prosecution discharges its burden of proving
the guilt of the accused-appellants beyond reasonable doubt, they need not even
offer evidence in their behalf. 61 The weakness of their defense of alibi thus
becomes irrelevant.
WHEREFORE, the challenged Decision of Branch 33 of the Regional Trial
Court of Negros Oriental in Criminal Case No. 4585 is hereby REVERSED.
Accused-appellants MACARIO ACABAL, JUANITO RISMUNDO and ABUNDIO
NAHID are ACQUITTED on ground of reasonable doubt, and their immediate
release from confinement is hereby ordered, unless other lawful and valid grounds
exist for their further detention.
The trial court is directed to render judgment against accused-appellant
ENGRACIO VALERIANO in Criminal Case No. 4584.
No costs.
SO ORDERED.
Cruz, Bellosillo and Quiason, JJ ., concur.
Griño-Aquino, J ., is on leave.
||| (People v. Valeriano y Tumahig, G.R. Nos. 103604-05, [September 23, 1993])
FIRST DIVISION
[G.R. No. L-12990. January 21, 1918.]
THE UNITED STATES, plaintiff-appellee, vs. LAZARO JAVIER

ET AL., defendants-appellants.
Modesto Castillo, Eusebio Lopez and G.N. Trinidad for appellants.

Acting Attorney-General Paredes for appellee.
SYLLABUS
1. THEFT OF LARGE CATTLE; PROOF. — A carabao, seen in the

possession of the accused and later found tied in front of a house, was identified
as the carabao, which had been taken from the corral of Doroteo Natividad.
Held: That the accused having offered no satisfactory explanation for their
possession of the carabao, they can properly be convicted of the crime of theft.
2. CONSTITUTIONAL LAW; CONFRONTATION OF WITNESSES. —
There are two principal reasons for the provision of the Philippine Bill of Rights
which says: "That in all criminal prosecutions the accused shall enjoy the right
. . . to meet the witnesses face to face." The first reason is the right of cross-
examination, and the second is that the tribunal may have before it the
department and appearance of the witness while testifying.
3. ID.; ID. — Exhibit B of the prosecution is the sworn statement before
the justice of the peace of the municipality of Santo Tomas, Province of
Batangas, of the sergeant, now deceased, who was the leader of the patrol of
the Constabulary which encountered the accused, and whose signature was
identified. Held: That Exhibit B was improperly received in evidence in the lower
court.
DECISION
MALCOLM, J : p
We find the proven facts as brought out in the trial of this case to be as
follows.
Doroteo Natividad on the afternoon of October 22, 1915, fastened his
carabao valued at P150 in his corral situated in the barrio of Trapiche,
municipality of Tananuan, Province of Batangas. On the following morning
when he went to look after the animal, he found the gate to the corral open
and that the carabao had disappeared. He reported the matter to the
Constabulary, and a patrol of the Constabulary under the leadership of
sergeant Presa, now deceased, on the 20th of November following,
encountered the accused Lazaro Javier, Apolinario Mendoza, and Placido de
Chavez leading a carabao. When the ladrones saw the Constabulary, they
scattered in all directions. On the following day, the Constabulary found this
carabao tied in front of the house of one Pedro Monterola in the barrio of
Santa Clara, municipality of San Pablo. The carabao was identified by
Doroteo Natividad as the one which had been taken from his corral on the
night of October 22, 1915, and by the Constabulary as the one seen in the
possession of the accused.
As corroborative of such evidence, we have the well-known legal
principle, which as applied to cases of this character is that, although the
persons who unlawfully took a certain carabao are not recognized at the time,
and their identify remains entirely unknown, nevertheless, if the stolen animal
is found in the possession of the accused shortly after the commission of the
crime and they make no satisfactory explanation of such possession they may
be properly convicted of the crime. (See U.S. vs. Divino [1911], 18 Phil. 425.)
In the present instance, the attempt of the accused to insinuate that one of the
Constabulary soldiers testified against them falsely because of enmity is
hardly believable.
The foregoing statement of the facts and the law disposes of all but one
assignment of error, namely, that the lower court erred in admitting Exhibit B
of the prosecution as evidence. Exhibit B is the sworn statement of sergeant
Presca, now deceased, whose signature was identified, before the justice of
the peace of the municipality of Santo Tomas, Province of Batangas.
Appellant's argument is predicated on the provision of the Philippine Bill of
Rights which says, "That in all criminal prosecutions the accused shall enjoy
the right . . . to meet the witnesses face to face," and the provision of the
Code of Criminal Procedure, section 15 (5), which say that "In all criminal
prosecutions the defendant shall be entitled: . . . to be confronted at the trial
by and to cross-examine the witnesses against him." With reference to the
clause of the Bill of Rights, which we have quoted, Justice Day said in a case
of Philippine origin (Dowdell vs. U.S. [1911], 221 U.S. 325) that it "intends to
secure the accused in the right to be tried, so far as facts provable by
witnesses are concerned, by only such witnesses as meet him face to face at
the trial, who give their testimony in his presence, and give to the accused an
opportunity of cross-examination. It was intended to prevent the conviction of
the accused upon depositions or ex parte affidavits, and particularly to
preserve the right of the accused to test the recollection of the witness in the
exercise of the right of cross-examination." In other words, confrontation is
essential because cross-examination is essential. A second reason for the
prohibition is that a tribunal may have before it the deportment and
appearance of the witness while testifying. (U.S. vs. Anastasio [1906], 6 Phil.,
413.) The Supreme Court of the Philippine Islands has applied this
constitutional provision on behalf of accused persons in a number of cases.
(See for example U.S. vs. Tanjuanco [1902], 1 Phil., 374; U.S. vs. Bello [1908,
12 Phil. 87.) It is for us now to determine whether the present facts entitle the
accused to the protection of the Bill of Rights or whether the facts fall under
some exception thereto.
The sworn statement of Presa was not made by question and answer
under circumstances which gave the defense an opportunity to cross-examine
the witness. The proviso of the Code of Criminal Procedure as to
confrontation is therefore inapplicable. Presa's statement again is not the
testimony of a witness deceased, given in a former action between the same
relating to the same matter. Consequently, the exception provided by section
298. No. 8, of the Code of Civil Procedure and relied upon by the prosecution
in the lower court is also inapplicable. Nor is the statement of Presca a dying
declaration or a deposition in a former trial or shown to be a part of the
preliminary examination. Under these circumstances, not to burden the
opinion with an extensive citation of authorities, we can rely on the old and
historic case of R. vs. Paine (1 Salk., 281 [King's Bench Div]) occurring in the
year 1696. It Bristol under oath, but not in P's presence, was offered. It was
objected that B, being dead, the defendant had lost all opportunity of cross-
examining him. The King's Bench consulted with the Common Pleas, and "it
was the opinion of both courts that these depositions should not be given in
evidence, the defendant not being present when they were taken before the
Mayor and so had lost the benefit of a cross-examination." Although we are
faced with the alternative of being unable to utilize the statements of the
witness now deceased, yet if there has been no opportunity for cross-
examination and the case is not one coming within one of the exceptions, the
mere necessity alone of accepting the statement will not suffice. In fine,
Exhibit B was improperly received in evidence in the lower court.
With such a resolution of this question, we could, as has been done in
other cases, further find this to be versible error and remand the case for a
new trial. We are convinced, however, that this would gain the accused
nothing except delay for the testimony of the owner of the carabao and of the
two Constabulary soldiers, rebutted by no reasonable evidence on behalf of
the accused, is deemed sufficient to prove guilt beyond a reasonable doubt.
The facts come under article 518, No. 3, connection with article 520, as
amended, of the Penal Code. Accordingly the defendants and appellants are
each sentenced to four years, two months, and one day of presidio
correccional, with the accessory penalties provided by law, and to pay one-
third part of the costs of both instances; the carabao shall be returned to
Doroteo Natividad, if this has not already been done. So ordered.
Arellano, C.J., Torres, Johnson, Carson, Araullo, Street, and Avanceña,
JJ., concur.
||| (U.S. v. Javier, G.R. No. L-12990, [January 21, 1918], 37 PHIL 449-453)
EN BANC
[G.R. Nos. L-75511-14. March 16, 1987.]

AGUSTIN V. TALINO, petitioner, vs. THE SANDIGANBAYAN and
THE PEOPLE OF THE PHILIPPINES, respondents.
DECISION
CRUZ, J :p
It is settled that if a separate trial is allowed to one of two or more defendants, his
testimony therein imputing guilt to any of the co-accused is not admissible
against the latter who was not able to cross-examine him. 1 The issue in this
case is whether or not such testimony was considered by the respondent court
against the petitioner, who claims that it was in fact the sole basis of his
conviction. prLL
The petitioner, along with several others, were charged in four separate
informations with estafa through falsification of public documents for having
allegedly conspired to defraud the government in the total amount of P26,523.00,
representing the cost of repairs claimed to have been undertaken, but actually
not needed and never made, on four government vehicles, through falsification of
the supporting papers to authorize the illegal payments 2 Docketed as CC Nos.
6681, 6682, 6683 and 6684, these cases were tried jointly for all the accused
until after the prosecution had rested, when Genaro Basilio, Alejandro
Macadangdang and petitioner Talino asked for separate trials, which were
allowed. 3 They then presented their evidence at such trials, while the other
accused continued defending themselves in the original proceedings, at which
one of them, Pio Ulat, gave damaging testimony against the petitioner, relating in
detail his participation in the questioned transactions. 4 In due time, the
Sandiganbayan rendered its decision in all the four cases finding Talino, Basilio,
Macadangdang, Ulat and Renato Valdez guilty beyond reasonable doubt of the
crimes charged while absolving the other defendants for insufficient evidence.
This decision is now challenged by the petitioner on the ground that it violates his
right of confrontation as guaranteed by the Constitution.
In its decision, the respondent court ** makes the following remarks about the
separate trial:
"The peculiarity of the trial of these cases is the fact that We allowed,
upon their petition, separate trials for the accused Basilio and Talino and
Macadangdang. This being the case, We can only consider, in deciding
these cases as against them, the evidence for the prosecution as well as
their own evidence. Evidence offered by the other accused can not be
taken up.
"It would really have been simpler had there been no separate trial
because the accused Pio B. Ulat said so many incriminatory things
against the other accused when he took the stand in his own defense.
But because Basilio, Talino and Macadangdang were granted separate
trials and they did not cross examine Ulat because, as a matter of fact,
they were not even required to be present when the other accused were
presenting their defenses, the latter's testimonies can not now be
considered against said three accused.
"We cannot understand why, after it had heard the long and sordid story
related by Ulat on the stand, the prosecution did not endeavor to call
Ulat and put him on the stand as part of its rebuttal evidence. Had this
been done, there would have been no impediment to the consideration
of Ulat's testimony against all the accused." 5
The grant of a separate trial rests in the sound discretion of the court and is not a
matter of right to the accused, especially where, as in this case, it is sought after
the presentation of the evidence of the prosecution. 6 While it is true that Rule
119, Section 8, of the Rules of Court does not specify when the motion for such a
trial should be filed, we have held in several cases that this should be done
before the prosecution commences presenting its evidence, although, as an
exception, the motion may be granted later, even after the prosecution shall have
rested, where there appears to be an antagonism in the respective defenses of
the accused. 7 In such an event, the evidence in chief of the prosecution shall
remain on record against all the accused, with right of rebuttal on the part of the
fiscal in the separate trial of the other accused. 8
The rule in every case is that the trial court should exercise the utmost
circumspection in granting a motion for separate trial, allowing the same only
after a thorough study of the claimed justification therefor, if only to avoid the
serious difficulties that may arise, such as the one encountered and regretted by
the respondent court, in according the accused the right of confrontation.
The right of confrontation is one of the fundamental rights guaranteed by the
Constitution 9 to the person facing criminal prosecution who should know, in
fairness, who his accusers are and must be given a chance to cross-examine
them on their charges. No accusation is permitted to be made against his back or
in his absence nor is any derogatory information accepted if it is made
anonymously, as in poison pen letters sent by persons who cannot stand by their
libels and must shroud their spite in secrecy. That is also the reason why ex
parte affidavits are not permitted unless the affiant is presented in court 10 and
hearsay is barred save only in the cases allowed by the Rules of Court, like the
dying declaration. 11
In United States v. Javier, 12 this Court emphasized:
". . . With reference to the clause of the Bill of Rights, which we have
quoted, Justice Day said in a case of Philippine origin (Dowdell v. U.S.
[1911], 221 U.S. 325) that it `intends to secure the accused in the right to
be tried, so far as facts provable by witnesses are concerned, by only
such witnesses as meet him face to face at the trial who give their
testimony in his presence, and give to the accused an opportunity of
cross-examination. It was intended to prevent the conviction of the
accused upon depositions or ex parte affidavits, and particularly to
preserve the right of the accused to test the recollection of the witness in
the exercise of the right of cross-examination.' In other words,
confrontation is essential because cross-examination is essential. A
second reason for the prohibition is that a tribunal may have before it the
deportment and appearance of the witness while testifying. (U.S. v.
Anastacio [1906], 6 Phil. 413.) The Supreme Court of the Philippine
Islands has applied this constitutional provision on behalf of accused
persons in a number of cases. (See for example U.S. v. Tanjuanco
[1902], 1 Phil., 374; U.S. v. Bello [1908], 11 Phil., 526; U.S. v. De la Cruz
[1908], 12 Phil. 87.) . . . ."
We have carefully studied the decision under challenge and find that the
respondent court did not consider the testimony given by Ulat in convicting the
petitioner. The part of that decision finding Talino guilty made no mention of Ulat
at all but confined itself to the petitioner's own acts in approving the questioned
vouchers as proof of his complicity in the plot to swindle the government. Thus: LexLib
"If, as claimed, by Macadangdang, he had no knowledge nor

participation in the conspiracy to defraud, he would have questioned this
obvious irregularity. He would have asked whoever was following up the
vouchers why two biddings were conducted, why the awards to
`D'Alfenor' were cancelled, when the latter were cancelled, and when the
new bidding was made.
"The very same case is true as regards the accused Agustin Talino.
While his duty to initial or sign the vouchers as regards the adequacy of
funds may have been ministerial, his failure to observe the obvious
irregularity is clear evidence of his complicity in the conspiracy.
"Talino declared that in the morning of May 23, 1980, four vouchers
(including three made out in favor of `D'Alfenor Repair Shop') were
brought to him for his certificate as regards the availability of funds. He
had signed all the four vouchers. In the afternoon of the same day, three
other vouchers were also presented to him for certification as to funds
these three were in substitution of Exhibits `A', `B' and `C' which he had
earlier signed but which, according to Talino, were disallowed and
cancelled. Talino claims that he had examined the supporting
documents of the last three vouchers — the RIV, the bids signed by the
repair shops and the abstract of bids. If what Talino says is true, at least
the abstract of bids submitted in the morning, where `D'Alfenor Motor
Shop' appears to be the lowest bidder, must have been different from
the ones submitted together with vouchers in the afternoon. This would
have raised his suspicions as to why these last three abstracts could be
dated as they were (May 18, May 15 and May 11, respectively) when it
was only that morning that the abstracts containing the name of
`D'Alfenor Motor Shop' were submitted. The fact that he readily
approved the substitute vouchers with the substitute winning bidders is a
clear indication that he knew he was facilitating an irregular transaction.
"It is our view that the evidence on record has established beyond doubt
the participation of both Agustin Talino and Alejandro Macadangdang in
all the four felonies charged in the informations." 13
The petitioner makes much of the statement in the Comment that the petitioner's
guilt could be deduced "from the evidence for the prosecution and from the
testimony of Pio Ulat," 14 but that was not the respondent court speaking. That
was the Solicitor General's analysis. As far as the Sandiganbayan was
concerned, the said testimony was inadmissible against the petitioner because
he "did not cross examine Ulat," and was not even required to be present when
the latter was testifying. In fact, the respondent court even expressed the wish
that Ulat had been presented as rebuttal witness in the separate trial of the
petitioner as there would then have been "no impediment to the use of his
testimony against the other accused." As this was not done, the trial court could
not and did not consider Ulat's testimony in determining the petitioner' s part in
the offenses.
The factual findings of the respondent court being supported by substantial

evidence other than Ulat's testimony, we see no reason to disturb them. It is futile
for the petitioner to invoke his constitutional presumption of innocence because
his guilt has in the view of the trial court been established beyond reasonable
doubt, and we agree.
WHEREFORE, the judgment appealed from is AFFIRMED, with costs against
the petitioner.
LLphil
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco,

Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
Melencio-Herrera and Feliciano, JJ., on official leave.
Alampay, J., took no part, was on leave during deliberation.
(Talino v. Sandiganbayan, G.R. Nos. L-75511-14, [March 16, 1987], 232 PHIL
|||
554-561)
THIRD DIVISION
[G.R. No. 158275. June 28, 2005.]
DOMINGO ROCO, petitioner, vs. HON. EDWARD B.

CONTRERAS, PEOPLE OF THE PHILIPPINES and CAL'S
POULTRY SUPPLY CORPORATION,respondents.
DECISION
GARCIA, J : p
Assailed and sought to be set aside in this appeal by way of a petition for
review on certiorari under Rule 45 of the Rules of Court are the following issuances
of the Court of Appeals in CA-G.R. SP No. 66038, to wit:
1. Decision dated 20 August 2002, 1 dismissing the appeal filed by
herein petitioner Domingo Roco contra the 18 October 2000
resolution of the Regional Trial Court (RTC) at Roxas City,
denying due course to and dismissing his petition
for certiorari in SP Case No. 7489; and
2. Resolution dated 12 May 2003, 2 denying petitioner's motion for
reconsideration.
The material facts are not at all disputed:
Petitioner Domingo Roco was engaged in the business of buying and selling
dressed chicken. Sometime in 1993, he purchased his supply of dressed chicken
from private respondent Cal's Poultry Supply Corporation (Cal's Corporation, for
short), a domestic corporation controlled and managed by one Danilo Yap. As
payment for his purchases, petitioner drew five (5) checks payable to Cal’s
Corporation against his account with the Philippine Commercial and Industrial
Bank (PCIB), which checks bear the following particulars:
Check No. Date Amount
004502 26 April 1993 P329,931.40

004503 4 May 1993 P319,314.40
004507 19 May 1993 P380,560.20
004511 26 May 1993 P258,660.20
004523 22 May 1993 P141,738.55
Cal's Corporation deposited the above checks in its account with PCIB but
the bank dishonored them for having been drawn against a closed account.
Thereafter, Cal's Corporation filed criminal complaints against petitioner for
violation of Batas Pambansa Blg. 22 (BP 22), otherwise known as the Bouncing
Checks Law.
After preliminary investigation, five (5) informations for violation of BP
22 were filed against petitioner before the Municipal Trial Court in Cities (MTCC),
Roxas City, thereat docketed as Crim. Cases No. 94-2172-12 to 94-2176-12, all of
which were raffled to Branch 2 of said court.
Meanwhile, and even before trial could commence, petitioner filed with the
Bureau of Internal Revenue (BIR) at Iloilo City a denunciation letter against Cal's
Corporation for the latter's alleged violation of Section 258 in relation to Section
263 of the National Internal Revenue Code in that it failed to issue commercial
invoices on its sales of merchandise. Upon BIR's investigation, it was found that
Cal's Corporation’s sales on account were unavoidable, hence, the corporation
had to defer the issuance of "Sales Invoices" until the purchases of its customers
were paid in full. With respect to the sales invoices of petitioner, the investigation
disclosed that the same could not, as yet, be issued by the corporation precisely
because the checks drawn and issued by him in payment of his purchases were
dishonored by PCIB for the reason that the checks were drawn against a closed
account. Accordingly, the BIR found no prima facia evidence of tax evasion against
Cal's Corporation. 3 aEHADT
Thereupon, trial of the criminal cases proceeded. After the prosecution

rested, the MTCC declared the cases submitted for decision on account of
petitioner's failure to adduce evidence in his behalf. Later, the same court rendered
a judgment of conviction against petitioner.
Therefrom, petitioner went on appeal to the Regional Trial Court, contending
that he was unlawfully deprived of his right to due process when the MTCC
rendered judgment against him without affording him of the right to present his
evidence. Agreeing with the petitioner, the RTC vacated the MTCC decision and
remanded the cases to it for the reception of petitioner's evidence.
On 11 March 1999, during the pendency of the remanded cases, petitioner
filed with the MTCC a "Request for Issuance of Subpoena Ad Testificandum and
Subpoena Duces Tecum", requiring Vivian Deocampo or Danilo Yap, both of Cal's
Corporation or their duly authorized representatives, to appear and testify in court
on 19 May 1999 and to bring with them certain documents, records and books of
accounts for the years 1993-1999, to wit: DHcTaE
a) Sales Journal for the year 1993;

b) Accounts Receivable Journal for the year 1993;
c) Sales Ledger for the year 1993;
d) Accounts Receivable Ledger for the year 1993 (in its absence,
Accounts Receivable Ledger for the years 1994, 1995, 1996,
1997, 1998 or 1999);
e) Audited Income Statement for the years 1993, 1994, 1995, 1996,
1997, 1998 and Income Statements as of February 1999;
f) Audited Balance Sheet for the years 1993, 1994, 1995, 1996,
1997, 1998 and Balance Sheet as of February 1999; and
g) Income Tax Returns for the years 1993, 1994, 1995, 1996 and
1997.
The prosecution did not object to this request.
When the cases were called on 19 May 1999, the MTCC, then presided by
Acting Judge Geomer C. Delfin, issued an order granting petitioner's
aforementioned request and accordingly directed the issuance of the desired
subpoenas.
During the trial of 14 July 1999, the private prosecutor manifested that it was
improper for the trial court to have directed the issuance of the requested
subpoenas, to which the petitioner countered by saying that Judge Delfin's order
of 19 May 1999 had become final and hence, immutable. Nonetheless, the trial
court issued an order allowing the prosecution to file its comment or opposition to
petitioner's request for the issuance of subpoenas. IADaSE
The prosecution did file its opposition, thereunder arguing that:

a) Vivian Deocampo, who previously testified for Lota Briones-Roco
in Criminal Cases Nos. 94-2177-12 to 94-2182-12 before
Branch 1 of the MTC, had earlier attested to the fact that the
following documents, records and books of accounts for 1993
sought by petitioner were already burned:
1. Audited Income Statement for the years 1993, 1994,
1995, 1996, 1997, 1998 and Income Statement as of
February 1999;
2. Audited Balance Sheet for the years 1993, 1994, 1995,
1996, 1997, 1998 and Balance Sheet as of February
1999; and
3. Income Tax Returns for the years 1993, 1994, 1995, 1996
and 1997.
b) the Sales Ledger for the year 1993 cannot be produced because
Cal's Corporation did not maintain such ledger; and
c) the account Receivable Ledger for the periods from 1993, the
Income Statement for 1993 and the Balance Sheet as of
February 1999, cannot also be produced because Cal's
Corporation recently computerized its accounting records and
was still in the process of completing the same. SEcTHA
For its part, the corporation itself maintained that the production of the
above-mentioned documents was inappropriate because they are immaterial and
irrelevant to the crimes for which the petitioner was being prosecuted.
In a resolution dated 19 October 1999, the MTCC, this time thru its regular
Presiding Judge, Judge Edward B. Contreras, denied petitioner's request on the
following grounds: (a) the requested documents, book ledgers and other records
were immaterial in resolving the issues posed before the court; and (b) the
issuance of the subpoenas will only unduly delay the hearing of the criminal cases.
His motion for reconsideration of the denial resolution having been similarly
denied by Judge Contreras, petitioner then went to the RTC on a petition
for certiorariwith plea for the issuance of a writ of preliminary injunction and/or
temporary restraining order, imputing grave abuse of discretion on the part of
Judge Contreras, which petition was docketed in the RTC as SP Case No. V-
7489. cDAITS
In a resolution dated 18 October 2000, the RTC denied due course to and
dismissed the petition for petitioner's failure to show that Judge Contreras
committed grave abuse of discretion amounting to excess or lack of jurisdiction. A
motion for reconsideration was thereafter filed by petitioner, but it, too, was likewise
denied.
Undaunted, petitioner went on appeal via certiorari to the Court of Appeals
in CA-G.R. SP No. 66038.
As stated at the outset hereof, the Court of Appeals, in a decision dated 20
August 2002, 4 dismissed the petition and accordingly affirmed the impugned
resolutions of the RTC. With his motion for reconsideration having been denied by
the same court in its resolution of 12 May 2003, 5 petitioner is now with us via the
present recourse on his submissions that —
I.
. . . THE DENIAL OF THE REQUEST FOR THE ISSUANCE OF
SUBPOENA AD TESTIFICANDUM AND SUBPOENA DUCES TECUM IS
VIOLATIVE OF THE CONSTITUTIONAL RIGHT OF THE ACCUSED AS
ENSHRINED IN ART. III, SEC. 14 (2) OF THE CONSTITUTION; and
II.
. . . THERE MUST BE A BALANCING OF INTEREST BETWEEN THE
RIGH [sic] OF AN ACCUSED TO PROVE HIS INNOCENCE AND THE
RIGHT OF A COMPLAINANT TO THE SPEEDY DISPOSITION OF HIS
CASE.
As we see it, the pivotal issue is whether or not the three (3) courts below
committed reversible error in denying petitioner's request for the issuance of
subpoenaad testificandum and subpoena duces tecum in connection with the five
(5) criminal cases for violation of BP 22 filed against him and now pending trial
before the MTCC.
We rule in the negative.
A subpoena is a process directed to a person requiring him to attend and to
testify at the hearing or trial of an action or at any investigation conducted under
the laws of the Philippines, or for the taking of his deposition. 6
In this jurisdiction, there are two (2) kinds of subpoena, to wit: subpoena ad
testificandum and subpoena duces tecum. The first is used to compel a person to
testify, while the second is used to compel the production of books, records, things
or documents therein specified. As characterized in H.C. Liebenow vs. The
Philippine Vegetable Oil Company: 7
The subpoena duces tecum is, in all respects, like the ordinary
subpoena ad testificandum with the exception that it concludes with an
injunction that the witness shall bring with him and produce at the
examination the books, documents, or things described in the
subpoena. aEDCAH
Well-settled is the rule that before a subpoena duces tecum may issue, the
court must first be satisfied that the following requisites are present: (1) the books,
documents or other things requested must appear prima facie relevant to the issue
subject of the controversy (test of relevancy); and (2) such books must be
reasonably described by the parties to be readily identified (test of definiteness).
Again, to quote from H.C. Liebenow: 8
In determining whether the production of the documents described
in a subpoena duces tecum should be enforced by the court, it is proper
to consider, first, whether the subpoena calls for the production of
specific documents, or rather for specific proof, and secondly,
whether that proof is prima facie sufficiently relevant to justify
enforcing its production. A general inquisitorial examination of all the
books, papers, and documents of an adversary, conducted with a view to
ascertain whether something of value may not show up, will not be
enforced. (Emphasis supplied) CHIEDS
Further, in Universal Rubber Products, Inc. vs. CA, et al., 9 we held:
Well-settled is Our jurisprudence that, in order to entitle a party to
the issuance of a ‘subpoena duces tecum,’ it must appear, by clear and
unequivocal proof, that the book or document sought to be produced
contains evidence relevant and material to the issue before the court,
and that the precise book, paper or document containing such
evidence has been so designated or described that it may be
identified. (Emphasis supplied)
Going by established precedents, it thus behooves the petitioner to first
prove, to the satisfaction of the court, the relevancy and the definiteness of the
books and documents he seeks to be brought before it.
Admittedly, the books and documents that petitioner requested to be
subpoenaed are designated and described in his request with definiteness and
readily identifiable. The test of definiteness, therefore, is satisfied in this case.
It is, however, in the matter of relevancy of those books and documents to
the pending criminal cases that petitioner miserably failed to discharge his burden.
In the recent case of Aguirre vs. People of the Philippines, 10 the Court
reiterated the following discussions regarding violations of BP 22:
. . . what the law punishes is the issuance of a bouncing check not
the purpose for which it was issued nor the terms and conditions relating
to its issuance. The mere act of issuing a worthless check is malum
prohibitum. (Cruz vs. Court of Appeals, 233 SCRA 301). All the elements,
therefore, of the violation of Batas Pambansa Blg. 22 are all present in the
instant criminal cases and for which the accused is solely liable, to wit: [a]
the making, drawing and issuance of any check to apply to account or for
value; [2] the knowledge of the maker, drawer or issuer that at the time of
issue he does not have sufficient funds in or credit with the drawee bank
for the payment of such check in full upon its presentment; and [3]
subsequent dishonor of the check by the drawee bank for insufficiency of
funds or credit or dishonor for the same reason had not the drawer, without
any valid cause, ordered the bank to stop payment. (Navarro vs. Court of
Appeals, 234 SCRA 639).
We stress that the gravamen of the offense under BP 22 is the act of making
or issuing a worthless check or a check that is dishonored upon its presentment
for payment. 11 The offense is already consummated from the very moment a
person issues a worthless check, albeit payment of the value of the check, either
by the drawer or by the drawee bank, within five (5) banking days from notice of
dishonor given to the drawer is a complete defense because the prima
facie presumption that the drawer had knowledge of the insufficiency of his funds
or credit at the time of the issuance of the check and on its presentment for
payment is thereby rebutted by such payment. 12
Here, petitioner would want it appear that the books and documents subject
of his request for subpoena duces tecum are indispensable, or, at least, relevant
to prove his innocence. The Court disagrees.
Based on the records below and as correctly pointed out by the Court of
Appeals, petitioner had been issued by Cal’s Corporation with temporary receipts
in the form of yellow pad slips of paper evidencing his payments, which pad slips
had been validated by the corporation itself. Clear it is, then, that the production of
the books and documents requested by petitioner are not indispensable to prove
his defense of payment. In the words of the appellate court:
The Petitioner admitted, when he testified in the Regional Trial
Court, that he had been issued temporary receipts in the form of yellow
pad slips of paper, by the Private Respondent, for his payments which
were all validated by the Private Respondent (Exhibits "8" and "F" and
their submarkings). Even if the temporary receipts issued by the Private
Respondent may not have been the official receipts for Petitioner's
payments, the same are as efficacious and binding on the Private
Respondent as official receipts issued by the latter.
We do not find any justifiable reason, and petitioner has not shown any, why
this Court must have to disbelieve the factual findings of the appellate court. In
short, the issuance of a subpoena duces tecum or ad testificandum to compel the
attendance of Vivian Deocampo or Danilo Yap of Cal's Corporation or their duly
authorized representatives, to testify and bring with them the records and
documents desired by the petitioner, would serve no purpose but to further delay
the proceedings in the pending criminal cases.
Besides, the irrelevancy of such books and documents would appear on
their very face thereof, what the fact that the requested Audited Income
Statements, Audited Balance Sheets, Income Tax Returns, etc. pertained to the
years 1994 to 1999 which could not have reflected petitioner's alleged payment
because the subject transaction happened in 1993. Again, we quote from the
assailed decision of the Court of Appeals:
The checks subject of the criminal indictments against the
Petitioner were drawn and dated in 1993. The Petitioner has not
demonstrated the justification, for the production of the books/records for
1994, and onwards, up to 1999. Especially so, when the "Informations"
against the Petitioner, for violations of BP 22, were filed, with the Trial
Court, as early as 1994. aCSHDI
We are inclined to believe, along with that court, that petitioner was just
embarking on a "fishing expedition" to derail "the placid flow of trial".
With the above, it becomes evident to this Court that petitioner’s request for
the production of books and documents referred to in his request are nakedly
calculated to merely lengthen the proceedings in the subject criminal cases, if not
to fish for evidence. The Court deeply deplores petitioner's tactics and will never
allow the same.
WHEREFORE, the instant petition is DENIED and the challenged decision
and resolution of the Court of Appeals AFFIRMED.
Costs against petitioner.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Corona and Carpio Morales, JJ., concur.
||| (Roco v. Contreras, G.R. No. 158275, [June 28, 2005], 500 PHIL 275-287)

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EN BANC

[G.R. Nos. 72335-39. March 21, 1988.]

FRANCISCO S. TATAD, petitioner, vs. THE SANDIGANBAYAN, and

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; DELAY

In this petition for certiorari and prohibition, with preliminary injunction,

"1. The prosecution deprived accused-movant of due process of law and

On August 9, 1985, the Sandiganbayan rendered its challenged

Pursuant to the above manifestation of the new Tanodbayan, the

We find such blatant departure from the established procedure as a

[G.R. No. 72670. September 12, 1986.]

SATURNINA GALMAN, REYNALDO GALMAN and JOSE P.

Lupino Lazaro and Arturo M. de Castro for petitioners.

1. REMEDIAL LAW; CRIMINAL PROCEDURE; FINDINGS OF

1. REMEDIAL LAW; CRIMINAL PROCEDURE; SECOND MOTION FOR

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF

The then President was constrained to create a Fact Finding Board 3 to

The chairman wrote in her minority report (somewhat prophetically) that

Respondents-accused opposed the second motion for reconsideration

"Considering the existence of adequate credible evidence showing that

". . . Undoubtedly in view of the considerable significance of her proposed

"4. Nine proposed rebuttal witnesses not presented

No court whose Presiding Justice has received "orders or suggestions"

Respondents-accused's contention that the Sandiganbayan judgment of

The proceedings below, having been vitiated by lack of due process, to

Considering that certain significant facts and circumstances not

BAYANI M. ALONTE, petitioner, vs. HON. MAXIMO A.

[G.R. No. 131728. March 9, 1998.]

BUENAVENTURA CONCEPCION, petitioner, vs. JUDGE

Fortun, Narvasa & Salazar for petitioner Bayani M. Alonte.

Bayani M. Alonte, then incumbent Mayor of Biñan, Laguna and

Due process in criminal proceedings, in particular, require (a) that the

1. REMEDIAL LAW; CRIMINAL PROCEDURE; DUE PROCESS IN

6. ID.; ID.; DISQUALIFICATION OF JUDGES; IT IS NOT ENOUGH

8. ID.; CRIMINAL PROCEDURE; PROSECUTORS; EXPECTED TO

5. ID.; ID.; ID.; WEIGHT IN PRIVATE CRIMES. — In private crimes, an

12. REMEDIAL LAW; CRIMINAL PROCEDURE; RULES STRICTLY

On 05 December 1996, an information for rape was filed against

Nevertheless, it is needful to stress a few observations on the affidavit of

Firstly, the affidavit of desistance of Juvie-Lyn Punongbayan,

SGD. JUANITO L. GARCIA

"c. That he started off by saying that he was the legal

SGD. JUANITO L. GARCIA

Indeed, three days thereafter or on June 28, 1997, Atty. Ramon C.

Indeed, following respondent judge's finding and assuming that the

[G.R. No. L-21325. October 29, 1971.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-

Solicitor General Felix V. Makasiar, Assistant Solicitor General Arturo G.

1. REMEDIAL LAW; CRIMINAL PROCEDURE; RIGHTS OF THE

There is an element of ingenuity as well as of novelty in the plea made

[G.R. No. L-52245. January 22, 1980.]

PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO

Raul M . Gonzales for petitioners.

This is a Petition for Prohibition with Preliminary Injunction and/or

Petitioner Dumlao specifically questions the constitutionality of section 4

The assertion that Section 4 of BP Blg. 52 is contrary to the safeguard of

Explicit is the constitutional provision that, in all criminal prosecutions, the

I concur. But as regards the matter of equal protection, I reiterate my view

I concur in the result as to paragraph 1 of the dispositive part of the

ABAD SANTOS, J ., concurring:

I concur but wish to add that a judgment of conviction as provided in Sec.

It is particularly gratifying that the reiteration in the ably-written and

It may be a task of superfluity then to write a concurring opinion.

Files a separate opinion dissenting from the adverse ruling on Dumlao's